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OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

ADVISORY COMMITTEE ON 
CONSTRUCTION SAFETY AND HEALTH

U.S. DEPARTMENT OF LABOR

Rooms N-5437 - B, C & D
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 21210

Thursday,
October 8, 1998

Gilmour

99 pp.

The meeting was convened, pursuant to notice, at 9:00 a.m., Mr. Stewart Burkhammer, Acting Chair,  presiding.

APPEARANCES:

EMPLOYER REPRESENTATIVE

STEWART BURKHAMMER
Vice President & Manager of Safety
and Health Services
Bechtel Corporation
9801 Washingtonian Boulevard
Gaithersburg, Maryland 20878
(W) 301-417-3909
(FAX) 301-208-0636

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

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

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

OWEN SMITH
President
Anzalone & Associates
12700 Foothill Boulevard
Sylmar, California 91342
(W) 213-877-8291
(FAX) 818-837-1040

EMPLOYEE REPRESENTATIVE

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

LARRY A. EDGINTON
Director of Safety and Health
International Union of Operating Engineers
1125 17th Street, NW
Washington, DC 20036
(W) 202-429-9100
(FAX) 202-778-2691
WILLIAM C. RHOTEN
Director of Safety & Health Department
United Association of Journeymen & Apprentices
of the Plumbing & Pipe Fitting Industry of
the United States and Canada
901 Massachusetts Avenue, NW
Washington, DC 20001
(W) 202-628-5823
(FAX) 202-628-5024

STATE REPRESENTATIVE

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

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, Nevada 89703
(W) 702-687-3250
(FAX) 702-687-6150

PUBLIC REPRESENTATIVE

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

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

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, Ohio 45226
(W) 513-533-8339
(FAX) 513-533-8230

COMMITTEE CONTACTS

BRUCE SWANSON
(W) 202-219-8644
(FAX) 202-219-6599
(Internet) BruceSwanson@osha.gov

SARAH SHORTALL
Office of the Solicitor
(W) 202-219-7711 Ext. 154
(FAX) 202-219-7147
(Internet) shortall-sarah@dol.gov

OTHER ATTENDEES

CHRIS TRAHAN
CPWR
111 Massachusetts Avenue, NW
Fifth Floor
Washington, DC 20001
(W) 202-962-8490
(Internet) ChrisTrahan@compusa.com

MIKE HAYSLIP
Lithko Contracting, Inc.
5353 Hamilton-Middleton Road
Hamilton, Ohio 45011
(W) 513-863-5100

JANE HOWARD
Bechtel
1015 15th Street, NW, #700
Washington, DC 20005
(W) 202-828-7374
(Internet) jahoward@Bechtel.com

DAVID DELORENZO
NAHB
1201 15th Street, NW
Washington, DC 20005
(W) 202-822-0507
(Internet) ddelorenzo@nahb.com

TRACY SORINE
OSHA/CSCA
N3621
200 Constitution Avenue, NW
Washington, DC
(W) 202-219-7207 ext. 127
(Internet) Tracysorine@osha-no.osha.60

CARL SALL
OSHA/CSCA
National Office (N-3427)
(W) 202-219-8429 x 137
(Internet) ih_safety@hotmail.com

JOHN HERZOG
ACCA
1712 New Hampshire Avenue, NW
Washington, DC 20008
(W) 202-518-3212
(Internet) Jherzog@acca.org

DUGIE STANDEFORD
Inside OSHA
1225 Jefferson Davis Highway
Suite 1400
Arlington, VA 22202
(W) 703-416-8574
DONAL FILE
L.F. Driscoll Company
(Internet) dfile@philly.infi.net

KEITH MATERNE
NAHB
(W) 202-822-0309
(Internet) Kmaterne@nahb.com

PETE CHANEY
MCAA
1389 Piccard Drive
Rockville, MD 20850
(W) 301-869-5800

RICHARD K. PFAU
Donohue Construction Corporation
(W) 202-625-4186
(Internet) richardp@donohue.com

RALPH D. RILEY
Associated Builders & Contractors
1300 N. 17th Street
Rosslyn, Virginia 22209
(W) 703-812-2024
(Internet) rriley@abc.org

CHARLIE BIRD
Centex Construction Company
10700 Eaton Place
Suite 300
Fairfax, Virginia 22030
(W) 703-218-1363

JULIE WILKIE
National Roofing Contractors Association
824 Fourth Street, NE
Washington, DC 20002
(W) 202-546-7584
(Internet) jwilkie@roofonline.org

CARL HEINLEIN
AGC of America
1957 E Street, NW
Washington, DC 20006
(W) 202-383-2732
(FAX) 202-347-4004
(Internet) heinleic@agc.org

MARC FREEDMAN
Painting and Decorating Contractors of America
3913 Old Lee Highway
Fairfax, Virginia 22030
(W) 703-359-0826
(FAX) 703-359-2576
(Internet) mfreedman@pdca.org

DAVID POTTS
NECA
3 Bethesda Metro Center, #100
Bethesda, Maryland 20814

OTHER ATTENDEES:

ASSISTANT SECRETARY CHARLES JEFFRESS
JIMMY ROBERTS
EDITH NASH
BOB HAMMOCK
ADAM FINKEL
TOM GALASSI
ELLEN ROZNOWSKI
RICHARD FAIRFAX
THERESA LUIE
NOAH CONNELL
ELISE HANDELMAN

I N D E X
  PAGE
Directorate of Construction - Report  
Bruce Swanson 10
Technical Data Center - Tour and Demonstration  
Shirley Marshall  58
DOC - Standards Update  
DOC Staff  60
Subpart R - Steel Erection  62
Subpart M - Fall Protection 66
Subpart L - Scaffolding  69
Public Comment  93
Adjourn  98


P R O C E E D I N G S

CHAIRMAN BURKHAMMER: Good morning and welcome to the second day of ACCSH meetings.

First on the agenda this morning is the esteemed Bruce Swanson.
 
DIRECTORATE OF CONSTRUCTION - REPORT

By Bruce Swanson

MR. SWANSON: Thank you and good morning.

I was going to include in my remarks this morning what has become the difficult numbers show that DOC does, or I do on behalf of DOC covering the construction activities of OSHA and what's been happening in the construction industry from our viewpoint.

But I was so intimidated by Marie's data report yesterday, that I decided I'm going to wait and read that report further before we put together a numbers show again.

But let me point out that the recently received 1997 BLS figures are really not good news for our industry. I have been giving speeches for the past year talking about the fact that the fatality rates in the United States in the construction industry -- from 1992 to 1996, fatalities, by BLS numbers, increased from 903 to 1,039. Our construction industry had grown by a million players in that same time period.

But what that meant was, fatalities were a static 13.9 per 100,000 workers. No improvements in our industry in our ability to curtail fatalities over the course of those four years. There were some ups and downs in the interim, but we started at 13.9 and we ended at 13.9.

Within the past few days here, last couple of weeks, actually, we have received the BLS data and I no longer have to talk about the 13.9 staying static over a 4-year period because we have now gone to 14.2 as a fatality rate per 100,000 full-time employees.

None of us can see this as good news. We are all swinging at every pitch, but there's something that we're not getting done. BLS's raw number for that, incidentally, for 1997, is 1,107.

I went to a meeting after this last evening. After we concluded here I went down to yet another meeting, talking about the $317 billion that the U.S. Congress has authorized over the coming half decade for capital investment in highway and transportation.

Most of that money is going to go to the states, but it will be utilized, most of it, the great bulk of it, in our industry for bridge work, highway repair.

Those that are closer to it than I and who were doing the talking last night were saying that the American public is going to be enjoying a work zone every 40 or 50 miles across the United States within a couple of years.

Because of the work zones and because what we as a culture have imposed upon the construction industry, we don't want to be inconvenienced during our rush hours, so let's do as much of that construction as we can after the rush hour ends in the evening and before it starts the next morning. So, let's get out there and work in the dark.

Then let us put $317 billion on it, on industry, a portion of our construction industry, I think, is going to grow significantly and we all understand how many skilled workers there are in the construction industry today, and it's a number that you all know is not going up, rather going down.

So we are going to be out there recruiting people from wherever we can find them and putting them on these construction jobs. There are going to be new workers, there are going to be people that are unused to the construction industry.

It's quite possible, the way things have been going in this country in the last decade plus, that there might be some foreign languages spoken on those work gangs working out there at night. We have to figure out a way to train those people and keep as many of them alive as possible.

A gentleman from one of the highway transportation associations that was speaking was saying that their epidemiologists figure that, over the next five years, we are looking at somewhere -- and let me use the whole span, he said. We're looking at somewhere loosely between 3,700 and 5,000 work zone fatalities in the United States in five years. Those are not all workers, of course. Eighty percent of those fatalities are going to be the traveling public.

But that just sends cold shivers through me to think of those numbers and to think that the $317 billion of tax funds, which I'm not saying should be spent, we all want them spent, we all want our highways improved, but you throw in $317 billion, you get this much work done in five years, and, oh, yeah, there's going to be this other little fallout of about 5,000 dead Americans.

You plug that into our already sliding figures on fatalities in the construction industry and it's hard to be real cheery about it. You heard at our last meeting, and some of you that make other meetings with OSHA have probably heard more often than you want about our strategic plan and what we plan on doing in the 15 percent reduction over the same five-year period in fatalities, that we hope to see and bring about.

This heavy highway and BLS information all coming in in about a two-week period here make me feel somewhat pessimistic about the 15 percent reduction. But OSHA is on a course, and has been on a course for a while, that I think is clear to all members of this group, but I figured I would take a few minutes this morning to just walk back over where I see us going in the next couple of years.

You've heard Charles Jeffress say that we are not backing off of enforcement. We will not back off of enforcement. There will still be the enforcement effort, the significant cases, and the cases that I have reported to you, like the one a while ago in Houston that I told you about at the last meeting, where we gave a several million dollar penalty on a construction site. That will continue to occur.

We are not getting any more resources. We might be -- in fact, if the House bill were to go through, OSHA will be reducing its numbers by 140. Those of our partners in the state plan states have been given the figure as to the adjustments that they are going to have to eat, and what that will mean on manpower, I don't know.

Therefore, OSHA is going to have to, both us and the states, but I can speak only for us, find another way of doing business. We have talked about partnerships. Joe Deere was talking about partnerships, Charles Jeffress is still talking about partnerships.

Charles wants to emphasize this because he feels that, as he travels across America, outside the beltway people don't really see any evidence of partnerships. So, let's get us all in one place at one time on the 13th of November and talk about what's going on. Let's bring people in that are partnering with us. Let's give them an opportunity to, we hope, brag about it.

