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ACCSH Transcripts: April 9, 1996
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Editor's Note: Two instances of OHSA occur in this transcript. Both should be OSHA.
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UNITED STATES DEPARTMENT OF LABOR
ADVISORY COMMITTEE ON
CONSTRUCTION SAFETY AND HEALTH
(ACCSH)
MEETING
Tuesday, April 9, 1996
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The Advisory Committee met in the Frances Perkins Building, Room N3437 A-D, Washington, D.C., at 9:00 a.m.,
Knut Ringen, Chair, presiding.
PRESENT:
Employee Representatives:
JOHN B. MORAN
WILLIAM C. RHOTEN
KNUT RINGEN
LAUREN J. SUGARMEN
Employer Representatives:
STEWART BURKHAMMER
STEPHEN CLOUTIER
THEODORE E. WEBSTER
KATHRYN G. THOMPSON
PRESENT:
State Representatives:
ALLEN MEIER
JOHN A. POMPEII
Public Representatives:
ANA MARIA OSORIO
JUDY A. PAUL
Contacts:
BRUCE SWANSON
HOLLY NELSON
TOM HALL
THERESA BERRY
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| AGENDA
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Page 4
1 P R O C E E D I N G S
2 9:00 a.m.
3 WELCOME AND INTRODUCTIONS
4 Knut Ringen, Chair
5 CHAIRMAN RINGEN: It's 9:00. We have a full
6 agenda and we'd like to get started. And since Bruce has
7 now arrived, we can.
8 I am Knut Ringen. I am chairman of the committee,
9 and we starting up again after a brief hiatus of about nine
10 months, during which budget conflicts and so on have taken
11 place. The committee has currently two vacancies; there are
12 the two state representatives. We expect them to be
13 appointed shortly. We have two members missing today, so
14 far as I know, Kathryn Thompson and Steve Cooper. Steve
15 Cooper is also a new representative from the employee side.
16 We also have one new employer representative with
17 us, Bob Masterson, who is from the Ryland Group and
18 represents the homebuilders. Welcome to the committee.
19 There are a couple of things that we want to go
20 over this morning. When the Solicitor comes I want him to
21 talk a little bit about how we operate, including what the
22 role of the working groups are, since there was a lot of
23 confusion about that last time, around which we had many
24 comments about procedures and so on, and we want to
25 straighten out hopefully once and for all the procedures
Page 5
1 that we follow with regard to these work groups. They are
2 working groups and nothing more than that, and they don't
3 have formal procedures, but we will get back to that later.
4 But in the future, when we do have discussions of
5 our issues we want to focus on the technical merit of what
6 is being proposed, not on procedural things, and that's part
7 of what we will be discussing.
8 We have a couple of changes to the agenda today.
9 The first is an additional, we'll approve some minutes this
10 morning. The second is before lunch Stu Burkhammer will
11 give a report based on the work of the musculo-skeletal
12 disorders working group. Stu will not be able to be here
13 tomorrow so it's necessary to take that report today.
14 Tomorrow, we have two additions to the agenda.
15 The first is a report on the silica special emphasis program
16 that OSHA has established. And the second is a request...
17 We will do that first thing tomorrow morning.
18 The second is the last thing that we will do
19 before we adjourn tomorrow, is a request from the American
20 Society for Safety Engineers, ASSE, to make a special report
21 on some issues that they think they can make a contribution
22 to.
23 We will definitely adjourn tomorrow before noon,
24 since we will only have, I believe, three work groups
25 reports. So my guess is that with some luck we will
Page 6
1 probably be done by about 11:00 or so tomorrow, maybe a
2 little bit before then.
3 Today, this afternoon, I expect three work groups
4 meeting. One is on safety and health programs that's been
5 established already with Judy Paul as chairman. The other
6 is on women in construction with Lauren Sugarman as the
7 chairperson. And we will propose and ask for approval to
8 establish a new working group this morning, which is a
9 working group on confined spaces. We will get back to that
10 after we've approved the minutes, and after we've had our
11 solicitor give some comments.
12 And I wondered, Steve, if you could do us a favor
13 and just talk briefly about the purpose of the committee and
14 its work groups under the Federal Advisory Act, so that we
15 are reminded of how we are supposed to function.
16 MR. JONES: Sure. Knut, I provided you with a
17 written summary of what the Solicitor's Office understand
18 the role of the work groups to be. I could read that. I
19 mean, that would probably be the most concise way to
20 proceed.
21 CHAIRMAN RINGEN: Okay.
22 MR. JONES: The ACCSH establishes work groups to
23 generate information and options for consideration by the
24 full advisory committee. In general, a work group is formed
25 when OSHA indicates to ACCSH that it will be initiating
Page 7
1 rulemaking on a particular subject, such as safety and
2 health programs, methylene-chloride, or confined spaces. A
3 work group includes interested ACCSH members, one of whom
4 chairs the work group and non-members approved by OSHA who
5 have pertinent information or ideas to offer.
6 OSHA and the ACCSH assess work group activities
7 and participation based on the work group's effectiveness in
8 laying the groundwork for ACCSH recommendations to OSHA. A
9 work group does not reach consensus, vote, or otherwise
10 resolve issues. It simply presents its compilation as a
11 report to the full advisory committee.
12 The General Services Administration regulations
13 for management of federal advisory committees provide that
14 work group meetings convened solely to gather information or
15 conduct research for a chartered advisory committee, to
16 analyze relevant issues and facts, or to draft proposed
17 positions papers for consideration by the advisory committee
18 are not covered by the Federal Advisory Committee Act or the
19 implementing regulations. This means that such work groups
20 do not need to have separate charters, balanced
21 representation of viewpoint, or meeting notices published in
22 the Federal Register.
23 Accordingly, the current ACCSH approach to work
24 groups maximizes their utility while minimizing the
25 procedural burden. This helps to ensure that work group
Page 8
1 reports and the resulting ACCSH recommendations are provided
2 in a timely fashion.
3 CHAIRMAN RINGEN: Thank you, Steve. Any comments
4 on that?
5 (No response.)
6 CHAIRMAN RINGEN: We will have this document, and,
7 please, I would like to have this document available at
8 every committee meeting that we have so that people can be
9 reminded of how these work groups are. They really are
10 working tools. It's so that we don't have to sit here
11 forever and deliberate issues in this committee, but have
12 groups work them up for us, more or less. Then this
13 committee has to get together and have discussions and make
14 decisions based on what the work groups may propose in terms
15 of options or the information that they present to us. They
16 are information gathering tools.
17 Our work group meetings are open to those who are
18 interested in participating. They'll have to come to this
19 committee in order to find out when these work group meet,
20 or they can always call the chairperson up of the work group
21 to find out, I suppose. But it's not in our obligation and
22 nor will we make any special effort beyond that to publicize
23 the meetings of the work groups.
24 The decisions that are made on any issue are made
25 in this committee rather than in the work groups. It's
Page 9
1 really of the committee meetings that are of importance to
2 the interested parties who want to have an input into the
3 decisions that are made.
4 Having said that, we may perhaps proceed. Well,
5 we could introduce each other, but I think...
6 Do you know everybody here, Bob?
7 MR. MASTERSON: Pretty much.
8 CHAIRMAN RINGEN: Okay. And we have already
9 introduced Bob, so we'll dispense with that.
10 We have minutes from the last meeting to review.
11 They are in their packets. You should have had them before
12 and should have had an opportunity to review them. Are
13 there any changes or amendments or comments on the minutes?
14 Judy.
15 MS. PAUL: We haven't had them before. This is
16 the first time I've seen them, anyway.
17 CHAIRMAN RINGEN: Well, we have had them before,
18 but maybe you did not receive them. At least I've seen them
19 before. Okay?
20 MS. PAUL: Okay.
21 CHAIRMAN RINGEN: You have not seen them either?
22 Let's defer that until before lunch and go over
23 it. Maybe you will have a chance to read them during the
24 morning. And if you're not comfortable with that you can
25 always defer your approval of them until tomorrow.
Page 10
1 I apologize to people who have not gotten them. It
2 may have fallen between the cracks between Holly and the...
3 When Holly left at the time of the last meeting.
4 MR. BURKHAMMER: Mr. Chairman, could we introduce
5 the audience so the committee knows who's out there?
6 CHAIRMAN RINGEN: That's a good idea. We'll start
7 with the audience over at the right side of the front row.
8 (Introductions from audience.)
9 CHAIRMAN RINGEN: Okay. Thank you.
10 We will then proceed with the first issue on the
11 agenda, unless there are any other comments. Greg Watchman
12 will provide us with a legislative update.
13
14 LEGISLATION UPDATE
15 Greg Watchman
16 MR. WATCHMAN: Good morning. I thought I would
17 take a few minutes this morning to run through the
18 legislation that has pending on the Hill this year that
19 affects occupational safety and health. There are a couple
20 of wrinkles that specifically affect construction that I'll
21 touch on as well.
22 First I'll start with OSHA reform, which has
23 gotten a substantial amount of attention in the both the
24 House and the Senate in this Congress.
25 Early in this Congress Representative Ballinger
Page 11
1 introduced legislation that would eliminate first instance
2 sanctions for violations of OSHA regulations. It would have
3 prevent penalties for violations of the general duty clause.
4 It would have limited enforcement to no more than 50 percent
5 of OSHA's budget. It would have eliminated NIOSH and MSHA
6 and well. It would have repealed the right to an inspection
7 that a worker has if he or she files a complaint that gives
8 OSHA reasonable cause to believe that a violation and hazard
9 exists, and it would have imposed a fairly rigid set of
10 standard setting criteria that most likely would have
11 delayed our standard setting process by quite a bit,
12 probably several years.
13 This bill had a particular impact on construction
14 in the following way. By eliminating first instance
15 sanctions it would have virtually completely eliminated
16 enforcement in the construction industry, because given the
17 transient nature of construction worksites, the first time
18 OSHA would come to inspect, given our limited resources they
19 would not be able to assess a penalty under the Ballinger
20 bill, and given the limited resources they would not likely
21 be able to come back for some time, and by the time they did
22 the job would probably be finished. So there never would be
23 any penalty assessed even for repeat violations.
24 The bill, as I said, had... Chairman Ballinger of
25 the Subcommittee on Workforce Protections, held several
Page 12
1 hearings on the bill. Ultimately he has recently withdrawn
2 his bill and said that he would start over and try to draft
3 something more moderate. He indicated that he would try to
4 model it after a lot of the initiatives that the
5 Administration has been developing and has already put in
6 place. We have not yet seen any draft of that bill, so I
7 can't tell you right now what's in it, but we will be
8 watching closely to see how it's coming.
9 Senator Kassebaum and Senator Gregg in the Senate
10 introduced legislation last year, held a couple of hearings,
11 and then on March 3rd of this year... March 5th, excuse me.
12 Held a committee markup session to vote on the bill and
13 consider amendments to the bill. Ultimately the bill was
14 reported out of the committee by a party line vote, and
15 there were three amendments added to it. I'll summarize the
16 amendments in a moment, but first let me tell you basically
17 what's in the Kassebaum legislation.
18 Again, this bill would effectively repeal the
19 right to an inspection that has been one of the core
20 premises of the Act. It would also allow OSHA to issue
21 warnings instead of citations for first instance violations.
22 It would not mandate such warnings, but it would allow the
23 agency to issue them instead of citations.
24 The bill could potentially exempt over 90 percent
25 of firms from targeting inspections, so it could have a
Page 13
1 fairly dramatic impact on OSHA's ability to target the worst
2 worksites to eliminate hazards and protect workers. It
3 would also allow in every enforcement proceeding an employer
4 to raise an alternative methods defense, and while at first
5 glance that seemed an interesting idea and worth
6 considering, ultimately the impact would be to turn every
7 enforcement proceeding into a variance proceeding. It would
8 draw out the litigation, increase litigation and effectively
9 undermine all of our standards.
10 The bill would also have substantial penalty
11 reductions. In fact, minimum penalty reductions of up to 75
12 percent for certain actions such as having a safety and
13 health program. And again, those sound like good ideas at
14 first glance, but there are so many loopholes in the
15 provision for penalty reductions that employers, even
16 employers who have a long history of OSHA violations and a
17 substantial number of serious hazards at their worksite
18 could still be eligible for a 75 percent penalty reduction.
19 Lastly, the Kassebaum bill would codify the VPP
20 and 7(C)1 programs currently operated by the agency, and
21 these two provisions are provisions that the Administration
22 does support. Nevertheless, given the overall, when you add
23 up all of the provisions in the legislation, the
24 Administration has serious concerns about it and the
25 President has indicated that he would veto the Kassebaum
Page 14
1 bill or the Ballinger bill, or similar legislation, unless
2 it adequately addresses the Administration's concerns.
3 The three amendments that were added at the Senate
4 Labor Committee markup on March 5 included an amendment by
5 Senator DuWein to delete a provision of the bill which would
6 have prevented OSHA from inspecting following receipt of a
7 complaint from someone other than an employee, so that if a
8 physician or a former employee, for example, filed a
9 complaint alleging serious hazards, regardless of the merits
10 of that complaint OSHA would not have been able to inspect.
11 That language is now out of the bill pursuant to the DuWein
12 amendment.
13 Second, Senator Jeffers offered an amendment to
14 delete language that would have allowed disclosure of a
15 complainant's name in a contested case with no limitations
16 about whether it was absolutely necessary or not. So that
17 language is not in the bill any longer.
18 Lastly, and this amendment was quite a surprise, I
19 think, that it was adopted. Senator Simon offered an
20 amendment to extend coverage of the OSHA Act to federal,
21 state and local employees. This is an amendment that, an
22 issue that has been considered in Congress in the last
23 couple of congresses, but I think no one expected that the
24 Republicans on the committee would agree to take that
25 amendment, but ultimately they did and so it is now part of
Page 15
1 the bill.
2 Under the Unfunded Mandates Act the committee now
3 has to seek a cost estimate of the impact of that amendment
4 on state and local governments, so that is in the works at
5 present.
6 In terms of the prospects for OSHA reform
7 legislation passing this year it seems quite unlikely at
8 this point. Senator Kassebaum has indicated that given the
9 relatively few number of legislative days left this session
10 before they adjourn, it seems very unlikely to her that she
11 would able to persuade Senator Dole to give her some floor
12 time.
13 If she's able to get enough co-sponsors to show
14 the majority leader that she has 60 votes to cut off a
15 filibuster should there be one, that would make it much more
16 likely that Senator Kassebaum would be able to get floor
17 time. That really remains to be seen at this point. There
18 are very few co-sponsors. I think six or seven.
19 Next, on OSHA's budget and the appropriations
20 process. If you've been reading your newspapers or paying
21 attention to the media I'm sure you are aware that the
22 government has shut down several times, that we've been
23 operating under a series of continuing resolutions rather
24 than having an actual budget for this year. I think we're
25 now up to at least 10 continuing resolutions that have been
Page 16
1 passed in order to keep the government operating.
2 Our '95, Fiscal Year '95 budget, was $312 million;
3 so far through 1996 for virtually all of it we have been
4 operating at a 15.5 percent cut from that $312 million.
5 That is $264 million. That's obviously had a fairly
6 dramatic impact on the agency and its programs.
7 At present the Senate and House have both passed
8 appropriations bills and they are in conference to resolve
9 the differences. There has been a tentative agreement that
10 the budget for OSHA for this year would be $289 million,
11 which is about a seven percent cut. But it remains to be
12 seen whether that becomes part of a final agreement.
13 One of the major issues outstanding between the
14 House and Senate conferees is the question of ergonomics,
15 and as you may recall in their rescissions legislation in
16 1995 there was a provision that banned the agency from
17 issuing a final rule, a proposed rule or even guidelines on
18 ergonomics related injuries and illnesses.
19 That language is in the Senate bill. In the House
20 bill there is that language plus additional language which
21 would bar the agency from even working on a guideline or
22 standard, and would also prevent the agency from even
23 gathering on data on the problem of musculo-skeletal
24 disorders.
25 Right now the House and Senate conferees, as I
Page 17
1 say, have not agreed on which provision to adopt. We are
2 obviously hopeful that the Senate language would be adopted
3 so that at a minimum the agency could continue to gather
4 data on this very significant problem.
5 Most recently, the President signed the debt
6 ceiling legislation which included two provisions which
7 affect the agency. First, what is known as the Bond bill,
8 implemented regulatory reform regarding small businesses.
9 The bill requires OSHA to develop a compliance guide for
10 each regulation to assist small businesses. It requires the
11 establishment of small business review panels for each
12 regulation we are working on, with representation by OSHA,
13 OIRA, and SBA. It requires a penalty reduction program for
14 small businesses at each agency. It allows small businesses
15 to recover attorneys' fees and expenses from the government
16 even if the government wins the case, if the amount that the
17 government won was significantly less than what the
18 government initially sought. It also expands the Regulatory
19 Flexibility Act provisions requiring an assessment of the
20 impact on small business and allows for judicial review of
21 that analysis.
22 This will be effective as of June 28, 1996, so we
23 are already in the process of looking at the bill very
24 closely and figuring out how the agency will comply,
25 particularly given our very limited resources.
Page 18
1 Secondly in the debt ceiling bill was a provision
2 allowing congressional review of all regulations. Now,
3 obviously, Congress can now review regulations to whatever
4 extent they want, and in fact they have done so on a number
5 of occasions, ergonomics being the most evident example.
