<< Back to ACCSH: Meeting Minutes/Transcripts


U.S. Department of Labor
Occupational Safety and Health Administration
 
Advisory Committee on
Construction Safety and Health

Volume 1

Frances Perkins Building
200 Constitution Ave., N.W.
Rooms N-3437 - AB&C
Washington, D.C. 21210


Thursday,
January 28, 1999
 

The meeting was convened, pursuant to notice, at 8:50 a.m., STEWART BURKHAMMER, ACTING CHAIR, presiding.


APPEARANCES:

EMPLOYER REPRESENTATIVES

STEWART BURKHAMMER
Vice President & Manager of Safety and
Health Services
Bechtel Corporation
9801 Washingtonian Blvd.
Gaithersburg, MD 20878
(301) 417-3909 (W)
(301) 208-0636 (Fax)

STEPHEN CLOUTIER
Vice President
Safety/Loss Prevention Manager
J.A. Jones Construction
J.A. Jones Drive
Charlotte, NC 28287
(704) 553-3574 (W)
(704) 553-3195 (Fax)

FELIPE DEVORA
Safety Director
Fretz Construction Company
P.O. Box 266784
Houston, TX 77207-6784
(713) 641-6777 (W)
(713) 641-4676 (Fax)

ROBERT MASTERSON
Manager, Safety and Loss Control
The Ryland Group
11000 Broken Land Parkway
Columbia, MD 21044-3562
(410) 715-7240 (W)
(410) 715-7909 (Fax)

OWEN SMITH
President
Anzalone & Associates
12700 Foothill Blvd.
Sylmar, CA 91342
(213) 877-8291 (W)
(818) 837-040 (Fax)

EMPLOYEE REPRESENTATIVES

STEPHEN D. COOPER
Executive Director
International Association of Bridge, Structural
& Ornamental Iron Workers
Suite 400
1750 New York Avenue, N.W.
Washington, D.C. 20006
(202) 383-4829 (W)
(202) 347-1496 (Fax)

LARRY A. EDGINTON
Director of Safety and Health
International Union of Operating Engineers
1125 17th Street, N.W.
Washington, D.C. 20036
(202) 429-9100 (W)
(202) 778-2691 (Fax)

WILLIAM C. RHOTEN
Director of Safety & Health Department
United Association of Journeymen & Apprentices of
the Plumbing & Pipe Fitting Industry of the
United States & Canada
901 Massachusetts Avenue, N.W.
Washington, D.C. 20001
(202) 628-5823 (W)
(202) 628-5024 (Fax)

STATE REPRESENTATIVES

HARRY PAYNE, JR.
Commissioner
North Carolina Department of Labor
4 West Edenton Street
Raleigh, NC 27603
(919) 733-0359 (W)
(919) 715-5629 (Fax)

DANNY EVANS
Chief Administrative Officer
OSH Enforcement Division of Industrial Relations
Nevada Department of Business and Industry
400 West King Street
Suite 200
Carson City, NV 89703
(702) 687-3250 (W)
(702) 687-6150 (Fax)

PUBLIC REPRESENTATIVES

JANE F. WILLIAMS
Safety & Health Consultant
4901 E. Kathleen Road
Scottsdale, AZ 85254
(602) 569-6330 (W)
(602) 867-9266 (H)
(602) 867-4338 (Fax)

MICHAEL BUCHET
Construction Division Manager
National Safety Council
1121 Spring Lake Drive
Itasca, IL 60143-3201
(630) 775-2531 (W)
(630) 775-2185 (Fax)

FEDERAL REPRESENTATIVE

MARIE HARING SWEENEY, Ph.D.
Chief
Document Development Branch
Education and Information Division
National Institute for Occupational Safety
and Health
4676 Columbia Parkway
Mailstop C-32
Cincinnati, OH 45226
(513) 533-8339 (W)
(513) 533-8230 (Fax)

COMMITTEE CONTACTS

BRUCE SWANSON
(202) 693-2020, Ext. 32489 (W)
(202) 693-1689 (Fax)

ROBERT J. BIERSNER
SARAH SHORTALL
Office of the Solicitor
Department of Labor
(202) 219-7711, Ext. 154 (W)
(202) 219-7147 (Fax)

PRESENTERS

CHARLES JEFFRESS
Assistant Secretary of Labor
Occupational Safety and Health Administration

NOAH CONNELL
MARK HAGEMANN
Project Officer on Steel Erection Rulemaking
Project Officer on Towers Initiative

ELLEN ROZNOWSKI
Directorate of Construction
Office of Construction Services
Occupational Safety and Health Administration

ARTHUR DECOURSEY
Small Business Liaison
Occupational Safety and Health Administration

ELISE HANDELMAN
Director
Office of Occupational Nursing
and Technical Support
Occupational Safety and Health Administration

TRESE LOUIE


ALSO PRESENT

RICHARD K. PFAU
Safety Director
Donohoe Construction Company
2101 Wisconsin Avenue, N.W.
Washington, D.C. 20007
(202) 625-4186 (W)
(202) 333-5394 (Fax)

 
I N D E X
 
  PAGE
WELCOME AND INTRODUCTIONS
By Mr. Burkhammer
8
REMARKS
By Mr. Jeffress
11
ACCSH WORKGROUP REPORTS  
Sanitation
By Mr. Cooper
60
By Ms. Williams 65
Safety and Health Management Program and
Training and Education
By Mr. Cloutier
68
By Mr. Rhoten 70
Multi-Employer Citation Policy
By Mr. Devora
73
By Mr. Evans 80
Data Collection
By Mr. Buchet
85
By Dr. Sweeney 95
SUBPART R STEEL ERECTION RULEMAKING
By Mr. Hagemann
111
TOWER ERECTION
By Mr. Hagemann
111
SUBPART R STEEL ERECTION HEARINGS
By Mr. Connell
142
Fall Protection
By Mr. Masterson
147
Musculoskeletal Disorders
By Dr. Sweeney
192
Silica
By Dr. Sweeney
198
Cranes
By Mr. Edginton
204
SPECIAL PRESENTATIONS  
PATH Partnership
By Ms. Roznowski
213
Small Business Partnership
By Mr. DeCoursey
235
Cold Stress Card
By Ms. Handelman
253
By Ms. Louie 256
PUBLIC COMMENT 272

 
P R O C E E D I N G S
 
WELCOME AND INTRODUCTIONS

By Mr. Burkhammer
 

CHAIRMAN BURKHAMMER: Good morning. Welcome to the ACCSH meeting. For the next two days, we will be covering a lot of topics and subjects. And there is copies of the agenda out on the sign-in table. If you have not received one, help yourself.

Mr. Cooper, welcome.

MR. COOPER: Thank you.

CHAIRMAN BURKHAMMER: We would like to start by going around, starting with --

You passed your chair, Steve. You're over there.

We would like to start with the committee, with Mr. Cooper. And go around and introduce yourself, please.

MR. COOPER: My name is Steve Cooper from the Iron Workers International Union.

MR. EDGINTON: I'm Larry Edginton with the International Union of Operating Engineers.

MR. EVANS: Danny Evans, Chief Administrative Officer for the OSHA Enforcement Program in Nevada.

DR. SWEENEY: Marie Haring Sweeney from the National Institute for Occupational Safety and Health.

MR. BUCHET: Michael Buchet for the National Safety Council.

MR. CLOUTIER: Steve Cloutier, Vice President for Safety with J.A. Jones Construction Company out of Charlotte, North Carolina.

MR. SWANSON: I am Bruce Swanson for the Directorate of Construction.

CHAIRMAN BURKHAMMER: Stew Burkhammer, Bechtel, Acting Chair.

MS. SHORTALL: Sara Shortall, Office of the Solicitor.

MR. MASTERSON: Bob Masterson, the Ryland Group.

MR. SMITH: Owen Smith, Paving and Concrete Contractors of America.

MR. DEVORA: Felipe Devora, Fretz Construction Company, Director of Safety, Houston, Texas.

MS. WILLIAMS: Jane Williams, Agency Safety, Scottsdale, Arizona.

CHAIRMAN BURKHAMMER: Thank you very much. One comment to the committee, when you go to speak, please get a microphone close to you so people can hear and the recording of the minutes will include everything that we say.

Now, we would like to go around and introduce the public. We will start over here in the first row in the corner, please.

(Whereupon, the public introductions took place.)

CHAIRMAN BURKHAMMER: Thank you very much.

Joining us on the committee is Bill Rhoten of the UA.

We are pleased to start this morning with an honored guest, the Assistant Secretary of Labor for OSHA, Charles Jeffress.

Charles.
  

REMARKS

By Mr. Jeffress

MR. JEFFRESS: Thank you, Mr. Chairman. I am delighted to be here. I am impressed at the ambitious agenda and schedule that you all set up for yourselves, five workgroups meeting yesterday and a full day meeting today and tomorrow.

I know you will give of your time voluntarily, your companies, and unions will give of your time for you to come here and participate in this. And I appreciate it very much.

We try hard to do a good job here in OSHA, but we need all the advice and help we can get from outsiders. And we count on you all to be our primary advisors for construction. I appreciate what you are doing for us.

What I wanted to do this morning is to share with you briefly an overview of what the priorities are for me and for the Occupational Safety and Health Administration for 1999.

And in the course of sharing that, we will discuss some of the specifics that are happening with respect to construction.

But in the interest of your having a sense of the overall view of where we are going in OSHA, I wanted to talk about my five priorities for 1999.

As most of you know, as I have said to you before, I continue to believe that it is important that OSHA maintain a strong enforcement effort if we are going to continue to capture people's attention and to motivate folks to comply with the rules and regulations about safety and health in the work place. So I expect to continue in 1999 our strong enforcement effort.

I say that everywhere I go just because when I start talking about partnerships and outreach and training and education, if I don't say that about strong enforcement, folks wonder whether we're going to go out and do any inspections or not.

And we are going to continue to do inspections. We did about 34,000, a little more than 34,000 last year. We will do about the same number this year.

Traditionally, half, give or take 5 percent, about half of our inspections are in construction. And I expect that is going to continue at about that rate, maybe slightly less than half in construction this year.

We will continue in general industry with targeting employers based on their illness and injury rates. So the employers with the highest rates, we will visit. And we will make inspections there.

In construction, we still do not have rates for individual employers, for individual work sites. So in construction, our targeting system will not change.

We will continue to do it by referrals, using the random inspections from the Dodge Reports, following up on complaints, but we will have the same inspection program with a continued emphasis on focused inspections in construction where we find folks that are doing a good job and trying hard to be in conformance with all the rules.

So the strong enforcement will continue to be a primary emphasis of OSHA in 1999.

Combined with strong enforcement is though is a need for partnership. And we will emphasize even more the partnerships that we have entered into around the country with respect to safety and health work.

Some of you came I think to our November conference, November 13th, where we put on conference on working with OSHA and partnering with OSHA here in Washington, D.C. where we put on display some of the partnerships, regional partnerships that we have around the country where we are working together with business and labor to try to achieve safer work places.

Within construction, our project with the roofers in the Chicago area was featured, also a project with some steel erectors and some home builders in Denver and some of general industry featured as well.

I have asked in every area office around the country though that the director of that area office and the staff in that area office focus on what kind of initiative, what kind of local emphasis, what kind of partnership might make sense in that particular area office in order to advance the cause of safety and health and reduce injuries and illnesses.

And the area offices will be reporting monthly to me on their success in establishing some kind of relationships, some sort of cooperative efforts at reducing injuries and illnesses.

So I expect that you will see this year an increased emphasis on local partnerships and increased emphasis on local cooperative arrangements to reduce injuries and illnesses.

Last year, as you know, we spent a lot of time with the Cooperative Compliance Program in general industry. And that took enormous resources of our staff time.

With that emphasis on hold, I think we will have some time to devote to local projects and local partnerships. And I expect to see significant stepping up of opportunities there for people to work in partnership.

I think the partnerships work in a lot of different areas. They work in standard setting. And those of you involved in steel erection and negotiated rulemaking, I consider that a kind of partnership.

It took several years, but business, labor, and government worked together pretty closely to come up with a proposal that the partnerships can work on and an enforcement basis where we can offer to folks that will do focused inspections on their sites if they will enter into an agreement to have an effective safety and health program and particularly if the association or union is involved, some kind of self-policing mechanism where they go around and make sure that the effective safety and health programs are in place.

Like we have the roofers in Chicago, those kinds of partnerships work in enforcement I think. The partnerships can work in principle where we emphasis and agree to cooperate. And then, they work through trading or other efforts to have joint programs.

Like the partnership we signed with the AGC where in principle, we are going to work with the AGC in a cooperative way. That should translate into training programs. That should translate into outreach education efforts to teach people how to work safely.

So I think partnerships work in a lot of different areas, in a lot of different ways. I think it is a good way for OSHA to work. And you will see us this year emphasizing the use of partnerships in the way we work.

A third priority for me this year is our standard setting process. As I look the way OSHA has gone about setting standards, I think we have expected too little of ourselves.

And I think we should expect more of ourselves. And I think the public should expect more of us in terms of what we are able to achieve. I am working personally myself on the general industry side at trying to get the same thing that the agency before I came achieved in construction.

And in construction, you've got everything under one roof. You've got a coordinated way of doing construction standards.

And this year, when NOAA came and took charge of the standard setting operation within construction, we have one person that is handling all the construction standards with a staff of about 10 or 12 people I guess.

On the general industry side, we had safety standards and health standards were separate. And regulatory analysis was separate.

And I have combined those operations under the direction of Marthe Kent, and getting hopefully some more coordination on the general industry side that was achieved in construction a couple of years ago.

Once we get the organization straight of the clear accountability responsibilities and get our teams set up, I expect it to be a more productive year.

I expect us to work smarter. I expect the quality to be better. I expect a significant amount of outside involvement in our standard writing so that the product that comes out will be better accepted and less contentious.

Within construction in terms of the standard setting, in 1998, of course, we got the steel erection proposal out, as I mentioned.

And at the end of the 1998, the training for powered industrial truck operators. That final rule that applies to construction was also issued.

For 1999, our agenda includes getting the steel erection rule final. We held our hearings last year. People are still submitting written comments.

We will respond to all of those comments, make a final evaluation, whatever changes need to be made, if there are any, get further review necessary through the executive branch, and get a final rule out on steel erection in 199.

We will also produce a proposal on the confined space rule. So you know that we have been kicking around this issue for some time. We are committed to making sure that we get a proposal published in 1999 on this issue. It is time for us to move on that.

The proposal on personal protective equipment, we talked about it the first time this group was reformed. And I said I was going to put that on a fast track. And I have learned what a fast track means at OSHA, but that proposal will be published next month.

But it is a proposal. We have taken nine months to produce a proposal. We will have hearings. And we will get that as a final rule in 1999 as well on who pays for personal protective equipment.

Another area that I know is important to you all in safety and health programs. If you have been tracking what has happened on the general industry side, we have a text that we went to the small business SBREFA process on the end of last year. We are making the modifications following that process.

I expect that proposal on the general industry side to go into executive office review which means the Office of Management and Budget, which means three or four months of review, but to go through that review process and on the streets this summer as a proposed safety and health program rule for general industry.

Again, the first meeting with you and I was asked about where we stand on the safety and health program rule for construction, I made two commitments to you.

One is that I wanted to get the general industry rule up and going first. And then, I would turn my attention to construction. And second, that we would not do anything in construction with this committee, this advisory council participating in it and advising us on what to do.

Just for your planning as a committee, my expectation is when we submit the proposal for the general industry this summer to the public, I would like you all to begin working at that time on a proposal for construction.

We do not have to wait until the final in general industry. Once we have issued the proposal, I think what OSHA's position is on safety and health programs will be out there.

And we are going to look at how we modify that and how we tailor it, how we change it so that it applies properly to construction.

So in terms of your planning, you should anticipate this summer starting to work on a safety and health program rule for construction.

Given that we've got 10 to 12 people in construction working on standards, an agenda includes a final rule on steel erection, a final rule on PPE, a proposed rule on confined space, work on safety and health programs, and an advanced notice of proposed rulemaking on fall protection.

As you know, we have a number of fall protection issues that we have promised to look at again. The number has grown since we first promised to look at it.

And it has probably grown so much that we need to do an advance notice of proposed rulemaking and advertise what kinds of things we will consider rulemaking before we actually make a proposal.

That is a pretty ambitious agenda for the staff for this year. And I am delighted that they have accepted that agenda, and delighted they will tackle that agenda.

And we will need your assistance on each of those as we move forward through the process.

So for me, enforcement, partnerships, rulemaking, those are three of my priorities. A fourth is to continue to manage our strategic plan. I call it my strategic management emphasis.

You all will remember, we picked five industries and three hazards and committed to help 100,000 work places reduce their injuries and illnesses by 20 percent over five years.

I continue to track our agency's progress in those areas. Within construction, construction fatalities is a particular concern to me because while the injury and illness rates have been coming down in construction, and I am delighted if you didn't see it, delighted to note that the report in December showed that for the fifth consecutive years injuries and illnesses had come down.

And for the third consecutive year, construction was below manufacturing. And for employee, employees were safer in construction than were in manufacturing as far as injuries and illnesses go.

But as far as fatalities go, the fatalities in construction are not coming down. We have adopted this focused inspection program as a way of spotlighting the four leading causes of fatalities, but I think we've got a lot of work to do. And I'm not sure we know yet how best to address fatalities in construction.

So in terms of my commitment this year to the strategic plan, I am going to continue tracking all these measures. I am going to emphasize the five industries and the three hazards and the 100,000 work places.

But where I think we have a big challenge before us is controlling fatalities in construction.

I guess the good news on that end of the year report from BLS not only was that the five consecutive years with the rate coming down, the lowest rate ever in history, this happened during a time of economic expansion and economic growth.

And traditionally, the time when the economy is booming, you bring in more inexperienced people into the work force, you've got higher production pressures, traditionally that is when injuries and illnesses have gone up.

So for us to have an expansion under President Clinton for the last six years and have injuries and illnesses declining at the same time is the first time that has ever happened in history. And I have the testimony that employees and employers out there are working a lot smarter.

For us, the five industries that we highlighted that we wanted to achieve a 15 percent reduction using the 1995 rates as a base, four of those five industries including construction have already achieved reduction of more than 10 percent.

The one that has not is logging. And we've got some work to do in logging.

But that's my fourth priority is managed by the strategic plan and continue to emphasize the strategic planning part of what we do.

And the fifth and final area of emphasis for me for 1999 is emphasizing more outreach education and training.

OSHA was funded initially, as you know, as an enforcement program. And it is very important that we maintain that enforcement emphasis.

We have to develop standards in order to have reasonable rules to enforce. And our standards are relied on by lots of people in addition to us, by other state OSHA programs, by employers, employees. Even if they have not been inspected, they use these as guides to abide by.

So it is important to do standard setting, but we have never really been funded to do education and training. We have never really been funded to do outreach. And it has always been an after thought. And I will be seeking ways this year to expand our effort in this area.

The President when he submits his budget February 1, I expect to ask for an increase in the funds for education and outreach for OSHA. And if Congress supports that request, then you will see some additional emphasis by us on education and training in 1999.

But those are my five priorities for 1999. And construction is included as a piece of every one of them. And I welcome your advice and assistance as we go through this year and as we proceed on the issues before us.

Mr. Chairman, that's enough for my overview and my talking. I am sure there are things that came up during your workgroups yesterday that you wonder where the director of the program may stand on those issues. And I will be happy to respond to inquiries about those or any other questions or comments people have.

CHAIRMAN BURKHAMMER: Thank you. One of the issues that has come up over the last couple of months is on the Musculoskeletal Disorders Workgroup.

And I received a letter from a group of 11 associations asking that we disband the Musculoskeletal Disorders Workgroup for a couple of reasons and for us to wait for a report to come out to study that and so on and so forth.

And I responded which I sent a copy to your office of my response, saying that I did not see the need to disband the workgroup, that we had a clear charge from you of what you expected the workgroup to accomplish, and that we were not developing or drafting a standard. And that was one of the comments.

And we tried to make it clear to everybody that the Musculoskeletal Disorders Workgroup is not drafting a standard.

They are putting together a package of best practices or for lack of another term best practices, maybe acceptable practices or some term along that line if best practices is not an acceptable term.

And Marie in her workgroup report today will address that workgroup is.

And I would just like for you to confirm that you are still in agreement that that workgroup continue and provide you with what you have asked us to provide you with.

MR. JEFFRESS: Very much so. I appreciate you having a workgroup on that. And I very much endorse what that group is doing. And I hope you will continue with the work of that workgroup.

This came up again the first meeting of this group, where we are on ergonomics and construction.

And my comment at the time and I would say it is probably still true today is that the agency, OSHA as an agency has much less experience with ergonomic issues and construction than we do in general industry.

We have had guidelines out there for 10 years in general industry. The red meat guidelines have been out there for a long time. We have a lot of enforcement experience with it. And I think we are prepared to move forward in general industry in ergonomics.

We don't have for whatever reason, our agency, has not developed that same kind of experience in construction with respect to ergonomics.

I think we need to get that. I think we need to know what people say are best practices out there. We need to know what kinds of problems people are experiencing.

I would love to have some guidelines, some recommendations for construction, not enforcement guidelines, let me make that clear, some recommendations for construction like we did with violence for late-night retail where you can look at what the problems are and look at what best practices and begin to develop the experience and discussion about where we are headed with ergonomics in construction.

And this advisory group is exactly the right place to lead the development of those kinds of recommendations and for people to come share their experience and help us to begin to get some experience.

So very much, Mr. Chairman, I appreciate what that workgroup is doing. And I endorse it. And I hope you will go forward with that.

CHAIRMAN BURKHAMMER: Great. Thank you very much.

The committee, comments, questions?

Jane.

MS. WILLIAMS: In our meeting on --

CHAIRMAN BURKHAMMER: The microphone, please, Jane.

MS. WILLIAMS: In our meetings that we've had on sanitation, one of the issues that we've had to deal is that we're not dealing with fatalities and illnesses that can be identified at this time, but more of decency for workers. And we would ask your support on this.

We will be presenting a report of all these work efforts over the last year. We are very comfortable with that report. And it is something that we really would like to have any support from you that we can possibly can in moving it.

MR. JEFFRESS: Is this an area where you think it requires a change to a standard?

MS. WILLIAMS: Yes, sir. We have some proposed language being presented to the committee. And basically, it is going with the principle of increasing facilities which help protect sanitation, increase the sanitation activity.

MR. JEFFRESS: I am sure there is a concern about men and women on the same sites. There is also a concern of the general level of cleanliness that's --

MS. WILLIAMS: Absolutely. We addressed both of those issues. And we feel comfortable with what we will be presenting today. And we feel we are on the right track.

And definitely, it just went into the regulatory agenda to you for April.

MR. JEFFRESS: Yes.

MS. WILLIAMS: So we would really ask your assistance in ensuring that move forward.

MR. JEFFRESS: I appreciate that. And I will certainly look at that. Thank you.

MS. WILLIAMS: Thank you.

CHAIRMAN BURKHAMMER: Mr. Cooper.

MR. COOPER: Mr. Jeffress.

MR. JEFFRESS: Mr. Cooper, how are you, sir?

MR. COOPER: Jane Williams just spoke to you about the sanitation. And I'm the other co-chairman on that committee in which she mentioned we will propose a draft standard at this committee today, in fact, the next.

And what I think you are aware of is that 1926.51 is a sanitation standard, but it is unenforceable. And that has been for quite some time and due to the language.

And I think one of the issues was that it wasn't brought before the advisory committee.

But there is a letter to the agency saying that the standard in construction is technically unenforceable. So that brings rise to our large concern and to redo the standard, revise the standard which was required from this committee by the agency.

And in fact, the document that will be presented today by Jane Williams and myself as co-chairmen of our committee really is not a substantial change from the existing standard, except that it would be enforceable once the agency moves on the standard.

As it relates to your presentation this morning, two concerns that I and others have, every time we read a document which is often as relates to safety and health, we see that the agency now has taken on a larger burden, such as the Post Office, you know, that area, the Department of Energy, that area, and others.

And we in construction and throughout the nation are concerned about the limited resources. And it's true that there are limited resources in OSHA's budget.

And we will work with you in seeking additional budgetary items from the Hill simply due to the fact that it is the Hill that is requesting to add on these additional responsibilities.

As relates to fatalities in construction, our analysis of them, I say are mine and others, has been that many fatalities in construction are in direct violation of the present standards and which gives rise to the question, do we need better standards? The answer obviously is, yes, but we need better enforcement.

And how can OSHA enforce? It isn't OSHA's real obligation to enforce all these standards. It is OSHA's obligation to inspect and see that they are obligated -- being abided by.

The -- I am glad that you are seeking additional budget for outreach, education, and training because that hopefully will give us better enforcement which has to be induced by the industry.

But I can guarantee if you look into your data bank, you will see many, many, many fatalities in construction are in violation of the standard which gives rise to the question, where is the education? Where is the industry moving in this endeavor because OSHA can't be on many job sites which pleases a lot of people?

But it is not OSHA's obligation, in my concern, to get all this done. It is OSHA's obligation to be a regulatory agency and see that hopefully it gets done, but the obligation is on our industry.

MR. JEFFRESS: And I agree with you. With 80 percent of the fatalities in construction coming from four causes and we have reasonable standards addressing those four issues, I agree with you.

I think the issue before us in terms of fatalities is not new rules. I think it is the education and following of the rules and the standards that are out there.

And I think that does call for us to continue to toughen enforcement, but to reach up and teach people, too.

I am satisfied that if we can teach folks how to do things well, we will have a more lasting impact than just making the inspection.

MR. COOPER: Thank you, Mr. Jeffress.

CHAIRMAN BURKHAMMER: You're welcome.

Marie.

DR. SWEENEY: Mr. Jeffress, thank you for your report. I want to put on my NIOSH and my function in the Education and Information Division.

And I am very happy to hear that you are going to be working on the issues of outreach, education, and training.

I would like to emphasize that NIOSH has a role too in there. And I would like to see collaboration or I would hope that we could collaborate on those areas.

In addition, there are other organizations that have lots of experience in training and education of workers, as well as industry.

And I hope OSHA will begin to collaborate as opposed to reinventing the wheel in those particular areas.

Secondly, just to emphasize, there is a desperate need to get health and safety information to the construction industry.

Although there has been a lot disseminated, it is the transfer of that all the way from the large industries to two guys in a truck.

And unfortunately, we have gotten I think the large industries. And they understand what's going on.

But it is the smaller companies, independent businessmen, the small business that we really need to spend some emphasis on.

And if we could use the resources of OSHA to find out how to most effectively to get the health and safety information to those groups in easy-to-read language in a form that's acceptable to a lot of people, I think that would be wonderful plus in multiple languages.

Thank you.

MR. JEFFRESS: One response on that, I very much want to work with NIOSH on education and training activities.

I was at a meeting with Linda Rosenstock just before Christmas. And I told folks then that my goal for the OSHA budget was to get the same kind of percentage increases for OSHA that Linda was getting for NIOSH, you know. If I ever get to that level, I would be delighted.

