Advisory Committee On Construction Safety And Health
U.S. Department Of Labor

Wednesday, April 8, 1998

200 Constitution Avenue, N.W.
Room N-3437
Washington, D.C.

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The above-entitled matter was convened, pursuant to notice, at 9:10 a.m.

 

P R O C E E D I N G S

 

M O R N I N G ; S E S S I O N
(9:10 A.M.)

CHAIRMAN NICHOLS: We will get the meeting started. We have more chairs scheduled to be brought in, so if there is not enough chairs, bear with us and they should be in shortly

I would like to call this meeting to order and welcome all of you here today. It is a privilege to set on this committee and to be part of the health and safety of the workers and how it is applied in the work place.

I am Tim Nichols. I will ask the Board to give a little self introduction as we go around. And once that is completed, I will also ask the audience to stand and give an introduction so the Board knows who we have out there. It is not necessary to come to the mike for that. If you wish to public comment, we will have a public comment time period after lunch for you to have an opportunity to make public comments. So, at that time you can come to the table for public comments.

As I said I am Tim Nichols and a representative of the Building Construction Trades Department, AFL-CIO. I have been there for approximately one year and a half. Coming out of Michigan, representing the Building Construction Trades in Michigan for eight years. And I am a member of Iron Workers Local 25 out of Detroit, have been for, I hate to say this, but 30 years. I served on the Construction Safety Standards Commission in Michigan for eight years and worked diligently to improve the health and safety of the workers in Michigan. We had a very great group to work with there. And as I heard the reports from this group is likewise.

So at this time I will go to my left and ask Bruce to introduce himself.

MR. SWANSON: I am Bruce Swanson. I see I am listed down here as a committee contact. I am actually the designated federal official for this Advisory Committee. Past committees have used that to be a designated federal target, and that is okay, too.

And I will to the best of my ability try to assist this committee in concluding its charge on giving advice to the Assistant Secretary.

MR. CLOUTIER: Stephen Cloutier. I am vice president of Law Prevention Manager with J.A. Jones Construction Company, out of Charlotte, North Carolina. I have been with that organization 24 years. I guess I am the old timer on this committee. I first joined this committee in 1988 and have seen lots of growth, lots of opportunities, lots of changes. We have made significant headway in the last eight to ten years, especially the last three years when the committee was very, very active. I look forward to participating with the organization. I think we bring a lot to the table for the safety and health of our workers in construction in general.

MR. BURKHAMMER: Stewart Burkhammer, I am vice president and management of Environmental Safety and Health Services for Bechtel. In my space time I am the safety and health director for the Boston Central Artery Project, the "Big Dig." I don't know how long I am going to this committee since 1991. And I agree with Steve, we have come a long way and done a lot of good things and we have a lot of good things to continue to do. For those of you that care, hopefully the

musculoskeletal construction will be back and I will be back with it. So, I will haunt you again.

MS. HARING-SWEENEY: I am Marie Haring-Sweeney. I am with the National Institute for Occupational Safety and Health. And no, I am not a vice president. But, I am the coordinate for all of NIOSH's construction research activities. I have been with NIOSH for 20 years, trained as an epidemiologist, but work in construction for the last 10.

MR. BUCHET: I am Michael Buchet with the National Safety Council. I manage the Construction Division there, which is a membership division of some thousand people in the construction industry. I have also got a little construction background on my own from doing blasting for Kennicott Cooper in 1965 and six in Council, Idaho and places like that, to doing underwater construction on the East Coast. I am also a carpenter. I have brought buildings up out of the ground in Los Angeles and some guys are having a hard time with that. And have spent the last 20 years dedicating myself to safety and health of fellow workers.

MR. COOPER: My name is Steve Cooper and I am an ironworker.

MR. EDGINGTON: Good morning, I am Larry Edgington, I am the Director of Safety and Health for the International Union of Operating Engineers. That is a position I have held for about a year and a half with us now. I have been on our International Staff for the last eight years. Originally, I am out of our Local 3, which is in the San Francisco Bay Area. I am really exciting about being here. We have got a full agenda, lots of important work to do. And I certainly look forward to working with all of you.

MR. RHOTEN: Good morning. I am Bill Rhoten, I am a plumber, pipe fitter by trade. The Director of Safety and Health for the Plumbers and Pipe Fitters International Union and look forward to working again with the Committee, with this reappointment. Thanks.

MR. SMITH: I am Owen Smith, president of Anzalone and Associates. We are painting contractors out of Los Angeles.

MS. HARRINGTON: I am Gladys Harrington. IAMS: Good morning, I am Jane Williams. I am an owner of Agency Safety in Arizona. I am past National President of the National Association of Women in Construction and also have been a member of the AGC National Safety Committee for the last nine years and my local chapter for the last 12 years. I am looking forward to working with you.

MR. DEVORA: Good morning, my name is Phillip or Felipe DeVora, whichever is easy for you to say. I work for a general contractor in Houston, Texas. I am proud to say Fretz Construction Company. It is our 75th year of continuous business in the Houston Metropolitan Area. I have a construction background, a journeyman carpenter for many years with this company. I also got into the safety end of it and the reason I say Phillip or Felipe, is I specialize in bilingual safety training in that part of the country. Looking forward to working on this committee, to help and improve workers' safety on construction job sites and here to lend any help that we can for that cause. Thank you.

MR. MASTERSON: This is Bob Masterson. I am with The Ryland Group located here in Columbia, Maryland. And this is my second time around on this committee and looking forward to it again.

MR. EVANS: My name is Danny Evans. I am spent 25 years in a chemical plant, working with about every type of known carcinogen there is. I was a certified welder during that 25 year period. I served five years as a vice president of the Nevada AFL-CIO. I served five years on the OSHA Review Board in Nevada. And was appointed to run the OSHA Enforcement Program in Nevada about four and a half years ago. Also served on the OSA Board of Directors. And I look forward to participating in this group.

MS. SHORTALL: Good morning, I am Sarah Shortall from the Solicitor's Office. I am the attorney who has been assigned to work with ACCSH during this go around. I think my assignment was made because I am also the rulemaking attorney on both the Ergonomics and the Construction safety and Health Program Standards.

CHAIRMAN NICHOLS: Thank you and welcome.

Before we have the public introduce themselves. There is a sign-in book outside the door back there, for those of you that didn't see it, would you please sign in, so we have a record of who is here.

Start to my right, your left, right there in the front.

MS. STANFORD: Dee Stanford.

MS. MCCLLELAND: Nancy McClleland, Occupational Health and Safety--

MR. SMITH: Smith, OSHA Director of Construction.

MS. JONES: Julie Jones.

MR. BOCHET: Alex Bochet, Comsaid Research.

MR. CARTER: Robin Carter, The Jackson Group.

MS. FUMO: Carolyn Fumo, Associate General Contractors.

MR. CUSTER: Richard Custer, American Road and Transportation Builders, Associates.

MS. CANYON: Melinda Canyon, Electrical Safety In Construction.

MR. COWARD: Del Coward, I am acting director in Construction Standards and Compliance.

MR. RAFF: Gerald Raff, Associated Builders and Contractors.

MS. HOWARD: Jean Howard, Bechtel.

MS. HOWIE: Linda Howie, Bechtel.

MR. EDWARDS: Ron Edwards, Star West Engineering Corporation.

MR. BROWN: Tony Brown, Rick Construction.

MS. FOWLER: Shartel Fowler, National Affairs.

MR. BRYANT: Greg Bryant, National Roofing Contractors Association.

MR. LAFFEY: Jim Laffey, Special Assistant for Construction.

MR. ESTEP: Jim Estep, Office of the Solicitor and Counsel for SunRyan.

MR. MORROW: Mike Morrow, Office of Fire Protection.

MR. PIERCE: Chap Pierce, OSHA Director of Safety Standards General Industry.

MR. KENNEDY: George Kennedy, Director of Safety, National Utility Contractors Association.

MR. CROW: Bob Crow, Roofers International Union.

MR. JAMES: Frank James, OSHA Public User.

MR. REEDY: Jerry Reedy, Retired.

MS. PULASKI: Barbara Pulaski, OSHA, Office ;

of --

MR. COLBERT: -- Colbert, Consulting Engineers.

MS. BEST: Audrey Best --

MS. PRIDE: Joan Pride --

MS. MILLER: Amy Miller, I work in the Office of Occupational Health nurse here at OSHA.

MR. POTTS: David Potts, National Electrical Contractors Association.

MR. CHAMBERS: Pete Chambers --

MR. BOONE: Pat Boone, Department of Energy.

MR. SCHRODER: James Schroder, Sheet Metal Air Conditioner Contractors.

MR. O'CONNOR: Joe O'Connor, Entac.

MR. HYLINE: Carl Hyline at AGC.

MR. HOWARD: Steve Howard, National Association of Home Builders.

MR. LORENZO: David Lee Lorenzo, National Association of Home Builders.

MR. MARTONIK: John Martonik.

MR. STOCK: Steve Stock.

MS. ROZNOWSKI: Ellen Roznowski.

