U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
ADVISORY COMMITTEE
ON
CONSTRUCTION SAFETY AND HEALTH
VOLUME I
Francis Perkins Building
Room S-4215
200 Constitution Avenue, N.W.
Washington, D.C.
Participants:
Chairman:
Dr. Knut Ringen
Employee Representatives:
William C. Rhoten, United Association of Journeymen & Apprentices of
the Plumbers & Pipe Fitting Industry
Knut Ringen, Director, Center to Protect Workers Rights
Lauren J. Sugarman, Executive Director, Chicago Women in Trades
Stephen D. Cooper, International Association of Bridge, Structural &
Ornamental Iron Workers
Employer Representatives:
Stewart Burkhammer, Vice President of Safety and Health Services, Bechtel
Corporation
Stephen Cloutier, Safety/Loss Control Manager, J.A. Jones Construction
Bernice K. Jenkins, Vice President, Safety Management/Human Resources,
P.J.Dick/Trumbull Corp.
Kathryn G. Thompson, Kathryn Thompson Development Co.
Robert Masterson, The Ryland Group
Federal Representatives: Diane D. Porter, Associate Director, National Institutes of Safety and
Health
Public Representatives: Ana Maria Osorio, M.D., MPH, Chief, Occupational Health Branch, California
Department of Health Services
Judy A. Paul, American Association of Occupational Health Nurses
Committee Contacts:
Bruce Swanson
Tom Hall
Dale Cavanaugh
I N D E X
PAGE
Approval of Minutes
8
Standards Update
SENRAC
Scaffolds - Subpart L
Fall Protection - Subpart M
Gerry Reidy
8
97
Workgroup Report/Discussion
Safety and Health Programs
Judy Paul
19
Paperwork Reduction
85
- Afternoon Workgroup Meetings Not Transcribed
-
P R O C E E D I N G S
(9:10 a.m.)
DR. RINGEN: Good morning and welcome to this second meeting of 1996 of the
advisory committee. We have a number of things that we're going to deal with in
the next two days.
Our schedule is, today, to run until about noon and this afternoon have work
group meetings; and again tomorrow to run until about noon. Certainly no later
than noon tomorrow, and we'll try to finish up a little earlier.
We had planned to spend today's meeting in the morning dealing with a few
standards updates, and mainly a discussion of the issues surrounding the safety
and health programs.
I expect that the discussion of the safety and health programs issue will be
somewhat shorter than we had anticipated when we scheduled this meeting; and so
we will also take the time, if there is time this morning, to discuss some of
the issues that are listed for tomorrow under the paperwork reduction and
committee business parts of the agenda.
So maybe we can get that done today; and then might only have left for
tomorrow reports from the work groups.
I'd like to welcome Steve Cooper back to the committee. I guess, Steve, you
have seniority technically on this committee, since this is your second tour on
it, I believe. When did you first have membership on this?
MR. COOPER: Seventies. That was early -- years ago; you were just a child.
[Laughter]
DR. RINGEN: I'm still just a child.
So we're glad to have you back here, Steve.
I'd like to take a moment to have the people in the audience to introduce
themselves, and we'll start over here with Gerry.
[phonetic spellings:]
MR. REIDY: Gerry Reidy, OSHA, Construction Standards.
MS. HOWARD: Jane Howard, with Bechtel.
MR. WOHL: Ralph Wohl, with ITS Corporation.
MS. FALLIN: Shantel Fallin, from BMA.
MS. ONEIVA: Suzanne Oneiva.
MR. PRINCIPE: Bill Principe with Statute, Ferguson, Snow.
MR. PALLISH: Brian Pallish, American Subcontractors Association.
MS. SOLOMON: Regina Solomon, Homebuilders.
MR. MURRAY: J.P. Murray, Specialized Carriers and Rating Association.
MS. PULASKI: Margaret Pulaski, OSHA.
MR. VON ALLEN: Joe Von Allen, Allen Group, Professional Construction Safety
Standards.
MR. WOOD: Bob Wood, OSHA Office of Regulatory Analysis.
MR. COLWORK: John Colwork, Consulting Engineers.
MR. LAPPING: Jim Lapping, Assistant Secretary's Office.
MS. VILLANOVA: Camille Villanova, Directorate of Construction, OSHA.
MR. ROBERTS: Brett Roberts, Specialties and Contractors Association.
MR. PELLIGRINO: (unintelligible) National Contractors Association.
MS. MASTERS: Bernadette Masters,
Industrial -- Association International.
MR. DAVEY: Bart Davey from OSHA's Construction Office.
MR. KENNEDY: George Kennedy, National Utility Contractor's Association.
MR. EGMAN: Mark Egman, OSHA Construction Standards.
MR. ASLIP: Jim Aslip, Office of the Solicitor, and sit on our Council.
MS. LEPPING: Nancy Lepping with the Minnesota Attorney General's office.
DR. RINGEN: Thank you for taking the time to come and be here today.
We will have time for comments from the public, if there are any at the end
of this morning's session.
If you do have comments that you want to make, please give us a note about
that ahead of time, so that we can plan our schedule accordingly. And comments
that we're looking for have to do with the substance of the work that we're
engaged in.
We'll start this morning with a standards update. Gerry?
Actually, before you start -- I'm sorry, we have to approve the minutes from
the last meeting, I believe.
You have the minutes in front of you. They were sent out in advance of the
meeting. Are there any comments on those minutes, any changes to be made in
them?
[No response.]
DR. RINGEN: Do I have a motion to approve them?
MR. COOPER: So moved.
(Motion made and seconded.)
DR. RINGEN: Any discussion?
[No response.]
DR. RINGEN: All in favor?
(Voice vote.)
DR. RINGEN: Thank you.
[Motion carried.]
Gerry, now we'll go ahead.
Standard Updates
GERALD P. REIDY, Director
Office of Construction and Civil Engineering Safety Standards
MR. REIDY: I'm going to reverse the order on the standards updates, starting
with Subpart M, and ending up with SENRAC Subpart R.
Subpart M, the proposed -- the document to open up Subpart M is being worked
on right now with a team group; and we are addressing concerns of both the field
personnel on OSHA as well as stakeholders' concerns, too.
We have the stakeholders from the communications towers, the post frame
builders, precast concrete, home builders and roofers who have indicated they
have some concerns about the current M, and we are working on it right now.
We are still on schedule to publish the opening in the Federal Register in
August of this year.
Subpart L. The final Subpart L is being worked on as we speak.
A compliance directive has been drafted by a group of field staff personnel
that come into the national office about three weeks ago, and they will be ready
for the -- when the final rule is published in the Federal Register, and at the
present time the forecast for that publication date is July of this year.
With regard to Subpart R, steel erection, as you're all aware, in December of
last year, the SENRAC committee reached consensus on the draft regulatory text
for Subpart R, steel erection.
And during the past four or five months, OSHA and SOL in the persona of Mark
Hageman and Jim Estepp, have been preparing a Notice of Proposed Rulemaking
based upon the SENRAC document.
In your folder, we provided you with a copy of the draft regulatory text, and
also a short summary of each section of the draft.
Steve Cooper, who is a member of SENRAC, has agreed to discuss the handouts
and answer any questions.
Mr. Cooper?
MR. COOPER: The committee has a copy of the summary of Subpart R, and also a
copy of the draft standard. For the committee, if you will pay attention to the
summary, you'll see that the existing standard does not contain a scope an
application section; that's the old Subpart R. You will also see that there does
not contain definitions.
The new standard sets forth the requirements that require proper
communication between the controlling contractor and other contractors on site.
There's a section -- I'm not going to quote the sections and numbers unless
you require it, Mr. Chairman.
It's the section on hoisting and rigging, which is more realistic than
before. Structural steel assembly is there. Much of the content of the new
proposed steel erection standard deals with structural integrity.
For instance, we have a section on the requirement and the manner in which
anchor bolts will be treated, anchor bolts that fasten columns.
It's very strict requirements on anchor bolts and, as I said before,
structural integrity is a large part of this standard, and we feel rightfully
so.
The sections on connections of beams and columns relating to double
connections and other types of connections, as to changes in open web steel
joists which are known as bar joists, depending on the length.
More concern in the standard about the manner in which the structural
integrity of bar joists will be applied in the field. It also addresses
pre-engineered metal buildings.
Fall protection is in the requirement and of course, was a very interesting
and long-range discussion on fall protection.
And in general, Mr. Chairman, there is a section which we feel has some
clout in it that deals with training for steel erection.
That would conclude my short report on this standard. I'm ready for any
questions. Thank you.
DR. RINGEN: Thank you, Steve. We've had some discussion of this here
previously.
One issue that may be interesting to hear some more about is, the sense that
I have from everybody who was involved was that the use of this negotiated
rulemaking approach was generally very successful; time consuming and difficult
and so on, but very successful.
And it's been suggested that that approach should be used in other areas,
including possibly areas that involve broad performance standards.
I wonder if you have any comments about the applicability of this kind of
approach to the development of standards in general, and sort of the limitations
on where the approach will work and will not work.
MR. COOPER: Well, I, having been around this city for quite a while and
having been involved with this committee for quite a while, and with the
regulatory agencies for quite a while.
We had this probable with steel erection back in the '80s. We had meetings in
this committee, construction advisory committee, approved various types of
protection for steel erection. It's come before this committee since the early
Seventies.
This committee has ruled on these requirements that I just spoke of. Every
time there is a change in the committee the committee gets some sort of approval
and goes on, I would say six or seven construction advisory committee groups
have looked at steel erection, but to respond to your question.
Yes, I think negotiated rulemaking is needed in particular areas of concern,
for large problems. This has been a large problem. I don't know if you need
negotiated rulemaking to handle small problems.
DR. RINGEN: Most of the discussion has been on the fall protection measure;
and particularly the height and so on. The discussion of -- obviously, the
committee dealt most of the time with other matters; but that was one of the
cruxes of the discussions, a very specific specification.
And I can certainly see where the force specification issues, a negotiated
mechanism will work very well.
Where we have broader issues involved, general performance and so on, it may
be hard to get. I don't know if it's possible to get necessarily all of the
parties involved and get the kind of language that you need from the group like
that.
That was the gist of my question.
MR. COOPER: Well, I think the OSHA in particular needs to have some office to
handle negotiated rulemaking. It doesn't have to be large; could be a few
people. And of course advised by the assistant secretary and others on what
their charge should be. I think that is necessary.
It's my understanding, from Joe Dear, that money has been set aside in the
budget for negotiated rulemaking. I don't know if that's -- I don't see it on
paper. I haven't looked, but I would hope that negotiated rulemaking is a part
of this agency's future.
DR. RINGEN: For those of us whose participation was limited to the
celebration after the fact, it was certainly a very fine event.
I know it's nice to see people from really very broad, different backgrounds
come together in a very nice sense of agreement, and to have a celebration of
that agreement. It's one of the better things that's happened this year.
Any other comments?
MR. MASTERSON: Something I brought up the last time, at the last meeting; I
notice under the pre-engineered metal buildings that you're including small
sheds and as is stated here, ranging from small sheds to larger structures.
How are you addressing the area, say of metal stud construction in
residential, or was that even looked at?
MR. COOPER: How are we addressing metal --
MR. MASTERSON: The use of metal studs and metal components in a residential
home. Are you envisioning it falling under the steel erection?
MR. COOPER: If it's steel erection, it could possibly fall under -- you're
talking about a residential home made out of 100 percent --
MR. MASTERSON: Metal stud.
MR. COOPER: Well, metal studding, metal roof, metal siding, metal everything
-- couldn't fall underneath this. As relates metal studs, no. I would say it
definitely does not fall under Subpart R.
MR. MASTERSON: So what you're saying when you're talking like sheds and
things like that, it's a total steel structure, metal structure.
MR. COOPER: Now, if you're putting bar joists inside a home that's made out
of cinder block and you're putting bridging in, that would be, fall under steel
erection.
It's only the eye of the beholder. It would be nice to be as precise as we
would all like it to be; but to answer your question, on metal studs inside of a
residential building, it is my opinion that it would not fall under Subpart R.
But it steel erection was taking place, it would. And metal studding is done by
hand, although you may lift a bundle up with a crane. So it definitely would not
fall under Subpart R.
MR. CLOUTIER: Mr. Chairman, I have a question for Gerry Reidy. Gerry,
this proposed rule on Subpart R steel erections specifically the .760 portion,
Fall Protection with the 15 and 30 foot rule, is that going to impact Subpart M?
Do you recall a change in that 16 foot rule, where has the agency gone with
that?
MR. REIDY: In M?
MR. CLOUTIER: In M. If Subpart R is going to talk about a 15 and a 30 foot
rule --.
MR. REIDY: Well, first of all, the opening
is going to be to address some of these concerns raised by, among others, the
homebuilders and the roofers; and that 16 foot concern was raised. So that will
be discussed and handled in the opening of M.
MR. CLOUTIER: Does the agency have any thought one way or the other? Do you
look for that height to be increased or decreased? More likely increased?
MR. REIDY: I don't think -- would you care to help me out, Bruce?
[Laughter]
MR. SWANSON: I'm sorry, I was distracted. What was the question?
MR. CLOUTIER: Talk about a 15 foot rule and a 30 foot rule for connectors,
then when M came out, we went from what the industry practice has been back down
to 6 feet, and then homebuilders and a number of other folks wanted a 16 foot
rule; and it sure would be a lot easier for the industry to be consistent across
the board.
So I don't know whether Subpart M is going to end up at 15 feet or the 30
foot exclusion, or a building-type zone, I don't know. It would be a lot easier
for the industry to administer a program, if everything was consistent.
If we had a 15-foot rule and then we had an exception with a 30-foot rule;
instead of falling back to a 6, 8 or 10 foot rule.
MR. SWANSON: Well, what -- Mr. Cloutier, what you've heard a presentation on
this morning from Gerry and from Mr. Cooper is the negotiated rulemaking package
on steel erection.
When that is finalized, it will be presented to the agency, which has made a
commitment that the reg text language will be our language for a proposal. A
proposal is not a standard.
What will happen to that proposal during the rulemaking process, I'm not
certain. But that's on that track, and it's off and running, and it is exactly
what you see.
On another track, the agency made a commitment last fall to open Subpart M
for comments, many of which are in the same vein as those that you just made.
Those comments will be made by yourself and others on the record; the agency
will review it and what happens to M will be based on that record.