But one thing that OSHA and NIOSH are doing together this fall, in the fall of 1999 is to sponsor a conference on training, on occupational safety and health training, how can it be done best, who's doing it well, how do we deliver the information that's needed to the places, to the people that's needed in the best possible way?

And I think that will help us advance our cause in terms of training folks.

CHAIRMAN BURKHAMMER: Back when Terrill O'Toole was at DOE, there was a joint effort between OSHA and DOE with NAPA. And Steve mentioned about the relationship between OSHA and the privatization in DOE.

Now, they have a new Terrill O'Toole, so to speak, in DOE. Is that effort going to be reconstituted and hopefully moved forward where you will have an opportunity to present the funding issue?

MR. JEFFRESS: I met with David Michaels who is the new Terrill O'Toole, if you will, two weeks ago. And we talked about where DOE is on this issue and where we're headed on it.

There have been two changes of secretaries since Hazel O'Leary proposed this external regulation of DOE activities.

And the privatization issues where DOE has turned sites over and leased them to other people to run has raised concerns within DOE.

And I think at this point, DOE is reevaluating their direction towards privatization and their desire or intent for external regulation.

In fairness to Secretary Richardson and Dave Michaels who just got there, my guess is that it will be a couple of months before they have a sense of what direction they would want to go on this.

So I would have to tell you right now, there is not forward motion on it. I would say it has been reevaluated by the Department of Energy.

One commitment that we made to each other is that these sites that DOE considers privatized, considers leased out, that they don't believe that they have any existing or continuing health and safety responsibility for, I would make sure that OSHA had responsibility for them, make sure that there are not, you know, safety and health free zones out there where no one has jurisdiction.

And I expect from DOE a comprehensive listing of these sites and the description of what's going on at each site so we can make some assessment of who has jurisdiction of the sites that have been privatized.

But that's where we are right now. And in terms of forward motion, it would probably be a couple of months before I can tell you what direction we're headed.

CHAIRMAN BURKHAMMER: Okay. Thank you.

Bob.

MR. SMITH: I just have one question. Based on the satisfaction that appears to be coming out of the agency on the negotiated rulemaking on subpart R, what consideration is the agency giving to using the negotiated rulemaking on (m) and the safety and health program standard?

MR. JEFFRESS: The negotiated rulemaking I think produced a good document in steel erection in part because it was a relatively limited segment of the industry that needed to be involved in it.

If we go to something like safety and health programs, I don't know how one committee of 13 people represents the whole construction industry or a committee of 20 people.

So I think it is much more difficult on a broad issue that affects everybody to have a negotiated rulemaking.

We need a process that has extensive participation by stakeholders, by employers and employees who are out there.

But I'm not sure a negotiating committee is the right way to do that. I am not sure you can get all the industry represented that needs to be represented in that kind of format.

On fall protection, to some extent the same issues exist. I was talking to Bruce yesterday about the number of different types of issues that we are now considering on some when we do the AMPR, we are considering looking at.

It covers roofing, some roofing issues, residential construction issues, climbing and reinforced steel, precast concrete erection, restraint systems, anchorage points, prompt rescue, restraint systems, drilling shafts, body belts. And we incorporate the full body harnesses.

There are so many different issues. I am not sure that one committee is necessarily the right way to go.

So I am not proposing a negotiated rulemaking on those, but I am going to make sure that as we go forward, that we build in significant participation by people in the process.

CHAIRMAN BURKHAMMER: Felipe.

MR. DEVORA: Yes. Safety and health programs, did I hear that the agency recognizes the need for a separate one on construction.

And do I understand you correctly that general industry develops their standards first, that that will be a -- for construction to develop their own? We will be allowed to develop our own standard.

MR. JEFFRESS: Oh, yes. The one for general industry does not apply and will not apply in any way, shape, or form to construction, but it will give you all an idea of what OSHA has come to conclude are important elements of a safety and health program in general industry.

That will be something for this group to start from, to consider as you go forward.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: Thank you, Mr. Chairman. My question also involves the safety and health program standard for construction. And I am interested in seeking some clarification.

You had said that you were interested in hearing from this committee with respect to what our thoughts might be.

And if my recollection is correct, I believe in March of 1997, this committee forwarded to the construction directorate a proposed standard.

MR. JEFFRESS: Right.

MR. EDGINTON: Are you saying that you want to hear again from us?

MR. JEFFRESS: Yes, Larry, I am. I looked at that and I have -- even though I was not here at the time.

Since arriving, I read what the ACCSH of that year produced. And I've looked at what has been produced on the general industry side.

And I think there are some things that have been raised on the general industry side that you all ought to look at and consider and refine that proposal back to me.

So I am not dismissing that because that was a good start. And I am aware of it. But I think there may be some additional elements you all ought to look at, particularly the approach to how it is applied.

I think it is important that this be a program standard that you can tailor to individual work places. And I think you all were headed that way as well.

But I would just like for you to look at some ways where we try to describe that for general industry and see whether that has any impact on your thinking for construction.

CHAIRMAN BURKHAMMER: Steve, you were co-chair of the Safety and Health Program Standard Committee. Would you like to comment on getting it back and reworking the committee?

MR. JEFFRESS: Am I stepping on toes, Mr. Chairman?

(Laughter)

CHAIRMAN BURKHAMMER: No, no.

MR. CLOUTIER: Mr. Jeffress, I don't think you are. I think the members of the ACCSH Committee and the workgroup as we go around through the process, it seems time and time again we wait for the general industry document.

And at least, we will have some boiler plate where when it comes back to the committee, we will either like it and add to it or we will dislike it and go back to our original product and beef it up and send it back.

And I too think that it is a major issue. It has been talked about for a number of years here. The ACCSH Committee and the workgroup sent a good document to the agency a couple of years ago.

And by now, because it has always been this delay waiting for the general industry, if we can get it through general industry, we will see what we will do with construction.

I will take that point back as one of the co-chairs and one of the co-chairs across the room.

MR. JEFFRESS: That is -- and it is not a place where construction leads. And you are right. Construction has taken a back seat too long. We need to get out in front on construction on some of these things.

MR. CLOUTIER: But in listening to your comments this morning, there is a couple of things that I missed.

You didn't talk about the billions that are going to be spent on upgrading roadways around the United States.

We talked about it at the last ACCSH meeting. And I think the agency has got to do something with those folks.

If we look at the fatality numbers, I think you are going to see a percentage there, as we work along the roadways and the motoring public. And that is an exposure area that we need to address.

I too am very concerned that fatalities continue to rise. I think the industry, the workers, the unions, employers, the major employers have put a significant emphasis on safety in the last five years. And we continue to see reductions in accidents and illnesses across the board.

But on these fatalities, we see time and time again, it's the employee's first day on the job.

We see that they are a young worker many times. They are 18, 19 years old. A lot of times they work in a family-run business.

So here is the kid just out of high school. Dad brings him to work. It's the first day on the job. Go jump on the forklift and move it from point A to point B. And they never get there.

And I think we have got to address that.

For a number of years, we have talked about the small players, the small contractors. And we have not gotten to them. And I do not know that we ever will unless we get down to maybe at the licensing end that we put some requirements there.

And I know it has been talked back and forth. And it is done at a local level, at the local county typically or the local city issues a license to be a contractor. And we are missing that.

And I think the emphasis needs to go after fatalities. We continue to drive the accident and injury and illness rates down. And everybody will stand up and cheer for that.

We are not down to zero where we would like to be and do not know when we will ever get there. But the fatalities keep going up and going up and going up.

And then, I share Mr. Cooper's comments that if the agency continues to expand their resources by stepping out and going to the U.S. Postal Service and DOE.

And just recently, now we are going to the national parks. We are going to get structural fin here real fast. And we are still not addressing construction.

MR. JEFFRESS: Okay. Several points, let me tell you about the last one first. You know we have always had responsibility for inspections at the Post Office and the Park Service.

Federal agencies are covered under the OSHA Act just like -- not just like, covered under the OSHA Act.

And we have obligations to make visits to them, just as we have obligations to make visits to the private sector. We cannot penalize the public sector.

But we were doing hundreds of inspections at the Post Office before this bill passed. We have been doing inspections of the Park Service before we started this agreement.

The difference now, of course, is that the Post Office wants to make those inspections and issue our findings.

They will include citations and penalties and required abatements dates which is a dramatically different way of working with the Post Office than how we worked in the past.

But in terms of numbers of inspections, not necessarily a huge increase in inspections. We anticipate that with this additional authority, there may be more complaints, there may be more difficult issues to work out. So it probably will be an impact on our resources, but it is not totally new.

The Park Service, actually my expectation is there we have an agreement and a partnership with them, if you will, of how they are going to work.

And if it works, it should be less intensive for us because they should be addressing the things that we have had to address in the past.

So it is not totally a sap on our resources. Some of it, we have been aiming towards all along.

On the highway construction, you are right. There is a huge increase occurring out there now both in maintenance and new construction.

And we do need to be conscious of that and be aware of how we should direct our resources there.

MR. CLOUTIER: Isn't reaching out to all the DOTs, the various state DOTs and pushing it at that level and then pushing it with the contractors and employees?

MR. JEFFRESS: I met with the Deputy Secretary of DOT to talk about how we get to these contracts that are being let at the state level. Is there a way through the contracting agencies to reach the contractors?

I guess all I can say about that is I need to continue to work with them on that. I do not think we have a way yet that OSHA and DOT can work together to make that happen.

I think we have got to find a way to get to those contractors.

On the education side of it, I have talked with the National Safety Council about some joint, and Marthe knows more about, some ways we can work together to do outreach not only to the folks who are building the roads, but to the public who is driving by these sites so they don't run the construction workers that are at the sites.

We need to do both of those, both of those things.

But a good point I don't think we have talked about very much is, you know, how does your enforcement side react to this big increase in this part of construction? We probably need to work on that.

One final comment on what you said about inexperienced workers, I think that is exactly right.

The one thing that has been surprising to find though in some of the research that people have been sending me, and I get all kinds of letters and reports and documents as you can imagine, is that it is not only the young person that is at higher risk, the person on the first day of a job.

It really appears to be the greatest risk is when people join new crews if they are not been a part of that crew, even if they have 10 years in the business.

If this new crew has a new rhythm or a new way of doing things or a different way of looking out for one another, the person joining the new crew or newly joining a crew, even if they are experienced person, their greatest period of risk is the first three weeks on the job with that new crew.

So it is not just the inexperienced workers, but any time you bring somebody new into a work place even if they are experienced somewhere else, until they get used to the customs and rhythms of that work place, they are at much greater risk.

CHAIRMAN BURKHAMMER: One of the things you talked about, Steve, about infrastructural work and highway and tunneling and bridges, and there are ways that that industry can work safely.

I mean, in the Central Artery Tower Project in Boston is a prime example of that. That project in a combination of federal highway and mass highway and mass transportation have put together with the joint venture partners and the contractors and employers on their projects about 28 prime contractors. And there is about 100, give or take, at any time subcontractors working on that highway, bridges, and tunnels.

And collectively, they have returned $800 million in worker's comp because of the low loss rates on that project.

And I think that might be a model for OSHA to study on how, maybe some help with your conversations with the Department of Transportation.

Here is an example. And they are part of that. And they have some people up there. And some of their people are a part of that.

And I think that is a good example where you can say this is how it should be done or this is how it can be done safely. Use this as the model for letting performance-based contracts which they don't right now which DOE finally found out that that is the way to let contracts.

And you can control contractor safety and health through performance-based contracts.

So that might be something you might add to your discussions with DOT.

MR. JEFFRESS: I have heard of that from our Region I folks. Who would you say were the prime movers in making that happen up there, in getting that group together to focus on safety in that way?

CHAIRMAN BURKHAMMER: Well, I'm glad you asked me that question.

(Laughter)

CHAIRMAN BURKHAMMER: Bechtel happens to be the -- no. It is a joint venture with Bechtel, Parsons, Brinkenhoff. And we will be happy to put you in touch with the ES&H manager, a Bechtel guy, who would be happy to help you and show you and take you around.

And it is really a partnership. And you've talked a lot about partnerships. And that is a good example of a partnership between OSHA and BPB and the mass highway.

MR. JEFFRESS: Has there been anything written to describe how that happened and how it works that we could use to share with other folks?

CHAIRMAN BURKHAMMER: Yes, I'll have Charlie put together a package.

MR. JEFFRESS: Okay.

CHAIRMAN BURKHAMMER: And either come down and make a presentation or I can make it or however you want to do it.

MR. JEFFRESS: Thank you. I think we would both be real interested in that.

CHAIRMAN BURKHAMMER: Any other comments?

Mr. Cooper.

MR. COOPER: This discussion this morning is extremely important. As Mr. Cloutier and the Chairman Burkhammer pointed out with the DOT and numerous others.

And I have had this discussion with Jerry Scannell who heads up the National Safety Council as he was on his way to some symposium, a worldwide symposium concerning this problem.

And in addition to what Stew mentioned, I find a lack of contractual language from the DOT and others in their bid documents to employers in those areas.

Such as the Corps of Engineers and others who use that language, they have much lesser problems.

But it is human nature that if it is not determined in the contract what you may have to do, then you may not have to do it.

And I think the large emphasis should be into those governmental agencies to insert in the contract the manner in which the work shall be done.

And that comes back to Steve's concern also on the highways and the bridges, etcetera. Thank you.

MR. JEFFRESS: I appreciate that. And I made a note to myself to check with the Corps of Engineers and see if they have any indication of the effect from this or the impact of that.

It is important how that language is met because that would be a good model to give to state DOTs.

CHAIRMAN BURKHAMMER: One of the things that fully pay and the multi-employer work site workgroup are going through and a lot of comments from the public and associations and other contractors on multi-employer is the key question about who is responsible or who has responsibility for what.

And in performance-based contracting and in the Corps of Engineers and some of the other types of contracts, they spell right out in there. I mean, there is no questions about who is responsible.

So that would negate somewhat not totally, but somewhat the multi-employer work site issue also.

Steve.

MR. CLOUTIER: There is one other issue that has not been touched also that is emerging that we find in our organization. And if it's in mine, it is in everybody else's.

It is the famous cell phone and the cell phone use in motor vehicles. And everybody's got one. And everybody is talking on one. And the guy in front of you stops and you don't.

And we find we are having more automobile accidents. And we are having injuries on the job sites.

And I think it is a topic that needs to be discussed and talked about. And Cloutier is not here to sit there and say that you have to pull off the road and stop and make a call every time, but there is ways and means.

And we have gone from cell phones to the next which is a two-way radio in a cell phone. And there is all kinds of things out there.

And I just see that as an emerging issue that we may not talking about it here in 1999, but in another year or so, there is going to be cards around the country from the use of the cell phones and the Nextel radios in that area.

In construction, every construction worker in every site has got one hanging off his belt. They jump in a vehicle and off they go. And seat belts are unheard of. And they are flying across town. And it is a tough area.

And it gets back to training and education.

And let me touch back on the DOT thing and the Corps of Engineers. Corps of Engineers, it is a typically a low-bid process, but they mandate that you address the safety and health issues. So everybody bids off the same sheet. And it is already in the bid.

On the other ones, you know, we will give you quality, we will give you safety, we will give you a budget. Pick any two you want because it is a low bid. And that is where the problem is.

And we need to address it and make it in contractual language that it gets addressed upfront. Contractors put money in there. The DOT organizations know they are going to pay for it. And everybody wins.

MR. JEFFRESS: I agree. I think that is the kind of way OSHA could affect safety and health more than through individual inspections is if we could go through something like this through contract language and get obligations clearly understood and perhaps even enforcement under the contract law instead of just OSHA law.

And I take that to heart. I think that is a good suggestion from you all that we work on that kind of language.

CHAIRMAN BURKHAMMER: One thing, if you notice, and Steve again touches a nerve with me on cell phones. We are in the cell phone business, too.

MR. JEFFRESS: Is there any business that you are not in?

(Laughter)

CHAIRMAN BURKHAMMER: Somebody yesterday accused me of being the association of Bechtel, but --

(Laughter)

CHAIRMAN BURKHAMMER: But if you listen to some of the commercials maybe on Bell Atlantic and Nextel and some of them, they are adding a little piece at the end of their comments now about using your cell phone safely.

I think that industry realizes there has been a lot of automobile accidents and deaths resulting from people using a cell phone and going in one lane or the next or stopping and somebody hitting them from behind. Or they're talking and keep going and hitting someone else.

So I think they are very concerned about that. I know AT&T has made a big push through alliance with them anyway in getting the safety message about using your cell phone safely. So there is a lot of focus on that.

Larry.

MR. EDGINTON: Thank you, Mr. Chairman. Just following up on Steve's comments with respect to, for example, the experience we have with the Corps where the Corps really demands a safe job with respect to bid document language and thinking about your ongoing conversations with DOT is we should remember that it is not just the contract language that makes those job is that what we know is that if we go on a Corps job, there is going to be Corps staff there making sure that that contract language is adhered to.

So it is not just getting the language in the contract right, it is developing that support mechanism within the contracting agency to make sure that it happens.

CHAIRMAN BURKHAMMER: That is a good point, Larry.

Mr. Cooper.

MR. COOPER: It appears that maybe the time for your presentation is coming to a close. I want to leave it on the --

CHAIRMAN BURKHAMMER: We have as much time as needed, Mr. Cooper, for the Assistant Secretary.

MR. COOPER: I can just imagine one of us citizens in the nation bopping down a trail in the national forest and running into an OSHA compliance officer.

(Laughter)

MR. JEFFRESS: We are everywhere.

CHAIRMAN BURKHAMMER: Any other questions or comments from the committee?

(No response.)

CHAIRMAN BURKHAMMER: If not, thank you very much for joining us this morning and fielding our questions. We appreciate it.

MR. JEFFRESS: Thank you, Mr. Chairman. I appreciate the ideas you've given me. And I look forward to your continued assistance.

CHAIRMAN BURKHAMMER: Thank you.

With that, why don't we take a 10-minute break and return at 10:00 o'clock with the first of our workgroup reports?

(Whereupon, at 9:45 a.m., the meeting was recessed.)



 
AFTER RECESS


(10:00 a.m.)

CHAIRMAN BURKHAMMER: The committee will reconvene.

For the next few hours, we will be hearing the ACCSH workgroup reports.

For the general public, there will be a comment period at 3:30 today. So if there is anything in the workgroup reports you wish to comment on, please give me a note with your name and your concerns or what you would like to comment on. And we will set it up. And you can come up in order and make your comments if you have any to make.

The first workgroup report is on sanitation. And that is co-chaired by Steve Cooper and Jane Williams.

Mr. Cooper.



 
ACCSH WORKGROUP REPORTS

Sanitation

By Mr. Cooper

MR. COOPER: Thank you, Mr. Chairman. In 1998, the agency requested through the ACCSH chair that a workgroup be established to advise OSHA on the construction sanitation standard.

Jane Williams and myself co-chair this workgroup. In addressing this subject, there has been no lack of national concerns as to the present state of job site sanitation facilities and construction.

As OSHA's 1926.51 standard on sanitation for construction has been for some time on unenforceable in its present form, our committee has received massive amounts of complaints from construction women's associations, from the national building trades, from individuals, letters from constituents forwarded to the Hill.

And we know from personal experience that in general sanitation on construction job sites is at best unsanitary, if it exists.

We have received complaints by construction workers that commonly use drinking water from igloo-type containers to wash their hands after restroom use, thus contaminating the spigots used for drinking.

We are also aware that disease on jobs are commonly transmitted and become rampant in a very short period.

We are acutely aware that the numerous contaminants associated with construction, such as lead, solvents and other contaminants are ingested by dirty hands.

We have reviewed U.S. Department of Labor sanitation requirements for agriculture 1928.110, United States Department of Labor Sanitation for General Industry 1910.141, and the United States Department of Labor standard for Hazwoper 1926.55(m), and the United States Department of Labor sanitation standard for maritime 1918.95.

We have reviewed state standards, such as the state of Oregon which requires flush toilets and warm water washing facilities on construction projects over $1 million.

We have reviewed correspondence from Wisconsin construction trade associations and a congressman complaining about human waste from construction sites found in recycling bins.

And last week in Hamilton, Ohio, an 18-story construction project with toilet facilities consisted of an open-air commode with two wheels and handles, that is mobile. Unfortunately, they sent pictures.

(Laughter)

MR. COOPER: We have reviewed the problems of mobile work places, such as road construction, transmission line construction, and trenching.

We have received input from NIOSH and the Center to Protect Worker's Right, especially in the area of the use of towelettes and hand sanitizers.

We have discussed concerns of providing water in freezing conditions on job sites.

We have even reviewed data from the ILO Convention 167 in Geneva and their regulation article 32 recommending separate facilities for men and women on construction sites worldwide.

We have reviewed ANSI Z4.1 concerning sanitation and the United States Army Corps of Engineers Manual 385-1-1, September, 1996 concerning construction by military, civilian, or contractor personnel.

In addition, we have reviewed sanitation requirements of the Ontario Ministry of Labor section 29 which requires the contractor to demonstrate why flushed toilets and running water is not practical for every 15 workers.

I have reviewed ANSI Z4.4 standard for sanitation and field and temporary labor camps 1995 and ANSI Z4.3 on waste disposal systems, 1995.

I have reviewed North Carolina's statute concerning temporary toilet facilities at construction sites.

We have also addressed average rental costs determined by geographic location for portable facilities.

We have met on numerous occasions, the most recent being Tuesday this week, and have finalized our proposed sanitation standard for the advisory committee and with their approval, on to OSHA.

We feel the standard is practical and to the point. Let us here at the committee level and all OSHA personnel in the building and elsewhere understand that if we were working in construction, we would likely have to submit daily to these intolerable conditions and only can be remedied by this committee, this agency, and our industry.

Mr. Chairman, our committee requests that the ACCSH review our submission to revise 1926.51 and that the ACCSH vote to forward the draft to this agency by the close of business tomorrow.

I would like to introduce co-chairman Jane Williams for her comments on this proposal.

Thank you, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

Jane.
 

ACCSH WORKGROUP REPORTS

Sanitation

(Continued)

By Ms. Williams
 

MS. WILLIAMS: This draft is being circulated in a manila envelope to each member.

CHAIRMAN BURKHAMMER: Do all committee members have the draft?

VOICE: Yes.

MS. WILLIAMS: There are a few extra copies up here for public interest.

What you see before you --

CHAIRMAN BURKHAMMER: Do you want to hold the public copies until after the ACCSH Committee discussions?

MS. WILLIAMS: Thank you.

In reviewing the draft, as Steve said, we tried to address all issues that had been presented to us and by the participants at the many meetings that we had.

Additional issues were constantly encountered and resolved to the best of our ability.

You will see in front of you the language as it is now. Where you see a line through the language, it is proposed to strike. Underneath will show the action as to why.

Many items were conflicting. We moved them to definitions where they truly belong. Where we are proposing new language, that appears in bold.

You will see that standard itself is being reduced to try to accommodate its enforceability. We felt that was a key issue.

Mr. Chairman, would you like me to review these now or would it be more appropriate to let the members take the document and review it and come back with questions later on our agenda?

CHAIRMAN BURKHAMMER: Let's let the committee review the draft today. And we will bring it back as a follow-up action item tomorrow for discussion.

So if the committee would tonight or this afternoon review the draft, the five-page draft that was presented to us, comment on it tonight. And then, we will bring it back as a follow action item in the morning.

Mr. Cooper.

MR. COOPER: Mr. Chairman, I think you will find that the proposed revision does not seriously change the past standard 1926.51 and that there is no substantial changes in my opinion to the previous standard, other than the discussion of other means.

CHAIRMAN BURKHAMMER: Thank you, Mr. Cooper.

Jane, any further comments?

MS. WILLIAMS: No, sir.

CHAIRMAN BURKHAMMER: Any comments from the committee?

(No response.)

CHAIRMAN BURKHAMMER: I will review the draft, put it in abeyance until tomorrow, bring it back on the table for discussion tomorrow.

Does everybody have a copy of Mr. Cooper's presentation?

VOICE: Yes.

CHAIRMAN BURKHAMMER: Thank you.

The Safety and Health Management Program and Training and Education, Bill Rhoten and Steve Cloutier.

Steve.

 
 
ACCSH WORKGROUP REPORTS

Safety and Health Management Program

and Training and Education

By Mr. Cloutier  

MR. CLOUTIER: Mr. Chairman, there has been very limited discussion since the last meeting. We were planning on trying to have a safety and health program and training in the workgroup meeting this week.

Mr. Rhoten was called out of town. I was called out of town. And we had to cancel the meeting.

At the last workgroup meeting, we talked significantly on training and addressing the OSHA tower course and maybe revising the number of hours in that course, reducing it down to an eight-hour period so you could knock it out in one day.

And in reducing the two hours there, we were going to recommend that we increase the training on the 30-hour course to 32 hours.

So we were giving up two hours, but adding two hours.

We heard from the Assistant Secretary this morning that there is a proposed safety and health program draft coming out very shortly for general industry. They have been working on that to get it out.

This workgroup has been asking for a long period of time to see that draft. And we have been assured, once it came out, it would come to us and give us a boiler plate, as I discussed.

The Assistant Secretary's comments and my challenge to him was that once we got it, it would give us a draft document to go back to the workgroup members to look at it, like it, dislike it, tear it apart, add to it, or start from scratch and go back to our 1997 document that the ACCSH Committee approved at that time.

So it is still ongoing. Mr. Rhoten and myself talked earlier this week. And both of us are committed to get the time in to get the meeting fully attended for participation and be able to come back to the ACCSH Committee at the next meeting with some language input.

And I will turn it over to my co-chair, Mr. Rhoten.

CHAIRMAN BURKHAMMER: Mr. Rhoten.

 

 
ACCSH WORKGROUP REPORTS

Safety and Health Management Program

and Training and Education

(Continued)

By Mr. Rhoten


MR. RHOTEN: I think you told it very well, except that I guess my question is, how soon are we going to be able to get a draft of the general industry standard?

I think we cannot come back with anything substantial.

Two weeks?

MR. RHOTEN: If we can't get the draft prior to the next meeting, we can have a meeting with our workgroup members.

MR. CLOUTIER: It would seem like for us to move along with this, we need that draft. Even if the draft is not a final draft, we would like to have access to whatever point we are at now.

All we would like to do is to use that for work sheets.

CHAIRMAN BURKHAMMER: All right. Bruce will see if we can't light under a fire under the people that have that.

MR. RHOTEN: Yes, I think we will need that to have the next meeting.

MR. CLOUTIER: Absolutely. Without that document, we can't have it.

MR. RHOTEN: It seems to me.

CHAIRMAN BURKHAMMER: Not to digress here, but knowing, Steve, that you and Mr. Cooper probably of all of us on this committee have debated this issue up one side and down the other.

But the issue of either 1910 mandating or driving or directing the construction standard, I have no problem with you all, the committee waiting to use that draft as an outline or guide, so to speak.

But as we all have discussed numerous times, at least the Acting Chair, expects a construction draft out of the workgroup and not a mere image of the 1910.

MR. CLOUTIER: Well, Mr. Chairman, I wholeheartedly support that.