6 But this would allow an expedited legislative procedure for
7 nullification of regulations that the Congress decides it
8 doesn't like.
9 There are really two time tracks in the provision.
10 One is for when the regulation can become effective, and
11 basically we would have to allow, from the time we send it
12 or publish it in the Federal Register we would have to allow
13 60 days for Congress to look at it before it could become
14 effective. In fact, however, Congress would have
15 potentially over a year to review this regulation and decide
16 whether they wanted to nullify it or not. That's because
17 there's a separate contract for Congress being able to reach
18 back to a reg that's already effective and nullify it.
19 Lastly, Representatives Johnson and Shays
20 introduced legislation a couple of weeks ago that would
21 require OSHA to inspect, OSHA inspectors to have
22 construction training if they are conducting inspections.
23 Right now as I understand it it's an option but not a
24 requirement, and this is legislation that would require
25 anyone inspecting a construction worksite to have specific
Page 19
1 course training in construction.
2 I brought with me today copies of Congresswoman
3 Johnson's introductory statement on the bill and a copy of
4 the bill itself. It's only one page, so I'll pass this
5 around when we're done.
6 That's basically a summary of the issues that have
7 been pending on the bill there are doubtless other bills
8 that are kicking around, but those are the major ones that
9 have gotten the most attention. If any of you have
10 questions about these or other issues I'd be happy to...
11 CHAIRMAN RINGEN: Any questions? Maybe you can
12 talk a little bit about the Fiscal '97 proposal that has
13 been submitted.
14 MR. WATCHMAN: Our budget proposal is $340
15 million, which would be an increase over the '95 level of
16 $312 million, and a very significant increase over whatever
17 it is that we end up with this year. Essentially, the new
18 money is to continue to remodel the agency.
19 The agency has been working very hard in every
20 area to address legitimate concerns that employers and
21 worker representatives, and safety and health professionals,
22 have raised about the way that the agency develops standards
23 and the way that the agency enforces them, and the
24 underlying culture at the agency that has existed for many
25 years. We've seen so far significant success with many of
Page 20
1 these initiatives; Maine 200 being the most obvious example,
2 having received the Ford Foundation Award for Innovations in
3 American Government several months ago. But obviously this
4 is a process that will take time, and we are moving strongly
5 in the right direction, I believe, but we really need
6 additional resources in order to complete the task.
7 So far, for example, we've redesigned I think
8 about 15 of our field offices. That leaves another over 50
9 offices that have not yet been redesigned. So that process
10 has slowed with the budget limitations we have been
11 operating under this year. Our hope is that with additional
12 funds we'll be able to speed that up and complete the
13 agency's reinvention as quickly as possible.
14 CHAIRMAN RINGEN: The issue that has come up in
15 particular is of course the request for enforcement money in
16 the new budget, which is below what the Senate, I think, has
17 approved even in its Continuing Resolution for this fiscal
18 year.
19 MR. WATCHMAN: Actually, I think that number is
20 not at or above the Senate number.
21 CHAIRMAN RINGEN: Any other questions? Comments?
22 (No response.)
23 CHAIRMAN RINGEN: Thank you.
24 MR. WATCHMAN: Thank you.
25 CHAIRMAN RINGEN: Next we have the standards
Page 21
1 update, and I think we'll ask all of the people who are on
2 the agenda just to come up and sit down who are here. Tom
3 Seymour, Ann Cyr, Barbara Bielaski, Joanne Goodell, Bob
4 Whitmore and Gerry Reidy.
5 To start with, you, Tom.
6 MR. SEYMOUR: It's the three of us as a panel.
7 CHAIRMAN RINGEN: Okay.
8 (Brief pause.)
9
10 POWERED INDUSTRIAL TRUCKS
11 Tom Seymour
12 MR. SEYMOUR: What we are passing out... We wish
13 to give you an update on the Industrial Truck Proposal so
14 the January notice is being passed out. We also are passing
15 out a sample, a potential sample, of what the booklet could
16 look like. We obviously are going to be asking the
17 committee for their suggestions and recommendations.
18 We're also passing out a copy of one of the CFR
19 page reduction rulemaking initiatives that will impact the
20 construction industry, and are looking for the committee to
21 give us some advice on that. And the other piece is a short
22 little table showing the paperwork burden hours for the
23 Treasury Department, which is the lead agency in the
24 government as far as paperwork, and the second leading
25 agency as far as burden hours is the Department of Labor,
Page 22
1 and so that shows you the table there.
2 And we'll talk about, first industrial trucks, and
3 then we'd like to go into the CFR page reduction initiative
4 that the President has announced, and then we'll get to the
5 paperwork burden hour initiatives. Some of the material, of
6 course, was sent out to the committee members before the
7 meeting.
8 If there's any questions before I begin, I'll take
9 those.
10 (No response.)
11 MR. SEYMOUR: The Industrial Truck Proposal was
12 published on the 30th of January and as of late last week we
13 have received 79 written comments. We had four hearing
14 requests and of course we published the hearing notice at
15 the same time we did the proposal for the construction
16 industry. We have 21 notices from individuals or
17 organizations to take part in public hearing. The public
18 hearing is schedule for April 30th and May 1st. It's the
19 same days that the public meeting is going to beheld, the
20 second meeting, on the 1904 requirement, so there may be
21 particular people that actually take part in both
22 rulemakings at the same time during that time period. Our
23 hearing will be held in the auditorium downstairs on the
24 first floor.
25 We just received... I think the AGC comment just
Page 23
1 came in. I'm not sure of all the different comments that
2 we've gotten from the construction industry, but I know we
3 just received that one.
4 The notices for those who wish to take part in the
5 hearing, we need to receive those by the 15th of April.
6 And I'll just bring to your attention the
7 discussion of the advisory committee's input and
8 recommendations is starting on page 3103 for the committee
9 members to look at.
10 So that's kind of an update of where we are with
11 the Industrial Truck Proposal.
12 CHAIRMAN RINGEN: This is based to some extent on
13 what was reviewed here last year, right?
14 MR. SEYMOUR: Yes, sir. The page 3103 in the
15 January 30th Register, actually is the criteria information
16 that came from the committee's... The working group as well
17 as the main committee. The CFR pages...
18 CHAIRMAN RINGEN: Excuse me. Just to finish up.
19 What kind of feedback do you expect from this committee on
20 this?
21 MR. SEYMOUR: Well, in general, on the Industrial
22 Truck Proposal?
23 CHAIRMAN RINGEN: Yes.
24 MR. SEYMOUR: We are no in official rulemaking so
25 if any of the members care to take part in the hearings and
Page 24
1 all we'd certainly like to have their request to participate
2 sent in by the 15th.
3 I want to just kind of give you an update on the
4 CFR page reduction. I know that this industry has been
5 fully aware of this initiative and the agency is fully aware
6 of some of the feelings from the industry, both labor and
7 management, about this effort, and I'd like to take this
8 opportunity to explain more fully what we are attempting to
9 do and to ask for committee guidance and assistance and
10 suggestions in how we might proceed with a booklet and so
11 on.
12 As Mr. Dear has indicated a number of times, when
13 we end up doing the CFR page reduction package that is going
14 to remove essentially the health standards from the 1926 CFR
15 we will have a booklet that will essentially duplicate the
16 CFR as we know it today, and we have an opportunity to do
17 more than that by making the booklet more useful. As an
18 example, we could put in the 1904 recordkeeping requirements
19 in this booklet, and I am looking to the committee for some
20 advice about what else might be appropriate to put into this
21 book to make it more useful to those in the construction
22 industry.
23 Let me begin, first, to kind of give you the five
24 steps that we are going through to meet our obligation that
25 the President has laid down for the CFR page reduction
Page 25
1 effort. We have already published in March the 275 page
2 reduction effort where we end up also impacting the health
3 standards, the... Essentially the effort there was the
4 consolidation of 13 carcinogens. We also took out a number
5 of pages dealing with state plans, rules, and things like
6 that.
7 The second item that we are doing is before you
8 now, and we're looking for maybe some comments from you if
9 you have any, from either the full committee or however you
10 care to do that, Mr. Chairman. Hopefully something maybe in
11 the next few days or so, or 45 days. These are the problem
12 regulations as we call them, and we are intending to do this
13 rulemaking and this will actually be a notice of proposal
14 for public comment.
15 We are going to be impacting both construction
16 standards and general industry standards, and we are looking
17 for some feedback from the committee about the
18 appropriateness of this. We have provided you copies of our
19 draft preamble material as well as the reg text proposals
20 that we are considering. And the pagination that you have
21 is not totally complete because some of the pages that deal
22 with preamble discussion of general industry standards that
23 are not been put into the 1926 booklet, I just didn't
24 duplicate those. But the ones that you have include some of
25 the 1910 ones such as vinyl-chloride and so on because they
Page 26
are also in 1926, in Subpart (C) in the 1100 series, so they
2 do have a potential impact.
3 We are hoping to by this rulemaking, if we get
4 support from the committee and from those in the public when
5 we actually go to the Federal Register for notice of public
6 comment. We hope to eliminate maybe 25 or 30 pages of CFR
7 pages.
8 CHAIRMAN RINGEN: So you are referring now to the
9 document that's dated March 15th?
10 MR. SEYMOUR: That's correct. Yes, sir. The
11 Solicitor has not finished their review of that, and nor has
12 our Policy Office, so you're getting a fairly early copy
13 that's in review. I was hoping to have some feedback from
14 the Policy Office and so on and given you that document, but
15 we just received that like a day or so ago and we have not
16 cranked that all in yet.
17 CHAIRMAN RINGEN: And you're asking us to go
18 through this and give you some, in some way, a review and
19 general comments on it within the next month or so. Right?
20 MR. SEYMOUR: If you might send them to Bruce,
21 that would be perfectly fine with us.
22 CHAIRMAN RINGEN: Okay.
23 MR. SEYMOUR: And you can organize that any way
24 you see fit, Mr. Chairman.
25 CHAIRMAN RINGEN: Thank you.
Page 27
MR. SEYMOUR: The third effort is the duplicate
2 pages. That's where we're trying to eliminate both pages
3 out of the construction standards that are going to be
4 duplicative of the ones that are in 1910, general industry
5 standards, and also in the maritime shipyard standards.
6 This proposal will not be any rulemaking. We're really only
7 going to take out duplicate pages. It's not really going to
8 change any obligation any employer has.
9 Joe Dear has indicated that when we do this he
10 wants to have the booklet to have available for the industry
11 then to utilize in lieu of the CFR. And I think we have an
12 opportunity here that the committee with its advice and
13 recommendations, we could make this booklet more useful than
14 the CFR has been in the past. Meaning that in the case of
15 the recordkeeping requirements that we have today, they are
16 found in the first volume of the 1910, the 1900 series of
17 standards, so if an employer in the construction industry
18 wanted to have all the regulations that apply to them they'd
19 have to buy the 1910 first volume and second volume, as well
20 as 26. This booklet... We could put all this into one
21 booklet.
22 It may be appropriate, depending on what the
23 committee might want to suggest, to put in principal policy
24 guidance or program directives. I'm not sure what the
25 committee might want to care to suggest in those areas, but
Page 28
we have some flexibility and Ann Cyr will talk about that
2 when we get to the booklet and what we are thinking about
3 doing there.
4 The fourth item is a longshoring proposal. We've
5 gone through the rulemaking on that. Now we're in the final
6 process of trying to get the final rule out. We're hoping
7 to get this final rule out probably in May. This will
8 revise the longshoring standards that have been around since
9 about 1963. We have not revised those in any formidable way
10 since they were originally issued in 1963, so this is a
11 major reinvention and improvement in some very old
12 regulations.
13 The last one of the CFR page reduction is the CFR
14 effort to revise the respirator standard, and we have a
15 number of standards... Actually the health standards that
16 have the respirator selection criteria, fit testing
17 criteria. There's going to be an effort to consolidate
18 this, to make it all into one package, one set of standards,
19 in 1910.134 in the construction standards and the shipyard
20 standards and so on. And that will save maybe around 100
21 pages, we hope.
22 So we'll meet our goal not just by taking out the
23 duplicate pages but doing all five of these items will make
24 the 1049 pages that the President has asked us to do.
25 Again, we have the opportunity with this booklet to really
Page 29
make the booklet more useable and useful to the industry,
2 and we're looking the committee maybe to suggest some of
3 those areas where they think we could add some additional
4 documents and so on.
5 Ann is here to maybe talk about some of the
6 mechanisms that we have, and you have a sample of what we've
7 put together in rough form. It is a photocopy, as you can
8 see, but I'll turn it over to Ann and she can talk about
9 some of the things that we are trying to do.
10
11 CFR PAGE REDUCTION
12 Ann Cyr
13 MS. CYR: This is really off of a fax machine and
14 then xeroxed, so it's not particularly clear.
15 What we were thinking about doing to try to make
16 this a little bit more user friendly and at the same time
17 work within budget constraints, with these you have a
18 looseleaf, a three-ring binder type of booklet. This would
19 be hole-punched, the sample.
20 CHAIRMAN RINGEN: Is this the full protection one?
21 MS. CYR: This is just a sample of a layout and a
22 size of what we might use. That would be in a binder, and
23 that would be updated on a regular basis, quarterly or, you
24 know, twice a year or something like that, depending on what
25 kind of a system we set up to capture the regulations that
Page 30
we ar producing throughout the year. And to a great extent
2 it would probably be more current than the CFR which is
3 printed ever year by the Government Printing Office.
4 Well, it actually goes there in July but we
5 frequently don't see it until December, January, whatever.
6 So it's not, this would come out... We would have more
7 control over this because we have our own database on the
8 particular document.
9 What we are thinking about doing, again, in terms
10 of because of budget, would be to offer this as a
11 subscription through the Government Printing Office. So it
12 would be based on whether it's a quarterly subscription or
13 whatever. We're working with GPO to try to determine that.
14 I started talking to them in March, and I now have submitted
15 a proposal to them but don't have any actual feedback at
16 this particular time.
17 What they do when they have their subscription
18 program is that after a certain number of years, two or
19 three years, everything is consolidated into one unit, to
20 keep everything current, and then you continue on with the
21 subscription.
22 The other thing that we are proposing to do is to
23 have, to continue to have our regulation on the Internet, so
24 they will be available electronically, and of course they
25 are available CD-ROM, so you'd have three options. We
Page 31
1 thought that this format might be useful because you could
2 put other types of materials in there and it's a lot larger
3 than the Code of Federal Regulations. Unfortunately, it
4 follows pretty much their same format, so the logic isn't
5 improved necessarily. But the actual useability is much
6 better because you don't have the small type and you don't
7 have this really thick volume.
8 The other things we'll look into in going through
9 this process is, you know, what kind of a contents or what
10 kind of an index that might be more useful as we go along.
11 But all of our concerns, really, are based on time and money
12 in terms of not having to print massive quantities
13 throughout the year, and this is soon to be a viable
14 alternative, and we would appreciate whatever suggestions or
15 ideas you might have on this. And if you have any
16 questions...
17 MR. SEYMOUR: Let me just add a couple of things.
18 If you'll notice up in the right-hand corner we
19 have the section as well as the paragraph designation, and
20 that's something that's not in the CFR. All you'd get in
21 that is the section heading. And obviously, the larger
22 print. We would certainly entertain any format suggestions.
23 I think making print bolder and things like that makes it
24 easier to find information in this kind of document.
25 The indexes and table of contents, something like
Page 32
that could also be improved, and we would certainly
2 entertain any kind of suggestions the committee may have to
3 make in that regard.
4 CHAIRMAN RINGEN: Can any person from this
5 committee simply make, give you their own comments? Within
6 the next... If there is anybody who has comments just send
7 a fax to you?
8 MS. CYR: Yes. Sure. Or you could send them to,
9 give to Bruce. We're just down the hall, some. Either way.
10 MR. SEYMOUR: I think we would prefer if you might
11 send them to Bruce. We're looking for Bruce to be kind of
12 the focal point, so if they might send them to Bruce and
13 Bruce will get them to the appropriate people. However you
14 want to best do that.
15 MR. MASTERSON: Do you have any restrictions as
16 far as the language you can use?
17 MR. SEYMOUR: Well, we are looking to... When we
18 say we are going to print the standards, when we do the CFR
19 we're going to take the text out, but there will still be
20 the 1926 number there and you'll have a reference back to
21 1910.
22 When we do the booklet we're actually going to put
23 the text in there, so there will be no reference to 1910.
24 You'll actually have the text of the standard. If you mean
25 now we want to change the wording of the standard we would
Page 33
1 like not to do that, because then it won't be representative
2 of what of course the standard actually is. But if there's
3 other kinds of documents, directives or things like that, we
4 can certainly put those in there if that's the committee's
5 suggestion.
6 MR. MASTERSON: The reason I was asking the
7 question is a lot of people that have to use the standards
8 are not attorneys, and if we can put something in plain
9 English it's a lot easier for them to understand and deal
10 with it.
11 MR. SEYMOUR: We have an initiative that the
12 President is looking for all regulatory agencies to go back
13 and put their standards, requirements, into more
14 understandable language. We have a number of initiatives
15 that we are trying to do.