But if they don't brag about it, if they wish to point out some glitches that they've run into, that's fine. We ought to talk about our glitches publicly. Let's bring some other folks into the room that haven't partnered with us, that are not now intending to partner with us, and let's see if we can't use the spirit of the moment to create some epiphanies for some people, that there is another way of doing this.

We have worked with this body and your workgroups and we have put quite a load upon many of you, and I have heard back from you, pointing out that we are a lot more intense and we're asking our ACCSH members to do a lot more than they did several years ago. That is true, we are.

We want you to help us with rule making. This is not to turn our back on negotiated rule making. You have heard Charles Jeffress say that there will be more negotiated rule making. We are in favor of negotiated rule making. We will do it wherever and whenever possible.

But, in those cases that are not suitable for negotiated rule making, for whatever reason that they're not suitable for negotiated rule making, political or otherwise, we will come back to this body and ask you to work with us because, as Owen Smith was pointing out yesterday, a bunch of bureaucrats in Washington maybe are not always the best resource for how things ought to look on a construction site.

Many of us agree with Owen on that, which is why we have your workgroups and why we asked those workgroups to be made up of those of you from organized labor that are here and those of you that represent the contractors that are here, and let's see if we can have a meeting of the minds on a rough draft, turn it over to OSHA, and we will make it into an enforceable document.

We might have to change it a tad from what you gave us, but we are the regulators and we can take care of that format. We have to know what your view is on what works on a construction site. I'm going to keep coming back to you and asking you for help.

There are areas where we have a problem. We have a problem now in the standard making process. The standard developing process in this nation takes so long to get done, particularly if it's a controversial effort that we're going to get sued over, that we will try and find shortcuts to it.

That's a relatively new phenomenon, at least on the scale that we're doing it. We have gone to industry and talked about, let's work together on some best practices.

We're doing that now on the tower erection issue, where most of this new crop of several hundred thousand communication transmission towers are going to be built before OSHA can generate a standard on what are the work practices that should be followed.

Maybe a shortcut--we're getting kind of desperate here--is, let us sit down with all of the players in the industry and develop a best practices, and then you guys agree with us that this is what you'll be following and we will try and hold the rest of the industry, those that are not at the table today, we will hold their feet to this fire and try and go down this road.

You heard Charles talk about, maybe for ergonomics in the construction industry, yes, he wants to do a standard with his resources. He's going to do a general industry ergonomic standard, first. He believes that there is a need for a construction ergonomic standard, but he's not talking about that being in the front of the line.

Maybe what you folks--and he was looking at me as well as the rest of you around the table--in the construction industry want to do is just try some best practices and guidelines for the construction industry, build us some history we can work on later.

Whether you agree or disagree with Charles that we should go forward with a standard in construction right now, I see no fault with talking about some best practices, some guidelines. And whether they work concurrently or are ahead of the standard, to me, seems to be irrelevant.

We have asked for, and I will continue to ask for, help on improving OSHA's targeting system. When I give you numbers, one of the things that Steve is always asking me for, Steve Cooper, is, yes, where are we on focused inspections, what are the numbers on focused inspections. I give those numbers. Incidentally, focused inspections are going down.

I don't know whether that's good or bad, that focused inspections are going down, because you don't have the analysis behind the numbers, who's being inspected. If we are inspecting the same facilities, the same construction sites that we were inspecting two quarters ago, four quarters ago, or eight quarters ago, and saying, hey, we need the numbers, our resources are going down, we have to keep our numbers up, so I used to call this a focused inspection; I don't feel like doing a focused inspection this time, I'm going to do a wall-to-wall. It helps my numbers, for reasons that all of you around the table understand.

If that's why the focused number is going down, that's bad. If the focused number is going down because we are going to sites that no longer qualify for focused inspections, like my colleague, Mr. Murphy in Cincinnati, says, the special emphasis program on falls in Cincinnati is driving his compliance officers to those sites that don't qualify for focused inspection, and I think that's great.

But I don't think we ought to be hoping and praying that every area director becomes a Bill Murphy. What we have to do, instead, is develop some overall national policy for OSHA, a better targeting system for the construction industry than we have used to date. I have a contract out--OSHA has a contract out through my shop--with a consultant who is doing a study of the entire Dodge report that will be concluded by the end of this quarter, and we'll get back to you and talk about that.

Whether or targeting system using Dodge and the University of Tennessee is something that's broken and can be fixed, or is something that is not being properly utilized by OSHA as a tool, or something that has outlived its usefulness and has to be replaced, or X, Y, and Z that I haven't thought of yet. But it doesn't seem to be putting us where all of us would like to be.

Many of you sitting around this table have companies with outstanding health and safety records and you are still receiving a disproportionate number of our inspection resources because we target off the Dodge report. You're the guys we can find, so you're the guys we visit. I'm sure it's a great help to you.

(Laughter)

MR. SWANSON: And we'll continue to do that. But there are other persons in America who we are not helping, and should be, and could be, with our kind attentions. I hope that the workgroup that ACCSH has will help us on our targeting efforts.

CHAIRMAN BURKHAMMER: Some of us could help you find those.

MR. SWANSON: Another thing that I'm going to be coming back to to this group and asking for help with -- let me interrupt myself. The reason that I continue to use ACCSH as a focal point, is with the FACA Act, it is very, very difficult for a regulatory agency to select people from an industry to help us without violating Federal law somewhere along the way.

So, this committee is a preselected committee, as far as I'm concerned. Whatever problem I have, I can come to this committee because it was properly constituted under the Federal laws of this country, and I can come to it and ask it for assistance. I could probably give you enough work to make your day job go away.

But you can also work through the workgroups and this system where we have developed, with one or two ACCSH members, we can then bring in others from the construction community that can sit at your table and can participate in the discussions, and we don't violate Federal law when we do that. So, I'm going to ask that we keep doing that.

Back to my point. Another area that we are going to be doing more and more of in the future and we need your help and guidance on is developing outreach materials, compliance materials.

What is the nature of those materials, how best can we teach, how best can we reach, who should we reach, where do we reach, how do we reach, and how can we do it as cheaply as possible? Those are all issues that I will be coming back and asking for assistance on.

Lastly, to close the loop back to these numbers that are going the wrong way, and I know I'm only using fatality numbers and there are many other problems out there other than fatalities, but fatality is one number that is very difficult to argue with. That, clearly, is not going the right way.

It is not a reporting error, it is not a reporting glitch, although certain organizations don't use the same counting methodology. BLS, from year to year to year, uses the same system internally. And this town has a lot of difficulty with definition of words, but dead isn't one of them.

We believe that what has to happen and what we are striving to do, is to find a way where we can bring about a cultural change on a construction work site, and we will use any tools and methods that we think or you think are appropriate for changing that culture. We would like to make as many construction sites as possible in America sites that OSHA can skip.

We would like to have an area director for OSHA, be able to identify from his targeting list those construction companies because of his or her experience with them. This is a job site that I'm going to be able to throw a couple of hours at, and my compliance officer is more than likely going to be moving on down the road after a couple of hours.

Then, hopefully, we can give them someday the license to either inspect or not inspect, but for right now we can at least have a plan on what is going to be a focused inspection, a brief and easy inspection, and get on down the road to target some of those harder places. I'm going to continue to ask this group to help me find ways to bring about that cultural change.

That's what you get in place of numbers this morning, Marie.

CHAIRMAN BURKHAMMER: Thank you, Bruce. A couple of comments. At the time you're asking ACCSH to increase their efforts, I think, if you'll look back over the years of this committee, no matter who sat on it, they were always willing to do whatever it took to get the task done and get the job done, and I certainly feel that's the case with this committee, also.

But, at the same time, all of our companies are also doing what the government is doing, and that's leaner and meaner, more with less, and each of us see, I think, in our own departments, in our own house reductions and budget cutbacks, they're demanding more and more and more of our time also, and it's making it more and more difficult to manage all the balls that are juggling in the air. I speak for myself, and I'm sure any of the other members can chip in if they disagree with me.

So I think we need to find a way to utilize the time of this committee better. When we have workgroup meetings, or we set up workgroup meetings, maybe we can do a little better job of scheduling, we can do a better job at getting more stakeholders to come to the workgroup sessions, we can do a better job of maybe expanding the week that we're here and make it a full week and utilize Monday and Tuesday for workgroup meetings and get as many of those done and in as we can, and then Wednesday and Thursday have the ACCSH meeting, and then maybe even have Friday workgroup meetings for those that we couldn't get. We've got a lot of workgroups, and we want to talk about those before we leave here today. But that's some of my thoughts.

Anybody on the committee want to add anything? Steve?

MR. CLOUTIER: I'd like to address Bruce's comments, this $317 billion package that's going out on the heavy highway end of the business, and recognizing that the traveling public--and I'm part of that--just hates these road obstructions every time we go through a zone, and they create some of the problems. I don't think any of us around the table have the solutions.

Many of us have gone to working at nights. If you're traveling at night, it's 11:00, 12:00 at night, that controlled zone as you go in kind of puts you to sleep, and sooner or later they end up into a Jersey barrier and either killing themselves or killing a couple of workers along the way. So, there are problems there.

But we have learned in the industry that best practices is the way to go. One of the best practices is to do a pre-task plan every day, every shift, every crew. Yet, I don't hear the Agency pushing that. That's where that supervisor sits down with his crew members and they talk about what they're going to accomplish during the shift.

They have to know what the task is, they have to make sure they have the right tools and the right equipment, they need to make sure they have the right personal protective equipment, and make sure that that's identified, provided, and worn. Are there any special conditions? Have they changed out cranes? It is hot weather, cold weather, the middle of the night? Are there any permits that need to be signed off?

Then the supervisor signs it, along with the workers on the crew. That means everybody on that shift should know what's going on, that they have everything and it works well.

I think the Agency can look to this group to provide some best practices. We don't have all the answers around the table, but I know there's many, many people from the employees' side, to the employers' side, to your state plans that can provide the Agency with that.

I also believe that if you get away from inspecting certain contractors all the time, or you just keep coming, and coming, and coming, it's just a waste of the taxpayers' money. I've been very vocal on that for a number of years. We don't do a good job identifying the job sites that really need the help.

I think you can go to any construction site and, if you look hard enough and long enough, you're going to find something wrong, because we're dealing with people, we're dealing with a work process that changes not only every day, but every hour and every minute something's changing.

So, certainly, you're probably going to find something that doesn't meet the standard. But if you look at the job site, it's clean, and your employees are wearing personal protective equipment, it's probably a pretty good site and you don't need to waste taxpayers' money being there.