There's a certain logic, of course, to what you say; consistency makes for
ease of understanding and therefore ease of cooperating with and ease of
enforcement. But we are going to be driven by the record on M, as we've been
driven on R.
DR. RINGEN: Does that answer your question?
MR. CLOUTIER: Yes.
DR. RINGEN: Anything else?
Okay. Anything else for you, Gerry?
MR. REIDY: No.
DR. RINGEN: Steve.
MR. COOPER: I would like to point this out to Mr. Masterson, that to get a
real answer on your question on metal studs in residential housing, you should
probably talk to the people that give out citations, that would be the
compliance division, instead of Steve Cooper. Thank you.
MR. SWANSON: Fair enough.
MR. MASTERSON: Let me pose that question to the members present, then. Bruce,
any comments?
MR. SWANSON: No, not without reiterating much of what I just said to Steve.
This is language that we have agreed ahead of time that we will accept as a
proposal, and go out to -- when it's finalized, go out to the world to comment
on; and based on those comments, there will be a steel erection standard. And
then we are going to have to do some interpretation as to what some of these
terms mean.
"In the eye of the beholder" is a very awkward phrase to try and
enforce. So we will have to define whatever ends up in the final standard as to
what is steel erection, where does it start, where does it end.
MR. MASTERSON: If I understand what you've just said correctly, that means
depending on the comments that the residential builder could fall under Subpart
R, building a one story rancher?
MR. SWANSON: Are you asking me if that's legally possible?
MR. MASTERSON: Yes.
MR. SWANSON: Certainly.
MR. MASTERSON: Realistically possible.
MR. SWANSON: Based on the record. I wouldn't bet my pension against it; but
based on the record, if that's what the construction industry and others
support, in theory that could happen, because we're record-driven.
MR. MASTERSON: Fair enough.
DR. RINGEN: When do you expect that this proposed standard will be announced,
and released for comments?
MR. REIDY: On M? On R? R.
We are forecasting a Federal Register notice in December of this year.
DR. RINGEN: Thank you, Gerry.
Next issue is the report from the work group on the program standard. Judy
Paul.
MS. PAUL: I have a brief statement. We have a meeting this afternoon, we'll
be addressing some issues then, and I'll have a status report in the morning.
But briefly, I want to first recognize and thank all of those that have
participated in the workgroup meetings, all of the original workgroup comments
and submitted documents that these people have given us.
The workgroup has a whole library of association model programs, contractor
programs, and job site plans that will be invaluable as resource materials for
training and outreach activities.
As just one example, the three mechanical associations prepared an excellent
position paper that addresses the issues that have been before the work group,
and a few that still are.
Over 100 organizations and individuals have taken part in the review and
development of a preliminary document that has gone through four drafts, and is
evolving into a proposal that reflects the concerns of all segments of the
construction industry.
After major revisions to the first version, I believe that the work group has
a sound understanding of the philosophical issues and is now focusing on
selecting the best words to most clearly express the intent of the standard.
The issues of employee accountability and multi-employer relationships will
be addressed this afternoon; there are several suggestions on the table as to
how to best resolve these issues, and I'm confident that a responsible solution
will be found.
There are strong concerns about the need to educate the industry about the
new standard, and the work group believes that the Advisory Committee needs to
follow through on an outreach program.
Like I said, I'll have a complete status report in the morning. We will have
the document this afternoon that's been revised from yesterday's meeting to work
from.
So we'll have a complete status report on the document, and the response from
the industry has just been terrific, and it's just been great.
DR. RINGEN: Thank you. I would like to say that you've done an incredible job
as chairperson of the group, and also all the people involved in the group have
done really a heroic effort to try to comply with a time schedule, that for all
practical purposes has been impossible from the start; and that is to produce
essentially recommendations on a huge, huge issue within about six weeks.
And obviously I've seen the flurry of correspondence that has gone between
various parties and the agency on this issue from time to time. And the concerns
that this is moving fast and at the same time I've also heard from just about
everybody involved, very positive responses that it seems that it should be
possible to reach agreement on most of the issues involved in here, even though
they're difficult; and as near as I can tell, I've been hearing very, very
positive responses both with regard to the process, the effort of the group to
get as much input as possible. And also with regard to the product itself.
So I think it's really a major and heroic effort that you all have
undertaken.
MS. PAUL: I believe that that's thanks totally to the people that have
participated. We have just really had phenomenal participation from all aspects.
DR. RINGEN: I'd like to take this morning, a little time to discuss some of
the issues that are involved in it; and that still remain open for resolution in
such a way that you all can have a better sense of where members of this
committee are at, as well who have not participated directly in the process this
morning.
But before we do that, I would like to ask if there are any of the members of
the committee who have participated in the work group actively throughout this
period who have any comments to supplement what Judy has said already.
Ana Maria.
DR. OSORIO: I just want to add, in addition to Judy's excellent leadership in
all participating outside groups, I also just want to commend Jim Lapping and
Camille Villanova for their participation, too. I think the OSHA staff has come
through as well as the outside groups.
DR. RINGEN: Any comments? Bill, you've been involved.
MR. RHOTEN: Somewhat. I missed a couple of meetings because it conflicted
with the other committee I'm on; but I think Judy Paul has done a good job, and
I, too, would say that Jim Lapping has been instrumental in keeping the
communications together on the issue. And I think he's done an outstanding job.
DR. RINGEN: Bernice?
MS. JENKINS: Well, I missed the workgroup meeting, so I only attended the
first meeting. And I think there's a lot of input.
DR. RINGEN: Stew, you've been involved. At least at the last meeting.
MR. BURKHAMMER: Yes, I missed the first meeting, but I made yesterday's. I
was really impressed. Regina and I actually agreed on several items, and I think
that's a major breakthrough --
[Laughter]
-- especially from the musculoskeletal disorders. I think there's about four
or five issues that were left that maybe we could shorten the discussion with
the committee.
Training is still a big issue that a lot of people have differing views on.
There was a discussion on disciplinary warning and employee responsibilities
versus employer responsibilities. I think that's left on the -- then the issue
be under the parking lot to do.
We got in a debate, and I guess "debate" may or may not be the
right word on the multi-employer work sites; and I think Kathleen Hopkins did a
tremendous job in putting a paper together for us to start with; and as you all
know, it's very difficult to start with a blank sheet of paper when you have 30
people in the room with differing views.
So to put something down that gave us the starting point, I think was
tremendous; and it did get us started. I think we've got a long way to go on
multi-employer worksite discussions.
There's a lot of differing views on liability issues that we've discussed; on
what is a CM versus what is a general contractor and how contracts are
structured. What do owners, and as you all know today, owners can be banks
instead of companies or individuals. And then the bank sells the finished
product for a profit itself.
A lot of times banks hire agents and not CMs, or PMs or GMs, and the agents
basically monitor the various contractors and the distribution of the money
through the contract. So finding a real true definition, I think, for CM or PM
or GM is going to be difficult; but I think it's possible to get there.
Jim had a document that he brought, speaking for the Chemical Manufacturers
Association, and they had a lot of pointed remarks. But I think if you take a
look at those, they were centered more around process safety management and how
that evolves into the safety and health program standard. And also the
multi-employer work site portion of it.
A couple of items we didn't get into that I was somewhat surprised we didn't
was record keeping and how that works in a program standard.
As you know, the record keeping revision itself has been a long process with
a lot of debate by many, many people; and I looked through the various documents
that were proposed, and the reams of paper; and very little is touched on --
record keeping and records is part of the safety and health program standard,
which I find somewhat strange, because I think when you're giving a generic
safety and health program, or something like that or some examples of generic
type safety and health programs, record keeping is a large part of anybody's
safety and health program; and we've all debated record keeping over the years
in trying to come up with a level playing field.
So I think that's an issue that we need to touch on a little further.
Coverage for small employers, of course, is always an ongoing issue. What's
small versus not small, and I think we talked a lot about that. Employee
participation; how do you get employees involved in their portion of the program
without basically mandating labor-management committees, finding a way to get
involvement other than that.
And site-specific plans versus safety and health programs in trying to define
the two of those and break down the definition from a company safety and health
program versus a safety and health-specific plan for a project.
So that's kind of my view of the thing, and I think Judy did a tremendous job
in yesterday's meeting. Like I said, I wasn't at the first one, but she moved it
along real well and we got a lot of things accomplished; and I think we're
close. I mean, it's a lot more encouraging than musculoskeletal disorders --
[Laughter]
DR. RINGEN: If we could pass these around; what I did in preparation for
today --
(Document handed out.)
-- I sat down, and based on just the discussions I've heard, having not
participated in the work group; but the kind of, what I see as a lot of the
outstanding issues on this subject; and I tried to structure them in such a
way that we could have a discussion of some of the issues involved here, without
taking too much time on it.
I think the first point that you made, or one of the points that you made,
Judy; and that is somewhat of an education about why this standard is needed is
real important.
It's been the sense of most people who are involved in this industry that
Subpart C is too general, and that it would be good to have a much clearer
understanding of what is expected of employers; that employees should expect in
general with regard to the safety and health programs.
And that's really what the aim of this is, and they aim this to do it in such
a way that we can get at the basic core of what every employer should be able to
or should provide that relates to that employer's compliance with OSHA and also
in such a way that it makes inspection policy more rational.
I think if those three objectives can be met somewhat with this, if we can go
and get a step closer to those objectives through this process, then it
certainly is very well worth doing.
That's my thinking about why this is very important. Other people may have
other views on it. But again, it's to get better standardization and get a
clearer understanding or agreement among everybody in the industry about what is
expected in terms of safety and health performance, and the first start in terms
of safety and health performance is the program that the employer has.
We can have a discussion of that general issue first, if there is any
discussion of it, and then we can go into the issues that I've heard have been
raised, and I don't know -- and then see how far we are towards resolution of
those issues.
Any comments on this?
Yes, Stew.
MR. BURKHAMMER: We had a lot of discussion yesterday, and maybe Judy can talk
about the first meeting, but on how Subpart C fits or doesn't fit in the
development of this.
And a lot of the paragraphs or sentences that the group yesterday determined
that Subpart C already addressed, the discussion revolved around removing them
and incorporating Subpart C by reference, or taking segments from Subpart C and
reinforcing them in the safety and health program standard.
I think that's still in the parking lot for finalization of agreement. I'm
not sure that you're going to get a consensus agreement on how to do that,
because one of the discussions on the disciplinary warning issue evolved around
the 11C and how that works, and the 11C and the employee can file a complaint in
11C versus putting a section in the safety and health program standard that
addresses employee complaints.
So there's a lot of things, I think in the subpart C issue whether to take it
in, to leave it out, combine them, incorporate it by reference so that will all
shake out.
DR. RINGEN: Any other comments about this?
If we go to these issues, and this -- you need to address this for 1 to 4 or
4 to 1, depends on which way you want to go with it; but what I've done is to
take and just break down this issue among several different levels, that's under
consideration.
And the first is to simply try to separate out what is it that the employer's
program should contain? And the issues that I've heard raised, in addition to
making it sufficiently flexible so that you can cover such a diverse industry as
construction and all of its considerations is really the four things that are
there to cover it for small employers.
Do you exempt some employers? Do you make exceptions for some small
employers?
The issue about disciplinary action and employee participation, you may want
to separate that out more, and maybe you have in your discussions; but one is
how much employee involvement should there be in this process and also how much
employee responsibility, liability and so on should there be.
The third issue that I know has come up a number of times has been training
requirements, what kind of training is it that you have to provide employees;
how do you do that in an industry where there workers go from employer to
employer and so on.
We've had that discussion in terms of general standards -- we have that for
every standard that we deal with.
And the final issue is, how does the stuff fit in, that when you have a site
that is unusual to the kind of work that your company normally does, what is it
that you really need something in addition to your program that relates to the
specific site?
I don't know how close we are to reaching agreement on these issues within
the work group, Judy, or what sense you have of it.
MS. PAUL: Well, some of them have been addressed. As Sue said, some of them
are still in the parking lot for us to wrestle with. We wanted to see what we
can agree on, you know, and I think that this outline you made up really hits
the nail on the head as to what we still have to discuss.
But the sense I have is that people are truly working towards this end; you
know, obviously we have various positions, but making movement toward it, you
know, doing what they can, you know, in order to get to a point where people can
agree, can live with what's going on.
So I wouldn't say anything's outside the realm at this point. I wouldn't say,
you know, where we can't agree on any of these things. And I think they're still
all on the table.
DR. RINGEN: Any comments on any of these issues in general from those who
have been involved, or from other members of the committee?
I think it would be helpful for the work group, as we said earlier, to have
somewhat of a sense of where the various members of the committee stand on some
of these issues, as they go into their discussions. And that may not be possible
to do. Helpful in terms of the time frame that we're looking at, and if we can
have an understanding of those things.
MR. RHOTEN: I would hope that some of the issues that you raised here we
could discuss, too, today, so that the committee would get a feeling for how the
total board feels on the issue of the small employers; and I have strong
feelings about that.
And I've heard some figures quoted, and you can probably tell me, Bruce, if
these are correct; but under 13 percent of the construction contractors have
under four employees, is that correct? And they're responsible for 29 percent of
the fatalities on the job sites. Is that number correct?
This whole issue of whether or not the small employer should be covered, I
would hope that we could discuss it here and let the committee know the feelings
of this whole board, so that when you go back with your work group to debate
this issue, you'll have a feeling that at some point you're not going to be able
to respond to people that might not want this to cover small employers; and we
might take their arguments and suggestions back to us, I think we have enough
logic here to take the position that they in fact should be covered.
In regards to the training, I've got strong feelings on that. I think that a
person at some point, we're going to have to get in a position to have some kind
of a standard that says before any construction worker even goes on the job
site, he should have a minimum of eight hours of training.
Now, that's not an unreasonable thing to do; there shouldn't be any cost
burden to the contractor; in fact, if the person that's going to work in
construction knew that he had to have eight hours of safety and health training
before he went on the job site, he would in fact get that.
He would get plumbing training or training to be an electrician, or whatever
kind of training he had to have; that would work itself out in the industry, if
we in fact made that a law, that before a person goes on a job site, he had to
have a minimum of eight hours.
And I think at some point, whether it's included in this recommendation as a
separate issue, that that should be discussed. If it's a long-range program, so
be it, but at some point I think that's going to have more effect on the safety
of the people in the job sites than what we write down in the standards. Those
are my comments.
