ACCSH Transcripts: July 22, 1998

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Occupational Safety & Health Administration
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ACCSH Transcripts: July 22, 1998

United States Department of Labor
Occupational Safety and Health Administration

ADVISORY COMMITTEE ON CONSTRUCTION
SAFETY AND HEALTH (ACCSH)

Rooms N-3437 - AB&C
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, D.C. 21210

Wednesday, July 22, 1998

9:00 a.m.

Committee Members

Employee Representatives

STEPHEN D. COOPER
LARRY A. EDGINTON
GLADYS HARRINGTON
WILLIAM C. RHOTEN

Employer Representatives

STEWART BURKHAMMER
FELIPE DEVORA
ROBERT MASTERSON
OWEN SMITH

State Representative

DANNY EVANS

Public Representatives

JANE F. WILLIAMS
MICHAEL BUCHET

Committee Contact

BRUCE SWANSON

A G E N D A

AGENDA ITEM:	PAGE:
Welcome, Introductions Stewart Burkhammer, Acting Chair	4
Personal Protective Equipment Proposal John Martonik	10
Powered Industrial Truck Final Rule John Martonik	22
Discussion of Hexavalent Chromium in Construction - Rulemaking to Control Occupational Hazards Jeff Snyder	26
ACCSH Workgroup Reports	47
Sanitation - Steve Cooper	47
Confined Space - Stewart Burkhammer	52
Crystalline Silica - Standards Development Loretta Schuman	54
Other Reports 65	65
Status of Data Collection on OSHA's	65
Updated Form 170 Mark Hagemann
Steel Erection Negotiated Rulemaking Advisory	77
Committee (SENRAC) Mark Hagemann
OSHA Reinvention Bob Pitulej	81
Heat Stress Elise Handelman	88
Afternoon Session
Other Reports (Continued)	98
OSHA's Strategic Plan for Construction Berrien Zettler	98
Multi-Employer Citation Policy - Discussion of the IBP Decision and its Impact on Enforcement in Construction Noah Connell and Bruce Justh	138
OSHA Standards Development Progress Report	180
OSHA's Electronic Information System Mary Ann Garrahan	180
Subpart M - Fall Protection Issues Jule Jones	200
Public Comment	202
Adjourn	209

P R O C E E D I N G S

9:08 a.m.

Welcome, Introductions

MR. BURKHAMMER: Good morning. Welcome to the ACCSH Session. I'm Stu Burkhammer with Bechtel. I'm the acting chairman of this session.

I'd like to start by asking the committee to go around and introduce themselves and their affiliation.

Gladys?

MS. HARRINGTON: Gladys Harrington, Assistant Director --

MR. BURKHAMMER: Could we please use the mikes when we speak because we're having trouble for everybody hearing?

MS. HARRINGTON: I'm sorry. Okay. My name is Gladys Harrington. I'm Assistant Director for Training, International Union of Operating Engineers, Local 138.

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

MR. EVANS: My name is Danny Evans, Chief Administrative Officer for the OSH Enforcement Program, State of Nevada.

MR. MASTERSON: Bob Masterson with Ryland Homes, Safety and Loss Control Manager.

MR. RHOTEN: My name's Bill Rhoten with the United Association of Plumbers and Pipefitters.

MR. EDGINTON: Larry Edginton, Director of Safety and Health, International Union of Operating Engineers.

MS. WILLIAMS: Jane Williams, Owner, A to Z Safety Resources.

MR. BUCHET: Michael Buchet, National Safety Council. I manage the Construction Division.

MR. SWANSON: I'm Bruce Swanson. I'm from the Directorate of Construction for OSHA.

MR. BURKHAMMER: Thank you.

Now we'd like to have the audience identify themselves with their name and their affiliation. We'll start in the right-hand corner.

(Audience Introductions)

MR. BURKHAMMER: Thank you.

I'd like to review the minutes. Does the committee all have the minutes? There's a copy of them in the green folder, if you didn't get them. I think OSHA did a good job of getting us the minutes earlier this time. I had them about four weeks ago. So, hopefully you all received the minutes in time to review them.

Any comments or questions on the minutes of the last meeting? Jane?

MS. WILLIAMS: Mr. Chairman? Page 6, I would refer you to, the last sentence. I believe that is Subpart N, not Subpart M.

MR. BURKHAMMER: Where are you? Page 6?

MS. WILLIAMS: Page 6.

MR. BURKHAMMER: You can all make that change in your notes.

MS. WILLIAMS: Page 8.

MR. BURKHAMMER: Page 8.

MS. WILLIAMS: Last paragraph.

MR. BURKHAMMER: Which paragraph?

MS. WILLIAMS: Second sentence. Regarding the question of in tracking double conflicting citations, was I correct, Mr. Swanson, in that you were going to evaluate whether that tracking would be possible to achieve?

MR. SWANSON: Are you in the first full paragraph?

MS. WILLIAMS: Yes. Where it states, "The data was not available, but I was under the impression that the office may evaluate whether that data could start to be tracked in some manner."

MR. SWANSON: That was -- this is an accurate statement of the -- of the assignment and obligation undertaken, yes.

MS. WILLIAMS: Thank you.

MR. BURKHAMMER: Any other comments?

(No response)

MR. BURKHAMMER: Motion to approve as amended?

(So moved)

MR. BURKHAMMER: Second?

(Second)

MR. BURKHAMMER: Questions or comments?

(No response)

MR. BURKHAMMER: All in favor of the motion, signify by saying aye.

(Chorus of ayes)

MR. BURKHAMMER: Opposed?

(No response)

MR. BURKHAMMER: Minutes with amendments approved.

If you'll notice on the agenda for this meeting, under ACCSH Workgroup Reports, we have a report from the Sanitation Workgroup, Steve Cooper, and a Confined Space Report from Steve Cloutier. I have some notes from Steve.

Bill, do you -- would you like to handle that report?

MR. RHOTEN: Well, I think Steve's got most of that information. I think maybe we can hold it over, unless you've got some notes.

MR. BURKHAMMER: Yeah. He gave me the notes.

MR. RHOTEN: Okay.

MR. BURKHAMMER: I just wondered if you wanted to do it.

MR. RHOTEN: Well, -- well, if you have the notes, it may be appropriate if you reported.

MR. BURKHAMMER: Okay. I'd like to go down the workgroup chairs and ask the co-chairpersons if they have anything to report at this meeting, and if they do, we'll squeeze the committee reports into the agenda.

Safety and Health Program Standard, Bill? Nothing?

MR. RHOTEN: Nothing.

MR. BURKHAMMER: Training, Bill?

MR. RHOTEN: Nothing. We're going to have to have some meetings and further discussion on that, but at the present time, I don't have anything to report.

MR. BURKHAMMER: And we do have some notes from the Confined Space. Sanitation is yes, that's on the agenda. Scaffolding, Mike?

MR. BUCHET: We're waiting for the Federal Register announcement of the NIOSH research, and then we'll update the committee on where that stands.

MR. BURKHAMMER: Okay. But you have nothing to report?

MR. BUCHET: Nothing to report.

MR. BURKHAMMER: Safety Excellence Program Recognition, we have nothing to report there. Enforcement Priorities. Bob, Gladys, anything to report?

MR. MASTERSON: Nothing to report.

MR. BURKHAMMER: Fall Protection?

MR. MASTERSON: Nothing to report.

MR. BURKHAMMER: Data Collection?

MR. BUCHET: We're meeting at the end of ACCSH Thursday afternoon, 1:15.

MR. BURKHAMMER: Subpart M, Larry?

MR. EDGINTON: Yes. We have met since last meeting.

MR. BURKHAMMER: So, you have a report to present?

MR. EDGINTON: Yes, we have a report.

MR. BURKHAMMER: And Musculoskeletal Disorders has nothing to report at this meeting.

All right. With that, we'll ask John Martonik to make the first presentation, and that's of PPE. John?

MR. SWANSON: Mr. Chairman? If I might, John, before you start, just to reiterate what was said at the last meeting, for anyone in the audience or anyone later reading these minutes that wishes to receive notice as to when these workgroups are going to be sitting, please notify either the chairs, which you have information on, or if you don't have that information, the chair or the assigned staff person, contact my office directly, and we'll make sure you're on the mailing list.

Thank you. Sorry, John.

Personal Protective Equipment Proposal

MR. MARTONIK: Good morning, everybody. My name is John Martonik. I work in OSHA's Safety Standards Directorate, and I'm going to talk to you about the status of OSHA's rulemaking to require employers to pay for PPE. We talked to you last meeting on April 8th.

Before discussing the status, I just would like to give you a little background so we remember what we're doing.

OSHA has standards that require the use of PPE, and some of those standards require the employer to pay for PPE. Some standards are silent on who pays.

OSHA's policy has been that the employers should pay for personal protective equipment, except for safety-toed shoes and prescription eyewear. In order to give the field a uniform direction, in 1994, OSHA wrote a memorandum to the regional administrators directing them to enforce the standard for PPE to require employers to pay for PPE, except for those accepted items.

OSHA was issuing citations for employers who did not pay for PPE, and one of those citations were contested by the Union Tank Company. The Review Commission reviewed the OSHA citation and basically rejected OSHA's policy. The Review Commission's concern was that OSHA had several different policies over the years, and they needed to speak with one voice and explain why we were changing our policies in the past.

OSHA decided not to appeal that decision and instead decided to do a rulemaking. We thought in a rulemaking, we could get everybody's opinion on what should be done, and it would be -- it would give everybody the opportunity to -- to give their comments to us, which we could consider.

On April 8th, we came to you, and we gave you a draft regulatory text for this standard. I'll read it to refresh your memory.

"All protective equipment, including personal protective equipment, required in this part shall be provided by the employer at no cost to employees, except for safety-toed protective footwear and prescription eyewear."

Okay. In response to that draft regulatory text, you did two things. You gave us some comments regarding that provision, and you also gave us a resolution as to your recommendations on how to proceed.

We really appreciate your advice on this. Some of the comments you gave were concerned that employers who now may be paying for personal protective equipment like shoes may stop paying for the shoes if the standard explicitly accepts them.

You also had some concern about special -- some prescription eyewear. For example, eyewear that was worn inside full-face respirators. You also brought to our attention some practical considerations that we might need to consider as to what to do when equipment is lost or perhaps abused.

So, we appreciate these comments, and I think they apply to all industries, in addition to construction. So, I think your comments helped us out quite a bit across the board.

You also gave us a resolution, and your resolution was basically to stand by the OSHA existing standard and interpretation. I'll read your resolution.

"The language currently in 1926.95 regarding personal protective equipment is effective and is sufficient to protect the worker and provide personal protective equipment. We recommend leaving the language as currently stated in 1926.95."

Okay. We have -- in response to your comments, we went back internally and took a look at our proposal, and we went to our assistant secretary, and we've made some amendments to our -- our proposal.

We still feel that it's necessary to clarify OSHA's policy requiring employers to pay for PPE, and we're proceeding in that direction, but as we made some adjustments in our thinking to take into consideration some of your concerns and are going to ask for public comment about your concerns.

The status of our -- our rulemaking is this. One, we hope to gather some additional information on the use pattern of PPE in the construction industry and the pay pattern in the construction industry through a survey.

On June 8th, we published a Federal Register notice asking for -- for OMB to have approval so that we can do this survey. Again, the survey would be asking representative sample of construction employers and some other general industry employers what PPE they use and to what extent the industry pays for that PPE.

We have not yet received approval from OMB. They asked us for some clarifications of our survey, and we're in the process of providing that information to OMB. But when we receive OMB's approval, some construction companies may be getting a call from an OSHA contractor asking them some specific questions regarding what PPE they use and what PPE they pay for.

We hope to have the results of that survey this Fall.

Okay. We are also in the process of completing the proposed regulation. We're passing around comments from the different directorates in OSHA. We hope to publish the document later this Fall and have the survey results catch up to the proposal.

In order to publish this standard or this proposal, OSHA has to obtain review by OMB. Although the cost implications of this standard is not significant, OMB considers it to be a policy-significant issue. So, after the department approves the document, we will be sending it to OMB for their review. We hope to get their review some time this year, and we plan on -- we hope to publish the proposal later this year, hopefully, you know, in the early Fall.

Okay. Well, that's the status of -- of the

-- that's a brief description of the past activities and the status.

If you have any questions or comments, I would like to answer them now or take your comments now.

MR. BURKHAMMER: John, as you know, at the last meeting, this discussion on this subject was followed by a great deal of debate by the committee, and there were several motions bartered back and forth between committee members, and the one that ended up passing six to two was the resolution that you referred to a minute ago.

Does anybody on the committee have any questions for John? Larry?

MR. EDGINTON: John, I -- the survey request that you have pending with OMB, that's an information collection request?

MR. MARTONIK: That's correct.

MR. EDGINTON: And the methodology that's going to be utilized, is that a telephone survey?

MR. MARTONIK: Yes, it would be a telephone survey.

MR. EDGINTON: And how is the universe being identified?

MR. MARTONIK: We hired a contractor who has performed surveys in the past, select a representative sample of industries. However, we had to give the -- we had to give the contractor some boundaries.

The reason we had to give the contractor some boundaries is that the industries can be broken down into very narrow sectors, to four-digit SIC, --

MR. EDGINTON: Right.

MR. MARTONIK: -- and in order to get a statistically-significant sample at very, very low levels, it has to be an extremely large survey, and there is a big cost to the -- to the agency to gather that information. So, the agency gave some advice to the contractor as to how fine an industry cut should be -- should be done.

Then the industry -- then the contractor will take what SIC digit levels OSHA would like the survey conducted and then may select the companies randomly. They have a random sampling technique for selecting the actual companies who will be surveyed, and the company -- and the contractor will be doing all the calling, and OSHA will not receive any information regarding what company responded, how any company responded to the question. OSHA only will receive the aggregated information from the companies.

MR. EDGINTON: With respect to trying to refine things by SIC or subsets thereof, was any consideration given to the notion that perhaps there are some segments of the industry where the use of PPE might be more prevalent than others?

MR. MARTONIK: Yes, there was.

MR. EDGINTON: And --

MR. MARTONIK: And that was primarily based on the professional judgment of the -- the OSHA staff who worked on PPE standards in the past. Two years ago, we did do a PPE standard for general industry. It required employers to have a PPE program and do a hazard analysis of their workplace to determine whether PPE should be used, and we had some data from that rulemaking.

We were a little short on information from the construction industry, and we hope that this survey -- so this -- if anything, the survey is asking more construction companies questions than some of the other general industry questions because we have some older survey data from general industry, but we threw in some general industry questions to make a determination whether our old data on who uses PPE is still valid.

MR. EDGINTON: Now, did I further understand it, the PPE data is not the only information that's being collected with this survey, is that correct? Proposed to be collected. You're also proposing to collect other types of data as well, are you not?

MR. MARTONIK: The main purpose is to get the PPE data. I think there are some other questions in the survey that will allow OSHA to use this information in some other projects, yes.

MR. EDGINTON: Hm-hmm.

MR. MARTONIK: Okay. And, so, the questions that are not PPE-related will help OSHA link this survey to some other rulemakings, such as, for example, maybe the safety and health program standard.

MR. EDGINTON: Thank you.

MR. MARTONIK: If -- of course, if the answers come back, you know, in a way that -- it may show that OSHA can't use this survey data for other purposes.

An example, I guess we can give two, is that OSHA had a PPE survey done several years ago for the -- for the general industry PPE standard. So, we believe we have some use information from that survey.

The question is, is that still valid? Well, this new survey will -- will sample some general industry companies to make a determination whether or not that -- that information is still valid, although we believe that most of the information we'll need is in the construction sector.

I'd like you to keep in mind, though, that OSHA's need for this information is primarily to determine whether the standard is economically feasible, and, you know, there's an intuitive argument that it's -- it's feasible as well as, you know, the specific data analysis that we plan on doing.

MR. BURKHAMMER: John, is it possible to get a copy of the survey for the committee to review?

MR. MARTONIK: Yes. I have a copy with me, and I can give it and make it available to you.

MR. BURKHAMMER: A lot of times when you do surveys, generalized questions, and a lot of PPE is specific questions tailored to specific tasks or operations where PPE may be required.

Does the survey -- is it a general question survey or is it a specific question survey?

MR. MARTONIK: There -- it starts out with general questions and moves into specific questions, depending on how the general questions are answered.

MR. BURKHAMMER: Okay.

MR. MASTERSON: Yes. Could you describe just how fine a cut you're talking about? Are you using three-digit SIC code, two-digit, four-digit? If so, which ones?

MR. MARTONIK: I'm not responsible for the whole survey, but my recollection is that there are two- and three-digit level SICs. The three-digit are for industry sectors that we think we need more information on, but we don't go any finer than three-digit.

MR. MASTERSON: Can you tell us what three-digit SIC codes you use for construction?

MR. MARTONIK: I can get that information for you. I can get you all the SICs for this survey. I don't have them with me now, though.

MR. MASTERSON: I -- I would like that to see --

MR. MARTONIK: Okay.

MR. MASTERSON: -- which -- which specific SIC codes you're targeting for the survey.

MR. MARTONIK: Sure.

MR. MASTERSON: I also am a little confused about the reference to general industry and validating some previous decisions or information that you had.

How does general industry correlate with construction?

MR. MARTONIK: Oh, it doesn't. It's just that the survey that we're using will be done in general industry as well as construction, and the industry -- and there's no cross-over between the -- the use patterns in construction and use patterns in general industry. It's just that the contractor we're hiring is going to do the survey for general industry and construction.

MR. MASTERSON: Will that -- will that data be -- be obtained separately?

MR. MARTONIK: Yes. It will be done by whatever SIC classifications we have.

MR. MASTERSON: Thank you.

MR. BURKHAMMER: Any other questions for John?

(No response)

MR. BURKHAMMER: All right. John has asked that he be able to at the same time he's giving this presentation give the one on Powered Industrial Trucks, which was scheduled for 11:00 on Thursday. So, John, if you're prepared, we'll go right into that.

Powered Industrial Trucks Final Rule

MR. MARTONIK: All right. Again, I'll give you a little background on OSHA's activities regarding a standard that would require employers to have some specific training programs for powered industrial truck operators.

As background, OSHA estimates there's about a million powered industrial trucks, forklift trucks in use -- in use in the United States. There's maybe one and a half million operators of this equipment.

Several years ago, NIOSH did a study from BLS statistics and showed that powered industrial trucks are involved in about 100 occupational deaths and about 94,000 injuries every year.

OSHA has existing powered industrial truck standards in construction and general industry. They were promulgated in 1971. However, the requirement for training is -- is just very short. I'll read you the existing standard.

"Only trained and authorized operators shall be permitted to operate powered industrial trucks. Methods of training shall be devised to train operators in the safe operation of powered industrial trucks."

And this requirement came from an American National Standards Institute consensus standard.

NIOSH, in addition to doing the studies identifying powered industrial trucks as sources of injuries and fatalities, also did some studies showing the effectiveness of training. Operator mistakes were reduced by 25 percent when NIOSH provided some specific training to the operators.

In addition, ASME has a recent consensus standard, B-56.1, and that standard requires that employers train employees in some specific topics. Topics are specifically how this truck operates, specific features of the truck. The other set of topics are hazards in operating procedures for the specific work site.

So, OSHA, based upon this ASME standard, proposed for general industry to amend its industrial truck operating training, operator training, standard to read more like the -- the more recent ASME standard.

On May 25th, 1926, 1995, OSHA brought that proposal to the Construction Advisory Committee, and as a result of the comments that we got from the Construction Advisory Committee, we made some changes to the -- the preamble to the proposal, and we published a separate proposal that applied to the construction industry on January 30th, 1996.

After that time, we -- we conducted a hearing. The rulemaking record is closed. We're now in the process of finalizing the standard.

But for the most part, comments on the standard agreed with OSHA's proposal, okay, and the comments that the Construction Advisory Committee made, such as how employers should consider some training that the employee had previously received from another employer or union, how that previous training should fit in to OSHA's final standard, and your comments on that raised that issue to the attention of the public, and it spilled over from construction also into general industry.

Another issue that the advisory committee brought up is how to determine the competency of individuals who have received the training and then are operating powered industrial trucks, and the construction industry pointed out you have some good methods for doing that. You have qualified -- qualified persons and competent persons to make those sort of determinations. So, then that information was useful to us making the -- writing up this final standard.

At this time, we plan on publishing the proposal in September. This is not a significant rule for OMB. So, when we get clearances internally, we can send the document right to the Federal Register, and the document is in now final review, and we in fact got some concurrences from different directorates in OSHA and hope to be able to publish it in September.

Are there any questions on this?

MR. BURKHAMMER: It was encouraging to hear that you took the ACCSH report and included it in some aspects of the final rule.

Bill Smith from the Operating Engineers and Steve Cloutier co-chaired that workgroup, and the full committee approved the product and forwarded it on, and I'm very encouraged to see that you took a lot of the material out of there and used it.

MR. MARTONIK: Yeah. And as I pointed out, I think that other industry sectors also had some similar concerns, and that supplemental proposal we published in January discussing your recommendations was helpful to bring that to the public's attention.

MR. BURKHAMMER: Any questions on this subject by the committee?

(No response)

MR. BURKHAMMER: Thank you, John.

MR. MARTONIK: Okay. You're welcome. Thank you.

MR. BURKHAMMER: Before we continue, we've had a couple of the committee members come in late. Owen Smith has joined us, and Steve Cooper is with us. Also in the audience, we have Brad Hammock from the OSHA Solicitor's Office. Brad, would you stand up, so everybody can see you? Good.

In the audience, is there a Vincent Morano? A John Ranney? 0 for 2.

Continuing on with the agenda, Jeff Snyder will make a presentation on -- this is just in time. That's right. Welcome.

Discussion of Hexavalent Chromium in Construction -

Rulemaking to Control Occupational Hazards

MR. SNYDER: Good morning, everybody. Okay. Hi. Okay. First of all, I'd like to thank -- thank you for having us on the agenda for hexavalent chromium issues or hexavalent chromium discussion. I'll just give -- I'll just give a little bit of a background and -- and -- and cite some issues and then go from there.

On July 19th, 1993, as you probably know, the Oil, Chemical and Atomic Workers International Union and Public Citizens Health Research Group petitioned OSHA to promulgate an emergency temporary standard to lower the permissible exposure limit for hexavalent chromium compounds to .5 micrograms of chromium per cubic meter of air as an eight-hour time-weighted average.

This represents a significant reduction in the current permissible exposure limit. The petitioners also requested that, in addition to a new permissible exposure limit of .5 micrograms per cubic meter, a national level of half the permissible exposure limit and the usual ancillary provisions, such as exposure monitoring, medical surveillance, regulated areas, personal protective clothing, equipment, and so on be established, just as our -- just as our other 6(b) standards.

The current permissible exposure limit in general industry is found in 29 CFR 1910.1000, Table Z, and it's a ceiling value of a hundred micrograms per cubic meter for chromic acid and chromates.