MS. FREEMAN: Bonnie Freeman, Director of Public Affairs, OSHA.

MR. CONNELL: Noah Connell.

MS. VILLANOVA: Camille Villanova.

MR. BIERSNER: Bob Biersner.

CHAIRMAN NICHOLS: Behind the wall.

MR. BURK: Bill Burk, Director of Construction.

MR. BOONE: Jim Boone, Director of Construction.

CHAIRMAN NICHOLS: Thank you. At this time it gives me great pleasure to introduce the Assistant Secretary, someone over the last couple of months I begin to get know real well and I thought my schedule was busy. He seems to be even busier. I am not quite sure how that happens, but he is I think going to do an outstanding job for OSHA in moving health and safety forward. So, Charles Jeffress.

Welcome, Goals And Objectives For Construction:

By Assistant Secretary Charles Jeffress:

Assistant Secretary Jeffress: Thank you, Tim.

You there is a danger in getting to know the Assistant Secretary for OSHA real well. It is bad for your reputation, I want you to know that.

I welcome all of you all, add my welcome to Tim's and Bruce's, to the Advisory Council on Construction Safety and Health. I appreciate very much each of your serving. I was not privileged to meet with the previous Council since I am new to this position. From reputation, from talking to a couple of you all who have been on it previously, talking to people in OSHA, it appears to me that previous councils have been instrumental in developing policy for ACCSH as an organization. The Council, previous council have been willing to deal with very difficult issues, willing to bring to this table very different perspectives on safety and health issues in construction and get them out in the open, talk about them honestly and make, give the Agency your best advice. That is a terrific track record for a council and one I certainly expect you all will live up to and have a confidence that you will live up to.

I want to assure you of my interest in your honest and direct feedback and advice to us. I don't come to you asking you to ratify something just because I say it or OSHA says it. We come to you knowing there is a lot to be done in safety and health in the construction arena. And wanting your best and frank advice on how we as a government agency should pursue being protective of workers in this industry.

So, I thank you for serving. It is a thankless job. You will wonder after a year or two, I am sure, why the heck you agreed to do this. We will call on you during meetings, between meetings for advice and information. It will involve some research. It will involve some studying. It will involved some negotiation. It will add to the duties justnsibilities are and I thank you for being willing to undertake this additional duty and this additional service, because I do very much think of it as a service.

And I guess on a personal note, I need to apologize for my former boss, Harry Payne, the Commissioner of Labor from North Carolina, who can not be with us today. He was appointed on this council before my getting here. I want that in the record, that, you know, his service on the council predates my appointment as Assistant Secretary of Labor. But, he does look forward to joining you at the next meeting. He called me to apologize for his not being able to be with you today.

In terms of my personal relationship with you, in North Carolina as head of the State program there for five years, I invested a fair amount of time in talking with the people on our advisory councils. You are here to give us advice and I would like to hear it directly. I will not be able to stay for all of your meetings, I do expect to be here for a substantial portion of them, particularly the areas where were are asking for advice on that particular day. And I take that advice seriously and treat it seriously. In North Carolina, we didn't have many kinds of advisory councils, I understand at Federal OSHA, a lot of people tell me what to do. I did have but one advisory council in North Carolina, and spent a lot of time with them in every major policy decision that we took in that state. We took to advisory council before we adopted it. Here, in Federal OSHA, in construction, my intent would be the same. You are charged by statute with advising the Secretary of Labor on standards for the construction industry, on policy, on administration, how we administer the Act with respect to construction. I take that charge seriously. And I intend to bring to you the major policy decisions, the major standards activities we pursue, the major administrative decisions I have to make. I bring them to you and ask you for your advihat over the next few years as we work together, that you will get a chance to see and discuss and have input on the major actions this agency considers taking. And that input will be something we use in making a decision and we won't go ahead without talking with you and getting your, the benefit of your advice and experience.

So you know a little about my priorities and a number of you have been in meetings I have addressed, so have heard part of this speech before and I will keep it shorter because of that. I come to the Agency a big believer in the Strategic Plan which OSHA adopted last year, that sets out our goals and objectives and our priorities for the next five years. Primary amongst them is reduce injuries and illnesses in 100,000 work places by 20 percent over the next five years. The first time we have committed ourselves to measuring our success by whether or not we help employers and employees reduce injuries and illnesses. It a departure for us. In the past within OSHA, myself included, we took the view that whether or not people worked safer on the site was the result of what employers and employees did and while OSHA could give advice and provide motivation, that we wouldn't measure ourselves by the injury and illness rate at the construction sites or the work places because that was really dependent on what employers and employees working in that work place did. And felt like we had no control over.

So this Strategic Plan represents a major departure for us. What we, over a two year period, came to the conclusion that the American taxpayers, and the Congress is providing money to the Occupational Safety and Health Administration, precisely to see to it that more people come home safe at the end of the day tomorrow than did yesterday. And if that is why we 350 million dollars is being invested in this enterprise, then we should measure ourselves by whether or not we succeed in that goal of keeping folks safer on the job.

So we hasure ourselves this way. And what you will see from me, I hope, is that all of my efforts and energies are directed towards activities that will reduce injuries and illnesses in work site. And when you see me or Agency doing things that aren't contributing towards that goal, I hope you will speak up and suggest that we get onto something that is more appropriate and more directly related to reducing injuries and illnesses. But, I come to this position with the full intent of managing the Agency by that Strategic Plan and measuring our success by whether or not we, in fact, reduce injuries and illnesses.

A subset of that plan with respect to construction is that we will strive to reduce fatalities in construction, which remain high. And that we will also work with the construction industry to try achieve another 15 percent reduction in the injury and illness rate in construction. I want to commend to those of you in the industry on your contribution to what has been a phenomenal last three years in the construction industry. The rate has been coming down significantly to the point where the last two years it has been below manufacturing. And you know for years in this business manufacturing always pointed to construction and said, "Oh, those are the dangerous folks. OSHA, you need to go spend your time with construction." Now the construction industry, brought your overall rate down below manufacturing and the shoe is on the other foot. You can tell the manufacturing folks, "Hey, it is time for you all to get religion here, that we have made a difference. We have seen a change in our industry in the last few years." And I comment those of you who participated and did a part of it. At the same time, the rate is still high, relatively high. And we want to help continue that trend down and help continue that decrease. So our commitment over the next five years is try to work with you and folks in this industry to bring that rate down another 15 percent, aties in the construction industry.

So, as you think about what it is OSHA ought to be doing, and as you think about the things we bring to you, help us decide "Are these policies going to be helpful in reducing fatalities? Are they are going to be helpful in reducing injuries and illnesses? Is there something else we ought to being doing as an alternative to what we have got plan, that would be more productive?" So I ask your help on that.

The other two things I bring to the table in terms of my priorities is assistant secretary, are working on two important standards, I think it is important for OSHA to adopt. One on safety and health programs and one on ergonomics. The construction industry, you are fortunate and OSHA is fortunate in that we have had a provision in the construction standards for some time that mandate that within construction sites there be active safety and health programs. The Focus Construction Inspection Policy that OSHA adopted a few years ago, was predicated upon giving some consideration to employees that had effective safety and health programs on site. So construction is really ahead of the rest of the organization, the rest of industry, in moving ahead with safety and health programs. And this group here has played a significant role in promoting that activity. I know the last Council suggested we could go even further and improve the requirements for safety and health programs in the construction industry, and I want to continue working with you on that. But, know that right now in terms of a top priority, I would like to see general industry catch up, perhaps where you are, so my priority at the moment is working on safety and health programs in general industry. But, that is a second priority for me after managing by the Strategic Plan.

And the third is area of ergonomics. You know the third of our illness experience, a third of our Workers Compensation costs being driven by strains and sprain range of things that go under the musculo-skeletal disorders title. And it is clear that industry, that employees in this country have got to address the issue of ergonomics. OSHA has got to address it as well and so I am committed to going ahead and pushing ahead to get some effective effort at ergonomics. You should also know that I believe it makes sense for us to focus first on, in ergonomics on the areas where there are demonstrated problems, where we can show by data that there are a lot of people in this occupation, in this process, that are getting hurt. And also there has been some successful solutions demonstrated where people have been able to, employers, employees have been able to put into place practices, equipment changes, put in place solutions to their ergonomic problems. So, our first cut at the construction, at the, excuse me, at the ergonomics standard this year is going to focus on places where there are demonstrated problems and where there are demonstrated solutions.

In this particular area, I will have to say there are other areas in manufacturing, in health care, where we are probably further ahead than we are in construction, in terms of identifying solutions to ergonomic problems. So I would, as we focus, we will be asking questions of stakeholders in our proposed rule, where should that focus be. But, at this point I will have to say there is not as much information in construction as to how we could usefully address ergonomics in construction, there is in some other areas. So, I throw that, I guess, to the challenge, too. You know that that is sort of the direction we are headed right now, but this is the kind of group that can help us look at that issue as we go along.

And I will take questions and answers in just a minute in case there are some, but let me finish my part of my opening statement with a charge to you on three particulars things that I want your advice on, two of which are on the agenda for this meeting, one today and one tomorrow and one not yet on .