16 As you are fully aware, you helped us with the
17 scaffold initiative, and as we do rulemakings in the future
18 that's going to be part of what we are going to be doing,
19 getting people to help us put things into plainer English,
20 or plain English as we call it.
21 MS. CYR: Also, OSHA has a program... We do have
22 booklets that explain those.
23 MR. SEYMOUR: That could be something that we
24 could probably put into the booklet as well, maybe, a
25 listing of the publications that would help elaborate more
Page 34
about, say, scaffolds or whatever, fall protection and so
2 on, that's available from the OSHA publication office.
3 MR. MASTERSON: Going back to the scaffolding
4 issue. I remember as we going through that that you all
5 were very restricted in how you could change language, even
6 though you may not be changing the context.
7 MR. SEYMOUR: That was true because we were of
8 course through the rulemaking record and we were at the
9 final stages, but in the future, at the proposal stage, when
10 you see some of our proposals coming out we'll have probably
11 multiple formats. Possibly a Q&A format and different kind
12 of formats to let people pick which they think is the easier
13 way to understand some of our requirements.
14 It's true, as you indicate, that when we were
15 doing scaffolds, being as it was at the final rule stage, we
16 were more restricted in what we could do, but in the
17 proposal stage that really won't be a limitation then.
18 CHAIRMAN RINGEN: Just so I understand this...
19 MR. SEYMOUR: Yes, sir.
20 CHAIRMAN RINGEN: ...whole process better, because
21 I think a lot of people are confused about it. But if I
22 think back a little bit, the idea here is to reduce the
23 number of regulatory pages gradually, by more and more doing
24 away with the separate publication of all of 1926 standards
25 and the issuing of these kinds of, maybe notebook sort of
Page 35
documents in their place, and you receive those as sort of
2 by cross-referencing the 1910, using that more as the
3 guidance to the construction industry?
4 MR. SEYMOUR: Well, the CFR booklet that we have
5 right now has all the text standards. In doesn't have...
6 In this, of course, it doesn't have 1904, which is also a
7 regulation that the construction industry is to comply with.
8 When we ended up doing this booklet, the text of the
9 standards we have in here right now...
10 Like vinyl-chloride is an example. In the
11 booklet, the vinyl-chloride text will be there just like it
12 is here. But when we end up issuing the next CFR back in
13 January or December of this year, or January of next year,
14 you'll have in the text then, you'll have the 26 number and
15 the heading for vinyl-chloride, but then there will be a
16 note saying there the regulatory text is the same as 1910,
17 and that's where the text is located. So if you're going to
18 rely on the CFR, then if you didn't have this booklet, if
19 you were going to rely on the CFR, you'd have to then get
20 both volumes of the 1910 booklet because 1904 is the front
21 of, before 1910 as well as the health standards.
22 The intention was that we would be able to have
23 this booklet, and you would have everything you might need,
24 at least the principal things. Again, the committee may
25 have some suggestions to help us maybe better focus in on
Page 36
1 that in this one booklet.
2 We could do galley proofs and things like that if
3 someone else wants to print them besides maybe the service
4 with the GPO. It would be certainly a public information
5 document.
6 CHAIRMAN RINGEN: I think what this committee and
7 most of the people in the construction industry have been
8 concerned about is that we are not going to have one place
9 to access construction standards anymore, and I think that's
10 the real issue, and also to access them as you say, in a
11 manner that most people can understand.
12 MR. SEYMOUR: Well, the agency has been charged as
13 all other federal agencies have been charged, that if we do
14 rulemakings in the future we are to take due consideration
15 of putting things in what we would call plain English, more
16 understandable language, and there will be various
17 mechanisms that will be used to do that. Some of the
18 proposals that are being developed right now to revise some
19 rules that were issued back in 1971 in the general industry
20 standards will actually have multiple formats to see what
21 the public thinks. The Family Leave, Medical Leave Act, was
22 done in a Q&A format, and we've been asked to put some of
23 our proposals into that kind of format, so we'll see what
24 the public thinks about that as a more understandable
25 approach to rulemaking.
Page 37
CHAIRMAN RINGEN: Finally, do you expect that
2 these, what you call notebook documents, will become
3 available for every 1926 standard?
4 MR. SEYMOUR: I'm sorry. This is going to be the
5 whole... This will take care of all the 1926 standards and
6 can be more than that. I mean, we have an opportunity here
7 with the advice of the committee that you chair to maybe
8 make this booklet even more useful than the CFR, and that's
9 what we're asking the committee to help us with.
10 CHAIRMAN RINGEN: Steve.
11 MR. CLOUTIER: Well, I applaud you on this effort.
12 I think anytime we can make it more user friendly, the more
13 we can use bold prints and pick up on the key things. We
14 talk about guardrails and we bold print 42 inches, and we
15 bold print 21 inches. We go on to fall protection in there
16 and we bold print. We said the use of a body belt goes out
17 January 1,1998, well we ought to sit there and say you're
18 going to need a full body harness, it's not going to hurt
19 anybody to spell it out in there.
20 You know, we see these documents that J.J. Keller
21 has and BNA has, and Commerce Clearinghouse. This is the
22 way to go. For a user friendly on a construction site if
23 they're not going to go and tie in to the Internet or CD-
24 ROM, then a superintendent or a foreman or any craft worker
25 could pull the book off the shelf, it's in bold print,
Page 38
1 because when you pick up your CFR and the others, what I
2 call the toilet paper version, it's so small you can't read
3 it. It's almost not being used.
4 This is an excellent document, and I encourage
5 that we expand it for the entire 1926 standards every time
6 that we revise and update.
7 MR. SEYMOUR: Okay, Stephen, this is going to
8 cover... We talking about having this totally for 1926.
9 Every standard. The 1904 regulations could be put in this
10 format. That's what I'm advocating, we put that as part of
11 the booklet because the fatality reporting requirements and
12 so on would also be in this booklet, whereas it's not in the
13 CFR right now in one volume. The format like you were
14 talking about, highlighting certain things, if you have some
15 suggestions on that we can easily do that. We're looking...
16 I'm sorry. Go ahead.
17 MS. CYR: And the 1910's will be...
18 MR. SEYMOUR: Well, but, that will be a whole
19 text. The things that have actually been brought across in
20 1993 when we did that, we put the whole text in there and we
21 actually gave it a 1926 number. Those 1926 numbers will
22 stay there. We are not taking everything out that we put in
23 in 1993, what I call bits and pieces. We're really dealing
24 with whole sections now, and so that's all we're going to
25 take out.
Page 39
1 The rest of the stuff, where you end up putting
2 some things in on, oh, say explosives or something like
3 that, where we had a paragraph or two that we added into
4 1926 and gave it a 1926 number, we're not taking those out.
5 They're just going to stay in the CFR the way they are. But
6 they also will all be in this booklet.
7 Everything we're going to have in the CFR plus
8 will be in this booklet. And also as Ann indicated, we have
9 an opportunity maybe to keep it up to date, much more
10 current, than we ever have been able to do with the CFR. If
11 we do it quarterly... If there's that much activity going
12 on we would be able to do that. If it's not, then we would
13 probably do it semi-annually or however. But the direction
14 that I have from Joe Dear is we will have this booklet.
15 When we come out with the removal of the pages,
16 and you won't see the removal of those pages until the new
17 CFR comes out, which would be, again, December of this year
18 or maybe January of next year, we ought to have this booklet
19 ready. And so we're looking for some feedback. And you all
20 maybe give it back to Bruce, and if you could do that over
21 the next month or so that would be fine.
22 CHAIRMAN RINGEN: So you expect to have the whole
23 thing finished by January of next year?
24 MR. SEYMOUR: I'm sorry. Say that again, please?
25 CHAIRMAN RINGEN: You hope to have the whole thing
Page 40
1 finished by January of next year?
2 MR. SEYMOUR: This booklet... Go ahead.
3 MS. CYR: No. It will published well before that
4 time. We're looking at in the next few months.
5 CHAIRMAN RINGEN: For all of the 1926.
6 MS. CYR: Right. For what's current. And then
7 your subscription will pick up whatever happens between, say
8 the first quarter... Say we publish this in July and in the
9 next quarter there is some regulation. Well, that would be
10 in your next portion of your subscription.
11 MR. SEYMOUR: Just one more time. What will
12 happen in December and January will be the new revision of
13 the CFR, and that when it comes out the next time around it
14 will not have all of the Subpart (C) whole text in there. It
15 will have just...
16 It will have the numbers in there, the 1926.1117,
17 vinyl-chloride, but then you're just going to have a note
18 saying the text is in 1910. When we do the booklet, it will
19 have all the text. It will look like it does right now in
20 the green CFR. And we...
21 Again, Joe Dear wants this booklet available so he
22 can show that it's now available for the industry at the
23 time we take the pages out.
24 MR. CLOUTIER: One other comment. My partner
25 here, Bob Masterson, talked about getting it in plain
Page 41
1 English. If we can't do the entire document in plain
2 English maybe we could do one or two pages with bullets on
3 there explaining what, however else, 42 inches, 21 inches,
4 200 pounds. And just do a single page of bullets in there.
5 If it's going to work in the industry and get it to plain
6 English we're going to have reduce this down to one or two
7 pages.
8 MR. SEYMOUR: Okay. We have a little pocket
9 booklet...
10 MR. CLOUTIER: And a summary.
11 MR. SEYMOUR: We have those little pocket booklets
12 that we've done. Maybe that's maybe the place where we
13 would do something like that. We were looking to make sure
14 that all the legal obligations the employer would have would
15 actually be in here, so like you're indicating, we could
16 highlight the 42 inch guardrail height an the text where it
17 actually appears, but you're talking about putting in
18 another heading of some sort?
19 MR. CLOUTIER: Well, I'm thinking if this was the
20 package I'm consulting on my fall protection there could be
21 a separate page that just had bullets on it. Here's what
22 you need to look at. You're talking about a construction
23 worker, you're talking about a company that's going either
24 into the industry or has been in the industry, wants to pull
25 it out, give me fast summary. Well, here's a bullets of
Page 42
1 there that talks about fall protection.
2 MS. CYR: Abbreviated contents for that particular
3 area.
4 MR. CLOUTIER: Just in plain English. Plain
5 English.
6 MR. SEYMOUR: We could do that.
7 MS. CYR: Yes. That's a good idea. You may want
8 to... I would suggest recommending all of these, taking
9 them all through Bruce and then we'll look at them and see
10 how we can divvy them up and the best way to proceed on
11 this, because of the quantity and the time frame.
12 But the other aspect that Tom is talking about too
13 is that once the new regulations come out they will be in a
14 better language format. But your idea is just like a quick
15 reference, that's what you're saying.
16 MR. CLOUTIER: A quick reference, bullets, plain
17 English, could go a long way in our industry.
18 MR. SEYMOUR: We could do that as like a lead-in
19 to the Subpart, or at the conclusion do so. And then you
20 might want to suggest where you think the best place to
21 locate that would be. We could do that.
22 MR. CLOUTIER: Yeah. Every time a standard comes
23 out there's 15 pages of preamble, and there's 30 pages of
24 comments, and you get down to the last page it has the
25 issues. We want the issues out front. We want... What
Page 43
1 makes a business tick. What are we looking for.
2 MR. SEYMOUR: Okay. Maybe when you give your
3 comments back, Steve, maybe you might want to just give us a
4 sample of what you envision. That would be helpful to us.
5 We could then try to do that. And if we don't get it all
6 done this time we can certainly do it as we do the revisions
7 of the booklet.
8 MR. MASTERSON: In this booklet as you perceive it
9 would you be able to replace text with drawings?
10 MR. SEYMOUR: With drawings?
11 MR. MASTERSON: Yes. Just a cover on the entire
12 first page with one simple drawing.
13 MR. SEYMOUR: Which is what we suggested with in
14 scaffold discussion, yes? To me... Even what Stephen is
15 advocating is like a lead-in summary. We could do the
16 summary; we could do drawings as well. Sure we could. This
17 is not going to be restrained by the Government Printing
18 Office from the CFR point of view. The Federal Register
19 won't have to be the same format that we're... I mean, this
20 won't have to be the same format as the Federal Register.
21 So we have that flexibility if we want to do that here.
22 These would be helpful suggestions to us as we try
23 to make it more useful to the members of the construction
24 industry.
25 Okay. Can I go on to the paperwork burden?
Page 44
1 Barbara is going to pass those.
2 I just wanted to highlight, we have passed out
3 this table showing the burden hours that the government had
4 as of before the rules came out from OMB regarding the new
5 Paperwork Reduction Act that was passed in 1995. In that
6 piece of legislation the Congress with due purpose
7 overturned the Supreme Court decision where the Court had
8 indicated that being that the papers were not coming back to
9 the federal government it didn't have to count as burden.
10 And with that understanding, then, we had done
11 some rulemakings where we put in certifications and things
12 like that that was just between the employer and his
13 employees, or we might come and look at that and that would
14 be it.
15 We've had to then go back, now that that's
16 considered a paperwork burden we've had to go back and add
17 in some of those burdens. And so this shows you the
18 increase from what the Labor Department had in June of '95
19 to what it had at the end of this calendar year in December.
20 And as it comes up in a total tally, Treasury, obviously,
21 with the IRS is the lead agency as far as burdens on the
22 public as far as written requirements and things like that.
23 Written records, et cetera. And their's is 53 and plus.
24 And then the Labor Department is the second
25 highest federal agency as far as burden hours, and ours is
Page 45
1 266 million. Of the 266 million 207 million are OSHA's
2 paperwork burden requirements. So OSHA ends up being the
3 driving force in the Labor Department as far as burden. And
4 so we are looking at trying to come up with a strategy to
5 reduce these burdens, and as you can see in the bottom part
6 of that single sheet, in FY 96 we're going to reduce it by
7 10 percent, in '97 10 percent, and then from there on down.
8 That reduction is a goal that has been established
9 in the legislation, in the Office of Management and Budget,
10 and the department is asking us to help do our part to help
11 the Labor Department make its goal. So we are looking at
12 coming to you all as we have sent some things out in
13 advance, and Barbara's going to talk a little bit about the
14 paperwork requirements.
15
16 PAPERWORK REDUCTION
17 Barbara Bielaski
18 MS. BIELASKI: First I'll just go over the two
19 documents I just gave you. The first one, the Federal
20 Register notice of February 13th, is a listing of all the
21 paperwork requirements in the OHSA standards, along with the
22 OMB approval number. For construction you'll want to note
23 that we've created, we're taking a section in the
24 construction standards and we've put all these numbers in
25 the same place.
Page 46
1 For those of you who kept track of the control
2 numbers in the past, we used to put them at the end of the
3 sections, and what we did to avoid confusion was to identify
4 all of the collections of information in our standards and
5 put them in 1926.5. So in the next CFR you'll see a new
6 1926.5, and you'll see the OMB control numbers.
7 We also sent you a memorandum that explained the
8 Paperwork Reduction Act, our obligations under the Act. We
9 talked a little bit about the OMB implementing rules and
10 regulations and explained to you the problem that we have of
11 reducing our burden hours. And just in case you didn't
12 bring your copy with you I gave you another, and I'll just
13 highlight some of the things out of that.
14 We really need some help from you on this, because
15 under the new Paperwork Reduction Act of 95 OSHA like all
16 the other federal agencies has been told that it must reduce
17 its burdens on the public by 10 percent. That's for FY 96.
18 And in FY 97 we're going to have to reduce it by 10 percent
19 again, and then by five percent each year up through 2001.
20 It's a very complicated process to discuss, and it
21 can get kind of boring, but let me just highlight some of
22 the things it.
23 There was a Paperwork Reduction Act of 1980. It
24 was amended in 1986, and some of you who have been on the
25 committee for awhile might remember that in the late 80's we
Page 47
1 identified some of the burdensome detailed recordkeeping
2 requirements in the construction standards and converted
3 them to something called a certification record. And under
4 the old Paperwork Reduction Act certification records didn't
5 have to be approved by OMB. We could put those types of
6 requirements in the standard and not have to get OMB's
7 permission.
8 Now, under the new Paperwork Reduction Act of
9 1995, certification activity counts the same as any detailed
10 paperwork requirement. These are all called collections of
11 information. A collection of information might not
12 necessarily be something in writing. Even though we refer
13 to it as paperwork reduction, it's not always paperwork. It
14 might be any activity that would require an employer to
15 maintain, disclose, prepare information to a third party, to
16 the government, to their employees.
17 So what we have done is we have gone through all
18 of our safety and health standards once again. We have
19 identified all the paperwork requirements in there, all the
20 collections of information. We have listed all of them in
21 the Federal Register notice. We have showed the OMB
22 approval number. That gives us...
23 Actually, that's our enforcement tool. If you
24 don't have an OMB approval number you cannot impose a burden
25 on anyone for having violated that provision.
Page 48
1 And now what we're trying to do is identify which
2 collections of information we can revise to further reduce
3 the burden on the public, or perhaps we can even revoke
4 some. Now, we have 207 million burden hours, and we need to
5 reduce that by 10 percent. We expect to add about 6 million
6 burden hours for upcoming standards, some of those in a
7 construction area. For example, steel erection.
8 So the document that we sent to you, we only
9 talked about certification records and identified nine
10 certification records. And we had hoped that we would get
11 some feedback from you, some recommendations on whether or
12 not we should keep those requirements, or we can make some
13 changes to them, or revoke them. We're also asking our
14 field staff to give us input on this issue, and the state
15 designees.