DR. RINGEN: Bernice.
MS. JENKINS: I think some of that could be a little bit unrealistic. If you
have an employee that's only going to work one day for you, it's kind of
difficult to give them eight hours training for one day's work.
MR. RHOTEN: Well, I would suggest to the person that's going to work one day
in the construction industry probably shouldn't be on the job site.
MS. JENKINS: Well, if you have a concrete pourer for one day, you're only
going to have those people there for one day.
MR. RHOTEN: Well, you might make that case; but I might suggest that those
are the people that are getting hurt, that have walked on the job site for one
day, they have absolutely no business on a dangerous construction job site,
whether they're pouring concrete buckets overhead in some cases -- those are
dangerous situations, and you can't just take people off the street and put
those people on that job without somebody being responsible for them, that they
got some basic training.
MS. JENKINS: Well, hopefully we're going to get some qualified people that
have some apprentice --
MR. RHOTEN: The other thing is, too, he might work one day on your job, but
if a person's going to work in construction the chances are if he's working on
your job for one day on a concrete pour, the next day he's going to be working
for two days on somebody else's job; next week for four days there.
So while you might just employ him for a day, it's not unreasonable to expect
that he's going to make his living in the construction industry, that he in fact
made sure that he had his own safety training if we made it the requirement.
MS. JENKINS: Okay, but who's going to be responsible for that initial eight
hour training?
MR. RHOTEN: Well, it wouldn't matter to me who was responsible. He in fact
could be responsible for it, again, as much as he is responsible for learning
how to plumb.
Some cases, joint labor-management set up training facilities for that; we in
fact do, we've got safety training integrated into our program.
On the nonunion side, there's trade schools out there now that people are
willing to be plumbers on their own, depending on their own way. And if it's a
requirement that he have eight hours of safety training before he can work, I'm
sure that he'll work that out, or a joint labor-management fund will work it
out, some employers might work it out.
But the obligation to the employer would be that he knows when he hires that
person that he has eight hours of training. However he gets it will take care of
itself.
DR. RINGEN: You aren't that an employee had to receive hours of training
every time he went on a new work site?
MR. RHOTEN: No. I'm suggesting that
before -- no, no. I'm suggesting that before anybody go on a construction
site, however it gets there, that he has eight hours of training, period.
Now if it's joint labor-management, it's on its own, it's the employer that's
want to assure that he's got the training.
However, you get there, I think that's where you're going to have to get in
this industry. It's inexcusable to take kids out of high school, put them
downtown in a construction job, and they don't have the slightest idea of what's
going on on that job.
Now in most cases they might put them with a qualified journeyman who in fact
knows about that; he'll take him under his wing and he'll tell them not to walk
under loads, not to do this, not to do that. But more and more that's not the
case, because there's people that are so-called journeymen on the jobs and in
fact themselves don't know what's safe and what's not save.
So it's just a suggestion, and again it might not be tied into this; although
I think it would be good if it would. At some point, if you get there, then
you'll get the training where it belongs; you know, it's like the old thing, you
build the field, somebody will show up.
You make it a law, and all those economics and all those things will take
care of itself, and it'll be cheaper in the long run, I believe.
DR. RINGEN: Bob?
MR. MASTERSON: I think there's a whole host of people that are on site and do
come to different sites that you may not have taken into consideration that
would fall under the training, as you've described it; and it is -- what about
the driver delivering aluminum siding? What about the materials delivery
process? Are you proposing that they would have to have eight hours of training
for --.
And then you also have, at least in my industry, an entire host of builders
out there that utilize temporary labor, just for cleanup. Cleaning the street,
picking up debris around the house.
Are you suggesting that they all have to also have an eight hour training
program when they're going to be on my site sweeping a street today and tomorrow
they're going to be in a warehouse, moving material around. Who knows where
they'll be?
MR. RHOTEN: Well, I have no problem with suggesting that everybody should
have eight hours of training. If that answers your question. And again, he might
be working on your site, moving lumber around for a couple of hours, but if he's
going to be in the construction industry, then that's where he's going to be.
He might be driving a truck one day and he might be pouring concrete the
next.
I mean, I don't think it's too much to ask that we in fact put the emphasis
on this country on making sure that people on the work sites are trained. And
I'm not suggesting that you pay for it.
I'm suggesting that if a law said that a person that works on these sites
have eight hours of training, the economics would take care of itself.
Because if he couldn't work for you unless he had the training, he might in
fact figure out a way to buy it himself. I would.
MR. MASTERSON: Then again, I don't disagree with the requirement for training
for construction workers, mechanics; but when you start extending that out to
other industries that aren't construction workers but do come on to the site,
which is what you've done, anybody coming on the site.
MR. RHOTEN: You could not put words in my mouth. All I'm doing is addressing
here the construction industry.
The truck driver, I don't have any jurisdiction over that or care about; I
care about it, I think personally everybody should have eight hours of training,
but I'm really addressing just the construction industry. Just the construction
industry.
DR. RINGEN: I think Steve was first, then Stew.
MR. COOPER: I just wanted to respond to Bill, if I could.
MR. BURKHAMMER: It's interesting what you said, because one of the things we
looked at with great interest yesterday was a submittal by the
mechanical-electrical-sheet metal alliance.
And David D. Lorenzo gave us this very nice document where they spent a lot
of time doing it, and responding to every issue in the initial draft.
And one of the things we talked about yesterday was somewhat related to
Bill's comment; where under safety and health training they have a statement
that says:
Direct employees not to perform work until they have received training in the
avoidance and prevention of potential hazards related to assigned tasks.
That's one of the items we're discussing.
DR. RINGEN: All right, Mr. Cooper.
MR. COOPER: The other point is that, you're already required under the
standard to provide safety and health training for any employee on a
construction site, 1926.21. Which would include anybody; even guys picking up
trash.
As far as truck drivers go, and vendors -- I don't know if you mentioned
vendors come in -- that's part of the problem; people bringing trucks in and
getting underneath crane loads, and actually running over people and backing
over plant and equipment, which I know don't have arteries, but that's part of
the problem.
I certainly strongly feel that you shouldn't be able to just walk out on a
construction site; that's why we're all here. You know, that's why we're sitting
in this room; too many people have operated wrongfully on construction site.
That's the reason this agency's in existence.
So it's under the standard 1926.21, whether we like it or not, it's there.
The question is the length of training. And of course who pays for it.
I would think, Bob, in response to your questions on it, that it's rather
obvious that there needs to be training. The question is if a person is trained
as Bill Rhoten claimed for eight hours, you would have that, whether he acquired
that, he or she acquired that on their own or through a company or however,
through a union; they would be trained that 8 hours, that card ought to be good
for quite a while.
I think the question is how long that 8 hour certification is good. Is it
good for five years, Bill? Is it good for ten? If you've had it once in your
lifetime -- but beyond that, which is another story -- eight hours is not much;
I think it's very easily obtained.
I don't think you should be driving down the road without a driver's license;
it's that simple. Thank you.
DR. RINGEN: Steve.
MR. CLOUTIER: I think we're tapping into an area that definitely need to be
looked into; and I think the training issue could be resolved, or possibly
solved in the secondary education, that maybe it's a high school-type course
that you take. So when you leave high school, you automatically got this 8-hour
or 10-hour course in your pocket.
I think if the industry feels strong enough that we want our employees to be
trained, that the issue is going to be worked out through trade associations,
the secondary education system, through community colleges, through states,
through labor unions.
There's a myriad of places to get that education. And it's no different than
one we require 100 percent safety-toed shoes or boots on the job site.
Not every employer goes out and buys it for their employees, but I can assure
you that every employee, whether it's the labor side or the open shop side, they
come to work ready to go to work. Same way on 100 percent eye protection.
We made that happen in the industry. And I think it's an avenue we should
discuss some more, and I don't want to sit here and say that I'm an employer's
rep and I think every employer should sit there and provide that eight or ten
hours the first day they come to work, because I don't believe in that.
But I think that there are avenues to get the training, and the card can be
portable, so you can have the portability of training -- they can work for me
for a few days and go down the road, work for Bernice, end up with Bill, and go
all around the place.
The issue is, as Steve was bringing up, whether it's good for three years,
five years, ten years. We don't know that; you've got to go back on your
driver's license some states every two years, some states every eight years,
some states probably never.
But I think the industry recognizes that there's a number of folks that are
in the business right now that are not trained to the standard that we would
like to see them, because we're still having accidents.
And a good general safety awareness course with that card that is portable,
to take from employer to employer, from work site to work site, is beneficial.
The other avenue that I bring up, I've brought up in the past and I'll bring
it up and it was briefly touched on because there's been some discussion of
safety and health plans:
We've got to bring the owner involved. Because the owner buys services.
Whether the owner is a bank, whether the owner is the federal government,
whether the owner is a private developer, the owner buys services from that
general contractor or from that subcontractor, from that specialty contractor.
And a lot of owners, all they want to do is have that building up, and why
wasn't it up yesterday, to be leased out.
Other sophisticated owners demand the contractor provide a comprehensive
safety and health program. But if we don't have the owners involved in this
thing, it isn't going to work, because they fund it indirectly.
They either fund it through cents per hour going back to the labor unions,
cents per hour going back to various trade associations, training programs, or
they fund it with cents per hour going back to the employee directly.
We've got to go back, and I would hope that the work group will readdress to
the employee, because they're funding it. And they're buying our services. We're
just a middleman there.
Whether you're the GC -- I think we muddy the water with this project
constructor. Haven't identified that yet; I know all this work is CMs, all this
work is GCs, a lot of this work is one GC of ten on a job site and nobody wants
to take the responsibility.
The only person there that should have that responsibility is the owner,
because they're footing the bill. And they've driven it down to the bottom line
dollar; it's a hard money job, and you get what you pay for. And when they scimp
and scimp and scimp, the costs get driven downward, and something has to give.
DR. RINGEN: The European Union directive that deals with this issue primarily
starts out with the responsibility of the owner; and the owner has a whole
series of different responsibilities including selecting contractors that meet
certain requirements in this kind of stuff.
It really I think addresses this issue very nicely. I don't know if you
looked at that.
MR. CLOUTIER: The Monsantos of the world, they put their money where their
mouth is. They fund it, they believe in it, they mandate it. That's the way it
is.
DR. RINGEN: I can get you that directive by this afternoon. It might be a
useful document to work from. Many of the owners, of course, have taken
exception to this because they want to pass the buck; they don't want that
responsibility.
MR. MASTERSON: I hear what you're saying, but now how are you going to
distinguish between the owner of a company building a structure and a single
family
person -- you buying a home. For that matter, if you're talking to the owner,
what about the car you bought?
Are you going to take responsibility for the assembly line that built your
car? That's what you're talking about when you're talking owner; you're talking
the end user. It could be a homeowner, it could be buying a car, or any product.
You just totally erased all those lines of distinction.
DR. RINGEN: No, I don't think necessarily -- we'll have to look at the
documents some more, Bob, because I don't think that's the case. In fact, I
think they clarify rather than erase the distinctions of responsibility.
And that's the important thing; if I'm going to hire the contractor to build
a house for me, I'm going to make sure that he has certain qualifications,
obviously. And in my case, one of them I'd look into is whether he's been
building safely in the past. Even just for simple housing sites.
MR. MASTERSON: In that language, I have a homeowner that contracts with my
company to build a home. Are you saying by that that all ten thousand of those
homeowners are going to have direct input into how we maintain safety on a job
site?
DR. RINGEN: Probably not, but they're going to certainly have input into the
selection of the contractor, and the consideration of what goes --
MR. MASTERSON: All the --
MR. JONES: Actually, I'm going to bring up a point which actually supplements
what Bob is saying; and that's to point out that the OSH Act, in setting up the
burdens on the employer and employees, are focusing on the employer-employee
relationship.
The question of the extent to which owners, as distinct from employers can be
held responsibility for compliance with the Act or with the promulgated
regulations, is one which is currently very much in dispute and I think that
that is a concern that should be taken into account by your workgroup, Judy,
when you are proceeding; that there is in fact some limit on what is generally
recognized as the responsibility that can be imposed on an owner in the capacity
as an owner.
And I'm sure Rick Pfeffer, who is your project attorney, is going to be sure
that those concerns are taken into account.
But in the context of this discussion, I think Bob is making a very important
point. Which is typical of the kind of concern that animated the drafters of the
OSH Act; that there is per se relationship of employer-employee which brings
into play the accountability under the OSH Act, and 10,000 homeowners trying to
deal with contractors and with construction employees; that may be exactly the
kind of concern that the Congress and the subsequent administration of the Act
was not intended to encompass.
MR. CLOUTIER: Yes, but that owner is not the owner until the final day of
closing; he's buying that service from this particular company who happens to be
building 10,000 homes. He's not the owner until the final end product.
As far as any other construction site other than the residential side of the
business, there is an owner. It may be a bank, it may be a financial
institution, it may be DuPont, it may be the federal government, it may be the
Corps of Engineers; there's an owner there.
MR. JONES: Right, and see there's a basic jurisdictional issue, as to the
extent --
MR. CLOUTIER: I understand it. When you're sitting there, showing --
MR. JONES: -- that owner can be held accountable.
MR. CLOUTIER: -- safety and health plans down to the multi-employer work
sites, and there's five generals on it, who is in charge? Because there's a
mechanical, there's a civil, there's an electrical, there's a site guy.
Who's the owner? Who's responsible for the whole project? It's the owner. The
owner coordinates that work, or the owner's agent coordinates that work. And
they've got to fund part of this operation. Because they take low bids.
It's not -- we don't have any cost-plus work in this business anymore. Those
days are gone. Everything's low dollar bid. But if we let safety spill out of
our contracts, it would help us out a great deal.
And I don't like having to babysit all the second, third, fourth, fifth tier
subcontractors on the job sites. I've been on job sites that have 200
subcontractors on them.
There it should go back to that employer, should be responsible for his
people. It goes all the way back up the line to the owner, because he's holding
the purse strings. He buys a service. He buys a general contractor, he buys a
specialty contractor, he buys a labor broker.
MR. MASTERSON: Steve, a question for you; and I'm not an attorney, nor do I
want to be -- but does the OSH Act actually even allow OSHA to promulgate a
standard that goes beyond the employer-employee relationship?