First in the area of standards, John Martonik will be here following me, to talk about the Personal Protective Equipment Standard that we have in OSHA. For years we had interpreted that standard as, if it says that the employer should provide the personal protective equipment, that meant the employer was going to provide the personal protective equipment at the employer's cost. A recent decision by the Review Commission, Union Tank Company, stated that since the standard didn't say provide at no cost, that it wasn't, OSHA could not require employers to pay for it. That employees might in situations be obligated to pay for the personal protective equipment. That was not acceptable reading of the standard from my point of view, and I asked that we proceed with a revision to that standard to make it clear that, where we say personal protective equipment shall be provided, that it means personal protective equipment be provided at the employer's expense. And not have a question of under what conditions it is provided or who pays for it. As we have pursued that, there has been, historically safety shoes and prescription eyeglasses have been things that employees have paid for because or contributed to paying for in many cases, because they use them off site and so we are allowing that, at least considering at this point, proposing that exception. And I would be interested in this group's experience, particularly in the construction industry, you know, is that an appropriate exclusion in the construction industry, are there other kinds of exclusions we should consider. But, know that this is a high priority for us because of a recent decision by the Review Commission, it is something we must settle this year. And so it is something that we are going to consult with you on today, but we need to be proceeding with it. So I really need you to consider it today and give us your best advice today. And I am sorry to hit you with it up-front and demand an immediate response, but it is something that is, because of the hoops we have to jump through in setting standards, it is important that we proceed very quickly on this one.

The second area that we are looking for your advice on is how to recognize excellence in construction. We have, as you know, the Voluntary Protection Program, where we recognize the Exemplary Safety and Health Programs that is really much better suited to the fixed site establishment and nearly all of participants in that are fixed site locations. We have a few maintenance contractors that have gotten at PBP sites that have also gotten star award, but it is very difficult and not particularly well suited to construction sites. And so, we want to ask you how to recognize excellence in construction industry. What is the right way and proper way to do that. We have a demonstration program we are ready to proceed with. I asked them to hold off until at least we could brief you on, tomorrow, on what we are planning to do on this demonstration. There may be other kinds of demonstrations we should proceed with as well. And you may be giving us some advice on how to recognize excellence in construction, but that is an area that I would like your advice and recommendations on as we go along.

And the third area that is not on the agenda for this meeting, but I hope you will be giving some thought to it, and might consider establishing some kind of work group or sub-committee, Mr. Chairman, on this area, is the area of how we identify construction sites for inspection. You know from reading the trade journals and so well represented here behind me today, that we in general industry have a program called the "Cooperative Compliance Program." And we surveyed 80,000 employers across the country to identify those employers with the highest injury and illness rates, and then came up with a program to, for those 12,000 employers with the very highest rates, offer them a partnership where we would go out there and inspect those with the very highest rates and those that didn't want to partner with us, they would stay on our primary inspection list. For employers who choose to invest in their safety and health programs and choose to make an effort on their own, to try to bring their rates down, we would put them on a secondary list and only inspect 30 percent of those. It has been stayed by the Courts, that will be hearing in the Fall, decide whether we can proceed with that. Nevertheless, it was a way that we had of identifying the work places with the highest injury and illness rates and focusing our inspection sources on where they need to be, where the most injuries and illness were occurring. Remember our goal is to bring those rates down by 20 percent at 100,000 work places. The first step is to identify which work places we should work at, where we could get the biggest bang for our buck. And that is what we are going through CCP.

In the construction industry, though, we did not survey construction employers, in part because so many of the subcontractors in the industry are small. There would have been a huge number of people to survey. And in part because even once we got a cooperative rate, that would not help us in terms of where the people were working, which site was more hazardous than another site. And they are not yet site logs out there everywhere, although some general requirement. So we don't yet have a goods construction sites or the employers where they most need to focus on in terms of helping further reduce the injury and illness rate in construction. So, I would ask this Council as one of your primary charges here over the next year, to give us some of your best thinking on how OSHA should focus its resources in construction in order to get to where we are most needed, wherever we can get the biggest payback on our investment and providing our safety and health expertise and advice.

And that is a subject for much longer discussion and there will be a lot of different ideas and hope on that. A lot of different view points on that. And different people here have different ideas over the years, but it is a discussion that we need to engage in over a period of time because we as OSHA need to come up with a better way to focus our resources in the construction industry. And I hope you will accept that as something for you to think about and give advice back to the Agency on during the course of this year.

Well, Mr. Chairman, for the balance of my time, I would be happy to respond to questions that people may have of me or comments or observations.

CHAIRMAN NICHOLS: Anyone wish to ask a question?

(Pause.)

CHAIRMAN NICHOLS: Nobody wants to --

ASSISTANT SECRETARY JEFFRESS: Recognizing the presence in the room, I appreciate your consideration. Anybody but Cooper, I am not sure I want --

MR. COOPER: Thank you, Mr. Chairman.

Charles, I have been on this committee since, off and on since 1976, and it has always been the first question out of the box, "How do we target Construction?" There have been probably 10 reports to this Agency because there has been that many assistant secretaries on target. My question to you is to assist this committee in this endeavor, is there some particular policy that the agency could give us that is present that we could utilize to evaluate?

ASSISTANT SECRETARY JEFFRESS: We could certainly, of course, give you what our present policy is in terms of how we identify places to inspect. None of the inspection policies that OSHA has ever had in construction ever used site specific or employer specific data. And I believe it is really going to focus on the individual places where we are going to bring the rates down, we have got to somehow get employer specific or site specific data. I don't think there is any other way of identify where we go that makes sense. So I can give you what we have got, and I am not familiar with the previous 10, Bruce may know more than I do, but I have not seen any suggestion, any policy that yet has passed the mustard, anybody has any confidence in, that gets us site specific data. So I really need your thinking on how we can get site specific data.

MR. COOPER: Well, that in itself is helpful because I know where you are coming from now.

ASSISTANT SECRETARY JEFFRESS: Right.

MR. COOPER: You are concerned about site specific.

ASSISTANT SECRETARY JEFFRESS: Right.

MR. COOPER: As a narrative for us to advise you on.

ASSISTANT SECRETARY JEFFRESS: Right. And I can give you the, how we identify the employers in general industry for the CCP. It involves the survey and then analyzing the results of the survey. And that is an option for construction, but it would be more difficult in construction, but maybe there is some variation of that might work.

MR. COOPER: And I assume you would do that through Mr. Swanson's office.

ASSISTANT SECRETARY JEFFRESS: Yes.

MR. COOPER: So we would be looking towards Bruce for that --

ASSISTANT SECRETARY JEFFRESS: I am also delighted to make commitments for Bruce.

MR. COOPER: Thank you very much.

MR. SMITH: I have a question. Would you elaborate a bit more on the ergonomics. For instance, I was, kind of thought it was repetitive type things, so would a carpenter nailing nails all day have a problem or a painter that is rolling or maybe an engineer that is driving all day?

ASSISTANT SECRETARY JEFFRESS: Clearly, anyone of those are, you know, could potentially be a problem for an individual. In terms of what we address, though, we want to be driven by the data as to the occupations, and the processes that show the highest incidence of musculo-skeletal disorders. And at this point in terms of the data we have, those trades don't show high rates of musculo-skeletal disorders. I shouldn't say, let's the higher rates are shown in other areas, in manufacturing in particular, in some, certain health care occupations, where a lot of patient handling is going on. So, yes, I think those are potential issues. How significant they are, I don't know yet. We are still asking that question and trying to gather that information.

MR. SMITH: Thank you.

CHAIRMAN NICHOLS: Any other questions? Comments?

Stew?

MR. BURKHAMMER: Two issues I will talk to you about. The first, you brought up about identifying construction safety excellence and excellence in the contractors, and we developed a few years ago, a program called "Construction Safety Excellence". OSHA approved it. We piloted it on four jobs, three in Florida and one in Georgia, the Savannah River Plan in Carolina. And we had pretty good success with them. Now, OSHA seems to feel that that program isn't warranted anymore, or it doesn't work, but they have never said why they feel that way. And I would be interested as to why the Construction Safety Excellence Program that this committee supported strongly, and was piloted successfully, is faltered?

And in the ergonomics issue, or musculo-skeletal disorders in construction, we have, we have presented a lot of data that shows just what you are asking for and we still have that data. I have volumes of it. And would be happy to resurrect the musculo-skeletal disorders in construction work group and push forward with that, because I fully agree with you, that the majority of the injuries in construction we are seeing now are sprains and strains, back injuries, wrists, knees, shoulders, fingers. And I think with the data that has been accumulated over the years by the various groups, that we can put together a pretty strong casm ergonomics, a lot of people think that they are talking about office work or repetitive motion in computers or that type of thing, but when you are talk about musculo-skeletal disorders it pretty well narrows it down to a work related type injury. And I think if we use that term rather than the term ergonomics, we can present a better case.