Basically, this is equivalent to a permissible exposure limit of 52 micrograms per cubic meter of straight chromium, measured and reported as chromium, due to the molecular weight of the chromium in the compounds.

This ceiling limit would apply to all forms of hexavalent chromium, including chromic acid, chromates, lead chromate and zinc chromate. These are measured as Chromium 6 and reported as Chromium Anhydrate from the lab.

The current permissible exposure limit for chromium -- hexavalent chromium in the construction industry is a hundred micrograms per cubic meter, but that's listed as a time-weighted average as opposed to the ceiling limit of general industry.

The Environmental Protection Agency and the National Institute for Occupational Safety and Health and the International Agency for Research on Cancer have reviewed the epidemiological evidence and have classified hexavalent chromium as a human carcinogen.

Okay. We were petitioned -- we were petitioned for an ETS, I mean emergency temporary standard, and -- okay. But we denied the petition. Instead, we initiated Section 6(b) rulemaking. It results in a lower PEL with additional protective provisions and allows for the scientific evaluation of the data as well as public input into a standard.

OSHA is preliminarily considering a time-weighted average of PEL in the range of .5 to 5 micrograms per cubic meter measured and reported as Chromium 6. OSHA expects to publish the new proposed standard for chromium in the Federal Register in late 1999. The proposed standard would cover occupational exposures to chromium, hexavalent chromium, which would include potential generation of hexavalent chromium when welding or other tasks that require the application of heat to trivalent chromium-treated metals and/or other compounds that occur.

We -- we did an analysis for grave danger and determined that in spite of the risk to -- of hexavalent chromium, we decided not to grant the ETS.

Occupational exposure to Chromium 6 occurs primarily by inhalation but can also occur to a lesser extent through dermal and oral routes. Exposure to Chromium 6 is known to cause lung cancer, bronchial asthma, nasal septum perforations, skin ulcers and irritative and allergic dermatitis.

We reviewed five studies on lung cancer and other cancers among workers in the chromate-plating industry, and through these studies the risk of death from lung cancer was statistically significantly elevated, and a form of statistically significant excess of cancer at all sites was observed.

Chromium 6 causes ulcers of the skin and both irritative and allergic dermatitis among workers exposed to chromium alloys and chromium-plated jobs. Inhalation of Chromium 6 aerosols at levels of about a hundred micrograms per cubic meter may give rise to necrosis of the nasal septum leading to perforation.

Bronchial asthma may occur as a result of inhalation of low levels of Chromium 6 dust or fumes. Such asthma occurs among platers, welders, and ferra chromium workers.

In addition to the health effects previously mentioned, abnormal kidney function has been observed among workers using special electrodes when welding on armored steel and among chromium platers.

Some of the more details illustrating non-cancer health effects are studies of platers exposed to low levels, ulceration, perforation of the nasal septum before -- below 20 micrograms per cubic meter, irritation reported at average levels of one and two micrograms per cubic meter, decreased lung function among workers with high urinary chromium, that's greater than 15 micrograms per gram.

Dermatitis since Chromium 6 is extremely corrosive. There's dermatitis with dermal contact, and the prevalence of sensitization from chromate workers was more than tenfold higher than in the non-chromate workers, and also sensitization can lead to chromate-induced asthma.

Okay. EPA determinations. In its 1984 health assessment document, EPA documented a number of epidemiologic studies that demonstrated an association between exposure to chromium compounds and lung cancer. Whether the association implicates Chromium 6 alone is not definitively addressed by these studies. According to EPA, okay, the report described several adverse health effects associated with chromium exposure and noticed that adverse effects were more often associated with Chromium 6 than trivalent chromium compounds.

Chromium 6 is very prevalent in lung carcinogen when the exposure route is by inhalation. The EPA currently believes that a level cannot be identified below which there is no increase of cancer. Therefore, any exposure that is associated with some finite increased health risk, EPA noted that these studies are convincing because of the very high incidence of lung cancer was observed, and the tumor site in the lung was specific.

One study in particular, the Mancuso study, among cancer among workers at one U.S. chromate production plant has been thoroughly reviewed by the Environmental Protection Agency. This was a study of 332 male workers. A 31-year follow-up found nearly fivefold increase in cancer mortality. EPA derived an estimate of the relative potency of Chromium 6 in comparison to other suspected carcinogens based on the Mancuso study.

EPA's evaluation of this study has formed part of EPA's basis for subsequent regulatory activities to reduce exposure to chromium.

I have Federal Register cites, but I won't -- I'll give them if people are interested later.

Also, Hayes investigated 2,000 workers in Baltimore and found a three-to-four increase in cancer mortality in employees of at least three years.

After EPA published its notice of intent to list Chromium 6 as a hazardous air pollutant, EPA received a number of comments. Some comments commented on whether EPA over-estimated the potency of Chromium 6, and in response to the comments, EPA determined that -- and this was in the Mancuso study. EPA determined that the Mancuso study is the most appropriate quantitative risk estimation because it presents lung cancer instance by both dose and age, and the risk assessment calculated from other studies generally supports that -- supports those calculations from the Mancuso study, and EPA considers Mancuso data to be a reasonable approximation of the Chromium 6 to which workers in the study were exposed during the entire working history.

EPA has also calculated the potency factors in other studies, three other studies, Languard, Axelson and Proscea, to evaluate the potency factor derived from the Mancuso study, and the Mancuso study was the lowest, which means those other studies were more severe.

At least 36 other epidemiological studies of cancer among workers exposed to Chromium 6 have been reviewed extensively by IR. More than 30 of these studies showed elevated lung cancer death rates. In at least 20 studies, lung cancer death rates were statistically significantly elevated among workers, and the total are subsets of the cohort.

The five studies of cancer among -- okay. Well, I won't go there. Epidemiological evidence of an association between occupational Chromium 6 exposure to lung cancer mortality is found in other studies among workers in ferra-chromium industry, chromate pigment production industry, chromate production industry and welders.

What is most striking about these studies is the consistency of the observed elevated rates of lung cancer among Chromium 6 workers. The results of these studies are consistent among the investigators and countries.

In 1984, EPA's health assessment document developed risk estimates based on a dose response relationship for lung tumors. Such epidemiological data was sufficient for IR to conclude that Chromium 6 is -- is a confirmed human carcinogen.

Okay. Let's see. Some industries in which cancer mortality has been reported are chromium production, chrome pigment production, chrome plating, ferra-chromium and welding. Some of the other compounds, chromium compounds, used are examples, calcium chromate, batteries and steel, chromate trioxide in plating, ammonium dichromate in dyeing, potassium chromate in textiles, potassium dichromate in pigments, wood preservatives, sodium chromate in ink tanning of wood, sodium dichromate in chemicals, bearing chromate in batteries, chromorage, pigments in paints, metal primers, lead chromate, pigments for wood and metal, molybdenum, coatings, inks, strontium, chromate paint, and zinc chromate paint varnishes.

Okay. That's -- that's just some of the background on hexavalent chromium. We -- okay. This is -- as I said, we're shooting for late 1999 for our proposed rule. We are currently working on a proposed rule. We're doing such things as updating our health effects database, looking for recent studies, keeping up with the literature.

We're -- we developed health standards we developed from the health effects database. We also developed what's known as quantitative risk assessment. We're updating our quantitative risk assessment in light of the recent literature.

We are having further work done by way of research on the biological mechanisms of hexavalent chromium toxicity. That's -- that's a project we're trying to get going with NIOSH. We are -- we have been refining the sampling and analytical method. Periodically have to keep checking with the Salt Lake Technical Center. I believe they're in the final stages of that, and we're continuing to gather data on industries through site visits and other efforts and regulatory analysis.

Okay. How all this relates to construction. We do -- we believe there is a pertinency to the construction industry. We know that in a general sense, there are differences between general industry and construction in a general sense, not necessarily in hexavalent chromium, such as, you know, some of the things known as multi-employer work sites, work locations that are fixed and transient or moving workforce.

However, as we develop the standard, in our efforts to develop the standard, we -- we would like to know more of any special concerns in your industry. We think, you know, we think that Chromium 6 exposure may occur during welding operations or cement work. We also think that the primary health concerns may be irritative and allergic dermatosis.

However, you know, we're still investigating these things in our -- in our efforts. We think that it would be -- before my time, there was a workgroup, and we'd like to know if we could or think about having a workgroup again to help us. A workgroup did exist before my involvement with the project. It would be helpful to have a workgroup of the committee just to address special concerns of which we should become aware.

A workgroup also -- they could do several things. They could review a draft once we get drafts ready in the package. We'd love to have a review when it's closer to the time or there may be -- or a workgroup could also think of ways the standard -- to tailor the standard to the needs of the construction activities.

Some of the issues that we're wrestling with, although we haven't made any decisions or formulated anything, is should we have separate requirements tailored to construction activities or should they be matched with general industry? If so, what should these requirements look like? Are there some tasks where exposures would be high? In other words, typical tasks or some task where exposures would be low, and could those tasks be readily identified?

Are we correct in thinking that exposures to hexavalent chromium occur during welding operations or cement work? And are we correct in thinking that the primary health concerns are dermatosis? And, you know, are there other issues or other information of which we should be aware pertaining to exposures, uses or potential hazards of hexavalent chromium in construction activities?

That's -- that's basically all I have to say. Any questions or --

MR. BURKHAMMER: Any questions or comments for Jeff? Larry?

MR. EDGINTON: Jeff, I'm ashamed to say I don't know much about the subject, but as you think about it in construction, my first reaction is it's very clear to me how it's relevant to general industry.

As I think about it in construction, I guess what was going through my mind, and I rather suspect the minds of many others sitting around this table, is where might we see exposures?

You've identified welding as possibly being one. I was thinking about it just in the broad sense as I started walking through this, of what occupations might be affected? What tasks are they performing which might result in any exposures? How do they get the exposure? Is it the materials that they're using? Is it a combination of materials and the tasks being performed?

I don't know the answers to any of that, by the way, but it seems to me that that's sort of the -- the matrix that you want to be developing, and then my second thought was as we think about promulgating a standard, if -- if it's true that in fact any exposure presents a health risk, I'm wondering what do we know about EPA or other activity with respect to regulating the use of it in products, because it sounds to me like it's -- it's -- the fact that the material's contained in a product is the way that we get the exposures, and maybe a standard's not the right way to go, if in fact we can eliminate the substance entirely.

I mean do we know what's going on in that regard?

MR. SNYDER: Okay. As far as operations or tasks, there was some preliminary effort on the part of the team and -- and that effort's on-going, and I don't know -- the scope of it hasn't been defined, but apparently chromium -- we think that chromium is contained in materials or products, and, for example, welding operations, some steel, chromium might be contained there.

There was a dermatitis conference back awhile ago where they talked about cement and concrete, and -- and the problems of chromium in concrete. There, the concern would be dermatitis, allergic dermatitis.

That's -- but -- but -- but to get a good handle on this, we haven't gotten. We don't have a good handle on this. The -- the construction activities seemed to be task-based, so that there -- it's not easy to break jobs down. The information we get are by jobs.

Yeah. We're having the same problem, and -- and it -- you know, this -- this is more work that -- that has to be done on our part, depending on what the resource -- you know, as well as gaining information on general industry, because we're still doing that, and there have been about 16 site visits.

Hopefully NIOSH is going to help us with more of -- more industry studies, but again it depends on the money, it depends on -- on the scope of the work and so on and so forth. So, this is something that I'm not directly involved with, but I try to keep up -- I'm trying to keep up with, and as far as EPA is concerned, they -- they've had a number of regulations. They've looked at water pollution and -- and things like that, effluent, and we're aware of their activities, and we

-- yet what you're saying is that as they regulate products from an Environmental Protection Agency concern, that will reduce the exposure to the public, but workplace exposure, it depends on -- on how things are handled and how -- how materials are treated, and

-- and another thing, too, is controls, you know, what types of controls.

I mean, you know, OSHA has certain policies and ways of doing things in 6(b) health standards. Usually we, you know, -- for example, the use of personal protective equipment. Those are OSHA policies, but we're still open to data and information with respect to other kinds of controls and control technologies to -- to minimize chromium exposure.

If it -- if it -- you know, depending on what the extent of the hazard is.

MR. BURKHAMMER: Before we have some other comments, I think this is your second or third visit to us on this subject.

MR. SNYDER: It's my first, but I have heard that -- that we have had other people here on chromium, yes.

MR. BURKHAMMER: Well, I guess the other person that came after I spent about 15 minutes chastising their presentation probably quit and hasn't come back. They stuck you with the job.

MR. SNYDER: Guess so.

MR. BURKHAMMER: But they made me acting chairman today. So, I have to be polite and refined, and I can't on my own. So, maybe that's why they did that.

When -- when the first person came and discussed this, my comments were, as he went through his presentation, it was a general industry standard being forced on construction. Our research showed that there's a couple of situations in construction that this may affect welding, would certainly be one, and painting might be another.

MR. SNYDER: Okay.

MR. BURKHAMMER: But other than that, we didn't see a whole lot of relationship of this particular standard to construction, and now you're back again, and during your presentation, I think I counted 27 we thinks.

We thinks is great. We think, too, and the problem is that we thinks don't constitute a standard. Facts and studies and surveys constitute standards. I'm pleased that you did ask for formation of a workgroup. I think this committee would like to have a workgroup on this subject, and we'll address that later and certainly consider that, and I think that I would like to see them review some of your drafts, which would be helpful, --

MR. SNYDER: Okay.

MR. BURKHAMMER: -- before you put them out on the street, and maybe we could help you with that.

So, we do appreciate your asking for a workgroup.

MR. SNYDER: Okay.

MR. BUCHET: I did have a question, but I'm going to abbreviate it a great deal.

In the interest of finding facts, has anybody looked at -- and you gave us a list of paints, varnishes, and I think wood preservatives, looked at the amount of wood products that go into construction that are treated with chromium simply as a start to find out how many there are, and then we may be able to find out who's cutting these materials or --

MR. SNYDER: Okay. I'll have to answer your question on wood preservations by deferring it. I -- because I -- I think there has been some study on wood preservatives, but the extent of that, I'm not sure, and I would have to -- I would have to find out.

I think they've done some work on wood preservatives and have determined that there may not be a lot of hexavalent chromium exposure, but I'd have to check that with some of the people there, and, you know, if you give me your name, card or whatever, I'll try to get the contact person on the team who can -- who can help you with that.

MR. BURKHAMMER: Bob?

MR. MASTERSON: It's more of a comment than a question. I'm very concerned that they are in the process of promulgating a standard, that they're looking at applying it towards construction, and at this point, they're asking whether or not we have a problem with it.

I would think you would have to identify a problem first, then make a decision to promulgate a standard to control it, and I think the cart is definitely before the horse on this situation.

MR. BURKHAMMER: Duly noted. Mr. Cooper?

MR. COOPER: Just one question. Who's in charge of this project?

MR. SNYDER: Well, they made me the project coordinator, but we have a team.

MR. COOPER: Well, who's the point person? You?

MR. SNYDER: Yeah. I guess so.

MR. COOPER: Thank you.

MR. BURKHAMMER: Any other comments or questions for Jeff?

MR. RHOTEN: Just --

MR. BURKHAMMER: Mr. Rhoten?

MR. RHOTEN: Yes. Just one comment. I'm sure that we have a problem in our industry. Okay. It's no secret. That's obvious, and I think the Center to Protect Workers' Rights has done some studies on that, on exposure, on-site studies where the workers wear monitors and those kind of things, and it seemed like that information's been laying there for two-three years, and if you haven't got it, I'm sure --

MR. SNYDER: Oh, we're aware of that.

MR. RHOTEN: You're aware of it? Okay. That's my point.

MR. SNYDER: Yeah.

MR. RHOTEN: And then I think, too, if you -- if you get into the standard-making process for general industry, I would think that our fabrication shops would fall under the general industry standard. They do in regard to hearing standards and that kind of thing.

But you're going to have to look at the welders out in the field and on job site places that are not in fabrication shops, and it's going to take some -- some different considerations to protect those guys who are not in the fabrication shop. I think that's obvious anyway, but I think you need to look at that.

MR. BURKHAMMER: Yeah. That's an excellent point. Owen?

MR. SMITH: I just had a question. On cement, is -- is it in the cement itself or during the process that they get contaminated?

MR. SNYDER: Okay. I -- I believe it's -- it's when it's used as concrete.

MR. SMITH: How would you control it?

MR. SNYDER: Well, okay. I can only bring up -- during the conference, there were some people in other countries talking about ferra sulphate as a way of controlling chromium exposure, but there were -- there were others -- other people who spoke and -- and cited some of the problems with using that control technology.

One of -- so, -- so, one way to control it is the use of personal protective equipment, gloves and garments and so on and so forth.

MR. BURKHAMMER: Bruce?

MR. SWANSON: Yes, Mr. Chairman. I'm sure that as the number of comments would indicate, the panel is most appreciative of our continuing effort to keep you informed on what's going on in OSHA.

Mr. Snyder is here to inform us and not to irritate you, as you might think.

MR. SNYDER: Yeah.

MR. SWANSON: Thank you, Jeff.

MR. SNYDER: Yeah. If I could just add, the -- the -- you know, the effort to -- to work on a standard is -- is -- is -- it's -- it's a project in the directorate that's being worked on.

Again, so that we can do the best job for you, it would be good to have as much data as we can get from -- from you all. We -- we -- we do -- we are making the efforts that we can make to gather data -- data ourselves. So, again what the process will be, I can't determine, except that we are supposed to develop the standard.

Again, we hope that -- so that the -- the needs of the industry will be met in the best way possible, that we can get the maximum amount of help available.

Thank you.

MR. BURKHAMMER: We would certainly like to help you.

MR. SNYDER: Thank you.

MR. BURKHAMMER: Any other questions for Jeff?

(No response)

MR. BURKHAMMER: Thank you, Jeff.

MR. SNYDER: Okay. Well, thank you.

MR. BURKHAMMER: At this time, I'd like to ask Mr. Cooper and Ms. Williams to give their workgroup report on Sanitation, and if you'd be so kind to do that.

ACCSH Workgroup Reports

Sanitation

MR. COOPER: Thank you, Mr. Acting Chairman.

The minutes of the last meeting show Alan Rostonowski -- excuse me, gentlemen -- show Ellen Rostonowski of the directorate bringing up two -- two concerns. One of women in construction, had -- relates to health concerns, and also again an issue of sanitation and decontamination in washing facilities.

This was not a new issue to this committee, and last year, we looked into the area of a construction standard, improved standard for decontamination restroom and washing facilities.

Now, I must say this to get your attention on this issue. But in a year, the regulatory agencies in most areas in Europe look upon their workers as a -- as an investment. In this country, we look upon our workers as, my opinion, of course, as some barnyard animals. We have construction workers without a place to wash after they use the restroom. So, to many, this is a big issue.

Now let me report on our committee findings. Is Ellen here?

MR. BURKHAMMER: I'm sorry, Steve, she is not.

MR. COOPER: Okay. Ellen is our point woman on this issue in construction, and we had a meeting last week in which she did an excellent job incidentally.

The participants on that committee, which is open to the public, were three participants from the group/associations that represent manufacturers of the -- of equipment relating to this issue. Chris Trehorn was -- was at the meeting last week. She's in the audience from the Center to Protect Workers' Rights. Myself, a committee member, Jane Williams to my left, a committee member, Larry Edginton further to my left, a committee member, and we went through the existing general industry standard.

We went through the construction standard. We went through all the many numerous responses from OSHA, from NIOSH, interpretations, etc., and came up with a rough draft.

This rough draft we are not prepared to give to the committee yet. We need one more meeting to finalize it. We will give it to the chairman, and the chairman can distribute the findings of the workgroup.

I will point out to you that the findings of the committee in short is that we feel that every American worker on the job site should have a place to go to the restroom and a place to wash. It doesn't make any difference if there's a 100,000 people on that job or one. I guess you could say welcome to the new millennium. Should have been done a long time ago.

It is difficult to see how one can speak up against this issue. I think you're all aware of the -- my -- my attitude on this issue, but we have -- and we can do this shortly because I've taken up all the time already, Mr. Chairman.

Let me refer to Jane and Larry on this issue.

MS. WILLIAMS: In our meeting, we quickly agreed among us that the key issue was sanitation and accessibility, and that if we address those two issues, they certainly would be representative of the primary concerns of both my research and Mr. Edginton's research among female workers.

We felt very comfortable with the results of this meeting. We do have some verbiage to work out appropriately, and that's why we're looking forward to the next meeting, to be able to produce the appropriate document for you to review.

MR. EDGINTON: I think I would just like to second both what Stephen and Jane had to say. I think that of all the workgroup members, there was a consensus that, you know, this is the human decency issue, is that every worker regardless of where they work in this country ought to have a place to wash their hands, and we have figured out how to do that in this country for every class of worker but for construction workers, and we think it's long overdue.

As Jane said, we think it's of importance to all workers, but in particular it's a growing concern for the -- the increasing numbers of women entering the trades. They've really been on our case about this. They're right about it, and it's time that we move on it.

We recognize that there may be some practical difficulties in its implementation, but nothing that we don't think can be overcome with good faith efforts. We hope to have something by, I guess, the next meeting.

MR. BURKHAMMER: Thank you for that report.

MR. COOPER: Mr. Chairman, that concludes our report. However, I'd like to point out that we have checked, and one of the reasons we're not giving you our final report is we're getting additional information from the industry on the economics of providing a particular type of equipment and availability.

We would request, Mr. Chairman, that this topic be required to be reported on at our next meeting by this committee, and again we will provide our proposed draft to the other members of the committee and OSHA.

Thank you.

MR. BURKHAMMER: Thank you. I assume that your workgroup has copies of the documents that were mailed out to us in our pre-packet. The letter to Assistant Secretary Jeffress from Glen Creno, the 1926.51 sanitation proposed standard, the field sanitation final rule in 1928, and the three-four documents that came. Did you all get that? You've taken that into account?

MR. COOPER: Yes.

MR. BURKHAMMER: Any questions of the workgroup?

(No response)

MR. BURKHAMMER: Okay. Thank you very much.

MR. COOPER: Thank you.

MR. BURKHAMMER: I will, with Mr. Rhoten's concurrence, give you the short synopsis of Steve Cloutier's Confined Space report, and, Bill, please feel free to join in.

Confined Space

MR. BURKHAMMER: The Confined Space Task Force Workgroup met. Some stakeholders were present. Bruce Swanson was present. They prepared and looked at some comments that were presented to the workgroup. They restructured some of those comments. They also took a look at the 1910-1926 drafts. They had some thoughts and ideas concerning those drafts, and they've submitted some wording back through OSHA for review and consideration.

They plan on having another workgroup meeting within 90 days prior to the next ACCSH meeting to finalize their documentation and provide a full report to the committee at that time.

Do you concur with that?

MR. RHOTEN: Yes, sir.