16 And we are available for questioning now.
17 CHAIRMAN RINGEN: First of all, I don't understand
18 this chart thing.
19 MR. SEYMOUR: I'll try again, then.
20 CHAIRMAN RINGEN: I understand the bottom of it,
21 but I don't understand the top of it.
22 MR. SEYMOUR: Well, the top is the difference
23 between June and December was the, what happened in that
24 time was the new OMB rules came out and we had to meet the
25 new requirements. So what Barbara just said about we went
Page 49
1 back and we worked our fannies off to get everything in
2 place before October 1. That's why the burden for the Labor
3 Department went up, is because OSHA and other agencies were
4 putting in all the pieces of collection of information that
5 heretofore maybe were not considered paperwork, and now in
6 the new rules and the new statute were considered paperwork,
7 since we had to get appropriate clearance and authorization
8 from OMB, and we submitted all those and we've gotten
9 approval for all of our collections of information.
10 Some of the approvals weren't even for one year.
11 In some cases OMB will give you an approval of up to three
12 years, but in some cases they gave us less than a year
13 approval on some things and we had to do some other stuff.
14 But that's why the increase shows how we had to go about
15 counting those new burdens that previously weren't
16 considered paperwork.
17 CHAIRMAN RINGEN: It's a huge increase. The
18 Department of Labor is very different from the other
19 departments.
20 MR. SEYMOUR: Say it again, please?
21 CHAIRMAN RINGEN: Well, you went up from 48
22 million to 266 million hours, based on this. So that fully
23 half, or almost half of all of the increases based on this
24 assessment throughout the federal government came here at
25 the Department of Labor.
Page 50
1 MR. SEYMOUR: Well, in the Department of Labor we,
2 in the new legislation we ended up, in the course of new OMB
3 regulations, all the agencies put their stuff in, and again,
4 OSHA accounts for 207 million of that 266.
5 CHAIRMAN RINGEN: Bruce?
6 MR. SWANSON: I think, Mr. Chairman, one of the
7 greatest variables here is that OSHA used to look at the
8 time necessary to prepare paperwork, and we are an
9 inspection based organization. What we did not maybe spend
10 enough time counting gin the past was the hours necessary to
11 gather the information to gather the information to prepare
12 the paperwork. So you have to count the whole inspection,
13 which is why we went from the, I believe, why we went from
14 the 48 to the 200 million.
15 MR. SEYMOUR: Even how they interpret training, as
16 an example. The time that the instructor will use to
17 prepare his materials, the time it takes him to deliver the
18 materials, the time to record who attended the class or
19 successfully completed the class or the course or whatever,
20 all those are burden hours that now are being counted. And
21 a number of other interpretations by OMB on how they
22 approach what is collection of information has entered into
23 how we've added up our total.
24 MR. SWANSON: Mr. Chairman, they said we weren't
25 using the right hours. It's just like your tax auditor
Page 51
1 tells you, you know, that you weren't using the right
2 numbers, kiddo.
3 CHAIRMAN RINGEN: But this was just so much more
4 the case at this department than at any of the others.
5 MS. PAUL: Well, so, if a standard comes out and
6 the first time that the employer has to comply with the
7 standard it takes lots of hours because the developing
8 programs are being put in place, and then as time goes by it
9 becomes kind of an automatic thing because they are in
10 compliance and they are doing these things, or they are not,
11 but either way the first, right from the get-go there's
12 going to be lots of hours that ongoing now are going to
13 diminish. Is that taken into account?
14 MS. BIELASKI: Yes, that is taken into account.
15 Normally when we do... For us to...
16 Let me just tell you what we have to do to clear a
17 package. If there's a collection of information requirement
18 in the standard, the standards writer, the project officer,
19 is going to have prepare a package and answer 18 questions
20 to OMB, starting with what is the practical utility of this
21 requirement? They're going to want to know how many
22 employers are affected by that requirement.
23 How long does it take them to prepare the
24 paperwork? If they have to do something in order to prepare
25 the paperwork, like make an inspection of a claim, how long
Page 52
1 does it take to make an inspection to get the information to
2 prepare the paper. How long does it take for the employer
3 to get that piece of paper out of the file cabinet and make
4 it available to the compliance officer at the time of
5 inspection? So all those numbers...
6 And then we have to assess the amount of money
7 that it would cost the employer to comply with the number of
8 hours that it takes them to do that, and if they have to buy
9 any new equipment in order to maintain these records, how
10 long does it take to do that, or how much does it cost to do
11 that? There's a new staff person. How much does it cost to
12 do that?
13 So all that information is figured out upfront.
14 This is all public information. And we sometimes, most of
15 the time the burden is a first year burden, and what we do
16 is we calculate the burden for the first year, the second
17 year and the third year. We only give three year approval.
18 Sometimes they don't even give us a three year approval. If
19 it's a really big collection we might only get a one year
20 approval.
21 At the end of the three year approval we have to
22 go back and do this all over again, and some of you may have
23 seen that here recently with the new Paperwork Reduction Act
24 where we only got six month approval or nine month approval
25 on some of our bigger collections, we've actually had to put
Page 53
1 a notice in the Federal Register and give 60 days for the
2 public comment, and after we get that public comment we'll
3 have to go back and answer those 18 questions again, and
4 we'll have to discuss that public comment, and then we'll
5 have to ask OMB to approve the information collection
6 requirement, give us a number, we've go to publish the
7 number, and then we can go about our business of
8 enforcement.
9 MR. SEYMOUR: Otherwise we can't enforce the
10 standard. Or that provision, anyway.
11 MS. BIELASKI: Now, somebody in the course of
12 commenting one of these should bring to our attention that
13 we have failed to take into consideration that these hours
14 dropped down in the second year, then we can take what's
15 called a program adjustment, and we can adjust our numbers
16 downwards. We're not sure, we think they're going to
17 account adjustments toward our 10 percent reduction.
18 Normally they only count program changes. Now, a program
19 change would mean that we actually went and changed the
20 rule.
21 CHAIRMAN RINGEN: And what exactly is it that
22 you'd like this committee to do?
23 MS. BIELASKI: We would like to have
24 recommendations on just the certification records that were
25 listed in the attachment to the memorandum. We're not going
Page 54
1 to get into the other kinds of...
2 We also have plans, procedures, programs and
3 assessments that are also all collections of information,
4 but we're saving them for another time. Our first activity
5 is to look at just the certification records.
6 A lot of people feel that certification records
7 are really... These are the records, remember, that require
8 you to give, for example, you might have to either conduct
9 training or make an inspection of a crane, and when you are
10 finished you're going to prepare a record that says which
11 crane was inspected, some number or identifier, so that
12 we'll know what the record matches, and we want to know when
13 did you inspect it? And then we want the signature of the
14 person who did the inspection or the employer's signature.
15 And then the last record is always kept on file.
16 Those three data element records are called
17 certification records. There are many records. And those
18 have the greatest potential to be revoked or revised because
19 our compliance officers can go to the site and look at the
20 crane and see if there is something wrong, or in some cases
21 they can't, depending on what they've inspected. But they
22 can make some determination at the site. They can ask
23 employees about their training. So they have the greatest
24 potential for being eliminated or reduced, further reduced.
25 I'm not sure how we might further reduce a three
Page 55
1 data element record, but you can see the numbers attached
2 forms. The crane inspection is the big one.
3 MR. SEYMOUR: We would like to have some feedback
4 through Bruce from you all about maybe which ones you think
5 would be the ones that maybe from your judgement are least
6 useful and which ones maybe are necessary and should not
7 eliminated.
8 CHAIRMAN RINGEN: Any more comments about this?
9 (No response.)
10 CHAIRMAN RINGEN: This whole issue of whether it's
11 Administration imposed reinvention or congressional imposed
12 reductions is a pretty huge undertaking, and part of the
13 problem is that it covers a very broad range of issues. I
14 think we need a little bit of time to think about some of
15 these things, and I'd suggest the following, if that's
16 agreeable with the committee. That between now and then
17 I'll take responsibility for trying to produce a reasonable
18 response to both this document, this draft, which is the
19 3/15 draft of miscellaneous changes, as well as on this
20 issue that has to do with the burden hours that you're
21 asking for.
22 And I'll seek input from the various members of
23 the committee. And I want to work with Bruce and the people
24 at OSHA a little bit to try to come up with a process.
25 Because this is going to take some time, and you're going to
Page 56
1 come back to us with more and more of this stuff.
2 And I think we have to come up with a slightly new
3 process within this committee for how to deal with such a
4 huge, generic kind of issue that deals literally with every
5 aspect of regulation.
6 MR. SEYMOUR: Mr. Chairman, also, as we do rules
7 in the future this really is going to have a major impact on
8 some of the decision-making about whether we really need to
9 have that written record or that collection information or
10 not, because as we put more in we still have to make this
11 reduction. It's not you add more, you take 10 percent of
12 that.
13 We have the baseline which you see here of 266 and
14 we're working from that baseline down. So everything we add
15 has to be neutralized by having something else that we've
16 taken out to make sure that whatever we added still doesn't
17 add to our total.
18 CHAIRMAN RINGEN: How many more of these kinds of
19 things do you think you'll come to us with in the course of
20 this year?
21 MR. SEYMOUR: I think this is the one that we are
22 looking to do this year.
23 CHAIRMAN RINGEN: Okay.
24 MR. SEYMOUR: But as you can see from the table,
25 we're talking about like a 40 percent reduction over the
Page 57
1 next four or five years, so we've really got to make some
2 inroads into cutting things that maybe people would say
3 well, we shouldn't really eliminate that record, we're going
4 to have to find some way to judge which ones we need to keep
5 an which ones we need to get rid of.
6 MS. BIELASKI: Will the baseline stay the same,
7 then? For the all the years?
8 MR. SEYMOUR: Well, OMB is not going to allow us
9 to raise our baseline. They are looking for...
10 This is what we have. Now, as we add new
11 standards that will, that has potential for raising our
12 baseline, but we're looking for a ten percent reduction, so
13 we're not going to say, increase it up to, for OSHA, say up
14 to 230 million burden hours and now we're going to take 10
15 percent of that. We had to get all of our burdens in before
16 October 1, and we really worked hard to do that, both health
17 and safety standards, construction. We all put them in.
18 And so that's what we have. That's why we have this
19 increase, a significant increase in what we previously had.
20 CHAIRMAN RINGEN: And by the year 2001 all of the
21 OSHA regulations are supposed to, in terms of burden hours,
22 in total, are supposed to be 40 percent below where they are
23 now.
24 MR. SEYMOUR: Yes. That's what they are...
25 That's what the statute says.
Page 58
1 Obviously, I passed out that chart or little
2 table, this one here, and the government goal of course is
3 10 percent, and compared to IRS and Treasury we're really
4 kind of a little small fish in the pond here. But for us to
5 be number two, they are looking at us to make our
6 contribution to the cause. And whether the government seeks
7 and makes that 10 percent goal, obviously, will be dependent
8 upon the Treasury Department's actions as well.
9 CHAIRMAN RINGEN: But you should be down to about
10 135 million hours in 2001. Or something like that.
11 MR. SEYMOUR: It will be down, yes.
12 MS. BIELASKI: But it's only... It's only a goal.
13 MR. SEYMOUR: It's a goal.
14 (Laughter.)
15 CHAIRMAN RINGEN: So if it's changed over time...
16 So if its agreeable, what we'll do with this is
17 that on, since I don't have any other work assignments...
18 (Laughter)
19 CHAIRMAN RINGEN: Until the next meeting I'll try
20 to make some sense out of this, from our committee's, not
21 from your perspective, from our committee's perspective.
22 and if any of you have any comments on this if you can get
23 them to me that would be very helpful, and I'll get in touch
24 with each of you about the specific issues. And working
25 with Bruce we'll have some sort of recommendation back to
Page 59
1 you by the next meeting. Not today's committee but the next
2 meeting. Is that acceptable to everybody?
3 Okay. Thanks.
4 MR. SEYMOUR: Well, we're... I'm sorry. We're
5 looking... We were hoping that maybe you might really give
6 Bruce at least what you are suggesting. I'm not sure
7 budget-wise when your next meeting will be.
8 (Laughter.)
9 CHAIRMAN RINGEN: If we don't have a meeting
10 within the next couple of months again then we will
11 certainly make sure that you have it, and that we have had
12 committee input into it.
13 MR. SEYMOUR: I guess we would like it maybe by
14 the end of May, if that wouldn't be too much of a
15 difficulty.
16 CHAIRMAN RINGEN: That would be fine.
17 MR. SEYMOUR: And we will certainly visit this
18 again and again, as you indicated, Mr. Chairman. And I do
19 appreciate your time for us to make a presentation. Thank
20 you very much.
21 CHAIRMAN RINGEN: Thank you.
22 It's 10:30. We still have a lot of stuff to do,
23 but I wonder if we shouldn't take a short break. A ten
24 minute break. It's 10:20 now; we'll start exactly at 10:30
25 with Bob Whitmore.
Page 60
1 (Whereupon, a brief recess was taken.)
2 CHAIRMAN RINGEN: Back on the record.
3 We will finish up with Bob Whitmore and... I'll
4 let you introduce yourself. But go ahead, Bob.
5
6 RECORDKEEPING
7 Bob Whitmore
8 MR. WHITMORE: Okay. Thank you, Mr. Chairman.
9 First of all I'd like to just very briefly thank
10 the chairman and Mr. Burkhammer who heads the recordkeeping
11 subcommittee, I guess you call it, for helping us to finally
12 get this proposal out in the Federal Register. It took...
13 It only took nine years, but February 2nd it actually
14 appeared in the Register, and what I've given to the
15 committee members, and I will lay copies in the back of the
16 room, are two pieces of paper. One is a Federal Register
17 notice from yesterdays Federal Register announcing a public
18 meeting, a second public meeting, as well as a news release,
19 a Department of Labor news release talking about he same
20 issue.
21 Very, very briefly, as most people know, we are in
22 the middle of our public comment period. That public
23 comment period was due to expire May 2nd. In this Federal
24 Register notice we are extending the comment period to May
25 31st. The public meetings will be held April 30th and May
Page 61
1 1st, if need be, in room S4215 of this building. All this
2 information will be in the press release and the Federal
3 Register. Starting at 8:30 Mr. Michael Lesnick of the
4 Keystone Center will be facilitating this public meeting as
5 he did the public meeting that ran from May 26th, I believe
6 through the 29th.
7 People that want to participate and give
8 presentations need to contact Tom Hall, to my left here, and
9 here again all of this is spelled out in the release and the
10 register notice, by the 19th, the close of business April
11 19th. We will then look at the number of presenters and
12 figure out how we can fit everybody in. You should request
13 the period of time that you think you will need.
14 Obviously, if we have more people than we have
15 hours in the day we're going to have to cut back on that,
16 but the meeting is going to be run exactly the same way that
17 the prior meeting was run. Exactly the same way. The same
18 groundrules, the same procedures will be in place. So this
19 is up to two days of meeting, a two-day meeting, for the
20 public to participate.
21 If there's any questions from the committee, I
22 think I've touched on all the important points.
23 CHAIRMAN RINGEN: I don't imagine you want to
24 comment on what took place at the earlier meeting that you
25 held, the sort of comments that you got?
Page 62
1 MR. WHITMORE: Well, it was very, very
2 interesting. I can say that. I heard a lot of interesting
3 alternatives to what we had proposed. And that was the key
4 that we tried to get out to people is, if you don't like
5 what we are proposing, that's fine. But just saying you
6 don't like it doesn't get us where we need to go. We need
7 alternative positions or propositions. And it...
8 I had never taken part in something quite like
9 that before and I found it really interesting. And I think
10 it was very, very beneficial, not just to OSHA but to those
11 people who were in the audience listening and asking
12 questions, and other presenters. It was just, I thought, a
13 really good experience.
14 CHAIRMAN RINGEN: Any comments? Questions?
15 (No response.)
16 CHAIRMAN RINGEN: Thanks, Bob.
17 MR. WHITMORE: Okay. Thank you.
18 I'm going to put copies of these on the back
19 table, in the back.
20 CHAIRMAN RINGEN: Thank you.
21 MR. WHITMORE: ...incorporated in the revised
22 draft that's out now. So I think we've heard a lot over the
23 years that a lot of things that this committee does isn't
24 taken seriously be OHSA, but the recordkeeping
25 recommendations that this committee put forth have been
Page 63
1 taken seriously, and probably 90 percent of them are
2 included in the draft which is out today.
3 CHAIRMAN RINGEN: I think you're right, and that
4 we should perhaps comment on that, that the work group did a
5 terrific job and the OSHA staff on this has done a terrific
6 job in working with the committee, and we appreciate that.
7 Joanne.
8
9 HAZARD COMMUNICATION
10 Joanne Goodell
11 MS. GOODELL: Okay. I'm Joanne Goodell with the
12 Policy Directorate, and my main duty is to be responsible
13 for the National Advisory Committee on Occupational Safety
14 and Health, and that's the committee that deals primarily
15 with policy issues.
16 We've done something a little bit unusual by
17 forming a very substantive work group on Hazcom. Last May,
18 the report from the President and Vice President under the
19 National Performance Review, OSHA promised to form a work
20 group of NACOSH to study the Hazcom Program.