ASSISTANT SECRETARY JEFFRESS: Thank you. I appreciate that. And I hope, was some of that data presented during our Stakeholder meetings on Ergonomics in February?

MR. BURKHAMMER: Yes.

ASSISTANT SECRETARY JEFFRESS: Okay. Good, thank you.

CHAIRMAN NICHOLS: Steve?

MR. CLOUTIER: Charles, you talked earlier about striving to reduce fatalities and looking to reduce injuries and illnesses about 15 percent in construction industry. I didn't hear you mention anything on steel erection or SENRAC, or where that is going. And it has been going on for years. I know Mr. Cooper was on the committee and we are at least three years into this thing and nothing has happened. And we know that is an area where there is a potential for significant improvement in reducing fatalities.

ASSISTANT SECRETARY JEFFRESS: Right.

MR. CLOUTIER: And I am looking for some comments there.

ASSISTANT SECRETARY JEFFRESS: Yes, and actually a whole lot has happened in the three years period on that. And I appreciate what folks in that negotiated rulemaking did and the people that came to the table. Where we are on the SENRAC is, I think we have jumped through almost all the hoops in order to get that out. The, as you know, the committee and we had a labor management and OSHA committee that met to negotiate over a period of three years, what an appropriate safety and health rule, standard, for steel erection would look like for OSHA to adopt. And our commitment was to propose whatever the committee came up with, to propose that as an OSHA standarlabor management might agree, we still have to follow the Administrative Procedure Act and then the public process for adopting rules. And your frustration is, is not nearly as great as those inside our organizations of these hoops we have to jump through. But, we have finished the small business that we had to do, and Small Business Administration has signed off on our procedure with this. We have finished the writing internally. There is a clearance process through the Administration Office of Management and Budget before it goes to the Federal Register as a proposal. But, you should see that in the Federal Register by early this summer, not before, as proposed rule.

MR. CLOUTIER: My second comment is if we are going to see significant reductions across the board, whether it is in general industry or in construction, I personally feel we need to do an outreach program and get it all the way down to the elementary school, secondary education, middle schools and high schools, because that is where these young men and women and children are very impressionable. And I think if we can instill a safety sense in their well being at that time, they will carry it throughout their rest of their 12 years of school and into their adult livelihoods. Because we find in construction, we have many, many good folks that have been doing it this way or that way, and trying to change attitudes, it takes a long time to change attitudes. Whereas, if we could build a strong safety sensitive obligation at an early age, it would be ingrained in those folks. And we would see significant benefits down the road, but we have got to reach further backwards.

ASSISTANT SECRETARY JEFFRESS: I am impressed in what the environmental groups have done in terms of getting that recycling idea instilled at an early age. And kids these days are growing up with a different sense of what is important in the environment maybe then we did 40, 50 years ago. And the same thing could b: Thank you.

CHAIRMAN NICHOLS: Mr. Cooper, do you have a question?

MR. COOPER: No, but I can generate one.

ASSISTANT SECRETARY JEFFRESS: He has already used his, Mr. Chairman.

CHAIRMAN NICHOLS: I saw your hand go up earlier.

MR. COOPER: Charles, there is, as you brought up, SENRAC, and negotiated rulemaking, there are many of us in the construction industry, and the organized sector and the unorganized sector and all areas of management, who support negotiated rulemaking. And we thought in the ergonomics, I know there has been a lot of concerns from the Hill, in that endeavor and construction costs, thereof, and at times to attack the budget of the Agency. There is a feeling though within our industry, and those on the Hill to support negotiated rulemaking. And I certainly do. And my question to you is what are your feelings on negotiated rulemaking and with the idea that there will be involvement sometime or another coming from the construction industry to have the Agency looking for rulemaking office within the Agency.

ASSISTANT SECRETARY JEFFRESS: I believe negotiated rulemaking is a good process and has a lot to offer us. It is probably best where the issues are relatively narrow focused and the number of people that might be participating is unlimited. If it is wide as everybody in general industry, I think it is difficult to do negotiated rulemaking, get all the parties represented at the table. But, I like the process. I would, one of the learnings I think from the steel erection negotiated rulemaking is that for OSHA to say we will wait until we reach consensus, before we go forward with the proposal, probably is going a little too far. My guess is when it comes to negotiated rulemaking, people sitting down, that relatively quickly, we can come to agreement on, you know, 96, 97 percent of the issues involved in safety and health. And maybe what we should do is get to that pt the committee to continue working on that three percent, but in order to expedite the process, and move it forward, maybe we could modify the process. But, for process, I think useful for some, others it may not be appropriate for, and rather than have one office that just does negotiated rulemaking, I think I would rather have that become a tool in the toolbox where our safety standards group and our health standards group and for different standards at different times, use that more appropriate with the construction as well, use that as appropriate for the different standard study groups.

MR. COOPER: That folder was not only for construction, Maritime general --

ASSISTANT SECRETARY JEFFRESS: Right.

MR. COOPER: -- etc., at all.

ASSISTANT SECRETARY JEFFRESS: Right, right.

CHAIRMAN NICHOLS: Any other questions or comments?

Felipe?

MR. DEVORA: Mr. JEFFRESS, awhile ago when you touched on the ergonomics, it stuck in my mind that the examples that you mentioned were in manufacturing again or medical care workers or whatever, you did mention construction. I guess my concern there is the sound science research that is going, as far as construction goes, if that is -- or are we just lumping general industry again with construction?

ASSISTANT SECRETARY JEFFRESS: No, when we go forward with the standard, at least initially, now, I hope the standard will grow over the years as we find more ways to address musculo-skeletal disorders, we will add things to what the standard covers. But, when we go forward next year after our current rider expires on what we can do in this area, I want to be specific as to what processes are covered. And I want to identify those processes very specifically. And if there is information from the construction industry that particular processes, that are causing injuries and illnesses and the data shows that the injuries, illnesses are there, and we can demonstrate what kinds of alternatives you can pursue to reduce the likelihood of an injury, illness, then let's go forward with that process for that occupation and identify it specifically. So that is how we choose to proceed, not lump everything together, but be very specific about what we are trying to address.

CHAIRMAN NICHOLS: Time for one more.

(Pause.)

CHAIRMAN NICHOLS: Hearing or seeing none, at this time we would like to thank you and appreciate your comments and look forward to working with you as we move this process forward.

ASSISTANT SECRETARY JEFFRESS: Thank you very much. I appreciate it and I look forward to working with you all as well. And I am going to stay here and ask John Martonik to join me, as part of the --

CHAIRMAN NICHOLS: Please.

On comment before you start, John, as the ACCSH Committee asked questions or makes comments, please use the microphone, so everyone in the back can hear as well as the reporter.

John?

Personal Protective Equipment:

By John Martonik:

MR. MARTONIK: Good morning. My name is John Martonik. I am Acting Director of the Directive of Safety Standards Programs in OSHA.

We look forward to getting your comments on the recommendations today on a standard we would like to propose. This standard pertains to making, requiring the employer to pay for personal protective equipment.

On March 20th, Mr. JEFFRESS sent you a letter that contained the exact language of the proposed revision that we are considering. For the record, I will just read it. It is not long.

"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 toe protective footwear and prescription safety eyewear." OSHA would like to propose that standard for construction and also general industry and Maritime.

You might wonder what PPE, this standard would apply to, it would apply to all PPE that is required by OSHA standards. And it includes the PPE that we are typically familiar with, protective clothing like aprons and coveralls, respirators, hearing protectors, hand and arm protectors. But, in addition, we think the standard would cover fault protection equipment, such as body belts, live line laniords. And what the standard would also apply to other protective equipment such as life preservers and life jackets for workers who work around water.

The existing standards for the most part require that the PPE be provided and used. The standards do not generally state who must pay for the standard or must pay for the equipment. Since 1978, however, all of the OSHA health standards have required explicitly for the employer to pay for the PPE.

OSHA has interpreted the requirement that employers pay, provide PPE to mean that the employers pay for PPE. And on, about three years ago on October 18th, we sent a memo to our field and told the field to always require employers to pay for the personal protective equipment. In that memo we had some exceptions. The exceptions were safety toe shoes, non specialty safety glasses, and cold weather outerwear. We do recognize, however, although OSHA has been enforcing these personal protective equipment standards to require that the employers pay, there have been some inconsistencies in OSHA's enforcement in the past. And I guess resulting from the, some of the inconsistencies, as Mr. JEFFRESS pointed out, OSHA received a decision from the Review Commission es it is now necessary for us to proceed and explain ourselves a little better. And one way we would like to do this, is by promulgating a standard. We would like to clear up an uncertainties that employers and employees might have now regarding the impact of the Union Tank decision on our policies. And we would like to do that fairly quickly.

In addition, we believe that rulemaking also gives the public an opportunity participate and we are asking you for your comments, so that the proposal we may show the public is going to be the best proposal possible. So, we welcome the public participation in the exact requirement that OSHA would, OSHA would have employers pay for the PPE.

Another reason we would like to do a standard is that we would like to level the field for employers. Most employers now pay for PPE, some don't. Now we think that all employers should be, have the same opportunity to work on jobs and shouldn't have to underbid simply due to a policy regarding whether the employer chooses to pay for PPE or not.