MS. WILLIAMS: Mr. Chairman?

MR. BURKHAMMER: Yes?

MS. WILLIAMS: Has that draft on confined space changed from its original issue of two years ago?

MR. RHOTEN: The draft that we submitted?

MS. WILLIAMS: Yes.

MR. RHOTEN: I think the draft that we submitted is still there, except there's been a side-by-side comparison and some suggestions on where possibly there's some conflict.

MS. WILLIAMS: Thank you.

MR. RHOTEN: But --

MR. BURKHAMMER: One of the things Steve indicated was that they went through those conflicts and tried to resolve some of the issues, but he said there weren't a whole lot.

Okay? That takes care of the Confined Space report.

With that, we'll move on or we can take a drink. Why don't we take a break until 10:35, and then we'll come back with Loretta Schuman's presentation on Crystalline Silica?

(Whereupon, a recess was taken.)

MR. BURKHAMMER: We're ready to continue the ACCSH session. Our first presenter is Loretta Schuman, who's going to make -- give us a presentation on Crystalline Silica.

Crystalline Silica - Standards Development

MS. SCHUMAN: Hello. My name is Loretta Schuman. I'm with the Directorate of Health Standards Programs here at OSHA, and I'm the project officer for the standard for occupational exposure to crystalline silica.

Now most of you may know these things, but I'm just going to give a little brief review about silica and some of its health hazards and the people who are exposed.

We estimate there are about two million U.S. workers exposed to crystalline silica, and that includes about 100,000 in high-risk jobs, including sand-blasters, foundry workers, stonecutters, rock drillers, quarry workers, and tunnelers, and, of course, a lot of these are construction workers.

This is the current OSHA standard. I have it over here for general industry. For construction, as you may know, it's sort of the same but not really. That's another story. But -- so, we can -- essentially the PEL for crystalline silica is 10 milligrams per cubic meter over percent silica plus two for respirable dust, and for total dust, it's 30 milligrams per cubic meter over percent silica plus two.

So, what does that -- what does that actually look like? What does that look like? Well, for the sports challenged, this is a football field. This is

-- this is Mountaineer Field for West Virginia University in Morgantown, West Virginia, and I have NIOSH to thank for this slide.

Now if you take about two teaspoonfuls or about the weight of two pennies full of silica, and you throw it out on to the -- on to the field, and you evenly disburse that silica around the field, and let's say the field is enclosed in glass like this one is, well, you cannot play on that field for eight hours without being over-exposed to the OSHA PEL for crystalline silica. So, you actually wouldn't be able to see that silica, and yet you'd be over-exposed to the current PEL. So, that's not very much.

A couple of people at OSHA several years ago did a study of the percent of people who were above and below exposed -- above and below the PEL, and this was based on data from our inspections.

It was found that there were approximately 48 percent of the inspected were above the PEL and 52 were below. So, it's about half and half.

Well, what happens when you're exposed to silica? What are some of the possible health hazards? There are a number of diseases that can occur, including lung disease, silicosis, cancer, some immune diseases, tuberculosis, kidney disease, but today, I'm going to talk about a couple of the more well-known diseases, silicosis and lung cancer.

Silicosis is a disabling and potentially fatal lung disease which essentially is scarring -- scarring of the lungs till you can't -- it gets so bad that you can't breathe. Silicosis deaths are still occurring in the U.S. today. There are three different types of silicosis.

The acute form develops when workers are exposed to the highest concentrations of silica, and this can develop in as few as -- few weeks. Then there's the accelerated form of silicosis which is high concentrations but not the very highest, and that can develop in five to 10 years of exposure, and, finally, there's the chronic form in which people are exposed to relatively low concentrations, and in this case, silicosis can develop after 10 or more years of exposure.

There are currently about 300 deaths per year that are reported from silicosis in the U.S., but we think this is probably a very low estimate because probably a lot of cases are just not reported. So, we think it's -- it's definitely an under-estimate.

Two scientists at NIOSH did a study of a group of workers exposed to silica and their risk of silicosis, and they looked -- on the bottom line there, it's cumulative silica exposure, and what they did was they looked at if you were exposed to certain concentrations of silica for 45 years or working lifetime, what is your, on the left-hand side there, the percent risk of silicosis? And if you just look at the middle bar there, these researchers found that at the current OSHA permissible exposure limit, if it -- a group of workers was exposed to that amount of exposure at the OSHA PEL for 45 years or working lifetime, in about 47 percent of the workers would get silicosis. That's 47 out of 100 workers would get silicosis at the OSHA PEL for 45 years exposure. The research has concluded that the current OSHA PEL was too high.

One of the -- the other health hazard that I'm going to talk about today is lung cancer, and several -- there are a number of studies that have demonstrated statistically significant dose-related exposure-related increase in lung cancer.

Some of the studies have looked at pottery workers who are exposed to very low levels, tin miners in China, South African gold miners in which they found that there was a synergism with smoking. In other words, you got some cancer with silica, some with smoking, but if you put the two together, you got more than two plus two equals four. You got two plus two equals something else like maybe seven or eight. So, it's that synergism.

In the diatomaceous earth industry, the authors concluded that there was a causal relationship. In other words, exposure to silica definitely was a thing in these workers that was causing lung cancer.

So, based on many of these factors and others, OSHA decided that we would begin the development of a comprehensive standard for crystalline silica.

Now as -- as -- as you probably know, with most of our comprehensive standards, it would include a number of provisions, in addition to the permissible exposure limit, which is currently all we have for silica, just the permissible exposure limit. This comprehensive standard would include provisions, such as product substitution, engineering controls, respiratory protection, medical screening, medical surveillance, and training and education.

Okay. We -- no. That's it. Yeah. That's it. So, we hope to -- where the standard is currently under development, we've -- we've formed the team several months ago, and we've been working on the standard.

We currently anticipate that the standard will be -- the proposed rule will be published in the Federal Register in the year 2000. One of the things we're going to be doing as a result of the -- of going through the standard development process, of course, is we'll be doing a risk assessment to determine whether we need to lower the permissible exposure limit, and based on what we determined what the permissible exposure limit should be, we have to determine whether that limit is technically feasible, whether there are engineering controls available or can be developed to -- to come down to that level, and also whether it's economically feasible, as you know, whether it will be cost effective to do this, and, so, based on that, I'm also -- I'd like to conclude my presentation with a request.

In order to determine the technical and economic feasibility, OSHA needs to do site visits or needs to go out and look at work places and to determine whether what the current exposure levels are, also what current engineering controls are available, and to determine the economic and technical feasibility.

So, this is a request for those of you in the industry, in the construction industry particularly. We really do need cooperation to send our teams out and do this -- do these site visits.

Now as you know, it's totally separate from

-- from compliance or anything. So, this is just our

-- our -- our own research. So, I'm calling -- I'm asking if -- if any of you would -- would come forward and -- and allow us to visit your sites, we would greatly appreciate it. It would really help us in the development of the standard.

Thank you, and I'll take any questions you have.

MR. BURKHAMMER: Any questions from the committee? Owen?

MR. SMITH: With respect to the 45 years, does that anticipate that the person's working at the same level, exposure level for 45 years, five days a week, 52 weeks a year, to reach that level?

MS. SCHUMAN: Essentially, it does. I mean it takes -- it's a -- you know, it's exposure to like a time-weighted average, which most of our permissible exposure limits are. So, that would be -- you know, it wouldn't be necessarily always at the permissible exposure -- you know, exactly at that level, but, you know, it would be a weighted average that it would be at that level over that amount of time, you know, taking into account probably for vacations. I'm sure they'd calculate that in.

MR. BURKHAMMER: Are you aware that there's a study being done at the Boston Central Artery by UMASS-Lowell on silica?

MS. SCHUMAN: Excuse me. I can't really hear you.

MR. BURKHAMMER: The -- there is a study currently being done and has been underway for over a year by UMASS-Lowell on silica at the Boston Central Artery Project.

MS. SCHUMAN: Oh, yes, I am aware of that, and hopefully we may be able to get some information from them.

MR. BURKHAMMER: Okay. Any other questions?

MR. EDGINTON: With respect to the idea of product substitution, is OSHA thinking about that in terms of making recommendations in regard to product substitution or are you thinking about simply proposing to eliminate the use of certain products or both?

MS. SCHUMAN: Well, we have -- we have gotten requests. People who think that it would be a good idea if we were to restrict the use of, for instance, the use of silica sand for abrasive blasting.

MR. EDGINTON: That's exactly one of the examples I was thinking of.

MS. SCHUMAN: Right. And then -- and we certainly are taking that under consideration, and we haven't made any final decisions, and we probably won't for awhile, but that's -- that's one of the examples of things that we would consider.

MR. EDGINTON: Would you see that as -- do you see that as a part of the silica rulemaking process or would you see that as something on its own?

MS. SCHUMAN: Well, at this time, I would see the consideration of that would be under the scope of the silica standard.

MR. SMITH: With respect to the rules that already are in effect, you know, about the sand-blasting, you know, guy puts a hood on, and he's -- he's got air, he's got air, how does he get the silica?

MS. SCHUMAN: Well, probably a lot of times those -- I'm not -- I'm not an expert on -- on sand-blasting or, you know, on sand-blasting hoods, but I think probably sometimes there's still over-exposure with those hoods, and a lot of times, they don't even

-- they're not used or they're not maintained properly.

MR. SMITH: But you gotta -- you know, you have air going out all the time. It's blowing everything out. Unless people aren't using them.

MR. BURKHAMMER: Michael?

MR. BUCHET: The slide you had that showed 48 percent exposure above the PEL, 52 below the PEL, is that for construction or what portion of it shows construction workers or what construction workers or any construction workers?

MS. SCHUMAN: I'm not sure, to tell you the truth, whether that -- whether that covers construction or -- I know it covers general industry. I'm not sure whether it covers -- what percentage covers construction or whether it does. It probably does.

MR. BUCHET: Can you find out?

MS. SCHUMAN: Sure.

MR. BURKHAMMER: Any other comments or questions for Loretta?

(No response)

MR. BURKHAMMER: Thank you very much.

Mr. Cooper?

MR. COOPER: Mr. Chairman, probably the three greatest things in the country, probably the invention of the screen door (1), business expense accounts are another, and air conditioning is probably the third, and as relates to weather, as we all know, the conditions on job sites throughout the country, we work in extreme heat, and you want to worry about the -- what's going to happen in the next few decades, you can -- you can.

However, what is -- is OSHA doing anything on heat stress? I mean pushing the issue further due to the type of weather we've been having?

MR. SWANSON: Yeah. We are , and it's my understanding that -- that our tech support office has something current. It seems to be a subject this week around the country. Maybe we could get -- try and get someone in here this afternoon to handle this better than I can do it off the cuff, Steve, and make a presentation, if we've got time. Can we work in a short presentation this afternoon?

MR. BURKHAMMER: I think we can work that in.

MR. COOPER: Thank you.

MR. MASTERSON: I know they are working on it because they've contacted me on several occasions. I know they are working on some heat issues because they've contacted me a couple of times already on some of the things we've been doing.

MR. BURKHAMMER: We have that on our agenda for 3:00, right after the break at 3:00.

Also add to your agendas Berrien Zettler at 1:00 along with talking about OSHA's Strategic Plan. We've asked him to update us on the recordkeeping report and recordkeeping standard, and also update us on the ergonomics standards. So, he will do that all collectively in his 1:00 presentation.

Also tomorrow, around the break in the morning, we're going to have a presentation on the travel procedures for the advisory committee. So, add that to your agenda, also.

If we're now ready, we'd like to hear the Status of Data Collection on OSHA's Updated Form 170. Mark Hagemann is prepared to make that presentation.

Other Reports

Status of Data Collection on OSHA's Updated Form 170

MR. HAGEMANN: Good morning. My name is Mark Hagemann. I work in the Office of Standards and Compliance in the Directorate of Construction, and for the first report, I'm filling in for John Franklin, who is our statistics guy in the directorate, and I'm going to give you a real quick update on the new data collection project we're working on, and for a little bit of background, during the SENRAC negotiations, the SENRAC Committee and OSHA staff both analyzed OSHA's accident fatality data, and SENRAC found it to be a little lacking in some detail.

So, in their recommendations, along with their recommendations for a revised standard, they recommended that OSHA look into improving their data collection.

OSHA did agree to do that, and we have since developed and implemented an enhanced coding system which is used by the OSHA compliance officers when recording construction fatality catastrophe investigations for entry into the IMAS System.

This new system was implemented on January 1st, 1997. So, the data that we are now getting into the system will provide more detailed information indicating how and -- and where the construction fatalities are occurring, and give much more detail as to what the workers were doing, what type of structure they were on, and -- and some of that -- causes and things like that.

So, the data has been going into the system for about 18 months now, and our information IT department is in the process of developing a program to extract that data out of the system in a usable form where OSHA can -- can evaluate it and determine what's going on out there and where the problems are.

That is expected to be -- that program is expected to be completed by the end of this fiscal year, and the University of Tennessee has been contracted to analyze the raw data for -- for the calendar year 1997 and develop a report by the Spring of next year covering all of construction. So, hopefully that report will be a detailed report using the new information and the new system and that will show some progress as far as our -- our data collection.

That's about all I have on that. If you have any questions. I don't know how much detail I can get into. John is our statistics guy, but I'll -- I'll answer anything I can.

MR. BURKHAMMER: When we first -- when ACCSH first heard about this, we put together a data collection work group that at the time was chaired by Annamaria Sorio, and she pulled together a tremendous amount of information and made several presentations to ACCSH, and one of the concerns was in gathering the fatality data. Was it going to be lumped into one general all construction category or was it going to be broken out into heavy construction, specialized construction, general construction, building construction, highway construction.

So, it did a feel for what facet of construction the fatalities were occurring in. Do you have an idea of where we are on that?

MR. HAGEMANN: Yeah. From what I gather in the new form, it -- it will get into identifying the end use type of the construction, what the site was, and there's a list of, looks like, about 15 or so different categories. So, that's one of the questions that the compliance officer will have to fill in, whether it's commercial building, a manufacturing plant, a refinery, power plant, highway, road, bridge. So, that will -- we will get more detail on -- on the actual type of -- of facility or type of structure it was.

MR. BURKHAMMER: With the University of Tennessee analyzing the data, what -- what do you expect to get back from it?

MR. HAGEMANN: I -- I don't really know because I -- I haven't been involved in -- in contracting with them and defining what their product's going to be.

MR. SWANSON: Mr. Chairman, what -- what we are -- are looking for is a far more finite breakdown on -- on fatalities. Injuries, also, but let's stick with fatalities, is to -- you know, where with some specificity it occurred within the construction industry, what was -- what was unique about that occurrence, what -- what SIC, what status of the job, geographically, what time of year, and so that OSHA can within itself take a look at -- at what -- what tools, what resources that we have are we applying to various sections of the construction industry, and is there room for improvement in that resource application?

That really is what's at -- at bottom at all this, and whether we're going to be able to attain that nirvana or not, I don't know, but --

MR. BURKHAMMER: How -- how are we going to survey the state plan states?

MR. SWANSON: State plan states are at the moment not a part of this, and we all understand that there are fatalities in the construction industry in -- in the state plan states as well as federal jurisdiction states, but if we can -- if we can handle the survey, we -- we welcome any state plan state that wishes to -- to join us on this, but we're going to be unable to push them into it if they don't wish to expend money on it.

What the survey results will, I think, still have some veracity based on -- on half of the construction industry, and then we -- we get our aggregate answers, we can still do the analysis and what tools should be applied and etc.

It will still have applicability in those state plan states, but we're unable to force them into it.

MR. BURKHAMMER: One of -- one of the big issues we uncovered in Annamaria's workgroup was the differences between the National Safety Council reporting X number of fatalities in the construction industry per year versus OSHA reporting half or less of that. The state plan states have fatality data that can be collected, and we can combine all that into one with, I would think, not too much effort.

They do publish their own data on fatalities in those states. So, if you could make a note of asking the state plan states to provide the data, they should be willing to do so.

MR. SWANSON: Fortunately for you, you have a state plan state here, Mr. Chairman.

MR. BURKHAMMER: I know that.

MR. EVANS: Well, one comment I'd like to make about that, I don't know that the form that you guys use is any different from what we use now for investigation of fatalities, but all that information is entered into the IMAS program. So, I would imagine it would be retrievable.

I'm not sure it's as detailed, though, with the changes that need to be made, but I can't imagine any of the state plans that wouldn't want to go along with that if it could better identify where the fatalities are taking place.

MR. BURKHAMMER: That would certainly be helpful to the overall value of the data when it comes out.

Mr. Cooper?

MR. COOPER: This is not just another report. This is a very, very important report. With your permission, Mr. Chairman, I think that the committee should have a copy of some blank 170s, if you can provide that, and there's been a lot of work in this area. Without this -- this data, it's very difficult to form a real conclusion.

As was mentioned just a moment ago about National Safety Council data, insurance companies have their data. The feds have their data. We have evaluated 10 years of fatalities in construction in the United States, and we reviewed each and every fatality reported to OSHA over 10 years.

The -- the data was skimpy, and it was in the eye of the beholder, which in this case was the compliance officer, and if an individual fell, in some cases we didn't know how far, what from, what occurred.

The chairman brings up an important issue about state plans. That's half of the group, and I know, Danny, that in your state, you guys do a pretty good job, but in some states, they don't have this type of information.

It would be helpful, maybe not possible, but helpful if we had one standard form, and I realize maybe OSHA can't push that to the states that easily, but the data we're looking for has a lot of variations to it. Time of day, weather conditions, etc., and if some state did not have that, we -- you know, we -- how can the University of Tennessee come up with a report? Are they going to evaluate federal information?

Again, I don't think the chairman said this. So, I guess I will, but he was leaning on it. I -- I realize how these grants go, but I certainly hope the University of Tennessee or any other university knows how to evaluate this data, other than accounting aspect.

Thank you.

MR. EVANS: Mr. Chairman, one question I have. Does anyone know if the information that's gathered on the new form indicates how long the individuals have been on that particular job?

The reason I ask that question is that in the last couple years in Nevada, we've had a number of accidents that were fatalities, where it was the first day the fellow was on the job. I just wondered if that's something that they look at.

Along with that, though, Bruce, if -- if you'd like, the Board of Directors for the ASHPA group, which is the state and plan association, is meeting August 4th and 5th, I believe it is, in Salt Lake City. Maybe if someone from your group are going to have a meeting, a joint meeting with the federal steering committee, maybe they could -- somebody from your group could show up and make a presentation on that to the Board of Directors, and maybe something that could be discussed at the next general meeting of the ASHPA group.

MR. SWANSON: Thank you for the invitation.

MR. EVANS: I can't imagine that they wouldn't accept it.

MR. BUCHET: Mr. Chairman, along with the request Mr. Cooper made for the form, can we look at these new coding items? The form is one part of it, but if we don't know what's being captured in the way of place or the end use of the project, then we're still left a little bit in the dark.

MR. BURKHAMMER: That's a good point.

MR. HAGEMANN: Yeah. We can --

MR. BURKHAMMER: Mark?

MR. HAGEMANN: We can provide copies of the form, and it goes into -- into some detail on activities. As far as I can tell, it doesn't get into the length of -- of employment of the -- of the worker.

MR. EVANS: That could be very helpful in showing that possibly these people aren't properly trained before they actually put them out there to work.

MR. HAGEMANN: Well, those -- I guess those type of things are -- can be added to the form as we -- as we evaluate it and determine, you know, how effective it is.

MR. EVANS: Also, a few years ago, we did a little study in Nevada on -- when they were in the last stages of completing a project, like a major hotel casino, that we were having built. When they get down to their final days, they seem to push a little harder because they want to meet all of their deadlines of completion, so they don't have to get into the -- I guess they have to pay some penalties if they go over their time frame. That might be another question to show where they're not -- that is in place, and whether or not they're in that time frame, whether they're pushing the project.

MR. HAGEMANN: I imagine that would probably be difficult to capture. I don't -- I don't -- I don't know how a compliance officer would determine if they're at their rush stage of a job, and they're being pressed by penalties.

MR. EVANS: All you'd have to do is ask the general contractor, how close are you to the opening date, and is there a -- a penalty assessed to the subs or the general if they don't have it done by a certain date.

MR. BURKHAMMER: In most lump sum turnkey contracts, there's penalties for delays, and there's awards for early completions. It would be pretty easy to find out.

MR. EVANS: I would think so.

MR. SWANSON: Any suggestions that this committee has would certainly be welcomed and will be reviewed.

MR. BURKHAMMER: If we could get a copy of the form maybe before lunch or right after lunch, the committee would have today to look at it and maybe we could offer some comments back to you before we leave.

Bill?

MR. RHOTEN: Just a question. At the present time, if there's a fatality on the job, when it's investigated, does the question arise on safety training, how much safety training the victim might have had on all cases?

MR. SWANSON: Yes.

MR. RHOTEN: So, that information would be -- would be easy enough to gather?

MR. SWANSON: All -- all of the -- all of the comments that have been made are -- those are questions and -- and elicit information that is already part of a competent accident evaluation.

The issue is not whether or not OSHA is gathering that information. The issue is reducing it to a machine-readable, you know, form.

MR. RHOTEN: Yeah. And I would just suggest if that would be as important a piece of information that we could get out of the whole survey, probably the length of time the person's been on the job was mentioned, and the amount of safety training that the person had. I personally believe that's the major problem we have in the construction industry.

MR. BURKHAMMER: Michael, is the data collection workgroup working with Mark and --

MR. BUCHET: Yes.

MR. SWANSON: And we'll all solve all of this, I'm sure.

MR. BURKHAMMER: Any other comments or questions on this issue of Mark?

(No response)

MR. BURKHAMMER: All right. If you would now like to go on into the presentation on negotiated rulemaking, SENRAC and steel erection?

OSHA Standards Development Progress Report

Steel Erection Negotiated Rulemaking

Advisory Committee (SENRAC)

MR. HAGEMANN: Okay. What I'm going to do real quickly is just update the committee on -- on where the steel erection proposal stands.

The proposal was sent to OMB on May 7th for review. We have had discussions with OMB during that time period. They've provided us some input on the proposal, and we understand that they're very close to -- we're very close to getting their approval on the document.

There is one outstanding issue that we're -- we're in the process of resolving with them, and that is the OMB's insistence that we provide a means for electronic comments on the proposed rule. This is something that OSHA hasn't done before. We're looking into it. We're trying to work out the technical details with our Docket Office on that, and once we resolve that, then we should be -- we should be real close to getting this thing proposed.

We're still targeting possibly the end of July or early August for the proposal to be published in the Federal Register.

Again, that -- it's hard to pinpoint it without knowing the outcome of this -- this final issue with OMB, and that's -- that's basically where we stand.

If -- if -- if anybody has any questions, I'll be glad to -- glad to answer any questions on any aspect of -- of the proposal or the negotiations of anything.