21 Normally we would just have formed a little group
22 of three or four and had several sessions to discuss it and
23 produce maybe two or three pages of recommendations of a
24 relatively general policy nature. So we decided because of
25 the substantiveness of the program and the many comments
Page 64
1 that are subject all the time of congressional hearings that
2 it deserved more substantive treatment than that.
3 So we decided to take a work group of four members
4 and then supplement it with 10 extra people, in the same
5 manner that you have done with your work group. And we
6 brought in experts from the field of labeling and material
7 safety data sheets, but we also then represented small
8 business, large business, chemical manufacturers and
9 chemical users, and the labor unions, including construction
10 labor unions. So that we would have a widespread variety of
11 backgrounds on the committee but with really good knowledge
12 of the Hazcom Program.
13 In addition, because there were so many people who
14 were interested in this subject and wanted to be on the
15 committee, I decided that the only proper thing to do was to
16 open it up to public hearings in our first two series of
17 meetings.
18 So last October and in December we had two dates
19 each of meetings open to anybody from the public. The first
20 group was specializing in small business and labor unions,
21 and other employee associations. The second ones in
22 December were large business professional associations and
23 anybody else who hadn't been heard. So that everybody had
24 an opportunity to come and address the committee.
25 In addition, we did receive quite a lot of written
Page 65
1 comments that were all forwarded to the committee so that
2 everybody could be heard in this group, not just the members
3 of the group. In the packet of information I've given you,
4 I wanted to give you some information about the background
5 of these people so you can see the type of people we had
6 working with us. And the two page work plan there shows you
7 what our meeting schedule has been and how we focused what
8 we hoped to be a six month project.
9 We lost a couple of months in January and February
10 because of government shutdowns and budget restrictions, but
11 we're back on target now. And we will be having another
12 meeting April 24th and 25th. The committee is now working
13 on individual assignments for what we hope will be about a
14 40 page, very substantive report on the subject. And then
15 at the final meeting, June 12th and 13th, they will be
16 concluding their final polished report, we hope, and
17 agreeing with all of the content of it as a work group.
18 Now after this happens this must go to the full
19 committee, because it's still just a work group product,
20 even though it's quite outside the realm of what we normally
21 do as a work group. And we have treated this almost as a
22 separate committee by publishing all of its meeting notices
23 in the Federal Register, publishing agendas, opening it to
24 everybody. So we have had extensive public input in that.
25 And I thought you might like to have a summary of the sorts
Page 66
1 of things everybody has said.
2 We don't yet of course have the recommendations,
3 but there seems to be some common agreement among the public
4 and the work group that nothing was wrong with the
5 regulation and they don't recommend that we reopen it, but
6 they would like us to modify the enforcement of it and try
7 to emphasize the overall quality of programs and not be
8 quite so specific that if you find a good program but
9 there's one little tiny thing that didn't meet standards,
10 let's emphasize the good program. And that's something that
11 we've been trying to do already.
12 The paperwork problem that everybody talks about,
13 everyone recognized was not caused by OSHA but was caused by
14 the chemical manufacturers producing MSDS's on everything
15 that they make. And unfortunately we are blamed for this,
16 but we are not able to restrict a chemical manufacturer from
17 producing an MSDS sheet on something where it's not
18 required.
19 There was some discussion with the thought of
20 helping small businesses that perhaps we could add a
21 statement to the MSDS for those substances that were
22 required by MSDS's, such as, "This material has been
23 determined to be hazardous under OSHA's Hazcom Standard."
24 The purpose of that would be to help a small business that
25 might get 500 sheets and only need five of them, but have no
Page 67
1 technical person who could determine which five they needed.
2 If they had a statement such as that that would relieve a
3 lot of the burden on small businesses. We could not prevent
4 them getting the 500 sheets but we could make it easier for
5 them to learn which ones were incorporated or required under
6 our Hazcom Program. So that may be one of the
7 recommendations that comes out.
8 Everybody acknowledged that they would like now a
9 standardized format, but they didn't want us to open up the
10 rule at this time to require one because of international
11 harmonization efforts that are going on and things of this
12 nature. So primarily people recommended to us that we
13 endorse the ANSI format and just not require it, but say
14 this is a format that meets all of OSHA's requirements, so
15 that's a possibility for a recommendation.
16 And they did talk a lot about the fact that
17 everybody would like a very simple MSDS, like a two page
18 sheet that gave you just what the worker needed. But
19 everybody emphasized that the MSDS existed a long time
20 before OSHA for a lot of reasons other than OSHA's
21 responsibilities and that there was almost not likelihood
22 that we could do away with the MSDS sheet as it is, and that
23 nobody would recommend having an extra two-page format that
24 was designed just with workers.
25 So there was a lot of attention given to trying to
Page 68
1 make on the first page a summary paragraph that was in plain
2 English that would supply what the workers needed so that
3 they wouldn't have to be burdened by the extra papers that
4 were there for emergency responders and for the EPA SERA
5 considerations and for hospital staff and those things that
6 the MSDS is also used for.
7 But I would like to invite any of you to come to
8 our meeting if you are here or have other reason to be here.
9 They are going to be working very hard in the next two
10 meetings. And I also brought some forms I will leave on the
11 back table for any of you who are interested to request a
12 copy of the final report.
13 Can I answer any questions?
14 MR. MASTERSON: My understanding of the entire
15 Hazcom Standard is it is designed to provide the user of the
16 product with valuable information. The typical MSDS format
17 does not meet that need. What is the recommendations of
18 your committee as far as addressing the user's needs?
19 MS. GOODELL: Well, that's what I was talking
20 about with the MSDS being designed for many purposes other
21 than the workers and other than OSHA's. I don't know yet
22 what the committee's recommendation will be because they are
23 working on them now, but the things that people mentioned
24 were that there was likelihood of getting rid of the long
25 MSDS now.
Page 69
1 The ANSI format that's just come out in their new
2 regulation, for their own uses, is as complex as any you
3 have seen. It has... It takes care of everybody's concerns.
4 And the workers are only one of those. And that's where the
5 discretion lies. It would be nicer if we had just a simple
6 one or two page sheet, but then we'd have a whole new
7 paperwork burden. And that that's the sort of thing that
8 prevents requiring a separate document that is just designed
9 for the worker, that it would be an additional document.
10 MR. MASTERSON: Okay. So what I am hearing is
11 that you are not recommending any change in the Material
12 Safety Data Sheet as far as the employer's burden to
13 maintain those at the worksite?
14 MS. GOODELL: They are working on their
15 recommendations now, so I can't really say what their
16 recommendations will really be, but in their discussions
17 there hasn't been much indication that we can shorten the
18 format. They've emphasized plain English and quality
19 upgrade, and then much has been made of the electronic
20 transmission of MSDS's, that this will eventually simplify
21 and standardize MSDS's just be virtue of that fact.
22 But ANSI, which is the major organization that has
23 been working on that has come out with a pretty complex
24 format that everybody has agreed to in their organization.
25 CHAIRMAN RINGEN: The International Chemical
Page 70
1 Safety Program has come up with some much simpler cards that
2 don't cover mixtures, of course, they're just for chemicals,
3 but they cover up to 1,200, 1,600 chemicals, if I remember
4 right, and may be useful to look at.
5 MS. GOODELL: That's the main problem. They don't
6 come in mixtures.
7 CHAIRMAN RINGEN: Right. Any other questions?
8 But they are simple.
9 MS. GOODELL: Very simple.
10 CHAIRMAN RINGEN: Any other questions or comments?
11 (No response.)
12 CHAIRMAN RINGEN: Thank you.
13 Okay. Gerry?
14
15 SCAFFOLDS - SUBPART L
16 FALL PROTECTION - SUBPART M
17 CONFINED SPACE, & SAFETY AND HEALTH PROGRAMS
18 Gerry Reidy
19 MR. REIDY: Good morning. I am Gerry Reidy,
20 Director of the Office of Construction Standards and
21 Compliance Assistance, Director of Construction. And I have
22 five standards to give you an update on, and I'll try to be
23 brief and pithy, but I'll open it up to questions, too.
24 The first one is on SENRAC, and just for the
25 record SENRAC is an acronym for Steel Erection Negotiated
Page 71
1 Rulemaking Advisory Committee, if you didn't know. Two of
2 your members, Mr. Cooper and Mr. Smith are on the committee.
3 The last meeting was held in November/December of last year,
4 and I'm quite sure you got copies of both the minutes and
5 the rough draft of the proposed standards.
6 What is not there of course is the preamble and a
7 sort of polishing up to the draft. So what is going on
8 right now is, in doing the preamble and doing a rough draft
9 of the proposal to supply with the regulatory requirements
10 and language and so forth. About 100 pages have been done
11 so far and they are still working on it. The two sections
12 that have not been completed yet are the joists, which is
13 .757, and fall protection, which is .760. When this thing
14 is put together as a total package this committee will be
15 given copies for comments and input and so forth.
16 There was a meeting held in March about the scope
17 section of the proposed rule and the scope section revised
18 to place the list of structures and activities in a note.
19 That of course will be a part of the proposed rule when the
20 proposed rule is published, and it is programmed for
21 publication in September of this year. Those who see the
22 proposal can make appropriate comments on that at that time.
23 That completes SENRAC at this point. Are there
24 any questions?
25 MR. MASTERSON: Gerry, it seems like the scope is
Page 72
1 a lot broader than what I always understood that SENRAC was
2 going to be addressing. In looking through here real
3 quickly, and this is the first chance I've had to look at
4 it, I'm seeing siding, windows... Help me understand how
5 that got brought into steel erection?
6 MR. REIDY: Well, perhaps the counsel can help me
7 out on that one.
8 MR. JONES: Gerry, all I can do is repeat that the
9 committee in discussing the scope basically had been given
10 pretty much full discretion by the agency to include those
11 steel erection activities which they are able to identify
12 and that the list which you see there is intended to be as
13 inclusive as the members of the committee could make it at
14 that time. And the reason the judge mentioned that there
15 had been further discussion is that there has been concern
16 expressed, indeed, that the scope is perhaps overly
17 inclusive and that further consideration needs to be given
18 to the manner in which the scope is addressed in the
19 proposed regulatory text.
20 CHAIRMAN RINGEN: Bob, this committee actually
21 commented on that perhaps over a year ago, a year and a half
22 ago or something like that, when SENRAC was first
23 established. There was some question about whether the
24 charge was getting larger than originally intended and
25 whether in fact the membership of the committee was suited
Page 73
1 to the larger charge, so we did make our comments on the
2 issue.
3 MR. MASTERSON: Unfortunately, I wasn't there for
4 that.
5 CHAIRMAN RINGEN: Okay.
6 MR. MASTERSON: Yeah, I am seeing wall panel
7 systems, doors, windows, security equipment, and I don't see
8 the connection to steel erection here, and there you are
9 talking construction as a whole, and you're drawing in the
10 entire construction industry into the steel erection. And
11 was that the original intent?
12 MR. REIDY: Bob, the important word, the important
13 word here is proposed rule. Okay? Not the final rule.
14 The proposed rule offers comments on steel
15 erection activities. It is also an important set of words
16 to keep in mind because the representatives of the committee
17 told us that there are steel erection activities that occur
18 in relation to when those sky lights, wall panels and other
19 such structural members, that is a matter as to the public
20 comments on the proposal, you know, where we are very
21 interested in receiving feedback.
22 MR. MASTERSON: Well, I still see this as being
23 far outside the scope of steel erection.
24 MR. REIDY: Well, we certainly invite you to
25 comment and participate in the rulemaking.
Page 74
1 Any other questions?
2 (No response.)
3 MR. REIDY: The standard is scaffolds, Subpart L.
4 And the Subpart L scaffolds is going to be a final standard.
5 We are programmed to furnish the final standard in June of
6 this year.
7 We have given the final draft to the interested
8 party of the Office of Regulatory Assessment, and in
9 preparing drawings and so forth to accompany the standard,
10 and we're developing training with the OSHA Training
11 Institute for compliance officers and also for the affected
12 individuals. We are working on outreach right now with the
13 private sector. We've talked to a number of associations
14 and unions, and we're preparing a work booklet with the
15 Information Office on this standard.
16 And at this point we are on final approach and
17 hope to make the landing by June. This will be a final
18 rule.
19 Any questions?
20 (No response.)
21 MR. REIDY: Okay. Fall Protection, Subpart M,
22 Construction. Since the issuance of the final rule or
23 Subpart M a number of groups have come forward raising
24 concerns about their particular activities and how they are
25 affected by or impacted by Subpart M, and as a case in
Page 75
1 point, Precast Concrete, Post Builders, the National
2 Association of Tile Erectors, and Homebuilders, have come
3 forward and have indicated they have particular, unique
4 problems that they would like to discuss with OSHA.
5 In response to that inquiry, if you will, OSHA is
6 going to open M, and the programmed date for publishing in
7 the Federal Register is June of this year. We are going to
8 ask the industries and anyone else that wants to to indicate
9 what they consider to be a problem with the current M, if
10 you will, and give us as much in-depth comments with
11 supporting data and/or evidence to sustain their basis.
12 I can't forecast at this point, but there is a
13 good probability that the original comment period, which is
14 only about 90 days, or 120 days, may be extended per request
15 of the parties and they may also indicate they want some
16 hearings on this matter. At this point the preamble is
17 being prepared and, as I say, we are programmed to go in the
18 Federal Register in June.
19 Any questions?
20 (No response.)
21 MR. REIDY: Confined spaces. As you are probably
22 aware, there is a 1910 confined spaces final rule that was
23 published I believe last year or sometime at that point, and
24 this committee has over a period of years indicated a very
25 strong desire that a confined space standard for
Page 76
1 construction be crafted. The current comment in the
2 construction standard is I think one paragraph.
3 Last year we took the draft final 1910 standard
4 and submitted it to this committee, received comments, and
5 modified the draft reflecting those comments, and then we
6 sent out the draft comments to about 150 groups,
7 associations, individuals, including to the ten regions, the
8 offices of the administrators, the state plans, and asked
9 for their comment. As a result of that we received 32
10 rather in-depth comments which are being reviewed at this
11 point.
12 A dialogue with the chair of ACCSH has resulted in
13 a work committee being established. Is that correct, Mr.
14 Chairman?
15 CHAIRMAN RINGEN: Well, it's been proposed, and
16 we're going to discuss it as soon as you are finished with
17 your presentation.
18 MR. REIDY: Oh, okay. I didn't mean to... I'm
19 the precursor for you, okay?
20 And for the work committee we will have the
21 comments that we received with a summary of the comments as
22 assistance for the committee, and we will of course have
23 OSHA personnel involved to. According to this agenda we're
24 going to meet this afternoon.
25 CHAIRMAN RINGEN: If we get the work group
Page 77
1 established as soon as you are finished. Yes, sir.
2 MR. REIDY: Let me know.
3 Any questions?
4 CHAIRMAN RINGEN: I think we'll get back to that
5 one. You want to cover the safety and health program...
6 MR. REIDY: Yes. Fine.
7 CHAIRMAN RINGEN: ...a discussion and finalize it.
8 MR. REIDY: The safety and health program, again,
9 and you know the dialogue of ACCSH. I believe a work
10 committee will be established for that work group, and I
11 know the committee is aware of the fact that ANSI has put
12 out ANSI A-1033 and A-1038 which deals with health and
13 safety programs, and we of course have the guidelines OSHA
14 put out in 1989 which could be used as a stepping stone or a
15 basis for the work group to get going.
16 CHAIRMAN RINGEN: What Gerry is referring to here
17 is a discussion that we have had in the last three months, I
18 guess, or so about the two areas where OSHA thinks that the
19 committee can help it a great deal. It has to do with the
20 development of recommendations that might lead to standards
21 development in the area of both safety and health programs
22 and confined spaces.
23 We already have a work group established on
24 programs that Judy Paul is chairing. What I did ask OSHA to
25 do for us that I thought would be helpful, for these two
Page 78
1 committees, since it was a little unclear to me exactly what
2 they had in mind I asked them to provide some proposed
3 charges for the two work groups, and in the back on the
4 left-hand side of this folder that we have here there are,
5 the charges are there.
6 In order to establish these work groups we're also
7 going to have to scramble our existing membership on the
8 current work groups somewhat and make some changes, because
9 as near as I can tell OSHA would like us to produce some
10 results here as soon as possible, more or less.
11 MR. REIDY: It's more than a goal.
12 CHAIRMAN RINGEN: It's more than a goal. Yes.
13 If I can take a minute... Or, first of all, are
14 there any general questions for Gerry about his
15 presentations?
16 (No response.)
17 CHAIRMAN RINGEN: Okay. Then let me just take a
18 minute and go over the charges that have been proposed. The
19 first I'll deal with is confined spaces.
20 "To assist the agency in identifying and finding
21 the significant issues to be addressed by the Department's
22 rulemaking." And below it says, "The duties of the work
23 group is to identify the key issues, collect and analyze the
24 information pertinent to it," and so on.
25 In thinking about this issue and how we may go
Page 79
1 about doing it, I did call Steve Cloutier and asked if he
2 might be willing to volunteer to be chairman of the work
3 group and he said he'd think about that. And I wonder what
4 your deliberations have resulted in, Steve.
5 MR. CLOUTIER: I didn't think there was much of a
6 question there. I will carefully...