MR. JONES: The OSH Act addresses only the employer-employee relationship. The
goals of the Act extend beyond that in terms of ensuring that workers have safe
and healthful working conditions; but in terms of the Section 5A -- the language
of the Act itself, burdens are explicitly imposed on employers, and then there
are burdens which are imposed on employees.
DR. RINGEN: Bill.
MR. RHOTEN: In the process -- the management standard, there's language that
says that the owners shall take into consideration the safety record of the
contractors they hire.
I think that's probably the only one I know that -- asbestos. Is that
correct?
MR. JONES: The asbestos standard has requirements on owners. Let's see, the
hard platform standard has language which addresses owners. There are examples
where OSHA has gone beyond what might be viewed as the strict bounds of the
object.
MR. RHOTEN: My suggestion is, if it was across -- has that created any
problems for the owners?
MR. JONES: I would have to go back and check on that to see what issues have
arisen from those standards.
MR. RHOTEN: I don't think that -- that we probably want to put any burden on
the owner; but at the same time we'd like to think that they're responsible
enough to look at the safety record of the contractor they hire; that's
reasonable.
I wouldn't think you'd want to put any liability on the owner, because he
doesn't have control over the employees on the site. But I think we could get
some kind of language that suggests that they check the company's safety record,
the contractor.
DR. RINGEN: Diane?
MS. PORTER: I was going to give some feedback on this. I was fortunate enough
to help in some deliberations that the Australian government was doing as they
were trying to set up their occupational safety and health program; and then
subsequently did a consultation visit there.
And specifically was interested in construction, having worked on this
committee and whatever; and I went to several multi-employer large sites and
looked at what they were doing, and they -- you know, they have a
state-controlled program that, you know, is different in each state, but then it
comes together in a national program.
And you know they learned from what OSHA was doing, they learned from what
NIOSH was doing here, and then they tried to do some best practices over there.
In visiting those construction sites around the states, in fact in Queensland
the owner is held responsible and liable -- you know "responsible"
maybe not liable -- but responsible for the health and safety and the training.
And workers in Australia -- you know, I haven't gone back to refresh my
memory, because this was several years ago; but they carry a card around that
is -- you know, it is a safety and health card; they've had training. It's
like their driver's license -- they have it every five years renewed.
And there is a site-specific training program daily required on sites larger
than "bleep-bleep-bleep" you know, whatever; you know, they've got all
these specifications in the standard, in Queensland anyway, which I considered
to be the model.
Because it also, you know, it had great didactic and training courses and it
also -- but this site specific person worked for the owner; and every day new
subcontracts were coming which did have a health and safety meeting every
morning for a half an hour.
I mean it might not take a half an hour one day, but I attended those, you
know, for a couple days of a building of a Holiday Inn, in the Riveria for
Queensland -- whatever.
But anyway, it was a really interesting concept, and they had not had any
accidents or incidents for several years in that home state.
DR. RINGEN: We should make a field trip to the "Riviera" of
Australia and take a look at that.
[Laughter]
DR. RINGEN: Do you have that documentation and could you make it available to
Judy and her work group?
I think the issue is, that most people that I've heard talk about -- when
I've talked about that in the industry, that there's a desire to have some sense
of owner responsibility in this area.
And that on the one hand, Bob, you have the single homeowner who's building a
house, maybe; or on the other hand you have the 200-subcontractor job site, and
somewhere between those two areas is where you want to set this up so that it's
obviously reasonable.
And unless I hear otherwise, it's probably an issue that the work group
should be looking at.
Steve.
MR. COOPER: What is the time frame you're looking at on allocation of
liability, which technically should read: Among owners/contractors and
subcontractors.
What is the time frame that this committee's trying to get a response back?
DR. RINGEN: Ideally, we're going to try to have this work -- OSHA asked us to
try to have this work done by the end of June. That's not going to happen, I
don't think.
[Laughter]
I take that back. Maybe it will happen by tomorrow. But I would be pleasantly
surprised by that. I think the best thing I can tell you right now is "as
soon as possible."
MR. COOPER: And what does that,
"as soon as" -- thank you very much, Mr. Chairman.
The issue is a big issue, and it reads larger than that sentence.
DR. RINGEN: Sort of like "in the eye of the beholder."
[Laughter]
MR. COOPER: Are you implying that allocation of liability between owners and
contractors and subs --? Are you also including hold harmless clauses, contract
language, et cetera? What do you mean by that?
DR. RINGEN: I think you're reading that a little too literally. The issue is,
in general terms, within a standard like this, how do you define who's
responsible for what?
MR. COOPER: But if you have a hold harmless clause, you just -- for Mr.
Masterson to get the contract from me, you've got to sign a hold harmless clause
and I'm exempt in the courts. So what are we talking about here? Mr. Jones, I
guess maybe you're ready to say something about that.
MR. JONES: Yes. Well, actually, we've had that question come up to this
committee before. Rick Palmer raised it on behalf of the subcontractors, and in
particular the Supreme Court has held that such clauses are not per se
unconscionable contracts, and therefore the OSHA approach has been not to
disallow those in the enforcement of the Act, and the only question that remains
for us to consider as we review experience under that approach, is the extent to
which the hold harmless clauses undercut the administration of the Act and
result in reduction in protection of workers.
MR. COOPER: That's abundantly clear, thank you.
[Laughter]
DR. RINGEN: Bill?
MR. RHOTEN: If I could just make a remark. I think of the four items that you
have down here for discussion, and I've been to a few of these subcommittee
meetings -- eventually they all get worked out, I think, except the most -- the
one that might be the most controversial is that number one, the small
employers.
I guess I would like to ask you if it's appropriate, because that committee
can't make recommendations and they can't vote on anything.
Can we on that issue at least vote as a board now to give them some direction
as to whether or not the coverage for the small employer should be included in
the final draft that they bring back.
MR. CLOUTIER: Absolutely.
DR. RINGEN: I don't know what -- what was the 'absolutely' in reference to?
[Laughter]
MR. RHOTEN: I guess I would ask if it is appropriate for us to, as a full
board that can in fact vote, when they can't, to take a vote on this issue and
at least give them some direction from the full board.
DR. RINGEN: Could you rephrase the question maybe; is there anybody here that
thinks that any employer should not be covered by --
MR. RHOTEN: I guess that's the question; is there anybody that thinks that
small employers should not be covered under the safety and health program?
DR. RINGEN: Stew?
MR. BURKHAMMER: Mr. Chairman, I think he's got to define "small
employer" so we understand what he's talking about.
MR. RHOTEN: Well, an employer that hires one person. That's small.
[Laughter]
MR. RHOTEN: Listen, again, on those figures; if 13 percent of the contractors
hire less than 4 people and they're responsible for 29 percent of the
fatalities, I don't know how -- how many those are that just hire one person,
but I imagine if half of those do, that one -- person who hires one person
should be covered.
DR. RINGEN: I think Steve can give a clear understanding of this.
MR. JONES: I'll try to explain. The SBA defines a small business as fewer
than 500 employees. And OSHA, in our rulemaking, especially under the new reg
flex requirements and all, we are required, if we're going to differ it from the
SBA definition, to come up with a rationale based on the particular industry,
the composition of the employer-employee relationship.
MR. RHOTEN: Well, what you're suggesting is the small employers are under how
many?
VOICE: 500.
MR. JONES: I'm not suggesting anything. I'm suggesting that you as a
workgroup or as a committee will need to look at your particular impacted group,
and make your own determination as to what particular segments would be composed
particularly of small entities. We've had numbers ranging from 5, 10, 20 being
used as thresholds.
MR. RHOTEN: I think that number, 500 in construction industry, is completely
ludicrous. I mean, how many employers do you think hire over 500 people in the
construction industry? For us to even look at that number --
MR. JONES: Well, the SBA number was certainly not based on the construction
industry.
MR. RHOTEN: I would now, if it's appropriate, make a motion that we suggest
to subcommittee that when they're holding their hearings they can naturally take
in whatever consideration they want to take in, but that we would like to see a
draft back to the full committee that includes that all construction employers
are covered under this standard. All employers. If that's appropriate.
I think the logic -- if we're looking for logic for that argument? I think
those figures on the fatality rates is all the logic that you need.
DR. RINGEN: Aren't you talking about an employment situation that's covered
by the Act?
MR. RHOTEN: Would you run that by me again, please?
DR. RINGEN: If you're talking about any employment situation in construction
that's covered by the OSHA Act?
MR. RHOTEN: Oh, yes. If you're a construction contractor, you're covered
under this program. And why should they be exempt?
MR. JONES: It's not a question of exemption. It's a question, under the reg
flex and the other requirements that OSHA is dealing with, we're required to
look at the small entities that would be impacted by a particular rule, and
develop whatever alternative measures would be appropriate to take into account
the limitations on the resources of those entities while continuing to require
that employers in those industries provide adequate protection for their
workers.
MR. RHOTEN: What you're suggesting I think is that you're required to listen
to their arguments about their limited resources.
MR. JONES: That's part of it. But we have the other side --
MR. RHOTEN: I guess we could get into that debate, but the numbers in the
fatalities I think would offset any arguments that they have in the regs or
financial hardships.
MR. JONES: It's the manner in which we implement regulations to protect
workers in industries which have a significant number of small entities.
It's basically a -- it's a matter of how we, in developing rulemaking and you
all are, right at the beginning of the chronology of that, to develop the best
possible records so that when we come out, we can go to the SBA or to the
Congress and say:
We have taken into account the concerns of small entities; and therefore any
burdens that we're imposing on them are reasonably related to the overall
situation.
MR. RHOTEN: I would suggest that I'm not too concerned about the hardships on
the small employers as I am the employees of the small employers; and I think
that the statistics should be logical, down at any open hearing in the country.
So it's natural enough that you, at OSHA, can take any draft we bring back
and decide that is not economically feasible. But as far as this committee is
concerned, I think we can make a motion to the subcommittee that they come back
with an all-inclusive standard; and then if you at OSHA think that that's not
reasonable politically, or whatever reason, you can do what you need to with it.
DR. RINGEN: Steve.
MR. COOPER: I think we should take a break.
[Laughter]
DR. RINGEN: We can take a break. But before we take the break, if you could
stand it, I think what you;'re saying, Bill, is that any employment that's
covered, or any employer that is covered under the Act should, this standard
should apply.
MR. RHOTEN: Well, I guess I have another question for OSHA. On the job sites
now in those focus inspections, how many job sites do you go onto that already
have safety and health programs? What percentage.
MR. SWANSON: I don't think I can give you that figure off the top of my head,
but we're somewhere I think around 40 percent are qualifying for focused
inspections, so that would imply that --
MR. RHOTEN: At least they have safety and health programs.
MR. SWANSON: That's correct.
MR. RHOTEN: So it's already there in the industry. I would guess, then. It's
moving along.
DR. RINGEN: Bill, if it's all right with you, we need to try to accommodate
Steve Cooper's needs, take a break and get back to this issue right after the
break. Is that fine?
MR. RHOTEN: Thank you.
MR. COOPER: Mr. Rhoten will be making a motion after the break. I'll probably
be seconding his motion.
Thank you, Mr. Chairman.
(Recess; 10:26 - 10:53)
DR. RINGEN: Please be seated.
When we broke, as requested by Steve, we were in the middle of discussing
this issue of the coverage of small employees or the inclusion of small
employees in the standard, and what the sense of it was.
Bill had a motion proposed, and I suggested to him during the break, which I
would have done anyway, that the intent here was not to have motions and
decisions by the committee, but rather to give the work group feedback from the
committee; and I don't -- if it's all right with everybody, we won't go so far
in our discussions as to have votes at this point in time on specific issues.
I think Judy is getting a good sense of where the committee is coming from on
this issue, but we can certainly have a greater discussion of it.
Steve, did you have anything more?
MR. COOPER: (No response).
DR. RINGEN: Bill, do you want to clarify it?
MR. RHOTEN: I pretty much have, except I'd like to suggest that it should be
-- the ideas that apply to anybody that works on a construction site.
DR. RINGEN: And that raises the whole issue of work sites where there
technically are no employees where, for instance, all employees or all workers
on the site may be self-employed, maybe hired as independent contractors.
MR. RHOTEN: It seems to me if he was self-employed, a safety and health
program would be a pretty minor thing for him to put together, if he was only
one employee.
But then the training would be easy to put together. And usually those people
are smart enough to get a contractor's license; so it would be a very easy task
for them to be included.
MR. MASTERSON: There's vast majority of the states that's -- number one, a
contractor doesn't have to have a contractor's license. And if I remember, and
understand my conversation with Steve earlier; the OSH Act technically doesn't
even apply to a owner without employees.
MR. JONES: It wouldn't apply to the self-employed. It couldn't; it would not
be applied to a self-employed individual.
MR. RHOTEN: What you're saying is it couldn't apply. If a guy's working on a
job site, did you tell him you couldn't apply to him?
MR. JONES: I'm saying that OSHA would not hold a self-employed individual
responsible for violation of the OSH Act or the regulations.
DR. RINGEN: Stew.
MR. BURKHAMMER: Does that include owner/operator of equipment?
MR. JONES: To be logically consistent, an individual who is self-employed and
had equipment would not be an employer, would not be an employee; would be in
effect separate. But you're going somewhere with this, Stew --
[Laughter]
MR. JONES: What exactly is your point?
MR. BURKHAMMER: Bruce ought to cover his ears here, because he doesn't want
to hear this; but I guess OSHA ought to go back and rescind about 1,000
citations that they've issued to owner/operators of equipment on construction
sites.
DR. RINGEN: The more significant issue -- that's not significant -- is the
the share of the work force in construction that's self-employed is growing by
leaps and bounds, by our estimates, or really by the Bureau of the Census
estimates.
The proportion of the construction work force that's self-employed today is
close to 21 percent -- that's up from about 7 percent in 1988. It's a very, very
fast growing thing; and the question is whether self-employed people are covered
by the Act on work sites where you may not have anything -- you may have
hundreds of people working there and you don't have a single person who is an
employee, only a self-employed or a subcontractor.
It is an issue to consider, but the overall issue is, are all employers
covered by this standard? That's the question I think. You're getting the sense
of the majority of the committee here that there's the feeling that that should
be the case, and maybe you have to look at some of the nuances of the language.
MR. COOPER: Well, I think to help Mr. Jones out, he should consider the fact
that maybe the employers employ themselves. And therefore, they're an employee.