Fatalities. All of us hate them; they still come about. We are dealing with people, we are dealing with processes. Things go wrong. People take chances, people don't plan their work. It's not good that those numbers continue to go up. We've been unfortunate. I've had some over the years and it's a terrible price to pay in our business, and I feel for those numbers. I wish there was a solution there.

But we see the work force as, anybody that's good is working, anybody that's halfway good is working, and we're now working what I call third- and fourth-tier warm bodies out there because the demand exceeds the supply of qualified workers.

Partnerships with your local area directors, we ought to go for that. Let the local area director cut is own deals. He knows his contractors. He knows the employees in that area. Make some arrangements. It's the right thing to do.

If we can't get VPP going and we want to do it on a national basis and it takes us two years to qualify that contractor and their employees, the job is over with anyway so we have missed that.

Let the ADs do that. Those regional offices can cut those deals. Let's start somewhere, use them as test cases, and look at lessons learned with those contractors, those trade associations, and the employee participation and see where we go from it.

Let the ADs around the company come back in and say, hey, we did 120 in fiscal year 1999, and 100 of them worked. Ten of them didn't work, and here's the reasons why, and 10 of them were somewhere in the middle. Look at all the great things.

If we look at the numbers rising, where would we be if contractors and employees hadn't made the big leap forward to making safety first on construction sites, the emphasis that's been there for the last decade, and especially the last five years, throughout the industry.

If we think the numbers are bad today, where would they have been had we not made changes? The number would be significantly higher than the numbers you've given today.

I think there's significant room for opportunities. I think the barriers are out there. We should take them down. Just because we haven't done it that way doesn't mean it can't be done, or just because we did it that way before we can't change. It's just time to move forward.

This $317 billion is a lot of money that needs to be spent. Maybe there needs to be a line item in some of those contracts to address environmental safety and health issues, because the taxpayers are paying it. Congress is going to release the money. It's going to go to the states, it's going to go to Federal projects. Let's just make it happen.

But so many times the business is driven by who is low bid. That's all we hear in this country. We've driven down the low dollar. We want lower for less, and it's hurting us.

That's all I have to say, Mr. Chairman. Thank you.

CHAIRMAN BURKHAMMER: Marie?

DR. SWEENEY: Bruce, I don't need to hear numbers when I can hear a strategic plan, or at least people thinking about it.

I want to follow up on what Steve had. He stole all my ideas. But one of the issues is partnerships. I think we're doing it, a lot of agencies are doing it, and I'm glad OSHA is doing it.

But I think part of it is, the small guy, even the large contractors, really don't know how to partner, who to go to, and what are the best avenues. Perhaps it is something that the Agency needs to think about in terms of how we're going to recruit people.

You've got people on sites. Everybody thinks of OSHA, compliance, enforcement, and fines. So, there may have to be some -- I don't know what you do in your partnerships, but I think how to partner, and then what are the constraints in that box.

One of the other issues is, when you have compliance officers on site you might want to use them as your eyes and ears for not only the problems, but also the solutions to the problems. I was visiting Europe a couple of weeks ago, talked to the folks from the Health and Safety Executive in the area of developing occupational exposure limits.

But they used their inspectorate to come back and tell them the good things are happening, what bad things are happening so they can put either one on the agenda. So, maybe we have to sort of get a brain shift.

In compliance, they have to look at compliance, but I think they might want to bring back to you all what good things are happening on a variety of different sites. That might need some thought as to how they do it and document it for you.

The last issue, is communication and development of outreach materials is really important. But, after looking at the outreach materials for small businesses on the respirator protection standard, there needs to be some thought as to how that material is put out.

You can't put out a 68-page document that says, this is for the small business, because you have to decide who's going to read it. There needs to be some review of it by the people who are going to use it, some thought about the reading level, the amount of material that has to be in there.

NIOSH is struggling with this issue as well, but we're moving ahead, and I think you all can do it successfully as well. You might have to bring in contractors to do it. You might not want your staff to do it.

Thank you.

CHAIRMAN BURKHAMMER: Larry?

MR. EDGINTON: Let me start by following up on some of Steve's comments. He's absolutely right with respect to the bidding process having such a strong impact on job site safety and health.

One of the things I was curious about relative to that, Bruce, is what does OSHA know about the Federal Highway Administration requirements in terms of the Federal Highway Transportation grant monies, and what, if any, requirements are contained therein for recipient agencies to have or require contractor safety and health programs, so to speak, for one? And I don't know the answer to that. I'm asking you.

Two, what do we know about what the Federal Highway Administration might consider to be a necessary and allowable reimbursable cost under the grants program for safety and health, particularly with respect to new ideas.

For example, it's not at all uncommon, and nobody seems to have problems with it in the industry, is that you get bonuses if you come in on time, early, or under budget. But we tend not to talk so much about what your safety record is and whether or not you should be entitled, or there should be some economic incentive for excellent safety records.

I don't know what the Federal Highway Administration's view is on that, but it strikes me as something that should be explored, either with them or with your state plan partners with respect to how we might establish programs like that for state recipients of those funds.

I'm aware that the Federal Highway Administration has done some work over the last, I guess, about two years on work zone safety. While I think it's important work, I'm not particularly enamored by it in terms of, I think they have under-served the workers who work in those work zones.

I think most of the work is really focused on the motoring public. I don't know what there is to be learned from there, but is strikes me that OSHA may want to be looking at what they have done with respect to best practices there.

It's also my understanding, I believe in December NIOSH is hosting a two-day conference here in Washington that is going to be addressing some of the same issues that you raised about working at night, the whole issue of work zone safety.

I'm wondering if there is any OSHA involvement with that, and if not, that you ought to be at least looking at -- it looks to me, from a cursory review of their agenda, that much of what they're talking about is really going to be focused on trying to identify best practices, and there may be a lot to be learned there.

CHAIRMAN BURKHAMMER: I think I can answer your question on the contracts. Most Federal Highway fund contracts are joint contracts with the state that the job is in, the bridge that's being repaired, or the highway's being repaired or built. We have a contract similar to that in Massachusetts with the Federal Highway and the Mass highway.

Again, it depends on what type of contract you have with FHA or the state. If it's a consulting contract, an architect, or an engineer contract, there's very, very limited safety and health language in those types of contracts.

If it's an agent for the owner contract, or a contract administration contract, the language is in there so that the agent or the contract manager, even though the contracts are on the state paper, it's referencing back to the contractor's responsibility to implement safety and health measures.

If you're a PM, or a CM, or a prime or a general, there's a lot more emphasis in there on safety, and they reference OSHA in the state plans, or whatever type that particular state has. Then it's up to the prime, the general, the PM, or the CM to put whatever teeth in the subcontract language they wish to put in.

So, there's a great variance in that and there's no mandate from FHA, or, to my knowledge--and Harry, you might comment from the state aspect--that they have a certain requirement built into their contracts.

MR. EDGINTON: That's my understanding as well, and that's why I've raised it before. Maybe that's something to look at. All of us have seen situations where, and these are the things that distress me terribly, is you may have 10 contractors that bid a job, everybody has a line item for safety, the low bidder has $100,000 for safety, and every other bidder has half a million, and he got the job by $200,000, and they give it to him. That's nuts.

Agencies are buying trouble. It seems to me that those are the kinds of things that people need to start looking at, just the relationship between some of the line items, some of the appropriate numbers that have been built into them and the impact that's going to have on job site safety and health.

From my own experience when I worked in the field, most awarding agencies, they focus on that bottom line. The fact that you have bid a pittance for safety and health doesn't seem to disturb them in the least.

CHAIRMAN BURKHAMMER: DOE and DOD are exceptions. Every other state or Federal contractor, to my knowledge, is low bid. But DOE and DOD contracts have a variance in there that they do not have to take the low bid if certain criteria are met.

Owen?

MR. SMITH: Stew, I know in Los Angeles on that Metro rail system, they've done partially what Larry had alluded to. In addition to the penalties that go with completion and early finish, there is also a premium for a safety record.

As a matter of fact, the guy's got a good safety record, he gets so many hundreds of thousands of dollars. It doesn't get down to us, but the prime certainly makes dollars. So I would assume that those Federal dollars could be used the same way on the highways.

CHAIRMAN BURKHAMMER: Well, and I can speak on the red line contract, that was put in there as a joint effort between the municipality and the prime. Bechtel happened to be the prime on that. We built that into the contract. It's a shame you said it didn't get down to you, because it was supposed to.

(Laughter)

CHAIRMAN BURKHAMMER: So if you didn't get your cut, call me, because something went wrong there, or you weren't safe, one or the other.

Felipe?

MR. DEVORA: Some of the comments that Bruce made this morning, I think, were right on the money as far as dealing with the area directors and the comments that Steve made. I mean, who better knows the contractors in the area than the area directors? If that's truly the direction that OSHA is looking for for better targeting, you've hit the nail on the head there, Bruce.

But when we talk about partnering, at least when I talk to local contractors and they ask me, what does this partnering mean, what is it, is it a piece of paper where we all shake hands and pat each other on the back and say we're partnering, or what are the nuts and bolts of it?

What it boils down to is what the contractors, and the safe contractors, and the guys that are trying to do it right, and the ones that obviously the compliance inspectors are spending too much time on because of whatever targeting methods are out there, those contractors want to know, what's in it for me. But what we tell them, is it's not an agreement. We're not swapping. We're not in the deal-making business, we're in the safety business.

But, inevitably, what it comes down to is they will ask, in this partnering agreement, what do I have to do as a general contractor to be--or as a contractor, not necessarily a general contractor--in this group, to be in this group that, when OSHA looks at me on a targeting list or a Dodge list, or whatever, says we met that company, we know their program, we know they're out there, let's go on, let's not waste the time and fool with an inspection, we know this company.

I think area directors are perfectly suited for this kind of -- mandated for that kind of a partnership. Inevitably, the carrot that they're all looking for is not necessarily an exemption from anything.

We don't want to be exempted from anything. We just want to know what OSHA is going to do in terms of, if we are raising the bar to be in this elite group, what are you going to give us back in terms of recognition.

I understand it's been successful in BPP and general industry, and then I think the four sites that Mr. Jeffress talked about across the country. But that is not what we're looking at.

We're looking at the areas throughout this country with good contractors that are trying to get it right, but still have the big stick compliance showing up that says, we're here to help you, but we're going to cite you because somebody may not be doing something right.

So I guess the bottom line for partnering is, what can we get out of it eventually? What we will get out of it, is we can concentrate, like Stew and Steve were saying, and we're doing a lot more with a lot less. Those are the things that help us do our job and help us do them safely and raise the bar as far as safety.