I will give you some reasons of why OSHA thinks that employers should pay for PPE. You know, we work under the OSHA Statute and that Statute implies that the employers pay for safety and health provisions in this Standard. And even if the Act explicitly doesn't require it, we believe OSHA has the policy discretion provided by the Act, to require employers to pay for PPE.

OSHA also believes when we use the word "provide" in our standards, we think the word "provide" means pay for. So we think the standards always have required employers to pay for PPE.

But, in addition, I would like to point out that everybody agrees that employers pay for control measures, you know, they control for shoring, they pay for the shoring in trenches, they pay for guard rails on scaffolds. And PPE is a type of control. And as a type of control, OSHA would believe the employer shm. They know the hazards. They know how to select the PPE. They can assure adequate quality of product for the given use. And they are in a good position to keep it maintained. We also think that employers providing the PPE would improve employee cooperation to use the PPE. Notice that most personal protective equipment is not comfortable. It places a burden on employees and many employees would prefer not to wear the PPE. The employer running the program and providing the PPE to the employees at no cost, we believe would improve employee wearing of the personal protective equipment.

I would just like to point out that some states have requirements for employers to pay for the personal protective equipment. The State of California has been enforcing the existing standards requiring employees to pay for personal protective equipment ever since their state plan began back in the early '70s. The State of Washington has been enforcing OSHA's interpretation that employers pay for personal protective equipment. The State of North Carolina, actually has a standard that requires employers to pay for personal protective equipment. And in the State of Minnesota, the OSHA statute there requires that employers pay for all personal protective equipment.

In the draft regulatory text, I have mentioned two exceptions to the paid provision that the employers pay for all PPE. The exceptions were safety shoes, and prescription eye wear. One reason that we choose to except these types of PPE, is that the proposal that we have is codifying OSHA's existing policy. And we don't believe that OSHA has required in the past that employers pay for shoes or prescription eye wear.

We also want to point out that in accompanying the regulatory text, we plan to have a preamble to the proposal, which would describe some conditions that we know exists, that might impact on the employer providing the personal protective equipment. And one example, y toxin, even if the shoes are safety toed shoes, under such conditions of contamination, OSHA would expect the employer to pay for the safety toe shoes.

OSHA does not expect that this standard is going to have major cost impacts in the industry. But, we would like to make sure. We would like to know what the existing practice is today regarding pay for PPE. We think the good government is one that knows exactly what is going to happen as a result of the regulatory. So we have developed something what we call "use patterns." Okay, how many, what type of personal protective equipment is worn in a different industry sector.

Now we also have some estimates of pay pattern, that is how many employers currently pay for PPE. We are going to ask for your comments on our estimates.

We mentioned that we would like to move this proposal very quickly. And our current schedule calls for a publication in June of this year. And we hope to have our hearings in September.

In our March 20th letter to you, we asked you some questions, we asked you to respond to those questions. There are six of them. The first question is general, should construction, should such a pay for PPE provision apply to the construction industry? Okay. Then if it should, we asked whether there should be more exceptions then we have listed. And the third question was should these exceptions remain? Are these exceptions even appropriate, should we have fewer exceptions?

The fourth question with regard to your understanding of the characteristics in the construction industry, we would like to know whether or not the regulatory text language should be amended somewhat to accommodate some characteristics of the construction industry?

And the fifth and sixth questions ask your opinion regarding the current use patterns for personal protective equipment and the pay pattern for personal protective equipment.

Now mendations you have, please feel free to tell us of those.

Okay. That ends my explanation of what we are trying to do. And I will entertain any questions that you have at this time and then we can get on to your discussion of the activity.

CHAIRMAN NICHOLS: Questions, comments, thoughts?

MR. EVANS: One question I had on the proposed language. How would the exclusion of prescription safety eye wear apply to prescription eye wear that is needed to be worn inside a full face respirator?

MR. MARTONIK: The way the provision is drafted, the employer would not have to pay for that prescription eye wear inside the respirator.

MR. EVANS: The reason I ask that because from where I came from, they had a special made apparatus that fit inside the full face respirator that you had to have, if you needed prescription glasses, you had have those. But, that is not something you would wear down to the 7-11.

MR. MARTONIK: True. So it wouldn't fit one our criteria that it is personal use.

MR. EVANS: And I think that that is something that should be addressed, but I don't know exactly how.

MR. MARTONIK: Okay. We can consider that. That is a good comment.

CHAIRMAN NICHOLS: Steve Cooper.

MR. COOPER: Let me take -- I don't necessarily, I don't know, I saw this come across a couple of years ago and I don't know whose idea it was at OSHA to discover what particular type of protective equipment may be excluded and the basis of that exclusion. If it can be wore off site, on site, that was one of the, I can take a ladder home from the job, too, and use it at home. So, therefore, let me get on the hot seat instead of you, John, because it is coming. I would like to make a motion.

CHAIRMAN NICHOLS: Yes, sir.

MR. COOPER: I would like to make, to move that payment for protective equipment under Article D 1926.95, reads as follows: And you can see it right in front of you.

"All protective equipment, including personal protective equipment, required in this part, shall be provided by the employer at no cost to the employees."

That is my motion.

MR. RHOTEN: Second.

CHAIRMAN NICHOLS: Support for the motion. Questions and comments. I know Robert has a question.

MR. MASTERSON: I have a couple of comments. The first one and Bill has actually already covered to a certain degree, when you start talking personal protective equipment and you isolate out prescription eye wear, how does that deal with the ADA Standards for an individual's issue?

CHAIRMAN NICHOLS: Can you hear back there?

MR. MASTERSON: If you are going to single out prescription eye wear, how do you deal with the ADA Standards?

MR. MARTONIK: Yes, well, the ADA has its own set of criteria for reasonable accommodations. We don't want to conflict with those. But, if the ADA does require that reasonable accommodations include payment for prescription eye wear, that would be fine with OSHA. We don't have any, we are concerned that, by not being consistent with them, we want to be consistent with them, we don't want to say the employers have to pay for glaor not. We know, for example, that many employers pay for safety toe shoes as well, and we don't mean by this standard to stop that practice. We hope that continues. But, OSHA standards are minimal standards and as a minimum standard we have drafted some exceptions.

MS. SHORTALL: I would like to try to address part of your question. It is very interesting and it is increasingly an area that OSHA has to become more familiar with, especially since there are regulations dealing with the ADA that specifically allow pre-exemption of the ADA where another federal regulation requires a certain action that may appear to be discriminatory. So that is the over line arch for this. But, you have to remember the ADA is always dealt with on a case by case basis. And the first thing that must be ascertain is whether or not you have a handicapped person, a qualified person. A person who has some eyeglass needs, may not be considered a handicapped person of the ADA, and therefore, would not apply. Only when that criteria is satisfied, would you move onto having to deal with the issue of reasonable accommodation.

MR. MASTERSON: I understand what you are saying, the language that I extend here specifically says prescription safety glasses. And there are no qualifiers in that statement. Also there is no qualifiers in all protective equipment. That could be easily interpreted to mean the shirt that they are wearing on their back because it is protecting them from sun.

Now, the question I have got for the committee is, is what is the difference between a carpenter showing up with his hammer or showing up with his hammer and his hard hat? Is that not a tool of his trade?

MR. COOPER: Bob, it might be a tool of trade if you can speak into the mike because the people in the back that are wondering this maze, can not hear you. Okay, so you might want to repeat that.

MR. MASTERSON: My question is what would be the difference and I think the committee needs to look at, between a carpenter showing up with his hammer and a carpenter showing up with a hard hat or safety glasses that may be needed to do his job properly? It is a tool of the trade.

MR. RHOTEN: So are welding machines.

CHAIRMAN NICHOLS: Felipe?

MR. DEVORA: A follow up on the financial aspect of it, you alluded to your studies indicated that it probably wouldn't be a financial burden. But, this is, and I guess this is a rhetorical question day if the guy didn't bring his safety glasses that he was issued the day before? Or are we going to be in the situation where in some language, one of the questions was special conditions purvey on the construction industry, well, that special condition could be that we issue safety glasses on a monthly basis or biweekly basis, or whatever, but I am assuming that every time that guy shows up to work without his PPE that was issued the day before, we have to provide him another set of it again. And then the financial aspect of it is, I think is going to come into play there.

CHAIRMAN NICHOLS: Mr. Rhoten?

MR. RHOTEN: Yes. First I would like to say I appreciate the fact that OSHA is addressing this issue this quickly as you are. I think that is, I would disagree and I think it is illogical for OSHA to take the position that there are going to be contractors, as cost to his part of doing business, furnishing all the protective, personal protective equipment, except the shoes, the safety shoes or the prescription eye wear. The argument, I think in the past for the safety shoes has been that, well, the guy can wear them fishing or hunting and therefore, he gets personal use out of them. The truth is, those safety shoes aren't going to be worn hunting or fishing. And if you want to cap that argument, the employer could take the position that he just leaves them right on the job site that night and he would happy to.