MR. BURKHAMMER: There was a published report that Mr. Cooper shared with me, and maybe you could read the part of that that you and I highlighted there about the year 2000. The form of a question.

MR. COOPER: Mr. Chairman, and Mark, in the article here recently that -- where they, they being OSHA, is looking for a final rule in the year 2000.

Can you comment on that?

MR. HAGEMANN: Again, it's hard to predict when we would be able to get a final rule out. Generally, we say it takes at least a year after the proposal goes out to get a final rule. That depends on the record that's developed during the comment period and the hearing, and -- and -- and how much time it takes to evaluate that record and put together the final rule.

So, it's -- it's -- at this point, it's -- it's hard to say exactly when we would be able to get a final rule out.

MR. BURKHAMMER: The purpose of negotiated rulemaking, as I understand it, is to minimize, so to speak, the public comment because the public participate in the negotiated rulemaking in a lot of arenas, participating in the -- so, I would think -- and that's the 28th, I think, -- that it should go fairly quickly because it's had a pretty widespread distribution over the last five years.

So, hopefully the normal comment periods and the number of comments that are received would not be that voluminous.

MR. HAGEMANN: That's what we would hope for, yeah.

MR. COOPER: I have something interesting to report in that area. As some of you know, the decking people who call themselves the Steel Coalition reached agreement with the SENRAC Committee that there'd be a five-year moratorium and study to word "slip resistance in roof and floor decking". That committee is a very large committee. It met. I'm chairman of that committee for SENRAC workgroup, and we met last week, and there was 17 representatives from the steel industry which includes the coating people, the manufacturers of -- of decking, the entire steel industry, and we reached a tentative agreement.

They did a yearlong study to some large expense at UCLA, I believe that was the university in that area, as relates to the problem of slip resistance on deck -- roof and floor deck.

They finalized Phase 1 of their report, but the interesting part is there is a commitment from the representatives of the Steel Coalition which is a very large group to study the discontinuation of benzene oil on decking to be replaced by a worker-friendly substance to reduce the propensity of slips on floor and roof decking, and that was reached last week. That's a very important issue.

Second commitment by the Steel Coalition in response to the SENRAC Committee was to study through research and development methods to increase slip resistance in floor and roof decking by following these: acid etching, embossing, dimpling, and new types of coating on floor and roof deck and their application.

So, I can only speak for myself and SENRAC, but I feel that we are progressing in a good manner with the Steel Coalition on this issue.

Thank you, Mr. Chairman.

MR. BURKHAMMER: Thank you for that. Anything further? Yes?

QUESTION: Can you say again what kind of oil you're talking about discontinuing?

MR. COOPER: Benzene oil.

MR. BURKHAMMER: Any other committee members have any comments or questions for Mark on this subject?

(No response)

MR. BURKHAMMER: Thank you.

The next presentation will be Bob Pitulej and OSHA Reinvention.

OSHA Reinvention

MR. PITULEJ: I guess I should start off by saying that by looking at the agenda, I fully realize that I am what's blocking everybody from going to lunch. So, just so everybody knows this, as I look at folks, it seems as though they've had a long morning. I'm going to try to be brief. I've got just one cover slide and four other slides, and just to let you know that I'll be available after I'm done with this if anybody wanted to talk about one-on-one issues.

Next slide, please, Jim. What I just want to talk about briefly was a project that the agency is working on that deals with the field. What we've been trying to do is to work with the 67 federal area offices throughout the agency and see if we could find a way to try to make them work a little bit better for -- for both the agency and for the American worker and for employers, also.

And these are just the goals of what we're trying to accomplish with the revamped OSHA field office, reduced workplace injuries, illness and deaths, improve the quality and timeliness for the delivery of this service. Can we find ways to get there quicker, respond better to complaints? Develop a capacity to pro-actively solve problems. That's something that we're really working -- what would be relevant, I guess, for -- for this group assembled, is there are several projects that focus on the construction industry, in that area.

We're trying to focus more on the worst actors and hazards, and we're trying to increase the types of compliance assistance. While enforcement remains a core principle of the agency, we are trying to look at some other ways to see if we can work with individual work sites, employers and employees, associations and unions to try to get things resolved.

Next slide, please.

MR. COOPER: Can I comment on that last slide?

MR. PITULEJ: Sure.

MR. COOPER: On Number 4, when you say focus on the worst actors, you mean externally?

MR. PITULEJ: No. Actually, our theory is to try to focus on both the internal ones and the external ones. I guess we're having a hard time categorizing which ones are which.

MR. COOPER: And -- and how does OSHA -- a serious question. On Number 1, on reducing work place injuries, illness, and deaths, and I realize that's a mandate, but how do you -- and this is a trick question. So, be ready.

MR. PITULEJ: Okay.

MR. COOPER: How do you -- how do you plan on doing that when you don't control the workers or the workplace or the --

MR. PITULEJ: Well, the plan that the agency has put together is sort of explained in the agency's Strategic Plan, and it's sort of a trick -- not a trick answer, but this afternoon, some of the folks will be covering the agency's Strategic Plan.

I'm just going to touch a little bit about it in this brief presentation, but the agency has put together a strategic plan with three overall goals and several goals underneath it, and that would be the overall answer on how we're planning to attack that major problem.

Next slide. Just to let you know again we're focusing. We've got 37 of the 67 federal offices transitioned to this new model. We have 30 offices remaining. Our goal is to get those accomplished by September 30th of 1999.

A quick understanding of how this happened. The union management partnership team of folks within OSHA and some outside consultants developed a model. The second phase of that was a national level implementation driven by Washington, D.C., and now we're in Phase 3 of the regional implementation where local-regional administrators and their -- and their staffs are putting the rest of the model in place through the year 1999.

If anybody has any questions about the model or what we're doing, I've got a brochure here. If we need more copies, if anybody wants to grab that, I won't bore everybody with that information, but it sort of outlines what we're trying to accomplish and where we're heading with that.

Next slide. Again, sort of answering a little bit of -- I think Mr. Cooper's question is the linkage between what we're doing and the agency's Strategic Plan, which will be covered a bit this afternoon, and, so, -- and the rest of the -- during the rest of the presentation.

What we're looking to do is to align the agency around the Strategic Plan. This is -- everybody -- I don't know if everyone's familiar with GPRA, the Government Performance and Results Act. Something the agency has put a lot of resources in, and this is where all the directorates have been instructed to try to put some of their -- to put their resources to.

So, I just wanted to explain quickly the link -- the next slide, please, Jim. The link between what we're doing in reinvention and the Strategic Plan.

The local area offices are going to be responsible for delivering those goals or some of the requirements that we have in our Strategic Plan, and then the Strategic Plan is a five-year plan. The performance plan is merely a one-year subpart of that overall plan, just for clarification.

And what we -- what we're doing with reinvention is allowing area offices to develop some local initiatives to play a key role in accomplishing some of these, and we -- we offer some tools to the area offices, projects such as problem-solving and breakthrough projects.

Of interest to this group is many of those projects are focused on construction. Throughout the country, many of the area offices work in tandem with local associations. We have one project where there's a memorandum of understanding among three state agencies on how -- so we're not duplicating efforts in dealing with the business world and stuff.

So, we've got many of these throughout the country, and construction remains a large focus in these -- in these individual things, and what we're trying to do through reinvention is allow the area offices and the regional offices to use their expertise within their jurisdictions to know where some of the larger problems are and allow them some freedom and some tools to develop some local initiatives to work with that.

Sometimes a national-based approach, while useful in being consistent, does not address the problem in each particular jurisdiction. So, that's what we're trying to do, and again many of those individual projects or local area projects deal with construction issues.

That's all I have, unless there's anything else.

MR. SWANSON: Just a postscript to that, Mr. Cooper. The -- the local initiatives are -- and why it's so heavily concentrated in -- in construction is an attempt to solve some of our historic targeting problems that we've had rather than continue to use exclusively the national program with reports and University of Tennessee.

MR. BURKHAMMER: What we are handing out is a copy of the 170 form for us to look at and review and comment on.

Bob, would it be possible to get a list of the 37 offices that have been converted to supply to the committee?

MR. PITULEJ: Yes, absolutely.

MR. BURKHAMMER: Okay. Thank you.

All right. Before lunch, we -- there was a conflict in the schedule for the Heat Stress presentation at 3:00. So, we're going to hear it now with Elise Handelman. She's prepared to come forward and talk about Mr. Cooper's request on heat stress.

Heat Stress

MS. HANDELMAN: Good morning. Being the last speaker before lunch is almost as bad as being the first speaker after lunch. I don't know which is worse.

But thank you for inviting me to take a few minutes of time to tell you about a project our office has been working on. I haven't been to your meeting before formally. So, let me introduce myself. My name is Elise Handelman. I'm the Director of the Office of Occupational Health Nursing, and let me tell you where we live in OSHA. We live in the Directorate of Technical Support. We're one of the directorates just like the Directorate of Construction or the Directorate of Health Standards. There's also a Directorate of Technical Support, and my office is in the Directorate of Technical Support.

Each summer, we bring in -- during the year, we bring in usually about six occupational health nurses who come into the agency to work on special projects, and we were really lucky this year to get someone who I thought was really highly qualified, and her name was Patricia Louie, and she went by Trice, and Trice worked for us for eight weeks on issues related to heat stress, particularly in construction.

She came to us with a Master's degree in education. She's finishing up an MPH at the University of North Carolina and has about 10 years of experience working in -- in areas, construction-related areas. She was the safety officer for a $40 million 700-employee R&D facility that the Air Force ran out in the Mojave Desert. So, she knows about heat, and she took great interest in this project.

She's seen the effects of heat and particularly related to construction. She worked in demolition, and, so, she's had a lot of experience in construction and demolition areas. So, we felt like we got a real prize, and I'm sorry she isn't here to do the presentation. Her internship ended up Friday. So, we're trying to find some ways to keep her on board for a little bit longer, but she isn't here today.

What we had Trice do was two projects. One was to develop what we're calling a palm card, which would be a small hand-out type card that will be made available through our usual channels of distribution and looking to you all for some ideas about that distribution related to heat stress, and I -- I brought some copies of just the current draft I can pass around for you all to take a look at.

We got lots of help on this project from the Directorate of Construction, particularly Ellen Rosnowski, and we also got a very nice chart from Bob Masterson, who provided us with a color chart that we're trying to incorporate into our materials.

The copy that you have does not have the chart in color, but it does have -- we're going to adjust that. So, what you have is just sort of our working draft.

Right now, the document that you have with you is being worked by our information office to try and make it look a little prettier, work on the format, get the colors right and so forth, but the basic content will probably remain the same.

We've had a lot of review of this. We had input from the field and a number of people that looked it over. You'll see that the language is very basic. We tried to keep it at sixth grade level or below. We were going to go lower, but the Office of Information said we were getting too -- too graphic. So, we ended up having to opt out on a couple things.

What we had intended was a -- you know, like -- something that would be a palm-size card or pocket-size card that could be distributed. We realized that 62 percent of the construction people in the country are not unionized and may not have access to information through that channel. So, we wanted to get something that would be easy to hand out from our compliance officers or through other channels that we might develop.

We've also translated the document. We have a summer intern here from Miami who just finished nursing school, and she was kind enough to translate this into Spanish for us. So, we now have one in English and one in Spanish, which we'll make available.

The plan at this point is for the information office to spruce this up a little bit. We're not graphic artists. We're content people. So, we gave it to them to make it look pretty. They're going to have that completed probably by -- unfortunately by mid-August. We got started on this late. So, it's probably going to be mid-August before those are ready.

In the meantime, we're going to put it up on the Web and at least have it available in the community, so that people can take it down from there.

The other part of her project was to try to pull together for the field people some resources that they could use in dealing with heat stress illnesses, both as background material, outreach material and so forth. So, we've developed quite a research file as a result of Trice's work, and we're going to be able to make that available to the field, and we're working on some different alternative ways of getting that distributed, but we've developed quite a resource file for the field's use on heat stress illnesses.

The other thing that I wanted to just let you know about that's also concurrent, our Office of Public Affairs is publishing what's -- the title here is "Department of Labor Helps Workers Cope With Summer Weather, OSHA Offers Cool Tips To Beat Workplace Heat", and this is one of our traditional news release-type things that will go out. This is widely distributed throughout the country and should be available, I think, even now. I'll pass this around, too. It went out June 30th. I'm sorry.

So, that's the -- that's the nature of my presentation. I'd be happy to answer questions, and I just wanted to close telling you all that we're very enthusiastic about this area. Certainly with the weather the way it is, it's a critical hazard for construction workers, and we're very concerned about that.

MR. BURKHAMMER: I would like to compliment you and your team. In my nine years of association with ACCSH, this is the first document that's came before this committee bi-lingual. So, I think that's something that should be commended.

MS. HANDELMAN: Thank you.

MS. WILLIAMS: Mr. Chairman?

MR. BURKHAMMER: Jane?

MS. WILLIAMS: May I offer a comment? We've been evaluating this for obvious reasons. One thing that has come out of our research is the lack of attention by employers on age grouping. They seem to think that's only a condition that affects older people, if older can be classified, but it is affecting a lot of younger construction workers and other areas where young people are very actively involved.

Are you giving considerations or just glancing quickly over these two pages, I don't see a warning not to confuse age as a factor in the ability --

MS. HANDELMAN: Well, you're right. You know, that is a misconception in the community, I think, at large, and, you know, we're -- the problem with the youth -- I mean we've -- we've addressed hazards to particularly young people in a number of fashions because they -- they are all dealing with this invincibility issue and the whole macho thing that gets into the way of trying to do the right thing.

But we just felt, I think, because of the size that we were limited in what we could include. It's certainly -- something like that could certainly be included in the materials we send to the field to just sort of a heads-up kind of thing, please pay attention to the fact that there's -- there's -- this is not a -- not necessarily age-related illness.

In fact, I think we -- I -- I don't know for sure, but it seems like the younger people would -- who might be in the summer jobs and so forth might be even at greater risk for lack of acclimation and so forth. So, I'll make a note and see that we have something in our field materials that addresses that.

MR. BURKHAMMER: Bob?

MR. MASTERSON: I was wondering if you all will also be addressing cold exposure prior to the onset of winter.

MS. HANDELMAN: Our office particularly?

MR. MASTERSON: Yes.

MS. HANDELMAN: We could -- we could take that under -- under consideration. Is that a problem that you think is important for -- to have some information out?

MR. MASTERSON: It would be very nice, and t here are several cases that I've run into where the lack of understanding of the impact of cold and wind has caused problems, yes.

MS. HANDELMAN: Okay. Thank you for the suggestion.

MR. BURKHAMMER: Larry?

MR. EDGINTON: A quick question. Is this targeted or the targeted audience for this is workers, employers or both?

MS. HANDELMAN: We try to make it for both.

MR. EDGINTON: Because I think you're right on track in terms of this notion of making something pocket-sized, and if memory serves me correct, I think the Center to Protect Workers Rights already has a pocket-sized heat stress information packet for construction workers, I believe.

MS. HANDELMAN: They do. The little blue one.

MR. EDGINTON: The little blue one.

MS. HANDELMAN: Yeah, hm-hmm.

MR. EDGINTON: Yeah. And I know it's been well received.

MS. HANDELMAN: Right.

MR. EDGINTON: We use it a lot, and I think other crafts do as well.

MS. HANDELMAN: Okay. Yeah. We did look at that and took some of the materials, you know, took some ideas from them.

MR. DEVORA: I'm assuming the palm card will be bi-lingual, also?

MS. HANDELMAN: Pardon me?

MR. DEVORA: The palm card would be bi-lingual, also?

MS. HANDELMAN: Yeah. Right. Be in English and Spanish, the two languages we chose, yeah.

MR. BURKHAMMER: Questions?

(No response)

MR. BURKHAMMER: Thank you.

MS. HANDELMAN: Thank you very much.

MR. BURKHAMMER: Break for lunch. If any of the audience has anything they would like to discuss with the committee or present, please write your name and topic on a sheet of paper and bring it up to me, and when we have the question and answer session at the end of the meeting, we'll call upon you to discuss what you wish to discuss.

Meeting adjourned for lunch.

(Whereupon, the meeting was recessed, to reconvene this same day, Wednesday, July 22nd, 1998.)

A F T E R N O O N S E S S I O N

MR. BURKHAMMER: Let's reconvene. If somebody will stick their head out the door and tell everybody to come in, I think we'll get started.

(Pause)

MR. BURKHAMMER: Next on the agenda is Berrien Zettler.

MR. SWANSON: Excuse me. We have about three things for Berrien to do, and it looks like he has recruited some assistants for part of that. If we could let Mr. Maddox go first on the recordkeeping proposal.

MR. BURKHAMMER: Yes, we can.

Other Reports (Continued)
OSHA's Strategic Plan for Construction

MR. MADDOX: Yes, just a brief update.

MR. SWANSON: You can give it to us in-depth if you'd rather, but a brief update is what they asked for.

MR. MADDOX: Basically the project is continuing on. It's been a very long-term project with notice of proposed rulemaking that was issued in 1996, followed by a comment period. We've been working on a final rule since that time.

We did issue a very limited rulemaking, the 1904.17, about a year ago, which simply required employers to send in their data when OSHA asked for it in support of the OSHA data initiative.

The most recent development is that the project has been kind of transferred administratively within the agency from the Office of Statistics to the Directorate of Policy, which is now kind of the lead directorate for the rule, and I've been assigned on a detail to Policy at the same time to work on it.

The issues for the construction industry are no different than they've been, you know, for many years. A lot of the issues are the same as they are for any industry. How are we going to redesign the form? How are we going to change the definitions of what gets recorded on the form? How do employees get to access the form? All those same sorts of -- of issues that way.

There are a few issues specific to construction. The concept of construction site logs or comprehensive records for an individual project, the exemptions for smaller employers in the proposal. We had different exemptions for construction than for general industry, and the definition of establishment, that I think are of particular concern.

MR. BURKHAMMER: When do you anticipate the final rule coming out?

MR. MADDOX: Our schedule right now is for the final rule to be published some time in the Spring of 1999, by somewhere between March and June, with the implementation on January 1 of 2000.

We have two large differences in time there in between publication and implementation, which will give us time not only to provide a lot of outreach to the employers and unions and so forth that are interested in the rule, but also to give us six months for the state plans to adopt a comparable rule, because this -- unlike a lot of rules, what we want to have here is we want to have all of the states come on board at the same time, whether they're in the federal jurisdiction or whether they're under a state plan.

So, we'd like to have all those things happen at the same time. We'd like for all of them to happen on a January 1st, since the records are kept on an annual basis.

MR. BURKHAMMER: Yeah. That was one of the recommendations that this committee made.

MR. MADDOX: Yes, it was.

MR. BURKHAMMER: Any comments or questions on recordkeeping? Felipe?

MR. DEVORA: Yes. Maybe I should address this to you. Is the requirement -- is this still the requirement for, say, the general contractor to maintain the records of the subcontractors of the multi-employer job site?

MR. MADDOX: Yeah. That was one of the proposal -- one of the parts of the proposal that came out in '96. It was for major construction projects to try and get --

MR. DEVORA: Define major construction projects.

MR. MADDOX: I'm not sure exactly how we defined it --

MR. DEVORA: Okay.

MR. MADDOX: -- in the proposal. It's been, you know, a continuing topic of discussion, is how to define what is a major construction project, whether by dollar value or some other means.

MR. BURKHAMMER: Yeah. It was a million dollars=.

MR. MADDOX: Yeah. Okay. Thanks.

MR. BURKHAMMER: When we -- when we first got into defining, we were looking at small, medium and large, and we figured that we couldn't do that. So, we looked at small and large, and then we decided that the best breaking point after listening to several people come forth was a million dollar project.

MR. MADDOX: In the docket, we had a lot of comments that a million dollars isn't a very large project.

MR. BURKHAMMER: Right.

MR. MADDOX: You know, some people recommended two, five, 10, if they supported the concept at all.

MR. BURKHAMMER: One of the comments from someone from California, and I can't remember who it was, you made, John, was the average home now in California's a million dollars. So, is that a large project? And that brought an interesting discussion among the stakeholders that were commenting on that particular thing, and -- and if it's a million dollar home, we looked at it as a large project. For a homebuilder, that would be a large project.

Now for Ryland or someone like that, it probably wouldn't be, but for a small contractor, a million dollar home would be a pretty big job.

Bob, would you like to comment on that? Use the -- you got to speak louder because of the noise.

MR. MASTERSON: A million dollar project for any homebuilder is a big house. I don't care whether you're Ryland or whoever. The problem that we had was how -- wasn't so much the recordkeeping, it was how it was structured so that you had to start relating to an individual house as a separate establishment. That meant if there was multiple posting requirements, that my posting requirements were whatever the -- you know, there was three forms times 8,000, and that's a lot of pieces of paper, and if my supervisor's handling paper, he can't be doing the job of walking houses, and which is more important?

MR. BURKHAMMER: One -- one of the things we discussed, and I don't know where we ended up on that, was in a tract where you're building multiple homes. The discussion was is one home one project or is the tract the project, and I think we settled on the tract was the project as long as it had a common --

MR. MADDOX: I don't -- I don't think that the proposal was specific on that either way, as to whether it was a home or an entire subdivision or a group of contiguous homes. You know, my -- my feeling on it is that it would not go down to a single home for a large subdivision.

MR. BURKHAMMER: Yeah.

MR. MADDOX: But I don't think that the proposal was probably as definitive on that subject as it probably could or should have been.

MR. BURKHAMMER: Well, I think you can gather from that we didn't miss much in our discussions. I mean we hit on everything you could think of when we -- and it took us -- well, we're in our ninth year now of working on this standard.

MR. MASTERSON: The only thing I was going to say is that it isn't so much how you define project as it was how you defined the establishment. Establishment was defined as any structure under construction for greater than 60 days, and that all of a sudden, every one of my houses is a separate establishment, and that's where it started throwing it in there.

MR. SMITH: I have a question.

MR. BURKHAMMER: Steve's first, then you.

MR. COOPER: What Owen was going to bring up probably is more important than mine. Bob, you need to refresh the committee's knowledge, I think most of us know, how many contractors do you have on a medium-sized residential home?

MR. MASTERSON: Well, to be honest with you, I can't give you a count. I can tell you how many across the country for me, and it's a little over 5,000.

MR. COOPER: On an individual home, just to build an individual home, how many contractors might you employ?

MR. MASTERSON: Could be as high as 50 in an individual home.

MR. COOPER: What was the answer?

MR. MASTERSON: Could be as high as 50 for one individual home.

MR. COOPER: 50 contractors? Thank you.

MR. BURKHAMMER: Any other questions or comments? Oh, wait a minute. Owen was next.

MR. SMITH: I understand that at one time, that you were required to reference the musculoskeletal disease -- disorders. Are you still going to require that?

MR. MADDOX: Yeah. The injuries and illnesses that are musculoskeletal disorders or CTDs, RSIs, that go under a variety of names, are recordable under the current system, and we also offer criteria for them being recorded under -- under the proposal are really very similar to what they are today.