I think if we have that group there that says, this is what you have to do to get this kind of treatment from OSHA, I think we're raising the bar and we're doing nothing but helping the construction industry there.

CHAIRMAN BURKHAMMER: Harry?

MR. PAYNE: I wanted to ask whether there's anything else in the numbers besides the raw numbers. We had a similar job, and North Carolina, did a lot of press releases about it and tried to raise people's consciousness, but it seemed to be focused around the urban areas of prosperity.

It seemed to reflect some demographic shifts about who was getting killed. The New York Times -- excuse me. The Wall Street Journal reported that in the southeastern part of the country, all but two states experienced dramatic increases in deaths in construction.

I'm wondering whether there was anything learned from the numbers, other than the fact that it's on the rise. Is there anything about the who, the where, and the why that would be useful for targeting purposes?

MR. SWANSON: The easy and short answer from DOC is, no, we have not analyzed those numbers. We do not, at the moment, have the capacity to analyze the raw data the way it ought to be analyzed.

It's one of my hopes for the very near future to bring that resource on board, because I agree with you, the raw data is just that and it kind of tweaks your curiosity to go someplace else with it. But we haven't, as of yet.

MR. PAYNE: Just from anecdotal experience, in North Carolina, the companies that we would get to by partnering directly don't seem to be a big proportion of the problem, it's the five guys and a truck operations that, typically, where somebody steps left rather than right, or touches the wire, or is removing air conditioning duct and touches a wire, that's where the deaths are occurring.

I have a concern that we are focusing a little bit on the choir in terms of safety and partnering, or we don't have an easy way to get to the smaller operations where a disproportionate share of the problems seem to occur.

MR. SWANSON: You're absolutely right on your assumption on those numbers. Where the serious injuries and fatalities occur, generally, the smaller the employer the higher the rate, and vice versa. How to target them is one of our problems that's been around forever, how to find these jobs that last a day, two days, or three days.

The other question that goes hand in hand with that is, is enforcement perhaps the best tool to apply there? It has to be one of the tools in the bag, but are we missing something?

Are we missing these people with our education and training as well, for some reason we are not attracting them to those areas where they could learn best practices, safe practices which have been utilized elsewhere in the industry, the more sophisticated elements of the industry?

We have to get a bigger bag of tools and then find out how to get the right tool to the right place, or one of several tools, even if it's not the best tool, and get it there.

MR. PAYNE: One of the issues that the media has picked up on is an increase in the rate of death of foreign-born workers, perhaps non-English speaking. They see that question of communication on a job site as being a potential problem.

My state is somewhat unique, in that we have had a tremendous shift in population, particularly in work construction. Are you seeing that elsewhere; is there any notion about that?

MR. SWANSON: Yes. Again, it's largely anecdotal, but we believe that there is that same phenomenon existing around the country. I have had two or three people tell me that I'm wrong on that, that the hard evidence really doesn't support it.

But there seems to be too much contrary evidence out there to not believe it. Again, it's communication between supervisor and work crew when they speak different languages. One of them might speak southern.

(Laughter)

MR. PAYNE: We're trying to work on that.

MR. SWANSON: And then the training doesn't take if the training is not in a language that the employee easily understands.

MR. PAYNE: Right. Absolutely. Thank you.

CHAIRMAN BURKHAMMER: Steve?

MR. CLOUTIER: As this discussion went on, a couple of more thoughts came to mind, Bruce. With this heavy highway transportation bill, we need to get the American Trucking Association involved.

These are the truckers that drive up and down the road, 80,000 pounds, that don't stop on a dime, and yet the motoring public pulls in front of them. North Carolina has had a couple of major, major incidents in the Raleigh-Durham area in the last few years with multiple fatalities.

The other thing that came to mind, is if we've got CSHO out there doing inspections, wouldn't it be great if that CSHO, sometime during his inspection, did a one-hour training session, something new, something novel? We're not only out there for compliance, but we want to get the best bang for the buck. We've got a government employee there. He should be trained and knowledgeable of all the work activities.

So why couldn't that CSHO do a one-hour training session on maybe one of the items he found wrong, or something hot in the industry, and we get the best bang for the buck so everybody wins, employees win, the contractors win, the Agency wins, and we're not only out there on enforcement, but we're doing training and we bring value added to the inspection?

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: I just wanted to comment on something that Bruce said. I think he has hit probably one of the more important points, and that is, it's the small contractors out there that seem to be having the disproportionate share of accidents.

I think another problem that we do have that we're overlooking, everybody in this room has heard the joke and probably laughed at, hi, I'm from OSHA, I'm here to help. But the truth of the matter is, the worker on the job site doesn't look at OSHA as a friend. They look at them as the enemy.

It's not because their employers have promoted that. If a compliance officer shows up on the job site, they don't get to work that day, they don't get paid. They're not looking at whether the job site is safe or not, they're just looking at the paycheck.

I think we as a group need to give Bruce some advice on where he might go to create a better relationship between the worker and OSHA. There's not an employer out there that doesn't want accidents to go away, just by virtue of what it's costing them in worker's comp and everything else, with the possible exception of Texas.

But we've got to find some way to mend that mind-set between the American workforce and the compliance officer. They've got to look at that person as a resource and a friend, not as the enemy.

CHAIRMAN BURKHAMMER: Part of the problem, I think, Bob, rests still with the employer. If the employer has a non-safety and health attitude or a poor safety and health mind-set, or doesn't have a good program, or has a paper program, or the employer's supervision is not out walking the talk when it comes to safety, the workers' mind-set is, go as the boss goes.

So, if the boss isn't preaching safety, but preaching production, schedule, cost, and do the job at whatever the cost, the worker needs a paycheck so he's going to do that.

If he works on a job where the employer is safety conscious and safety is a top priority on the job, the supervisors walk the talk, they preach it, the crafts then become personally involved in the program and their mind-set changes and they become safety conscious, more so than they would be on a job that's not that way.

So, even though OSHA may be viewed in one way by some workers and in another way by some workers, I think, still, the mind-set of how that worker works on that project rests with the employer.

Marie?

DR. SWEENEY: One of the ways that we've sort of changed our mind-set, is in not only going to the workers, but thinking about training people who will be in the workforce.

Right now, NIOSH is developing some modules that go into vo-tech, as well as other post-secondary training programs that deal with health and safety. Seven of those modules deal with construction, one of which is electrocutions.

Those modules have the opportunity for impacting almost 11 million pre-workers, if you want to call them that. So perhaps what we need to do is have public/private partnerships in getting information to the high school, post-secondary, and perhaps even elementary programs to bring in the issue of health and safety in the workplace.

Plus, if you understand what's going on, say, in the smoking program, you teach children about smoking, they go home and say, yuck, daddy, you're smoking. So perhaps what we need to do is think about where our training programs are going.

Now, maybe OSHA doesn't have the mandate to deal with the post-secondary or high school training programs, but perhaps other people around this table and in the audience would want to partner on those kinds of things. It is not an inexpensive venture for us or for others, but once we got the ball rolling it would be easy to permeate the post-secondary vo-tech programs.

The other thing is, I want to check my fax on it. Both OSHA, NIOSH, DOT, DOE, and a host of other Federal programs belong to something called the C&B Committee, which is Construction and Built Environment Committee, which is out of the Office of Science, Technology, and Policy from the White House.

They have a program. It's a public/private partnership on transportation, and it's called Pair-T. I don't have all the information and facts on it. I think Ellen Roznowski has more since she's been going to those meetings more often.

But perhaps it would be useful for OSHA to get most of that information together for those people around the table, and others, who are thinking about dealing with the issue of transportation health and safety. This committee has been trying to get that health and safety language into the DOT appropriations. I'm not sure we've been successful, but the partnerships can interact and affect health and safety.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: The other thing I was thinking about, Bruce mentioned that he doesn't have the resources to do some of the analysis that needs to be done on the numbers that he's now gotten.

Is there any chance that NIOSH might be able to provide a resource there for, short-term, to do that number crunching? That's an area that I would think -- there are some very strong players in NIOSH.

DR. SWEENEY: You didn't hear my plea last year. Last week, the Congress just -- or the House of Representatives just cut our budget by one percent from last year. In my program alone, that means a 50 percent budget cut.

Now, I'm not saying no, but actually I think we, in fact, may have -- we may do some of that data analysis, it's just a matter of getting the folks together. Is it from your IMUS data or is it BLS? BLS? Oh, BLS can actually do that analysis for you.

CHAIRMAN BURKHAMMER: BLS does their own compilations of their own data.

DR. SWEENEY: But if you ask them, they will do analysis for you. They've done some for us.

CHAIRMAN BURKHAMMER: Jane?

MS. WILLIAMS: Just two comments. One, going back to the comments that you made, I think you're absolutely correct. In my unique position, I get to work with general contractors, small contractors, people who hope to be contractors, whatever the case might be. You definitely see a disparity in what they want to get out of safety.

Some may give you a dollar amount and that's all they want and they expect you to cram everything in. The larger ones who know how to play by the rules kind of just say, Jane, teach us what we need, and there's no sets put on you. You do what you can really do.

You almost have to walk away from some clients when you know you can't service their needs, because they want to have a show-and-tell certificate, document, program, or whatever sitting on the shelf when OSHA comes in.

And I really liked yesterday hearing the suggestion by Marc, but I wouldn't go with ENR or something like that, because that gets to the guys that can afford to buy the magazine, who already have the message.

I think the point is getting it to the individual worker so he is in the place of asking the question of his employer, why aren't you doing this for me? That might be something you might really want to look at.

The second, is on the partnering issue. I have sat in room after room and have heard this, and yes, I will be there in November. As a national president, I signed a partnering agreement with the Army Corps of Engineers.

My first comment at that meeting will be, what are you going to do to measure your success? What do we do after we sign the piece of paper? What can we do to judge ourselves and our performance to make these things really work, or is this an exercise to show and tell for everyone?

So I really think there needs to be some real hard looking at what we're saying and how we can measure our own performance in those areas.

CHAIRMAN BURKHAMMER: The last comment on this will come from Larry.

MR. EDGINTON: Thank you, Stew. Just following up on, perhaps, Bob's comments about small employers and the need to involve workers, and Bruce's comments about fundamentally trying to change workplace culture.

I'd like to share with you something that happened to me about a year ago that suggested to me how serious the problem really is. For those of you that know me, you'll know that when I'm not in Washington you tend to find me in a very small town about 150 miles from here.

One weekend about a year ago I was standing in line to check out at the local grocery store. It was a Saturday, end of summer. I came to realize that there were two young men standing in line behind me, and they're talking about their job.