[Laughter]
MR. JONES: Thank you, Steve.
DR. RINGEN: That sounds like a pretzel.
[Laughter]
MR. BURKHAMMER: What did Steve say a minute ago? That makes that abundantly
clear.
[Laughter]
DR. RINGEN: Is that okay with you, Bill?
MR. RHOTEN: Yes. I would hope that all workers that work on these sites -- my
long term agenda is that all workers who work on a site have eight hours of
training.
DR. RINGEN: I think most of us would agree with that. That ought to be the
intent of this committee; whether OSHA can -- we're just advisory to OSHA, and
we're supposed to do what's best for the industry, I believe. Whether OSHA can
live with that or not --
MR. RHOTEN: And I just -- because I will bring this up in the future,
hopefully; and hopefully at some point if it's a long range program, somebody
can consider it.
But I would think that the effort that OSHA is making to put all the
regulations in place in the record keeping and all the other regulations that
you're doing from the top down, and I'd suggest it will have less effect on the
safety of the worker than getting that requirement from the bottom up, that the
worker has a minimum eight hours of training so that he can better protect
himself on a job site and not depend on OSHA inspectors to enforce record
keeping rules and all the other rules that -- won't have a direct effect on
safety. DR. RINGEN: Well, having said that, the intent here is not just with
regard to training, but with regard to all provisions of this standard.
MR. RHOTEN: Right.
DR. RINGEN: Okay. I think we're almost all in agreement on that. If there is
anybody who has any language to offer to the work group, I'm sure they'd be very
happy to receive it.
Any other comments on this issue?
[No response.]
The drafts we have been circulating have talked about site-specific plans
within the program standard. And I don't have the exact language in front of me;
but where it said to some extent, when there is a condition that is unusual to
the work that is being performed, the employer has to develop plans for that
condition.
And that would imply also to all employers, there has been some discussion, I
know, about that subject. Are there any more comments on that here? Is there any
disagreement about that general statement?
Steve.
MR. COOPER: On a negotiated rulemaking, the proposed Section 1926.752, it has
requirements for site-specific plans, and even construction sequence, site
layout, etc, in the proposed steel erection standard.
DR. RINGEN: We may want to take a look at that.
Any other comments on this? I think that's a clear sense of agreement.
The issue of employee participation in liability, Stew referred to earlier,
it's really the issue of responsibility being placed, I guess, on the employee.
Do you want to phrase that, Judy, what the issues have been involved?
MS. PAUL: I was doing something else.
[Pause]
MR. BURKHAMMER: The liability issue basically came about from the NCA,
comments from the National Constructors' Association regarding multi-employer
work sites; and Steve --
DR. RINGEN: I think that's a different issue. The first had to do with the
employee.
MR. BURKHAMMER: Oh, you want to do that one first?
DR. RINGEN: Yes.
MR. BURKHAMMER: Another document.
(Simultaneous discussion.)
DR. RINGEN: Steve, there's a question for you here from Bob.
MR. MASTERSON: The question I had is, you made reference to site-specific,
and I was wondering, because I don't see it in the definitions, how you define
"site"?
MR. COOPER: The construction site, the erection site.
MR. MASTERSON: For the building?
MR. COOPER: Yes. For the project.
MR. MASTERSON: Again, if you're looking at that, to go back to some of these
other issues, how would you include that for again residential-type construction
and that type of process?
MR. COOPER: I don't understand the question.
MR. MASTERSON: I heard, the reference was, going to site-specific issues
and/or as would relate to a safety program. How would you relate that back to,
again that residential, single-family home?
MR. COOPER: I think made it clear to you, although I'm not too sure the
compliance department did, that the residential housing, unless they were
erecting structural steel, would not be a part of the steel erection standard.
And I am including your steel studs put in by hand.
MR. MASTERSON: Well, I understand that; the reference was made to the safety
and health program, which would apply to all industry, not just Subpart R. And
when you start looking at site-specific, there's a vast majority of the
homebuilders that are building one house on one lot.
And the process between that one and a house that's ten miles away on another
lot would be identical, when you start talking safety and health programs and
making a site-specific -- you're talking a new program for every single house.
MR. COOPER: No.
MR. CLOUTIER: No.
MR. MASTERSON: That's what I was hearing. If I was incorrect, I apologize.
MR. COOPER: No. If I was a building contractor and I built single-story
houses in let's say Fairfax County, you could use a site-specific plan that was
generic to the manner in which you build houses.
And of course then if you build houses next to an electrical source like
utility lines, you should tell your people that this is a different case, we
have a lot of electrical lines around here, so be careful and note it in your
safety plan.
But you have a generic plan for your company, regardless of its size, from
the foundation from the underground work foundation walls, ceiling -- you'd have
one plan for your operation until you got into areas that were unusual.
So it's very simple -- we do it in steel erection now. And it's a generic
plan, until you come into some different problems. It's not really
time-consuming. You punch some buttons on a computer and the plan comes out, to
answer your question, Bob.
MR. MASTERSON: I follow a similar process myself, and the reason I'm asking
the question is I want to make sure that what was being said wasn't saying you
had to develop a new program for each individual house. A generic program, as
long as there's no new or unusual hazards, then there would be no need to
develop a separate program.
MR. COOPER: Absolutely right.
MR. MASTERSON: Thank you.
DR. RINGEN: You're comfortable with that.
MR. MASTERSON: So far.
DR. RINGEN: Okay, Stew.
MR. BURKHAMMER: I'm ready.
The original concept of employee responsibility and accountability came up
yesterday; and again, I missed the first meeting.
It may have been addressed there also; but Claudia Harris from the National
Association of Plumbing, Heating and Cooling Contractors in a letter to Bruce
dated June 7th addresses the issue, and she addressed it again yesterday; that
her association is especially concerned that the draft document fails to
incorporate any element of employee responsibility and accountability.
And we got into the discussion after she brought this up, about 5B of the
Act, and incorporating 5B of the Act which says each employee shall comply with
occupational safety and health standards and all rules, regulations and orders
issued pursuant to the Act, which are applicable to the employee's own actions
and conduct.
And if you look through all of the programs in our packet that were submitted
by the various contractors, every one of them to some extent addresses this
issue of employee responsibility, in various ways. But they do all address it in
their programs; and basically the language that is somewhat common in
everybody's program, and I'll read Kathleen Hopkins's company's program.
It basically says the employee, all site associates and subcontractor
employees shall comply with the employer's site, safety and health program.
So we're struggling with how to incorporate wording like that in here,
whether to incorporate it by reference of 5B or to spell it out in a section in
here on employee accountability and responsibility, and also to include or not
to include a disciplinary action section.
Again, disciplinary action is pretty much in everybody's work rules. Do we
want to get involved in work rules in the safety and health program? I don't
think we do. That's my personal opinion; it may not be that of anybody else in
the group.
Also, when you're looking at employee responsibility, how far does that
employee responsibility go in addressing issues in a safety and health program?
I thought the intention was, and I think Judy also, and several others thought
the intention was in this generic safety and health program standard to make it
as streamlined and as thin as possible so we didn't have a volume of paper; and
Judy's done a very good job, and the group has done a very good job of doing
that.
But if we get into -- and Steve mentioned about the steel erection standard,
I think you can go through 1926 and you could take out pretty much the whole
thing and put in a safety program standard.
And I don't think that's what the intent is here, and we want to do that.
I think we want a generic document that allows contractors who are other than
Bruce's 40 percent in the focused inspection group, and maybe if even give them
50 percent that don't have a safety and health program, something that they can
take and come up with something for their company that is going to meet the
intent of the standard.
The more things you put in, the bigger it gets. So the group is struggling
with the decision of how much to put in, how little to put in. If it's how
little to put in, do we incorporate by reference the rest? So there's a lot to
be done on this particular issue yet.
DR. RINGEN: Any discussion of this issue?
Is there anybody here that feels strongly that something about employee
disciplinary actions should be included in the standard?
MR. RHOTEN: Well, in regard to the employer disciplining the employee, or
OSHA? The employer, he can do that now.
Write down something, if an employee is violating some regulation, safety or
not, in his company, my experience is they generally have a checkbook in their
back pocket, and just write out the guy's check.
So I don't know what they need to write that down for, in an OSHA regulation.
DR. RINGEN: I think that there's general sentiment here that that would
certainly extend beyond what was intended here.
It would probably lead to a requirement of broad changes in labor law;
possibly -- certainly with regard to the way the OSHA act is written. So I think
that if you stick to the narrow interpretation that you've done, people will be
happy.
Finally, the issue of allocation of -- this issue between owners and
subcontractors and contractors that have come up with regard to multi-employer
sites. This has been the concern of the larger contractors, large general
contractors, I guess.
Has that been resolved, or?
MS. PAUL: No, it hasn't been resolved. It's been discussed several times and
yes, as you can well imagine, we have a range of opinion on where the actual
allocation of liability, and the liability concerns. And we have not come to any
absolute conclusion.
I'm not sure that we will on that one. So it would be good to get a feel.
Steve addressed that earlier, a little bit.
DR. RINGEN: We had the discussion of the role of the owner versus the
contractor, and it was a sense of this group that it would be a good idea to try
to address that, whether or not OSHA itself has the mandate or authority to deal
with it to the extent that this committee thinks it should be dealt with, for
the good of the industry; it would be I think the feeling of us around this
table that that's an issue that should be dealt with.
Was there anything more to this issue that came up than that relationship?
MS. PAUL: Go ahead, Stew.
In general terms.
MR. BURKHAMMER: One of the comments made by one of the people there
yesterday, and I think it's something this committee needs to think about; and
the members of the audience, too.
I don't know, and help me if I'm missing this, but I don't know of any
construction site today including a home, building of a house, that is not a
multi-employer work site.
Two employers is multi-employer.
One of the comments made, and it kind of got glossed over yesterday, but I
think it should be revisited this afternoon:
Do we need an A and a B? Or should this one document be tailored and written
as a multi-employer work site document? Because I don't -- I can't think of any,
and if any of you can, please share with me if you know of one, construction
project in this country that is not a multi-employer work site.
You know the days of direct hire is fading quickly and the days of CM are
taking over, or agent for, or manager, or project manager, or several
contractors -- and Steve talked about electrical, mechanical, civil. A
contractor comes in to do startup even, now. It's a whole new world.
And I'm not sure we need an A and a B. I'm not really convinced we do. I
think we need one that can be tailored either way.
MR. MASTERSON: I'm not so sure that in this particular case they even belong
in the same standard. You're talking a generic safety and health program. That's
a portion of an overall process.
The multi-employer provisions almost to me seemed like it has enough impact
that it may deserve and need to be a separate entity addressing that issue.
If you're trying to develop guidelines for what an individual employer is
going to have incorporated into his safety and health program, that's one issue;
and I think that's probably a doable and achievable goal.
But if you're trying to incorporate the multi-employer provisions, which I
think has been an issue for OSHA for a long time and expecting to come up with a
reasonable resolution in 30 or 60 days, I think that's going to be almost out of
the question.
DR. RINGEN: Here are two very different views of an issue. One is, Stew's
issue says that it's incorporated by definition almost because there are no such
things virtually -- not no such things, but there are few instances in the
construction industry where there are single employer sites anymore.
And so that if we're dealing with this issue anyway, the issue to deal with
is the multi-employer issue. And you're saying that that is too much to bite off
in one instance, to address under this.
Even though to some extent an employer's program would have to incorporate
there, the relationship of that employer to other employers on the sites that
they work somehow.
If we're saying that the employer safety and health program should include
site-specific plans where there are unusual conditions, the unusual conditions
may be where they're working with different kinds of other employers on the site
than you have done previously.
So in that sense, it is included, but it doesn't resolve the issue of who's
responsible on these sites, ultimately, and what does that responsibility extend
to?
MR. MASTERSON: As I see this, the safety and health program is what an
employer will have for their employees, the multi-employer provision or
multi-employer standard if you want to call it that, would be covering the
coordination of those safety and health programs. Which is another step
entirely.
DR. RINGEN: Speaking for the building trades, separate from my role as the
chairman here, the building trades feel very strongly that this document should
cover multi-employer sites, that that's really the major concern that we have
that there is clear responsibility and accountability on those sites, and that
if we cannot also incorporate that into the document, then we lose a great deal
of the intent of this effort.
So I'm not disagreeing with you, necessarily, that what you're saying is not
correct and that may not be possible to accomplish all of it; but I think we
feel very strongly that every effort should be made to accomplish that, and that
we shouldn't throw it out, certainly at this point in time, that we should keep
working towards it.
MR. MASTERSON: Well, if the main thrust of this is going to be a
multi-employer provision, then why is it not called the "multi-employer job
site responsibility standard" instead of safety and health program?
DR. RINGEN: Well, actually it wasn't the assignment that we were given to
begin with; but anybody want to help me out with that question?
No?
[Laughter]
DR. OSORIO: I just have a comment. I think it's kind of artificial, because
you can't talk about health and safety without talking about coordination. You
can't talk about coordination without talking about responsibility. That
automatically leads to liability for the compliance officer.
So I think it's well and good to say "talk about something
separately" but at least for this standard you have to coordinate; and that
again, by people outside our immediate group is going to be interpreted as
liability. So I don't see how you can separate it out.
Oh, I'll agree -- the prior concept, perhaps it can be dealt with in another
standard, a whole different thing.
I just don't see how you can just break it apart, because the whole thing of
health and safety, especially the prevention part of it, is to coordinate, talk
to other people, do the appropriate things and see who's doing what.
When you start divvying out tasks and responsibilities that are going to be
interpreted by the law enforcers as liability, I mean, correct me if I'm wrong,
but it's two sides of the same coin.
DR. RINGEN: Bruce.
MR. SWANSON: Well, you were being facetious, I presume, but you're right. The
assignments that OSHA handed to ACCSH is to help us with a safety and health
program standard because that's the way we saw it.
And without disagreeing with you, Stew, on the concept of multiple employers
on all construction sites or most construction sites in America today, we still
do run into the residential reroof contractor out there, the painting contractor
who is the only contractor on site.
We also, in our enforcement stance, are certainly not on the big projects but
on smaller projects which might be multi-employer projects in a legal sense, in
every other sense.
On the day the compliance officer is there, there is one employer on site
with his or her employees and we have to deal with it in most cases, although
there are exceptions to that, too, we have to deal with it in most cases as a
single employer, because that's where the exposure is.