MR. RHOTEN: I support that also. And I -- maybe as a comment, my understanding was when they put together the original draft for general industry that there was nobody in the room that really had any input from construction that it was basically totally a general industry standard they were developing.

So naturally, I would suspect that it is not going to address construction in the areas that we are concerned about.

CHAIRMAN BURKHAMMER: All right. Thank you, Bill.

Steve, thank you.

Any comments on that from the committee, questions?

(No response.)

CHAIRMAN BURKHAMMER: Thank you.

Multi-Employer Citation Policy Workgroup, Felipe Devora and Danny Evans.

There is somehow Jane's name keeps appearing as a co-chairman. And I know we're not doing that to slight Denny and Danny's efforts.

So in the future when we review this, Danny Evans, the distinguished gentleman on my right, is the co-chair of this committee.

Now, Felipe.

 

 
ACCSH WORKGROUP REPORTS

Multi-Employer Citation Policy

By Mr. Devora


MR. DEVORA: I guess this workgroup is one of the workgroups that is not specifically dealing with a standard, even though a lot of communication, correspondence that I get on this issue invariably start out multi-employer citation standard. And right away, that is not what we are doing here.

Basically, what we are dealing with is a policy in OSHA's firm that they looked at and decided to redraft and maybe give a little more direction with this issue of controlling contractor which is really the basis of identifying the different players on a multi-employer work site.

I think the draft was passed out, OSHA's draft was passed out a couple of meetings ago.

This workgroup has probably met three or four times on this. And in these meetings, we have a lot of the same recurring arguments, a lot of the same issues. And I will just review those issues.

And with those in mind, we have taken, I have taken and Danny and other discussions, we have taken these comments.

And we have produced a rough draft at yesterday's workgroup meeting which there again we are asking for further comments.

But basically some of the issues as we see in this policy that keep coming up for the committee's -- and I am sure you know them all, but maybe we can have some dialogue that will help us advance the draft form that we have right now.

But the number one issue that every workgroup always starts when I have -- when we have public comment or whatever is the question of whether or not OSHA has the, you know, the right in the Act to decide or identify a controlling contractor.

I mean, it's almost like the prayer before the meeting. We talk about that for 20 minutes.

And there again, this is something that Dr. Bruce and the solicitor -- in the past. There are court cases that have identified control and have this language.

And until -- and I am sure there -- I think it was five out of six times they have upheld the controlling contractor theory or idea about how you become a controlling contractor.

So for the time being until, as Noah said yesterday, you know, this thing actually does get played out in the courts and they tell us differently.

And they tell us, you know, you don't have the right or you can't do it, or we keep getting legally challenges. This is basically going to be in the OSHA firm.

So with respect to the input from the public that it says that they are identifying this and bringing into question, what I say our charge in this workgroup is, you know, we've got to deal with it, you know. It's here. It's not going to go away.

So, you know, we hear your complaints. We understand where you're coming from, but let's move forward with it and see what we can do about it or see what input we can have.

Another one of the issues, that being issue number one, with regard to construction managers, I've got a lot of input from construction managers and builders also who, for example, are specifically saying that they have, wow! They have no contractual rights, you know, to take care of safety on the job sites.

They seem to have a problem with the theory that if you meet a criteria that they have outlined in this draft that they are responsible for safety.

But the draft that OSHA has put forward outlines examples and analyses of when possibly would meet the criteria where they wouldn't be cited even though they are the controlling contractor.

Another issue that came up is the multiple fines for the same violations. The cry that it's just not fair for OSHA to fine one violation and cite, you know, four or five different contractors, that shotgun approach to enforcement isn't, you know, helping the job site, and there again, the legal question of whether or not they can do that.

We have heard that. We have heard that consideration or concern voiced several times.

Another issue is, are we doing a disservice by not focusing or highlighting on the actual responsible party and just citing this particular contractor? And are we deterring the safety process by this other approach of citing several people for the same citation?

Also, another concern from subcontractors is the subcontractor-general contractor relationship or the construction manager relationship where the general contractor will write in the contract, in the subcontractor's contract that any OSHA fine that I receive because of something you do, you will pay for.

That discussion went around yesterday. And I don't have an answer for that, you know, indemnifying, you know, saying that if I get a violation because of something one of my subcontractors do, I'm just going to send the fine back to that subcontractor. In essence, they're paying double for the same violation.

A very simplistic response to that yesterday was don't sign these contracts, but that didn't seem to go over very well.

But the purpose of this workgroup is to provide -- we've been given an opportunity to provide some additional examples and analyses to this policy for citing on a multi-employer job site.

And also, this would give hopefully some more guidance to the compliance officer when he does go out there.

So to say that this draft or anything that we add to it we're going to make the problem worse, I don't think so.

I think by expanding some of the language, the compliance -- not only will the compliance officer have a better basis to see if these contractors meet certain criteria before they cite them, but also I think it provides the mechanism for a defense for controlling a contractor or for controlling a manager, whatever you want to call them when they do get cited and they go to OSHA and they say, look, we've met the -- we've read the draft, we -- I mean, we've read the firm. And we know what, you know, the specific conditions of the citation were, but, look, let's look at it and see if we have met any of the criteria where maybe we aren't citable also even though were at the time.

I think it just gives an employer more opportunity to -- the players that say, look, we're the big guys. We're the ones that are always getting cited because of something the subcontractors are doing. And it's not right. And it's not fair.

I think this verbiage also gives us an opportunity to make a defense for ourselves at an informal. And it widens the scope rather than narrows the scope for the defense of the good players that are out there that are getting cited for multi-employer citations. Okay.

And basically, our time line was we met twice. And then, I told them for this meeting, our workgroup meeting yesterday I would have a rough draft. And I did. I produced a rough draft to them, but I don't have a draft ready to give to this committee yet.

And in the ACCSH meeting with the input that I get from this meeting, we will circulate the draft a more formal report to the committee.

CHAIRMAN BURKHAMMER: Thank you, Felipe.

Danny, do you have anything to add?

 

 
ACCSH WORKGROUP REPORTS

Multi-Employer Citation Policy

(Continued)

By Mr. Evans

MR. EVANS: Thank you, Mr. Chairman. Just a couple of comments. I think with more and more of the court decisions that are coming out and ruling against citing the general contractor for what his sub or the subcontractor's employees may or may not be doing right, it may be important that they go back and revisit the Act itself and maybe go back and have something added to the Act to support those citations being issued because I think that's one of the big areas where the bone of contention is that they really don't have -- a lot of people don't think they have the right to issue citations to a general because the Act refers to an employer and an employee.

And they may need to go back and revisit that area and see if they need to add something to it to support that.

CHAIRMAN BURKHAMMER: Mr, Cooper.

MR. COOPER: Mr. Chairman, the first week of December, 1998, there was a 10-day hearing in this building on the steel erection standard which speaks specifically to controlling contractors.

The hearing was before an administrative law judge with experts, attorneys in many cases coming in to discuss this very issue.

The transcripts from that hearing would be very valuable I think to your committee and can be provided by the director who has a copy of the entire 10-day transcript.

CHAIRMAN BURKHAMMER: Felipe, Danny, do you think that would be of benefit to your workgroup?

MR. DEVORA: Yes, I would be interested in that. I know there was some discussion about controlling contractor.

With regard to that, I think the two issues besides the height and the steel erection was controlling contractual language as -- that I identified from the comments that I had heard with the input on the testimony from that.

But I could be wrong, but is that correct? Were those two of the main issues on that?

CHAIRMAN BURKHAMMER: There was a total of three, weren't there?

MR. DEVORA: Three.

MR. COOPER: The controlling contractor is one. The discussion at the hearing had to do with the entirety of multi-employer work sites and the control required by the controlling contractor.

And so it in effect discussed every item that you are addressing. And the solicitor's office had a panel on that in that hearing and discussed this and the legalities thereof at the hearing.

So I would think that there is probably not one area that has been brought before your committee that was not voiced at the hearing.

CHAIRMAN BURKHAMMER: I believe that.

MR. DEVORA: And three of the issues on this, if I may, from this draft that we've addressed are identifying contractual control of a site whether by, a, a specific contract right to control safety or, b, a combination of other rights or, c, authority to control work without contractual responsibilities.

We've addressed those in the firm. And there again -- they are in this policy.

There again, our hope is that a compliance officer when he goes back to his office and looks at the citation, you know, will think about this criteria and say, you know, do I have a multi-employer situation here or not instead of the very narrow one-page scope, as is written in the current policy?

CHAIRMAN BURKHAMMER: Hopefully, when your draft is finished and comes before the full committee, that will be addressed in it?

MR. DEVORA: Yes, it will.

CHAIRMAN BURKHAMMER: What time frame is your workgroup looking at to present your draft to review to the committee?

MR. DEVORA: The next meeting.

CHAIRMAN BURKHAMMER: The next meeting. Okay.

MS. WILLIAMS: Mr. Chairman.

CHAIRMAN BURKHAMMER: Jane.

MS. WILLIAMS: Due to the conflict of other workgroups in getting in and out of these meetings, would it be inappropriate for that transcript of that portion to be provided to all members?

I would have a very keen interest in reading that language. If I couldn't get to Felipe's meeting, I sure would be interested in seeing what is stated.

CHAIRMAN BURKHAMMER: I would assume 10 pages of testimony -- 10 days of testimony over an eight-hour period would be voluminous.

MS. WILLIAMS: No, I was only talking the portion that dealt with the controlling.

MR. COOPER: Mr. Chairman, Mr. Hagemann who works for Bruce has made copies of the entire hearing. And that discussion on controlling contractor before the administrative law judge is about three hours long and is broken out.

CHAIRMAN BURKHAMMER: Okay.

MR. COOPER: So I would think that if you contact Mr. Swanson maybe today, you can get the breakout and take it with you when you leave.

CHAIRMAN BURKHAMMER: All right. We'll take care of it. Thank you, Mr. Cooper.

Any other comments on this workgroup?

(No response.)

CHAIRMAN BURKHAMMER: Thank you, Felipe, for your work in driving this.

Data Collection, Mike.

 

 
ACCSH WORKGROUP REPORTS

Data Collection

By Mr. Buchet


MR. BUCHET: Thank you, Mr. Chairman. We met yesterday and are very happy. And we would like to thank OSHA for making Dr. Knut Ringen available to us.

As you know, the workgroup is data collection/targeting. And Dr. Ringen has been reviewing the OSHA's targeting mechanism.

And will have apparently a full report upcoming possibly in time for the next ACCSH meeting.

And that is what I have to say now are sort of his preliminary indications to the workgroup on some recommendations and some observations.

One of the big troubles that Data Collection has had is how to get our hands around the issue.

And probably key to the issue is what is a way to create a rate for inspections, a rate for citations, a rate for injury and illness incidents?

And what Dr. Ringen suggested was that the Dodge Report that we've all heard so much about probably captures most, and by most, somewhere like 90 plus percent of all the construction activities in this country.

That needs to be verified. Remember, this is preliminary.

And that that data if it were used correctly could provide the underlying denominator that would allow us to look what happens with segments of construction in the northern most part of Maine and compare them to segments of construction in the southern most part of Hawaii, Alaska, and do that fairly rapidly. Dodge keeps his records for a long time.

There are a number of mechanical problems on how to do that. So we ended up then with a large discussion on what happens with various data sets.

And one of the key points that Dr. Ringen made and the Data Collection Workgroup has made is that the data needs to be organized in such a way that BLS data can talk to the OSHA data that can talk to NIOSH's data.

There is no easy way to do that. It may entail OSHA visiting the idea of completely realigning the codes they use to capture the data they've got.

One of the other points that Dr. Ringen made was that the University of Tennessee has created an econometric model that allows them to calculate, and he considers it with a fair degree of accuracy, given the job description in Dodge and the dollar value of that job, the number of people hours by craft of the workers on the job throughout the job.

He suggests that model needs to be validated and it needs to be revisited, but at the moment it's probably the most accurate thing out there.

And again, if that process is refined, it may provide a foundation for data comparisons across the country which we haven't got at this point to the degree that he thinks is possible.

Dr. Ringen sort of came in and had to leave very briefly.

And I echo what Jane Williams has said. There are multiple responsibilities. And our workgroup participants suffer no fewer than anybody else's.

And one of the things we need to put on the table is how we increase participation at some of these meetings.

I'm not sure how we're going to handle that. But from this workgroup, that is a noticeable problem.

Conference calls seem to help, but not always. And sometimes, it's just disappointing that we can't get somebody like Dr. Ringen's information to more people.

One of the other things that we talked about was the possibility of investigating with the National Advisory Committee on Occupational Safety and Health if they are doing anything in the way of looking at data collection for OSHA.

Or maybe, they would like to look at it. That may be heresy for construction to suggest that, but I heard Mr. Jeffress say today that, by golly, construction should get out ahead on some of these topics.

And I think this may be one where we invite the NACOSH. We may be able to get some momentum behind the issues that this workgroup is slowly sort of coming to realize exists with the data collection system here at OSHA.

Fundamentally, it does not seem to have been designed to do what it is being asked to do now.

And whether through great diligence and hard work the agency has been able to make it do a great many things, at some point, you have to stand back and say, oh, this needs to be restructured from the start.

And there are a couple of things that happened that may make that an interesting topic of discussion right now.

One of them is the SIC codes are slowly going to disappear. The Standard Industrial Classifications are disappearing in favor of something called NAICS, NAICS codes.

One of the questions that the workgroup has for OSHA is, is there a phase-in timetable? And may the workgroup and ACCSH consider that?

We heard from Janice Devine of BLS. We were very thankful to have BLS there. And BLS has a phase-in period that at the moment seems to go out to 2004.

It is just impossible to one day walk in and push a switch and say, okay, we're doing NAICS now and SICs have vanished.

And for construction, one of the key issues will be that NAICS compresses the SIC codes and certain classifications have disappeared or will disappear when the conversion is made.

What will that do to data collection? We don't know. That is a topic that some people who understand the coding systems will have to sit down and look at closely.

Another question came up is whether we need to consider recommending that that be done very quickly so that the construction advisory committee can suggest to, I think it may be, OMB that the new construction codes in NAICS need to be revisited.

I can't give you an example of the types of things that are disappearing, but there are going to be whole segments of the industry that will be included under larger categories in NAICS.

And those are ones that we have been looking at for interventions. Maybe because they disappear, they become safe, but I suggest probably not.

So with the change from SIC code to NAICS is a possibility that we could do something and suggest the whole data system be conformed with the other data sets, BLS, NIOSH's ability to collect data.

Maybe, even the National Safety Council could add some of that. ANSI coding is probably a useful starting point.

We then went to the 170 form. And I'm sorry to see that Mr. Cooper has left the room. And have had numerous, extensive discussions on the 170 form.

And the conclusion that the workgroup has come to, one, we're not prepared to make a concrete recommendation now, but we certainly have some suggestions.

And the 170 form, at least the paper version that we have been looking at, is not intuitive.

And there are some things that could be done with the arrangement of the data elements on that form so that if you pick steel erection, you would then get a selection box of steel erection coding elements.

If you pick excavation, you would get a box, this is on the computer, of coding elements that would apply to excavation.

If you pick fall protection, you would get something that would -- and that's follow logically underneath those categories.

If you've looked at the form that was handed out here, there are some 70 plus data elements that are arranged I believe alphabetically which means that a compliance officer is going in there and thinking of steel erection. Whereas, at this form, he has to read alphabetically all the way through the thing until maybe he gets to an S if it happens to start with steel erection or maybe to F if it's fall protection steel erection.

It just is a very complex way to have somebody fill out a form.

Another thing that the group has talked about that as the rearrangement of that form takes place, there should be training on how to fill it out for the person who gathers the data, the compliance officer or whoever does the data entry on the computer and that the people who are in charge of the process should understand that there may be certain time requirements that it will take to go through the logic on these forms and fill them out.

Also, an audit and quality assurance process should be put in place or reinvigorated if it is there, but has not been functioning well.

Another question came up with the 170 form is, what is its purpose? It apparently is an investigation form. And it apparently may be filled in or it may not be necessarily filled in certain circumstances.

And I think again the feeling of the workgroup was that it would be a good idea if there were a logic train that said the 170 form will be filled out. This circumstance, yes. This circumstance, no.

So that we can gain some integrity of the use of the form then try to gain some integrity over the data that is put into the form so that we can then pull out useful trend analysis.

Unfortunately, it captures fatalities fairly well. We're not so sure how well it is capturing catastrophic injury cases. But it can be used in either or both of those. And it apparently can be used in other situations as well.

The one recommendation the workgroup has that I would like to pass on to OSHA and to ACCSH is that Dr. Ringen be invited back to give a complete report to the workgroup when he has finished for the work for the Directorate of Construction because I think that it would be sort of wasted effort for the workgroup to go in one direction and to have somebody of his caliber and stature in his work going in another direction.

That is my report, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you, Michael.

Marie, do you have anything to the co-chair's report?

 

ACCSH WORKGROUP REPORTS

Data Collection

(Continued)

By Dr. Sweeney


DR. SWEENEY: I just want to reemphasize what Michael said. He says that I know that the last workgroup for data collection had similar frustrations.

This is a huge problem in OSHA. And it's not just dealing with the Directorate of Construction in terms of data collection.

That perhaps we need a more holistic look at how data are collected at OSHA and how those data -- then specifically how those data affect the information that is obtained from -- obtained on the construction industry, whether it be citations, whether it be letters of intent to cite, whether it be the fatalities or the injuries.

It is an enormous job. And this little workgroup is not going to be able to do it in the time that we have to devote to it.

We concentrate on the 170 form because it appears it is obtaining some extremely useful information that can be broadened beyond the steel erection activities, but to include all fatalities.

So that is why we are spending a fair amount of time looking at the 170 and seeing if there is any remedies on a general level that can be fixed so that it can actually work for them and in the long term.

And we have especially given the Government Performance Review Act, our GPRA as we call it. It could be an extremely useful tool in measuring success or failure in reducing fatalities.

The other thing, I think there needs to be absolutely more work and more collaboration between BLS and OSHA on collecting data relative to construction fatalities.

We heard from Janice Devine that the 170 probably picks about 50 percent of fatalities and there is no -- there is very little information sharing between BLS and OSHA on the remaining fatalities in terms of the circumstances around the fatality.

If you had more of that information shared between BLS and OSHA, particularly the Directorate of Construction, he may be able to use this, these kinds of data for prevention activities.

So I encourage more discussion between OSHA and BLS and the Directorate of Construction to get more useable data and perhaps be able to round out the data that OSHA relative to construction fatalities so that can be used for prevention activities.

So anyway, I'm voicing another frustration. It's a big, big problem here.

CHAIRMAN BURKHAMMER: Thank you, Marie.

MR. SMITH: Mr. Chairman, I have a question.

CHAIRMAN BURKHAMMER: Yes, Owen.

MR. SMITH: Mike, I understood you to say that there are now three SIC codes, but everybody is going to move to some other new one.

Do you know whether or not they would be any effort to have just one code in the future?

MR. BUCHET: The way I understand it, the NAICS codes were developed to include Mexico, Canada, and the United States.

They are published. They are available now. For 30 or 40 bucks, you can get the CD-Rom and see the whole thing. The book apparently is something along that size.

And it will replace the SIC codes eventually. The mechanics of phasing in the replacement, that's my question to OSHA. Have you even looked at how you're going to phase it in?

We heard yesterday that BLS is going to take us, they said, at least up to 2004.

What will happen in the intervening times? We didn't hear from BLS what's going to happen. They apparently will do some of their data sets piecemeal. And by 2004, they will not have SIC codes any longer. They will have this new set.

And that's again is why I suggest we need to look at them to find if the new, the newer arrangements serve the construction industry as well as they might.

It appears that we will lose the identity of some subsections of the construction industry.

Crafts will be compressed. Craft work that we think of as distinct now has in the new coding been compressed in a more general category which I think can significantly impact our ability to target or to analyze for a trend or to see performance.

CHAIRMAN BURKHAMMER: Let the record show that ACCSH member Harry Payne has joined us.

Welcome.

Marie.

DR. SWEENEY: Just one more comment. I think there is an issue with the NAICS in terms of comparability between NAICS and the SIC, and the SIC codes.

So if you are going to be looking at trends, reduce, you know, trying to reduce the fatalities, injuries, etcetera, perhaps some thoughtful dialogue needs to occur between OSHA and BLS and the Directorate of Construction in particular. We are going to be losing a lot of data using NAICS as opposed to SIC.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: One more. Mr. Chairman, if memory serves me correct, at our last meeting, you had repeated a continuing request of committee members to provide comments on Form 170 to Mr. Cooper. Your continuing request finally caused me to move off the dime and submit one.

I don't know if those comments got filtered to this committee or if it was appropriate. And I know Mr. Cooper had to step out for a minute, but I'm not sure what's happening with that.

CHAIRMAN BURKHAMMER: I was going to ask Mr. Cooper when he returns what the status is. Let's hold that until he comes back.

MR. SMITH: I just have one more. You said that the Tennessee data was more accurate. How do they get their hours? Or do they?

MR. BUCHET: I'm trying paraphrase what Dr. Ringen said. I'm not sure more accurate is the best way to phrase that.

The University of Tennessee receives, and you correct me if I've gotten this wrong, the Dodge Company's data through some contractual arrangement through Dodge, OSHA. The Employment Security Administration is part of that contract and the University of Tennessee.

Apparently, what they do with the data is strip all the identification information out of it about the name of the company and keep the location, I believe it's by county, and then run it through their program and do a random selection by county across the country. And it gets shipped to the area offices and they pick it up.

They apparently through other research or research with other organizations have come up with a model that allows them to predict given the dollar value and a job -- end of job use, job description, what it would take to get that job done, how many carpenters, how many laborers, how many painters, how many plasterers, how many plumbers, how many -- and Dr. Ringen that that is quite accurate, but that accuracy of that model should be validated. And then, more likely it can be improved.

CHAIRMAN BURKHAMMER: Taking off my Acting Chair hat and putting on my committee member's hat, I participate on the Data Collection Workgroup that Annie Marie and Desorio chaired prior to reconstituting the Data Collection Workgroup to the new ACCSH Committee.

And I am somewhat surprised in his comments since he was the chair at the time when we had that workgroup. The Dodge use is true. Michael uses a model.

And that model portrays an average timeline buildup of craft. And from that, it develops an hour base of what a common project of that type and that scope is projected to be.

The problem is that in my 36 years in this business, I do not know of one project that looked when it finished like it looked when it started.

There is numerous scope changes. There is numerous drawing revisions. There is numerous field change orders.

And the Dodge Reports unfortunately by using the common model, you may double your craft. You may triple your craft. You may put on a second shift. You may reduced your craft. You may string out the job by schedule. You may compress.

I mean, there is so many things that affect the count of the Dodge Report that I personally believe speaking as a member of the previous Data Collection Workgroup that the Dodge Reports are a fraud. And they do not supply the data that we want to get.

And I'm not sure today in the world or in the universe there is anything that is going to do that.

So maybe in Knut's comments about that's the best we can get, maybe he's right. Maybe, that is the best we can get. But if it is, it is not good.

MR. BUCHET: Again, trying to paraphrase what he said, he did say that the model needed to be validated and that he thought that it could be improved.

Now, for a preliminary report, by the time he does his final which I would like to again say can we hear him at the workgroup and maybe we should schedule a presentation here for the full ACCSH, he will have something more definitive, but there is a world of possibility between preliminary and final.

I also had the feeling that he was not necessarily talking strictly about the Dodge Reports model, but we didn't have time to pursue that.

There may be some other model out there that the University of Tennessee has been using or is trying to use, but I'm not sure.

CHAIRMAN BURKHAMMER: Okay. In answer to your question about, and he's right in place now, but Dr. Ringen coming and speaking before ACCSH, he's on a contract to the Directorate to Construction.

It would be up to the Directorate of Construction to either give us an overview of the findings if he chose or to allow Dr. Ringen to come before the committee.

So that's become a Directorate of Construction option.

MR. BUCHET: No, as I started my remarks, we thanked the Directorate of Construction in making him available.

CHAIRMAN BURKHAMMER: I'm sure he was a benefit to your workgroup.

Mr. Masterson.

MR. MASTERSON: Thank you, Stew. I have just one question. On the Dodge Report, the information you're talking about, do you know if that was actually capturing any information about the small construction projects like residential homes?

MR. BUCHET: We ended up in a discussion on that we have asked to get an answer on.

The first statement that we heard was that the Dodge Report captures 92 plus percent of all permitted construction in the United States.

The next question we asked, well, what percentage is that of all construction? And then, we got into this argument, well -- argument, discussion of whether it was 90 percent to all construction or 90 plus or minus percent of just permitted. And we didn't get a good answer. And that needs to be researched.

Apparently, it is a huge percent of construction in the United States. Also, apparently, Dodge has an army of people, some 2,000 or so that scour county records, newspapers, permit offices. I have no idea how they collect it, but they do a big sweep.

And again, Dr. Ringen's point was, you could design a better system, but you probably couldn't afford to pay for it. And Dodge at the moment is the most practical, useful collection of that sort of data we have.

CHAIRMAN BURKHAMMER: Yes, Bob, it only captures -- it does not capture single family home construction or the "few" family home construction.

It does capture in a case of a development, like you all would do if it's a mass development or 100 or 200 or 300 homes and it's on a singular permit contract.

If each home is on individual permit contract, it doesn't capture that. If it is a mass contract with one permit, it would capture it.

MR. MASTERSON: I would submit that typically in residential construction, there might be a single permit issues for land development.

But for the actual construction of the structure or the house, it would not be on a single permit to the point where if you're talking multi-employer -- excuse me -- multifamily townhomes and you've got an eight-unit townhouse building, you could very conceivably have eight separate permits.

My understanding with the Dodge Report, it normally captures the larger projects with a dollar value somewhere around a $1 million plus. And I don't know how many homes in the United States would fall into that $1 million plus category, at least not mine.

CHAIRMAN BURKHAMMER: Marie.

DR. SWEENEY: Perhaps the Directorate of the Construction could sort of get down to the bottom of some of the limitations of the Dodge Report in terms of is it true it only captures million-dollar projects?

What are the sort of limitations and range of activities that the Dodge Report actually can provide to you?

I've never seen anything that says what, you know -- anything in writing as to what the Dodge Report actually provides or what it does. I've just heard it.

MR. SWANSON: Well, the Directorate of Construction is not an expert on the Dodge Report.

(Laughter)

MR. SWANSON: But I contracted about three months ago with a consultant to study the Dodge Report.

And when I see a copy of that report or even a preliminary copy of that report, I will know a whole lot more than I know today.

DR. SWEENEY: Well, you're the closest thing we have to ask. Thank you.

CHAIRMAN BURKHAMMER: I think the dollar value is $10 million.

MR. MASTERSON: $10 million. Okay. I'm sorry. Then, it's even shorter obviously.

MR. SWANSON: Now, I don't wish to start a discussion here on something that I have already answered that I'm not an expert on.

But we get Dodge data down to $1 million. And on special requests, Stew, we have gotten information on projects in certain geographic areas even below the $1 million limit. So it is available.

CHAIRMAN BURKHAMMER: Thank you.