From looking at their attire, I quickly surmised that 1) they're construction workers; and 2) it looks to me like they're involved in earth moving. I'm overhearing their conversation.

Their conversation had to do with their concern about an inherent danger on the work site they were working, but their thought about it stunned me. What I heard those young men say was, boy, I hope OSHA doesn't come out, because if they fine our employer, we may be out of a job.

Until we can get to the point that those young men understand that they are making a false choice between a safe work site and their employer's economic well-being, we are not going to be able to accomplish what Bob was talking about. That's an experience and a thought that has really stayed with me about how serious this problem really is.

CHAIRMAN BURKHAMMER: Good point. Thank you, Larry.

With that, we'll conclude the Directorate of Construction report.

Last night, we put on hold the confined space motion that was brought forth by the Confined Space Workgroup. Steve Cloutier and Felipe had asked for some time to allow the committee to review the confined space document that was presented by the committee.

So, if you'll get that out, and Felipe, if you'll start out with your comments, if any.

MR. DEVORA: Mr. Chairman, I'd just move for the previous question.

CHAIRMAN BURKHAMMER: Okay. Is there any other discussion on the confined space? Michael?

MR. BUCHET: Sure. I read through quite a bit of it, not all of it. I was interested in the bolded paragraphs that say, note to paragraph X, Y, Z. Is it intended that those stay there in the materials? Is that a suggestion or are these going to be used as a preamble?

MR. CLOUTIER: Noah, you want to come up for a second? Mike, before we have Noah Connell address that, the workgroup stressed to the Agency that we should spell out examples time and time again. As I prefaced my report yesterday to this committee, so many times we found notes like that in the appendices, somewhere other than in the document.

The workgroup felt that it should be in the document as we went along, and that's why you see the notes. They give the i.e.'s, and here's an example. That was to help everybody out so you didn't have to go through 15 or 20 pieces of paper through the length of the document to find your answer, it was right there as you went along. That's why we did that.

MR. BUCHET: Yes. I agree with that. There were a couple of places where you have access to records, and I wondered why the Secretary was not listed as one of the people that records were kept for. Employees, employers, or authorized representatives, but not the Secretary.

I'm looking at page 11. Just above Subparagraph B, it says, "Additional requirements for alternative procedure confined space entry." The line above that, there's something about, whether training records for the employee are available for inspection by the employees that are authorized representatives.

MR. CLOUTIER: Yes, but that's standard language. They've got to be available to the employees.

MR. BUCHET: I don't disagree with that. But a lot of the -- there are some lines in here where the Secretary -- the availability does not seem to be for the Secretary or the compliance officer, or anything like that, which I believe is more standard language.

MR. CLOUTIER: Noah?

MR. CONNELL: Yes, there is some inconsistency there that probably should be cleared up. I'm not sure it's essential to say that it would have to be made available to the Secretary, since we probably have that authority elsewhere. But we'll check into that.

MR. BUCHET: You certainly see it in other statements, though.

MR. CONNELL: Yes. You're right, you do. We'll look into that.

MR. BUCHET: Keep the records, and -- okay.

I had another one. You talk about forced air ventilation. We're talking about putting fresh air in, but nowhere do we mention exhaust, or at least I didn't read far enough to know if we did or didn't.

Would it be possible to add exhaust or to say that you have run the two in tandem, or are we only talking about pumping fresh air in? That doesn't always do the trick.

MR. CLOUTIER: You're talking about on page 12, then?

MR. BUCHET: I'm looking at page 12, but I think I caught it a couple of other places.

MR. CLOUTIER: So if the document said, "forced air ventilation and exhaust until all employees" --

MR. BUCHET: Sure.

MR. CLOUTIER: I think that's well-noted.

MR. BUCHET: That's the end of my comments, Mr. Chairman.

CHAIRMAN BURKHAMMER: Thank you, Michael.

Jane?

MS. WILLIAMS: Just a question for Noah. I see in here the reference to "host" versus "controlling authority." I also saw that in the safety and health. Do you mean by host the equal of a controlling authority or are you talking an owner position? Is this a new word that we need to be familiar with, or what's your intent?

MR. CONNELL: Our intent is to avoid any confusion on the matter.

(Laughter)

MS. WILLIAMS: Okay.

MR. CONNELL: I think you're right. The term "host" was used in some other standards where we talked about the obligations of the employer that brings in a contractor to their own facility. That's where it first came up.

So it tends to be a term associated with general industry more than construction. But you are right, we need to make sure that we do not create unintended confusion by mixing and matching terms.

MS. WILLIAMS: If it's owner, could it not say owner, and controlling authority, the terms that would mean something, and especially in a definition? That was not in the definition, I do not believe, and it was confusing.

MR. CONNELL: Yes. We have to be careful about making sure that when we impose obligations we impose them on people we have jurisdiction over.

MS. WILLIAMS: That's true.

MR. CONNELL: So if the owner is an employer engaged in construction, we don't have a problem. If the owner is not an employer engaged in construction, we may have a problem. So, yes, we're going to have to focus a little more on that.

MS. WILLIAMS: Thank you.

CHAIRMAN BURKHAMMER: Felipe?

MR. DEVORA: Stew, on page 10, D-5, there, non-controlling contractors. I really had a problem with that terminology, that non-controlling is almost an oxymoron to me. That's telling me that someone's not in control of something, and that's kind of scary in a confined space standard.

I think performing contractor -- I know it's wordsmithing and this will be refined again, but non-controlling contractor -- I think performing contractor is a little more to the point.

Just the terminology, non-controlling -- I think there's 27 mentions of a controlling contractor, and then you have one mention here that's underlined of a non-controlling contractor.

CHAIRMAN BURKHAMMER: Yes. I would think, Noah, that if your employee goes into a confined space, you're automatically a controlling contractor.

MR. CONNELL: Yes. I think the point is well taken.

MR. CLOUTIER: Mr. Chairman, again, we had a motion and a second, and I'm going to call for the question.

CHAIRMAN BURKHAMMER: We're going to call for the question. The motion was made to submit the draft procedures for the revised confined space standard that you have in front of you. It was seconded. We will call for the question.

All in favor, signify by saying aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Opposed?

(No response)

CHAIRMAN BURKHAMMER: The ayes have it. It's duly submitted.

Noah, you'll take into consideration the questions that were raised in your revisions?

MR. CONNELL: Yes.

CHAIRMAN BURKHAMMER: Thank you.
 
TECHNICAL DATA CENTER TOUR

By Shirley Marshall

CHAIRMAN BURKHAMMER: Next on the agenda, is a tour for the committee, a tour of the Technical Data Center with Shirley Marshall.

(Whereupon, at 10:35 a.m., the committee took a tour of the Technical Data Center, and resumed back on the record at 11:12 a.m.)

CHAIRMAN BURKHAMMER: Let's reconvene.

The next item on the agenda is the standards update. Barrien, are you going to lead that? Noah is going to. Okay. Here's Noah.
 
DOC - STANDARDS UPDATE

By Noah Connell

MR. CONNELL: Thank you, Mr. Chair.

MR. CLOUTIER: For those that don't know, Mr. Burkhammer, this is the head of the DOC's Standards Unit.

MR. CONNELL: Thank you.

Let me, first, just address a question that was asked of me earlier that I forgot about, and that was on the confined space standard and the use of explanatory phrases in the text of a standard in the form of a note.

There's no question that we can include explanatory information in the text. We like to do that because it helps people understand what we're saying and they don't have to look elsewhere to find out what they're required to do.

There is a trickier question as to whether we ought to use the word "note" as a preface to that, and we will be examining that. That might cause some unintended confusion, and we'll look into that.

Also, another preparatory remark on the safety and health program standard for construction. The other day I zealously made the promise to the ACCSH Safety and Health Workgroup that we would get a draft to you this fall.

After I made this zealous promise and left the room, I began to count the number of people above me whom I had never spoken to about this and whom I had just purportedly to bind in terms of a commitment, and realized I had no authority to do that. I apologize.

As to our schedule, it is certainly my hope that, by the first quarter of next year, we, OSHA, could get you a draft, but I certainly cannot make that commitment. In terms of where we are, we are certainly working diligently on a draft, but I just can't make any commitments for the Agency on that.

CHAIRMAN BURKHAMMER: Maybe before the next meeting you could touch all those people above you and come back and tell us when we can get that.

MR. CONNELL: I'll do my best.
 
DOC - STANDARDS UPDATE

SUBPART R - STEEL ERECTION


By Noah Connell

MR. CONNELL: In terms of update on standards, first, on Steel Erection, Subpart R. As I think everyone's aware here, we did publish a proposal which came out of the SENRAC negotiated rule making process.

We are now entering the other part of the rule making process, which will include a hearing, comments from the public. Only after all that is finished will we be doing a final.

In the meantime, we will shortly be issuing some compliance guidance to our field with respect to OSHA's compliance policy on the use of the new proposal in the interim, as it is now a proposal and when we finally get out a final.

The compliance policy will be as follows: employers can, and are required to, continue to follow the current rules. If, instead, they want to use the SENRAC proposal, they can do that, with an exception and a half.

The exception and a half is with respect to deckers. Deckers will continue at between 25 and 30 feet, will continue to have to be tied off as the current rule requires. Our enforcement policy, generally, is that you can abide by a proposal to the extent that it is protective or more protective than the current rule.

With respect to deckers, there is not a tie-off requirement between 25 and 30 feet for deckers in the SENRAC proposal. They are required in the proposal to be in a controlled decking zone, and there are some other requirements with respect to securing decking and how much decking does not have to be unsecured within the zone. The policy is that, during this period, you do have to comply with the tie-off rule as it exists right now.

The other aspect of it is the scope section of the SENRAC proposal. We are going to make it clear that, as you may recall, there is a long list of activities in the proposal that deal with the installation of things other than structural steel. Those activities will be considered within the scope of the proposal to the extent that they have to be done in order to accomplish the erection of structural steel.

So, just to give you an example, if you have to caulk a structural steel member before it gets into its final position in the process of installing that structural steel member, then, yes, that activity is going to fall under Subpart R. But, if it's not essential to the process of erecting structural steel, then it's not within its scope. It's just an interpretation of the language in the proposal.

So, we will be issuing a formal notice with respect to this compliance policy in the very near future. That's where we are on Subpart R.

CHAIRMAN BURKHAMMER: Steve, for the record, I would like you to repeat your comment to Secretary Jeffress regarding the fall protection heights, if you would. Maybe Noah missed it. Just for him and for the record, we'd like to bring that up.