So we see this as a safety and health program standard. I also buy the
argument that an extension of that goes on into, at a very close proximity goes
into yeah, but -- you still run into these multi-employers and how do you deal
with that and shouldn't it be dealt with in the standard, and I agree
wholeheartedly that it ought to be addressed either in this standard or
possibly, interesting thought -- in a separate and parallel standard.
And the title is really kind of irrelevant to us as long as the subjects are
dealt with.
But the reason -- to answer the simple question -- why are we dealing with a
safety and health program standard? That's what OSHA gave you, and OSHA, in our
pedestrian view -- we start with the simple and work up from there.
DR. RINGEN: Bill?
MR. RHOTEN: I just have a question; but I'm not expecting the answer. There's
been a lot of discussion about residential construction, and I wonder if you
have any statistics on the accident rate in residential construction compared to
other types of constructions or overall or any of that information available,
and if you can gather that for me?
MR. SWANSON: And you weren't looking for an answer; right?
MR. RHOTEN: No. I'm not expecting an answer for that now. I guess what I'm
asking is, I would like to know if anybody knows those statistics, because it
seems like we're talking about housing as a different entity, and they have
different problems. Maybe they are less dangerous sites than other construction
sites. I'd just like to know if they are.
MR. SWANSON: But that data is available. Bob probably has that data to share
with you. We have IMIS data that we'd be happy to look at for you, and I think
BLS has a breakdown by SIC.
MR. RHOTEN: Thank you.
DR. RINGEN: Did you have a comment, Stew?
MR. BURKHAMMER: Yes. Based on Bruce's most eloquent disagreement with me, Bob
makes an excellent point, then, because I think -- in my personal opinion, I
think the work group is fairly close on the singular safety and health program;
but I don't think they're going to get very close at all on the multi-employer
one.
So Bob has a good point that I think this committee ought to consider, then,
is making it two separate charges and have one which we're close to finalizing,
and then shoot in the dark at the second one, because it's going to be a bear.
DR. RINGEN: As I said before, I would hate to see that happen; it may be
necessary, you may be right, that they can't draw closure on this.
We had some discussion about it before this meeting, actually, that that
might be an alternative, that has to be pursued. But I think before you decide
that you should have some further discussions within your work group about
whether it is in fact possible to accomplish both of the issues.
If you go back to our discussion earlier about the role of the owner versus
the role of the contractor and so on, I think we all felt strongly that the work
group should try to address within this, then you're getting awfully close to
also addressing the issue that you have that's of concern.
And if you look at what's in the HAZWOPR standard, for instance, I think that
that pretty closely takes care of this issue already, doesn't it?
MR. BURKHAMMER: More on a real specific, narrow basis.
DR. RINGEN: That's true. On a very narrow basis; but you have the basis for a
framework for dealing with it there, so I don't think -- I don't think at this
point a time you should give up trying to accomplish both things. But I think
the point that Bob made is well taken.
As I said, we, in the building trade side certainly, would not want to see
that happen. So I think you should keep trying to resolve the issue.
Is that okay with everybody here?
Is it okay with you, Bob, that they don't give up yet?
MR. MASTERSON: Just suggestions for consideration.
DR. RINGEN: Yes, I understand.
In that case, I think we've dealt with most of the things that are on this
list here, the relationship to other performance standards needs to be taken
into account. Stew mentioned earlier, the record keeping standard; we've had
some discussions about that.
There are some very big overlaps between these two things.
The point is that the program standard is supposed to be the core of an
employer's activities from which compliance with all standards flow, so that
somehow these things are tied together. And there's also the, finally the
additional issue that has been raised by NACOSH, which has to do with the
relationship of this activity to what's being done for general industry and
maritime, and I think our sense is that we will keep plugging along and trying
to produce what is good for the construction industry here.
That's our charge, then OSHA can figure out how to accomplish the uniformity
that it may be seeking across these industries.
What I've looked at that's come out of NACOSH so far has a lot of the basic
elements in it. That's also here; they don't address the thing about site plans
because that's not very relevant to most other -- they may not be relevant to
most other industries' discussions.
I would think so, but I don't see it in their elements.
DR. OSORIO: I think that would be naive.
DR. RINGEN: So in that sense, it's good for us to keep working towards what's
needed in this industry; and we'll leave it at that.
Any other comments about this at this point in time? Does this help you,
Judy?
MS. PAUL: I think so, yes.
DR. RINGEN: So you will work on this afternoon and then we'll have a report
tomorrow?
MS. PAUL: Right, one to four this afternoon; and then make enough time to
have, get something, at least the product from this afternoon for the committee
to look at, have something to look at.
DR. RINGEN: And it seems to me, that unless lightning strikes here, that
we're not going to reach a conclusion on this issue tomorrow. We also have a
general agreement here that we're not going to take votes on issues without
having had a period of time for members to review things.
So I would suspect that if you're as close on these issues, as it seems to me
that we are here, I really don't see the big disagreements on most of these
things.
Then you can probably, I would guess, accomplish a document for consideration
by final recommendation or document to this committee by, I would guess its next
meting, which will probably be in late August or late September. We'll talk
about that a little bit later when we're going to schedule that meeting.
But I think that's accomplishable.
Again, I thank you very much for all of the work that you're doing and for
all of the people who are participating in this work group; and it's making, to
my sense anyway, very, very good progress. Appreciate it.
It's 11:30, and if I can find my agenda, we could break now and go into the
work groups, but I would prefer to continue working until lunch and take care
of, or maybe it won't even take that long, but take care of the issues that we
have under tomorrow's agenda under paperwork reduction and under committee
business; and both of those two things were addressed in a memo, in two
different memos that I sent to the committee in advance of this meeting. And
those memos are in your blue folder here.
The first memo should be on the right hand side of the folder, and it's
labeled "Paperwork Reduction Act."
At the last meeting Bruce handed us this nice little list of regulations that
OSHA would propose to eliminate or to reduce the burden hours that it has in its
regulatory -- budget, or whatever you call it.
I said I would look into these and figure out a way for us to try to come up
with a response to it at this meeting, and what I did was to ask each of you to
take a look at the different provisions that OSHA is interested in eliminating,
so that we could have a discussion of it today.
I don't know if that's going to work, but I'd like to try. If you'd turn --
first of all, all of these provisions either deal with certification issues or
information collection issues. And if you turn to page 2 of the memo that I've
given you, the various provisions are listed according to their citation, with
the hours; and I'd like to see if we can go through this list, one by one, and
have the people discuss, who I've asked to look into it, discuss it.
Unfortunately, Bill Smith, who is involved in many of these issues, isn't here
today.
Will he be here tomorrow, Dale?
MR. CAVANAUGH: I have not heard yet.
DR. RINGEN: Okay. He's in the process of changing jobs, so I'm not sure where
he's going. But we have to treat him nicely, because he's going to be the
director of baseball operations of the Orioles.
[Laughter]
MR. MASTERSON: This is the first I've seen it.
DR. RINGEN: I apologize. You should have received it. I don't know why --.
Anybody else not received this ahead of time?
MR. COOPER: Mr. Chairman, have those in the audience who are patiently
listening to all this, are they familiar with what's coming out here?
DR. RINGEN: It was discussed at our last meeting; so they may or may not be.
We can certainly make copies of this for people in the audience.
MR. COOPER: Well, just for their edification, there's a lot of discussion in
here that has to do with space -- riggers and carriers, J.P. and fall
protection, training, etc, so don't rush out for lunch too soon if we go over
this.
Because I don't know if you want to read them real fast and what we're going
to discuss here, but it's pretty important for someone who wants to take an
early lunch, they may miss this.
DR. RINGEN: Yes. It's very important -- these are real important issues, I
agree with you. If it's thought that this is too fast or too simple a way to
deal with it, then we will come back to it and wait until the next meeting. OSHA
is anxious to get this accomplished, though. Is that correct, Bruce?
MR. SWANSON: Yes.
DR. RINGEN: Stew.
MR. BURKHAMMER: Bill and I had four of them, and we just talked briefly, and
we're pretty much in agreement with our four. So if you want to do ours before I
leave, you're welcome.
DR. RINGEN: Okay, let's have it. Why don't you go over them one by one and
try -- we'll try to have it -- or at least start with one of them and we'll see
how the discussion evolves on it.
MR. BURKHAMMER: Well, the way I understood your letter was that OSHA has been
tasked with reducing the paperwork burden on employers.
DR. RINGEN: That's right.
MR. BURKHAMMER: And the ones that Bill and I got -- testing of tank venting
capacity, well testing, oxygen and toxic gas, and underground construction air
quality -- are used pretty much on most construction sites in one vein or the
other.
Well testing we think is an absolute thing that has to be kept because
there's a tremendous amount of critical wells on projects that if you don't have
well testing, two things happen.
One: you may get welders that are not capable of performing the weld or
tested to perform the weld; and then,
The second part of that, once the weld is performed, testing the weld to make
sure it's sound. So that one we think is very apropos and needs to be kept.
Oxygen and toxic gas has caused numerous fatalities and injuries in the
construction industry, and we want to keep that one.
DR. RINGEN: If you want to refer to the citations so that people in the
audience know what we're talking about.
MR. BURKHAMMER: Okay. The well test is 1926 251, and the hours listed are 42.
Oxygen and toxic gas is 1926 550. And the hours are 703. And we don't think
those hours are burdensome at all.
Underground construction air quality, 1928 803, 46,876 hours. I read that
twice now, and I don't understand where they've come up with those hours, but
assuming that's correct, that again, underground air quality has caused numerous
injuries and fatalities in the industry, and that's one that needs to be kept.
And the one that we propose deleting is the 1926 152 testing of tank vining
capacity, 312,583 hours.
In all my years in the business, that's the one that I think we can live
without.
DR. RINGEN: Any comments on that?
Bill Rhoten, do you have any comments on that?
MR. RHOTEN: No, not at this time.
So you would eliminate 1926 152. You would leave well testing. You would keep
oxygen and toxic gas, which is --
MR. BURKHAMMER: Underground construction air quality.
DR. RINGEN: Underground construction air quality. Any comments on that?
MR. CLOUTIER: Mr. Chairman, I've got a general comment.
DR. RINGEN: Yes.
MR. CLOUTIER: If you just look at the number of hours across and the major
players in here, the trained certification, the truck and crane certification,
and the fall protection, are the three big hitters on here.
DR. RINGEN: Right.
MR. CLOUTIER: And I would think that we would put our efforts into looking at
those three because that's where we can make the biggest impact if we're going
to reduce burden hours.
These other small ones, as Stew was kind enough to point out, the well test,
we definitely need to have that as 42 burden hours. There's no real impact
there.
DR. RINGEN: Why is it that the burden hours are so low for that, given its
significance?
MR. CLOUTIER: Somebody came up with those numbers, but I would think we would
want to be looking at training certifications. Is there one that covers two or
three of these, or do we have to have three separate ones in that particular
standard? If there's 667,000 burden hours in training certification, and 660,000
hours, I know there's some duplication in that one, but I would think OSHA would
want to go after those three big ticket items.
To reduce the burden hours would be the easy picture right off the bat,
because if you drop 42 hours, what are you dropping? Nothing.
DR. RINGEN: The training certification, truck certification, and the fall
protection. Okay. Do you want to start with fall protection, Steve?
MR. CLOUTIER: Fall protection? I thought I'm on 503.
DR. RINGEN: Okay. You want to go back to 503.
MR. COOPER: If I read your memo correctly, 503 was, I was fortunate enough to
get that one. If I'm also fortunate enough to read properly what you're
proposing here, is that, in this document you're proposing to withdraw that
section B1. Is that correct, Bruce?
MR. SWANSON: Yes.
MR. COOPER: Why do you want to withdraw that?
MR. SWANSON: I can't tell you that.
MR. COOPER: It may be burdensome, but it's the only requirement in training
that requires that someone certifies that they've been trained. If you withdraw
503(b)(1), it's the only requirement in the training standards, requirements,
that require you to show documentation.
MR. SWANSON: Let me be less cryptic in my answer, Steve. The reason I can't
answer it is that I was not in on the group that put this together. Perhaps
Steve or Barbara might be able to give us some more information.
Also, the original request or the original comment was, not that OSHA
believes we ought to necessarily get rid of any of these. It was, we're looking
for your input, your comments. We have a burden hour problem that we have to
deal with as an organization. Within the construction standards, here are some
burden hours, and what are your comments as an organization pertaining to any of
them.
Do not start with the assumption that we're saying, these all have to go.
It's, we're looking for input from you. How strongly do you feel about keeping
them, because we have a real-life problem on burden hours.
With that said and done, Barbara or Steve, do you have anything that could
help Mr. Cooper or anyone else with where we, OSHA, are coming from on this
certification list, beyond what I said?
FALL PROTECTION
MS. BIELASKI: I can explain the training one if that's what you need.
MR. COOPER: I would be more than happy to listen, Barbara.
MR. BURKHAMMER: Before she does --
MR. COOPER: Especially if you get it done before lunch.
MR. BURKHAMMER: -- Barbara, before you start. Bruce, when you read this
letter that she sent us, the way I understand it, OSHA's been given, based on
PRA 95 a number of burden hours they're allowed. Right?
MR. SWANSON: Right.
MR. BURKHAMMER: And you've exceeded that, currently. So that means that you
can't produce any new standards because your burden hours are all used up and
you need to get some hours back in order to implement new standards.
So the safety and health program standard, for example, the fork lift
standard, the confined space standard, that we're working on, is kind of in the
bag. Do we give you back some burden hours to allow those standards to be
implemented. Is that where we're at?
MR. SWANSON: That's correct.
DR. RINGEN: Do you want to clarify that, Barbara?
MS. BIELASKI: Yes. The burden hours that we have now, the 207 million, that
represents the total number of hours that are assessed against all of the
collections of information that we have currently identified.
As the agency adds new hours, it will increase that burden. We don't have a
limit, per se, from OMB, like you're speaking of, but we have been directed
under the Paperwork Reduction Act, to reduce our overall burden hours by 10
percent, so we don't know what would happen when we go to OMB and request
additional hours, if we have failed to make a good faith attempt, at least to
reduce hours, if that helps you in understanding how this works.
MR. BURKHAMMER: So the 10 percent is off the 207 million?