As far as the first, the prescription lens go, I worked in the trade for a number of years with glasses. And they have had, you know, eye cover that covered my glasses and no contractor told me that I had to go buy prescription lens. He furnished me with goods and material that covered my glasses. If he came to me and said, "Look, I want you to go down and pay 60 bucks for a set of safety glasses and the OSHA regulation says you have to do that and you pay for them", I am sure that would get done more in the future, it is, you know, give or take a little. If OSHA passes this language, I can assure you there are contractors out there next week that will take the position, "Look, OSHA says you guys furnish your safety shoes. And the next Monday morning, I want you guys all fitted up with those $90.00 safety shoes in here." Where in the past, you might not have made the decision that the particular work they were doing required the safety shoes. It is pretty easy to go overboard.

In regard to what the impact, the cost is going to be in the industry, there certainly might not be any to employer, but I can tell you there is going to be a big cost to the construction worker. And I think it is, again, it is illogical. I don't think it should be considered by this committee as the right thing to do. And I would support the iron workers motion.

MR. SMITH: Mr. Chairman, these are both very thoughtful responses, but the fact of it is you have had it on the books before and it hasn't been a big problem. Safety shoes are rather, well, shoes, period, are rather personal items. It is not like a hard hat or a safety belt. People wear special sizes. And you can't just move, you know, you can't give a guy that wears a size 9 a pair of 12s because they are just too big. I like the language the way it is. I thought that was a very, it worked. And if it works, don't fix it.

CHAIRMAN NICHOLS: Larry?

MR. EDGINGTON: John, following up on your thoughts that it is not OSHA's intent to discourage any practices which may currently be in effect in terms of employers providing payment for safety shoes and safety glasses, to be quite candid with you, you are flat wrong about that. You know, the construction industry is a very competitive industry. And if you come out with a regulation that has specific exemptions to it, I know what is going to happen to my members. That cost is going to be either passed through to them, or my local unions are going to have a real go around next negotiating session where we have that language in our current collective bargaining agreements, and quite candidly the reason the language is there and I think the reason that you, that OSHA was faced with the Union Tank situation, is that for years there has been ambiguity as to whether or not the very items that we are talking about were or were not covered. In fact, there is a large segment of the industry and I suggest that the majority of the industry, thought that they were. And it just makes no good sense to me to exclude them.

CHAIRMAN NICHOLS: Mike?

MR. BUCHET: Mr. Chairman, I thought the difference between a hammer and a hard hat is probably obvious to a lot of people, but as we said earlier, there is a hierarchy of control measures. PPE is the lowest of them.

One of the other things, in the discussion about cost and what it is going to cost, has anybody sat down and figured out how much it is cost to inspect every worker's shoes when they come on the job site, every day? How much lost productivity you are going to have when you say, the heel on that shoe or the shank or the toe cap is not what I have to ensure as an employer, is a control measure on my job site? You send them home, you send to the store, they are not working. That is a cost that we haven't heard addressed. All we have heard is it is a $7.95 pair of glasses and a $45.00 pair of boots. And I would like to invite some people who might be able to come up with those costs and tell us what it would cost to initiate that sort of program.

CHAIRMAN NICHOLS: Stew.

MR. BURKHAMMER: I think this is a reaction to the Union Tank thing. Whenever you have a reaction to something it creates other reactions. And think this reaction is the wrong message. The current language has been there forever. And nobody has had a problem with it until Union Tank pushed the issue and won. So, again, going back to the fact that for the most of us in the industry, we haven't had a problem with the current language. It makes sense, it works. And for once in your life, don't change something that works.

CHAIRMAN NICHOLS: Jane?

MS. HARRINGTON: Mr. Chairman, I am in total agreement with Stew. I feel that it is working. I feel that the employers are taking a stronger position to the best that they can requiring these items. But, to mandate it, is going to be an enforcement nightmare, when you look at the long time employer work site conditions, under who would have the ultimate responsibility and the citation process for that. And I think the current language does satisfy the intent of what you are trying to achieve. And it may be that message that we need to enhance on a little bit rather than changing ER: Has OSHA considered the Workers Comp issue as it relates to the employer purchasing of someone's equipment? Because there is a Workers Comp issue there, which the employer will bear if faulty equipment comes on the job.

Secondly, there is really an economical concern here. You have to my right a gentleman from Chicago, where the construction scales are high in this country. You have Felipe over here, where the construction scales in Texas are very low. Down to $6.00 an hour in some cases. Now, if you are and as we all know or should know in this room, that construction workers are seasonal workers. And work when they can find a job. And let's take Teas, for instance, since we are sitting here in the Nation's Capital and assume that we have a worker in Texas that makes $6.00 an hour, and for him to get the job across the street or a across town, he has to purchase some shoes. And let's say they cost $50.00, which is a general cost for a halfway decent safety toe shoes. In fact, Red Wings cost $150.00. He has to purchase $50.00 which he or she may not have, to go across and get this job and the job lasts four days. Then this individual comes back with these shoes, which now equal his take home pay, and after taxes probably won't, this is a good time to bring that up, and has to look for another job. And you go to the next job and the safety director on that job, says, these safety toed shoes, we do not allow you use this space age plastic, which these shoes have. You have to go get the steel capped toe shoes. It is not right and it is not fair. Thank you.

CHAIRMAN NICHOLS: There is a question called. The question is to end the debate. All in favor of that question, signify by aye.

(A chorus of ayes was heard.)

CHAIRMAN NICHOLS: Opposed?

(One nay was heard.)

CHAIRMAN NICHOLS: Ayes have it.

MS. SHORTALL: May I ask who called the question RHOTEN: Well, I don't quite understand what you did with Burkhammer, but --

MR. COOPER: That is called "snooker and irony."

CHAIRMAN NICHOLS: It has been proposed by OSHA, I would make a motion, that the proposal read as follows, as it relates to 1926.95 to read as follows:

Paragraph D, Payment for Protection Equipment. "All protective equipment including personal protective equipment required in this part shall be provided by the employer at no cost to the employees."

MR. RHOTEN: Mr. Chairman, can I make one more statement, please?

CHAIRMAN NICHOLS: The question was called, no more statements.

All in favor of the motion signify by ayes.

(Whereupon, a chorus of ayes was heard.)

CHAIRMAN NICHOLS: Opposed.

(Whereupon, a chorus of nays was heard.)

CHAIRMAN NICHOLS: Show of hands.

All in favor of the motion please raise your hand.

(Whereupon, a show of six hands was seen.)

CHAIRMAN NICHOLS: Opposed.

(Whereupon, a show of seven hands was seen.)

CHAIRMAN NICHOLS: Seven to six.

MR. RHOTEN: So I assume this language is presented as that.

CHAIRMAN NICHOLS: No, no. It was -- Steve's motion fails.

MR. RHOTEN: So that language that was submitted passed?

MR. BURKHAMMER: No, we didn't make a motion for that.

MR. RHOTEN: So I could make a statement.

MR. BURKHAMMER: Could I make a motion before you make your statement?

MR. RHOTEN: No.

MR. BURKHAMMER: I yield to Mr. Rhoten.

MR. RHOTEN: Well, I just want to say this, if this language is presented by OSHA, in fact, is embraced by this committee, what you are going to do, there is going to be repercussions all over the country, because there is negotiated agreements all over the country. With chemical plant manufacturers, and contractors, there is language all over the country that is negotiated that says the employer is going to buy and provide the safety shoes and the prescription eye wear for that matter. Now when this committee embraces a change in that, what you are going to do is you are going to sanction wiping all that language. It is all going to go away because the contractors is going to sit a negotiating table and take this, a bulletin from this committee and OSHA and say, "Well, OSHA says you have got to supply your own shoes." And the person that is representing the employees, is going to say, "Look, we have had this language for 20 years, and you have agreed to it." "Oh, well, OSHA knows better than we do, you go buy your own shoes." There are repercussions with this language that are going to change things from the way they were when they were a little bit gray. You know, at least can sit down locally and fight the thing out. This is aimed directly at the worker, period. With no consideration being given to the status for the way things are in the industry now. It is a massive major change.

ASSISTANT SECRETARY JEFFRESS: Mr. Chairman, this may be a good place for me to just interject a note and a remainder of where we are on this. r doesn't necessarily end the issue. It provides us with the advice of this committee, a very close vote on something like that says to us we need to be very aware of what everybody on the committee has said and take into consideration the kind of comments you just made, Bill. It is clearly not our intention to change practices, current practices in the industry, where employers have chosen to pay this equipment already. And that is something we are, I heard loud and clear today and we will look at it as we make this proposal, have it considered and include that kind of concern in what we do.

CHAIRMAN NICHOLS: Stewart?

MR. BURKHAMMER: I would like to make the motion that the language currently in 1926.95 regarding personal protective equipment, is effective and is sufficient to protect the worker and provide the personal protective equipment. And I recommend we leave the language as is currently stated in 1926.95.

MR. SMITH: I will second that.

CHAIRMAN NICHOLS: Questions? Robert?