Any other comments on data collection?

(No response.)

CHAIRMAN BURKHAMMER: Thank you, Michael and Marie.

We are going to stop workgroup meetings at this time. We are going to have an agenda change. So if you get your agendas out, I'll share with you the change.

At this time, we're going to hear the 9:30 on Friday Subpart R Steel Erection Hearings from Noah and the Tower Erection comments from Mark. And that will leave that time frame open tomorrow for discussion on Sanitation standard that was passed out by Jane and Steve today.

So if you insert the Sanitation at 9:30 on Friday and move the Steel Erection and Tower Erection to 11 on Thursday.

We will now hear from Noah.

MR. CONNELL: Thank you, Mr. Chairman.

With me is Mark Hagemann, Project Officer on the

Steel Erection Rulemaking and also our Project

Officer on the Towers Initiative.

Mark.

 

SUBPART R STEEL ERECTION RULEMAKING

By Mr. Hagemann


MR. HAGEMANN: Good morning. I am just going to talk briefly about two directives, one that has recently been issued and one that will shortly be issued.

The one shortly to be issued is on steel erection. And what that directive will do is clarify OSHA's steel erection enforcement policy with regard to compliance with the proposed rule.

It has been signed. And we expect it to be out and effective out next week.

Our new procedures for directives, once they get signed, they get formatted, sent out to our Salt Lake City, and put on our Internet site.

Once they are on the Internet site, then they are an official document.

The directive will help the industry and OSHA compliance officers understand what compliance is required when following either the current standard or the proposed standard.

The directive will also restate and cancel the Stanley memo from July of 1995 which was OSHA's fall protection policy.

That's basically it on that. If there is any questions, anything that I did not cover?

CHAIRMAN BURKHAMMER: Bob, do you have any comments on the fall protection aspect?

MR. MASTERSON: No. My understanding was this was as it relates to subpart R, correct?

MR. HAGEMANN: That's right.

MR. MASTERSON: No questions then.

CHAIRMAN BURKHAMMER: All right. Thank you.

Go ahead.

MR. HAGEMANN: Okay.

 

TOWER ERECTION

By Mr. Hagemann
 

MR. HAGEMANN: The second directive which was just recently issued was on towers. And what I think I will do is go through. I don't think we've addressed this committee with our tower issue and what we've been doing with the tower industry.

So what I would like to do is go through a little bit of background, tell you how we got where we are at, where we are headed, and things like that.

For the past several years, the communication's tower industry primarily represented by the National Association of Tower Erectors, NATE, has been trying to get OSHA to recognize the unique nature of their work on the work sites involving communication tower construction.

Prior to May of 1997, however, OSHA did not respond in the way that they felt was adequate. They consistently maintained that OSHA's existing rules both construction and general industry were not really appropriate for their tower projects.

And an example is a tower under construction which collapsed in Texas. The compliance officer cited standards that the industry, the tower industry felt were inappropriate for the activities that were involved.

We don't have a specific section of standards that apply to tower erection. We have various standards scattered throughout our regulations that could apply depending on what activities, what type of equipment they are using.

So that makes it difficult for both the industry and for compliance personnel.

As a result, the members of NATE went to their congressional representatives seeking a better response from OSHA.

OSHA's initial discussions with them and the tower industry centered on the rulemaking activities, specifically a revision to Subpart M, the fall protection standard to address very unique fall hazards associated in tower construction.

However, because of the rulemaking process is so lengthy, OSHA decided to form a task force and look into the problems that are associated with the construction of communication towers specifically and develop some interim enforcement guidelines completion of the long-term rulemaking process.

In May of 1997, the task force began to look into the construction safety problems associated with communication towers.

What OSHA did was they involved from some other federal agencies that had some interest in communication towers that are responsible for towers and fall under their jurisdiction.

The FAA, the Army, the Navy, DOE, WAPA, and NIOSH were all involved in this task force that was formed.

Just to give you an idea, approximately 22,000 workers are affected by communication tower construction.

And this number is expected to increase as the projected move in tower construction gets further underway.

And primarily, the boom is the result of the cellular towers that are going up for everyone's cell phones.

Some of the hazards that were identified by NATE and by the task force are safe access to the towers, to the work stations, fall protection, of course, gin pole operations.

For anyone who is not familiar, the gin pole is the structure that is put on the tower that used to lift the sections into place to construct the tower.

And a couple of other issues that came up were radiation and the stability of the tower as it is being constructed.

Again, the current status of the task force is the task force put together a directive entitled "Compliance Guidelines for Fall Protection and Employee Access by Hoist During Communication Tower Construction Activities".

We couldn't come up with an acronym for that. So it's a pretty lengthy title.

And that directive was issued on January 15th. And it is out there. And it is effective.

Now, the directive doesn't -- well, let me explain what it does first. And then, I will tell you what it doesn't do.

It establishes that employees are only permitted to ride the hoist line whenever a tower work station exceeds the 200 foot level.

Access below the 200 foot level requires either climbing the tower with a ladder or using the step bolts which is a common method where employees can be protected from falls by using a safety climbing device or by the use of an approved personnel platform attached to an independent construction crane, basically, the typical way that they are accessed now.

OSHA recognized that above the 200 foot level, the stress and ergonomic considerations became a factor, such that allowing employees to ride a hoist line under very controlled conditions was deemed acceptable.

If employers elect not to follow the entire directive for access by hoist, they will be subject to the current OSHA standards for citation purposes.

And that is the part I wanted to make clear is the directive is an option. It gives the employer an option of following all of the guidelines and hoisting their employees to the work station.

If all of those guidelines are not followed that are in the directive, then they will be under whatever current regulations cover the tower erection.

So it is not -- in other words, it is not a mandatory directive. It is voluntary.

OSHA plans to reevaluate the directive using information collected during the one-year trial period with the help from the industry in providing accident data and the implementation of the procedures in the directive.

The tower task force will continue to work on one other remaining issue which it was tasked with when it formed over a year and a half ago now.

And that is gin poles which I touched on earlier. And construction of the gin poles is stability, the -- everything involved with the design and what types of gin poles can be used, how they need to be constructed, and things like that.

In closing, this effort demonstrates significant progress in the overall goal established through partnership efforts between OSHA and the tower industry to establish consistent enforcement practices and develop recognized safe work practices for industry implementation.

That's all I have on towers. If there are any questions, I'll be glad to answer them.

CHAIRMAN BURKHAMMER: Bob.

MR. MASTERSON: Yes, Mark. I would be interested in how you are addressing the issues around a hoist being used and matching that up to the requirements for personnel hoists.

MR. HAGEMANN: Basically, the hoist used have to personnel rated. They have to be so that they can be -- they are designed to lift personnel.

And there is -- I have copies of the directive. And there is a lot of requirements in here as far as safety factors and control lowering and anti-tube block device and things like that.

But, yes, the hoist has to be personnel rated.

MR. MASTERSON: I mean, I just wanted to make sure that you weren't saying that they can just get on the ball.

MR. HAGEMANN: No, no, and there is -- well, yes. I'm glad you brought that up because we certainly don't want this directive to be seen as OSHA is allowing tower workers to jump on the ball and ride up to the tower because that's not at all what it does.

And that's a fear of some that that will get out to the industry that that is what this is doing, but it's not.

If you look through this, you will see that there is a lot of very strict practices that need to be followed in order to acceptably hoist employees on the load line.

MR. MASTERSON: Okay. Along with that, I would be very interested in seeing how your group has addressed the requirement for prompt rescue of somebody that has fallen in fall arrest equipment as it relates to the towers.

MR. HAGEMANN: As far as fall protection goes, this directive just touches on it. And basically, it just reinforces what the current requirements are for fall protection.

And that is they are covered by 105(a) which means fall protection is required above 25 feet.

Other than that, we -- no more details. There aren't any more details as far as requirements of types of fall protection or rescue or anything like that.

MR. MASTERSON: If your group has not discussed fall protection from towers I think or at least look at how it will match up to Subpart M or R, whichever one it actually belongs in, I think you've missed a very, very big section of safety as it relates to their jobs.

MR. HAGEMANN: I can take that back to the Tower Task Force and be sure that we take a look into it.

Again, it is towers are sort of in an area that they are not covered by the steel erection. And they are not covered by M.

They are just sort of out there, covered by the general fall protection rule which is 105. And there aren't very many specifics in 105 as far as requirements for fall protection.

But we can certainly look into that and see if we need to look further into any fall protection and rescue that would be needed on tower erection.

MR. MASTERSON: Yes, I would think that those workers deserve the same level of consideration and safety that the rest of us in the industries would be expecting for our people.

MR. HAGEMANN: I agree with you.

CHAIRMAN BURKHAMMER: Mark, do you have a handout for the committee?

MR. HAGEMANN: Yes, I do.

CHAIRMAN BURKHAMMER: Bob, I would like you and Felipe to take this as part of the Fall Protection Workgroup and review the handout.

And at the next meeting or prior to the next meeting, maybe you two can meet with Mark and some members of the task force and then come back at the next meeting with a recommendation to the committee.

MR. MASTERSON: I would be more than happy to. Thank you.

CHAIRMAN BURKHAMMER: Steve.

MR. CLOUTIER: I want to go back to the steel erection policy memo that's coming out. If you're rescinding the Jim Stanley memo, is that it's all it's doing?

Or are you going to have the specifics of what the enforcement requirements are going to be and what are you looking at?

Cam you share some specifics?

MR. HAGEMANN: Yes. What it's doing is it is restating the Stanley memo and then canceling memo.

So this document will contain everything relevant to steel erection and compliance with compliance in steel erection.

So it will allow for compliance with either the proposed rules or the current rules. It will restate what the fall protection policy is which is the Stanley memo from 1995.

And it clarifies the scope of the proposed rule somewhat.

MR. CONNELL: Let me just amplify on this just a little bit. What we did is we looked at what is in the Stanley memo.

And we decided that all of the compliance related to steel erection during this period ought to be in one place.

As it turns out, you will not see significant changes with respect to the way the policy was stated in the Stanley memo as opposed to how it's going to be stated here.

But this administration and this group who is presently in the Directorate of Construction and signed off by the folks above us by issuing this document are saying what the policy is.

So that necessarily means that we are going to cancel the old memo. It is no longer in effect. And all of the policy will be in this document. And that is the policy that is being put out by this administration.

CHAIRMAN BURKHAMMER: Would you be kind enough to refresh this committee as to what the policy is, the 15th, the 30 foot rule? Or how do you say it, Mr. Connell?

MR. CONNELL: Well, first of all, what the -- the information that you find in the Stanley memo.

And the information that is going to be talked about in that regard relates to really the coverage of the steel erection standard because there are many questions obviously that come out. And that is really what that Stanley memo talked about.

So we are going to be talking about what the coverage is. And you will not see significant changes between the two in that regard.

That is one aspect of this construction that is going to be coming out. Another aspect of it is to explain, all right, now we've got a proposed new rule for steel erection. So what is our compliance policy with respect to those who want to follow the new rule as opposed to the existing rules?

And this explains what our policy is. Basically, the policy is that if an employer wants to go by the -- what's in the proposed rule, they can do that with two exceptions, well, with one and a half exceptions.

One exception is that deckers on untiered buildings must continue to be protected, tied off at 25 feet and above.

Also, we say a little bit about the scope of the new rule. And there is just a little explanatory -- there is some.

We explain a little bit about what is considered steel erection under this rule, in addition to the material and the discussion, the type of discussion that you found in the old Stanley memo.

And that is just because we want to tie together the issue of scope really appears in several places in the proposed rule.

And we sort of want to tie it together in one place so that people do not have to jump around, looking into different sources to figure out what the scope of the rule is.

MR. CLOUTIER: Are you going to -- does the memo address connectors, reiterate connectors?

MR. CONNELL: I'm sorry.

MR. CLOUTIER: Does your directive address connectors, ironworker connectors? Does it spell that out again?

MR. CONNELL: If you choose to follow the proposed rule, the proposed rule tells you about connectors.

If you are under the current rule -- Mark, do we have a separate --

MR. HAGEMANN: No.

MR. CONNELL: I don't think --

MR. HAGEMANN: Connectors aren't specifically identified in the current rule, but they are in the proposed rule.

MR. CLOUTIER: Mr. Chairman, he is going to discuss the meeting that he had in December on steel erection also, too?

CHAIRMAN BURKHAMMER: Not at this time.

MR. CLOUTIER: Not at this time.

CHAIRMAN BURKHAMMER: Mark, could you just reiterate the --

MR. CONNELL: We have a couple of deadlines for post-hearing comments on the proposal, the Subpart R proposal. Mark, would you just restate those?

MR. HAGEMANN: Yes. We finished up our hearing December 11th. And March 12th, comments are due, post-hearing comments are due. April 12th, any additional data is due. So there is two target dates for post-hearing comments.

CHAIRMAN BURKHAMMER: Steve, unless I misunderstood the request regarding the 10-day December hearing on Subpart R, the only request that the chair has gotten is to provide Jane and the committee chairs, Felipe and Danny, with the documentation concerning the connector contractor.

So if there is any members of the committee that would like to have Noah discuss the December 10th or give an overview of the December 10th 10-day hearing, I need to know that because that's what we have asked them to do.

Bob.

MR. MASTERSON: No, I just had one question, actually for both you and Mark. I noticed on steel erection, there is a 25-foot mark. And I notice in towers, there is also a 25-foot trigger point.

Help me understand how you come about a 25-foot trigger. Are the individuals working in that industry hardier than the rest of the construction industry? Or do they bounce better?

MR. HAGEMANN: Unfortunately, Bob, we are -- right now, we are stuck with what our current regulations are.

And since towers are not covered by Subpart M, since they are not covered by Subpart R, they are currently covered by the catch-all for fall protection which is 105(a) which is the 25-foot requirement.

You will notice in the intro section to the instruction, it -- we state that the both the industry and OSHA agree that providing fall protection above six feet is feasible in the tower industry. However, we cannot enforce that because our current regulations are 25 feet.

MR. MASTERSON: In that case, has any consideration be given to creating a standard or addressing those issues so that those individuals have the same level of protection that the rest of the industry is being provided with?

MR. HAGEMANN: It has. And again, that is our long-term rulemaking problem. What we wanted to do was try to address some of the issues in short-term directives while this tower boom is going on and while all this work is happening.

If we waited for a rulemaking for towers, we could be a long time down the road. And a lot of these towers would be built. And there would be a lot of people getting killed that we could have helped out sooner.

CHAIRMAN BURKHAMMER: Larry.

MR. EDGINTON: My questions go back to the tower erection. You said you had a task force I guess that is to continually to work on this.

And I am wondering if they have yet talked about or established any criteria through which to evaluate the effectiveness of this compliance directive.

MR. HAGEMANN: Actually, we have.

MR. EDGINTON: Other than a body count.

MR. HAGEMANN: Yes. And what we are attempting to do is work with the industry, primarily the National Association of Tower Erectors because they are the foremost association that we have been able to find that is an organized group of tower erectors.

And we are hoping that we can work with them to collect some data on injuries and fatalities, get some information on compliance with this directive, see how it's working, see how well it's working out there in the field for those that are complying with it.

And in a year, take a look at all that information and see how this thing is working, see if it is saving people, if they are following it, if there are less injuries and fatalities.

And, of course, that is a difficult thing to do, as the Data Collection Workgroup has found out. It is a difficult thing to track, but we are going to attempt to do that over the next year with the help of the industry.

MR. EDGINTON: And sort of a follow-up question on this, one of the things that has always intrigued me is how OSHA manages to get out to its compliance staff interpretations of the regulations.

And in just looking through this, something caught my eye in your definition section where you have adopted the definition for anti-tube blocking that we see in 1926.550 or so it appears quickly on the surface.

But if memory serves me correct, there is actually an OSHA interpretative document that says in fact an anti-tube blocking device has to be capable of doing two things.

It is not an and/or situation. It has to be capable of doing both. But yet, here we have a situation where we have got a definition picked up that appears to be inconsistent with what an interpretation has been.

And I just happened to run into this problem in the field recently. And we had researched it. And it just caught my eye as I looked through here.

MR. HAGEMANN: I'm not sure what the discrepancy would be between this and the interpretation.

MR. EDGINTON: Well, the language is that -- and the definition is that it appears you either have -- I'll just read it.

What you have here is "positive acting device which prevents contact between the load blocks, overhaul bolt, and top block, two-block employee system which deactivates the hoisting action before damage occurs".

Well, you can have equipment out there where you have a device which prevents the contact, but you will still have line pull.

And the interpretative memo which addressed that situation. Don't we really mean that it has to be capable of doing both as I understand the interpretation?

So it causes me a concern that I see this definition picked up again in a compliance directive which is not reflective of an interpretation.

And I guess what had happened is we just looked at what the definition was carried it forward.

MR. HAGEMANN: I don't know. I would have to look into that because we did have some compliance folks on our task force. And I know this anti-tube block definition and the provisions in any directive on anti-tube block devices were discussed in depth. And I'm not sure if that interpretation came up or not.

MR. EDGINTON: So you want to take a second look at that.

MR. HAGEMANN: We have to look into it.

CHAIRMAN BURKHAMMER: Now, what I would like to do is any member of the committee that would like to mark up some comments to return back to Mark on the handouts that he passed out, do so and return those to Mark.

And then, the Committee on Fall Protection will take a close look and review the document and prepare to discuss it at the next meeting.

Felipe.

MR. DEVORA: Also, looking at the definition page at the top of it, it says towers. I'm not that familiar with tower erection. Let me preface that.

But you are referring to activities. So here again, I think we have another multi-employer situation here. And by definition it looks to me in three different areas here, you are identifying the controlling contractor whether and again.

And this is a situation where perhaps the owner has contracted with a contractor to erect this tower.

And so -- and there is going to be other construction activities involved, other than just erecting the tower, whether it be, you know, concrete work or site development or whatever.

I don't want the controlling contractor any more language than we already have, but if we are going to go along that line, I think we need to maybe look at the definition of the organization of this project and give the compliance officer some guidance when they go to the site, out to the tower project.

MR. HAGEMANN: But what area are you referring to that brings in the controlling contractor?

MR. DEVORA: There is nothing mentioned of who's controlling activities.

MR. HAGEMANN: Okay. I think maybe that is because this directive is strictly for access to the tower.

So it is that employer who is at the point where the foundation is already done. The tower is going up. And he is trying to get his people up to work on that tower to erect it.

So there is -- as far as I know, there would be one employer at that time.

MR. DEVORA: This directive puts the obligations of compliance on the employer who is hoisting these employees.

CHAIRMAN BURKHAMMER: I'm not sure we want to open a two-hour discussion on this issue. So in lieu of that --

(Laughter)

MR. HAGEMANN: I guess on any construction site, you get into the multi-employer.

CHAIRMAN BURKHAMMER: Well, the problem you got with tower erection is they are very remote sites. There is minimal anything around where they are erecting the tower.

You usually got a couple of ground people and a couple of people up in the air and an operator. And that's it. That's the whole show.

And you've got a foreman or a general foreman or a superintendent or an engineer in a pick-up truck, driving around from tower to tower to tower. And he may have 20 towers in a day that he has to get to.

So there is not even any supervision on the site, except for a lead person which is one of those, either the two on the ground or the two in the air.

I think you really need to take a look at this controlling employer issue because in that sense, there isn't any.

And so putting the emphasis back on the employer who isn't there, we need to think about it.

So let's, instead of getting into a debate on that, hold that for further discussion maybe off-line with Felipe and Mark and the committee so we can maybe come to some resolution and get the right words.

One of the goals of this committee is to use common terms. And we are working real hard at that. And for somebody to come out with another term of controlling contractor when we are kind of trying to push to get the same term in everything to make it simple to understand.

So, Felipe, if you would take the action to work with Mark. And we'll see if we can clean up the language in there.

Marie.

DR. SWEENEY: This has nothing to do with controlling contractors.

CHAIRMAN BURKHAMMER: Good. Because if it was, I was going to cut you off.

DR. SWEENEY: No, no. One of the things that Mr. Jeffress talked about this morning is to increase outreach training, perhaps ask Congress for more money.

We have 22,000 employees, most of which are small, independent contractors, three to five-man crew.

And on top of that, we are going to be somewhere in the next couple of years between 100,000 and 200,000 that each tower is going up, if not -- we've already seen that many go up already.

What is there going to be done in terms of outreach to these small contractors either by OSHA or OSHA and NATE to at least explain to them the regulations and give them assistance in protecting their workers?

We have seen it a proportionate increase of fatalities since the 1996 Federal Communication Act put this into effect.

So I mean, I think we can do this, but then there is another part that we can't let go.

MR. HAGEMANN: There are two things currently ongoing as far as training. One is by OSHA and one is by NATE.

February 16th through the 18th, I believe NATE has a conference down in New Orleans. And they are going to do a training presentation on this directive to their members.

So they have already started to look into training their people and getting the word out and telling them how to comply with this.

In addition to that, the OSHA task force is going to the Training Institute to talk with our training people out there to see how we can get our compliance officers some training on tower inspections, in particular the aspects of this directive.

So this in February, both NATE and OSHA are looking into some training for tower erection.

DR. SWEENEY: But it's not -- my understanding is that NATE only includes mostly the big communication folks like Motorola, AT&T and those people. They are basically the owners.

I'm talking about the people they subcontract to to build the towers.

And I don't think this little conference here addresses those people.

MR. HAGEMANN: NATE represents erectors. They don't represent the owners. NATE represents the companies that go out and erect the towers which is what you're talking about.

Whether they represent the big ones or the small ones, it's hard to tell because there is always going to be small contractors out there that don't belong to any association, that don't read any, you know, periodicals or newsletters or anything.

But NATE does represent the erectors. And they represent a very large portion of them. So they are a good source to get out to the industry, how to comply with this and what this is all about.

DR. SWEENEY: I thought it was only 30 percent, but I may be wrong.

MR. CONNELL: Well, we are not, you know, we are not just going to rely on the efforts of one organization.

I mean, we understand and are very concerned about and committed to doing outreach and training so that we can get the word out on the issues that we have wrestled with and dealt with in here.

I don't know, you know, what the -- we have not come to the end of the road on ideas on how we are going to do that, but we are very committed to finding ways to get this word out.

DR. SWEENEY: True.

CHAIRMAN BURKHAMMER: Two more comments and then we will move on.

Harry.

MR. PAYNE: A question from a process point of view, what degree of substance, new substance or substantive change has to be included before it is no longer policy and it goes towards rulemaking?

What I seemed to hear was the time factor and the need out there was such that we could not go to the typical rulemaking authority.

I am trying to think from the other angle from the nature of the change itself. Where is the line drawn where you need to go through the ordinary standard, humdrum process to establish a rule?

MR. CONNELL: The line is that we cannot create new obligations on employers without going through rulemaking.

MR. PAYNE: The employers.

MR. CONNELL: Well, we -- our jurisdiction is over employers.

MR. PAYNE: Yes.

MR. CONNELL: We cannot create new legal obligations without going through rulemaking.

MR. PAYNE: Can you take off obligations to the end that you are removing protections without going through rulemaking?

MR. CONNELL: No, we cannot change a rule. We cannot diminish the requirements of a rule without rulemaking, just as we can't increase the requirements of a rule without rulemaking.

Now, so what we can do, however, is we can interrupt what a rule means as long as those interpretations are reasonable and as long as they can be reasonably support by the terms of the rules that we are dealing with.

Now, remember that we are not just dealing in the compliance field. Frequently, we are not just dealing with rules.

We are also sometimes dealing with obligations under the general duty clause. And we can issue interpretations relating to the general duty clause in a particular context.

So now, of course, I can sit here and tell you in the abstract where that line is. And I just did, but obviously as a matter of practical reality drawing those lines can be very difficult. And that is why we have lots of court cases.

But we take, you know, that line seriously. And, you know, whenever we go and enter into an exercise where we are issuing a compliance directive, I can assure that there is a great deal of attention paid to making sure that we do not cross over those lines.

CHAIRMAN BURKHAMMER: Michael, the last question on this one.

MR. BUCHET: Well, I wondered in your outreach analysis, have you thought of doing a Susan Harwood grant outreach to the small tower erector employer the way it has been done for construction employers and industrial or general industry employers?

MR. SWANSON: Mike, the way the Susan Harwood grant system works is that when it is announced that there is money available for grant application packages to come in, they come to us rather than we go out and say how would you like to a Susan Harwood grant?

This would be clearly a ripe subject area for somebody to put together a package and submit it when next we are out looking for Susan Harwood grant applicants.

CHAIRMAN BURKHAMMER: Okay. Mark, thank you very much.

MS. SHORTALL: I just had a question before from a member on the advisory committee. And I spoke with Paula White in OSHA.

She says that they hope to be announcing a new round of application award process next month. It will be published in the Federal Register. So that way, it will be available on the Internet.

But if you need more information, you can contact Helen Beale here at OSHA. And you can request that those materials be sent directly to you, including the 34-page application.

CHAIRMAN BURKHAMMER: Noah, if you would come back? We weren't finished with you. You don't get to sneak out the back door.

(Laughter)

CHAIRMAN BURKHAMMER: If you would be so kind as to take a few minutes and share with a committee a little overview of the December 10-day hearings on Subpart R?

And maybe, you could make some comments in particular to the definitions of controlling contractor I think that was discussed at length during the 10 days.

And maybe also, you could reflect on the number of people you heard from in regard to the 6 foot, 10 foot, 25 foot, 30 foot, whatever foot ruling.

MR. CONNELL: I'll ask Mark to come back.

CHAIRMAN BURKHAMMER: He left. You're it.

(Laughter)

MR. CONNELL: Okay.

CHAIRMAN BURKHAMMER: No, Mark is still there. He's hiding.



 
SUBPART R STEEL ERECTION HEARINGS

By Mr. Connell

MR. CONNELL: In terms of the overview of the hearing, I think that we got a wealth of information there and a broad variety of viewpoints were represented and were brought forth during the course of the hearing.

We tried to ask good questions of all the witnesses in terms of finding out and flushing out these issues to the greatest extent possible.

And so in that respect, you know, I think what you hope to get from a hearing and a rulemaking is as full and complete a discussion from all perspectives on the proposal.

And I think we got a very good, a very broad scope discussion. In that respect, I think it was a success.

A lot of information came in. And a lot of opinions and comments came in. And now, it is our responsibility to comb through those very carefully and figure out what has come in and what we should do.

We take that obligation very seriously. Mr. Jeffress has emphasized to us that he wants us to make sure that we look closely at everything. And we are now starting to do that.

And so I think it was a good hearing. And we certainly have a lot of material to work with.

That was your first question.

The second question on multi-employer, I was not -- I home sick during the witness presentations on most of the -- most of the witness presentations on multi-employer.

But even if I was there, I would not comment on the -- on what came in substantively because it is our obligation, as I said, to review very carefully everything that came in and everything that is already in the record.

And I do not wan to prejudge anything from a substantive standpoint because we are going to do a close analysis of all this.

How many people commented on the various thresholds for providing fall protection, I think quite a few people commented on that.

We also have a lot of written comments. And we are beginning to comb through those. And I do not know how many of those touch on that issue.