You know, if you have a carpal tunnel injury or a tendinitis, and it results in medical treatment beyond first aid, transfer to another job, restriction of worker motion, those are recordable injuries and would continue to be so.

MR. BURKHAMMER: Yeah. We didn't change any of that. Felipe?

MR. DEVORA: Just to refresh my memory on this million dollar break, is that -- is that the break that you're -- that you're saying that the general contractor would be required to maintain the records for the subcontractors?

MR. MADDOX: Yeah. They're required to keep basically a real -- abbreviated report of each injury, you know, for all of the people that are working on that job, all of the subcontractors, you know, so they keep track of what was the person's name, did they die or not, you know, and who did they work for, you know. So, it would be very, very abbreviated record.

You know, the question we had a minute ago was how many subcontractors might there be on one home. That's a very interesting question. The other question is how many workplace injuries are there on an individual project? You know, on the average home or on the average bridge or on the average skyscraper. Nobody knows because there's no records that are arrayed that way. The records are arrayed by employer, and, so, nobody knows what the relative risk is of these different types of construction.

MR. DEVORA: Aren't each -- isn't each employer required on OSHA 200 to provide that?

MR. BURKHAMMER: 10 or more employees.

MR. DEVORA: 10 or more?

MR. MADDOX: Yeah. An employer with 10 or more would keep records, but they would not have to necessarily keep them by project. They would only keep records for an individual project if they were going to expect it to be there for a year or longer.

MR. DEVORA: So, now the general contractor

--

MR. MADDOX: So, -- so, yeah. So, for example, a general contractor --

MR. DEVORA: Would it be --

MR. MADDOX: A general contractor might have one log that encompasses 10-20-30-40 projects in the same way with an individual sub. There's no way to pull those back together to create a record of which kind of projects the injuries are --

MR. DEVORA: And you're assuming the general contractor will be able to do that in a more -- implement that in a more organized fashion --

MR. MADDOX: That was the concept.

MR. DEVORA: -- assuming you have 50 -- 50 subcontractors on -- on 14 different sites, 15 times 14, on jobs that last -- on a million dollar job that would last for three months?

MR. MADDOX: That was the basic concept, yes, to ask the general contractor to keep a short record of all the people that got hurt on the job.

MR. DEVORA: I hope we don't finish the job before we pull all that information together.

MR. BURKHAMMER: Bob?

MR. MASTERSON: How do you propose to ensure that there's not double entries? Double entries in the sense that we used to talk to these small builders, like -- small contractors. The general contractor may or may not ever become aware that there was a minor injury on the site. Particularly with residential construction, it's not unusual for supervisors to have multiple sites.

MR. MADDOX: I think those are exactly the comments that got fleshed out in the docket during our comment period, and that was one of the -- one of the real problems, is how does the general contractor learn about injuries that occur to the subs, you know? How are the subs supposed to report them? Should the subs be required to report them? You know, there were a variety of these issues that came out in -- in the public meetings that we held during the comment period and in the written comments, you know. So that it's very full on that type of issue, and, you know, the question is where are we going to decide on the final rule, and, you know, I think it would be inappropriate to discuss that until those decisions are made and approved by OMB and the assistant secretary.

MR. MASTERSON: Well, again, I'm going to go back to keeping the records straight because we've tried different things ourselves with the small contractors, and what happens is they start turning in reports that they had 10 injuries that year or 10 injuries that month. That same report goes to everybody that's asking for the information.

So, do you record all 10 of them or do you split it up amongst five different communities or do you split it up amongst 10 different builders? Those small contractors that you're talking about aren't required to keep logs. They don't keep logs. So, they're just going to pencil a piece of paper and hand it in to the general contractor, and you're going to get duplicate entries all the way across the board. If your data's skewed now, it's going to be far worse.

MR. MADDOX: So, those small contractors don't know where their injuries occurred, what job sites?

MR. MASTERSON: That's not what I said. What I said is that they're going to turn -- excuse me -- the same list of injuries in to every builder they work for, and when you have that happen, you're going to get one contractor that may work for 15 different general contractors, and all 15 of them are going to get the same thing.

How are you going to assure the accuracy of the data you're counting?

MR. MADDOX: All that we're requiring the general to do is to record those injuries that occurred on his job. Hopefully he can sort that out when he gets a report like that from the subcontractor, I would think.

MR. MASTERSON: If -- yeah. He'll get a report from the -- from the contractor, and that same report goes to all 15 generals that the contractor works for.

MR. MADDOX: And you think all 15 generals would be willing to record that same injury?

MR. MASTERSON: They probably won't have any choice.

MR. RHOTEN: Why would the subcontractor turn in 15 -- to 15 different general contractors on housing an injury that happened on a particular site?

MR. MASTERSON: Because they don't keep records of it.

MR. RHOTEN: Well, I can tell you that they do. They know where those hours are on those sites. They know how many hours it takes a plumber -- they know who to charge the money to. They've got records on that, and they can tell you if you're a day behind.

MR. MASTERSON: Bill, I don't want to argue with you. No, they don't.

MR. RHOTEN: Yes, they do.

MR. MASTERSON: There's a lot of them we have to remind them to bill us. So, there's a lot of very small contractors out there that don't keep those records. They're working on a per house bid, and all they know is when the house is done, and they submit the invoice, and that's the extent of it. When you start asking them to track injuries, they lose track of them.

MR. RHOTEN: They submit the invoice before the person did the work is my point. The subcontractor that has a foreman out on the job site, and he gets hurt on that site, he knows what site he got hurt on.

MR. MASTERSON: That has not been my experience.

MR. RHOTEN: Well, they know where every hour is that is spent on a particular site.

MR. MASTERSON: Well, obviously you haven't worked for the same contractors we have worked with.

The point being is and my question is, how are you going to assure the accuracy of the data? If you're getting bad data, what good is all this paper work?

MR. MADDOX: The accuracy of the data is definitely the primary concern, and we'll be making those decisions based on the input that we have in the docket when we had a comment period from the proposed rule as it's supposed to happen. We've got a docket that has 450 written comments in it, and I believe that somewhere around a hundred of them are from the construction industry and discuss this issue.

So, it's -- all of the issues are very fully discussed. You've got your own comments that were entered at that time, and during the public meeting, and that's what we'll be basing our decision on.

MR. SMITH: Are you requesting that the sub report to the prime only those injuries that occur on his project? I think that's what you're saying.

MR. RHOTEN: That's my point.

MR. SMITH: And his concern is that if the sub is working for more than one prime, that he will -- he'll make out one report, and he'll pass it around -- if he only had one injury, and he just passes it out -- passed the paper so that the material that you receive will show you the 10 or 15 injuries, one actual, but it would be more simply because the guy turns it into more people. That's -- that's the possibility.

MR. RHOTEN: But you would think that the guy that turned it in would put a job site location on it. That's the whole purpose of it, and I agree the thing might not be perfect, but we don't have anything now. So, even if it's slightly flawed, we're going to be a lot better off than we were before.

MR. BURKHAMMER: Jane?

MS. WILLIAMS: My concern is your statement that you're requesting it of the sub, but you're requiring it of the general. If you're going to require a general to track it, you must require the subcontractor to provide it, otherwise you get in a catchall situation that's very difficult for compliance and would be cited against that general for lack of its response.

MR. MADDOX: A very common comment in the docket.

MR. BURKHAMMER: Any other comments on recordkeeping?

(No response)

MR. BURKHAMMER: Thank you.

MR. MADDOX: Thank you, sir.

MR. BURKHAMMER: Berrien, welcome.

MR. ZETTLER: Thank you.

I have been asked by the group to talk about the Strategic Plan that OSHA has been working on for a number of years now.

As a result of the Government Performance and Results Act of 1994, all agencies are now required to develop five-year strategic plans. There's a hand-out coming around which will be the basis for -- upon which I will make my comments. I'll make references to pages and the like. So, as soon as that gets handed out, we will start the actual presentation.

But just by way of background, once again the -- the -- all government agencies are required to develop a five-year plan, which will lay out the accomplishments that they hope to achieve to accomplish their mission over that period of time.

The goals and objectives which the agencies are required to develop in their five-year plan will be used under the Act, will be used as a basis for the Congress to consider when their appropriations bills come up. So, the success or failure of an agency to meet the goals and objectives that it sets out could affect the -- the budget that that agency might be awarded in future years.

So, it's a -- it's something that is -- that all of the agencies ought to be taking very seriously, and certainly OSHA has taken very seriously.

We've spent now probably a year and a half to two years because we actually started a little bit ahead of most of the agencies because we were a pilot project under the -- we call it GPRA, which is again the Government Performance and Results Act.

OSHA was one of two pilot agencies, and we were able to get a kind of a head start on a lot of agencies because we were a pilot agency. But our real work of developing the goals and objectives really started about in -- in 1996, and we have spent, as I say, about a year and a half developing the goals and -- and objectives which we will be talking about in a few minutes.

The context within which OSHA develops its goals and objectives is the Department of Labor because the GPRA Act requires the department to have all of its agencies integrated into its department -- its goals and objectives. So, there is the -- there's kind of like an umbrella goal and objective package which is the -- the Department of Labor's, and then each one of the agencies within the Department of Labor had to submit a package to the department of their own goals and objectives, all of which then had to be integrated into the department's goals and objectives.

So, that's -- that's kind of the background, the setting within which we will -- we will talk about -- I'll talk about the specific goals and objectives.

One of the goals and objectives that the department set out was a -- a -- a goal of -- of improving workplace conditions and quality of life, if you will, and safety -- the safety and health of workers fits under -- generally under that goal, which is the third goal for the Department of Labor.

If we turn now to the hand-out I just gave you to Page 5, I'm going to skip -- the first several pages are kind of like background. They're general comments about what is the mission of the agency, and -- and how we in general hope to obtain our goals and objectives, which is very much -- very much dependent upon stakeholder support and input.

OSHA -- OSHA, I think, and GPRA is intended to do this, is to drive the agency away from a -- a dependency purely on itself to accomplish its goals and objectives. In order for the agency to successfully accomplish its goals and objectives, we must be able to solicit and obtain the support of our stakeholders, which is one of the primary reasons, of course, why we want to go over this with -- with -- with ACCSH.

So, turning to Page 5, there are -- basically, there are three general goals which the agency, OSHA, has set out to accomplish or to assist in accomplishing, to help accomplish the third goal of the Department of Labor.

The way this plan has been developed, all of those goals are inter-dependent. We -- we will be unable to achieve any particular goal unless we are able to achieve all of the goals. They are very closely related to one another as you'll see when we turn to the specific goals.

So, it's going to be important for the agency to keep very -- to keep its eye very, very closely trained on what these -- these objectives -- goals and objectives are because if we slip up on one, we may slip up on all three of the goals.

Again, I would like to emphasize that -- and I hope that -- that the kind of relationship we've had with -- with ACCSH in the past will make it even easier in the construction industry than perhaps in other industries, but this -- these things depend very much -- all of our goals depend very much on -- on stakeholder support.

There is a large element of partnership. There's a large element of outreach. There's a large element of the kinds of things that we will need assistance and help from stakeholders to accomplish.

Let's turn now to Page 6, the next page, and this gives you -- on the next page, there are three bullet points after the first paragraph. Those are general statements of the three goals which the agency has set out for itself. We'll talk about the objectives or strategies, if you will, when we discuss these in greater detail.

The first goal is to improve workplace safety and health for all workers as evidenced by fewer hazards, reduced exposures, fewer injuries, illnesses and fatalities.

The second goal is to change workplace culture, to increase employer and worker awareness of, commitment to, and involvement in safety and health.

The third goal is to secure public confidence through excellence in the development and delivery of OSHA's programs and services.

I think just reading those three goals, you can see how inter-dependent they are, that if, for example, the -- the agency fails to deliver its programs and services effectively, then that could very well have an effect on -- on the -- the workplace improvement of safety and health. So, all of these things are very closely related.

Turning now to Page 7, and we're now going to deal with the first goal, the first OSHA goal. Improving workplace safety and health for all workers as evidenced by fewer hazards, reduced exposures, fewer injuries, illnesses and fatalities.

Each one of those goals -- excuse me. Each one of those sub-goals, if you will, or -- or specific -- specific issues under that goal have associated with them a number of objectives. The objectives you will see laid out as 1.1A and so on through the rest of that page and on to the top of the next page.

I just want to review those real quickly without spending a great deal of -- of time on them. The first objective is to -- is to reduce injuries and causes of illness by 15 percent within selected industries and occupations.

Now, that is a goal which cuts across industries. This is not a goal which focuses on specific industries. It rather focuses on specific causes of injury or illness.

The three that have been identified are amputations, lead and silica. Those are -- are widely diversified hazards in many different industries. So that -- so that both general industry, construction and maritime will have a program that will -- will -- will focus on these three injuries or illnesses within -- within their particular industry. This is not specific to any given industry.

When we turn to 1.1B, that is to reduce injuries and illnesses by 15 percent in five industries that are characterized by high hazard workplaces. So, we now move from the hazard, which was the first goal, to the -- to the workplace, and now when we turn to workplaces, we are talking about specific industries.

In this particular case, construction is one of those five industries. The others, for your information, are food processing, shipyards, nursing homes and logging. Those are the five industries with very high rates of -- of injuries and illnesses, and those are the ones which we have focused on for the workplace fixes, if you will.

Now construction has one that is specific to it. Construction is the only one -- the only industry which has a 15-percent reduction in fatalities. So, not only does construction have the responsibility under 1.1B to reduce illnesses and injuries by 15 percent, we have an added goal or objective of reducing fatalities by 15 percent as well.

Now the fatalities that we'll be focusing on are not all fatalities but those fatalities which are related to the four primary causes of fatalities in the construction industry which are the same four causes of injuries that are also at the basis of the focused inspection program. That's falls, struck by, crushed by and electrocutions.

The agency, in addition to that, has a number of agency-wide goals. 1.1D refers to a 20-percent reduction in those 100,000 workplaces which we will visit. The agency does some 20,000 inspections -- or different workplaces, some 20,000 workplaces a year, roughly. By 2002, we will have done therefore a 100,000 workplaces, where we actually do some kind of intervention.

Now that does not necessarily mean only inspections. It means consultation. It means -- it means any kind of intervention which takes place in -- in a workplace.

As a result of those interventions, the agency has set a goal for itself or an objective for itself to reduce injuries and illnesses in those facilities by 20 percent, which means that we will be tracking the injury and illness records in those 100,000 workplaces at an increment of roughly 20,000 per year.

Now, 1.1E is -- is another requirement, and it's a separate requirement, actually, under -- under the GPRA implementation procedures, and that is that the agency will evaluate each standard that it puts into place within four years of the effective date, will -- will evaluate that standard as to its effectiveness in reducing injuries and illnesses in the workplaces which are covered by that standard.

You already begin to see that in all of these objectives -- and this is going to continue throughout the paper, you already begin to see that this is going to require an immense amount of data, that OSHA is going to have to be getting lots and lots of data to be able to track all this stuff, and that puts us into one of our first rather odd conflicts because the Congress that passed the Government Performance and Results Act also passed an act called the Paperwork Reduction Act.

The Paperwork Reduction Act includes as paperwork data that is -- is gathered by the agency from -- from non-governmental sources. So, for example, gathering data does count, even on -- even on something that we need to measure a goal that we're required to establish under GPRA. It does count as a paperwork burden to get -- to gather the data that we need to support the effective accomplishment of the objective. So, that's one of the things that the agency also has to be attendant to when we -- when we do these things.

It's not that we can't increase paperwork burden in -- on -- for these particular things. It's just that the total burden, the total burden that the agency places on -- on the -- its clients, that burden cannot increase. So, where you increase burden in one place, you have to decrease it in another place, and indeed you have to do more than that because we have objectives of reducing by 25 percent or some percentage number, depending on the year, the outyear we are, to get -- to get our paper -- our total paperwork burden down.

So, it's quite a challenge to the agency to figure out a way to get the data that we need to measure our success in accomplishing our objectives, and at the same time not to increase the paperwork burden on -- on the private sector.

1.1F, reduce injuries and illnesses in establishments that participate in local strategic initiatives. What that refers to is, as you know, the agency is in the process of rolling out as we say our area offices under our reinvention procedure.

Part of that process involves the area offices developing local strategic initiatives, figuring out new ways of dealing with the -- the -- the problem areas, if you will, within their -- their particular area office jurisdiction.

One of the -- one of the best examples of that is in one of our New Jersey offices, we -- we undertook, in addition to establish a relationship with the state patrol in that particular state where the state patrol would indicate to us, would make referrals, if you will, to us after -- after first attempting to obtain correction themselves, will make referrals to OSHA if, for example, on a highway construction project, motorists are going too fast or -- or -- and/or people aren't wearing their orange vests or the warning signs have not been put in place, and that kind of thing.

So, we're trying to develop initiatives like that which will engage other safety conscious people in the process of helping us reduce injuries and illnesses, and -- and that's only one example. Many of the area offices have examples like that where -- where they are -- they are doing these -- these kinds of local strategic initiatives.

Under 1G, we have one of our areas where we do not yet have a -- a measure or an objective. The way this state -- the way this strategic plan has been crafted, it is a federal strategic plan. We are encouraging the states, in fact the states would be required to the degree that they receive federal money, would be required to develop a strategic plan. It need not be the same as the federal plan, but they will be required to have a strategic plan in place, and we're trying to figure out how we would help the states deal with that.

One -- we assume because it -- it's sort of intuitive that the states plans will also have to deal with reducing injuries and illnesses. I mean it doesn't make much sense to have a safety and health plan which wouldn't result in the reduction in injuries and illnesses.

So, we have to figure out what does OSHA want to do, and what do the states want to do with incorporating reductions in injuries and illnesses that result from a state strategic plan, how do we want to count that? Do we want to count that -- because we have to make a report to Congress annually. We have to make an annual report to Congress on -- on our -- the success or failure with respect to the different -- the different objectives.

Not specifically related to construction but which could be peripherally related to construction is 1.2A, which is the next goal.

MR. SWANSON: Berrien, may I interrupt you? Before you go on to 1.2 and walk us through that, if we can have just a couple of moments. We have been joined by our chief of staff, and I know she has a 2:00 meeting. If she could join you at the witness table and be introduced to ACCSH, it would be appreciated. Sorry to stop you, Berrien.

MR. BURKHAMMER: We are very pleased to have a special guest this afternoon, and she's taken time out of her schedule to join us. Mary Carol Lewis, Secretary Jeffress' chief of staff. Welcome.

MS. LEWIS: Thank you. Look forward to working with you. Didn't mean to interrupt your meeting. Some of you I know, some of you I don't know, and I'm looking forward to meeting you and working with you in my capacity here. Anything I can do, let me know. I really didn't mean to interrupt you, Berrien.

MR. SWANSON: He probably wanted a break. Yeah. You want a glass of water or something I can get you, Berrien? It's redundant, but because she doesn't know all of you, why don't we -- Bill, walk around the table again and by name and organization.

MR. RHOTEN: My name's Bill Rhoten, and I'm with the Plumbers and Pipefitters.

MR. SMITH: My name is Owen Smith. I'm a painting contractor from Los Angeles.

MR. MASTERSON: My name's Bob Masterson, and I'm with the Ryland Company.

MR. EVANS: Danny Evans, Chief Administrative Officer of OSH Enforcement, State of Nevada.

MR. DEVORA: Felipe Devora, Fretz Construction Company, General Contractor, Houston, Texas.

MS. HARRINGTON: Gladys Harrington, Operating Engineer, Long Island.

MR. BURKHAMMER: Stu Burkhammer, Bechtel.

MR. SWANSON: Unfortunately for me, she knows me.

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

MR. COOPER: Steve Cooper, Iron Workers.

MS. WILLIAMS: Jane Williams, A to Z Safety.

MR. EDGINTON: Larry Edginton, International Union of Operating Engineers.

MS. LEWIS: Thank you, and I am new on the scene. I've only been here since April 20th, and I'm getting up to speed as quickly as I can, and this is the first time you've met since I've been here. So, I appreciate you taking the time to introduce yourselves, and we look forward to working together.

MR. SWANSON: Thank you for stopping by.

MS. LEWIS: Thank you. I'd like to join you at future meetings.

MR. BURKHAMMER: Thank you.

MR. MASTERSON: Before you go on there, could I get some clarification? I need you to back up to 1.1A. Did I understand you correctly that three specific areas that you have identified on 1.1A was lead, silica and amputations?

MR. ZETTLER: Correct.

MR. MASTERSON: And in those three areas, you're going to achieve or you want to achieve a 15-percent reduction?

MR. ZETTLER: That's correct.

MR. MASTERSON: That will be accomplished in the five industries underneath?

MR. ZETTLER: No. That will be accomplished wherever amputations, lead and silica are found. We -- we -- we are hoping -- and we already have made some -- I mean we can -- we already know pretty much where -- in a general way at least where silica, lead -- silica and lead are found. We know the general industries where those are found. We know what kinds of operations involve those.

So, we will be looking across, including construction, we will be looking across many industries at silica and the -- and the illnesses that result -- the exposures really. We -- what we're really going to be looking at is the 15-percent reduction in exposure because -- because we can't really measure the illness effect of silica because it's a long-term effect, as you know.

But -- but those will not be in these five industries. In fact, one could argue that at least some of these five industries don't have lead or silica problems.

MR. MASTERSON: Absolutely, and that's what I was trying to understand, is what nursing homes were doing in as part of the group being looked at to reduce lead, silica and amputations.

MR. ZETTLER: That's right, and they would not be. Those are -- the -- 1.1A looks at hazards across the board. 1.2 looks at specific workplaces within certain industries. So, there's a whole different set of hazards there, and it would -- it might involve -- some of them might involve lead, amputations and silica, but most probably will not.

MR. MASTERSON: Do you think that this could be written up in more plain language --

MR. ZETTLER: Yeah.

MR. MASTERSON: -- to tell us what you're trying to accomplish?

MR. ZETTLER: Right. Yes. I should say that -- I should have said that up front. What -- what you have here is a -- is a kind of an outline document which is primarily a report. It's intended to be given to -- to Congress or to whomever else the agency wants to report on.

There is a whole detailed back-up to this which includes the measures, what each step involves. There's a looseleaf binder that's about that thick with all of the back-up stuff. I -- I have not -- I didn't bring that with me because I just didn't think we had time, but -- but that could be made available to anybody who wishes to look at the whole Strategic Plan.

MR. MASTERSON: Is some of that the tables that were provided to us earlier? Stu, do you know the tables I'm talking about.

MR. BURKHAMMER: Yes.

MR. ZETTLER: I don't know because I don't know what tables you're referring to.

MR. MASTERSON: The reason I'm drawing this

-- going back to this is I went through -- thoroughly went through Tables 1 and 2 for OSHA's strategy for fiscal year 1999 performance plans, and that actually made it harder to understand than what you've got here, and I'm trying to figure out, you know, -- and that was supposed to be after the plain English translation was put on to it.