MS. BIELASKI: That's correct. And we already have plans in effect to reduce
those hours, so that's just for the first year. The Paperwork Reduction Act
requires us to reduce the overall burden. This is a government-wide goal, so
it's 10 percent for each year, for two years, '96 and '97. And then it drops to
5 percent a year, up through the year 2001.
DR. RINGEN: The 1926503; what you're referring to here is the certification
that employers have to undertake to verify that their employees have been
trained according to the requirements of Subpart M. Is that correct?
MS. BIELASKI: That's correct. The certification --
DR. RINGEN: It doesn't deal with training as a whole, just with the
certification that it's been accomplished.
MS. BIELASKI: What we're talking about on the 1218-0197 -- I don't know what
page; anyway, the fall protection plan and the training requirement together are
767,246 hours. 667,166 hours is for the certification.
What we're talking about is two different provisions in the current fall
protection standard, that requires a collection of information. All of these
things are called collections of information. Some of them are certification
records and some are more detailed records.
We make a distinction between certification and detailed records, but they're
all records and they're all collections of information. They're all subject to
the Paperwork Reduction Act, and they all require approval.
What we have asked is, we have said for the first initiative that the agency
will undertake, we will look only at certification type records, and we laid out
which ones were certification.
Now, for the training, for fall protection, what we had listed there is, we
had identified for you that there is a certification record in Subpart M, where
employers are required to certify, by preparing a record that gives three data
elements, the name of the employee that was trained, who trained them, and when
they trained them; the date.
So those three data elements have to be -- that record, that certification
record, has to be prepared by every employer who has employees exposed to fall
hazards. That's why that number is so high.
What we asked for was a recommendation on whether or not that kind of record
could be eliminated. And the reason that we focused on certification records is,
when the compliance officer comes to the site, the compliance officer can ask
the employee, have you been trained; tell me about your training.
So, in that case, a compliance officer may be able to get the information
about whether or not this employee has been trained, by interviews, and may not
necessarily need to rely on that written record.
So what we're asking is, what is your recommendation with regard to
eliminating the written record only? Not the training or anything else.
And the other part of that same requirement, the 502(k), that's the fall
protection plan. The rest of those hours are assessed as the amount of time it
would take to develop a fall protection plan and make it available for the
compliance officer.
DR. RINGEN: By eliminating this provision, you wouldn't eliminate B2 of the
same section, which is that the latest training certification shall be
maintained?
MS. BIELASKI: There would be no training certification made, and there would
be nothing to maintain. What the employer would have to do, though, is continue
to conduct the training. They would still have to do the training, and the
employee would still be required to receive the training. The employer just
would not have to write out a certification record certifying that he has done
the training.
DR. RINGEN: But he has to maintain the training certification?
MS. BIELASKI: No, sir.
MR. COOPER: Barbara, he's reading the standard. Evidently you missed it. You
didn't eliminate another sentence, which is B2.
DR. RINGEN: So you would revoke both B1 and B2 of --
MR. COOPER: You don't have it there, Barb. It's right here.
MS. BIELASKI: I thought we had written them all out.
MR. COOPER: Here's B2, where my finger is. To do what you're trying to do,
Barb, you should have eliminated B2 also.
MS. BIELASKI: If we eliminate the requirement to have a record, you will not
have to maintain the record that you do not have.
(Laughter)
MR. COOPER: Now, let's get down to reality.
You're saying that you don't have to show verification of training, it's all
verbal?
MS. BIELASKI: That's what would happen. Right now, we have a number of
certification records that where prepared for training to demonstrate that
training has been done. In theory, this is the way it works.
If you've got a piece of paper and it has the name of the employee, the date
they were trained, and the employer signed it, that means that employee was
trained.
What we're asking you is does it mean the employee was trained? If an
employer shows you a piece of paper, and you're the compliance officer and you
say, oh, yes, they've been trained; or could you go to the employee and say, why
do you have your fall protection equipment on backwards?
That's an indication, right there that this employee has not been trained.
MR. CLOUTIER: No, no. Absolutely not. Absolutely not.
MS. BIELASKI: Well --
MR. CLOUTIER: It's selective amnesia, possibly.
MS. BIELASKI: But the idea here is, does the piece of paper, is that what you
need to show that the employee has been trained? That's what the piece of paper
is for, to demonstrate compliance, in this particular case.
It could be used for other purposes, but what OSHA is saying is, is there --
if you eliminate the record -- this is what you have to think about, I guess, in
your recommendation.
If you eliminate the need for the record, there is no paper trail. Do you
need the record or not?
MR. BURKHAMMER: I guess that poses the question, is OSHA still going to cite
employers for failure of a train? The answer, I'm sure, is yes.
MS. BIELASKI: Yes.
MR. BURKHAMMER: So if they go by word of mouth to an employee, who may or may
not be a disgruntled employee, who may or may not have his equipment on
properly, as Barbara said, and the employer gets cited and you go to an
informal, where the word of mouth informal, which I don't think is going to do
the employer a whole lot of good; also, an employee is injured, and part of that
injury, serious injury or brutality inspection is a failure to train, you have
no defense in a court of law if you have no documentation, so it's a Catch 22.
DR. RINGEN: But under that circumstance, you would keep the record even
though it wasn't in the standard, for your own defense. That way, you'd still be
doing it, but OSHA wouldn't have the burden hours.
(Laughter)
VOICE: Wrong.
MR. MASTERSON: Any form of certification is there as much to protect the
employer as it is to protect the employee.
I don't know that the certification in itself proves anything as far as the
knowledge that an employee is going to have. I've had many cases where we have
done a training program, but when the employee was asked, they said, no, I was
never trained. My only proof was the training program and the certification that
I had.
I don't see where a compliance officer, at least from my experience with
compliance officers, are even going to ask for the certification anyway.
DR. RINGEN: But if they do, you want to have verification that you've checked
it.
MR. MASTERSON: I'm going to want it for me not for OSHA.
MR. SWANSON: I should probably leave this for the real lawyers here to
comment on. But the question before you is, in your experience with the
construction industry, do you believe that OSHA should require construction
employers to maintain the certification records? It's obviously very closely
related to a question of, should employers keep the certification records, but
that's not the question we're asking.
We're asking, should OSHA require an employer to maintain the certification
records? And this administration is saying, we want to cut down on the paperwork
burden for America's employers so you agencies out there take a look at what
you're requiring people to keep. Not what they necessarily think is a good idea
to keep, but what are you requiring them to keep, and can you get rid of some of
it.
We come to you for advice and say, is this one of the areas where they can
get rid of it. I happen to agree with all the employer reps in the room. If I
ran a construction company and I was mandated to train my employees, no way
would I ever lose those training records. But that's a different question.
MR. COOPER: Mr. Chairman, since you put me down as the ACCSH expert on
training certification and the burden of $667,000, which I wonder where that
came up, my recommendation is, yes, you should keep the verification and do not
reduce the verification for the employer.
Keep 503b1. Now, that committee may feel otherwise, but the ACCSH expert says
keep it.
DR. RINGEN: Steve.
MR. JONES: For your information, so you see where OSHA has been going on this
project, last month we promulgated a final rule for personal protective
equipment in the shipyard industry, and in that standard, there are requirements
for the documentation of training.
In the rulemaking, it was determined that the industry already maintained
some form of documentation that certain employees were trained in certain
subjects, and rather than requiring certification as verification, we're simply
requiring that an employer be able to provide documentation which evidences that
the training required by the standard has been provided.
That was, in effect, requiring some paperwork, but it was a lower level of
specificity, and it was intended to allow existing activities to continue
without modification.
DR. RINGEN: Are the burden hours under this part here, the way that you've
calculated them, do they assume that the employers already keep records on this
and what the hours here account for is the additional work that it may take the
employer to somehow certify? I don't even know what that means, quite.
MR. JONES: It's not, in itself, that much more, except that it shows that an
individual who had responsibility, either determined that the previous training
was adequate, or, in fact, has provided training, and then determined that the
training had been provided sufficiently.
But in shipyards, people were intimidated by the word
"certification," and therefore we went away from that term because it
gives some people the creeps to think that they're certifying something and may
be held legally liable for perjury, and that's not the point here.
MS. BIELASKI: To further answer that, on the paperwork package, I did the
paperwork package on this particular one that you're talking about. Any of these
paperwork packages are available for inspection. If you want to know where we
got the numbers at, you can tell me which one you want, and I'll get it for you.
As far as the training is, you could assume that every construction employer
has employees exposed to fall hazards, so every construction employer is going
to have a training obligation, so every construction employer is going to have a
training certification.
And we have estimated that it will take about five minutes for an employer to
prepare a training certification, get that record, and make it available to the
compliance officer at the time of an inspection.
So that's the time we took; five minutes times the number of employers in the
construction industry, and that's how we arrived at that particular number.
MR. COOPER: But you're not asking every one of them.
MS. BIELASKI: No. But I don't know which one we're asking. Everyone has the
obligation.
MR. COOPER: My experience is that you're not asking any of them that you're
going verbal. But the other thing is -- and then I will have fulfilled my
requirement which you gave me as an expert in this area:
Fall protection is the number one problem in the construction industry, the
number one fatality. Now we've got to eliminate something out of there. I don't
agree with that either.
MR. RHOTEN: I agree with the expert,
Mr. Chairman.
MR. COOPER: Maybe if you want to get into HAZCOM, since MIH is here, but I'll
be glad to look in that area with you.
Thank you very much, Mr. Chairman. That fulfills my responsibility as expert.
MS. BIELASKI: Mine, too.
DR. RINGEN: We're not going to have agreement here on eliminating this one, I
don't think, at least not at this point.
I think the question with all of these things, go back to, is there anything
in these provisions that improve the quality of compliance and enforcement in
the field so that workers are protected?
Does these provisions qualitatively enhance the safety of workers out there?
It's a hard thing to answer in the abstract, because I don't know what would
happen if you eliminated this provision when somebody went out there into
enforcement.
MR. CLOUTIER: Mr. Chairman, what would happen if you changed the terminology
from certification to documentation?
MR. COOPER: Mr. Chairman, that would not suffice the Paperwork Reduction Act,
to change a word. I agree that --
MR. CLOUTIER: Then you would be under certifying --
MR. COOPER: It's a different issue.
MR. CLOUTIER: -- and you could reduce the number of burden hours that come
from certifications where that employer was required to provide documentation.
MR. COOPER: Verification versus certification and certification means to
certify. That depends on how far you want to stretch it out to a college, or
something. But from the Paperwork Reduction Act, by changing a word in there and
you change the meaning, I don't think you're going to resolve OSHA's problem.
They're trying to get words out of the document.
Steve, am I?
MR. JONES: I think Mr. Cloutier has a very good point. In fact, that is the
point that OSHA was making when it promulgated the shipyard standard last month,
that employers, as a rule, already have some kind of record that they use for
their own purposes to indicate, okay; so and so has been trained in fall
protection, let's say.
The shipyard standard, in effect, said, fine, we're not going to be requiring
that you have a separate format for that information. You are going to be
required to set out on a separate piece the identity of the employee, the date
of the training, and the signature of a person.
A compliance officer coming to a worksite would simply request, you know,
what do you have that documents your training, and you could bring up on the
computer screen at that employer's office or out of their files for personnel,
whatever information they currently maintain to indicate that the training was
provided; the compliance officer would be satisfied by that.
MR. COOPER: Would that include the date, et cetera?
MR. JONES: It's a performance-oriented provision, and it would be whatever
information would satisfy the compliance officer, and in the information that
was provided to us for shipyard rulemaking, yes, that information generally did
include the date. I don't know of any case when it did not.
MR. COOPER: The difference between what you said and what this said is what?
MR. JONES: The difference is that the shipyard standard would not require the
employer to provide a separate certification. And if it's only five minutes per
employee, as Barbara said, it multiplies out to a substantial amount of time.
What it means is is that what the employer is already doing to document it,
is adequate. They don't have to make that additional effort to satisfy OSHA.
MR. MASTERSON: I'm the same place you're at.
MR. COOPER: I don't understand or know about your explanation, Steve.
MR. MASTERSON: I don't see; you know, if I have one piece of paper here
that's called a record of training and one piece of paper here called a
certification of training, what the difference is.
MR. JONES: Well, it's having one piece of paper instead of having two pieces
of paper.
MR. MASTERSON: Well, I wouldn't have to. I'd have one. My training record
would be my certification record.
MR. JONES: Oh, that's your perfectly acceptable solution, then. Right.
MR. MASTERSON: But that's perfectly acceptable under the existing standard,
as it's written.
MR. JONES: Right.
MR. MASTERSON: So I don't think anything's changed.
MR. JONES: Well, the change is that, take the shipyard standard, is more
performance oriented. If you're an employer who does not document training
through a certification, if you simply have personnel files and you have
information being added in on a regular basis to document training, you would
not, in turn, be required to turn to 503b1 and say, oh-oh, I better certify that
I did this, and you're making that additional five-minute effort in order to
create that separate documentation.
DR. RINGEN: Barbara is here, if you would.
Bill.
MR. RHOTEN: Maybe just clarification on my part. It seems to me like it
doesn't make any difference whether you call it a certification or a
documentation. I think the real question might be, in my mind, anyway, is to
what extent that has on the reality of anybody actually getting trained?
Okay. Now, if you take this away, is that going to deter training taking
place? Because I don't really care whether they document it or not. That doesn't
matter to me. It seems to me like the only reason for that documentation is to
make sure that training took place.
Now, if you're suggesting that if you take this away and the training still
takes place, then who cares. I could care.
But that's, I guess, the question I would like to have answered, is to what
effect this actually has on the real training taking place. I'd like your
thoughts on that as opposed to what you call it.
DR. RINGEN: Let's hear from Barbara about the difference between
documentation and certification.
MS. BIELASKI: Essentially, there is no difference for determining that it is
still a collection of information. It still has to be approved by OMB, and we
still have to get approval to collect that information, no matter what we call
it.
If we're collecting information, we're collecting information. The slight
difference there is, what I'm hearing Steve say, is that it is usual and
customary for some people to produce that information.
Now, if this committee can tell us that it is usual and customary for
employers to prepare some type of evidence of certification, documentation, or
whatever, then when we do the paperwork package for that provision, we can
adjust out hours based on the fact that it's usual and customary.
Now, it may be usual and customary for 90 percent of the employers, or 95. If
you give us that information, we can reduce the hours by that number.