7 CHAIRMAN RINGEN: Well, then, in that case, we
8 first have the issue of whether we should establish a
9 workgroup in this area of confined spaces, and I think it's
10 something that's worthwhile taking a vote on, or I'd like a
11 motion to that effect, anyway.
12 MR. RHOTEN: So moved.
13 CHAIRMAN RINGEN: Relating to this charge, any
14 seconds?
15 MS. OSORIO: Seconded.
16 CHAIRMAN RINGEN: Thank you. Any comments? All
17 in favor? Any opposed? Okay.
18 And Steve has agreed to serve as chairman of it.
19 I would like to suggest also, Bill, this is clearly an area
20 where you have involvement.
21 Now, you've served on the program work group, and
22 I'm going to ask you, because I think we are going to have a
23 fairly intense effort in this area to maybe more from the
24 program work group over to this...
25 MR. RHOTEN: I would like to do that, yes.
Page 80
1 CHAIRMAN RINGEN: Okay. Are there other members
2 of the committee that would like to participate in this work
3 group? Could we get somebody from NIOSH's safety office?
4 That would be great, Diane. Thanks.
5 There's a question about when we might have a
6 report ready, and we were going to have a little bit of a
7 dialogue here about the date that you would like us to have
8 something ready and the date that we could achieve having
9 something ready, quite possibly.
10 MR. SWANSON: Well, OSHA would like this report
11 late spring, early summer, and contemplate having something
12 by late summer ready for the Federal Register.
13 The question in our minds and which we did not
14 wish to bring up to the committee on is what would that then
15 leave you desirous of as far as report back from the work
16 group and give the full committee time to ruminate on it?
17 We also have the question as one of the speakers commented
18 on earlier today on this, with this budget plan that the
19 federal government is under at least the Labor Department of
20 week to week funding, how many meetings are we going to be
21 able to have between now and the end of the fiscal year is
22 also rather open.
23 But it is more important, obviously, to us to have
24 quality rather than timeliness. On the other hand, we would
25 like to have the work group complete its work; the
Page 81
1 committee, ACCSH, complete its work on the work group
2 product; dovetail this with what OSHA as the regulatory
3 agency has to do vis a vis preamble language and the rest,
4 and have something ready for the Federal Register before the
5 end of the fiscal year.
6 So as you back up from that, those are tentative
7 constraints that we are looking at.
8 CHAIRMAN RINGEN: To back up from that,
9 realistically this committee has to sort of finalize its
10 product, whatever it ends up being on this issue, by Labor
11 Day at the latest.
12 MR. SWANSON: Oh, yes. I would think at the
13 latest. Then again, it would be helpful if we could have
14 the report back this afternoon, but...
15 (Laughter)
16 CHAIRMAN RINGEN: Well, we'll see if they're going
17 to meet.
18 (Laughter)
19 CHAIRMAN RINGEN: I think we received a previous
20 report on this issue that had been worked on in part within
21 this committee, I think. And you have all of that
22 documentation. So if...
23 We'll leave it at this, that one of the things you
24 may want to consider this afternoon, Steve, is dates as well
25 as possible times.
Page 82
1 Bill.
2 MR. RHOTEN: I've just got a question, it may be
3 off the subject but it follows on it, on the rules for the
4 ACCSH work groups.
5 CHAIRMAN RINGEN: Yes?
6 MR. RHOTEN: It seems to me like in the past the
7 work groups came back with a recommendation. Is that
8 correct?
9 CHAIRMAN RINGEN: They came back with a report.
10 It may include some sort of a recommendation, yeah.
11 MR. RHOTEN: Yeah. And what I'm saying here is
12 that it would probably be improper under these guidelines
13 for the work group to make a recommendation. Is that
14 correct?
15 MR. JONES: It would be improper for there to be a
16 vote, for there to be a majority report and a minority
17 report.
18 MR. RHOTEN: Which would mean a recommendation, I
19 would assume.
20 MR. JONES: Which would be in effect a
21 recommendation.
22 MR. RHOTEN: Right. So what I am suggesting is,
23 the way we are heading now is, in the future, the work
24 groups will not come back with a recommendation, and not
25 even a consensus, but basically a lot of information to be
Page 83
1 discussed by the full board. Is that correct?
2 MR. JONES: That's correct.
3 MR. RHOTEN: I'm not suggesting that's a change
4 from the past, although I think it is.
5 CHAIRMAN RINGEN: That may or may not be the case.
6 It depends on the situation.
7 MR. RHOTEN: And I'm not raising the issue to take
8 issue with your position. What I'm raising it for is to
9 maybe state this, that there's already a lot of information
10 out there now on confined spaces that have been collected,
11 or gathered up, and I think in the future on a an issue like
12 this it's probably going to take more participation by the
13 full board to reach a conclusion than it would have in the
14 past because in the past I basically relied on the other
15 committee's recommendation, knowing they were well made up
16 of full size industry and labor and they were open to the
17 public, but the subcommittee in effect came back with a
18 recommendation.
19 And I see the committee in the future on this
20 confined space, because even though we sit down and go over
21 it and have the full committee meetings, we're not going to
22 really be able to come back under these rules and make a
23 recommendation to the full committee.
24 I guess what I am suggesting is if it's going to
25 take more time to get to a recommendation out of this
Page 84
1 committee that all the information that is out there now
2 should be forwarded to the full committee now.
3 CHAIRMAN RINGEN: I think it's kind of splitting
4 semantic hairs a little bit, in the sense that there may be
5 issues where there is a wide difference of opinion, in which
6 case the committee will have to deal with those big
7 differences. There might be areas that are very specific
8 and narrowly defined where a single conclusion could be the
9 sense of the work group. It could be presented in that way.
10 MR. JONES: We'd certainly want to make sure that
11 all members of work groups have their views represented to
12 the full committee. It shouldn't have any kind of editorial
13 or limiting kind of role being played by the chair or by any
14 member of the committee.
15 And secondly, we are reaffirming our determination
16 that it's the full committee which needs to make decisions
17 and to make recommendations, which then can be determined by
18 a majority vote, but that we don't want things to be brought
19 to the committee and then in effect, oh, is that what the
20 work group said? Well, the, let's just do that.
21 MR. RHOTEN: Well, I agree, although I thought in
22 the past the committee did make recommendations and the
23 people that made up part of the subcommittee who also came
24 before this full board made their arguments. I wouldn't
25 object to taking all of the different views back to this
Page 85
1 committee, but I don't think that the committee members per
2 se can make all the arguments for everybody that shows up at
3 the meeting and doesn't like what's going on. They're still
4 going to have to come down to the full committee and make
5 their own arguments.
6 CHAIRMAN RINGEN: Absolutely. Yes.
7 MR. JONES: You certainly are not going to be
8 expected to represent other persons' views, as far as that
9 goes. Except insofar as when you present a report if you
10 are a member of the committee or a chair for the committee.
11 Whatever compilation, whatever report, would be as inclusive
12 as is reasonably possible. There would certainly, I hope,
13 be supplemental comments that members of the work groups
14 would be able to make to the full committee, to explain the
15 basis for what they are bringing forward to the full
16 committee.
17 CHAIRMAN RINGEN: Anna Maria.
18 MS. OSORIO: I think Bill brings out a good point.
19 I think this is a change in direction. I only have limited
20 experience, but at least the four or five work groups I've
21 been on we'd come together, and some of them have had some
22 open meetings also, and then we do put forth suggested
23 either action steps or recommendations for the whole
24 committee to discuss or whatever. But they have been...
25 I mean, you can change the meaning but they are
Page 86
1 recommendations. So if you want us not to do that, that's
2 fine, but I just want to know is that a change from what we
3 were directed earlier?
4 MR. JONES: Well, yes. As far as the Solicitor's
5 Office is concerned what we are saying is a reaffirmation of
6 what under proper FACA procedures the work group is supposed
7 to do. If there has been drift, you know, in the work
8 groups from that, then what we are trying to do is to
9 provide a course correction and ensure that you as
10 individual members of a work group feel, and in fact act on,
11 the responsibility to add your viewpoint and your
12 information and your perspective to whatever product comes
13 forward from the work group so that the full committee has
14 the full benefit of your participating.
15 MR. RHOTEN: But, again, the bottom line is in the
16 future there will be no more recommendations from the
17 subcommittees.
18 MR. JONES: That is a semantic point.
19 (Cross-talk and laughter)
20 MR. RHOTEN: If the committee meets and comes back
21 with a recommendation it's either a recommendation or it's
22 not.
23 CHAIRMAN RINGEN: Steve.
24 MR. JONES: Well, it shouldn't be.
25 MR. CLOUTIER: Well, the work group meets, gathers
Page 87
1 the information, and we may or may not come to a consensus
2 as the work group, but you also put of the other members of
3 the work group's input into it. Then we bring that package
4 to the full committee, and the full committee can accept it
5 entirely, they can dissect it, they can do what they want to
6 do with it. But in the past couple of years the committee
7 has pretty much adopted everything that a work group has
8 proposed or presented back to the full committee. And I
9 don't think that changes.
10 You're asking us to give you good information.
11 The work group is going to gather that information, we're
12 going to bring it back here to the full committee, and the
13 full committee will either vote unanimously or there'll be a
14 split vote, or however you want. Or they'll dissect it.
15 CHAIRMAN RINGEN: I think part of the reason that
16 this has worked very well in the past is that the work
17 groups have been very carefully getting information from
18 everybody. So I think on the one hand having work groups
19 doesn't alleviate this committee of any responsibility for
20 looking at this issue from all perspectives and making the
21 ultimate decision on it.
22 The purpose of the work groups is to simplify our
23 operation, if you will, and clearly those of us, the
24 committee would like to see the work groups come up with as
25 much specificity as possible. It's supposed to take all of
Page 88
1 this information and ferret out what is useful and not and
2 come back to us with useful and limited information that we
3 can make decisions on, but at the same time, as Steve says,
4 we have to make sure that we look at all angles of it.
5 MR. MASTERSON: If I hear what you are saying
6 correctly, the work group would come back with like an
7 outline of possible alternatives for the committee to look
8 at.
9 CHAIRMAN RINGEN: It could. Or it could come back
10 with something specific and say how it reached that point
11 from looking at various alternatives. I don't see any
12 problem with that second option. It depends on how clear a
13 consensus there is about it. You get a feel for that pretty
14 fast. There are some issues that we don't have consensus
15 on.
16 With regard to the operation of the committee as a
17 whole, we do operate generally, or at least it is my intent
18 that we will operate, on the basis of consensus, and where
19 we know that we don't have an consensus, like an issue that
20 we'll have coming up very shortly, we will refer it off with
21 that finding.
22 MR. RHOTEN: Not to beat a dead horse or anything,
23 but it says here, "The work group does not reach a
24 consensus."
25 CHAIRMAN RINGEN: That's correct.
Page 89
1 MR. RHOTEN: Well, I thought... Didn't you say we
2 were relying on a consensus?
3 CHAIRMAN RINGEN: No, no. The committee. The
4 committee reaches a consensus.
5 MR. RHOTEN: Oh, okay.
6 CHAIRMAN RINGEN: Usually. There are rare
7 exceptions to that.
8 If it doesn't reach a consensus then there is no
9 use having a split vote and sending on something as a split
10 vote. You know. That's not the purpose of this.
11 MR. RHOTEN: I'm sure it's fine. I was just
12 trying to get you to clarify.
13 CHAIRMAN RINGEN: So we have established that work
14 groups, you will meet in the afternoon, Diane, Bill and
15 Steve. And anyone else who is interested in joining them.
16 (Discussion of location of work group meetings.)
17 CHAIRMAN RINGEN: Yes.
18 MS. PAUL: Just a note on safety and health
19 program.
20 CHAIRMAN RINGEN: We are going to come back to
21 that now, yes.
22 MS. PAUL: Okay. I'm sorry. I thought you were
23 skipping ahead.
24 CHAIRMAN RINGEN: No. Now that we have finished
25 that we will do the programs, and then Stu has to make his
Page 90
1 report, because he has other commitments that he has to get
2 to. But I wanted to get this out of the way first.
3 The Construction Safety and Health Programs. We
4 have a charge that OSHA has asked us to follow more or less
5 that the work group can review since the work group has been
6 established and agreed to by the committee already. There
7 is no need to have a vote on that, on whether we're going to
8 follow that charge or not. But I think as fully as
9 possible...
10 I think the report timing is of a similar era as
11 well, so you should consider that today.
12 Given that Steve has served on that work group and
13 will not be able to continue to do that, I've asked Bob if
14 he would be interested in participating in it, and I think
15 having his input will be very useful.
16 MS. PAUL: And Bill just got removed, too.
17 CHAIRMAN RINGEN: Bill just got removed. That's
18 correct.
19 MR. RHOTEN: Transferred, please.
20 CHAIRMAN RINGEN: What?
21 MR. RHOTEN: Transferred, please.
22 CHAIRMAN RINGEN: Transferred, yes.
23 MR. SWANSON: I think that... And I will check on
24 this. But I believe the time is shorter on this one if we
25 are working within the parameters of the fiscal year, which
Page 91
1 I hope we are. On significant rules, significant is defined
2 by OMB, OMB wants 90 days to review a rule.
3 We are probably going to be able to sidestep that
4 issue on the confined space but we will not be able to
5 sidestep it on construction safety and health programs
6 standard. So if we were to make the fiscal year, we are
7 talking the end of June for us to have a draft proposal to
8 go to OMB.
9 Am I correct on that, Gerry?
10 MR. REIDY: Yes. Unfortunately.
11 MS. PAUL: Could I ask a question?
12 The OSHA group that's working on this presented to
13 us a report on where they're at in the general standards.
14 Kind of an overview. Is there anything specific being done?
15 Has there been any decisions made about whether construction
16 is going to have a separate standard or...?
17 MR. REIDY: Yes, it is. Go ahead.
18 MR. SWANSON: The safety and health program
19 standard has been quite heated. Whatever the degree means.
20 We are going to get a general industry, truncated, I think
21 is the word. A general industry standard, a construction
22 standard and a maritime standard for programs.
23 Generally there seems to be some thought, once
24 word got out that we were splitting, that this meant the
25 general industry was going to stop, and indeed not. It is
Page 92
1 continuing. It is continuing on its own track.
2 The policy makers in OSHA have recognized that the
3 construction industry is unique. We've been trying to tell
4 them that for a long time, right? And so those unique
5 concerns that we have can be addressed in a safety and
6 health program standard design for the construction
7 industry.
8 We will be given, I think, quite a long leash. So
9 long as it's what we design as a proposal is not
10 inconsistent with where OSHA intends to go with its main
11 safety and health program standards, we're fine.
12 There has not been anything distributed from that
13 committee that you referred to. The in-house OSHA committee
14 that is working on the general industry standards. They
15 have not shared anything with us that we can use. They well
16 might, but they have not to date.
17 MS. PAUL: Okay. Is there a person working on the
18 construction standard within OSHA?
19 MR. SWANSON: There will be. We may have a
20 designated project officer, and at the moment that's Mr.
21 Gerry Reidy. There is not, however, an in-house committee
22 that has been working on a construction program standard to
23 date.
24 CHAIRMAN RINGEN: In the interest of time, let me
25 ask this. Who's going to participate in the work group
Page 93
1 meeting in this area today from OSHA?
2 Okay. Gerry. So you can address that with him at
3 the time of the work group.
4 Steve Cooper had expressed an interest in serving
5 on this work group in the future. He won't be here today.
6 I'll participate in it today.
7 Anybody else? Who else is on this work group
8 right now?
9 MS. PAUL: Anna Maria is another one.
10 CHAIRMAN RINGEN: Yes. And Bob.
11 Anyone else who would care to join? It's a big
12 task ahead of you, without a doubt, and it's going to be a
13 difficult one, but I am sure, Judy, that you will carry it
14 off fine.
15 MS. PAUL: It's nice to have it in the record.
16 CHAIRMAN RINGEN: Yes.
17 MS. PAUL: Thank you.
18 CHAIRMAN RINGEN: So that will meet in room S-25,
19 S-52? S-5215B. Right. Okay.
20 The only other work group that is meeting today as
21 far as I know is the women in construction work group, and
22 that will meet here. And I think we may have another work
23 group, but I don't think there is, I don't know if there's
24 any need for it to meet. So those three work groups will
25 meet today and will report back tomorrow.
Page 94
1 MS. OSORIO: So, musculo-skeletal disorders has
2 been canceled?
3 CHAIRMAN RINGEN: We are going to deal with that
4 right now.
5 MS. OSORIO: Oh, okay. Sorry.
6 CHAIRMAN RINGEN: Are there any comments on these
7 issues, or questions about it?
8 (No response.)
9 CHAIRMAN RINGEN: Okay. Then we are set with the
10 work groups. Set with you, Gerry? Thanks a lot.
11 And we have two major issues to deal with,
12 obviously before the middle of the summer, and that is the
13 programs and the confined spaces, both of which I think,
14 personally, it's very forthright.
15 Stu, do you want to go ahead and make your report
16 on the musculo-skeletal disorders?
17
18 MUSCULO-SKELETAL DISORDERS
19 Stuart Burkhammer
20 MR. BURKHAMMER: Thank you, Mr. Chairman. I
21 apologize to the committee for not being able to be here
22 this afternoon and tomorrow, but our company is reorganizing
23 and I have other things...