MR. ZETTLER: Surely you're not suggesting that it's not in plain English?

MR. MASTERSON: Well, they're English words, but it's -- I have a very difficult time following what was going to be accomplished.

MR. BURKHAMMER: Berrien, what -- what he's referring to is the performance measure matrix charts.

MR. SWANSON: I think they were provided with a copy of the performance plan, a derivative of the Strategic Plan that you're outlining.

MR. ZETTLER: Yeah. They may very well have been. I apologize for not having familiarized myself with the hand -- that particular hand-out. But I can look at it afterwards, and we can maybe resolve some differences that way, but I apologize for not having done that.

MR. MASTERSON: All right. 1.1D, at least a 20-percent reduction in injuries and illnesses in at least a 100,000 workplaces where the agency initiates a major intervention.

How do you plan on tracking that when a lot of those employers that you'll be working with are well under that 10 employee mark and aren't required to keep records?

MR. ZETTLER: Right. What -- what we are -- what we will be attempting to do is get either voluntarily for those who don't keep the records or -- or if they do keep the records, a copy of their records.

We -- we have not fully worked out how we're going to do that particular tracking for a variety of reasons. The agency has not traditionally collected even OSHA 200 data on every -- on every employer, particularly in the construction industry. Most of -- most obviously because we do not -- many, many construction companies, as you know, don't keep their records on site. They keep their records back at their office, and OSHA often does not go back to their office to collect those records. So, there are a lot of logistical problems which we'll have to solve in order to do this.

The question of the small employer is not required to keep records is certainly a problem for us, and it may be that we will just simply exclude the small employers and try to -- try to focus on the large ones. I don't know. That question has not yet been answered.

There are a number of questions on that -- particularly on that issue that we don't have the answer to yet.

MR. MASTERSON: I sympathize with your problem. The amount of paper generated here and what appears to be on the recordkeeping requirements, you're probably going to totally offset anything you've ever done to reduce paperwork.

MR. BURKHAMMER: Berrien, what -- this morning, I don't know whether you were present or not when Steve asked the question on the slide presentation of how you were going to reduce -- not you personally but how the agency was going to reduce by 15 percent injuries and illnesses in the workplace, and employers basically do strategic plans, and we do -- at Bechtel, we do three- and five-year strategic plans, and I'm very careful in saying words like reduce, affect, develop, things where I personally am held responsible for doing a certain thing, and words are everything, and I'm just curious as to how an agency, a governmental agency, who -- and you indicated the Congress is going to get this plan, and they're ultimately the agency's boss, I assume, the Department of Labor.

If I were to tell my boss I was going to reduce injuries by 15 percent, I would be held accountable for that, and I just don't see how the agency can -- can go out and reduce injuries and illnesses that are controlled by a contractor, controlled by an employer. The workers work for the contractor. The contractor implements or does not implement a safety and health program, and I think you're holding yourself up to a -- to a criteria or to an objective that's going to be damn hard to meet.

MR. ZETTLER: Unfortunately, we were not given the option. The Congress requires the agency to lay out its goals and objectives in outcome terms, which means that we have to say it this way.

The agency cannot say we'll try to get a 15-percent reduction. Under the law, we have to say that -- that -- the whole point is precisely to hold the agency responsible for whatever it claims.

We -- we have tried to -- the only thing -- the only option that the agency had is to try to get a number it thought it could reach, not what -- how the language would be.

We -- we were required to say reduce by such and such an amount. That's just -- that's the way the law is written. That's what Congress wanted us to do. We did try to -- try to wrestle with this, and there was a lot of wrestling about it, too, believe me, because 15 percent is not a small number.

MR. BURKHAMMER: That's right.

MR. ZETTLER: But -- but on the other hand, anything less than 15 percent, we felt, would not be accepted as a credible number. We thought 15 percent was pushing it down low.

So, you know, we were kind of between a rock and a hard place on this particular one.

MR. BURKHAMMER: Okay. Thank you. Please continue.

MR. ZETTLER: Okay. Are there any more questions on 1.A or 1.1?

MR. EVANS: I have -- I have a question. What is the definition of a major intervention?

MR. ZETTLER: I don't mean to be facetious, but it's almost anything the agency does. In any -- any inspection will count as a major intervention. Any consultation visit will count as a major intervention. Any voluntary protection program or other voluntary safety and health process where the agency does an on-site visit will count as one.

So, I mean there's a whole variety -- almost anything the agency does --

MR. BUCHET: Any long telephone calls.

MR. ZETTLER: Well, it won't include -- it has to be an on-site -- there has to be an on-site visit for it to be a major intervention.

MR. EVANS: So, a fax and phone resolution wouldn't count?

MR. ZETTLER: Would not count. Although there is -- there is -- that is still a not entirely resolved issue because there -- there is a -- a fairly strong feeling in the agency that -- that phone and fax ought to count, also, because it produces an effect, a safety effect in the work place, and really I think that the key -- the key issue is going to be does it or does it not have the potential to produce a key -- a safety and health change in the work place.

MR. EVANS: Well, I'm glad to see that somebody's finally found a definition because we've been asking from the state plan state programs for over a year now that -- to define that, and nobody's been able to do that.

MR. ZETTLER: I'm not sure I was successful either, but, anyway, the problem with all this is -- one of the problems with definitions and even with the -- with the objectives that are being set out is that these will -- these are acknowledged by almost everyone, that the goal is going to be -- I mean the target's going to be a moving target.

I mean we are allowed each year -- the Congress allows us to make adjustments each year as -- as necessary. That does not mean we won't be held accountable for that year's goal, but it does mean that we can make adjustments as reality shows it necessary to make adjustments.

I'm over my time, and I'm not even halfway through.

MR. BURKHAMMER: No. That's -- I think this is an important issue, and we --

MR. SWANSON: May -- may I suggest, however, we've got two solicitors here, though, that are probably billing us by the hour, Berrien. If -- is it possible, Mr. Chairman, to take a break here? I know that the 3:15 time slot has already been covered this morning. So, if we could interrupt, let the learned counsel make their presentation to us on Multi-Employers, and then pick this up again. Is that possible?

MR. BURKHAMMER: Berrien, does that throw you off?

MR. ZETTLER: No. That's possible. I'm in the habit of doing what my boss suggests.

MR. BURKHAMMER: That could be an initiative. Thank you, Berrien. Why don't we take a short break? Come back at 10 after, and we'll go into the Multi-Employer Policy.

Multi-Employer Citation Policy - Discussion of the
IBP Decision and its Impact on Enforcement in Construction

MR. JUSTH: And every night clean the equipment, and IBP knew that they were not in fact following the lock-out tag-out requirements, and they would sometimes tell the contractor supervisors your employees aren't following lock-out and tag-out. The supervisors would say we'll do better, but they didn't do better, and this persisted for a period of several years, until about -- in 1993, when a contractor employee was killed during the cleaning process.

So, OSHA cited IBP not because IBP's employees were exposed to any hazard but on the basis that IBP controlled this hazard, that IBP had agreed in the settlement agreement that it would enforce lock-out tag-out requirements against the contractor, that IBP's contract allowed it to suspend or discontinue the contract if the contractor did not follow lock-out tag-out requirements.

The Review Commission found that IBP violated the lock-out tag-out standard, and IBP appealed it to the D.C. Circuit. There were two fundamental arguments that IBP raised.

One attacked the entire idea of the multi-employer doctrine, the whole idea of the liability should be based on creation or control rather than employee exposure. They argued, and they were supported in this argument by a number of amici, including the Associated General Contractors of America, that the OSH Act itself only permitted an employer to be found liable for a violation if that employer's own employees where exposed to the hazard, that there was no such thing as liability based on creation or control of hazards. It was solely based on employee exposure.

The court did not resolve that issue. They said they didn't have to reach in this case, and they were not going to reach it, but they did in their decision imply that they thought there could well be merit to the argument, based on statutory language. In particular, language in the statute that talks about employers and employees.

They seemed to read this as saying that because the Act talks in terms of employers and employees, that it thinks of liability in terms of an employer and their own employees. So, they left that issue to be resolved another day, but they did indicate that they thought there might well be merit in that issue.

They vacated the citation based on the idea that IBP in their view did not control this hazard. For this court, it wasn't enough that IBP had contractual -- had a contract with the contractor that required them to enforce lock-out tag-out and that allowed them to suspend the contract if IBP -- if the contractor did not follow lock-out tag-out.

They referred to suspension of the contractor as trying to hit a small target with a howitzer. They thought that that was overkill, that it just shouldn't be necessary, that it should be enough to hold the contractor responsible and not the company who hired the contractor.

So, what are the implications? This was not a construction case, as I said, but it does have implications for the application of the multi-employer doctrine on construction sites.

First, basically the court is inviting additional cases, additional employers to argue that the whole multi-employer doctrine isn't found under the statute, and there are cases in the pipeline where employers are making that argument, and those are going to continue to get to the courts, and we'll just have to wait and see.

We think we're on fairly solid ground on that argument. To accept that argument would have some major implications for a lot of OSHA standards. For example, the hazard communication standard says that chemical manufacturers have to evaluate the hazards of the chemicals that they do and notify downstream employers of those hazards.

If an employer can only be responsible if their own employees are exposed, then OSHA could not create a duty and a standard that ran to the benefit of downstream employees, that required an employer to do something that would only benefit downstream employees.

In one of the more perverse examples I can think of would be back-up alarms. You've got one company maybe operating equipment that's required to have back-up alarms, but the people that are walking around this equipment may not be employed by that company. They may be employed by somebody else. To disconnect, you know, the responsibility for complying with the standard from the operation of that equipment and to say that the people responsible for complying with that standard are the ones whose employees may be affected by the absence of back-up alarms would obviously not be a very productive way to approach workplace safety.

Perhaps the more direct impact of the IBP decision has is on their idea that control of hazards cannot be tied to contractual responsibility for the abatement of hazards. On construction sites, many construction sites, a general contractor by contract can order contractors to abate hazards.

This decision seems to suggest that that relationship alone, the contract the general contractor has, would not be a basis for finding the contractor to control the hazards. It would not be a basis for citing the general contractor, and this could lead to confusion on construction sites as to whether the sub-contractors really have to follow the direction of the general contractor.

There's one case now being litigated in the Court of Appeals for the 10th Circuit, which is in Denver, involving this very point. In that case, the general contractor was cited because subcontractor employees were working on a variable lift and were not tied off. Only the subcontractor employees were exposed, and the subcontractor's relying on IBP to say that they cannot be held responsible for the subcontractor's employees not tying off.

Now, there could in some circumstances be a certain logic to this. If a general contractor doesn't know the subcontractor's employees are not tied off, if it's simply a short transitory violation, then perhaps the general contractor shouldn't be responsible, but in this particular case, the general contractor knew it was going on and took no steps to require the subcontractor to comply with the standard. So, we think that, you know, this is a case where the general contractor clearly should be held liable.

So, one of the things that is happening after IBP is that certain attorneys who represent employers in these cases now are becoming much more aware that this is an issue that they could perhaps win on whereas they couldn't win before. So, we're seeing more and more cases coming through the pipeline involving these issues, and as I said before, I think we can anticipate there will be a number of other court decisions on this within the next couple of years.

Are there any questions at this point?

MR. BURKHAMMER: Steve?

MR. COOPER: Very refreshing to get a -- a very quick and understandable response from the Solicitor's Office. Thank you very much.

MR. JUSTH: You're welcome.

MR. BURKHAMMER: You haven't heard Noah yet.

Any other comments or questions?

(No response)

MR. BURKHAMMER: Looks like you get off easy.

MR. JUSTH: Okay. Well, thank you.

MR. CONNELL: I would just highlight a couple of things. One is that in the IBP case, the court said that -- the court really focused on the fact that the only contractual -- in their view, the only contractual control that IBP had over the contractor was this right to terminate the contract, and the court highlighted several instances that were documented in the record where IBP supervisors had attempted to get the contractor's employees to follow safety requirements, and the contractor employees in no uncertain terms indicated to the IBP supervisors that they were not interested in their advice as to how to do their job.

I'd also note that in the IBP case, the contractor worked at night, and I believe they were the only contractor in the plant at the time when they were in there.

So, in rather stark contrast to the typical construction situation where you have a number of contractors operating, they were the only ones in the plant at the time, other than the IBP -- some IBP supervisors.

The court also indicated and noted that there was less of a history of the multi-employer doctrine in the general industry context than in construction. They noted that it had been -- there were a couple of cases, but -- but they did note that there was less of a history with the doctrine in general industry, and I would note that, as the court did, that there are other appellate courts that have recognized the viability of the multi-employer doctrine in construction.

So, that's just, you know, while the court said some -- as Bruce said, made some pretty clear indications that they had some -- some doubts about the viability of the doctrine, other courts have not hesitated to uphold it.

MR. DEVORA: Noah, you make a good case for construction sites. On the other way, in terms of there are more people, there are more subcontractors on the site during the day, and you're holding the general contractor with supervisory capacity, more things that could get passed to him because of -- because of the job, because of the way the job is being handled, and it's obvious that there's going to be -- unlike IBP, where there was just a few people watching the process, and you're saying on big construction site where there's many more contractors, are you saying, if I hear you correctly, that the general contractor should be more aware of what's going on because there's more people than less people?

MR. CONNELL: No, no, I wasn't addressing that aspect of it. I was just noting that when the court -- the court was focusing on the issue of control, the extent to which the general contractor -- the -- the host employer in that case could control this contract, and I think when you -- when you look at the application of the multi-employer doctrine in general industry, one of the things that -- that sort of naturally comes to mind is, well, how is this similar to the situation in construction, where it has a longer history, and it's very dissimilar. That case was very dissimilar in this regard.

It speaks to -- to some extent, it speaks to the necessity, the need, for a multi-employer doctrine. It speaks to how is this Occupational Safety and Health Act going to be a viable tool for safety in the construction versus in general industry.

MR. DEVORA: I guess the problem I'm having is you're saying that, if I'm hearing you correctly, you're saying that contractually or as a controlling employer, relegating that responsibility to the general contractor and taking it away from the subcontractors, that that's going to enhance on-site safety?

MR. CONNELL: No, no, no. What I mean -- what I meant to say was that in IBP, one of the ways of looking at that situation was at one time during the day, you have one employer with its employees. Then at a very specific time, basically all of the -- almost all of those employees depart. Now you have a different employer coming into the premises to do a specific task.

I'm only suggesting that conceptually, that's a different picture than the typical construction site much of the time when you have a number of different employers operating at the site. That's all -- that's all I'm saying.

MR. BURKHAMMER: Bob?

MR. MASTERSON: Along that same lines, what I just heard was that the difference is that my supervisor has to watch three plants when he's trying to keep an eye on that contractor instead of being at one plant because he's got three communities he's overseeing. Help me understand why there's a difference. My supervisor can be on three sites in Baltimore on the same day and still held accountable for his contractor working on the north side when he spent the second half of the day on the south side of town.

MR. CONNELL: Well, in terms of the -- there's no question that -- that the general contractor in the construction context is those who are taking a role in overseeing the safety of subcontractors. That's a big -- that's a big responsibility. That's a big role. There's no question about it.

MR. MASTERSON: I don't think the question is that they're taking the role. OSHA has imposed the role as a multi-employer, and again I ask you, what is the difference between that plant supervisor that was overseeing that contractor working at night and my supervisor during the day having three communities or the equivalent of three plants that he's overseeing, and instead of being one contractor, it might be 25 or 30 that he's trying to oversee?

MR. CONNELL: Well, the way -- under the -- under the doctrine, the first question is has the general contractor taken upon itself the responsibility to enforce safety with respect to other employers?

If the general contractor has not undertaken that responsibility, has not done that, then the multi-employer doctrine does not apply with respect to the general contractor.

MR. BURKHAMMER: Bruce?

MR. SWANSON: I believe what I heard you say, Noah, is if the general contractor had not by contract or otherwise assumed the obligation --

MR. CONNELL: Or otherwise, right.

MR. SWANSON: -- and that is indeed OSHA's policy.

MR. MASTERSON: Wrong. That is not the enforcement process that is being applied in the field, period.

MR. SWANSON: Gentlemen, I can tell you what OSHA's policy is. I just did. You are apparently alluding to that rare circumstance when the field doesn't follow OSHA policy.

MR. MASTERSON: So, if that rare circumstance were to occur again, I can bring that to you, Noah?

MR. CONNELL: Yeah. And I'll be happy to pass that along.

MR. MASTERSON: Thank you.

MR. BURKHAMMER: Removing my acting chairman's hat and putting on my member's hat, one of the issues that -- and we're currently -- I'm one of those issues in the pipeline that you're talking about.

As an agent for the owner, as a PM or a CM, one of the roles of that party is to, no matter how many subs there is, is to enforce the provisions of the contract that subcontractor has agreed to.

In most cases, one of those provisions is for that subcontractor to provide a safety and health work environment for his employees and comply with all occupational safety and health standards.

Is that language -- and what I thought you said. Is that language then construed as the agent for PM, CM, then has assumed the responsibility, as you said, of monitoring or being responsible for the subcontractor's safety program, even though his job primarily is to enforce all aspects of the contract?

MR. CONNELL: Well, one of the things that IBP tells us is that we have -- you can't answer that question based on that alone. You have to look at what the enforcement mechanisms are.

So, for example, in IBP, where the only enforcement mechanism was termination of the contract, IBP said that's not enough to establish control. So, you'd have to look at -- you'd have to look at the extent to which the general had the ability and the right to enforce particular safety provisions right then and there when -- when infractions arose.

MR. BURKHAMMER: Bob?

MR. MASTERSON: So, if I heard what you just said correctly, if I go back to my contract and take out all provisions that relate to the contractor complying with the state and local safety procedures, that reduces my responsibility?

MR. CONNELL: The -- well, the body of case law that existed before IBP, most of which is in construction, says that you look at both the contract rights and also the actual practice. So, even if you didn't have the contract right to enforce, but as a practical matter, as a day-to-day matter, the general contractor did in fact enforce those provisions, they would be in the same position as -- as someone who had that written into the contract.

So, it's both -- you look at both what the contract says and what the actual practice is in the field.

MR. MASTERSON: Now, please correct me if I'm wrong here. What I just heard was if -- if I instruct my employees that they're not to enforce safety with their subcontractors, and there's no provisions in my contract that says that they're supposed to, then they keep the responsibility on their own plate?

MR. CONNELL: The only exception to that would be -- and again this comes out of the -- the -- the case law. If the general contractor is involved -- if the -- if the -- the entity that's been cited, rather than using a term "general contractor", which implies certain abilities, but if the entity that was cited has control over basically just about everything that's going on at that site, and many of those things that they do control affect safety, then there are some cases that say in that instance, that's a controlling employer.

MR. MASTERSON: Now was that before or after IBP?

MR. CONNELL: That was before IBP.

MR. MASTERSON: Now, how is it after?

MR. CONNELL: Well, that's a good question. I -- I don't know the answer to that.

MR. SWANSON: Well, those were -- those two decisions that we are referring to are two different circuits, two different parts of the country, one outside of Chicago, is it not?

MR. CONNELL: Yes.

MR. SWANSON: And this is out of the District, and one was a construction case, and one was not, although there was a lot of verbiage in there that indicated what the court would do if it had been a construction case in front of it, but -- but it is unknowing at the moment.

One of the things that you are referring to, though, by innuendo or otherwise, is some negative unintended consequences of what's happening in the -- in the -- because of the multi-employer doctrine and how it is misunderstood or misapplied or mis-something, and -- and that is that there are a number of people out there in the construction community, sometimes your corporate lawyers and sometimes others, that are -- that are telling general contractors, safety people, exactly what you just referred to, and that is back away from safety issues, back away from safety on the job site, and you will minimize this company's liability, and that in the minds of many of us is a very negative unintended consequence.

Nobody wants to see that happen. There must be somebody in control of a construction site which is how it differs from a meat-packing plant at midnight where you have a number of subcontractors out there, and somebody has to take some responsibility for coordinating that. Most of us think that, and historically, that has been a general contractor or a prime, and because of the animosity building up over this multi-employer policy situation, we are backing away from a place where most of us want to be, and we have to figure out a way to get back there.

MR. DEVORA: And -- and let me jump in on that comment. Personally, we would -- as an employer, as a general contractor, you know, we're fully aware of our responsibilities, and I think the reason my boss sends me here, and I come to these things, is not to promote any doctrine or policy, but it's to prevent illness and injury and fatalities on the job sites, and -- and it's kind of like you penalize -- you're preaching to the choir here when you -- when you cite a general contractor that has that attitude because you're downstreaming it and taking that responsibility from the specific employee and employer-employee relationship, and you're just kind of washing it down the line, and that's where the responsibility starts, and the guy that gives you the paycheck is the guy that should be responsible that you get to work, that you get home the same way you got there in the morning, and by just downstreaming it, I think we're missing the main point here of preventing injury and illness, and it's got to start right there at the beginning at the subcontractor level and not -- and not get lost in all the controlling contractor and general contractor language.

MR. RHOTEN: Just a comment on the scenario that Bruce mentioned, that the owners might -- or the contractors take a hike and leave the subcontractors on their own.

It seems to me that that's what happened in the petrochemical industry before they passed this process safety management standard, that you have contractors come on job sites. The owner would put them at arm's length in areas that they didn't have any information on, and I think the language in that standard addressed some of these issues to some extent from -- at least from the point of view that the owner is supposed to make the contractors and the employees part of a whole safety system, and maybe that's something that we need to talk about outside of that particular industry and get some kind of language like that tossed around and see if we can come up with some ideas on it.

If you have a scenario where they can't take a walk and not take any responsibilities, there's going to be a lot of problems in the future.

MR. BURKHAMMER: Bob?

MR. CONNELL: I would just emphasize that while control -- I mean IBP is a case that addresses the control issue, and many of the questions that always come up are the questions about the control issue, but that's not -- if -- if -- if a general contractor is a controlling employer, that doesn't mean that they're automatically -- as a legal matter, that does not mean that they are automatically responsible for any violation that's committed by a subcontractor.

That's just the first step in the analysis. There is a second step, and the second step is has the controlling employer, controlling contractor exercised due care in meeting its responsibilities, and the due care that is required of that controlling contractor is not as high of a standard as it is for the subcontractor who's created that hazard in the first place.

So, it's -- as a legal matter, it's not strict liability. There is a standard of care. If the standard of care is met, then the controlling employer is not legally responsible for that violation.

MR. BURKHAMMER: Owen?

MR. SMITH: Well, I heard what you said, but does that mean that he gets cited, that he's got to prove that he's done everything?

MR. CONNELL: No. OSHA has the burden of proof to make out a case that shows that they -- that the controlling employer did not in fact meet its standard of care. The burden of proof is on the Secretary.