MR. CLOUTIER: Noah, yesterday I made a comment to Charles Jeffress, the Assistant Secretary, talking specifically about fall protection and my concern that Subpart M is the 6-foot rule, Subpart L is the 10-foot rule, now we're looking at Subpart R, steel erection, at the 15- and 30-foot rule. We have got to have consistency across the board. The 30-foot rule is definitely too high, in my opinion. When people fall from that height, they die or are seriously injured. I know there's pressures in places all over the table on that issue.

There's a number of demonstration projects and a number of projects that are ongoing with 100 percent fall protection at 4 feet, 6 feet, 10 feet that we know are effective and have protected workers, and we have effectively been able to get the job done.

But I'm deeply concerned about Subpart R, Subpart L, Subpart M. I think it would be in the Agency's best interests to come up with one height limit across the board so all workers, all employers can understand it's X, whatever that may be. Fifteen and 30 is tough.

MR. CONNELL: I'll echo what Mr. Jeffress said yesterday. We are continuing the rule making of Subpart R. We welcome comments on Subpart R. Detailed comments are very helpful to us, information is very helpful to us. So, the Agency encourages you to get us comments and information on the proposal.

CHAIRMAN BURKHAMMER: Thank you.

MR. CONNELL: Any other questions on Subpart R?

(No response)
 
DOC STANDARDS UPDATE

SUBPART M - FALL PROTECTION


By Noah Connell

MR. CONNELL: Fall protection, Subpart M. We are preparing for an advanced notice of proposed rule making on a number of issues that have arisen since promulgation of the rule.

The purpose of the advanced notice of proposed rule making is to raise issues, to ask the public to comment on those issues, to get us information on all these questions. There will be a number of issues that will be included.

Again, we certainly encourage you to get us your comments and information in as much detail as possible, because that's really what's useful to us.

We are well along in this process. We have completed a first draft of the ANPR. That draft is now being reviewed. We are working with the Solicitor's Office so that their concerns can be met. So, we are moving along well on that.

I'll take any questions that you might have on M. Yes?

MR. MASTERSON: Noah, how soon will the workgroup be able to get a copy of your draft notice, or how soon do you think it will be available so the workgroup might have it to work with?

MR. CONNELL: Well, having been asked a similar question on another standard just the other day, I will endeavor not to make exactly the same mistake as I made the other day. I'm not sure, but it's looking good.

MR. MASTERSON: It would be helpful to the workgroup if they had that piece to work from.

MR. CONNELL: Yes, I understand.

CHAIRMAN BURKHAMMER: Michael?

MR. BUCHET: Bob, you asked me to participate in this workgroup. Would it be possible for OSHA to provide us with a briefing on the progress of this rule making at our next meeting?

MR. CONNELL: I see my boss vigorously shaking his head yes, so the answer is yes.

MR. MASTERSON: Thank you, Mr. Buchet.

Along the same lines, the workgroup on Subpart M, we've got a little bit of a problem, in my opinion. That is that the workgroup right now has two employer representatives and nobody representing the other groups sitting on the committee. I would really ask that the chair seek to volunteer or appoint a labor representative for the workgroup so that the output will be more balanced.

CHAIRMAN BURKHAMMER: As soon as Noah finishes, we're going to go into the workgroup discussions. So, if you'll hold it until then, I'd appreciate it.

Noah, please continue.
 
DOC - STANDARDS UPDATE

SUBPART L - SCAFFOLDING


By Noah Connell

MR. CONNELL: The other rule making I'll talk about is scaffolding. We are also doing an advanced notice of proposed rule making on scaffolding. Again, the purpose here is to raise issues that have surfaced since the rule was promulgated.

Where we are in this process, is we have collated the issues that have come to us in a variety of forms in terms of letters and phone calls that we've received. We have that list.

We have a first cut analysis of those issues. I want to thank the Solicitor's Office, in particular, for helping us in putting together some of the background information with respect to some of the prior rule making on those issues so that we can make some decisions about which ones of them should be included in the advanced notice of proposed rule making.

So we are now at the point where we're almost ready to present our analysis to the folks above us, and then we'll be proceeding with figuring out and making choices as to which of those issues get included.

CHAIRMAN BURKHAMMER: Thank you.

Michael?

MR. BUCHET: Now that your boss is gone, is that something that you could brief the Scaffolding Workgroup on?

MR. CONNELL: I'm sure that the same answer that went for the previous one would work for this one. Yes, I'm sure we can.

MR. BUCHET: We appreciate the answer because that clarifies something about the workgroup's existence.

CHAIRMAN BURKHAMMER: Any other comments or questions for Noah?

(No response)

CHAIRMAN BURKHAMMER: Thank you.

MR. CONNELL: Thank you.

CHAIRMAN BURKHAMMER: All right.

Now, if you'll take the handouts that I passed around on the workgroup assignments and the sign-up sheets that the public participated in yesterday, I want to go down the workgroups and I'd like the chairmen or co-chairmen of the committees, whoever's present, to tell me if the committee is still ongoing, if it needs new members, if it needs a change in type of membership, or it can be dissolved.

Safety and Health Program Standards. Steve?

MR. CLOUTIER: Still ongoing.

CHAIRMAN BURKHAMMER: Is your membership all right?

MR. CLOUTIER: Membership's fine.

CHAIRMAN BURKHAMMER: Training. Steve?

MR. CLOUTIER: It's still ongoing.

CHAIRMAN BURKHAMMER: Membership?

MR. CLOUTIER: It's fine. Did you get Fall Protection, Mr. Chairman?

CHAIRMAN BURKHAMMER: No, I haven't gotten there yet. It's down on the list. I'm going in order.

Confined Space. Steve?

MR. CLOUTIER: I think that committee has finished at this time. It should be dissolved.

CHAIRMAN BURKHAMMER: Motion to dissolve?

MR. CLOUTIER: So moved.

MS. WILLIAMS: Second.

CHAIRMAN BURKHAMMER: Moved and seconded. Discussion?

(No response)

CHAIRMAN BURKHAMMER: All in favor of dissolving the Confined Space Committee, signify by saying aye.

(Chorus of ayes)

CHAIRMAN BURKHAMMER: Nays?

(No response)

CHAIRMAN BURKHAMMER: The committee is dissolved. I want to thank the committee for their efforts and their fine work on the confined space document. You did an excellent job.

Sanitation. Jane?

MS. WILLIAMS: Ongoing. Membership's fine.

CHAIRMAN BURKHAMMER: Scaffolding. Owen, Michael?

MR. BUCHET: It's ongoing. Membership is much better than fine.

CHAIRMAN BURKHAMMER: Good.

Safety Excellence Recognition. Larry?

MR. EDGINTON: Yes, I need to talk. It's ongoing. We have a membership problem, but there's a reason and we'll talk about that.

CHAIRMAN BURKHAMMER: Enforcement Priorities. Bob?

MR. MASTERSON: At this point, particularly after Bruce's comment this morning, it has not been active, but I think we need to get more people assigned to the group. At this point, looking for enforcement priorities, outside of the two co-chairs, there's only one other person signed up. We do need some more participation in that.

CHAIRMAN BURKHAMMER: I'd ask the public, if anybody would like to add their name to that workgroup, please see Bob after the meeting and sign up. I know he'd appreciate it.

Fall Protection. Bob, Felipe?

MR. MASTERSON: As I said, Felipe and I have gotten together on one occasion to start trying to plan out how we wanted to proceed. One of the issues was we needed to be fully briefed on what the needs of OSHA was, as well as we need to get a more balanced representation on the workgroup. Right now, we don't have anybody representing labor or the general public, as far as, like, the Agency itself.

CHAIRMAN BURKHAMMER: Our labor contingent is one person short on the five-member participation group, and three of them aren't here. That leaves Larry to speak for his contingency. Could you talk to them and kind of lobby and get one of them to participate, please? Then give Bob a call and let him know.

MR. EDGINTON: Yes.

(Phone ringing)

CHAIRMAN BURKHAMMER: Speaking of giving Bob a call, that was quick!

(Laughter)

MR. SWANSON: Mr. Chairman, I understand that before your next meeting you will have a fifth labor participant.

CHAIRMAN BURKHAMMER: All right. Thank you.

Data Collection. Marie, Michael?

MR. BUCHET: It's fine. Are we going to call it Data Collection and Targeting? Because the sign-up sheet still exists as two separate groups and I think it's confusing some people, who we're going to communicate with and when we're going to communicate with, and we'll sort of merge the two topics and discussion in the one group.

So the membership is fine, but we would like to bring all the people who think they're going to do targeting into the Data Collection and Targeting Workgroup. It's a housekeeping detail.

CHAIRMAN BURKHAMMER: When the committee was first constituted under the last ACCSH group under Ana Marie, it was a combination then of Data Collection and Targeting. So, it should be one group called Data Collection and Targeting. So, if we split it up into two sheets, all those who signed up for Data Collection and/or Targeting will now be merged into one group.

MR. BUCHET: Thank you.

DR. SWEENEY: One other thing, Mr. Chairman. We would like to get at least one person from BLS to work with us on that group, if OSHA could work with us on that, or at least be advisory.

MR. SWANSON: We will certainly work with you on trying to bring that about.

DR. SWEENEY: Thank you. Thank you.

CHAIRMAN BURKHAMMER: Cranes - Subpart N. Larry?

MR. EDGINTON: Ongoing. I think we now have a pretty good distribution of members on the workgroup.

CHAIRMAN BURKHAMMER: Good. Thank you.

MSDs. Marie?

DR. SWEENEY: It's looking pretty good. We have lots of work to do.

CHAIRMAN BURKHAMMER: Hexavalent Chromium. Owen?

MR. SMITH: Ongoing. I'll have to speak to Bill.

CHAIRMAN BURKHAMMER: Okay.

Multi-employer. Jane, Felipe?

MR. DEVORA: I need a clarification. On the minutes of the meeting, and I don't know how -- we talked about it yesterday, Danny, Jane and I. If you look at the minutes of the meeting, Danny was assigned as co-chair to this committee and Jane as a member.

She signed up as a member of the committee. So, in the minutes that we approved yesterday, Danny was in there as co-chair for this committee. We've already discussed it. It's not an issue. We just want it clarified for the record.

DR. SWEENEY: I don't believe I have a problem with that.

CHAIRMAN BURKHAMMER: Sorry, Danny.

MR. EVANS: While you've ditched me, I'd like to participate on the Fall Protection group, if I could.

CHAIRMAN BURKHAMMER: All right. Bob, would you make a note of that?

MR. MASTERSON: Done.

CHAIRMAN BURKHAMMER: So Multi-employer. You're satisfied with Multi-employer? Okay.