Mark, do you have a sense the volume of comments that came in both at the hearing and in written comments that touch on the different thresholds for -- you mean, the fact that there are different thresholds?

CHAIRMAN BURKHAMMER: Yes.

MR. CONNELL: And that there ought to be one?

CHAIRMAN BURKHAMMER: Was there any -- was the larger volume leaning toward any one or the other?

MR. CONNELL: Oh, well --

MR. HAGEMANN: We haven't looked at the comments closely enough to determine where they're at.

MR. SWANSON: Obviously, this is not a numbers count anyhow.

MR. HAGEMANN: Right.

MR. SWANSON: But can you give the committee some feel how many witnesses did we have over the course of that multi-week hearing?

MR. HAGEMANN: I believe we had about 60 some witnesses come to testify. We had 365 comments that were submitted to the docket.

A lot of those were around two issues. And one of them was controlling contractor. And one of them was holes and joists.

So if you take those out, then there is significantly less comments. But there was a considerable amount of comments put into the record.

MR. SWANSON: And we have several thousand pages of transcript on the record.

MR. HAGEMANN: Roughly 2,000 pages if anybody wants to read through that and see what we talked about it.

MR. SWANSON: And every word is plural?

MR. HAGEMANN: Yes. And the margins are small. So it is easy reading.

CHAIRMAN BURKHAMMER: Thank you for those gems.

Comments?

(No response.)

CHAIRMAN BURKHAMMER: Well, you got off easy. Thank you. Thank you both. I appreciate it.

It's a quarter to 12. We'll break for lunch now returning at 1:00 o'clock with the workgroup discussion on fall protection.

(Whereupon, at 11:45 a.m., the meeting was recessed for lunch.)

 

AFTER RECESS

(1:10 p.m.)

CHAIRMAN BURKHAMMER: ACCSH will reconvene. We will start with the report on the workgroup on fall protection, Bob Masterson.

 

ACCSH WORKGROUP REPORTS

Fall Protection

By Mr. Masterson


MR. MASTERSON: Thank you, sir. The workgroup met for a second time yesterday. And we spent the entire day talking about a list of issues that had been brought up by -- or given to us by OSHA.

CHAIRMAN BURKHAMMER: Bob, we can't hear you.

(Pause)

MR. MASTERSON: The workgroup met yesterday for a second time. And we spent the entire day discussing the issues that had been provided to us by OSHA that they had received from industry and from comment.

For the morning, there was about 12 people present. And the bulk of the morning was spent discussing STD 3.1 and the definition of residential construction.

Some of the concerns that the group had was the validity of the definition, the definition of residential construction, how that definition was being applied, the 3.1 and Subpart M, and how could the application of 3.1 be more clearly defined for OSHA.

Needless to say, the entire morning was spent on just that issue. And just before lunch, the group did reach consensus.

And it was clearly a well-balanced group. Three ACCSH members were there. We had some representation of labor, management, and the public sector.

But the consensus of the group was this. The first one was that the group felt that the advisory committee and OSHA should not be investing their time or their resources to readdress STD 3.1. Rather, they should invest that time and resources into reopening Subpart M and investing those issues in the proper fashion, rather than 3.1.

In the interim, to leave 3.1 as is because though there may be some issues that need to be addressed in it, it is still working for a lot of people.

And going back and changing the rules now would just confuse a whole bunch of people in the field.

The second thing was that the workgroup was trying to wrestle with the definition of residential construction.

And what came out of the group, and again I think it was a consensus, was that the group as a whole saw absolutely no reason to define residential construction.

The issue of fall protection is applied and whether or not fall protection can -- conventional fall protection can be viewed is not relevant to whether or not it is a structure that --- going to work in.

The relevant factor is materials, the process and that which is used to build that structure.

And so again, we did not believe that -- this group that residential construction needed to be carved out and defined.

That was pretty much the bulk of the morning.

And the afternoon was spent talking about quite a few other issues. Those issues included the controlled access zones, possible application of the controlled access zones on large group areas, the use of how they work or follow the spring system which is a little different from what we currently have in Subpart M.

We have the fall arrest for position. There is a need for something that is kind of between.

And that is a system that would adequately control where an employee could work in the environment so that they would not be exposed to fall hazards and fall. And that is another thing not really adequately addressed in Subpart M.

Another issue that was brought up was the application of fall protection by vendors providing materials to the job site.

The last area was the -- and the difference and the needs for the type of -- fall arrest and workers are aware of this worker spring system.

There were a lot of issues that OSHA provided us that we didn't have the time to give to. Before the group could actually give an adequate presentation to ACCSH, a lot of these issues are going to have to be reviewed at a lot closer and get a lot more inputs. And a couple more takes, it will be easier to accomplish that.

But again, the group as a whole felt that they -- to ACCSH that the recommendation to be forwarded to OSHA was that 3.1 be left as is and that there is a need to address -- applying to residential construction whether that time should be spent applying those materials and work processes that created the situation where conventional fall protection wasn't working.

CHAIRMAN BURKHAMMER: We still seem to be having a sound problem with this mike.

Did everybody hear what he said?

VOICES: No.

(Pause)

MR. MASTERSON: Okay. Basically --

CHAIRMAN BURKHAMMER: Just start with your recommendation.

MR. MASTERSON: Okay. The recommendation of the workgroup from yesterday, there was a very strong consensus that as it would relate to 3.1 and Subpart M that OSHA should not invest their time or the time of the committee in making any changes to the current STD 3.1.

Rather, they should take that time and those resources and invest that in correcting any issues that might be in Subpart M by reopening it and going through the normal proper rulemaking process to address the fall protection issues.

The second issue was the definition of residential construction. As a whole, the consensus for the workgroup yesterday was that there need not be a definition for residential construction.

Whether a structure is being used for living in or working, wasn't relevant to whether or not conventional fall protection could be provided.

The issue is whether the materials being used and the methods for building that structure would allow the use of conventional fall protection. And that's what really should be defined.

CHAIRMAN BURKHAMMER: So basically, you're making three recommendations. One concerns 3.1, right?

MR. MASTERSON: Okay. Yes.

CHAIRMAN BURKHAMMER: One concerns Subpart M. And one concerns residential construction. So you've got three separate recommendations.

MR. MASTERSON: I could recommend the three items, yes.

CHAIRMAN BURKHAMMER: Now, why don't you split those up and go ahead and make them as motions? And we'll --

MR. MASTERSON: Okay. The first motion.

CHAIRMAN BURKHAMMER: One at a time for discussion.

MR. MASTERSON: The first motion would be that STD 3.1 is there. It is in existence. And we don't feel that it is a good use of the ACCSH or OSHA resources and time to go back and try to make any changes to that document as it exists.

(Pause)

CHAIRMAN BURKHAMMER: Second.

MR. BUCHET: Second.

CHAIRMAN BURKHAMMER: Second.

Discussion?

DR. SWEENEY: Mr. Chairman.

CHAIRMAN BURKHAMMER: Marie.

DR. SWEENEY: Could you briefly describe what STD 3.1 is so that the whole committee has it? Can you please describe what STD 3.1?

MR. MASTERSON: STD 3.1 was a directive that was issued, what was it, Bruce, December of '95? December of '95. Basically extending the use of fall protection plans to some additional trades as well as defining for the first time residential construction where there was a definition contained in that document for that application of that document of what residential construction was.

The document changed some of the provisions of Subpart M. And at this point, that document or those provisions have been pretty well implemented in the residential home building industry as well as some commercial sites.

We feel going back at this point and trying to change the rules again are just going to confuse the issues.

And rather than to do that, we should invest our time and resources in going back to Subpart M.

CHAIRMAN BURKHAMMER: Jane.

MS. WILLIAMS: Why was the workgroup charged with evaluating 3.1 for a change? What brought on the request for you to evaluate that change to begin with?

MR. MASTERSON: There was a feeling that the definition of residential construction was a little too broad having encompassed more than it needed to.

CHAIRMAN BURKHAMMER: Any other discussion on the first motion?

Michael.

MR. BUCHET: Can you -- is the motion in the negative or the affirmative? We are recommending do not do anything? Or we are recommending --

CHAIRMAN BURKHAMMER: I heard the motion as they are recommending to make no changes to 3.1.

MR. BUCHET: Correct. And the companion piece is not a separate piece of this motion? It is a separate motion entirely?

CHAIRMAN BURKHAMMER: There is three motions. There will be three motions. This is the first of the three.

MR. BUCHET: Yes.

CHAIRMAN BURKHAMMER: For simplicity, and not putting words in your mouth, but you might consider shortening your motion to just that, that the committee is recommending no change to 3.1?

MR. MASTERSON: I would amend it to that.

CHAIRMAN BURKHAMMER: Does the second agree with that?

MR. BUCHET: Yes.

CHAIRMAN BURKHAMMER: All right. The amended motion is that they, the workgroup recommends no change to 3.1.

MR. SWANSON: May I address this for the committee and maybe put things in perspective? And I'm not arguing against the motion. I think this committee ought to recommend to us whatever the committee wishes to recommend to us.

But some of the questions indicate to me that there might be some confusion over what STD 3.1 is.

In August of 1994, OSHA promulgated a Subpart M which was the fall protection standard for the construction industry.

Somewhat later, some months later, the residential home construction industry, really the National Association of Homebuilders, and another builder association, the National Association of Roofing Contractors of America, lobbied the Hill that it was not feasible for their industry, particularly the smaller employers in their industry to comply with Subpart M.

Subpart M has a provision in it that allows contractors if something infeasible and they can show its infeasibility, they can move off and find another way of providing adequate safety to their employees.

Some time thereafter, obviously the following year because we came out with our directive in December of '95. Bob is correct on that date.

Some time in the spring or summer, the United States Senate, one or two individuals in particular, made it clear to OSHA that there was a funding issue here that OSHA ought to think about in their appropriations.

Rather than us insist that a segment of the construction community that could not feasibly comply with our standard, rather than allow them to be harassed by that standard, the Senate would fix it so that we didn't enforce Subpart M anywhere in the American construction industry which was an offer we couldn't refuse if they were suggesting that we sit down with NAHB and find some other fall protection system for them.

STD 3.1 really is a document, a directive that OSHA drafted back in '95 that says homebuilders and roofing contractors associated with residential construction do not have to comply with M. We will assume infeasibility because of who they are and we will move on to other forms of fall protection.

And then, STD 3.1 spends a number of pages talking about what some of the other safety protections would be.

What Mr. Masterson is suggesting or what his subcommittee, workgroup is suggesting to the full committee is now that OSHA has looked at STD 3.1 for a couple of years and is considering amending 3.1 so as to modify the definition of residential construction so that it includes fewer employers than it now does and perhaps making several other substantive, maybe minor, but certainly substantive changes to STD 3.1, the workgroup is suggesting that our time would be better spent looking at something else, such as the ANPRM, for the advanced notice of proposed rulemaking, for M, the fall protection standard itself.

We are, of course, because we are talking about an ANPRM, we are several years away from having a new final standard for M, but our time would be better spent looking at that than tweaking STD 3.1.

I think that's the essence of the motion before you.

Is that a fair statement?

MR. MASTERSON: Yes, with one thing that I would like to add to that is that in STD 3.1, it allows a contractor to work in an environment where there be a recognized fall hazard only when the conventional fall protection is either infeasible or would create a greater hazard to other workers.

So it's not a carte blanche. You have to first be able to demonstrate. And in certain areas that OSHA agreed that it was clear that any attempt to use conventional fall protection did create the issue of either infeasibility or greater hazard.

So again, it's not a carte blanche. It's only extending to those contractors the ability when the materials are such that conventional fall protection cannot be used that those people still have a way to work.

And STD 3.1 as well as the fall protection plan that's contained in the non-mandatory appendices of Subpart M clearly draw out that it has to be the exception not the rule that you work unguarded.

CHAIRMAN BURKHAMMER: With those clarifications, is there any further discussion?

Felipe.

MR. DEVORA: We talked about the -- I'm a little bit confused. I think I know where you're going with this. But are we talking about an exemption for whether you define a nonresidential construction from Subpart M, the infeasibility part of it?

Are you saying that in homebuilding it is not feasible in certain situations to --

MR. MASTERSON: There are certain situations because of the materials being used in a single family home or even a townhome that there is no point that you can use for an anchor point or any way to put guard rails up.

MR. DEVORA: But that's not unique to residential construction, is it?

MR. MASTERSON: Not necessarily. And that was the reason for the third motion.

The issue is not whether or not the structure is lived in or worked in. It is the materials being used and whether or not those materials can adequately support those fall protection devices.

CHAIRMAN BURKHAMMER: 3.1 is currently in use. It's being used by compliance officers for interpretation. It's been out there for three years.

The workgroup is asking the full committee to vote to leave the current language in 3.1 as is with no recommended changes from it?

MR. MASTERSON: Correct.

CHAIRMAN BURKHAMMER: That's the motion.

Any further discussion on the motion?

(No response.)

CHAIRMAN BURKHAMMER: All those in favor of the motion, signify by saying aye.

VOICES: Aye.

CHAIRMAN BURKHAMMER: Opposed?

(No response.)

CHAIRMAN BURKHAMMER: Approved. The motion carries.

The second motion.

MR. MASTERSON: The second motion would be that OSHA should put the time and resources into opening Subpart M and the advance notice of proposed rulemaking to address those issues that had been raised by 3.1 so that they go through the rulemaking process and are adequately addressed in a proper fashion.

MR. CLOUTIER: Second.

CHAIRMAN BURKHAMMER: Just a minute.

I think that is an improper motion because currently Subpart M is not open. It's not under review.

MR. SWANSON: Correct.

CHAIRMAN BURKHAMMER: ACCSH's charge is to review and comment on either new proposed standards or standards that are reopened for review.

Your motion does not fall under one of those of two. Therefore, I think it's an incorrect motion.

Go on to your third motion.

MR. MASTERSON: Considering the conversation and the briefing we had this morning from Mr. Jeffress and the clear statement that he intended and fully intended to reopen Subpart M this year, I would move that OSHA would put -- dedicate the resources to properly address those issues that have been raised by 3.1 so that when the standard is reopened, they have the data to make proper standards. How to say it? To adequately address those issues in the proper fashion.

CHAIRMAN BURKHAMMER: You're assuming by that motion that they're not going to do that anyway. So it's an assumption motion. It's not a motion based on fact. It's not a motion based on an open standard?

MR. MASTERSON: That's true.

CHAIRMAN BURKHAMMER: Again, I don't think it's an appropriate motion at this time based on the fact that the standard is not open and based on the fact that it's a motion based on anticipation rather than fact.

I will not accept a second.

Move on to the third motion.

MR. MASTERSON: The third motion is that the workgroup felt that the full ACCSH should recommend that OSHA not go to the trouble and effort of defining residential construction.

As it would relate to the use of conventional fall protection, the term "residential construction" is not relevant.

The relevant issue is the materials and methods used to build the product, not whether it's a home or an office.

CHAIRMAN BURKHAMMER: Second?

MR. PAYNE: Second.

CHAIRMAN BURKHAMMER: Second.

Discussion?

(No response.)

CHAIRMAN BURKHAMMER: Bob, why don't you start the discussion by explaining what all that means?

MR. MASTERSON: Okay. What we mean by that or the conversation that took place with the workgroup was that it's not a matter of the structure size. It's not a matter of height. It's not matter of whether it's a home or an office.

If you're using 2-by-4 construction, there is certain limits to the 2-by-4 and the materials. And if it doesn't adequately meet the requirements or needs in order to establish an anchor point, then you still don't have it. And it doesn't matter what the intended use of the structure is.

We didn't feel that defining residential construction so that that would carve out an exemption was appropriate or relevant.

What should be defined is what are those materials and processes that create a situation where conventional fall protection would not work, meaning infeasibility or the effort to try and use conventional fall protection would expose more people to a greater hazard?

CHAIRMAN BURKHAMMER: Where does this motion take us? What you say about the materials makes sense. You're making this motion to have OSHA do what?

MR. MASTERSON: My motion is that OSHA not devote the resources or the time to create a definition of residential construction.

CHAIRMAN BURKHAMMER: And that's -- Harry, that is what you seconded?

MR. PAYNE: Yes.

CHAIRMAN BURKHAMMER: Okay. Further discussion?

Owen.

MR. SMITH: Yes. I was there during the debate. And it seems as though that the 2-by-4 construction on up to a two-story house and probably a small commercial were the same and that those types of structures would not sustain the type of fall protection that you have on other kinds of structures. I think that is where he is going with it.

CHAIRMAN BURKHAMMER: Steve.

MR. CLOUTIER: But the issue here is that you don't want them to define residential construction?

MR. MASTERSON: The workgroup felt that there was no value in creating a definition of residential construction when it had no bearing on whether or not the structure was capable of supporting conventional fall protection systems.

MR. CLOUTIER: Then, whey can't we leave as it is where it just says, you know, residential contractors either fall into it or don't fall into it?

MR. MASTERSON: Say that again.

MR. CLOUTIER: Have they come to us and asked us to define it? Did they ask your workgroup to define it?

MR. MASTERSON: Yes. That was one of the issues we were asked to address specifically in 3.1.

CHAIRMAN BURKHAMMER: Michael.

MR. BUCHET: Was the question --

CHAIRMAN BURKHAMMER: Wait a minute. Wait a minute. Wait a minute.

Say that again. Say that answer what you just said again.

MR. CLOUTIER: This is one of the things you were asked to define in 3.1?

MR. MASTERSON: That was one of the issues that OSHA provide us that was on a list of issues that they felt needed to be addressed. That's my question --

CHAIRMAN BURKHAMMER: Just a minute. We just had a motion which was carried unanimously to not make any changes to 3.1 and leave it as it is.

Is this motion that you're making now a change to 3.1?

MR. MASTERSON: No.

CHAIRMAN BURKHAMMER: Okay. Michael.

MR. BUCHET: I guess my question was, was the workgroup asked to define residential construction or to explain or discover the extent of the term "residential type construction" because one of the sticking points was if you do a stick filled portico on a strip mall, is that residential type and did that then fall in the 3.1 category, not what was residential construction?

MR. MASTERSON: Okay. It wasn't that clearly defined. We were asked to address the definition contained in 3.1.

And the motion is that in the past the 3.1 not be changed. And we are further suggesting that ACCSH recommend that OSHA not bother or not go to the effort of creating a separate definition for residential because it's not really applicable to anything connected with fall protection.

CHAIRMAN BURKHAMMER: Bruce, could you comment on a clarification point on 3.1 for residential construction?

MR. SWANSON: Well, a couple of issues. The term "residential construction" is used in Subpart M. And it is not defined in Subpart M.

One of the things we dealt with in 3.1 back in '95 was residential construction in an attempt to define it.

And what we are in the process of right now and which is what raises this whole area of discussion is on redefining the term for our uses.

If we have a standard that provides certain requirements or cuts in -- makes certain exceptions for an area of our construction industry, we have to define for ourselves.

STD 3.1 certainly is a directive for us. We have to define ourselves what that term means. It seems fairly logical to me. And we need a working definition of construction, residential construction. And that's what we're doing.

MR. SMITH: Mr. Chairman.

CHAIRMAN BURKHAMMER: Owen.

MR. SMITH: I kind of followed the debate. And it started out looking at 3.1. And the homebuilders said that 3.1 as it is works pretty good for them. But if they get a change in M, then 3.1 would no longer be needed.

And so it evolved to the type of construction. And it was suggested that stick construction for housing and light commercial was pretty much the same. And I think that's how they got around to it.

So if you took a look at the light commercial and probably housing because I think after you get over two stories, you probably use 4-by-4s rather than 2-by-4s, that as the construction got a little bit heavier that you might be able to use the conventional fall protection, but that it was not feasible economically at least on two stories or less, you know.

Actually, the builders scaffold around the house. I guess if you throw enough money at it, you can make anything work.

CHAIRMAN BURKHAMMER: Michael.

MR. BUCHET: I apologize for not being able to remember where, but I am pretty sure through the construction division at the National Safety Council that we have had discussions of homebuilding contractors, fairly large-scale ones in the southwest who do everything with 100 percent fall protection.

I'm not sure. And I ask the workgroups forgiveness, but can you deliver the data that says conventional fall protection can't be put on 2-by-4 construction?

MR. SMITH: Well, I think --

MR. BUCHET: It may not be wood all the time, but my guess is that it can be. And certainly, if you're going to metal stud framing, the argument may be a little weaker there.

MR. SMITH: Michael, it kind of got to them looking at the processes and how long a person would be involved in a particular work process and how long it would take to erect the fall protection or the tie-off points.

For instance, if a guy put a fence through there, you might have a sheet metal man that would go up on there for 10 minutes and drop a sheet around each of the vents and maybe something around the chimney, and he was gone.

MR. BUCHET: That is a feasibility argument and a process argument, not the fact that the materials or the process as it is currently done says you cannot do this.

MR. SMITH: Fine.

MR. BUCHET: There needs to be a lot more work done on evaluating that for a factual basis. 2-by-4s, we don't know. I mean, the architectural engineers you could tell you.

MR. MASTERSON: No, Mike, we do know. We have the engineering studies to show that a 2-by-4 cannot support a fall arrest anchor point.

MR. BUCHET: I know. But a house isn't built by one 2-by-4.

MR. MASTERSON: No, it's not.

MR. BUCHET: At some point, it is possible to use some of the traditional anchor points. There are new anchor points being developed probably while we are sitting here.

And the process certainly can be looked at again to figure out how to put an anchor put that everybody knows comes on after that.

MR. MASTERSON: That's true, Mike. And if you read the standard closely, the standard only allows the use of the alternative fall protection when the anchor point can't be established or would create a greater hazard.

Unless the contractor an establish a greater hazard or infeasibility, then he is not allowed to use the alternative fall protection. They have to go back to conventional fall protection.

MR. BUCHET: I'm not arguing what 3.1 says. I --

MR. MASTERSON: That's Subpart M.

MR. BUCHET: Yes.

MR. MASTERSON: I'm sorry.

MR. BUCHET: I thought what we were hearing was that there was a conclusion drawn by the workgroup that the process of this type of construction and the materials of this type of construction made it impossible to use conventional fall protection.

The way I heard it couched, while it may be impractical which is entirely different than impossible.

And that the suggestion from the workgroup was that OSHA would be wise to spend its time saying, okay, here is fall protection for these processes and these materials, but there are exclusions. And I guess I'm drawing an inference. And the exclusions were going to be what we are now loosely calling residential construction.

And I don't know where the basis, the engineering data, the practical data, the experience data comes to say that that material and those processes can't use conventional fall protection.

MR. MASTERSON: The data comes from engineers and former calculations on what kind of stresses lumber can take.

As far as some of your references, Subpart M currently allows in certain areas the use of fall protection plans.

Fall protection plans are the alternative work practice that has been defined in Subpart M when there is a situation where either the use of conventional fall protection is infeasible. And we use the term infeasible to be equal to impossible. Or it would create a greater hazard.

OSHA has acknowledged there are certain tasks working with certain types of material that they can find no feasible way to put conventional fall protection in and still not create a greater hazard.

If that piece of equipment were to be developed, then the use of a fall protection plan would no longer be available.

MR. BUCHET: I don't disagree with that, but I am still worried by what I thought I heard which maybe I didn't hear was that we are supposed to concentrate on the idea that it is impossible, impractical because of the material or the process.

Please realize that the counsel and the carpenters have just spent a considerable amount of time creating a training program for compliance officer in residential construction.

And we have wrestled with a lot of the logic behind 3.1. And I don't think at any point did we find somebody who flat out said that these materials and this again loosely defined group of processes called residential construction excluded conventional fall protection.

MR. MASTERSON: That --

MR. BUCHET: We discussed the idea that there was a mind set out there that said it can't be done.

But as I said, there are companies that apparently have an absolutely 180 degree turn on that and say we can do it, we will do it, and we're going to do it. And they are doing it.

MR. MASTERSON: Well, I hear what you're saying. You're going to have to show me the systems that will allow that to happen.

And if you can in fact show me those, then my contractors should not be allowed to use fall protection plans.

Some of the largest framing contractors in the United States working on residential construction were the architect of some of the things we are talking about.

We are not saying that it is an exclusive situation for residential construction.

What we are saying is that OSHA needs to look at the materials and work methods. And when that situation occurs that you cannot put an anchor point in or use conventional fall protection without creating a greater hazard, it's not residential. It's not commercial. It's a process and materials that need to be looked at. And that should establish when fall protection plans can be used.

CHAIRMAN BURKHAMMER: Would you please reread your motion for clarity of the committee and the chair? I lost the motion somewhere in the discussion.

MR. MASTERSON: I would ask that the -- I would move that the full ACCSH recommend to OSHA not to create a definition of residential construction, particularly as it would relate to the fall protection.

CHAIRMAN BURKHAMMER: Go ahead.

MR. RHOTEN: I just had a question on a procedural matter. Am I to take it that everybody on this subcommittee unanimously agreed with these three motions that you made?

MR. MASTERSON: No, there was a consensus.

MR. RHOTEN: Did I -- well, that's my question. And I'll get off the subject for just a second because I had this problem a year or two ago.

And we had some advice from the attorneys that the subcommittees couldn't come back to this committee with recommendations that they voted on, that they came back with both sides of the issue and both arguments.

Now, that went through. There was a little discussion here among us with the attorneys. And it seems illogical to me, it does. And I'm not suggesting that it shouldn't be this way in the future.

The fact is the attorneys here took the position that the subcommittee can't come back here with a recommendation on issues that were voted on.

And we were also told that the subcommittees couldn't vote on those issues.

Now, I'm just asking that as a procedural matter, the question for clarification.

CHAIRMAN BURKHAMMER: When we had that, yes, we did have that debate. And it centered around the fact of who on the workgroup has the vote and who doesn't have the vote.

The workgroup is comprised of ACCSH members who at their will may have additional members of the workgroup and the general public as advisors to the ACCSH members of the workgroup.

The voting members of the workgroup are the ACCSH members, not the advisors.

So if there is three ACCSH members make up a workgroup and there are 27 advisors, if the three ACCSH members agree, that's a unanimous vote from the workgroup and it can be brought forth to the ACCSH.

MR. RHOTEN: And, Stew, I'm not bringing this issue up to disagree with what you just said.

CHAIRMAN BURKHAMMER: No, no.

MR. RHOTEN: As a matter of logic, what I'm suggesting is that that was not the guidelines that we had in the past.

In the past, it was that anybody who wanted to sit in on that group and be part of that group was quite welcomed on both sides of the industry, opposition, and pro so that you could get the greatest amount of information to bring back to this committee to make a decision.

And again, I'm not arguing with your logic. I'm just suggesting because in the future I'm going to use exactly your logic.

(Laughter)

CHAIRMAN BURKHAMMER: But you're absolutely, Bill.

MR. RHOTEN: But in the past and in the guidelines that we had in the past was that when the committees came back in here with a report that there were going to be the pros and the cons and it wouldn't be a vote from the subcommittee entirely, you know.

We had a lot of discussion on the issues with the safety standards and training. And I think the committee has always brought back in both sides.

Although I would agree, I would always like to bring in just my side to the table.