MR. SMITH: So, if -- if the prime has a program, and he asks everyone to follow a safety program, and there is an accident, then the prime will not get cited. They will cite the sub who's responsible?

MR. CONNELL: If it's a real program, in other words, it's a good program on paper, and it's a good program in the field, it's a program that's enforced, then, you know, that -- that goes to them meeting their standard of care. If they've carried out a good program in the field, the fact that a violation takes place that was created by a subcontractor does not make them liable as a legal matter.

MR. BURKHAMMER: Bob?

MR. MASTERSON: Noah, the truth of the matter is that there's been a very strong effort, whether it's announced or unannounced or whether it's been admitted to, that there is not enough compliance staff in the country to get around to all the job sites, and it has been flat out told to me by an administrator from your organization that the only way they're going to get to everybody is if they make general contractors their police force.

The truth of the matter is the general contractor is being held liable, and he's being held liable to a much higher degree than the contractor is, and that's the common practice out there.

MR. BURKHAMMER: Felipe?

MR. DEVORA: Has there been directives or instructions for compliance officers on this matter?

MR. SWANSON: Yes. There is a FOM which is the resource manual for the compliance officers, and we had a discussion in Pittsburgh last week that you were in attendance on where it was discussing cleaning up that FOM or amending it and perhaps giving more clarity to it. Apparently some people misunderstand it the way it's presently written. So, we might need more clarification.

MR. BURKHAMMER: Steve?

MR. COOPER: There's lots of sides to this story. You haven't brought up the hold harmless clauses yet. The FOM that Bruce has talked about isn't very clear. I've looked at that compliance officer manual to try and resolve this. It's gone around about like this conversation.

I don't know, Mr. Chairman, if you want to do this, but maybe there should be some group to make, if not a proposal, at least to OSHA to kind of clean up the area, but there's two sides to this story. We've got the owners in here, and we've got the general contractors.

Our complaints have been from subs and the hold harmless clauses. On the other hand, if the sub causes the hazard and an accident occurs, as we all know, the employee will go after the general because he's a third party, and he can't go after his own employer because of workers comp.

On the other hand, I can give you as many stories as you can give me where the general caused -- the general's people caused the accident, and the hold harmless clause alleviated the general from responsibility.

So, I don't know, Stu, if you want to -- that may be an interesting committee.

MR. BURKHAMMER: I think we're to the point where we could beat this up the rest of the day. The chair will take into consideration a workgroup on this issue,, and I'm sure we'll have eight or nine volunteers, and we'll -- rather than spend more time this afternoon on this issue, I think we'll discuss tomorrow establishing the workgroup.

So, with that, thank you very much for coming and sharing with us your thoughts.

And here's Berrien back for the third time, hopefully without interruption this time.

MR. ZETTLER: I believe, Mr. Chairman, we were on Page 8 of the -- of the hand-out.

MR. BURKHAMMER: I think we were still -- we have one final -- is there any more questions on 1A through 1.1G?

(No response)

MR. BURKHAMMER: Okay. Now proceed.

MR. ZETTLER: Okay. I -- I -- I think that I had started to say on 1.2A that although not specifically construction, it could very well involve construction because we have an objective.

One of the objectives is to -- is to also take a look at the federal sector. The agency will select, has not yet selected, although we have an indication as to what -- as to which three agencies this is likely to be, but the agency -- but OSHA will be selecting three federal agencies wherein we would also state our objective of reducing by 15 percent injuries and illnesses in those three agencies.

Now, some of those agencies, a significant amount in some of those agencies, may very well be construction-related injuries and illnesses because some of those agencies, many federal agencies, do a lot of construction, and -- and if one of those agencies doing a lot of construction is selected for this particular objective, then there could be also a significant construction aspect to -- to the accomplishment of this particular goal.

So, that finishes essentially -- that finishes the -- the statement of the objectives.

The next thing to do is look at the strategies by which the agency hopes to achieve those objectives. I only want to focus on a couple of these. I don't -- I don't think it would be worth the committee's time to look at every single one of these strategies, but I would like to focus on two or three of them.

The first thing that I'd like to focus on is the fourth bullet point down, which says, "expand the use of non-rulemaking and cooperative approaches". For the two construction objectives, namely the objective of reducing injuries and illnesses by 15 percent within the construction industry as well as reducing fatalities by 15 percent within the construction industry, from the national office point of view, from the Directorate of Construction point of view, our contribution to the accomplishment of that objective or those objectives will be very much focused on non-rulemaking and cooperative approaches.

We have already undertaken a number of pilot projects which some of you may be familiar with, and we will -- and we're exploring undertaking others.

So, we very much intend from the national office perspective again, we very much intend to encourage non-rulemaking or cooperative ventures that we can undertake with various organizations, both labor and management, within the construction industry.

We hope that those will be successful. We think in long-term, they will be successful because we believe that most of the organizations, both union and management, do have an interest in -- in -- in safety and health and will cooperate with the agency in putting into effect some of those programs.

MR. BURKHAMMER: Steve?

MR. COOPER: I don't know how much cooperation you're going to get from us on that issue. The cooperative programs are all for that.

MR. BURKHAMMER: Steve, could you define "us"?

MR. COOPER: Unions.

MR. BURKHAMMER: Thank you.

MR. COOPER: Did I say that?

MR. BURKHAMMER: Just a point of clarification.

MR. COOPER: Us, the unions. OSHA in the last few months has signed some cooperative agreements that are not what we consider in accordance with the Occupational Safety and Health Act. For instance, they are not abiding by the Act. I can give you case -- cases where this is true.

For instance, from the administrative areas where the compliance officer cannot inspect the job site unless he notifies the people they have the contract with. Some of them are crazy-driven. You have in here some agreements without the acquiescence of the employees, but you will notice, and you're getting to it in a few pages up, that one of the outcomes of Goal 2.3 is enhanced worker involvement in all aspects of safety and health in the workplace.

On the other hand, you signed an agreement with no employer acquiescence to that. It's -- it's in direct violation of what you're saying. We are very upset about it, and regardless of the -- this 15-percent reduction which we'd all love to see, it's got some people upset, and I happen to be one of them.

As long as those agreements are sensible, practical agreements, we would -- we would pursue that and be happy with it. Some of the agreements that I've seen are really out of line.

MR. BURKHAMMER: Berrien?

MR. ZETTLER: Thank you for that input, Steve. We -- we -- clearly the agency -- I mean we -- we -- I -- I don't know exactly what you're referring to, although I suspect maybe I know one of them anyway, but -- but -- but this is -- this is a period of -- of trial. I'm sure that there -- that we will make some mistakes in -- in some of the agreements we -- we enter into, but on the other hand, I think that -- that the entering into agreements is -- is the way to go.

We cannot -- we can't accomplish this 15-percent reduction, the agency believes, unless we get cooperative arrangements with -- with industry and labor to accomplish it. Otherwise, we can't -- we can't get it through sheer enforcement. We just can't do it.

Okay. The next one that I wanted to look at a little bit is the -- the next bullet point, which focuses on enhanced targeting. ACCSH, as I understand it, ACCSH has established a workgroup to look at targeting.

We're also going to be looking at targeting. The agency's also going to be doing that because it becomes crucial if we're going to spend our resources effectively, if becomes crucial to the accomplishment of our objectives that we -- that we spend our resources in ways that can be productive, in ways that can actually bring about the reduction of injuries and illnesses, and -- and the key to that in construction in particular, the key to -- the key to that is -- is

-- is targeting, and we -- as all of you know, the agency over the years, some of you have participated in this, the agency over the years has had a number of groups look at alternative scheduling procedures and that has not been a -- a real successful undertaking because we -- we still do not have a good way of focusing on the -- the most injury- and illness-prone workplaces in the construction industry. We don't have a good way to do that, unlike in general industry, where we can have a little bit more success.

The next -- the next point I wanted to -- to look at is -- is a corollary to the -- to the cooperative approaches which is the very next bullet point, where it says, "engage the occupational safety and health community in identifying and addressing significant workplace hazards and instituting process improvements to ensure quick response to emerging issues".

That again is the corollary to the other part. We believe that -- that this is the whole leveraging concept where -- where we engage the community, the construction community in the process of also working toward the reduction of injuries and illnesses, and that's really all I wanted to look at on Goal 1.

Are there any comments or additional questions relating to that? If not, we'll move on to Goal 2.

(No response)

MR. ZETTLER: Now I am not going to spend very much time on Goal 2 or Goal 3. I'm just going to hit a few highlights because the meat of -- of the -- of what the agency is trying to do in terms of objectives outcomes, in terms of reduction of injuries and illnesses, is found in that first one.

There are support -- there is -- there are supporting objectives, however, in -- in Goal 2 and 3. So, I'd like to look -- I'm not -- again, as I say, I'm not going to look at all of these, but I would like to look at a few of them, and the first one I'd like to look at is 2.2A on Page 11, and that is to make all standards, regulations and selected reference materials available in a user-friendly manner on the OSHA home page.

We've already started doing that. We have recently redesigned the home page for any of you who have looked at the OSHA home page, and we will have later this afternoon, Mary Ann Garrahan will be in to

-- to go through what all we're trying to do with regard to this 2.2A goal of making the OSHA home page a usable -- a usable resource for -- for anybody in the construction industry.

The next one that I'd like to look at is I'd like to just look at one of the strategies which goes along with this -- maybe a couple of the strategies that go along with this, not specifically that 2.2, but this -- this whole -- the whole of Goal 2, which is to promote programmatic and systematic approaches to safety and health in the workplace.

One of the -- one of the things that the agency is going to do is stated in the third paragraph -- excuse me -- the third bullet point under Strategies on Page 11, and that is to assure that new OSHA products are readable and easy to understand, meaning by that -- excuse me -- meaning by that that not only the standards will be in plain English or plain language, I guess we're supposed to say to be politically correct, are in plain language, not only the standards but also directives, letters of interpretation or any other document that's produced by the agency. All will have to meet a plain language standard.

We -- we're sending a lot of our people, for example, to plain language training. There is a training course on plain language which gives people suggestions as to how to make their language less bureaucratic and more -- more understandable by the general public. So, -- so, as I say, that's -- that's intended to support this.

Another one I'd like to do is on Page 12, up at the top of Page 12, first bullet point, which is what -- the one that Steve referred to a minute ago. It really is important to the agency, and we believe that the success of safety and health is dependent upon not only employer cooperation and involvement but employee cooperation and involvement, which means that we will be seeking from our stakeholders, both employer and employee, we will be seeking involvement in -- in not only in our -- our record -- our rulemaking procedures but also in our -- in our standards -- in our directives or interpretations processes as well. We will be attempting to -- to get those out for comment by -- by affected people.

One of the other things that we will be doing is stated in the second bullet point. We will be attempting to encourage the development and delivery of training for workers and employers in the skills necessary to involve workers.

You know, it's not immediately apparent to everybody how they should go about involving workers in the safety and health process. Many companies know that, but many of them don't, particularly smaller employers, and we're going to try to -- to find ways of -- of helping the smaller employers in particular devise methods of -- of making sure that their employees have a role to play in the implementation of safety and health in their -- on their worksites.

Some of these things we've not yet worked out the details of how we're going to do it. One of the -- one of the folks in between at the last break asked me -- noticed that it had "draft" down at the bottom of the page, has "draft, revised strategic plan", and the question was how long is that word "draft" going to stay on there? When are we going to see a final, and my answer was probably it will always be draft for the whole -- up until 2002, we're likely to be still living with a draft one, although each draft is a more explicit and accurate statement of what the agency hopes to achieve.

But as I had mentioned to you in the introductory comments, we view this as a living document, as something that's going to be adjusted and changed according to the vagaries of life, and we will -- we will be making adjustments and changes.

So, there will probably never be a draft final -- excuse me. There will never be a final which will be unchanged through the year 2002 because we believe that there will always be changes.

So, what you got to look for is the latest data, which will be posted, which will be posted. I don't know if it is now right now. There -- there are a few documents posted on the home page relating to this, but I don't know that this particular document has been posted yet, but it will. It will be.

Okay. Unless there are any further comments or questions, I'm done with 2.

MR. BUCHET: Mr. Chairman, back to 2.2A. In -- in the rush to go to the Internet, are you not going to do anything with the CD-ROM, which before the present version was extremely useful, and if that could be married the relatively old-fashioned connection to the Internet would -- would be very useful for a great many people?

MR. ZETTLER: You know, I guess I -- I -- my only comment is that I'm just scared to death to throw myself in front of a freight train coming down the tracks, and unfortunately, there -- the -- I say unfortunately. Unfortunately for those who -- who prefer the older ways of doing things or find it easier to use the older way of doing things, that's going to be difficult.

We -- we -- we do intend -- the CD-ROM is a relatively inexpensive undertaking for us, and there is no plan to stop the CD-ROM. However, as you know, and as you suggested, the CD-ROM does occasionally get reformatted, and the appearance of the material on the CD-ROM may not resemble the way -- you know, may not look the same as it did before.

However, if -- if that's not a problem, if -- if it's just the maintenance of the CD-ROM, there is no plan to not continue to produce the CD-ROM.

MR. BUCHET: The format of the presentation of the material, if you keep to the idea that it's going to be user-friendly, then you have a real collision with people who are pushing new technology because a lot of us haven't got the time to get the latest Web browser and figure out how the pretty buttons work, whereas we had figured out how to search with the old CD-ROM, and there is a question of reliability.

Some of the other things on the Web site may be a little confusing, as having a button that says construction that's about that big --

MR. ZETTLER: Right, right.

MR. BUCHET: -- and putting things up like interpretive quips, so we can find them relatively simply and in words that we recognize, not necessarily that help the indexing system in the computer.

MR. ZETTLER: And we are continuing to work with the -- with the -- both the contractors and OCUS, our -- our Salt Lake office, that has primary responsibility over the Web page.

We recognize that there are -- we're not where we wanted to be yet, and we -- we also believe that it's not currently intuitive. I mean you don't know where construction is unless you read the -- the stuff in parenthesis under outreach.

I mean, you know, it -- it would not occur to me to look under outreach to find construction, but that's where you have to look the way the -- the way the home page is constructed now.

But we're in discussions to fix that, and -- and I hope that we will continue -- I mean the thing changes all the time as we make these -- these adjustments.

MR. BURKHAMMER: Bob? Please use the mike closer to you.

MR. MASTERSON: Okay. I just wanted to point -- now I'm very comfortable using the Web browser and the Internet, going to the home page and using the CD-ROM.

One of the advantages, because I travel so much, was that with the older version, I was able to download the entire CD-ROM on to my hard drive and that way I didn't have to carry a CD with me, and it's not just the CD, it's also the CD player, and from a traveling standpoint, that was -- that was very much a plus for that CD-ROM.

Now I can't load that. So, I have to carry my CD with me and the player with me in order to make sure that I can access that data. That was a real advantage before.

MR. ZETTLER: Right, and that -- you know, that's the price of progress. The more -- the more data we get on there, the more stuff we load on or try to load on -- we don't -- and the CD-ROM does not have everything that's on the Web site now even, but -- but to the extent that we continue to add material to the CD-ROM, it -- it starts -- you know, it gets bigger and bigger and bigger. I would not be surprised if we -- we had not done this yet, we made the decision not to, and that's why we've kept stuff off that's on the Web is to go to two CD-ROMs, then you -- then you'll really have a problem.

MR. BURKHAMMER: Larry?

MR. EDGINTON: I didn't know if we were going to talk about this under OSHA's Electronic Information System, which is later on in the agenda, but I'm telling you you've really hit a hot button with me on the CD-ROM business.

I keep hearing that -- that my government and its agencies want to become customer-driven, and I'm here to tell you that you're going the wrong direction with the CD-ROM. What you ought to be thinking about is what is the lowest common denominator in terms of the technology which exists in a typical construction workplace, and you are not doing that.

I can tell you that where I work, I won't say we've got everything that's state-of-the-art, but we're damn close to it, and what we have discovered with our system because of the Internet access that we choose to use, we have a hell of a time using the CD-ROM, and I'm figuring that if I can't do that, I know my local unions can't do that. They're telling me that. I know my contractors who are trying to do the right thing have got -- maybe they've got a computer in a job site trailer, and they've got one phone line going into it, and they don't want to have to tie the damn thing up with -- with Internet access.

You're making my head hurt. I mean it's just not common sense. You're doing the wrong things. You know, if you want to make all these other things available, that's wonderful, but don't abandon where most people are at.

MR. BURKHAMMER: Let's hold further discussion on this issue until Mary Ann presents the electronic information system. I think that is a better place to present that than continuing to put Berrien up over the Web page.

Now I'd like Berrien to conclude with a brief status on the ergonomics standard.

MR. BUCHET: Can I just ask -- add something else about the computers, if I might?

MR. BURKHAMMER: Last one. Go ahead.

MR. BUCHET: And it has nothing to do with anything that you've covered, but it's something that bothers me terribly.

On Page 13, and I've been talking about this every chance I get with anybody in OSHA that I can get to listen, is under the outcome goals under 3.1, 3.1C, where we're talking about resolving 75 percent of all OSHA Section 11C cases within 90 days.

What I'm -- what I'm trying to figure out there is that that seems to be an activity which is occurring outside of the workplace, and, so, what that's saying to me is that OSHA has given up on the notion of trying to modify employer behavior so as they don't fire people in the first place for complaining about safety and health because that's what we're talking about here, and we're talking about trying to have workers develop confidence in a system where we have an Act supposedly designed to protect and promote their safety and health in the workplace, and at least with respect to construction workers, when you tell me you're going to resolve my complaint within 90 days, well, a lot of good that does me.

If you're talking about trying to instill confidence within people, it seems to me one of the things you need to be talking about is trying to modify the behavior of the bad actors so they don't fire people in the first place.

MR. BURKHAMMER: Okay. I think, Larry, maybe they're going to try to do what you're suggesting under 2.3, enhanced worker involvement.

MR. BUCHET: I read that, too, and I can only say I hope, but --

MR. BURKHAMMER: Yeah.

MR. BUCHET: -- all I'm saying is if you're dealing with an effect here rather than the cause.

MR. BURKHAMMER: Right. Okay. With that being the last comment under this section, I think Berrien would be available today and tomorrow if any of you have any specific things you'd like to ask him. He could be around to answer them.

We'd like you to -- if you would, please, to give us an update on the ergonomics standard --

MR. ZETTLER: With respect to the update on the ergonomics standard, I could not get enough information to do that in the short time that was available to me. So, what I have done, if it's okay with the committee, what I've done is I've asked our Director of Health Standards, and he's agreed to do this, to -- to come in, I believe it's at the 11:00 slot now open tomorrow. He will come in and talk to you about the -- update you on -- on the ergonomics standard as well as on a fiberglass initiative that we're dealing with.

If that's not a good time for the committee, he -- he told me that he is flexible as to other times, if I can get back with him on that.

MR. BURKHAMMER: No. That's an acceptable time.

MR. SWANSON: Let me, if I may, give a little clarification for those that are curious about this.

The question regarding the present status of -- of ergo came up after the meeting started here this morning, and, so, I asked Berrien if he could gather some information and give us an ergonomics update.

Most of the folks in OSHA that are engaged in the ergo issue right now are out at an ergonomics stakeholders meeting somewhere else in the country. So, Berrien was unable to get the information, but the head of the Health Standards Unit is -- is up to speed on this, and, so, I think that's a good substitute at 11:00 tomorrow. Thank you.

MR. BURKHAMMER: Thank you, Berrien.

The next subject on the agenda is Subpart M, Fall Protection, Jule Jones. Is Jule here? She was here.

(No response)

MR. SWANSON: We seem to be lacking at the moment both of the next two folks on the agenda. They both had commitments elsewhere. We're going to go retrieve one of them right now. She should be here in a couple of minutes.

MR. BURKHAMMER: Why don't we take a five-minute break and then return? Be back at 3:15.

(Whereupon, a recess was taken.)

MR. BURKHAMMER: A couple of things for the committee. This morning, we asked if we could get a copy of the offices that have been reinvented, and you were supplied that after lunch, so make sure you all have that copy.

I would like to have your comments on the 170 form by start of meeting tomorrow morning, and if we need to bring someone back to discuss those changes, we can see if we can do that.

MR. SWANSON: I was -- am I on? I was told that there was a page missing from that -- testing, testing.

(Pause)

MR. BURKHAMMER: Also, we passed out a synopsis of the Strategic Plan to the committee, so you have that. Also, we were supplied the cards, both in English and in Spanish. So, I'll pass those around for you to take those. The heat stress cards.

MR. MASTERSON: Bruce, on these heat stress cards, are we free to reproduce those?

MR. SWANSON: Those -- if you'll look, Mr. Chairman, those are not our cards. These are copyrighted by the Center to Protect Workers' Rights, and you cannot copy copyrighted material without permission of the --

MR. MASTERSON: I misunderstood.

MR. SWANSON: Right. No. I understand what you understood, and I wanted to point out that those are not OSHA's cards. I'm sorry.

MR. BURKHAMMER: All right. We're ready to proceed with Mary Ann's presentation or Jule's? Mary Ann's. All right.

What we're going to talk about next is the Electronic Information System. Mary Ann, welcome.

OSHA's Electronic Information System

MS. GARRAHAN: Thank you. I'm Mary Ann Garrahan from the Directorate of Compliance Programs.

I'm going to give an overview of OSHA's Web site with a construction standard compliance interpretation to it. I'll be mentioning the information that is already available on the site and also things that we have planned to do to improve the presentation and organization of the material.

We have been and continue working on various projects to improve the design and accessibility of safety and health information. Some of our efforts have already been implemented, and many more will be completed in the coming year.

I'm happy to say that we've received very good feedback so far from the public on our improvements, and we hope to build on this with input from users of the site.

If you'll put the lights out, we'll show you why our -- can't? Okay. Then we'll do an overhead, showing OSHA's main --

(Pause)

MS. GARRAHAN: A project that OSHA is actively working on is the redesign of the Web site. As some of you are probably aware, the Web site, which is located, by the way, at www.osha.gov, has undergone some changes in design as well over the last month or so.

One of the major changes is the unified OSHA Web page. Previously, the national office and Salt Lake office have maintained separate Web pages containing various information. The two offices now collaboratively maintain OSHA's Web page which benefits the user by providing a single source of OSHA regulatory information and outreach material.

Although information is still maintained on two separate servers, the linking between them is a seamless form for the user.

OSHA's new front page, which is shown on this overhead, is the newly-designed gateway through which all users will access OSHA on the Web.

As you can see, the information is organized logically and allows the users to jump to specific databases of information, such as news releases, publications, directives, standards and interpretations.

Each grouping contains a set of related documents and information. The regulation and compliance links, which I'll show you in a few minutes, holds all of OSHA's regulatory and compliance-related materials, such as standards, interpretations, preambles, directives and compliance guides.