MR. MASTERSON: Actually I have a comment and it is just something that you might want to --

CHAIRMAN NICHOLS: You need to move the mike closer.

MR. MASTERSON: Okay. Something you might to note because I am looking at your table here of percentage of usage, I don't know where these numbers came from, but they didn't come from any construction I have been on. You know, I am out on the these construction sites, probably 50 percent of every week and to say you have a 100 percent use in building construction of hard hats is no where close to the mark. I really question the accuracy of the data that you are working from here.

ASSISTANT SECRETARY JEFFRESS: You think it is too high?

MR. MASTERSON: Way too high.

CHAIRMAN NICHOLS: Mr. Cooper.

MR. COOPER: Yes, I address to Mr. Burkhammer, a learned professional in one of the largest construction companies in this country, who just made the motion that we should adopt the language of the present regulations, but did not give us the language of the present regulation, which I think you should do at this time so this committee will understand exactly what his motion is.

Do we have it, .95?

CHAIRMAN NICHOLS: Bruce, do you have a copy?

MR. SWANSON: I don't but we can get one.

MR. RHOTEN: Are you sure you want to make that --

(Pause.)

MR. BURKHAMMER: Putting on my prescription safety glasses to read.

ASSISTANT SECRETARY JEFFRESS: Who paid for those?

MR. BURKHAMMER: Me. Me.

1926.95, Criteria For Personal Protective Equipment, Subpart E, Application. "Protective equipment including personal protective equipment for eyes, face, head and extremities, protective clothing, respiratory devices, and protective shields and barriers shall be protected, used and maintained in a sanitary and reliable condition whenever it is necessary by reason of hazards or processes to environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact."

MR. RHOTEN: Provided.

MR. BURKHAMMER: Provided.

MR. RHOTEN: That means paid for, right?

MR. BURKHAMMER: Shall be provided.

MR. RHOTEN: Shall be provided.

MR. BURKHAMMER: Shall be.

MR. RHOTEN: Provided, will that cause a problem?

MR. SMITH: Yeah, but that is the interpretation.

CHAIRMAN NICHOLS: Please wait for your turn. Please wait for your turn. Okay, Danny?

MR. EVANS: I had a statement to make. First, we have a roofing company in Nevada presently that hires English speaking workers and Spanish speaking workers. When they hire on, they are required to have their own ridgely equipment for roofing of houses and their safety harness. If they do not have them, the employer gives it to them. They sign a contract that they will pay for that equipment at $50.00 a week or $50.00 per pay period, and that if and when they quit the employer, they may purchase that equipment back from the at the employer's discretion and they may not give them the full dollar amount that they paid for that equipment, based on the wear and tear. And what is really ironic about it, that the English speaking employer has to pay $1,000.00 for the equipment and the Spanish speaking employer pays $1150.00 for the equipment. And it is the employer's discretion when they quite, whether or not they buy it back and if they do buy it back, they buy it back at a reduced rate, based upon wear and tear of the equipment. I do not think that employees should have to pay for the equipment, either up front or by paycheck deduction. Thank you.

CHAIRMAN NICHOLS: Felipe.

MR. DEVORA: Keeping on the financial tone there, Mr. Cooper, I don't know what part of your country you are from, but I think, I know where all the $6.00 an hour iron workers went to. We don't have any in Texas that I am aware of.

MR. COOPER: Laborers you do.

MR. DEVORA: Laborers, we don't have any. And I will tell you this, I think there are $6.00 an hour laborers throughout the country. However, my point is, is as far as financially beia moot point. We provide personal protective equipment. I think our task here through the standard as it stands, is to educate contractors that don't. And I think we are doing it, we are doing a better job to it. The knee jerk reaction to a particular case, and let's go in and whitewash the standard and let's change it, change the wording verbatim, as far as I am concerned and to be, to be honest with you, I have only had this information, I guess, for a couple of months or a month or so, you know, there is some more investigation and some more cost analysis that I personally would be more comfortable doing before, you know, we went off and agreed to change the language in the standard.

CHAIRMAN NICHOLS: Any questions?

MR. CLOUTIER: Call for a vote.

CHAIRMAN NICHOLS: All in favor of the motion, signify by raising your hand.

(Whereupon, six hands were raised.)

CHAIRMAN NICHOLS: All opposed.

(Whereupon, two hands were raised.)

CHAIRMAN NICHOLS: Motion passes.

(Pause.)

CHAIRMAN NICHOLS: At this time we will take a 15 minute break and reconvene here at five to 11.

(Whereupon, a short recess was taken.)

CHAIRMAN NICHOLS: We will reconvene this morning's session and start with the Historical and not hysterical, Historical Overview of Previous ACCSH Committee Activities. So, with that we will turn it over to Camille Villanova to talk about training.

Presentation On Training And Safety And Health:

By Camille Villanova:

MS. VILLANOVA: Hi. I will give you the spelling of my name in a minute, okay.

What I am going to do if it is all right with you, I am going to combine Training and Safety and Health Programs because the two work groups were together. So, it will just be a combined overview of the work groups.

As you probably know, construction committees have gone back to 1970. They actually had a committee formed prior to OSHA. And from their transcripted meetings, they discussed at length what should be in a construction occupational safety and health program standard. But, what you see, the results of what you see is right now in Subpart C, 1926, Subpart C. So that is the results of the original people from that prior, to when there wasn't even an OSHA. Okay.

So, from there we are going to jump up, from there we will jump up to the most recent effort and the most recent efforts started February 27, 1995. Since then, since February 1995, there have been approximately 180 construction stakeholders participate in an eleven work group meetings for the Safety and Health Program Standard for construction, and the two training work groups, for, that is related to the Safety and Health Program Standard. They met very diligently and these people worked very, very hard. And, you know, I know that the chair person of the group thanked everybody and as the person that was assigned from OSHA to work with these two work groups, I can tell you how much hard work both of these committees, both of these work groups actually put in.

The results of the, I am going to go right to the end here, the results of these two work groups are that on August 8, 1996 ACCSH formally recommended to OSHA a recommendation that OSHA publishes a proposed rule, a rewrite of Subpart C, which included an Occupational Safety and Health Construction Management Standard. Whenever that rule was, well, in the courin formally requested to OSHA a recommendation for rewrite, a revision of Subpart C with two caveats in it. And at that point the recommendation was received and that is in your blue booklet, and I believe it is on an ACCSH letterhead and it is signed by Knute Ringen, who was the former chair person of this committee.

Okay. If you would like a more detailed history, I am going to real quick skip through some of the changes that have actually gone on in the development of the Safety and Health Program Standard.

At the February 1995 meeting, OSHA had promised to deliver to the ACCSH committee a drafted standard of a general applying to everything construction, general industry and Maritime standard for a program, a Safety and Health Program Standard. Instead what OSHA delivered was an outline. The outline covered topics such as multi employer work sites, medical surveillance. It was a very extensive outline. And a draft was promised by the very next ACCSH meeting. At the next ACCSH meeting, no draft was delivered. And that is when the ACCSH work group for Safety and Health Programs Standards begin their work in earnest. This is when they started to having separate meetings and this is when the bulk, between 1995 and 1996, this is when the bulk of meetings occurred.

The work group decided rather than start with the OSHA draft that included things like medical surveillance and monitoring, what the work group would in fact do, is they would start with Subpart C. And what they would do is take the things that had and had not worked for them in Subpart C, and address them line by line. So, they had all kinds of interesting discussions on multi employer work site, and training, as you can well imagine.

Some of the meetings were attended by, almost as many people that are here now and probably all of the people that are sitting at the table, or almost all of the people sitting at the table and sitting in the audience. Okay, there were a lot of actual proposals submitted. Some of the companies, people sitting at the table and some people in the audience, actually submitted their full safety and health programs and plans for the work group to review. Some of the best parts and some of the workable parts were taken from there and discussed and discussed again. And this is the, this is in your package is what the final recommendation from ACCSH to OSHA was to consider.

It didn't get in the package? Okay, it was the package that was mailed to you. Okay, I am sorry Okay, it was the package that, I believe the chair person mailed to you.

CHAIRMAN NICHOLS: Correct.

MS. VILLANOVA: Okay, I am sorry.

But, there are 50 copies here. It is a letter from the Advisory Committee on Construction Safety and Health to the acting Assistant Secretary of Labor Gregory Watchman. Okay. If you don't have it, you will get it shortly.

You will see that there are two provisions in there for the training work group to work on. The training work group had begun work and was going to deliver a product to ACCSH for their full recommendation on what training should be included, what the definition of training should be, if it should be pre-employment training, if it should be concurrent training with the work, if the employer would be responsible for paying, numerous issues.

At that time, the ACCSH charter lapsed and there were only two meetings of the training group and the training group was never able to present a final work product officially to OSHA through ACCSH.

So that is a brief history. If you want to know the topics, I will be more than happy to go into each and every one of the topics. But, I believe all of the members, all of the existing members of ACCSH that were reappointed to the committee can probably fill you in on the next break about how the information exchange occurred. Okay. And all of the topics. We can, very frankly, Mr. Masterson can tell you, I think we tried to address each and every topic, each of the 11 meetings, okay. If you have any general questions, I will be more than happy to answer. And again, I am, I most thoroughly know the time frame from February 1995 until May of 1997.