24 CHAIRMAN RINGEN: It's always reorganizing.
25 MR. BURKHAMMER: And reorganizing me at the same
Page 95
1 time.
2 I am Option 2 of Knut's two options, and that's
3 where I'm going to make some specific recommendations to
4 this committee to deliberate on and possibly vote on. And
5 I'll explain why.
6 As you remember, those of you that were present at
7 the last meeting on August 8th and 9th of last year, several
8 representatives, some of who are in the audience here, came
9 before us to make presentations regarding their views on the
10 MSD work group's draft report. Basically, the theme of the
11 speakers centered around three issues. And I took copious
12 notes. Those of you who were here saw it. I have a list,
13 basically, and I would like to read some of them. But I
14 think you'll get [the idea of the] failure to show need for
15 the standard in the MSD area. Most of the speakers were
16 opposed to any type of standard in this area. A lot of
17 comments on lack of sound, scientific data. Small employers
18 cannot comply, will affect small business greatly.
19 I like this one. The work group jumped to
20 conclusions without any research and study.
21 The risk factors that were considered were flawed.
22 Lack of statistical evidence that MSD is a problem in
23 construction, which I also liked.
24 A lack of industry involvement in development of
25 the draft MSD standard. We need a demonstration effort to
Page 96
1 see if something like this will work in construction. And
2 there were some of the presenters who volunteered, and I'll
3 address that in just a minute.
4 Let industry take care of itself on this issue, as
5 if they haven't to date. MSD is now at epidemic proportions
6 currently. And the Center to Protect Workers' Rights data
7 was flawed, and Pete Cheney was kind enough to provide us
8 with a study that his group did, and Knut passed that study
9 on to a group of scientists and they reviewed it, and I'll
10 address that.
11 So basically I broke all those down into three
12 issues that I'd like to address for the committee.
13 The first issue is about the process that ACCSH
14 and I specifically as chairman went through to select the
15 members of the work group. The sentiment was, as you heard
16 in my notes, that it was a closed group, and there were
17 comments that industry wasn't allowed to participate fully.
18 There were no meeting notes or anything presented in the
19 Federal Register for anybody to look at or review, and I
20 think you heard today that it doesn't have to be.
21 As ACCSH committee members you heard at length
22 today from our chairman the selection process of work groups
23 and how they work. One other point that Knut and our
24 counsel didn't stress is what happens after the committee is
25 formed and the chairman is picked. Well, the work group
Page 97
1 chairman then has the opportunity to select other people
2 from industry to participate as deemed necessary or
3 required. And as far as the MSD work group goes, all those
4 who asked or volunteered to be on the work group were
5 accepted and included in all work group matters.
6 It is important to note here, and I want to
7 stress, and I think I have done in the past and I want to do
8 it again, that no one is turned down who asks to be on the
9 work group. And no, I didn't go out and wear a sign and
10 solicit people to join, but there were a lot of people in
11 attendance who formed the MSD work group, and every one of
12 the people who were in attendance who came up and asked to
13 be on the work group were selected and included in all the
14 meetings.
15 The second general issue from the presenters was,
16 why do we need this? There's no evidence to shoe that MSD
17 is a problem in the construction industry. MSD is not of
18 epidemic proportions, and et cetera.
19 So let me offer a personal observation of an
20 individual who has been in the construction safety and
21 health field for 35 years. To those that suggest that MSD
22 is not a problem in construction, it is my opinion that
23 those people have never worked in the safety and health
24 profession on a job site and witnessed the number of
25 employees who come into the first-aid offices and go to the
Page 98
1 hospitals or doctors with pulled muscles, strains, sprains,
2 back injuries, sore knees, sore wrists, sore feet, all of
3 which involve musculo-skeletal disorders.
4 We did a study in our company of injuries from
5 1983 through 1994, and this study indicated that
6 approximately 50 percent, or half of all our injuries
7 reported, were MSD related. I'm not at liberty to share the
8 study with you due to company confidentiality. However,
9 back injuries alone resulted in 35 percent of our lost cost
10 for that period of time.
11 If a company like ours with the world-class safety
12 and health program that everybody says we have and the
13 outstanding safety and health record that we have, along
14 with the many innovative concepts and programs that we've
15 put forth, is experiencing these kinds of numbers in MSD's.
16 I'm quite sure that other contractors are showing the same
17 numbers, or worse.
18 The third general issue is that there is not
19 enough scientific evidence to conclude that MSD in the
20 construction industry is a problem.
21 Mr. Chairman, you addressed this issue in a letter
22 to the Center to Protect Workers' Rights to a selected group
23 of university-based scientists and physicians, and I think
24 included in those were the ones suggested by Pete Cheney and
25 the AGC, and you asked them to review the data and submit
Page 99
1 their findings. And at this time, I along with you, Mr.
2 Chairman, if you would please comment, got the report, and
3 I'll just hit a couple of the highlights.
4 Musculo-skeletal disorders caused by strenuous
5 overexertion as well as those associated with repetitive
6 motion and particular work postures are a major health
7 problem for construction health workers. I like the word
8 major. They didn't just say health problem, or minor health
9 problem, or some health problem, or maybe a health problem.
10 They said a major health problem. Which indicates to me
11 that they agree with what the work group came up with. And
12 they closed in their conclusion with a comment that I think
13 the work group also put forth, was that a great deal more
14 needs to be done in the design, implementation and
15 evaluation of interventions needed to prevent or control
16 musculo-skeletal disorders.
17 And their final comment that the respondents in
18 the study that Knut, our chairman, asked to be done,
19 expressed no opinion regarding the feasibility of federal
20 guidelines or a federal standard for the prevention of work-
21 related musculo-skeletal disorders. Which I would kind of
22 expect became they were asked to evaluate a study and not
23 make comments on whether there needed to be a standard.
24 So I think the conclusions of this group, using
25 the work group's study research plus the ones that Pete
Page 100
1 Cheney provided us, have come to the conclusion basically
2 that the MSD data that the work group reviewed was not
3 flawed and that is was valid in a lot of cases, moreso than
4 not, and that what the committee viewed was worth reviewing.
5 So I think this independent study that our chairman had
6 conducted puts to rest any suggestion that the data reviewed
7 by the work group wasn't worth reviewing.
8 As each of you who were present remember after
9 listening to the presenters make their case I asked them
10 specifically to provide the work group with any data or
11 documentation that disproved the work group's findings so
12 the work group could come to a conclusion on this issue.
13 This was followed up with an August 9th letter from myself
14 to all the presenters, and an additional August 29th letter
15 from Knut to all the presenters. And to date I have
16 received eight letters from all those who presented, and
17 every one of them declining to participate in the work group
18 or in the development of the product.
19 And as I said, with the exception of the Pete and
20 the AGC providing us data, nobody else sent any in. Which,
21 again, I guess, goes to the fact that we've got a lot of
22 people in the world and a lot of various subjects who like
23 to complain, but when it comes time to produce, we don't
24 have a lot of people who show up.
25 So, as based on these and the comments from the
Page 101
1 presenters, it has become apparent to me as the chairman of
2 the work group that the work group will be unable to
3 generate the voluntary industry cooperation needed to
4 achieve a consensus vote among this committee. If I were to
5 call for a full committee vote I believe I would receive a
6 majority but not a full yes vote to forward the work group
7 report on to OSHA for acceptance.
8 So based on this I have come to the conclusion
9 that further deliberation on the MSD issue by the work group
10 will not yield any additional benefit.
11 So based on Knut's Option 2, I offer some five
12 recommendations to the committee for consideration. I'll
13 pass these out, but basically that the full ACCSH committee
14 agree or vote to refer the MSD matter back to OSHA, that
15 OSHA use formal administrative procedures available to the
16 agency to consider a construction MSD standard, that the
17 work group forward the documentation it has developed to
18 date to OSHA for their use, that OSHA, perhaps in
19 conjunction with NIOSH, conduct demonstration programs to
20 determine if the work group draft has practical
21 applicability in the construction industry, is cost
22 effective and has an effect on reducing MSD's in
23 construction.
24 I would like to note, as I said earlier, again,
25 that some of the industry presenters, and it's in your
Page 102
1 minutes, you can kind of read a synopsis of the three panels
2 that presented at our last meeting in the minutes, that they
3 supported the demonstration effort, and even offered to
4 participate. And again, I would hope that they would still
5 be forthcoming in their support if OSHA agrees to do some
6 demonstration efforts in this regard.
7 And finally, that the MSD and construction work
8 group be put on hold at this time to be available for advice
9 and counsel in the event that OSHA wishes to continue in the
10 development of a standard or conduct demonstration programs.
11 That concludes my report.
12 CHAIRMAN RINGEN: Thank you very much, Stu. We
13 have said this many times before to you, but I wish to thank
14 you first of all for all of the work that you have done on
15 this issue, and the difficult conditions under which some of
16 this work has been carried out. I think the recommendations
17 that you have presented are very reasonable, and we have to
18 have a discussion of them. Any comments?
19 Anna Maria.
20 MS. OSORIO: I just apologize. On my way out here
21 to the airport I realized that my review of the August 7th
22 letter from Mr. Fred Ryan from Options and Choices to Mr.
23 Pete Cheney never got to you, so I have a two page list of
24 comments on it. I think the bottom line on this is that due
25 to the flaws in concept and analysis described within this
Page 103
1 letter, I cannot interpret the final interpretations
2 contained in the letter. And that is in essence that the
3 bulk of the citations in the Center to Protect Worker's
4 Rights bibliography are unfounded.
5 I'll submit this for formal inclusion.
6 I also just want to acknowledge the tremendous
7 work of Stu and the rest of his work group. And I think
8 it's a sad comment when an important issue like this has
9 virtually zero interest or participation by industry. I
10 think it's a really sad comment. You don't avoid a problem
11 by just going away. You confront and you deal with some
12 equitable way of dealing with it, and I think it's a very
13 sad day.
14 CHAIRMAN RINGEN: I don't think there was a lack
15 of interest. You may want to rephrase that.
16 MS. OSORIO: Okay. Sorry. A lack of desire to
17 participate in resolving...
18 CHAIRMAN RINGEN: Any other comments?
19 (No response.)
20 CHAIRMAN RINGEN: Do I have a motion to accept
21 Stu's report?
22 MS. PAUL: So moved.
23 CHAIRMAN RINGEN: Do I have a second for it?
24 MR. MASTERSON: Second.
25 CHAIRMAN RINGEN: Bob Masterson.
Page 104
1 Any discussions of this?
2 MS. JENKINS: I have one question.
3 CHAIRMAN RINGEN: Yes.
4 MS. JENKINS: At the last meeting, and I can't
5 remember the gentleman's name, he proposed that a
6 demonstration be made on a construction site to see if this
7 standard would be cost effective and practical. Was that
8 ever done?
9 CHAIRMAN RINGEN: No, it's not, nothing has been
10 done since because we didn't finalize the issue. It's part
11 of the recommendation here, I think, the recommendation
12 bullet #4, exactly to do that, and OSHA perhaps in
13 conjunction with NIOSH. We do have some projects that are
14 getting close to doing some of those things, and I am sure
15 those kinds of projects will be carried out in the coming
16 years. We're not finished with this issue. I'm sure. But
17 for now we are.
18 Any other comments? Questions?
19 Bruce.
20 MR. SWANSON: I'd like to comment. And that's
21 simply to say that the advisory board here will make
22 whatever recommendations that it wishes to make and we will
23 gladly accept them and deal with them however we can. But
24 as far as conducting demonstration programs to determine if
25 the work group draft has practical applicability, et cetera,
Page 105
1 those of you who have followed what is happening on the Hill
2 know that funding problems will exist for us this year, next
3 year, and until that place freezes over if we engage in
4 activities like this.
5 CHAIRMAN RINGEN: You have a sister, or a brother
6 agency, whatever it is, over here, that might be able to
7 help. But recognizing those caveats. These are our
8 recommendations to you. Do what you want.
9 Any other comments? Discussion?
10 Yes, Steve.
11 MR. CLOUTIER: Just a semantic thing. I think it
12 says ACCSH MSD. It should say work group instead of
13 committee. It's that work group's recommendations to the
14 full committee.
15 CHAIRMAN RINGEN: Okay. Any other comments,
16 questions?
17 All in favor, aye?
18 Any opposed? Okay.
19 Again, Stu, thank you very much. This is an issue
20 that will be coming up again, and I was just in a meeting in
21 Germany a week and a half ago, two days on this issue, where
22 there is an enormous amount of research going on, so a
23 temporal, clear relationships, dose response relationships,
24 age relationships, you name it. This...
25 We will have more data on this issue and it's
Page 106
1 clear to me that the focal point... I believe this. I have
2 no doubt about it. The focal point of construction safety
3 and health in the future, in the next coming couple of
4 decades is going to be dealing with this particular issue.
5 That was an editorial comment.
6 Bruce?
7 So thanks, Stu, for a very good job. And I know
8 you have to leave.
9
10 DIRECTORATE OF CONSTRUCTION UPDATE AND
11 COMPLIANCE UPDATE/FOCUSED INSPECTIONS
12 Bruce Swanson
13 MR. SWANSON: Yes, thank you, Mr. Chairman.
14 It was nice to hear Mr. Burkhammer set the mood
15 for the next presenter, right? We are asked for an update
16 on DOC, or the Directorate of Construction.
17 We got out of the gate, those of you who were
18 involved in it recall early in December, I think the
19 effective date was December 11th, the reception was the
20 12th. We got off to I think an auspicious start. We had
21 the Secretary come and make the appropriate comments. We
22 had the President of the Building Trades Department in
23 attendance and commenting. We had the chairmen of both
24 AGC's Safety Committee and the Business Round Table's
25 Construction Division's Safety Committee make comments. And
Page 107
1 with that kind of support, I hope we have a long and
2 prosperous career.
3 What we did is, and this is review for many of
4 you, but we did is we grabbed several shops that were within
5 OSHA. We took the engineering unit from what had been
6 Construction and Engineering. We took the construction
7 safety standards unit and we took what was the construction
8 portion of the Compliance Directorate, and brought them into
9 one tent. Very small elements. We got two professionals
10 out of the compliance shop; we got five professionals, I
11 believe, out of the safety shop; and we retained the seven
12 people or thereabouts that we had in the engineering shop.
13 We had, we have still, plans to add people to
14 achieve some of the other ends that we had in mind when we
15 planned this Directorate of Construction. As of yet we have
16 not added many of those people. We did add a statistician
17 to our group. We have an office manager that we added to
18 our group. And later this month we will be adding, at least
19 on a temporary basis, a deputy director to the group that's
20 on a 60 day assignment, and hopefully when that 60 days is
21 over we will either have someone else for another 60 days or
22 we'll have somebody for 60 months. I have no idea how
23 that's going to work, but at least we'll have another
24 manager in the directorate.
25 Standards. You had an in-depth review on the
Page 108
1 assignment that Joe Dear has given our small shop for
2 standards this year. Half of the high priority standards
3 that OSHA has on the docket for this fiscal year are in the
4 Directorate of Construction. The two that you are going to
5 participate in and work with us on, and scaffolds, steel
6 erection and the opening of the Subpart M, or Fall
7 Protection.
8 The Construction Services Office is an office that
9 we have the greatest plans for and therefore has progressed
10 the least because we haven't added the staff necessary to
11 deal with that. But the concept is that we are going to do
12 outreach, we are going to do construction specific
13 statistical reports for OSHA's use. We are going to, out of
14 that office, continue to interface with this committee.
15 We are going to have coordination with the OSHA
16 Training Institute in Chicago so that construction specific
17 training can be a topic of conversation within OSHA. You've
18 heard that there is legislation on the Hill. I know from my
19 contacts with you and people here in the audience that there
20 is some concern about the abilities of compliance officers
21 to make construction inspections. We hope to continue work
22 in that area.
23 Cooperative programs. Although we have done some
24 limited work in cooperative programs in the construction
25 area, I think some creative work that's been done by myself
Page 109
1 in working with other personnel in OSHA not within the
2 construction shop, we need to add staff to successfully
3 pursue that line, and the Clinton Administration has been
4 talking about reinvention and been working on reinvention,
5 OSHA's been working on reinvention, and we want to see the
6 Directorate of Construction work on reinvention.
7 We need construction specific case screening on
8 the egregious cases, the significant cases that come through
9 OSHA. As of yet those cases are being screened elsewhere
10 for their propriety. They should be screened, those that
11 are construction in nature should be screened within the
12 Directorate of Construction. We should have someone with
13 field experience to do those screenings and to help the
14 policy makers make their decisions.
15 We will tomorrow be having a briefing on a special
16 emphasis program on silica. The agency is also doing a
17 special emphasis program on lead, and in neither of those
18 situations are we going to be able to track it or monitor it
19 from the Directorate of Construction because we do not have
20 the industrial hygiene capacity that this directorate needs.
21 Some things that we have underway at the present
22 moment, the engineering office is being used as a
23 coordinating center. We are formulating a response team,
24 probably to be used 90 percent of the time on chemical
25 problems in the industry, but it will be engineering in
Page 110
1 basis and we can respond, we'll be able to respond to non-
2 chemical collapses and other engineering disasters out there
3 such as we've had recently in Atlanta and some other places.