But I'm just bringing this point up as a procedural thing for clarification in the future.

And I would like before we leave today to have it understood then that the people that attend all the subcommittee meetings and give all the information can't vote on anything and that the people that can vote are in fact just the subcommittee members and that the subcommittees members then can bring back a recommendation to this committee. Is that correct?

CHAIRMAN BURKHAMMER: Let me clarify your point.

MR. RHOTEN: I'm just trying to get the --

CHAIRMAN BURKHAMMER: The whole aspect of having the workgroup and inviting as many people as who would want to participate in that workgroup with the ACCSH appointed members of the workgroup is to get diverse opinions, is to get input, is to get as much as information that the public has to offer, that there has been studies of and research conducted for and all that.

And I would think taking my Acting Chair hat off and putting my member's hat on, when I chaired committees, I did not run a dictatorial committee.

Now, some in the public may think I did, but I did, but I did not run a dictatorial committee.

(Laughter)

CHAIRMAN BURKHAMMER: Just ask me. And I think when you present your final document like the sanitation document that we have here today, I'm sure that's made up of everybody's general consensus of what the revisions should be.

General consensus doesn't mean unanimous approval. General consensus means that the body feels that this is what is the best situation at this time.

The ACCSH members of the subcommittee make the determination. They present the workgroup report to the full committee.

So I do want you to go out and get as much input as you can and solicit as much information as you can.

MR. RHOTEN: But it --

CHAIRMAN BURKHAMMER: Wait just a minute.

And apply that information, as I know you do of all people are very open and --

MR. RHOTEN: Or else I can just leave, take all that information and leave it in the subcommittee room.

CHAIRMAN BURKHAMMER: But you wouldn't do that.

MR. RHOTEN: Well, I guess that's my question. I mean --

CHAIRMAN BURKHAMMER: Do you want to do that? Is that your question?

MR. RHOTEN: What I would like to know is if it was opposition -- and this is off this issue maybe.

But I would like to know if there was opposition at those subcommittee meetings to these three motions and what that was.

CHAIRMAN BURKHAMMER: Bob, can you answer that question?

MR. MASTERSON: First, I would like to say that there was consensus of the three ACCSH members as well as the other people present.

So it was not unanimous in the sense that there differences of opinions, but everybody agreed that they felt that this was the best place to go and this is where we should be going.

And the group as a whole had pros and cons. But the ultimate decision was this was the best. And Danny and Owen were both --

MR. RHOTEN: Yes.

MR. MASTERSON: And the chair members were there.

CHAIRMAN BURKHAMMER: Just a minute. Just a minute.

Bill, are you satisfied with that response?

MR. RHOTEN: Yes. I am quite clear now that in the future I can make recommendations.

(Laughter)

CHAIRMAN BURKHAMMER: Michael.

MR. BUCHET: Now, that we've got the process cleared up, I'm still confused. One of the things that the workgroup was asked to look at was the definition of residential construction because STD 3 needs a -- OSHA needs a working definition. The industry needs a working definition of residential construction.

We have passed the motion saying STD 3 alone. And now, we are trying to pass one saying don't define residential construction.

I fail to understand that.

MR. MASTERSON: You're trying to think both of them as 3.1. They are not both directed to 3.1.

3.1, the motion was to leave it as for the time being. Under the 3.1 directive, that is in place only until Subpart M is reopened and those issues are addressed.

The second motion is that as we go forward towards addressing Subpart M, that the recommendation of the workgroup was that we do not go to the trouble of defining residential construction because that was not relevant.

MR. BUCHET: But the unintended consequence of this motion is to leave OSHA without a working definition of 3.1 until it gets addresses as Subpart M gets worked on.

I think that's where I am. I have a problem with it.

They say we haven't got a useful definition. Please, give us one. And what I'm hearing in these parceled-out motions is leave well enough alone for the time being, work on an improvement in the future, but we have this gap in the middle where we still don't have a working definition of residential construction which is necessary for current outreach, current data collection, and current compliance.

MR. MASTERSON: What the workgroup is saying is the definition contained in 3.1 is not relevant to whether or not fall protection can be provided.

MR. SWANSON: Stew.

CHAIRMAN BURKHAMMER: The workgroup is a fall protection workgroup. It is not a residential construction workgroup.

As part of their charge for fall protection was, to the best of my ability remembering, to take a look at fall protection in all industries not just residential construction.

But we did not ask them nor do we expect them to define residential construction in this workgroup. That is not their charge.

Does that help your question?

MR. BUCHET: I believe, but then it is not necessarily their charge to recommend that OSHA doesn't define residential construction either.

You're saying it --

CHAIRMAN BURKHAMMER: That's what we're discussing now. That's what we're discussing.

MR. BUCHET: Because that doesn't seem to be in the purview of that committee either.

CHAIRMAN BURKHAMMER: It may not be, but I opened this for discussion.

MR. SMITH: Mr. Chairman, this is Owen.

CHAIRMAN BURKHAMMER: All right. Go ahead. Go ahead.

MR. SMITH: Well, you know, I'm kind of neutral on it, but apparently the homebuilders -- and I think it was an attempt to define residential.

But apparently, the homebuilders got together and they talked about it. And they said that 3.1 was working pretty good.

And they thought that it really should be addressed in M so that the 3.1 would no longer be needed.

And so we went through processes as I remember it of talking about the construction and how -- and whether or not it would work here or there.

And apparently, there is a paper that they felt that the construction in the light commercial and the housing was so much alike that it might be better to deal with that light portion of it in M. And then, you wouldn't need 3.1.

Now, I recognize at this point it kind of leaves OSHA in a spot because they want to know what you consider residential and when they can use the 3.1 and when it can't be used.

And so maybe the answer is to give it back to the group and tell them to come up with something for residential until this other time comes.

CHAIRMAN BURKHAMMER: Bruce.

MR. SWANSON: I'm afraid, Mike, that I might be responsible for having mislead you. I said or I meant to say that Subpart M does not have a definition of residential construction in it.

STD 3.1 does have a definition. 3.1, in it is a definition that OSHA has been using to determine when STD 3.1 will apply for enforcement purposes.

The biggest single difference to make this simple, the biggest single difference in my opinion between STD 3.1 and M is that STD 3.1 says we will assume the infeasibility that M says if you're an employer who doesn't want to provide conventional fall protection because it's not feasible, you want to provide another type of fall protection for safeguard for your employees, prove to us that one of the dimensional systems is not feasible.

STD 3.1 says you're in residential construction. You don't have to prove that to us. We will assume that.

So when we talk about rewriting STD 3.1 and narrowing the definition that is in there so that it covers perhaps fewer in the after situation, those people who are now going to be excluded from STD 3.1, those people that build shopping centers, for example, that have foyers that use the same materials and methods as residential construction are put in the uncomfortable position that the rest of the construction industry is in of having to prove infeasibility to us if they say it ain' t feasible to give conventional fall protection.

That really is what we're talking about here.

CHAIRMAN BURKHAMMER: Harry.

MR. PAYNE: Mr. Chairman, I've had a little bit of time to obtain the history of this. It seems to be a long struggle.

(Laughter)

MR. PAYNE: But my concern is more of that of one from a state's perspective we see fairly often.

And that is we see the role of OSHA is to protect workers from hazards not from a particular employer or a particular class of employers and that hazards run sometimes parallel with the type of work they do, but oftentimes not.

And we believe that OSHA should be about defining hazards wherever they are and whoever creates them and protecting the workers from those and not adopting a specific class or employers that somehow are children of a lesser group or greater God.

In that, it just seems like to me that my concern is that it doesn't matter who you are nailing boards for. It is about how high you are off the ground, how thick they are, and how practical it is to protect you in the environment that you work.

And anything from my perspective we can do to force that debate I think is time well spent.

CHAIRMAN BURKHAMMER: Thank you, Harry.

Seeing no further discussion --

(Laughter)

VOICE: Call for the question.

CHAIRMAN BURKHAMMER: One more time, Bob, please restate the motion.

MR. MASTERSON: I hope I don't change it this time. I would ask that the committee recommend to OSHA that OSHA not define residential construction and not make any attempt to define residential construction, but rather define those materials and processes that would create the situation where conventional fall protection is either not feasible or would create greater hazards.

VOICE: Any more questions?

CHAIRMAN BURKHAMMER: If -- and this is a clarification for the chair. If 5. -- if 3.1 was developed specifically for residential construction, in a sense it defines residential construction --

MR. MASTERSON: Inappropriately, yes.

CHAIRMAN BURKHAMMER: Well, that's another issue.

But if defines residential construction in its current state. And your first motion was not to change 3.1 which the committee -- agreed to

Your third motion in effect is altering the first motion because you're asking OSHA not to change or not to develop a terminology for residential construction which we've already in essence agreed to because it currently exists in 3.1. Is that correct?

MR. MASTERSON: No.

CHAIRMAN BURKHAMMER: No.

MR. MASTERSON: What the first was, that 3.1 --

CHAIRMAN BURKHAMMER: Just a minute. Bob explain to my why it isn't.

MR. MASTERSON: That's what I'm trying to do.

CHAIRMAN BURKHAMMER: Okay. Please.

MR. MASTERSON: STD 3.1 in the first motion was suggested that it be left the way it is. The provisions of 3.1 say that when Subpart M is reopened those issues in 3.1 will be addressed. And at that point, 3.1 goes away.

That's the first motion. Leave it as is until it's addressed in a proper fashion through the rulemaking process.

The third motion is that as we move forward, the workgroup that is recommending that OSHA not address residential construction or define residential construction in Subpart M.

CHAIRMAN BURKHAMMER: All right. We have a motion. You've heard it.

Do we have a second?

We had discussion. I'll take a vote on the motion. And I want it done by a show of hands.

How many are in favor of the motion as it now reads? Raise your right hand.

(A show of hands.)

CHAIRMAN BURKHAMMER: One, two, three, four.

How many are against?

(A show of hands.)

CHAIRMAN BURKHAMMER: One, two, three, four, five, six.

Motion denied.

Anything else, Bob, from your workgroup?

MR. MASTERSON: No.

CHAIRMAN BURKHAMMER: Thank you very much.

Musculoskeletal Disorders, Marie.

DR. SWEENEY: I'm not sure I want to get into this now.

(Laughter)

DR. SWEENEY: Did you want to precede my discussion?

CHAIRMAN BURKHAMMER: No, I wouldn't touch that for the world. Go ahead.

(Laughter)

 

ACCSH WORKGROUP REPORTS

Musculoskeletal Disorders

By Dr. Sweeney


DR. SWEENEY: Mr. Chairman and members of the committee, the Musculoskeletal Working Group actually met on December 15th as an interim meeting on a teleconference to discuss what we were going to be doing at our workgroup meeting because we had planned an entire day and wanted to be as efficient as possible in getting what we wanted done.

At that -- and that phone call, the Chair Mr. Burkhammer introduced and discussed a survey that he had prepared to be sent to the top 100 construction firms in the ENR.

That, I believe that survey was sent to all committee members.

Was it all ACCSH?

CHAIRMAN BURKHAMMER: Everybody on ACCSH should have gotten a copy of the survey. And the survey was sent to the ENR top 100 contractors.

DR. SWEENEY: Right. The survey was to respond to Jeffress' request to look at best practices regarding preventing musculoskeletal disorders.

In fact, if you need another copy, we will get one for you.

As of yesterday, we had 20 responses received. Now, 20 percent is actually not bad. It's not a bad response rate when you consider it was over Christmas, over Thanksgiving.

And so we are hoping to get more. Hopefully, we will get up to 30 percent which is what you would expect in a normal mail survey.

I am not going to go over the preliminary results. I think we will wait until that -- until the report.

Also was discussed was the charge that Mr. Jeffress had given the working group. And there was a fair amount of discussion.

And as a result of that, Sarah Shortall went back to Mr. Jeffress and asked for a clarification of the charge of the working group.

In an e-mail to the working group, Sarah described what Mr. Jeffress said in that conversation and that he was interested on having a report that dealt with information on injuries, and I would add injuries and illnesses related to musculoskeletal disorders, what jobs they are occurring in, and in his words, best practices end use in the construction industry.

He also wanted to include ergonomics' programs in that report.

So once we had that charge clarified, there were -- we met yesterday. There were approximately eight or 10 individuals at that meeting. We had a lively discussion on the relevance of doing a report on best practices.

It was the chair, me, my response was that we were going to go ahead with the report that dealt with the issue of best practices because in fact it could be a useful document to be used not only by OSHA, but by contractors and others.

In the discussion, we briefly touched on who the audience would be. And OSHA also said that they would disseminate this document, would print it and disseminate it if we would write it.

So we got down to the point where we said the audience would in fact be OSHA as well as contractors, as well as workers. So it's going to have to be in easy-to-read language.

We began our meeting by outlining the components of our document. The outline of it came down to this, that we are going to include information in plain language of what musculoskeletal disorders are, how they occur according to the best science that's out there, where they occur among construction workers and the trades and the crafts, there is a lot of data out there that we can use, and practical approaches that folks have used and can be applied to the construction industry to prevent musculoskeletal disorders.

We spent a considerable amount of time in the workgroup yesterday talking about the different parts of the body that are affected by musculoskeletal disorders, what the risk factors are and what may be used in the work place, what has been used, what has been recommended by engineers, by ergonomists, by workers themselves to reduce the musculoskeletal disorders or to prevent them.

Now, once we got those practical approaches, we also thought it might be useful for the practitioner, contractor, to be able to go out into their work site and to evaluate what risk factors are out on their site.

And we thought it might be useful to have a tear-out section that included a check list whereby they could go around on their work site and look for various things that may in fact be related to musculoskeletal disorders and as they are referred to in the front part of the book.

And then, hopefully, they will be able to use their own creative energy and apply the information that is in the front of the book to remedy situations that they might think cause or may be contributing to musculoskeletal disorders among their workers.

There is probably a committee of two, three or four that is going to be writing this manual. And hopefully, we will have a draft at the next ACCSH meeting.

CHAIRMAN BURKHAMMER: Thank you, Marie.

Any comments or questions on where MSD is going?

Felipe.

MR. DEVORA: What do we have in the way of medical or scientific analysis of the questions on the survey?

I mean, how -- what did we rely on, on just general practices in the industry? Or is this based on scientific analysis of some sort, the questions on the survey that you're working on?

CHAIRMAN BURKHAMMER: The survey was drafted based on my knowledge of what questions should be asked safety practitioners in the industry that they would know how to answer the questions based on what they're doing in the field.

I wanted, we wanted, the committee wanted replies back from practitioners who are out there doing the work.

MR. DEVORA: Sent from the industry?

CHAIRMAN BURKHAMMER: Yes.

MR. DEVORA: Okay.

CHAIRMAN BURKHAMMER: Thank you, Marie.

DR. SWEENEY: Okay.

CHAIRMAN BURKHAMMER: You're up again, Silica.

DR. SWEENEY: I'll go to the next folder here.

 

ACCSH WORKGROUP REPORTS

Silica

By Dr. Sweeney


DR. SWEENEY: The last meeting, Edie Nash from the Solicitor's Office asked that ACCSH provide them with some information so that they can be drafting their -- a proposed, I guess a change in their silica standard.

And during her presentation, she rattled off a number of questions to which I put to all of the ACCSH members.

Larry Edginton sent a letter to his constituents and colleagues. And I also sent it out to NIOSH as well.

Now, let me read the questions to you. And I've received two responses. I sent it either e-mail to the ACCSH Committee or as a fax. If you have not received it, please tell me. And I will make sure that you get another copy.

The -- what Edie sent to us, and let me just read it. It is very short. "As you know, OSHA is planning a complete rulemaking on a comprehensive silica standard. The proposal is scheduled for mid-2000 and the final in 2002. We are interested in any information concerning whether there needs to be earlier action concerning measuring and monitoring in construction operations or sectors where there is silica exposure."

Specifically, her questions are: "Are construction employers monitoring for silica now? What methods are they using? Are lab facilities available?"

And she has paren -- I mean, I believe they mean to analyze the samples.

"Do the nature of construction operations affect the feasibility of monitoring methods and analyses?"

Finally, "What changes would the industry recommend in the current methods to be incorporated in the final rule?" And I would assume that means monitoring as well as analysis.

If you have any information regarding this, please send it to me. You can e-mail it, fax it to me or send it by mail. And I will compile it and send it to the Solicitor's Office with Larry's concurrence.

CHAIRMAN BURKHAMMER: Just a minute.

DR. SWEENEY: Certainly.

CHAIRMAN BURKHAMMER: Discussion on Marie's Silica Workgroup report?

Larry.

MR. EDGINTON: Mr. Chairman, a couple of things. As Marie and I have struggled with trying to get a handle on this.

And it occurs to me that we have not yet reviewed and approved the minutes from the last meeting.

And one of the things that is --

CHAIRMAN BURKHAMMER: There is a reason for that.

MR. EDGINTON: Yes. Of some source of confusion to us is precisely what our charge was. I think we were of the opinion that we were posed -- a certain set of questions were posed by the Solicitor's Office that they had indicated an interest in receiving some input on and that Marie had been tasked, if you will, to try to develop a response to that, but that -- and I think with that understanding, on the basis of that understanding which we went forward.

The way the minutes are currently drafted, it would appear that in fact we have a silica in construction workgroup. And I'm not sure that that was ever our understanding with respect to the scope of our current work at least.

Secondly, another issue which has occurred to us as is often the case, although often after the fact, is the thought occurred to us that given that the request came from representatives of the Solicitor's Office rather than from representatives from Standards, we were wondering in fact what the true purpose of the request was.

That is are we trying to get at what current industry practices are with respect to future standard setting activity in this area?

Or are we trying to get at what current industry practices are with respect to OSHA's current compliance activities and --

CHAIRMAN BURKHAMMER: My interpretation is the first one.

MR. EDGINTON: And if it's the latter, that causes me some concern.

CHAIRMAN BURKHAMMER: It's not the latter.

MR. EDGINTON: And we've wanted to hear that answer.

MR. MASTERSON: If in fact, Stew, that it is the latter as you said --

CHAIRMAN BURKHAMMER: No, it's the first one.

MR. MASTERSON: The first one, why would it be coming from the Solicitor's Office instead of the Directorate or from OSHA?

CHAIRMAN BURKHAMMER: I think if I remember right Sarah -- and correct me if I'm wrong. But Sarah was the Solicitor's Office liaison for the silica. And she -- because of that, I think that's how the request came from Sarah.

MR. MASTERSON: And again, I'm having a hard time understanding why the Solicitor's Office would be involved at that point, asking for that information.

CHAIRMAN BURKHAMMER: I can find out. She's had to go. She will be back tomorrow. I'll ask tomorrow to make clear enough.

MR. MASTERSON: Okay.

CHAIRMAN BURKHAMMER: So remind me tomorrow to ask her.

MR. MASTERSON: Thank you.

CHAIRMAN BURKHAMMER: Okay. The same thing there. We will get a reading tomorrow.

DR. SWEENEY: Okay.

CHAIRMAN BURKHAMMER: Is that it? Okay.

DR. SWEENEY: Yes, Mr. Chairman.

CHAIRMAN BURKHAMMER: Okay. Thank you.

Cranes, Subpart N, Larry.

 

ACCSH WORKGROUP REPORTS

Cranes

By Mr. Edginton


MR. EDGINTON: Thank you, Mr. Chairman. Before I get into the meat of my report, so to speak, I would like to extend my personal thanks to the Chair for the efforts of himself and his office in helping us get the meeting off the ground.

We found ourselves short of both time and staff. And, Stew, you were able to come through. And I am very grateful to you.

CHAIRMAN BURKHAMMER: You can thank my Executive Assistant, Luna, in the back of the room. She is the one that does all the work.

MR. EDGINTON: And I have done that this morning. And I've let her know that I owe her one.

CHAIRMAN BURKHAMMER: Thank you.

MR. EDGINTON: Again, thanks for the help.

And again, thanks to the Construction Directorate. And they are doing some hustling on relatively short notice.

And thanks to Tony and thanks to support staff for doing some copying for us. It really helped make a big difference.

We had our first, I guess what I will characterize as an organizational meeting yesterday. And I was really heartened by the response that we got reaching out to universe which included representatives of manufacturers, users or contractors as I call them, contractor associations, and at least one other member of ACCSH, public member Jane Williams was there.

We had 16 or 17 people in attendance I believe at one time. And it was heartening to see that kind of response.

We began the meeting by discussing for participants and hopefully providing some clarification as to what the role and responsibility of ACCSH is and in the context of that what the role and responsibility of a workgroup is because we really thought that that was an important foundation to lay out to begin our work with.

The second thing that we did, and this sort of follows on a discussion that we had 10 or 15 minutes ago, is we spent time talking about how we were going to do business and by that how we were going to try to reach agreement on anything that we could recommend as a group, workgroup back to ACCSH.

And the understanding that was reached yesterday was that we would use the consensus process, that any recommendation that came back to this group would be a consensus.

And having said that, we also agreed that we recognized that it is entirely possible that there may be some areas on which we would be unable to reach a consensus. And those areas would be identified and brought back to ACCSH as well.

And that is sort of the framework and the groundwork that we laid in the way to do our business.

What we talked about yesterday and as we began our work, I think there was a collective belief of participants in the room. And I think we saw this just by virtue of the attendance.

Boy, at long last, we are trying to do something about this. This is long overdue. It is something well worthwhile to begin working on.

Considerable discussion was spent both in terms of what we need to be doing with the subpart and perhaps other activities that we might recommend to OSHA away from standard or regulatory activity.

We spent some amount of time talking about the regulatory process. And we are going to be asking to have OSHA staff as may be appropriate come in and speak to the regulatory process.

A particular concern that was expressed in the meeting, and I rather suspect we have this with other standards as well which reference industry consensus standards, in our case ANSI B30.

And the ongoing problem that we have in terms of if we're talking ANSI B30.5 1994, if we reference that today as a practical matter, one, it is already old because there were addendums to it.

But then, two, and a more particular matter is each and every time that an industry standard is modified or an industry-based consensus standard is modified, it puts the agency in the position of having to engage in future, further regulatory activity.

And one of the things we were interested in exploring, and we don't know the answer to this, is whether or not there is some way that we could make references to industry consensus standards evergreen, by that they would be everlasting and we wouldn't have to go back to rulemaking each and every time there was a change in an industry consensus standard.

And we do not know that that is doable, but that is something we said we want the answer to.

Another area that we talked about was aside from the regulatory process is that there was a strong feeling I think among some members of our workgroup that some of the problem in the field with respect to cranes and accidents and OSHA's ability to respond to that has nothing to do with the adequacy of the standard, but rather has to do with its understanding, both among users and in particular among OSHA compliance officers.

And perhaps, there is a need for further training both with respect to compliance officer activity and perhaps even for individuals in the consultation service.

And maybe, that is something that we also want to be talking about as a part of our workgroup. We had heard from Tony Brown that apparently there is a special emphasis program in Region I at the moment.

We are very interested in hearing more about that on subsequent dates to see how that is working on.

What we did is we identified roughly 10 or 12 areas yesterday within this subpart or subject matter appropriate to the subpart that we thought we might want to be talking about.

And within the next week to 10 days, I hope what we will be doing is getting those areas out to the workgroup members and others who are interested and were not able to make it.

And we are asking them, we will be asking people to take a look at those areas to see if we have hit everything that we need to hit there.

If there are other subjects that we need to address, we will have room on the forum to add those.

And then, we are going to be asking our respondents, so to speak, to then to begin to rank those.

And we are asking them to rank three ways: one, which of those areas they think are most important, which of those areas from their own personal experience or organizational experience seem to be those areas that represent the greatest hazards where we are seeing injury and death and then lastly rank them on the basis of the ease of implementation.

And the reason that we are talking about ease of implementation, it has struck that perhaps a good way to start sorting out our work is setting some things that could be short-term objectives and some that are much longer term goals.

And if we can identify things in a good world that are perhaps very important, are real hazards, and are easily implemented, then let's focus on those first and try to move those forward first and then get onto the tough things as our time allows.

Again, we hope to get that back out to our workgroup within the next 10 days. It is our intention to schedule another meeting probably in conjunction with the next ACCSH meeting which I would guess would be probably some time around April.

One last matter that we also want to seek some clarification from the Solicitor's Office on is with respect to any possibilities of expedited rulemaking with respect to only opening up a subpart with respect to, as I talked about before, a change in an industry consensus standard which places no additional burden or obligation on an employer.

Do we have to go through a full-blown rulemaking process with that? Or is there something that we can do to expedite that there?

So that is also going to be another other that we want to talk about.

CHAIRMAN BURKHAMMER: There are no shortcuts in OSHA. So the answer is, yes, it has to go through the --

MR. MASTERSON: I thought OSHA had a process. I thought OSHA had a process where if there was a serious enough situation, call it an emergency standard could be issued.

CHAIRMAN BURKHAMMER: Bob.

MR. BIERSNER: That is the imminent danger provision of the Act. What you have -- you can put out a temporary -- it essentially amounts to a temporary rule, but then later you have to go through subsequent regular rulemaking.

It is not used much because it has difficulty in the courts. And to my knowledge, it has not been used for at least 20 years.

It is looked upon with disfavor, but it has to be an imminent danger situation or OSHA would find that it proposes an immediate risk of death or serious injury to employees.

CHAIRMAN BURKHAMMER: Thank you.

For clarification, Larry, in the beginning when you were talking about your workgroup, you used the term "consensus". Were you referring to consensus by the entire workgroup? Or a consensus by the ACCSH members of the workgroup?

MR. EDGINTON: No, what we were talking about is the workgroup in which a consensus that would be reviewed by the ACCSH members.

CHAIRMAN BURKHAMMER: Okay.

MR. EDGINTON: Workgroup members would take that under advisement.

CHAIRMAN BURKHAMMER: Okay. Very good. Thank you.

It is now 2:30. If you'll look on your agenda, we're at the 1:45 portion of the agenda. We are running about 45 minutes behind.

What I would recommend we do is go through Ellen and Arthur's reports, discussions and then take a look at our time frame and decide what we are going to do about the break.

Any objections?

(No response.)

CHAIRMAN BURKHAMMER: Ellen.

 

SPECIAL PRESENTATIONS

PATH Partnership

By Ms. Roznowski


MS. ROZNOWSKI: I am Ellen Roznowski. I am an industrial hygienist with the Directorate of Construction, the Office of Construction Services.

CHAIRMAN BURKHAMMER: Could you speak up a little bit?

MS. ROZNOWSKI: Okay. Maybe, the mike should be closer.

For a number of years now, I have been participating on a committee. It is called the Subcommittee on Construction and Building which operates under the National Science and Technology Council. That council is a cabinet-level group that sets federal research and technology policy.

And the Subcommittee on Construction and Building which NIOSH and OSHA both participate on along with a number other agencies, a few years set seven construction goals for the industry.

And one of these seven goals is a 50 percent reduction in construction work illnesses and injuries.

There is also a goal of a 30 percent -- 50 percent fewer occupant-related illnesses and injuries.

So in terms of the national construction goal, there is great interest in promoting a research agenda in safety and health and also developing appropriate and new technologies to achieve these goals.