DR. RINGEN: That was the point with my question earlier.
For instance, Bob at Ryland, they keep a documentation of training. They
don't do any other kind of certification. They keep that document anyway and use
that for their certification.
In his case, have you still counted whatever he does as burden hours in your
calculation here?
MS. BIELASKI: Yes, I have. I've counted it for all employers across the
board.
DR. RINGEN: And that's why your question is a very good one. How customary is
this in the industry already, because have you vastly overstated the burden that
this provision places on employers?
MS. BIELASKI: That's correct.
DR. RINGEN: Stew.
MR. BURKHAMMER: Barbara, when you calculated your hours, you said you took
five minutes times X. Was X the 330,000 in construction? What did you use for X?
MS. BIELASKI: I think there's 500,000 construction employees. Right off the
top of my head, I don't remember the number of --
DR. RINGEN: But that's good enough.
MS. BIELASKI: Yes. Whatever number we have, somewhere in our reg analysis,
for how many construction employers there are.
MR. BURKHAMMER: Okay. So then you're assuming in your calculation that every
single construction employer documents the training and you're giving them
credit for doing that, even though probably 70 percent of them don't? Are you
factoring that into your calculation?
MS. BIELASKI: I cannot factor that in there. I have to factor in there that
OSHA has a requirement that applies to every single construction employer, and
they're supposed to be doing that. I can't take numbers out based on, we know
that half of them aren't in compliance. But I can take hours out for the usual
and customary.
MR. BURKHAMMER: Do you see my question?
MR. SWANSON: I do. But the flip side of that is, Barbara, that it's implicit
that you said there were X, 500,000 times five minutes, to keep records on these
employees, on the training of these employees.
And the only reason that the employer would keep the records is because of
the OSHA standard. I mean, that's the assumption here.
MS. BIELASKI: That is the assumption.
MR. SWANSON: Right. Now, if the record was being kept for some other reason
by the employer, then OMB views the burden hours differently. It is not being
keep primarily or exclusively because of an OSHA standard. It's being kept in
the normal business practice, and OMB allows us to count those burden hours
differently. Right?
MS. BIELASKI: That is correct. One of the questions that we would have to
answer is, does another agency require this. Sometimes, like in the National
Electrical Codes, state agencies require you to comply with that, so there may
be a reduction in the hours based on that.
But we had to be very careful here, because if 100 percent of the employers
are doing this as usual and customary, then there is no reason to have that
requirement at all. So I think there's always some small portion of the
construction industry that is not usual and customary with the requirement.
MR. MASTERSON: I need to comment, because I think you misunderstood one of
the comments I made.
That is, I keep records of all mandated training. If I'm doing training that
is not in a standard, I do not keep records of that. So when there is a
requirement for a training to take place and a requirement for a certification,
I use the same record.
But any time that we have required training, whether the certification is
required or not, I maintain a file that shows what training was provided to that
single employer.
DR. RINGEN: Are you saying you do that regardless of whether there is a
requirement for the training? If you do provide training, you do keep some
record of it?
MR. MASTERSON: If there's not a requirement for training and I've provided
training, I don't keep a record of that, is what I'm saying.
MR. COOPER: Barbara, how long has 503 been around?
MS. BIELASKI: That's new.
MR. COOPER: You wrote that, didn't you?
MS. BIELASKI: Yes.
MR. COOPER: I mean, you people wrote Subpart M from this building?
MS. BIELASKI: Yes.
MR. COOPER: And just put this in? Now the feds say, just take some words out.
So this is what you would like to take out?
MS. BIELASKI: No. Well, we're not saying that we would like to take it out.
As was correctly pointed out --
MR. COOPER: You're required to take it out.
MS. BIELASKI: -- we have just identified for you so that you can see which
requirements we already have. We have no recommendation one way or the other. We
seek the recommendation of the construction experts by asking you to tell us
what is your recommendation.
MR. COOPER: I'd rather you take re-retraining out, you know. It's right below
that.
MS. BIELASKI: There's no burden hours associated with that.
MR. COOPER: No burden hours. See, that's what I am getting to. You look at
what's the biggest burden hour, and that's what you want to take out. I mean,
that makes sense to me because it's mathematically correct.
MS. BIELASKI: We have some other ones. These construction ones are nothing
compared to something like process safety, which is 135 million hours, or HAZCOM
or something. So all of these construction ones are a drop in the bucket
compared to some of the bigger ones that we have.
So they're not significant, the numbers associated with these construction
ones. With the exception of the crane one, these are very small numbers.
DR. RINGEN: Barbara, on this list we have a bunch of things that don't add up
to a hill of beans anyway, so we can just as well ignore them, I would think.
It's not going to help you by taking them out, under any circumstances. Are
underground explosives going to save you eight hours a year?
MS. BIELASKI: That's true, but what we were really trying to get at were some
recommendations on whether or not should we have those requirements in there;
are they necessary for employee safety and health?
If they're in there and there is a small burden, but they are really not
increasing safety and health, you may want to recommend that they be taken out
anyway, and nothing to do with the burden. But are they out of date or whatever?
You may have other reasons.
MR. COOPER: Well, they're not out of date, you just put them in on 503.
MS. BIELASKI: On that one. But the one he's talking about, I think there's
eight or nine hours associated with checking the electrical system of certain
vehicles.
MR. COOPER: You know, actually, you could take -- and I realize this isn't a
family reunion here and we're not going to stay here for six months -- but what
you want to take out of 503, actually, should we put in the 21; leave 21 and
throw the rest of 503 would be fine with me.
I think the verification is very important. It says you did it. And a lot of
employers -- and I've been in that position many times -- keep that
documentation for lots of reasons, and OSHA is certainly one of them, including
documentations and signatures that Tom Hall was at the safety meeting, and I
told him about the electrical box, and this other group, and that's just safety
meetings. And, you know, what burden hours is there there? A lot.
DR. RINGEN: Yes. Let me turn this around a little bit, and then we'll finish
it up, because I don't think we can get through it all today.
But in Subpart M, training requirements are going to remain, obviously.
People are going to be required to train to the standard. OSHA inspectors are
going to go out there and inspect to the standard about whether the training has
taken place.
The employer has to have some record in order to document to the inspector
that the training has been taken place or that the employer has made sure that
the worker has the training that's required under Subpart M, so it has to have
that documentation, anyway.
Now, when you calculate the burden hours, do you assume that if you take this
provision out, that suddenly the employers don't do this any more?
In other words, the requirement is going to continue to exist there, no
matter what, because this requirement is not a condition of this provision in
the standard. It's a requirement of the standard itself.
MS. BIELASKI: The requirement to do the training, I'm saying. Requirement to
do the training would stay, and there is no burden associated with that
particular portion.
DR. RINGEN: I understand that.
MS. BIELASKI: Okay.
DR. RINGEN: But under any circumstances, if you take this provision out, the
employers are still going to have to keep documenting this. So, in fact, what
you have is a burden hour here, is not a burden hour related to certification.
It's a burden hour related to verification under any circumstances.
In other words, the burden hours that you have provided to this particular
provision is probably wrong, because the employers would not do away with their
effort to document this if you took this thing out. So that the hours would
still be there.
Therefore, the hours are not for certification, they're for the verification
that you need to keep up with the standard, as a course of doing business.
So I suggest that you go back -- I would go back and change my assumptions
about what you're calculating here, and instead recognize that this isn't the
burden associated with certification, it's the burden associated with complying
with the standard as a whole.
MS. BIELASKI: And so it counts.
DR. RINGEN: Not for this provision, though. But you're not going to do away
with it.
MS. BIELASKI: I don't think I followed that. The burden that we have
identified is the record. There is no burden associated, that we have identified
with the actual training activity. The burden is solely with how long it takes
to fill out that record.
If you're telling me that this is usual and customary and that employers
would do this anyway in the absence of a specific OSHA requirement, then we can
go back and change it, and in the paperwork package we can say that the ACCSH
Committee has said this and this, and therefore we would have a basis for
removing those hours. I can do that.
DR. RINGEN: Sounds good to me.
MR. MASTERSON: The point is, no matter what you call it, it's still a
paperwork burden to the employers and to the companies. Isn't the intent of the
Paperwork Reduction Act to make that task easier?
MS. BIELASKI: The intent of the Paperwork Reduction Act is to reduce
unnecessary burdens on the public.
MR. MASTERSON: Whatever we call it, then, aren't we just running around in a
circle? We're not change anything for what the employer is keeping in the way of
paperwork.
DR. RINGEN: The point is, you do away with the provision. You don't do away
with the burden under any circumstances, because the burden is tied to the
standard as a whole. But given that you have the standard, you would have to do
the documentation anyway, so it's not really the certification that's the
burden. Therefore, these burdens don't apply. Right?
(Laughter)
MS. BIELASKI: I'll ask OMB on that one.
DR. RINGEN: I'm sorry. That's the history. I beg your pardon.
MR. BURKHAMMER: Maybe this might help us. Can we ask Barbara; I don't know
how much work this would be, I'm sure she can tell us. If it's a ton, forget it.
But can you take the one we're talking about, the training certification, and
calculate it on the reduced rate of usual and common practice, and see what the
hour reduction is?
MS. BIELASKI: Sure. What percentage of construction employers would keep this
record as a usual and customary?
MR. BURKHAMMER: I'd say it's 70 percent.
MS. BIELASKI: Seventy percent. Okay. So I'll calculate this on 30 percent,
and I'll give you a new number.
MR. BURKHAMMER: That might help us understand what the difference would be.
MS. BIELASKI: Okay. I might also mention the biggest ones that are associated
with --
DR. RINGEN: About 110,000 hours.
MS. BIELASKI: The ones that are associated with Subpart M may not be
something you want to spend time on because that might be -- they could be
handled with this Subpart M revision rather than with the certification.
DR. RINGEN: During this, you got rid of a half a million burden hours here
for this particular provision, and I think if it's all right with the committee
that each of us take a look at these various provisions and focus on the ones
with a lot of hours, the other ones, I wouldn't worry too much about it.
But look at this particular issue. Is, in fact, the assumption underlying the
calculation of the burden hour accurate? That would be number one.
Number two: Is the provision needed?
And that we come back and talk about those things tomorrow, and that we focus
on the four -- I think on the list training certification. Or M, I think we've
taken care of just now.
There is the truck and crane certification, and there is the information
under crane, derrick; and fall protection.
These large hour items that we can look at tomorrow.
I don't think anybody on the committee objected to taking out the provision
that dealt with tank venting capacity. I didn't hear that. Is that correct?
Let us revisit that one also tomorrow and include that in it, and then we
will go through these, and we'll have a final vote on it, as a package tomorrow,
if we can accomplish that.
Is that okay with everybody?
VOICES: Yes.
DR. RINGEN: Steve.
MR. COOPER: You're trying to close for lunch, correct? On crawler cranes on
550, you are asking that you eliminate the record which includes the date the
cranes were inspected. The written record. The written record.
MS. BIELASKI: Right.
MR. COOPER: So you're going to go up and say, when is a crane inspected, and
the guy is going to say I did it last week.
MS. BIELASKI: Last week.
MR. COOPER: Well, we can't have that. I mean, we just can't have that. I
don't think anybody in this room, unless they've been hit by a crane lately,
would agree with that. Crane inspection is really important in our industry.
MR. COOPER: -- I'm not saying you. I know, Barbara, where you're at in this.
MS. BIELASKI: Right.
MR. COOPER: You got an order down from the OMB to reduce the paperwork.
Crane inspection is just going to be by verbal that, yes, I did it. In fact,
I wish I could get down on my car inspection.
MS. BIELASKI: That's a perfect example of the kinds of requirements that you
don't want to recommend that we eliminate. There is no way for a compliance
officer to be able to check the brakes, the lines, and all the pieces of a
crane.
They can't look at it and know that it's been inspected. So that's something
that you want to think about, that that's definitely, I would think, one that
you would not want to eliminate.
But, now, other ones where a compliance officer can make an inspection or
make a determination without the record, those are the kinds of things you might
want to recommend eliminating.
DR. RINGEN: I'll just make this observation, Barbara: That I think it's
unfair to your advisory committee to bring us things for us to look at whether
they should be eliminated, that you don't think should be eliminated, as an
agency.
MS. BIELASKI: Well, the agency has made no recommendation one way or the
other. As we have said, we have identified every collection of information that
currently exists in our construction standards.
That particular certification record for cranes has already been before this
committee. There used to be a much more detailed record where you had to make an
inspection of the crane and write down your findings.
We've already changed that from findings to a mere certification record.
Now, once again, it's been identified as, do you recommend that we keep it or
eliminate it. I am saying that would be one, and it would be difficult for a
compliance officer to ascertain whether or not that crane had been inspected, by
simply looking at it.
MR. COOPER: Impossible.
DR. RINGEN: I think we would have preferred to have the issue raised before
us, as saying, this is something that we think is necessary to keep; what do you
think. This is something that we, as the Agency, think is necessary to keep.
MS. BIELASKI: If you like, we can do that. Well, it's up to -- .
DR. RINGEN: Can you be here tomorrow, Barbara?
MS. BIELASKI: Certainly. Would you like me to bring the paperwork packages
for the major ones, so that we can --
DR. RINGEN: You can look at just how you came to the conclusion about the
hours, because I think in just about every instance we're going to come to the
conclusion that the same kind of calculation problem has arisen that was in the
case in the one under Subpart M.
MS. BIELASKI: That could be.
DR. RINGEN: We could work that out.
MS. BIELASKI: Thank you.
DR. RINGEN: Okay. That concludes our proceedings for today. I thought it was
a very useful, if arduous, discussion, and I appreciate all of you being
involved in it.
We'll take a break for lunch unless there is any other issue that anybody
has.
The workgroups will meet from 2:00 to 5:00, and in the rooms listed on the
agenda. Thank you.
(Whereupon, at 12:23 p.m., the meeting was adjourned, to resume Thursday,
June 13, 1996, at
8:30 a.m.)
REPORTER'S CERTIFICATE
TITLE:
Advisory Committee on Construction Safety
and Health
DATE:
June 12, 1996
LOCATION:
Washington, D.C.
This is to certify that the attached proceedings before the Advisory
Committee on Safety and Health were held according to the record and that this
is the original, complete, true and accurate transcript which has been compared
to the reporting or recording accomplished at the hearing.
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