4 The essence of that is that the core of the group
5 will be in the engineering shop in Washington, but we will
6 take that expertise, process safety management expertise and
7 engineering expertise that exists in the 10 regions around
8 the country, add them on paper to the team, and then make a
9 cost effective response as the situation calls for.
10 We also on more of an informational, not
11 substantive, basis, have put together a list of construction
12 coordinators. These are persons, singular or at the
13 regional administrator's choice, some of the regions have
14 multiple construction coordinators. It is a position that
15 will be utilized to interface with the construction industry
16 in the region in question in receiving complaints, in
17 receiving feedback from the construction company vis a vis
18 what OSHA is doing, or even what OSHA is not doing.
19 Those persons will also act as a dispersal point
20 for information from OSHA, construction only in nature, that
21 should be getting out to the community and not just through
22 the vehicles of the trade papers or the Federal Register but
23 somebody in each of those regional offices who knows the
24 players in the construction community in your portion of the
25 country.
Page 111
1 Not much progress, but some progress.
2 And that really is all we've accomplished in the
3 three months that we've been in existence. Some of our
4 progress was slowed down by specially scheduled
5 congressional vacations for us in December. We hope that a
6 budget will be finalized for '96 and give us a little better
7 feel on what financial resources are available for us to
8 make the in-house transfers or even possibly even hires that
9 the directorate needs.
10 And that, Mr. Chairman, is my update.
11 CHAIRMAN RINGEN: Thank you.
12 Any questions, comments?
13 (No response.)
14 CHAIRMAN RINGEN: Would it be useful for you,
15 Bruce, in the future... It's an unusual suggestion,
16 perhaps, in light of the charter of the committee, but would
17 it be useful for you to have the committee review your
18 operation periodically? Or have a group review it?
19 MR. SWANSON: Explain review, Mr. Chairman.
20 (Laughter)
21 CHAIRMAN RINGEN: In our programs we have, our own
22 programs, we have substantial external review by various
23 committees who come in and take a look at what we are doing
24 and how well we are doing. I find that to be amazingly
25 useful to keep us focused. And I think there are a number
Page 112
1 of people on this committee who have very great experience
2 in seeing OSHA operate out in the field. That might be
3 helpful to you in looking at what you are doing in
4 relationship to what their needs are.
5 MR. SWANSON: We'd be thankful for oversight. I'm
6 sure we'd find it helpful.
7 CHAIRMAN RINGEN: I would consider it something
8 slightly different than oversight. Perhaps more advisory
9 than that, since... But it's... Why don't we talk about
10 that before the next meeting and see if we can set up... I
11 think it would be useful.
12 I'd also like to know a little bit more about this
13 line responsibility. You alluded to it with construction
14 coordinators in the regions, but the line responsibilities
15 between the area offices and the central construction
16 office.
17 MR. SWANSON: I can touch on that right now if
18 you'd like.
19 CHAIRMAN RINGEN: Yes.
20 MR. SWANSON: There is no line authority.
21 (Laughter)
22 MR. SWANSON: Compliance officers report to their
23 supervisors and their area directors. The area directors
24 report to regional administrators. The regional
25 administrators report to an enforcement deputy who reports
Page 113
1 to Joe Dear. We are nowhere in the direct line of authority
2 having to do with compliance investigations, training
3 activity or outreach activity as done by a regional or area
4 office. We are a support office, a policy assistance
5 office.
6 We would hope to be able to generate information
7 that would be useful for the compliance deputy to use, a
8 field enforcement deputy to use, on targeting in the
9 construction area. We would also be happy to help on any
10 policy formulation on how inspections, where inspections,
11 what training, who training, anything like that he would
12 welcome in the area of construction specific plans or
13 policies or procedures. But we have no line authority going
14 to the compliance officer whatsoever.
15 CHAIRMAN RINGEN: Is that something that might be
16 contemplated?
17 MR. SWANSON: There have... I doubt that that
18 would... I doubt that that would ever occur. I cannot
19 answer for the Assistant Secretary, this one of the next
20 one. But if we can help with the training and education and
21 direction of the field staff vis a vis the construction
22 industry, I think that would be a large step in the right
23 direction, but where OSHA is going right now all the
24 authority, all the empowerment is being pushed out and down,
25 and to get actual direction from an office in Washington,
Page 114
1 D.C. I see as running counter to the current at the moment.
2 CHAIRMAN RINGEN: Any other comments?
3 (No response.)
4 CHAIRMAN RINGEN: We have the second part of
5 Bruce's presentation still waiting, when he will go through
6 some of the specific, some of the performance that they have
7 had in the inspection program. But before we can do that we
8 have to take about a three to five minute break so you can
9 get set up?
10 MR. SWANSON: Right.
11 CHAIRMAN RINGEN: So we will start again at about
12 two after noon. And you will be done by 12:30 for lunch as
13 scheduled. Right?
14 (Brief pause.)
15 CHAIRMAN RINGEN: Back on the record.
16 MR. SWANSON: Okay, Mr. Chairman and members of
17 the committee. This is to give you a quick fly-by on what
18 OSHA is doing with the focused inspection program that we
19 have had in place since the fall of '94. There is continued
20 curiosity about what our numbers are really doing and how we
21 are performing out there nationally.
22 Everything that we'll show you here is broken down
23 by the 10 regions, so you can take a look at your own area
24 of the country. What we show... I think this is self-
25 explanatory and I won't spend the time on the next slides.
Page 115
1 But you can see the color-coding, that in Region I they did
2 613 conventional site inspections, construction site
3 inspections.
4 Now what we have done is gone through the data and
5 made sure that we are comparing apples and apples. On a
6 construction site, a conventional inspection normally gives
7 us three or four inspection numbers, because each sub is
8 counted as a separate inspection. But what John Franklin
9 has done for us here is gone through and reduced all these
10 numbers to projects/sites inspected, so that they give you
11 the same numbers that correspond to what happens on a
12 focused inspection where normally you only get the one
13 number.
14 So back to the example here, Region I, 613
15 conventional inspections versus 296 focused inspections for
16 our entire focused history, which is October 1, 1994 to
17 date, March 31, 1996.
18 MR. CLOUTIER: That isn't 613, of which 296 turned
19 into focused?
20 MR. SWANSON: It is not.
21 MR. CLOUTIER: That's fine.
22 MR. SWANSON: It is not. It is not. If you're
23 quick with your math, and I am not, but that's 900 and
24 whatever inspections total for Region I
25 Yes. Anna Marie.
Page 116
1 MS. OSORIO: On a clarification. This represents
2 only federal inspections. Right?
3 MR. SWANSON: That's correct.
4 MS. OSORIO: So what is the interplay, then, for a
5 state that has its own plan, and federal, if it's
6 construction. Do you, because you folks are in
7 construction, take over? Do you do any coordination?
8 Because Region IX has a relatively few number, but you are
9 doing some. So how is that burden distributed when there's
10 a state and a federal plan?
11 MR. SWANSON: Region IX as you well know is made
12 up totally of state plan states, Hawaii, California, Nevada,
13 Arizona. Those 101 construction industry inspections have
14 taken place in areas where there is exclusive federal
15 jurisdiction on federal properties or some other reason why
16 the feds have exclusive jurisdiction and whatever state
17 we're talking about did not have the authority to go in
18 there. Nowhere do we capture the state plan data on focused
19 inspections because they have such a variety of responses to
20 focused inspections.
21 MS. OSORIO: Yes. I just think it would help in
22 the future if you had an asterisk or something where some
23 regions did have their own state plans, because that sort of
24 diminishes the work going into that. You know, there may be
25 fewer federal ones because the states are taking over. But
Page 117
1 anyway... Go ahead.
2 MR. SWANSON: I understand the comment. I do
3 believe that each of the 10 regions up there would then earn
4 an asterisk though, because they all have state plans. IX
5 is 100 percent state plans; X has only the state of Idaho;
6 and then the others in diminishing percent.
7 Let's go on to the next one, John.
8 These tell you slightly different things because
9 now the time period that we captured is changing. This is
10 basically the same information that you got on the last
11 slide except that we are talking about what our numbers were
12 and what our experience was the first full fiscal year that
13 we had the focused inspections.
14 We got off to a very slow start. I don't think we
15 break this down by orders, but in '94, October, we came out
16 with a policy and we really weren't making focused
17 inspections until January of that year, and then the pace
18 picked up from there on out.
19 Okay. Again, this is a year to date slide for
20 this year. You can see what the percentage is, and we
21 didn't break it down into percentage, we just gave you the
22 raw numbers. But you can see that percentage-wise focused
23 inspections are becoming a more significant portion of what
24 we are doing in the field.
25 CHAIRMAN RINGEN: So total inspections are going
Page 118
1 to be presented.
2 MR. SWANSON: Also total inspections. This is not
3 the same time frame, however. This is half a year.
4 CHAIRMAN RINGEN: If you adjust for time frame...
5 MR. SWANSON: Right. Right.
6 OSHA is off on all its inspection numbers in FY
7 96. In the construction industry we are suffering the same
8 way.
9 Okay. Here we have the regions with their two
10 similar time periods, half of '95 and half of '96 compared.
11 Okay? Next slide. We'll stop on any of these,
12 but... Here is just the first half of year one broken down
13 by regions, conventional versus focused. As I said earlier,
14 you can see that focused inspections were not an overnight
15 success.
16 The next slide is the third quarter of year one,
17 where focused inspections are becoming a thing closer to the
18 norm. This might well have been our highest quarter as far
19 as a percentage of focused inspections, and I cannot explain
20 the why of that to you.
21 The fourth quarter, still a high number of focused
22 inspections but not quite the same as the third quarter.
23 I have really no comment to make on whether this
24 is good news or bad news. It's the glass half-full, half
25 empty. If all focused inspections... If all of our
Page 119
1 construction inspections are focused inspections, that might
2 mean that the entire construction industry qualifies for
3 focused inspection. And that is a good thing.
4 It could be that there is something wrong with our
5 targeting system, and the two or three percent of the
6 construction sites that we get to take a look at for any
7 given time period are falling in the wrong target area.
8 Perhaps we should be inspecting a universe where we don't
9 have any focused inspections.
10 This is the first quarter of year two. I don't
11 think it shows you a whole lot there of changing interest.
12 The second quarter, again.
13 The last slide I think might be instructive here.
14 What we've done... What John has done is he's taken one
15 region, Region I, and taken a look at that by area office.
16 You can see that what we're talking about here is a half of
17 year, '96 year to date. We are looking at each of the area
18 offices and what office does what percent of focused versus
19 conventional inspections.
20 Like anything else, I'm not a statistician, but
21 like anything else the further down you break things the
22 more you start running into, I think, human nature. Can I
23 explain the difference in the percent of focused inspections
24 in Boston versus North Boston? I cannot. But I would
25 suspect that it has something to do with the area director
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1 and the individual compliance officers' attitudes. It's a
2 thing that we would try and get out of the system but which
3 you can't, totally.
4 The average penalty per project, however, gets to
5 be a very interesting thing, at least for the employer
6 community, I would think. It's self-explanatory on focused
7 inspections.
8 MS. JENKINS: Do you find the penalty is higher on
9 focused inspections?
10 MR. SWANSON: You'll find the penalties much lower
11 on the focused inspection. As you can see there, let's take
12 Concord. The average penalty for a focused inspection was
13 $60.00. The average penalty per project for a conventional
14 inspection was that $33.54 number.
15 Now, you know, there again we have, like the
16 Springfield office with an $800.00 average penalty for, you
17 know, per project. I would suspect without knowing that
18 there were one or two projects that were heavily penalized,
19 and the average breaks out to be $800.00. I doubt that you
20 would find any norm bubbling along $800 there. There's
21 probably some significant dollar amounts on one or more of
22 Springfield's inspections.
23 Okay? Any questions about this? This is intended
24 to give you a feel for where we are after a year and a half
25 of our focused policy.
Page 121
1 Thank you, Mr. Chairman.
2 CHAIRMAN RINGEN: I have one comment, and that is
3 that the purpose of a focused inspection program was to free
4 up resources to do other things. While you've seen a big
5 increase in the focused inspections at the same time you
6 have seen a huge decline in conventional inspections. The
7 question would be perhaps, to look at is, what would the
8 number of conventional inspections have been in the event
9 that you had not had the focused inspection program in this
10 period when you've had restrictions in your budgets?
11 MR. SWANSON: Well... And we have not done that.
12 We have... You know, we do have the question out there as
13 to why the numbers are going down. We have a half-dozen
14 answers for ourselves as to why the numbers are going down
15 with OSHA. Budget, you mentioned, is one of the them. The
16 time that we spent shut down in FY 96 is clearly one of
17 them. How focused inspections themselves interplay with
18 those numbers, clearly focused inspections are bringing down
19 OSHA's construction inspection numbers, for the reason that
20 the old way of counting was you'd get three and a half
21 inspections per inspection site because you counted all the
22 subs.
23 So if OSHA switched over and did all focused
24 inspections, visited the same number of projects, you would
25 be down someplace around 25 percent of the number of
Page 122
1 inspections, although you would be visiting the same number
2 of sites. As you pointed out, though, when we were going
3 through the slides, we have taken that variable out of these
4 slides, and we still slow a decline in numbers. Not nearly
5 as severe as those people who just compare FY 93 fiscal year
6 or FY 94 fiscal year to what happened in '95 or '96, but
7 still it's having an impact.
8 MR. CLOUTIER: Mr. Chairman, I also thought that
9 Joe Dear said last year and the year before when we made
10 this change we were going to do quality instead of quantity,
11 that when an inspector left a job site he or she should have
12 made a difference on whether that job site was any safer or
13 not, was one of the things. And I know my company has had a
14 number of focused inspections, and they seem to be working,
15 and maybe we need to capture if we go to a site instead of
16 just counting the site we also count at the site, that
17 somewhere we keep a subset of notes of how many subs were
18 there, which will also increase your numbers.
19 But I thought we were getting away from the number
20 bit. We were trying to look at the quality and the end
21 result.
22 MS. OSORIO: Is it possible to get similar graphs
23 but have them stacked, so that you have state as well as
24 federal? Because I think you're only seeing a slice of the
25 picture here, and it would be nice just to get the whole
Page 123
1 "OSHA experience" especially with respect to...
2 You may be focusing on focused, but in other
3 states that don't use the feds it may not be going that way,
4 and I just think... You know, a lot of the western states
5 and what they represent, you know, we need to see what's
6 going on there. So if at all possible a tally or a query to
7 that state offices to give you some head counts I think
8 would be quite helpful.
9 MR. SWANSON: We could follow up on that. As I
10 said earlier, there was no intent here to not recognize that
11 half of OSHA out there are state plan states. It's
12 difficult to show this way because 25 different states have
13 25 different reactions to focused inspections, and also as
14 was pointed out, we are getting away from the numbers as a
15 way of measuring anything, but it is still a management
16 tool. Are we having the impact that we wish to have with
17 our programs? Is it creating as you pointed out, Mr.
18 Chairman, some other...
19 Is it part of a problem in and of itself? I don't
20 know that. But we're looking at this as a management tool
21 so far.
22 CHAIRMAN RINGEN: Steve makes a very good point
23 about the change towards quality. The problem is... And I
24 think also is that we are going to get some performance
25 measure that would capture that, but I don't know if those
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1 are in place yet.
2 MR. SWANSON: No. That... That is the agency's
3 goal. That is what Joe Dear wants. I suspect Steve knows
4 better than I do what change there has been, if any, in the
5 last year or two in construction inspections by OSHA
6 compliance officers out there. We need a review team, Mr.
7 Chairman.
8 CHAIRMAN RINGEN: You'll have one.
9 Any other questions or comments?
10 (No response.)
11 CHAIRMAN RINGEN: Before we break for lunch, we
12 will reconvene tomorrow morning here at 8:30. As I said, we
13 will have a report on the silica special emphasis program.
14 First we will have three work group reports, the women in
15 construction, compliance basis and safety and health
16 programs. We will try to schedule our future meetings, so
17 think about your calendars, and hopefully out of the
18 meetings, particularly of the confined spaces work group and
19 the programmed work groups we will hear something about when
20 you think we need to meet to discuss your progress.
21 And finally, the ASSE will be addressing us. And
22 also we do normally offer the opportunity for public
23 comment, and if there is anybody else who has any comments
24 that they would like to make tomorrow, before we adjourn
25 will be the time for that, but please let Thomas know in
Page 125
1 writing, either today or at the very latest first thing
2 tomorrow morning if you have comments that you want to make
3 and what you want to comment on.
4 With that, I think we have concluded today's
5 discussions and we will break for lunch. Thank you.
6 The work groups meet at 2:00. thanks.
7 (Whereupon, at 12:20 p.m. the meeting was
8 adjourned, to reconvene at 8:30 a.m. on Wednesday, April 10,
9 1996.)
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BAYLEY REPORTING, INC.
(202) 234-7787 (800) 368-8993
Page 126
1 REPORTER'S CERTIFICATE
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3 TITLE: ACCSH
4 DATE: April 9, 1996
5 LOCATION: Washington, D.C.
6
7 This is to certify that the attached proceedings
8 before the United States Department of Labor, were held
9 according to the record and that this is the original,
10 complete, true and accurate transcript which has been
11 compared to the reporting or recording accomplished at this
12 hearing.
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15 BAYLEY REPORTING, INC.
April 9, 1996
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