The organization of materials also allows us within OSHA to better maintain the information on the Web site. Particular items that I'd like to point out on this is at the top of the page, you can see there's a new button, and if you hit the new button, all the way at the top, this takes you to a page listing significant documents and information recently added to OSHA's Web site, and if you -- if you click it today, you'll see that it contains information as recent as yesterday's Federal Register announcement of the Federal Register notice of a public meeting for the Respirator Change-Out Schedule.

The button at the top of the page takes you to a page providing an alphabetical price index. The index includes everything from specific safety and health issues, such as lead and cadmium, to types of information, such as interpretation of OSHA standards and OSHA posters. That's another quick way of getting to information.

At the bottom of the page, in the grouping outreach, you'll notice that the construction is listed. This is the main construction page that I'll be showing you on the next slide.

This is the current main construction page. This page will be undergoing some renovation in the near future to improve the organization and breadth of information listed on the page.

It currently provides the users with links to the 1926 standards. Technical link pages for specific construction-related hazards and publications of interest to those in the construction industry. This page, in conjunction with the technical links page for construction and the planned regulation and compliance link page for construction, which I'll be showing you, should help put all of OSHA's construction-related information at the fingertips of the user.

The next slide, if you hit the button on the main page that's called Regulation and Compliance, you go to the regulations and compliance links page. This slide shows the page as it exists on the site, except for the listing of memorandums of understanding, the MOUs, the rest of the way down. Everything else is up there, and I'll explain a little bit in terms of what we have.

The OSHA standards, if -- if you can search those by standard number or by topic area, and I'll get you into the standard, and along with the standards, we have our interpretations. Right now, we have all the interpretations listed, and there's many interpretations.

What the plan is, is that when you hit on to the regulations, each paragraph of the standards will have a pop-up window, and what you will do, it will take you to the specific interpretations that relate to that paragraph, and also the case law that relates to that paragraph, the preambles that relate to that paragraph, any OSHA memorandum or policy that enhances the understanding of that particular paragraph section, and when I say it takes you to case law, it takes you within the case law, within the preambles, within the materials, such as when we have letters of interpretation, many times our letters cover more than one paragraph of a standard. So, we'll take you exactly to that section of the letter that is being interpreted.

It also gives you the information about the development of the process of developing a standard and unified agenda, the information on the collection requests, and it gives a listing of our compliance directives, everything that I mentioned that you can get to if you look at the regulations and linking to all the other information.

You have another choice. You might not want to start with the regulation. You might want to go directly to a directive. So, you can go directly to our directive button and get that information, pull it out by subject topic area or a number search as well.

So, what we're trying to do is make it easy for the user to have several different ways of accessing the information. As you can see on the listing there, we have compliance guides, our field inspection reference manuals, our Review Commission decisions, our interpretations, and our QUIPS.

Now our QUIPS -- I don't know how many of you are familiar with those. Those are what we call our Quick Interpretive Points. We take our letters of interpretation, and we condense those so that you have the meat of the interpretation, and we identify them by the paragraph level. So, again, if you were particularly interested in a certain section of the standard, and you wanted to know quickly what our interpretations are, you can refer to our Quick Interpretive Points, our QUIPS.

Right now on the site, they -- since we converted to our new home page, there was other programming work that needed to be done. They're not currently up on the system. They are on the CD, and my understanding, the QUIP should be back up on the system any day now.

Now what we're working on, that's under development, is to put back up our memorandum of understanding. Now this particular site, what we're interested in is our jurisdictional memorandums of understanding.

The safety and health topics, I'll be showing you the list of topics next. The emerging issues. These include three sections. The first is the compliance information and initiatives which will highlight new or changing compliance information for existing OSHA regulations and new compliance initiatives for emerging safety and health topics, some of which we may not have a regulation for.

The current rulemaking page, I'll be showing you, and the emerging health and safety topics, which offers an alphabetical list of health and safety topics that OSHA has identified as emerging areas of concern or areas of special OSHA emphasis.

And, finally, we have the frequently-asked questions, and this page provides links to questions and answers for a number of topics, and what we've done is we've gone through our system, our current directives, our publications, wherever we have had compliance-related questions and answers, putting them on a page listed by topic areas. So, again, if somebody wanted some quick information on standards, it may be that their question is answered in one of these Q&As, and for construction, for example, we have Q&As for permanently confined spaces, fall protection in construction. We have the mechanical car presses, the scaffolding construction industry, general requirements for scaffolds, training requirements, etc. So, this is all being pulled together and being developed.

One of the things that we continue to work on is the linking of information and the implementation of the new database which will house OSHA, makes available through the Internet. The new database will allow us to provide some more useful search capabilities and better file linking which I'll discuss where you actually will be getting within documents to where you want to specifically go to versus just a listing of the -- for example, the interpretations. They'll actually take you to the ones that are relevant to that part of the standard.

The users should benefit from this activity in really two primary ways. First, the users will be able to access up-to-date interpretive responses more quickly, and, secondly, the linking capabilities will give the employees and the regulated community more confidence that they are scanning the full range of OSHA information on any particular topic.

I'd also like to point out the interpretation is an area where we have put considerable effort into. Many of you are familiar with our -- our old system. Probably if you used that system know that if you would -- if you wanted to search a topic area, you would have so many hits, that it would be very difficult to feel confident that you weren't missing something.

What we're trying to do is put an extensive gatekeeping system together so every time we have a new interpretation, we're actually reviewing what we already have up on site and looking to see is this letter offering some added value because we don't want to clutter our system with every single letter of interpretation. We want only added value information, and what we do is we will take down old information if we have better information. The users of the system have more confidence in the system if they see that it's more current up-to-date information in the system. If it's a 1998 letter versus a 1984 letter, they feel like, you know, OSHA must be maintaining the system.

So, we have an extensive gatekeeping system to also go through, and whenever there's a change to a standard, such as the scaffolding standard, we have the part of the standard that has been changed. That affects interpretation. So, that requires great effort to go back and review all our letters and make changes to the sections that we have to change as a result of the changes in the standards. So, we're trying to be on top of that as well.

Many callers to OSHA now are getting more sophisticated because they have already made a search of our system and either they have a search question or it's not clarified there, and we find that that's very helpful because our system is actually being able to help people help themselves, and what we're doing is we're dealing more with sophisticated questions that we can know the answers to and share with everyone.

The next slide is our regulations and compliance links topics. This is also -- these topics listed on the slide, each of those have its own page, providing users with regulations and compliance information on a particular topic.

The mainstay of each topical page will be standards, preambles, directives and interpretations. Applicable standards, preambles and directives will be listed on the page while interpretations will not. The interpretations will be provided in the search that develops. When that user selects interpretations, a search is performed based on the pre-selected key words.

Users will be able to select from a number of databases and perform a search based on pre-selected key words. The pre-selected key words used in the default searches are chosen so that the users get the most possible hits without catching documents unrelated to the particular topic.

We believe these pre-defined searches will enable the most novice users in finding information relative to their particular worksite hazard or situation.

The next slide -- you know, the next slide illustrates the regulations and compliance links construction page under development. By accessing this page, users should be able to access all compliance-related information about construction.

For this page, along with the main construction page and the technical links construction page, which I'll show you next, it provides users with access to all relevant construction information on the Web site.

At the top of the page, you can see hot links to standards, the preambles, directives, interpretations. A topical search, and this is the section that allows users to select databases they wish to search, then a key word search is performed.

The technical information is a link to the technical links page for the topic, which I'll be showing you next. Now related topics, this section is used to provide links to the regulations on topics relating to the different subject pages.

The next overhead is the technical links construction page. As you can see, the technical links construction page provides four distinct sections, the related topics, standards, preamble and OSHA directives.

Once the regulations and compliance links safety and health products pages are on line, then technical links page will link to the regulations and compliance construction information.

What's under compliance on this page will be the page we just finished reviewing. When a user turns to a technical link page to a compliance page and vice versa, the move will be seamless. This organization will allow those within OSHA most familiar with standards and compliance information to effectively monitor and maintain the compliance information.

We're really concerned about, you know, gate-keeping what goes up on the system, and then what we put on the system is maintaining it as well.

The next slide, the last page that I'd like to point out, and this is the current rulemaking page planned to be added to the regulation and compliance links page. Right now, what we have up on the system is the unified agenda that's published in the Federal Register, and that can be very cumbersome in terms of trying to find out information.

This page provides information about the current OSHA rulemaking, and the current rulemakings are listed alphabetically with the status, such as long-term action, pre-rule, proposed rule, final rule indicated.

The page will not only allow users to quickly find and determine the current status of a rule but provide links to abstracts, ANPRMs, NPRMs and final rules. This page will be a one-stop shopping for users who are looking to find out OSHA's actions on rulemakings.

We believe that users will benefit greatly from this organization and will ease efforts in locating the appropriate Federal Register published notices.

We are hopeful that these efforts will offer useful information to employers and employees, and that this presentation provides you with a good look at what we're planning for and what we have right now on the OSHA Web site, particularly related to the regulation and compliance information.

There's also a lot of other information on the site that relates to the publication, the training information, etc. If you have suggestions for organization of material or for additional sources of good information for the construction of the pages or any of our efforts, we welcome your feedback. You are free to contact either myself or Camille Villanova from the Construction Directorate, is the contact person for the information, the construction information that goes up.

Thank you. Do you have any questions?

MR. BURKHAMMER: Larry, would you bring back up your comments that you had made during Berrien's presentation? I think Mary Ann was better suited to field them.

MR. EDGINTON: Yeah. I guess on the one hand, your presentation has been informative and helpful, but my reaction to it is that in doing this, what OSHA is doing is going to what I'll call the highest common denominator in terms of Internet access, Internet technology, and that's fine for people who are safety and health professionals or have time to explore these Web sites, but for many field-level people, this is not a very practical option for them.

So, a question I had raised earlier, for example, is I know from my own organization, one of the things that was very beneficial until the last addition was the OSHA CD-ROM, and with the most recent edition of the CD-ROM, which requires an Internet browser, you're going in the wrong direction because that -- I think what you need to be thinking about is what is the lowest common denominator in terms of technology that exists within the audience that you're trying to capture, those people who are going to be using this, and I can tell you that most job site trailers can't do this. Some can, most can't.

Most of my local unions -- I mean many of them are very sophisticated, but I have others who tell me when I ask them about their electronic capabilities, they say, well, the only thing I can think of that's truly electronic is my handheld calculator, and the only other thing that might be remotely close is we still have some electric typewriters and electric adding machines. I mean -- and I think that truly describes the universe which currently exists within the construction industry, and I recognize that OSHA's audience is much wider than the construction industry, but I hope that we're not losing what has been a very valuable tool, and that's the OSHA CD-ROM, and I'd like to know, you know, what's going on with that.

MS. GARRAHAN: Well, are you saying that your users were using the CD-ROM?

MR. EDGINTON: Oh, absolutely. Absolutely. And one and two, what really frustrated the heck out of us in terms of my own shop is when we got the most recent edition, we -- remembering that -- and I didn't. I had to go back and look at the old edition and look at the paper that comes with it, and it did give me a reminder that said the next one that's coming out, you're going to need an Internet browser which I had forgotten all about. So, I get this new one, and I can't get it to work, you know. I give it to one of the technical guys in the office, and he says I'm not sure, but there's something going on with the Internet access with this that's a problem for us.

So, then we get the real tech head in the office in, who explains -- our tester explained to me quite candidly in terms that I don't understand the problem is the way OSHA has set this system up is that the Internet browser that they want us to have is not one which is compatible with the method of which we choose to use or to access the Internet.

Simply put, I -- if I can't figure that out in my office where we have just spent God knows how many millions of dollars in a building renovation program, a part of which is attempting to bring us into the state-of-the-art information age, I said what the heck is going on here? And I don't think, by the way, it's our ineptitude. I -- I think I got the right answer, is in fact it won't work with the Internet access that we're using or this system that we have.

So, I'm saying, you know, what is the thinking that's going on in OSHA with respect to all workplaces, but the construction industry and its workplaces in particular, because we had a product that from my point of view was serving our needs very well, and I sure hope that we're not going to lose it, and I would hope that perhaps we could go back to what had been, you know, the previous version, if you will, and get rid of this -- this requirement that in order to use the CD-ROM, you've got to have an Internet browser.

I mean it makes no good sense to me.

MS. GARRAHAN: We have an organization, and actually it's the -- a proposed organization which is our information technology section, which would deal with an issue such as this.

From my experience, what had happened was it takes an awful lot of OSHA resources to maintain our data and different databases and in different formats, and what the latest CD-ROM did was it downloaded from our Internet and put the CD together that way versus keeping the information separately, and certainly your issue is -- is important, and it will be passed on to our IT group to see what can be done.

MR. MASTERSON: I am very comfortable using either the Internet or the CD-ROM. I had mentioned this earlier. One of the problems that I've run into is that with the old version, I was able to download it totally on to my laptop, and I didn't have to carry extra -- extra -- extra equipment with me in order to access the data.

Now I do not have the ability to download the data. I have to carry the CD-ROM, my CD-ROM drive, and everything else, and that has created a real inconvenience, and I'm sure I'm not the only person that travels with a laptop and doesn't want to carry all the extra pieces.

One of the concerns for a lot of people was drive size. I don't know about most people, but I'm probably running about eight gig now. So, I don't think drive size is the issue. I think being able -- or at least having the ability to download it or the option to put it on to your hard drive and not carry everything for a lot of people that are on the road would be a very big advantage.

MR. BUCHET: From the Council's perspective, we have to contact between a 150 and 1,200 people that we consider our construction members, and in this discussion, we feel that if you plan to use the Internet, a large part of the population simply hasn't gotten there yet, and we never hear from them because the percent of the people who know how to use computers is so low, we don't reach them.

In my experience, we're probably two-thirds or more without Internet addresses. My guess is they may have a CD-ROM, and that's very useful, has been very useful, certainly with all the iterations, was relatively simple to get in there and hunt and peck your way around with, but now that the two have been married, not that that's a bad thing, it is somewhat complicated, and if you haven't got the Internet access, you're dead.

So, I'd rather see a CD-ROM with the Internet access instead of Internet-driven maybe you can use a CD-ROM..

MR. BURKHAMMER: Any other comments or questions?

(No response)

MR. BURKHAMMER: Thank you, Mary Ann. We appreciate it.

In the back of the room is Jule Jones, who has been waiting and waiting and waiting. We appreciate you waiting.

MS. JONES: Does that make me a lady in waiting?

MR. BURKHAMMER: Yeah. No, I'm not touching that one.

Subpart M - Fall Protection Issues

MS. JONES: Good afternoon, Mr. Chairman.

MR. BURKHAMMER: Good afternoon.

MS. JONES: I do apologize for the confusion a few minutes ago, but I was trying to make my boss look good with the deputy assistant secretary.

MR. BURKHAMMER: That's hard to do, but go ahead.

MS. JONES: My name is Jule Jones, and I work for the Office of Construction Standards and Compliance Assistance. I've been asked to give to the committee a brief status report on fall protection, and when I say brief, I do mean brief.

The agency hopes within the next few months to issue a notice of proposed rulemaking for fall protection. This rule actually took effect in early 1995, and almost immediately the general public started submitting comments and concerns on the fall protection rule.

Several of those concerns and questions were satisfied with the agency issuing letters of interpretations. Unfortunately, there was some very difficult questions that cannot be handled with a letter of interpretation. Those issues hopefully can be addressed appropriately in this advanced notice.

Hopefully with this notice, we will be asking for input, some information collection, if you would, from the general public and obviously from this committee, and with that input, the agency should be able to make appropriate decisions and to change the standard appropriately.

That document is currently in the Solicitor's Office being reviewed. It has approximately 12 issues that we are reviewing, and like I said, in a couple of months, we hope for that notice to be published and look forward to getting the comments from the public and from this committee.

That's basically all that I had to update. If you have some questions?

MR. BURKHAMMER: Bob?

MR. MASTERSON: I really don't have any questions. I just want to let everybody know that yesterday, as a group of the people from -- from the table here as well as some of the stakeholders met briefly to start the dialogue of putting together some information and some feedback to the committee.

MR. BURKHAMMER: Great. Any other comments?

(No response)

MR. BURKHAMMER: Thank you, Jule.

MS. JONES: Thank you, sir.

MR. BURKHAMMER: We have one request for Public Comment. Rich Fell.

Public Comment

MR. FELL: Mr. Chairman, my name is Rich Fell. I'm the Safety Director for the Donohoe Company here in Washington.

I'd be the first to volunteer for your new workgroup. That was the topic that I brought to the attention of the committee at the last meeting in April, and I would -- I've heard all day long that if you could refer to us, and I refer to us as part of you because I'm a safety professional, I'm regulated by the agency. This organization that you sit on is one that I have -- is one of the few voices that I have to bring to your attention my concerns as a working safety professional.

If I can't get to you, then I have no voice whatsoever, and I need to be able to say those things to you, and I, too, am a stakeholder, but when I go back and look at some of the things that I look at from the last meeting that have not yet been accomplished that were promised, it really bothers me, and I wonder how we can be stakeholders when in fact these things are not there.

Mr. Jeffress last -- last month or last meeting talked about the need to recognize excellence. I spoke about that last meeting as well in the Public Comment. What can we do for the good actors, and I'm one of those. We have not done anything about that, at least nothing is available in anything I've read here today to tell me that we're going to do it.

You're saying that there is a new -- a new safety excellence recognition workgroup, and that brings me to another issue. The workgroups. Now there are a lot of us in the room behind you, and, no, I'm not speaking for them, only for myself, that have volunteered to serve with you on these workgroups, and yet again going to what's printed here, we're talking about a workgroup meeting that will be open to the public but not announced by the Federal Register. Apparently there have been several of these workgroups that have occurred, and I would request that they move -- put a notice on the workgroup meeting that -- that there is a workgroup meeting. Let us do one of two things, either say, gee, I can't make that or my company won't send me, but in the same token, I at least know those folks that I'm working with and that I can -- I can maybe send something to one of you, either by regular mail or e-mail or whatever, but bring my concerns to you at that time, if I can't make it, and that's a good way for us again to be stakeholders.

We can't be stakeholders if we're not involved, and we don't have the information. That's really what I'm talking about here today.

Let me go further with that. That same question. I will reiterate looking at the whole -- where I started last meeting, which was the issue of multi-employer worksites. This has got to be resolved somehow, and to everyone's satisfaction.

I heard Mr. Cooper. He made some good points. I've seen the other side of that as well as I represent a general contractor. Yeah. There's inequities there, but there's inequities all the way down the line, and I -- I had to laugh at your comment, Bruce, as everyone did with the change in the compliance officer.

I think there is need for more work on this. I would urge the committee to do that, and I would specifically go back to where I pointed out, we have just lost a job. I'm reiterating what I said in April. We have just lost a job because of the fact that one serious violation has shown up in the last three years. That violation was not as a direct result of our work. It was that of the subs, but the automatic granting of, you know, the sins of the children upon the father has -- has eliminated us from a $150 million job. That's not acceptable. We need -- and we're willing as an industry to come out and help you, and again my point here is if we're going to be partners, stakeholders, we need to be able to get in with you at all times.

A perfect example is, Mr. Chairman, you talked about SENRAC and this issue should go quickly. Well, Subpart M is a perfect example. You just heard Ms. Jones talk about how the -- that particular standard has generated a tremendous amount of problems probably because we, the industry, haven't had quite as much input as we could have.

SENRAC, frankly, I -- I caught up with that very late, and I see things in there that I'm not particularly pleased with, wouldn't mind commenting on, but again we need to be able to bring to your attention as the group that represents us, and then have things come back at us.

Finally, I would just point out that there was a -- also at the last meeting, Mr. Nichols talked about the workgroups -- chart boards would be probably posted addressing workgroup functions and so forth, and I don't know whether it's because he's not here or whether that just slipped through the cracks.

I guess I'm saying to you when we -- when -- when decisions are made or promises are made, could you please at the next meeting raise up the debate? Where are you with this? What's happening? Why -- why -- is it not available? It may be simple. I don't know. We can't afford this. That's fine. At least we've got an answer.

Thank you.

MR. BURKHAMMER: Thank you, Rich.

Any other public comments?

(No response)

MR. BURKHAMMER: Okay.

MR. SWANSON: Just a couple of things.

MR. BURKHAMMER: Bruce, go ahead.

MR. SWANSON: Just a couple of -- of quick comments in response in case there's widespread confusion out there or in case ACCSH would like to see things done differently.

One, on the -- on the excellence recognition project, we are -- we, OSHA, we're working on that. We've been working on that for years. For years, many of us have been trying to come up with a BPP program or the -- I'm going to shut off again. A BPP-type program for the construction industry that does not take years to set up and therefore is -- is a more suitable vehicle for excellence recognition for the construction industry, one that might take simply months.

I think when the assistant secretary was here last time, he talked about a couple of pilot sites that are going on in the Western United States. Those are

-- that's another type of program. It is not a BPP program. It is a take-off on that. It is a streamlined BPP, but many people in this industry feel that one year on a job site still doesn't quite meet the needs of this industry, and we continue to -- continue to work on that. There is a workgroup set up for that.

And speaking of workgroups, the -- the vehicle that was explained for notice, and we can try some other vehicle if you'd -- if you'd like, but the vehicle that was set up last April was we asked folks in the audience, anyone in the world, that would like to be advised of a workgroup meeting on a particular subject to either let one of the announced chairpersons know, let the announced staff person know, or failing knowledge of -- of who is sitting in any of those seats, just let -- give my office a call, and let my office know that you wish to be on a list for a workgroup, and we will get you notice when it is going to meet.

This time around, we have like 10 workgroups, and this time around, we only knew of two workgroups that indicated that they intended to meet prior to -- prior to this meeting.

I think a third one met on -- on short notice, but I also believe we got to everyone who had indicated a desire for that notice.

That's it.

MR. FELL: Mr. Chairman, may I engage in a colloquy with --

MR. BURKHAMMER: No.

MR. FELL: No?

MR. BURKHAMMER: Public comment is not a public debate, and you -- you've been kind enough to come up and address the committee, and Bruce has the -- would like to respond to your comments. So, why don't you do that off line?

MR. FELL: I do have one other that I didn't mention, and that was the issue of the minutes being put on the Web. That was promised and that has not been forthcoming. I have heard an explanation on it, but I would urge the committee to also look at that and see that it be done.

Thanks.

MR. BURKHAMMER: Thank you.

I think from the acting chairman's perspective, putting the meeting minutes on the Web page before the committee approves those minutes at the next meeting is not professional, and I think it violates the intent of the minutes. Putting them on the Web page after the committee approves the minutes at the following meeting may not do anybody any good. So, I -- that's my personal take on the thing. Thank you for sharing that.

Does the committee have anything else they'd like to bring up to -- for discussion today?

(No response)

MR. BURKHAMMER: If not, we're adjourned till 9:00 tomorrow morning.

(Whereupon, the meeting was adjourned, to reconvene tomorrow morning, Thursday, July 23rd, 1998, at 9:00 a.m.)

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