Special Assignment Form 170. As the committee knows, I gave you 30 days to mark up your form and respond to Steve. This will basically be a one-shot group and they'll resolve at the next meeting the revision to the form 170, and at that time we'll dissolve that group.

Silica. Marie, Larry? Larry.

MR. EDGINTON: I think one of the things that would be helpful to me is a clarification of our charge. In particular, when the representatives from the Solicitor's Office were here, they posed three or four questions. It might be helpful to have those questions as a starting point for our work.

DR. SWEENEY: Larry, I got their phone number, so I think we can call them and do that, if that's appropriate.

CHAIRMAN BURKHAMMER: Jim, maybe you could use the new search method we just saw and draw up the minutes from the last meeting and pick out those three questions and supply them to the workgroup.

MR. BOOM: I'd have those next week.

CHAIRMAN BURKHAMMER: Thank you.

Salt Lake City Construction Advisory Workgroup that we constituted yesterday. Michael, Bob, you guys are just starting.

MR. BUCHET: Ongoing. Membership is an issue.

CHAIRMAN BURKHAMMER: Membership is an issue.

MR. BUCHET: Let me try to maybe clarify, I think, a point of misunderstanding. What Salt Lake City is looking for is not so much people with the computer expertise to put this stuff on the Internet.

They are going to get in-house and hire a contractor to do the graphics. They're looking for people with the construction expertise to give them the content and to comment on the content they already have. So, if that clears it up, we'd love more help.

CHAIRMAN BURKHAMMER: Based on that --

MR. BUCHET: We're putting NIOSH on there. I just got a volunteer.

CHAIRMAN BURKHAMMER: Based on that plea, again, the public, if you would like to sign up for that, please see Michael after the meeting.

And the last one is the task force that Jane and Felipe are going to chair, and I'm going to participate in, and that's the structure of ACCSH workgroups.

MS. WILLIAMS: I think it was Steve Cooper who was assigned to that, not Felipe.

CHAIRMAN BURKHAMMER: Ah. Out of sight, out of mind. Okay. That takes care of the workgroups review.

Each of you have your sheets. You should have everybody's sheets in here, so you have the phone numbers. I would ask that the chairmen, when there is a workgroup meeting scheduled, I'd like the chairmen to please personally notify the members that have asked to be participating in the group so there's not a glitch or a problem in coming to the workgroup like we had this time.

DR. SWEENEY: Mr. Chairman, I have one person, Carl Heinlein, who has got his name on here but no phone number. If he has an e-mail address, it would be easy. Is he here today?

CHAIRMAN BURKHAMMER: Carl? He was here a minute ago.

DR. SWEENEY: But there's no phone number, no e-mail address. So, come and see me.

CHAIRMAN BURKHAMMER: See Marie after. Thank you.

Again, if the committee co-chair would set up a system to notify all the public members of when the meeting is going to be. As I said, I would appreciate the committee co-chair notifying the public members of when the meeting is going to be. Okay.

MR. BUCHET: Mr. Chairman, on that point then we need to make sure that we have all the people who have called the Directorate of Construction and said, please keep me informed of these meetings, sent to us so we can add them to our personal list because, as happened with the Scaffolding Workgroup, I had, I think, six people, and we had nearly 20 show up.

They were brought in through other associations or through the directorate's efforts. So, we need a consolidated list, there's no doubt about that, and this is not it.

CHAIRMAN BURKHAMMER: Jim, could you help us with that?

MR. BOOM: Yes. That was the major plan. Just, due to lack of resources --

CHAIRMAN BURKHAMMER: All right. Then maybe you could send out the list to each committee co-chair and it will have everybody on it then.

MR. BOOM: Yes.

CHAIRMAN BURKHAMMER: Great. Thank you.

Before we get to the public comment, I want to do two things. I want to set the date for the next meeting. Let's look at late January or early February time frame.

DR. SWEENEY: I'm not available after February 1. Three weeks' vacation.

CHAIRMAN BURKHAMMER: Why don't we start out looking at the week of January 19. The 18th is a holiday for a lot of people. Later? The week of the 25th?

Larry, have you got a problem with that week?

MR. EDGINTON: I may. I'm going to have to double-check that.

CHAIRMAN BURKHAMMER: Okay. Bob? Owen?

MR. DEVORA: Which one is it?

CHAIRMAN BURKHAMMER: The committee will meet the 27th and 28th. Committee meetings can be scheduled Monday and Tuesday. Committee chairmen, get with Jim, and far enough in advance. Way, way far in advance so we can get rooms.

Also, notify the members of the committee in advance, especially the public members, so they can get it on their calendars to attend the workgroups.

MR. BUCHET: Could we look at those dates again? Would it be possible to make Monday the travel day and have workgroup meetings on Tuesday and a half a day Friday?

Some of us out-of-towners would rather travel on Monday, get a little time in the office, and get here. We lose Sunday at home. At least from Chicago, you can do part of a day's work, or a good day's work, and get here.

CHAIRMAN BURKHAMMER: Well, another thing we could do, if you want Monday as a free day, to travel Monday evening, we could have committee meetings. We could have workgroup meetings Tuesday and Wednesday, and have ACCSH Thursday and half a day Friday.

MR. DEVORA: That's fine.

MR. MASTERSON: That's fine.

CHAIRMAN BURKHAMMER: Does that cause the west coasters a problem? No?

MS. WILLIAMS: No, that's better.

CHAIRMAN BURKHAMMER: All right. Let's do that then. Monday will be open. Travel Monday evening. Workgroups Tuesday the 26th and Wednesday, and then ACCSH will meet Thursday the 28th and a half a day Friday the 29th.

MR. CLOUTIER: Mr. Chairman, could you also look a little bit further out, possibly the last week of April, for the second meeting of next year?

CHAIRMAN BURKHAMMER: April, for a lot of us, you and I included, has board meetings and other meetings.

MR. CLOUTIER: Yes. But let's look at times now while we've got our calendars in front of us.

CHAIRMAN BURKHAMMER: Well, my calendar ends in January.

MR. CLOUTIER: I'm sure we could share a calendar with you.

CHAIRMAN BURKHAMMER: 1999. Here we go.

MR. CLOUTIER: Or a tentative time, if possible.

CHAIRMAN BURKHAMMER: All right. Let's look at May.

MR. SWANSON: Mr. Chairman, let me state the obvious here. Charles Jeffress likes to participate in these meetings so long as his calendar allows it. I'm not in a position to answer for him on either one of these dates.

I'm told I'm not going to see him for the next three weeks; he just left the country last night. I don't quibble with the January date, and we'll just try and work around it. But, with the caveat that this does not indicate that we're going to be able to get an Assistant Secretary to participate with us.

CHAIRMAN BURKHAMMER: Understood. I think, Steve, that's going to be awful hard to do.

DR. SWEENEY: Mr. Chairman, you run into Easter, kids' schedules and other things like that.

CHAIRMAN BURKHAMMER: Plus, you've got board meetings, plus you've got construction safety executives meets on Wednesday in March. April? May?

MR. CLOUTIER: No, it meets in March.

CHAIRMAN BURKHAMMER: Let's just plan for January and then maybe after that we'll be able to plan a couple of meetings ahead. I don't want to take a chance on not getting the Assistant Secretary at two meetings in a row. I don't think that's --

MR. BUCHET: Mr. Chairman, would you like to look at some possible alternatives that people could pencil in?

CHAIRMAN BURKHAMMER: You guys are going to push me into this, aren't you?

(Pause)

CHAIRMAN BURKHAMMER: No.

MR. SMITH: Thank you for your consideration, Mr. Chairman.

CHAIRMAN BURKHAMMER: Is there any new business or any items that any committee members would like to bring up for discussion at this time? Marie?

DR. SWEENEY: If possible, and I understand there's resource issues -- if, in fact, we can get materials for the meeting at least two weeks in advance so that, like the confined space document, we can have appropriate time to read it, have some thought about it instead of doing it the night before, that would be really helpful.

Also, maybe this is taken care of now that we have all the chairs for the workgroups, but I found out there was a workgroup -- the date of the letter was the 24th, the working group was the 29th, and I didn't get my mail until the 28th. So, that may help if we can say we're going to get all the information two weeks in advance.

CHAIRMAN BURKHAMMER: Duly noted. Thank you.

Any other comments, questions? Steve?

MR. CLOUTIER: Yes. I would hope the Agency would block some rooms over here at the Hyatt for the next meeting so we don't get into this high-rent district. These are extremely expensive room rates for out-of-towners that come here.

CHAIRMAN BURKHAMMER: I think it's becoming more and more difficult on the per diem rate, the government per diem rate, to find a decent room in D.C.

Marie?

DR. SWEENEY: Mr. Chairman, one other thing. It's a little more pleasant thing. Ellen Roznowski went to the web and found some information on the Pair-T program, on PATH, which is the Partnerships for Advancing Technology and Housing. These are both coming out of the construction and building subcommittee of OSTP.

Also, I think it's the synopsis, or actually a table of contents of a report that Labor has put together for NIOSH on intervention strategies for preventing road construction worker fatalities and injuries due to motor vehicles. I'll pass these out to the committee. We just received them now. Thank you, Ellen.

CHAIRMAN BURKHAMMER: The acting chair is noticing more and more that any time this committee wants anything, needs anything, or seems to come up with a road block, Ellen finds it for us. So, we really appreciate Ellen's contributions to the workgroup.

Any other new business, concerns, comments?

MR. DEVORA: Mr. Chairman?

CHAIRMAN BURKHAMMER: Felipe?

MR. DEVORA: I'll direct this to Bruce before we break into our workgroup session. I know Multi-employer is going to meet.

As I look down the list of workgroups that we have, a lot of them are towards standards or regulation type issues, but there are a few, obviously, multi-employer that gets into really the Agency's policy. I think we're talking about a directive, the draft that Noah passed out yesterday is what we're talking about.

What do you look for from the ACCSH committee as far as input? Obviously we're not going to change your mind on policy unless we just break new ground and discover something that you haven't thought of. So I guess my question to you is, how can we effect policy that obviously OSHA is pretty set on?

MR. SWANSON: I'm still having trouble with the comment that, obviously, we're not going to change your mind unless we break new ground. What we are looking for from this committee, this is our best direct contact with the construction industry.

I think that you are far, far too pessimistic in your appraisal as to whether or not you can change our mind. Your input is very important to us. You have a better feel for your industry than many of us inside this building feel that we do.

Along those lines, that makes Bob's point about the balance on a workgroup very important, because if we are going to heed the guidance given to us by a committee, this is not the entire construction universe sitting in this room, but we tried to select an adequate cross section from it and we would like to get as many voices as possible on the workgroup. We'd certainly like to hear from both employer and employee groups when you are suggesting to us what our policy ought to be.