Some of the specific strategies that were identified by the subcommittee for meeting the goal are to identify construction practices of those companies with low injury records and incorporate and highlight these practices as building demonstration projects and plan for their general implementation throughout the industry.

The committee also is promoting projects that identify advanced state-of-the-art safe and cost effective construction practices and also to demonstrate and evaluate these practices, and lastly, to implement new research-based standards for construction practices.

The C&B, the Construction Building Subcommittee, has been working with construction stakeholders in fostering public-private partnerships in each of the major construction sectors.

And that would be homebuilding, commercial, infrastructure, and I forget the last. Excuse me. I did not have them written down.

The first to be implemented though is the residential partnership which is the partnership for Advancing Technology in Housing, also known as PATH.

The PATH Partnership was formerly introduced by President Clinton on May 4th, 1998 at an affordable housing demonstration site in Los Angeles.

Congress appropriated $10 million on the HUD budget in FY 1999 for PATH. And its primary role will be to act as a catalyst, facilitator, and remover of barriers for the construction industry while the industry itself develops and deploys technology for what we call the next generation of housing.

During the next decade using voluntary approaches, this public-private partnership aims to reduce by 50 percent the time needed to move quality technologies to the market.

This is to make the industry more competitive. There is a perception that there is a lag in the industry with regard to research and implementing new technologies effectively.

There are described in line with the national construction goals several goals for the PATH Partnership.

And once again, one is directed at safety and health reduce by at least 20 percent residential construction, work illnesses and injuries.

To accelerate the adoption of promising technologies that are directed toward the achievement of these goals, PATH will identify, evaluate, and place in a data base emerging technologies.

The evaluation criteria for these new technologies will include job site safety impact and also the impact on indoor air quality.

PATH is also intending to foster cooperative housing research among partners in government, private industry, academia, and private laboratories.

There are other specific approaches which are being integrated into a draft operating plan which PATH is going to be delivering to Congress as part of its appropriations mandate.

Several of these approaches were actually lifted from OSHA's strategic plan because it's important that there is coherence between what the federal government is doing and trying to achieve and what the private sector is directed towards.

So I can highlight a few of these for you. And they will sound very familiar, especially in terms of Mr. Jeffress' comment this morning:

- Develop partnerships and other cooperative efforts with the PATH partners to identify and address significant work place hazards, emphasizing those targeted by OSHA's performance goals;

- Deliver an appropriate mix of interventions and compliance assistance tools to assist homebuilders in complying with OSHA's safety regulations; and

- Develop a standardized, valid safety and health program evaluation measurement tool that can be used to assess the qualify of safety and health programs and user results from the applications of these tools to assist homebuilders in implementing or improving their own health and safety programs.

Also, there is going to be a large effort directed towards the collection and dissemination of training materials, education materials, and work practices, best practices type materials as already has been discussed this morning.

Industry participation, of course, is encouraged. It is a public-private partnership. You will notice that the National Association of Homebuilders which logically is a very major partner in this initiative has in face put out this little brochure which has a little tear off for how to become a PATH partner.

Also, at the NAHB conference which took place a few weeks ago in Dallas, there was a PATH booth. And this booth will also be set up at other construction and industry conferences throughout the nation.

This is actually a long-term partnership. The goals are directed to accomplishment by the year 2010.

And certainly, the achievement of a 20 percent reduction in construction illnesses and injuries in that time is a doable goal.

The committee is -- I'm sorry, not the committee. The PATH Partnership is also very concerned about fatalities, even though this is not separately articulated in the goal.

And so they are going to be looking at once again cooperative efforts either in terms of interventions and research that will reduce fatalities in the construction industry.

So I would urge you to take a look at these materials. There is also a PATH web site at www.pathnet.org. It is listed in this blue brochure.

That is linked in to all the federal agency partners so that you can in fact get to the OSHA web site through that, as well as the NIOSH web site. We made sure that both of those links were there.

And in addition, much of the material is going to be distributed as you can see through the NAHB home base program for communications.

So once again, this may be something for your workgroups to consider as you come up with best practices or other innovations.

If you have ideas for research, once again, this is an area or a tool or a mechanism that the federal government is using in order to achieve goals. And input is what they need at this point.

The industry meets with the program people of PATH three times a year in what is called the PATH Coordinating Council. And you can get more information on that by contacting the PATH office.

In addition, there is a federal agency working group which is staff people from the participating agencies. That meets several times a year. And the Directorate of Construction is represented on that group.

So there are several ways in which to connect and communicate with this interagency effort.

And it is hoped it is going to be a moving force in improving the safety and health conditions on the job site and do it with the kind of full coordination of the federal agencies that are involved in this area.

CHAIRMAN BURKHAMMER: Thank you. Well, Bob, I'm really excited to get all of this stuff that it says here for 20 percent less when you build my retirement.

(Laughter)

CHAIRMAN BURKHAMMER: I'm going to bring this with me.

Larry.

Don't go away.

MR. EDGINTON: Maybe just a question for Ellen before she gets away. As I looked at this, a couple of things caught my eye, one, the 2010 goal of reducing residential construction work illnesses and injuries by 20 percent. It sounds great.

Then, I turned it over. And I looked at participating organizations which were all segments or many segments of the federal government and state and local officials and private sector partners, including homebuilders and manufacturers, insurers, and finance companies, etcetera.

But what I didn't see mentioned here was any involvement of construction workers themselves. And I'm wondering, you know, to somebody like me, that's conspicuous by its absence.

MS. ROZNOWSKI: Yes.

MR. EDGINTON: Is there a perceived direct role for construction workers in this or their representatives?

MS. ROZNOWSKI: Actually, yes.

MR. EDGINTON: Or is this something that we are going to do two people or four people?

MS. ROZNOWSKI: Actually, one of my roles in the federal agency working group and on the C&B throughout these years has been to raise my hand at appropriate times.

And you can see Marie nodding because she's been to these meetings.

And say what about labor involvement? And we have actually created a better awareness of the role that labor plays in the construction both with regard to many of the federal agencies involved in the C&B and also in the PATH initiative.

When the Coordinating Council met in November for the first time, we made sure that the Center to Protect Workers' Rights, Director Bob Pleasure and also Mr. Light, Dudley Light, who is a vice president with the Carpenters, were on the list of invitees. And they both participated.

And both of those gentlemen will be participating in some of the workgroups that are going to be spun off from that Coordinating Council.

MR. EDGINTON: Thank you.

MS. ROZNOWSKI: Okay. Yes, I agree. And I think that everyone around the table should consider participating, but particularly the building and construction trades because this participation needs to be strengthened.

CHAIRMAN BURKHAMMER: Bill.

MR. RHOTEN: Yes, I just have a comment.

MS. ROZNOWSKI: Sure.

MR. RHOTEN: Of course, I appreciate your presentation and I'm glad that we are involved in this from the safety and health aspect.

Personally, I get suspect when the homebuilder associations that have new innovations do innovation things they want to do besides to tackle things, such as outdated building codes.

Sometimes, I suspect that their reason for tackling these out dating building codes is to put those studs four feet apart instead of closer together and also flexible gas piping. That's a new innovation.

I can tell you from my personal experiences in California, there is tons and tons of lawsuits over plastic pipe which is one of the homebuilding materials that was going to be produced to keep the price of the housing down and the worker wouldn't hurt his back by carrying that heavy cast iron.

And so you're saying I appreciate your remarks. I would just like to say that I am suspect of any brochure that starts out by going after building codes and then professes flexible gas piping.

I could imagine that they have other things on their agenda that maybe some people should be in the room when they make decisions on what part of the building codes they want to enact.

That's all my comments.

MS. ROZNOWSKI: I think that the C&B, Construction and Building Subcommittee, actually has a project on streamlining the building codes which is being worked on with Nexpits.

MR. RHOTEN: Well, but I --

MS. ROZNOWSKI: And I think that the intent there is really to be directed towards a reduction in delivery time in the sense that there is a perception on the part of the industry that codes in fact --

MR. RHOTEN: Well, I --

MS. ROZNOWSKI: -- can be a barrier to innovation.

MR. RHOTEN: I understand that codes are barriers to contractors. They are basically minimum standards.

I'm a little familiar with some funding codes. And they are under continuous attack because they used to call for things like vents.

And then, they came up with new systems that were innovative. And we could get rid of those vents. They cost too much. And then, the system don't work right.

And I can tell you that happens and it is happening all the time. And codes are under continuous attack. And I'm just suspect of organizations that attack codes under the guise that they are protecting the consumer. Okay. And that's my comments.

That aside, I appreciate your involvement in the safety and health part of it.

CHAIRMAN BURKHAMMER: Thank you, Ellen. I appreciate it.

DR. SWEENEY: Mr. Chair.

CHAIRMAN BURKHAMMER: Marie.

DR. SWEENEY: Just one further comment. Part of the impetus for doing PATH is also thinking about -- and there is an analogous group thinking about the development or redevelopment of the infrastructure throughout the United States in the next 50 years.

And there is another analogous group. This is for housing. There is another one on technology for transportation.

And that may in fact, coming out of the same C&B committee may in fact address Mr. Cloutier's -- some of Mr. Cloutier's issues about highway reconstruction because part of the infrastructure development includes highways.

And perhaps, we can get Ellen back here at the next time to talk about this, the highway construction redevelopment.

MR. BUCHET: Stew.

CHAIRMAN BURKHAMMER: Michael.

MR. BUCHET: Ellen, I notice that this says quite a bit about recycling. Was any consideration given to recycling of housing itself?

And what do you do when a tract house development is past its useful life?

What do we do with the materials because wrecking and demolition is something that we have to do more and more of in this country? If there is asbestos in old buildings, you have to get rid of it.

Are we -- are these techniques looking at building houses that will be easier to remove and --

MS. ROZNOWSKI: Yes, EPA say -- is the major federal partner which has responsibility for implementing that goal.

MR. BUCHET: Yes.

MS. ROZNOWSKI: And I did not share it with you because once again, it is a draft document. But the same way I told you what kind of the strategies were for occupational safety and health, there is a listing of strategies for each of the major goals, which one of which includes the recycling of materials.

So there is basically a blueprint that talks about how the agency's research and innovation programs are going to be directed towards achieving that goal.

MR. BUCHET: Is EPA looking -- or a part EPA's analysis going to include the effect of recycling these new materials on the workers doing the recycling?

MS. ROZNOWSKI: Yes. We, in fact once again, Marie and I keep raising your hand. And, you know, because we are there and sitting at the table and attending to this and because if you will note -- yes, I guess we are there.

When they talk about the evaluation criteria for new technologies, health and safety, job site safety is specifically mentioned as one of those evaluation criteria.

So there will be care and attention paid to that aspect. And let's hope it will be enough.

MR. BUCHET: Thank you.

CHAIRMAN BURKHAMMER: Bob.

MR. MASTERSON: With the fact that I'm in the homebuilding industry, I think the focus on improving the technology is absolutely great.

And, of course, I support it and so did my company.

The question that I've got, and it may seem somewhat naive, considering the restraints OSHA currently has on its budget, why are they diverting resources to technology development and not focusing on safety?

OSHA's charge is safety, not advancing technology in home building.

MS. ROZNOWSKI: Well, the $10 million that I mentioned was appropriated actually was HUD appropriations.

So, you know, HUD in fact may at this point be complaining about the fact that some of its money is being diverted to address safety and health.

I think that with regard to the way this is going to operate, OSHA is such a small part of the federal budget, if you look at it this way.

This is a way to leverage some of the activities of the larger agencies, such as DOE and EPA and HUD to look at safety and health which they never have, in my opinion at least, done in a very integrated fashion.

So the fact that this one of the seven national construction goals and the fact that this is a major goal of this new technology initiative means that these agencies are going -- who have been given safety and health short trips in many cases, are going to have to start paying attention to it.

And as I said, it will leverage some of these resources to achieve this goal which is, of course, our goal of 50 percent -- a 20 percent reduction in illness and injuries.

That doesn't answer your question, but basically I don't see it as a loss for OSHA or our resources. I see it as a gain, a potential gain.

MR. MASTERSON: I guess what I mean is in the scope of the Act, I don't see where Congress intended for OSHA to be involved in new home construction as far as technological developments.

There is some goals in here that certainly address safety and health. And those issues need to be addressed.

But I'm looking at the PATH partners and the ones that are publicly acknowledged. And all I see is government agencies.

MS. ROZNOWSKI: Yes.

MR. MASTERSON: I do -- did note that NHB is involved or at least the research group, but not as partner.

MR. SWANSON: There is -- a couple of comments, Bob.

MR. MASTERSON: Sure. Thank you.

MR. SWANSON: One, you know, honestly, the way we got involved in the beginning, if you look at this blue brochure and you can see a couple of quotes here in tan-colored ink from folks that think this is a good idea. Some guy named Clinton and some guy named Gore. And that's how we get involved in it.

But I first started going to these meetings, represented OSHA and maybe some three years ago, three and a half years ago, something like that.

And they had been -- at least the antecedent organization to this had been up and going for awhile. And they were busy talking about technological advances in residential homebuilding.

And there was no absolutely no mention, Larry, of worker safety. That issue had not been at the table before our presence.

So we are not interested in sharing any technology on how to build cheaper blocks or how to put studs up chapter or even use something other than studding.

But it is a multi-talented group that comes to these meetings. And our only interest is worker safety.

And the only reason we are at that table -- and by we I really mean Ellen for the last couple of years. The reason that Ellen is at that table is only for the issue of worker safety, fully consistent with our charge.

MR. RHOTEN: I just would like to qualify my remarks. I agree that you should be at the table. And I am very happy you are there.

MR. SWANSON: Yes.

MR. RHOTEN: So the remarks I had were outside of you. They were aimed at other little things in the pamphlet that I can help respond to some days.

(Laughter)

MS. ROZNOWSKI: Right. Yes.

CHAIRMAN BURKHAMMER: Thank you, Ellen.

MR. MASTERSON: Stew, one more comment.

CHAIRMAN BURKHAMMER: One more comment, Bob.

MR. MASTERSON: My comment was not to criticize the fact that OSHA was involved, just to ensure that the purpose for OSHA's involvement was directed at the right place. Funds are too limited to be spending in other areas.

CHAIRMAN BURKHAMMER: Are there any other questions?

(No response.)

CHAIRMAN BURKHAMMER: Arthur has been has been patiently waiting and patiently waiting.

MR. DECOURSEY: Mr. Chairman, I have no objection having participated in so many conferences in the past few weeks knowing how important it is on the agenda that we break.

And if the group would like to take a break, I can come back and to it another time. I have no problem with that at all. It is up to you.

CHAIRMAN BURKHAMMER: Go ahead.

MR. MASTERSON: Before we take the break, I'm trying to --

VOICE: Have we answered the question whether he's coming back?

MR. MASTERSON: Before we take a break, I would like to pass out to the ACCSH a study that has just been finalized at the University of West Virginia.

It was commissioned by the National Homebuilders. And it is addressing fatalities in residential construction. This is the first of two studies.

And I am not going to pretend to have totally digested this report, but it is a good report. I think it is good food for thought in conversations in the future.

CHAIRMAN BURKHAMMER: All right. Please pass out your handout.

It's five of three. We are at the 2:00 o'clock portion of our agenda. If Arthur doesn't mind and we're not imposing too much on him, I will -- I know how important that break means. A 10-minute break, be back at five after three. Thank you.

(Whereupon, at 2:55 p.m., the meeting was recessed.)

 

AFTER RECESS

(3:10 p.m.)

CHAIRMAN BURKHAMMER: Our next presenter to the committee is on Small Business Partnership, Arthur DeCoursey.

Arthur, thank you for your patience.

MR. DECOURSEY: No problem.

CHAIRMAN BURKHAMMER: And we appreciate you sitting there, clicking your heels, waiting for us.

MR. DECOURSEY: No problem at all. I have to be in the building anyway. So they are going to be looking for me.

(Laughter)

MR. DECOURSEY: It's easier to find me up here.

 

SPECIAL PRESENTATIONS

Small Business Partnership

By Mr. DeCoursey


MR. DECOURSEY: First of all, let me thank you for this opportunity. I happen to know a couple of members of the board, but --

CHAIRMAN BURKHAMMER: The sound.

MR. DECOURSEY: Again, let me take this opportunity to say thank you, first of all, for inviting me here this morning -- and this afternoon I guess it is now.

But as I say, I know a couple of members of the board. And I have not had the pleasure of meeting all of you, but hopefully will over the next period of time in the next few months.

Just to give you a little bit of background why I am here, what I do, about two years ago, a little over two years ago, the Joe Dear, the Assistant Secretary at that time, approached me about taking a position, a new position he was creating in OSHA as a Small Business Liaison.

At that particular time, I was working for the Small Business Administration here in Washington, having been Director of Governmental Affairs for them and Director of the National Advisory Board.

And to be very honest with you, when he asked me, I actually laughed at him. And I said, are you out of mind? You want me to go, work for OSHA. Small business hates OSHA.

And I was very reluctant to be very perfectly honest. I asked him if he was going to give me a bullet-proof vest before I started.

But in two years, a lot of things have changed in particular in how OSHA is perceived by small businesses, granted there are still many problems out there to be solved in working out a relationship with small business, but I think we have come a long way in the past two years.

I have spent most of the past two years trying to develop a relationship, a dialogue with small business associations, small businesses in particular, chambers of commerce, etcetera.

And basically, most of my time is spent on the road. It is a rare occasion that I happen to be here today. I am just back from Kansas City yesterday.

And what we are trying to do is to get the image out there that OSHA has changed in terms of how we work with small businesses.

We have been perceived by many to be thugs, whatever. I have heard all of the horror stories out there on the road for the past two years.

But when you actually have an opportunity to sit down with small businesses and talk to them on a one-to-one basis, I don't think there is any small business out there in the country who does not want a safe work place. And I think they are willing to do whatever they have to do.

Unfortunately, small businesses had to deal not only with OSHA but IRS, EPA or whatever the case may be. And they get indulged with all kinds of reports every other day of the week.

So anything that we can do to make that job easier for them, they are more than willing to work with us.

I think one of the things I passed out to you is a brochure that I developed last year that we distributed right around the last spring for the first time.

And it is just simple questions for small businesses to be able to look in light of what we have here of what they have to do to keep their work place safe.

Most of the distribution of these particular brochures was done through the Small Business Development Centers which are run by the SBA across the country where a small business person can walk in, find out what they have to do to set up a business, and so forth, and get regulations regarding government.

This brochure has been well received. And we actually have people actually calling looking for copies now. So I think we have come a long way.

There is still a fear factor out there. There will always be a fear factor I am sure in terms of OSHA.

And I think in your particular case in your industry, construction, I mean, there are a lot of small business construction companies out there.

And I know that we have been successful in the Home -- I believe it is called the Home -- the program out of Colorado.

They developed a partnership out there with our regional office to work with local construction companies and homebuilders.

And I think we have to do more of that. And I think I have seen more of that on a regional basis and an individual basis.

One of the things, the most important thing that I wanted to talk to you about and it will only take a few minutes today to talk about it is as a result of all of this, I had proposed to Charles that we try to put together some sort of a forum where we could demonstrate to small businesses exactly the number of services that we have available to them that they are not even aware of.

There are many small businesses that are not aware of the consultation program, the DPP Program, just to name a few.

We have also developed in the last year some great advisory programs that they can pick up on the Net.

We have the hazardous advisory now. We have a law advisory. We have all kinds of advisors that nobody is aware of.

So I guess one of the problems that we are not doing is getting the message out. And how do we do that?

I proposed to Charles that we conduct a forum here in Washington where we invite all of the small business associations, associations that work with small businesses to come in for half a morning or a morning and let us be able to tell them exactly what we have available to them and their members.

As a result of that, and when you develop things sometimes it develops legs. And it grows a little. So this is what has happened to this.

But on March the 4th here in the auditorium downstairs at 8:30 in the morning, we are going to begin a program where Charles will address the group and talk about some of the small business partnerships we have developed, the ones we would like to develop.

And then, from there, we are going to open it up to a panel discussion that will consist of Rich Fairfax with our Compliance Department, Marthe Kent with our safety and health standards, Bruce in construction.

There will be four members on the panel. And will open it up to questions as to how we at OSHA can work better with small businesses, what can we provide to them, in addition to what we are already providing and also hopefully fill them in on other services that are available that they do not know about it.

I would hope that your group will be well represented. You all will be getting invitations, by the way.

And I know that everyone's schedule is kind of crazy, but if at all, if you can send someone if you cannot be there yourself. I think it will be worthwhile endeavor for you to try to be there. It is March the 4th and it will be at 8:30.

We already have all your names and addresses provided by Bruce's office, but I just wanted to bring it up to your attention today.

And I would encourage you that even if in fact you have members of your group that you represent who are not on a particular mailing list, they are invited. All they have to do is call and let us know they would like to be there. And we will make sure they have space for them.

This is going to be the first of two steps actually. At this particular meeting, we are going to provide what we call a tool kit, a pamphlet or booklet, basically a folder that will contain all of the information that we have available that can help small businesses.

What we intend to do from this point on is that we are working very closely with the Small Business Administration.

And every year, SBA holds what they call their Small Business Week. They invite small businesses from all over the country.

And they come in and they spend a week here getting updated from various regulatory agencies and so forth.

OSHA has never participated in that. We will be participating this year. And we will be making a presentation during their Small Business Week to try again to provide them with the information that they need to make their work place safe.

We have also in the past year attended for the first time ever a Small Business Development Center Conference a few months ago.

And again, I explained to you what those were. And I think that that was a big step for us because actually not only did we get OSHA, I was able to convince the Department of Labor to put a booth there for wage and hour and so forth.

So we are able to try to get that message out there. And I think we are doing everything we can.

And one last thing I just want to mention is that I do not know how many people in this room are aware, if you are looking at that brochure, when you open it up inside, the flaps on either side is a description about what SBREFA is.

And I am not sure how many people in this room even know what SBREFA is. Most of you I would assume do.

But SBREFA was enacted by Congress back in 1996. And basically, what it is is another avenue for small businesses that they did not have before to file complaints or grievance cases against an agency.

And there is so many advantages. There is, first of all, one of the big advantages that they have never had before is they can recoup any court costs if in fact they win the case which they never could do before, but it also gives them an opportunity to file a complaint against the agencies if they think that they were unjustly treated.

I can honestly say, and in fact the report just came out today for last year's SBREFA panel meetings that we only had two complaints. And in both cases the complaints were we were vindicated in both complaints. So we did not lose either one of them. And I am are very proud of that.

But that is a whole new process that people are not aware of. And hopefully, it is another avenue.

It does not preclude them once they are cited and having to pay the fine or stay within the boundaries of the number of days they have to appeal, etcetera. This is another avenue.

In fact, both cases that were brought to us were cases that were years ago.

So again, this is just something new. And if you need more information on that, I am sure you can get through that 1-800 number, I would encourage you please to at any time that if you have a small business that is looking for information.

And again one of the things that I have talked about when I am on the road is that normally small businesses will not pick up the phone and call the OSHA office because they are afraid of retaliation. There is something, a fear that exists not only with OSHA, with IRS, EPA, etcetera.

We have seen a lot of that change in the last year. And I think it is going to take a little more time to change some of our inspectors in the field on how they handle small businesses.

But we have new penalty reduction for small businesses right now in place. A small business penalty can be reduced by 95 percent. So in fact in some cases, it can just be completely waived. So I think we have made a lot of strides.

And I just wanted to update you on that, but more importantly to make sure that you are aware of the conference on the 4th of March and if it is at all possible, you will try to be there.

And again, I know that you are running behind schedule. So I am not going to take a lot of your time. But if you have any questions at all, I would be more than happy to try to answer them for you.

CHAIRMAN BURKHAMMER: Thank you, Arthur. I appreciate it.

MR. DECOURSEY: Yes.

CHAIRMAN BURKHAMMER: Jane.

MS. WILLIAMS: Arthur, when I look through this brochure, I am very impressed with it, I might add. Under training and education, you list various avenues that are available.

The problem I seem to have with small businesses is the delivery of those materials. They don't know how to take what you offer and then get it to their people with refinement that makes it work specifically to them.

Are you pursuing anything in that line?

MR. DECOURSEY: Well, you know, that might even fall into another category. I think you are all familiar that the President signed an initiative back a little while ago, plain language.

MS. WILLIAMS: Yes.

MR. DECOURSEY: And any document actually that we produce, any correspondence that we produce after October 1st of this year has to be done in plain language, written plain language. And any new standards coming out will all have to be in plain language.

And I think the same thing applies here. There is some good material out there, but again the small business person does not always have the time to sit down and read all these things or to sit down and go through the Internet.

And believe it or not, there are still many out there who are not connected with computers.

So I think we have to do -- we are talking to our training institute in terms of how we can develop and our public affairs office, how we can develop simple, easily understandable steps.

And I think that was the program that was done in Colorado, the Home Safe Program where they have a simple little booklet with pictures, make it as simple as possible.

I think if you come to the meeting on the 4th, you are going to see a demonstration, a computer demonstration.

I am just going to use for an example logging. There are a lot of small business loggers out there across the country that don't have a lot of time on their hands to read all these regulations.

When you see this demonstration, you are going to find how it was done. It is very -- it has some humor to it. It's got some cartoons. It's got pictures. And it shows people actually how to do different things very simply.

And I think that is our goal is to try to make all the information we put out there now much more simple and easy to understand.

CHAIRMAN BURKHAMMER: This committee was privy to seeing that presentation with the logger. And you click on at different parts. And it shows the PB and all that. We were all impressed at that time.

MR. DECOURSEY: That is just the beginning. I think there are going to be many other standards they are going to apply that to.

CHAIRMAN BURKHAMMER: Good. And with the fellow who made the presentation, we told him we were going to -- we wanted to work with him to develop a construction, a simplified little construction guide.

MR. DECOURSEY: Simplified, that's the word.

CHAIRMAN BURKHAMMER: Yes.

MR. DECOURSEY: And being a former small business owner myself, I know. You don't have time.

CHAIRMAN BURKHAMMER: That's right.

MR. DECOURSEY: Time of the essence I think. And I think as I said earlier, most small businesses that I have come across are family owned, family operated.

And the last thing they want is to have someone in their family injured, you know, aside from the fact that productivity or whatever. They do not want their family members injured. And they will do whatever they have to within reason to work with us as long as we are willing to work with them.

CHAIRMAN BURKHAMMER: Bill.

MR. RHOTEN: Yes. Just one question, please. In regards to recovering the attorney fees --

MR. DECOURSEY: Yes.

MR. RHOTEN: What is considered a small business, what size?

MR. DECOURSEY: All right. Having spent three years at SBA, that was a question that was raised on a daily basis.

MR. RHOTEN: Oh.

MR. DECOURSEY: And I do not think that there is a real clear answer. It depends upon the situation according to the SBA, at least to the attorneys over there.

And if you are asking the attorney a question, you are not always going to get a straight answer I have found.

But SBA will simply tell you that they look at anywhere from 500 and under. An example of that, we, when we did our first outreach meetings which was the first time we ever did an outreach for a proposed standard prior to actually, you know, going to the Federal Register last year, we did four regional meetings across the country.