I assure you, although it might appear that we never change our minds, that is not the case at all. I think the issue that we spent a lot of time talking about here in the last day and a half on multi-employers is a pretty good indication that we have heard the construction industry and are moving in reaction thereto. So, did that answer it?

MR. DEVORA: Yes, sir. Thank you.

MR. SWANSON: There's hope.

CHAIRMAN BURKHAMMER: And I think Steve can comment as well as I, or more than I, even. I've been a part of this committee for six years now, and Steve longer than I. And even in coming to the sessions before my six-year tenure, I've noticed a substantial improvement in the use of ACCSH by OSHA in the last few years.

I think, years and years ago, and Steve, again, can comment, some people in OSHA viewed the ACCSH as something that had to be there because it was required by the Federal statute, and they used them when they felt like it and they didn't use them when they felt like it, more the latter than the previous.

So, now I see more interaction, more participation in the workgroups by the people in Bruce's shop, more knowledgeable people in Bruce's shop. Not that he didn't have knowledgeable people before, but he's certainly getting a lot of the cream of the crop, now. They're very knowledgeable. They're working with the workgroups. We're getting a lot done. I think Steve's confined space report verified that. So, I see a big difference than from in the old days. Steve, do you want to share any thoughts on that?

MR. CLOUTIER: Years ago, this committee was used, abused. There was definite barriers amongst members on the committee. There was a significant barrier wall between the Agency and the committee.

I have seen, in the last 10 years, where these walls have come down and both sides of the table are talking, everybody is committed to improving safety and health for employees, and the end product of improving our safety records and just making it a better world to live in.

We have seen far better participation from the Agency. Ten years ago, we didn't have the DOC. It was a dream out there. We fought very long, very hard, and were very vocal. Members, previous to my tenure, were very adamant about it. I was adamant about it. It has come to fruition. Bruce has got a good shop now, he's got some good, talented people there.

We're not the enemy, they're not the enemy. We're all working together to try to come up with a decent product at the very end. So, yes, there have been changes, Mr. Chairman. Things are working. These workgroups are working smoothly. We've still got some tough hurdles to cross and get ahead and get behind us, but we'll make that happen.

Since I have the floor now, Mr. Chairman, I'd like to bring something else up, though. When I first joined the organization and was appointed to this committee, the prior ACCSH had turned down a daily stipend to offset some of the expenses for those of us that had to travel to the committee, recognizing that this is voluntary participation, and I understand that. But the Agency is asking more, and more, and more, and more.

We've heard today even more from these members. I think maybe this committee would like to readdress going back to the Agency, looking for some stipends to the membership. We're spending significant amounts of time here in the District.

We're spending significant amounts of time of our employers' funds back home. Something's going to have to give. All of us around the table are doing far more with a whole lot less, and I'd just like to throw that out on the table.

I don't know what ACCSH or NACCSH is doing, or the Maritime folks, but I think it's time that we come back to the table and, if the Agency wants a significant amount of time, effort and dollars from us, that we need to readdress that subject.

CHAIRMAN BURKHAMMER: Jane, would you take that recommendation from Steve as part of the workgroup on the ACCSH subgroup?

MS. WILLIAMS: Yes, I will. I've noted that to be considered.

CHAIRMAN BURKHAMMER: Marie?

DR. SWEENEY: Mr. Chairman, a couple of points. For the next agenda, would it be possible to add a presentation by the chair of the Construction and Building Committee on the Pair-T program, which is on construction and transportation, and also on PATH, which is the Partnerships and Housing for Advancing Technology? Both of those can deal with addressing the issue of public/private partnerships.

CHAIRMAN BURKHAMMER: What's the person's name?

DR. SWEENEY: Well, I'll send it through Richard Wright, W-R-I-G-H-T. Another point, is that over the past eight or nine months we've had the assistance of Camille Villanova on the Data Collection Workgroup, and she's never turned down a request for us and has really been quite helpful. So, I'd like to acknowledge her assistance. I'm glad she's going to be continuing with us.

The other thing, is being new to the committee, to whom do we send workgroup reports for submission to the minutes, and ultimately to the docket?

MR. SWANSON: All of your staff people are all on the DOC staff, so just work with them and it will get to my office and we'll take care of it.

DR. SWEENEY: Okay.

CHAIRMAN BURKHAMMER: Bob?

MR. MASTERSON: Just for clarification, my understanding is, workgroup do not submit to the docket, they submit it to the full ACCSH, who then took that under consideration.

CHAIRMAN BURKHAMMER: Yes, but they can give a report to the staff liaison, as long as it comes back and the committee members get copies of it. We're not submitting a document like confined space, we're just giving a report of the meeting to the staff. Reports of meetings can go to the staff. Anything like Steve presented this time where we're going to have to vote on it has to come by the chair of the workgroup.

MR. MASTERSON: That's all I wanted to clarify.

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

(No response)
 
PUBLIC COMMENT

CHAIRMAN BURKHAMMER: Any public personnel present that would like to speak? Charlie? Please state your name and where you're from for the record, please.

MR. MARESCA: Charlie Maresca, Associated Builders and Contractors. Just with respect to the policies to conduct workgroup sessions, with the Agency's decision to do so much of its work through workgroups, I think leaving notification to the public up to the committee co-chairs is only okay as a backup system.

I think that the primary responsibility for notification to the public should remain with the Agency, even despite the fact that, within the last month when I asked for a list of working groups, the list of the chairmen, and when those groups were scheduled to meet, I couldn't get a complete list from the Agency.

I do have some recommendations to make. That is, at least 30 days' notice of a meeting of a workgroup should be posted, at least on the web site, but I think all of the members of a workgroup need that much time, especially public members who do not at this point have these meetings in their schedules. They're going to need some time and I think 30 days is the appropriate amount of time.

In the same vein, any member of a working group should have the materials well in advance of the meeting so that they don't arrive at the meetings and be asked to speak off the top of their heads without having considered, in some cases, very important drafts and semi-final drafts.

Then I would further suggest that, if you can at all, schedule the meetings of workgroups that are going to happen between this meeting and the next meeting, schedule those today or within a short time after today, that would be sufficient notice for public members. They could put those meetings on their schedule.

Then I would have one final question. That is, if the meeting is going to be conducted by teleconference, how will public members who may not have participated in the past participate in those kinds of meetings? I know that's a question you won't want to answer off the top of your head, but it's an important question.

CHAIRMAN BURKHAMMER: Thank you, Charlie.

Jane, will you add the teleconferencing question to your workgroup study?

MS. WILLIAMS: I noted all comments.

CHAIRMAN BURKHAMMER: Thank you, Charlie. The co-chair phone notification was meant to be a backup, not a primary, so I'm glad you noted that.

Any other public comments? Yes. State your name and your affiliation, please, before you speak.

MR. HAYSLIP: Hello, Mr. Chair. My name is Mike Hayslip. I'm with Lithko Contracting and we're in Hamilton, Ohio.

I just wanted to state for the record, as a member of the public, someone outside the committee, that I believe that ACCSH is doing an excellent job. As a contractor, I don't think there's a problem with having hard, stiff penalties, as long as they're fair.

But it seems, if you look at the inspections and citations, you're a little bit too far downstream. I think it's good, with what you're doing here, and especially with the workgroups, if you'd help the public and serve the end user. It seems like OSHA sometimes has a little difficulty in helping and serving its end user.

Briefly, two comments--not to debate this particular issue, but to paint a broader picture--with the respiratory issue. Granted, there's a large, somewhat lengthy publication that comes out. Make it a little more user friendly. If something exists that is 50, 60 pages, etc. -- if I had one sheet that had two points, granted, I'm not going to get the 50 points that are important. I've got those, too, but if I don't read it, I don't have any. I've got zero. I think looking at the end user is important.

I think Mr. Smith made a good point, and he represents the sentiment, in that with this evaluation thing, granted, if a gentleman or lady is improper to wear the respirator, wrong is wrong and they can't make it right. They don't deserve to wear it, that's fine.

But there becomes a grey issue here. It's possible that good people are out there and you're keeping from them the ability to work because they happen to be grey. If you can't get a doctor to sign off, doesn't want to take on the liability. For instance, I don't want to debate this respiratory issue. I'm trying to make a larger point.

The form isn't effective, it's fraudulent, whatever, or it's improperly filled out. You're keeping good, hardworking people that have worked years, and years, and years from their trade and their craft and it doesn't seem right.

Now, my bigger point is this. I'll be brief. I'm almost done. As you do the workgroup, thank you for looking at the end user and the bigger picture, and really the craftsperson in the field. That's who we're trying to help, it seems. I just wanted to reaffirm that from outside the beltway.

CHAIRMAN BURKHAMMER: Good. Thank you.

Any other public comments? Rich? I should have known.

MR. PFAU: Rich Pfau, Donohue Construction, Safety Director. I think that something needs to be said regarding yesterday. That is that there were two items where, obviously, this committee either wasn't consulted, or wasn't consulted sufficiently enough. I'm talking about the respirator, where the folks sat up here, and there were, like, 20 questions and they couldn't answer but one.

The same thing occurred with the multi-employer. There was an awful lot that probably could have been done by the members of this committee, and obviously you weren't consulted.

I think, if we're doing the partnership, why wasn't this done? Maybe there's an answer to this, but one wonders why this isn't done, especially if the intent is to go ahead and make a partnership between the user and the Agency. Thanks.

CHAIRMAN BURKHAMMER: Thank you, Rich.

In defense of the Agency, this committee has been working on multi-employer work sites for 15 years. All of the people that have served on this committee from then until now have had input, comments, or participated one way or another in multi-employer.

I think the issue is, the Agency is trying to better define multi-employer for all of us so it makes it easier for all of us to understand the different terms and how OSHA constitutes a multi-employer.

Felipe and the workgroup hopefully are going to be able to work closely with Noah and better define some of that. I think we can fix the multi-employer issue. The respirator issue is another issue in itself.

Any other public comments?

(No response)

CHAIRMAN BURKHAMMER: Very good. I want to thank the committee and the public for their interest and participation. Meeting adjourned.

(Whereupon, at 12:10 p.m., the meeting was adjourned.)

 
C E R T I F I C A T E

This is to certify that the foregoing proceedings of a meeting of the Advisory Committee on Construction Safety and Health, Occupational Safety and Health Administration, U.S. Department of Labor, held on October 8, 1998, were transcribed as herein appears, and this is the original of transcript thereof.

SONIA GONZALES
Court Reporter