We worked with SBA. I set up meetings with SBA where we invited small business people in to give their input to the proposed safety and health standard before it was even printed.

When we did that, we decided how are we going to do this. What size company are we talking about?

My thought was for OSHA's purposes -- we were inviting 20. They were inviting 20. My thought was we focused on business that had 25 and under. I mean, that is what we were trying to get. We were trying to get the real small businesses.

SBA, on the other hand, focused on 500.

MR. RHOTEN: It would seem to me like if you focused on 500 and under, you've actually covered about 95 percent of the construction industry.

MR. DECOURSEY: That's right. And the other problem with that that came up as a result of these meetings, to be honest with you, is when it came to an issue as to whether in fact a small business of 25 and under should be excluded as part of the safety and health standard, it would not be required under the new safety and health standard, on the other side of the table, you had the companies that had 200, 300. They said, oh, no, we don't want them excluded. If we're going to be a part of it, they have to be a part of it. So I mean, that is the problem you run into.

But there is no -- again, it depends upon the industry. It depends upon different types of people that you asked at the SBA. You will not get a real answer of what a small business is of what your interpretation is and mine perhaps.

CHAIRMAN BURKHAMMER: All right. Thank you.

MR. DECOURSEY: Any other questions?

(No response.)

CHAIRMAN BURKHAMMER: All right. Thank you, Mr. DeCoursey.

MR. DECOURSEY: Again, enjoy the rest of your meeting.

CHAIRMAN BURKHAMMER: Thank you.

MR. DECOURSEY: And I hope I will see you on the 4th. Thank you.

CHAIRMAN BURKHAMMER: The members of the committee that can remember back, Elise Handelman and some of her people came in and made a presentation on the heat stress cards. And we all saw the little cards that they had developed. And we were just overwhelmed and thought they were the greatest thing since sliced bread.

And we talked to her about cold and cold stress cards. So hopefully, she is back today to show us her newly-developed cold stress card.

MS. HANDELMAN: We're back.

(Laughter)

 

SPECIAL PRESENTATIONS

Cold Stress Card

By Ms. Handelman


MS. HANDELMAN: This is the third time that I've been with your committee. And this is the third time that I've been the last one on the agenda. I am either doing something very right or very wrong. I am not sure which.

Anyway, my name is Elise Handleman. I am the Director of the Office of Occupational Nursing and Technical Support here at OSHA.

And with me today is Trese Louie. Trese is with me today because she is really the one who did the research on the cold card. And I wanted to bring her along to let her tell you a little bit about what she had done.

Trese came to us as an intern. And then, we kept her on as a contractor for a little while. And she next month will be joining the Directorate of the Technical Support in the Office of Ergonomics Support. So we are glad to have her and be able to recruit her into our agency.

As you mentioned, we were here in October. You all asked us to look into doing something on cold.

In October, we presented the heat stress card which kind of got a chuckle got from folks. We hope we are a little more timely this time, that we have gotten something out in a little more timely fashion in terms of trying to provide something to particularly the construction community, particularly small businesses related to the hazards of cold exposure.

I am going to ask Trese to tell you a little about how she came up with the information. We have sort of a mock-up version.

This is -- we do not have enough for you all. We had hoped to have them Tuesday. And they did not come in from the printer, but we will have available to you at your next meeting.

There are very much like the hot stress cards, the same kind of format and so forth. And if you any of you all are interested, we just have like one or two, we can certainly share them with you to look over.

CHAIRMAN BURKHAMMER: Could you just pass them around? And we will look at it.

MS. HANDELMAN: Sure.

CHAIRMAN BURKHAMMER: And we will give it back to you.

VOICE: If it is really good, I will just keep it here.

CHAIRMAN BURKHAMMER: No, you won't.

(Laughter)

MS. HANDELMAN: I am sure there is a --

CHAIRMAN BURKHAMMER: It is nice to share.

MS. HANDELMAN: Anyway, I have asked Trese to just tell you where we got our information, what the status of the project is, and how it is going to be distributed.

And then, I would like to hear from you anything you want to add or suggestions you may make to us about the card.

 

SPECIAL PRESENTATIONS

Cold Stress Card

(Continued)

By Ms. Louie


MS. LOUIE: I have as one of your handouts, there is a two-page sheet of the reference.

First of all, the process was talking to people, talking to people in the field, some of the compliance officers what needs to be put on the card and then doing a lit review, find out if there would be any information out there that had changed in the last several years.

And on the reference page, there is dates and everything. There is also, we went on the web, pulled off anything I could off of the Internet, the National Service home page to get the wind chill chart and issues like that to bring it all together, and then did up a mock, sent it out to the field and the different directorates for their input on it and any changes that needed to be made.

I got that back, incorporated the changes in that, and then worked on the drafts with Public Affairs, and came up with draft one, draft two, draft three.

And finally, this was our final draft. And this is the one that went to the printer about four weeks ago. And it was due back this week. So the printer -- it has come around faster than the heat stress card has.

The Spanish version right now is in its final review for proofing before it goes to the printer. So I would guess that is going to be out in about four weeks.

We have 50,000 copies of each. And on your OSHA publication's request, I listed an address for which you can get it by mail, by phone, by fax, or even by e-mail.

The publication number is on the card, but it is not on the pre-publication list. You can see the heat stress are the last two entries on the pre-OSHA publications.

You see that 3156. That will be the cold stress card in English. I do not have a number yet for Spanish. That will assign it when it goes to the printer, but my guess is it probably is going to be seven, but don't quote me.

(Laughter)

MS. LOUIE: So I expect the Spanish in another four weeks and the English any day now. And they should be laminated just like the heat stress ones.

CHAIRMAN BURKHAMMER: Great.

MS. LOUIE: Oh, and the distribution, there are going to 500 in the OSHA publications here in this building. And the remainder of them will be sent to the warehouse.

So it does not matter on the OSHA publication request. When it comes to our publication office here in the building, it will automatically be sent over to the warehouse.

And if -- the last little note on the publications thing is if your organization would like a master copy to duplicate the card within your organization, you can call the number for Public Affairs. And they will make arrangements for you to get whatever you need to do that.

CHAIRMAN BURKHAMMER: Great. Super. That's great. Thank you very much.

Comments or questions?

Felipe.

MR. DEVORA: The comment I wanted to make was on the Spanish version of the heat stress. That was a big hit in the southwest of Texas where I'm at.

And I think my crews are really going to be thrilled now, but we never have real cold weather down there.

But the heat stress was really a big hit. And if you did half the job on this one as you did on the heat stress, I'm sure it will be very successful.

MS. LOUIE: Thank you. Well, we had the same reviewers in Spanish to review the cold stress. So hopefully --

(Laughter)

CHAIRMAN BURKHAMMER: Bob.

MR. MASTERSON: I just wanted to comment that this is a good example of what OSHA can do that can really help a small and big business. And we appreciate you going to the trouble to create it.

MS. LOUIE: Thank you. It was a lot of fun. And I enjoyed it.

CHAIRMAN BURKHAMMER: Great. Thank you very much. I appreciate it.

The next item on your agenda that we are going to remove from today's agenda and move to tomorrow's is the special report from Jane.

There is a couple of things we've got to do before we can present that. So Jane will be prepared to do that tomorrow.

A couple of things we need to clear up that were brought up today.

Mr. Cooper, while you were gone, we had a discussion about the Data Collection Workgroup. And there was some discussion about the 170 form which you were so kind to mentor for us.

Michael, why don't you pose the workgroup's comments and questions so Steve can respond so that everybody understands what we're talking about on the 170 form.

MR. BUCHET: Well, the workgroup was interested in what comments you have received and if we could possibly take a look at them.

One of the things we were talking about is drawing on the SENRAC ability to create coding elements.

Would it be possible to create similar systems of coding elements for other facets of construction and then try to create an overall form that would be easier for everybody to use?

And we invite you to come to the workgroup and visit with us on that at the next one if you could.

MR. COOPER: Does that require a response?

CHAIRMAN BURKHAMMER: Yes, it does.

MR. COOPER: Am I the co-chairman of the 170 group?

CHAIRMAN BURKHAMMER: You are the chairman of the 170.

MR. COOPER: Mr. Chairman, I can tell you that we try and operate by MBO. We have a lot of subcommittees. And you have a list in your folder that many of them don't get a lot done.

I have spent most of my time on the sanitation workgroup and have devoted all the ACCSH time to that workgroup.

I have done very little. I have received a lot of correspondence and data, including your telephone message the other day on the 170s.

As soon as the ACCSH Committee reads this evening and tomorrow morning while this group is in session and gives us a response on the Sanitation Committee, I will be more than happy to respond to the 170 concerns which are secondary in this case.

CHAIRMAN BURKHAMMER: Okay. Thank you. Thank you.

Let me one more time before we have a public comment, and we have an individual who has asked to comment, for the purpose of clarification, I want to make sure everybody on the committee understands Mr. Rhoten's concern or question that arose earlier in the day about workgroups and how they work and how the responsibilities for the workgroups rest.

The workgroups are constituted by the Chair when a request is made by OSHA for input to a proposed standard, a standard under development or an issue that OSHA wishes ACCSH to look at for various reasons.

When a workgroup is constituted, there are co-chairs of the workgroup. And the reason we went to co-chairs, so we would at least have a couple of people on the workgroup representing ACCSH so it would not be a chair of one or a dictatorial form of one where one person drove the workgroup like sometimes happened years ago.

We have now got a situation where we have one workgroup that has one person in it. And we would like to have some of you join that workgroup. And that is Musculoskeletal Disorders in Construction.

I cannot be part of that workgroup because the Chair has to be impartial. And as long as I am the Acting Chair, I have to be impartial. So I cannot serve on a workgroup because that would make me not partial or make me partial. Maybe, that's what it is.

So I would like to some volunteers to work with Marie on the Musculoskeletal Disorders Workgroup so it is not a workgroup of one.

Michael, thank you.

MR. BUCHET: Well, in that way we can't overly commit ourselves.

CHAIRMAN BURKHAMMER: Yes, Larry. Great.

So the committee now is Marie Haring Sweeney. And Michael will be a co-chair. And Larry will be a member of the committee. Thank you very much for that.

The role of the workgroup is to go out and solicit input from as many people as possible. There are no restrictions to joining the workgroup.

In fact, at the last ACCSH meeting, we had sign-up sheets outside for any and all to sign up and join any workgroup that they wished to join.

And we had a very good response from that. We have also had e-mails from people or phone calls from people saying they would like to join or they would like to be on this one or that one.

And that is great. We want as much participation as possible. And I think we are doing everything to do that.

Also, at the last meeting or a couple of meetings now, we have talked about notices to people to participate in workgroups.

And the Acting Chair at the last meeting stressed to everybody that we would do as much as possible to give 30 days advance notice of any workgroup meeting.

And I think we achieved that this time with one exception. And the one exception was Larry's Subpart N Committee.

And I made the determination that that was such an important committee and they had a lot of important things to do, that even though we did not have the 30-day notice, my office personally called every member that signed up for that committee in person and invited them to come to the meeting. And we had a good turnout. So I am pleased with that.

In the future, Larry and I have talked. And we will again do everything possible to make sure we get 30-day notice out to everybody so that we have good turnouts in the workgroups.

One of the problems I saw yesterday and Tuesday was that we are trying to squeeze all these workgroups into a one or two-day's period when the ACCSH members are here.

And that is for two reasons. One, we've got everybody in the room. And we've got them all here. And we've got them available to participate.

And the second thing is it is cost effective to try to do that because it is difficult to try to bring the members who have every day jobs from all around the country trying to have workgroup meetings.

One of the reasons we went to it that way was because we could get maximum participation at a reasonable cost.

But there is a lot of people that would like to participate in more than one of the key workgroups. And when you have them at the same time on the same day, it makes it kind of difficult.

And some of the public members who went out to really push to get on these committees for one reason or another are only able to go to one at a time. They don't have split bodies or split personalities and can't sit in more than one room.

So I think what we are going to try to do next time is divide up in two days, Tuesday and Wednesday or however we decide to do the next meeting of workgroups so we do try to get the maximum participation from everybody.

And at least you can go to two important meetings. And we will try to split them up so that we will have some on one day in the morning and other ones in the afternoon and other ones the next day in the morning and another in the afternoon.

And will not try to run them for a full day. We will try to run them for a half a day and see if that helps.

I urge the ACCSH members that are workgroup co-chairs to have as many telephone meetings as possible, e-mail.

I think everybody, most everybody today has e-mail. There are some members that don't. And we are trying to fax them and make sure that they get copies of everything.

So we are trying to do it right and make it better for the public to participate. And if the public has any suggestions or comments of how to make the workgroup meetings better or allow more participation, we would certainly be open to hear that from any of you.

Once the workgroup is formed and constituted and they have a meeting, there has been a lot of discussion of how the meeting should work and what does the public do at these meetings?

The ACCSH members of the committee are the responsible members to report back to the committee on the findings of the workgroup.

They are the sole purpose, they are the sole people to do that. The public is there to provide input, to answer questions, to provide best practices, to help draft any document that is being drafted, to help comment on any document that is being commented on, but the final verdict, if that is the word you want to use, or the final outcome is that of the ACCSH members of the committee.

And when those ACCSH members or co-chairs present their reports, they are presenting a report of the workgroup based on the ACCSH member's report.

Now, does everybody understand that?

MR. RHOTEN: Well --

CHAIRMAN BURKHAMMER: Yes, sir, Mr. Rhoten.

MR. RHOTEN: For clarification purposes, Mr. Chairman, that ACCSH subcommittee can under the OSHA regulations make a recommendation to vote on, right? And I was given conflicting information on that last year.

CHAIRMAN BURKHAMMER: The ACCSH --

MR. RHOTEN: By the solicitor.

CHAIRMAN BURKHAMMER: The ACCSH co-chairs who are presenting the report to the full committee have the right to make any recommendation they wish to make.

MR. RHOTEN: Well --

CHAIRMAN BURKHAMMER: However, i would thin that the ACCSH co-chairs would make a recommendation based on all the deliberations and all the input provided by the public members.

MR. RHOTEN: Well, sure.

CHAIRMAN BURKHAMMER: Okay.

MR. RHOTEN: Yes. And even at the same time, I am sure that they are being fair with presenting all the opposition to their motion.

CHAIRMAN BURKHAMMER: You have that right as co-chair.

MR. RHOTEN: Or they would be here anyway with that.

CHAIRMAN BURKHAMMER: And if you didn't present those views, the public has the right to come to the table and present them themselves to the committee.

MR. RHOTEN: Thank you for the clarification.

CHAIRMAN BURKHAMMER: You're more than welcome. Okay.

With that --

MR. BUCHET: I got one point of clarification.

CHAIRMAN BURKHAMMER: Yes, sir.

MR. BUCHET: You apparently did such a marvelous job with the Crane Workgroup. Are you offering that service for all the workgroups that are not having high attendance?

CHAIRMAN BURKHAMMER: Moving right along.

(Laughter)

CHAIRMAN BURKHAMMER: No, if you have a -- if you are having a problem in getting your workgroup -- and that is another issue we might as well talk about here.

To make it easy for Jim Boom to assist us in doing a better job and coordinating things for us and making it easier for him, I think we need to think about one point of contact.

And I'm offering my Executive Assistant up as that point of contact. So all the committee chairs would contact Luna.

Luna would coordinate the input, get a hold of Jim so we are not giving Jim conflicting information. He would only be getting it from one source.

It would make it a lot easier I'm sure for him and the Directorate of Construction rather than all the committee chairs calling him up and trying to say, well, I want a meeting on this day, I want this, I want that, I want this. I need copies of this, I need copies of that. The poor guy is going crazy.

So if we simplify it a little bit. And I think we can try this for maybe one meeting or so and see that it works.

And if it does and Luna doesn't die of exhaustion, we can -- maybe we will have a little better continuity flow between the chairs and OSHA.

And so I would ask the co-chairs to coordinate with Luna. I think all of you have her phone number of e-mail. And most of you have talked to her.

And let's see if we can try that and see if it does help a little bit and make it easier for everybody.

So if there is no objections to that, I would like to offer that as an option for the committee.

Luna has no objection.

(Laughter)

 

PUBLIC COMMENT

CHAIRMAN BURKHAMMER: We have a public comment. Marc Freedman from the Painting and Decorating Contractors of America, would you please come up and share your thoughts with the committee?

MR. FREEDMAN: I'll be brief. Thank you, Stew. Thank you, committee.

There is a thought that has been rattling around in my head for awhile about what I think the agency can do that would help get safety compliance information out to the regulated community.

And the question I have is that it is sort of an open question. And I would sort of offer it to this committee to discuss and hopefully put a recommendation to the agency concerning this is, why -- whether the agency should be reviewing and approving safety products that are available?

Obviously, the ones that come to mind are the ones in the association's piece. PDCA offers a very comprehensive safety and health program.

We also offer some very specific compliance information, for instance, on the lead standard. I am certain that the other associations are doing similar measures.

And my question is, why won't the agency, because we've approached them on this issue before the years, consider these packages and say, yes, if you use this package, use this safety program, use this safety product as intended, you will be in compliance?

Now, I think that type of imprimatur would be helpful. Obviously, it gives those who are producing these products a boost.

It is not restricted to associations. I would expect that anybody who has a product out there, consultants or anybody else, that would like to see it reviewed and approved should be -- should have access to this service.

But it would at least establish a benchmark. It would at least say, yes, this is a good program; if you use this, you're okay.

And it would allow the agency to get out and say, you know, we are supporting compliance information.

I wouldn't want this to take the place of agency going forward and developing their own compliance information, but at least it would offer people a benchmark that says, yes, we know that that works. We know that that is a good package and that will help us comply.

I also do not think that this is anything that should be subject to distinctions between the employer and the employee community.

As it sits right now, our safety programs are out there. They are being used by union contractors. The union employees are operating under them successfully.

This is not a question of the open shop sector versus the union sector or the employee versus the employer community.

I would hope that this approach is universally supported. And if, you know, I had my druthers, I would ask this committee to take up the cause and present the issue to the agency.

At this point, all I would like to do is offer you the question and hope that you will consider it.

So I appreciate that moment. Thank you, Stew.

CHAIRMAN BURKHAMMER: That's fine -- no, a question. How would you get by or how would you suggest to OSHA at that they get by the endorsement issue?

MR. FREEDMAN: Well, my first question is, is why is the endorsement problem a problem?

In my mind, I'm not sure why I see a problem with the agency saying this is a good program. They can say it about every program that's out there that meets the same standard.

There is no question of exclusivity here. If a program meets the requirements of compliance, it should be endorsed or approved or however we want to describe it.

The point comes up because it has been a historical problem. I mean, the agency, OSHA has not been willing to do this. And I'm curious why. And I'm wondering whether we could raise the question to them.

CHAIRMAN BURKHAMMER: One comment from the Solicitor.

MR. BIERSNER: OSHA does on occasion issue letters stating that if you use a product in the way in which it is designed to be used or under the conditions that we specify in the letter that it will comply with a specific provision of 29 C.F.R.

You cannot use a label or indicate in your advertising or place an imprimatur on the article saying that is approved by OSHA.

For example, we recently sent out a letter stating that if you use Owens Corning's laminator 300 under certain specific conditions, you will comply with some of the fall protection provisions of the construction standard for metal roof laying. That is no problem. And we do that on occasion during our normal procedures.

You just cannot state that it is approved by OSHA, but you can get a letter stating that if you use a product for a certain --

MR. FREEDMAN: Well, then my question to you would be, why cannot we say that this is approved by OSHA?

MR. BIERSNER: Because it would be false -- it could potentially be false and misleading to an employer.

They have the option of using a variety of alternatives as long as they comply with the standard.

The OSH Act, number one, does not allow us to do endorsements or approvals.

Number two, it is the burden of the employer to determine what will satisfy or what will meet the requirement of a specific provision.

MR. FREEDMAN: That's exactly where I'm going is the question of giving that employer an indication that they have met the burden if they can -- if they use a package that has been reviewed and approved, I will use that phrase instead of endorsed, by the agency.

I mean, it --

MR. BIERSNER: I am sure that Owens Corning at this very moment is informing people who may be interested that if they use it under these conditions, it can be used to meet the provisions of the standard.

MR. FREEDMAN: Well, okay. Let's consider the concept of compliance assistance rather than specific, you know, materials, you know.

Where is the guidance to an employer to say, here is how you comply?

MR. BIERSNER: Well, we often, both in the preamble to a standard and in directives will provide compliance options for employers.

MR. FREEDMAN: But no one sees those.

MR. BIERSNER: Well, they are now available on OSHA's web site and home page. They're, you know, available through our publications office. They are numerous outlets for this.

I mean, we are currently engaged in a serious outreach effort.

MR. FREEDMAN: And I am impressed by that.

MR. BIERSNER: Okay.

MR. FREEDMAN: I heard some things today that have, you know, gone farther than I have heard before. And I think that is where we are seeing movement there.

My quest is to get some benchmarking of the compliance assistance that would go to a contractor and say, here is what you are supposed to do. And we know that if you do this, you will be in compliance with what OSHA asks, you know.

It is a difference in language. It is a difference in presentation. It is geared to the contractor.

The stuff in the preamble is not geared to a contractor. And it does not follow a regulation into publication. So in reality it is virtually invisible. Even if they pick up the regulation, they are not going to see the preamble.

And so the question is, why can't we have the agency's support in producing this kind of information that goes to employers, that goes to contractors and is useful to them and to say, we know this is good?

CHAIRMAN BURKHAMMER: Danny.

MR. FREEDMAN: And I mean, I don't to drag this. I'm happy to discuss it, but I do not mean to drag it out.

MR. EVANS: Thank you, Mr. Chairman. If I may, I think that you said you were representing painting and decorating association?

MR. FREEDMAN: Painting and Decorating Contractors of America, PDCA.

MR. EVANS: I think that I see where you are wanting to go with this is maybe you have some written programs that --

MR. FREEDMAN: Everyone has them.

MR. EVANS: Okay.

MR. FREEDMAN: I just happen to be the one voicing the concern.

MR. EVANS: Well, the problem, you have that and looking at it from an enforcement standpoint is that as an example, Owen probably has a written safety program with a HAZCOM Program involved in it and all that. It is applicable to how they do their work as a painter or a decorator or whatever else that they may do.

The problem that you have from an enforcement standpoint, if he had that program and we went in and looked at that and evaluated it and said, yes, that meets what you're doing. And that may be fine.

But for him to take that program and hand it to Bob and Bob is a painting contractor, Bob doesn't do work exactly step by step that Owen does.

MR. FREEDMAN: Then, all the deals are off.

MR. EVANS: And then, that program is not there.

MR. FREEDMAN: All the deals are off.

The requirement is you use the program as it is intended. If you use that program as intended, then we have determined that this meets the requirements of compliance.

If you do not do it, you have no protection. That is just like anything else. I am not arguing for blanket coverage.

I am suggesting that we establish as intended, this meets the requirements. And under those circumstances, I --

MR. EVANS: I would say any program that is written and practiced by an employer is better than none at all.

But I am sure that there is going to be some differences between how each employer --

MR. FREEDMAN: I expect there to be differences. And that is understandable.

MR. EVANS: And in those circumstances, that program may not be viable to them as it was to the other guy you get it from.

That is the problem you have with somebody stamping something saying approved by OSHA or this passes or fails. Because when it moves from one hand to the next, if they don't do the business exactly the same as the other person does, then it is not a viable program.

CHAIRMAN BURKHAMMER: Michael.

MR. FREEDMAN: Thank you.

MR. BUCHET: I was curious. Let's for the sake of argument say that maybe this takes places. From a practical standpoint, how can a compliance officer become familiar with each association's publication on each version of safety and health?

MR. FREEDMAN: The compliance officer doesn't have to.

MR. BUCHET: But if the compliance officer is going to go to a site and the site boss holds up and says, well, for this part of my job, I'm using the carpenter safety and health fund. For that part of my job, I'm using the Painter contractors. Over here, I'm going to use part of the OSHA standard, the model that I found in the appendix. And over there, I'm using somebody else's program. You have an enforcement nightmare.

MR. FREEDMAN: That is not the situation I'm suggesting. Let me throw it back at you. It is conceivable that right now a contractor would be pulling their safety information from those different sources.

A compliance officer would have to review those as is.

I am not suggesting -- I am not short circuiting. I am not suggesting short circuiting the compliance officer's review of those programs to see if they are being implemented appropriately or if the information is correct for the situation.

My point is that at a higher level, at the agency level to say, we know that this program will be appropriate if implemented as presented.

It is up to the employer to then put that in place appropriately. That does not short circuit the compliance officer's review at all.

And there may be, if this was to happen, perhaps a bulletin goes out and says, OSHA has now reviewed these following programs. And we believe them to be acceptable if implemented as instructed.

And then, the compliance officer knows this is a good program.

MR. BUCHET: But I just don't -- practically speaking, I don't see how it could possibly happen because the nuances on what is in the standard are big enough to keep us all busy many hours a day.

And if you throw an unlimited supply of other written sources that will have to be looked at to judge compliance, you are just compiling the amount of work the compliance officer has to do.

MR. FREEDMAN: I am not changing the requirement for the compliance officer review at all, not at all.

MR. BUCHET: The discussion phase would be incredible if the compliance officer walks up and said, I'm referring to 1926. And the employer being cited said, well, I'm referring to the document that you guys approved three years ago that comes from John Jones Association.

MR. FREEDMAN: Can't that happen now? I mean, would you have that discussion now?

MR. BUCHET: In a much more limited amount.

CHAIRMAN BURKHAMMER: Steve.

MR. COOPER: This issue has come up before including products, as you know. And I think your concerns are well guided, but I think you're asking the wrong group.

I think the procedure would be is to go ahead and write the letter to the Assistant Secretary and which will take it over to the Solicitor's Office of the DOL.

And if anything comes of it, you could bring it back and address this committee. But at this time, this committee cannot make any legal decisions to the Solicitor's Office And this happens to be one.

CHAIRMAN BURKHAMMER: Bill.

MR. RHOTEN: No, I'm fine. I think that answered it.

CHAIRMAN BURKHAMMER: Thank you, Marc. I appreciate it.

MR. FREEDMAN: Thank you.

CHAIRMAN BURKHAMMER: On other order of business for today since we didn't get the minutes until this morning. We did not vote on it this morning. I would like to read them tonight. And we will review the minutes the first thing before we start tomorrow morning.

Mr. Cooper.

MR. COOPER: And review the sanitation proposal.

CHAIRMAN BURKHAMMER: Everybody knows that already.

(Laughter)

CHAIRMAN BURKHAMMER: Adjourned until tomorrow at 8:45, not 9:00 o'clock, 8:45.

(Whereupon, at 4:00 p.m., the meeting was recessed, to reconvene at 8:45 a.m. on Friday, January 29, 1999.)

 

C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the U.S. Department of Labor, Occupational Safety and Health Administration, Advisory Committee on Construction Safety and Health, Volume 1, held on January 28, 1999, were transcribed as herein appears and that this is the original transcript thereof.

SONIA GONZALEZ
Court Reporter