CHAIRMAN NICHOLS: Does anyone have any questions? Bill?

MR. RHOTEN: Maybe just a comment for the Chairman, I think, as far as I recall, Stew, correct me if I am right or wrong, this thing was pretty much adopted except for the issue we had on training, is that correct?

MR. BURKHAMMER: That is right.

MR. RHOTEN: And then we had several sub committees meetings and I have was always of the opinion there should be pre training before anybody walks on a construction site, that you shouldn't take somebody out of high school, put them in a building and expect that they are going to get that on the job, or from the guy they are working with. And I think that was the whole issue and I would suggest, I think that issue is still out for debate. And there is no recommendations, well, they can't be any recommendations from the sub committee. And I guess all that information that we gathered, it was probably six or paramount.

MR. BURKHAMMER: Okay. We were putting together the appendix, the training appendix for 1926.21, training requirement. As Bill said, we probably got six or eight inches in material. But, we never had an opportunity to get back together as a work group. And several members of the audience were in that work group, so we are still kind of in limbo waiting to be reappointed if the Chairman so desires.

CHAIRMAN NICHOLS: We will discuss that tomorrow.

Mike?

MR. BUCHET: Those of us who were not with the last committee, what is this F Multi-employer projects and then there is an attachment that isn't attached?

MS. VILLANOVA: You are right. Evidently it wasn't attached in your send out and I can have it by this afternoon for you.

MR. SMITH: So this, this one that was mailed is different from this one?

MS. VILLANOVA: This is in your mail out package.

MR. SMITH: Right, the one that you just handed out.

MS. VILLANOVA: Yes, it is the last page.

MR. SMITH: This piece here was mailed to me, but that was different from --

MS. VILLANOVA: These should be the last three pages of your mail out package.

MR. BUCHET: The mail out package doesn't have the attachment on it --

MS. VILLANOVA: Yes, I realized that last night.

(Pause.)

CHAIRMAN NICHOLS: We wanted to make sure that, to see if anybody had read their packet before they got here. And evidently some of you have. What we will do, as I stated earlier, we will discuss work groups tomorrow, but the work group that will be appointed and those of you who wish to volunteer to serve, can look this over and bring this back to this group.

Owen?

MR. SMITH: Yes, I have a question. I see that the work group's product has been worked over by someone. It has some recommended changes. So the work group is now going to look at those changes?

CHAIRMAN NICHOLS: Right.

Other questions or comments?

MR. SMITH: Will we have an opportunity to raise questions about that?

CHAIRMAN NICHOLS: Yes.

Thank you.

MS. VILLANOVA: Okay.

CHAIRMAN NICHOLS: Next we have Ellen Roznowski from Women in Construction. Hopefully I got that somewhat close.

MS. ROZNOWSKI: Very close.

CHAIRMAN NICHOLS: Ellen?

Women In Construction:

By Ellen Roznowski:

MS. ROZNOWSKI: I am Ellen Roznowski. I was the director of Construction Staff Liaison with the work group on the Health and Safety of Women in Construction.

This group was started in 1994, in response to the recognition that there were increasing numbers of women entering the trades. And that there was concern that there were elements in the work place that affected women's health, both in terms of hazard and also the work place culture. So, the work group was established and Lauren Sugarman, who was an ACCSH member at that time and director of Chicago Women in the Trades, we made the chair of that group. Members of ACCSH, other construction stakeholders and NIOSH and OSHA personnel were invited to participate in that group. The group worked over a two year period to identify health and safety issues affecting women in construction. And they had the goal of presenting, gathering data and anecdotal information to demonstrate problems. And also they specifically wanted to provide some recommendations about what the industry can do to address the issues that had been raised.

The work group conducted a literature search, extensive literature search, looked at OSHA standards and NIOSH documents, gathered and gathered information that was produced by three studies. Two were conducted by NIOSH on women in the trades. And also Chicago Women in the Trades had done a survey of its members, which included a number of occupational issues but also included safety and health. The resulting report identified seven major issue areas where there were problems perceived, affecting women in construction.

The first is ill fitting personal protective equipment. Inadequate and unsanitary, sanitary facilities. Musculo-skeletal disorders, reproductive hazards. The work place culture, which is perceived to be hostile and included violence and sexual harassment, lack of training, and the lack of gender specific illness and injury research. These recommendations, these issues are contained in the Executive Summary of this report, which I have given out to all the committee members.

The report then concluded with recommendations giving OSHA and the construction industry stakeholders specific sets that could address and improve health and safety concerns of female construction workers. And these are listed, starting on page three of that Executive Summary in the report.

This report was presented to ACCSH in the March 13th meeting by Lauren Sugarman. And after a brief discussion the committee passed a motion adopting the HASWIC work group report and passed it forward to OSHA.

The motion that was passed by the ACCSH on March 13th also recommended that OSHA develop a dissemination plan for this report and addressing the issues facing women in construction, that would have three components. That the report should be published. That OSHA should convene a seminar or other education event. And also that there be published a brochure or handbook for workers that would describe these issues and what might be done about them.

The work group was stressing the need for education and that was part of the dissemination plan, about the issues that were raised in the report. But they also recognized that OSHA and its stakeholders should be playing a much stronger role in helping to bring about safe, healthy and equitable conditions of work for all workers.

At a subsequent ACCSH meeting in June, there was a motion passed requesting a response from OSHA to the recommendations in terms of what actions OSHA might take to address the recommendations and the issues raised in the report and in what time frame.

The HASWIith the development of the publication, both the report and what we would call the awareness brochure and also other elements of dissemination. And they also wanted to work to present the report at conferences and other venues, where it might be useful. This activity, of course, was cut short when ACCSH dissolved.

The current status that NIOSH has, in fact, undertaken to reprint the report for distribution. And they are also committed to developing a companion piece, which we call the Awareness Booklet, for training and also other outreach activities. And that this would summarize the issues raised in the report. A dissemination plan is still needed. And I think that ACCSH input would be very useful both in developing that plan for dissemination, and also in providing input to NIOSH in the production of the Awareness Booklet. The NIOSH project also includes an evaluation of the use of these materials, particularly in the context of the Laborers Apprenticeship Training Curriculum. And that is where it stands now.

CHAIRMAN NICHOLS: Any comments.

(No response.)

CHAIRMAN NICHOLS: Hearing none. Thank you.

MS. ROZNOWSKI: Sure.

(Pause.)

MR. BIERSNER: Should I introduce myself? I guess we are going to proceed with the afternoon agenda.

CHAIRMAN NICHOLS: Yes, we are.

Historical Overview Of Previous ACCSH Committees:

By Bob Biersner:

MR. BIERSNER: I am Bob Biersner. I am the attorney assigned to the confined space proposed standard. And I will give you a brief summary of where we are.

Last winter and spring of 1997, the prior ACCSH had formed a working group that submitted to OSHA a draft revision to the General Industry Confined Space Standard, accommodating some of the special needs of the construction industry. We reviewed that standard during the spring and analyzed the draft that had been submitted by the prior ACCSH working group. Analyzed it on the basis of both its costs and, or not on its costs, but on the effectiveness of the protection provided and the burden that would be imposed on employers. We were, the bottom line is that we found that unlike the, compared to the general industry standard, it provided less protection to employees and imposed more burden on employers. So, we decided to revise the draft that had been submitted to us by working group and we did that over the Summer and into the Fall.

The approach that we took was, initially some of the members of the OSHA team, including myself, thought that we should go ahead and just simply reinstate the General Industry Standard. But, during the course of the summer we decided that there are a number of organizational and comprehensive problems with the current General Industry Standard, plus it doesn't address some of the unique needs of the construction industry. For example, we found that in most construction sites you are going to have an evolving responsibility to continue to look at confined space hazards that you typically don't have in general industry.

Another problem that we are facing and we still have not resolved are sewer construction projects and the control of the hazards in that situation. We have had some input into that area from prior members of the working group that had been formed by the preceding ACCSH. And we are Industry Standard, tried to accommodated it to the special needs and tried to make it more comprehensible. And one area is that if you remember, if you have read the General Industry Standard, you get into the, an alternate confined space situation by default. In the construction standard, we are going to be right up front about it and allow you to get into an alternate confined space condition provided you meet certain, imposed certain sorts of control factors and the confined space has certain characteristics. At this point, we have lost the project officer, Gala Sparsa, who retired last week. And we are going to be awaiting the appointment of a new project officer and we will proceed with that proposed standard as soon as we do.

I have, in the meantime, tried to continue to revise it. It is an extremely complex and intricate standard. There are many factors that interact and then when you start fooling with one and fooling around one of the factors, you find that it has ramifications throughout the system. So you have got be very careful every time you make a change. And that, and that has been causing us some problems. I think we have to make certain that when we change it, we make certain that we understand what is happening through the rest of the system.

At this point, I would hope that as soon as a project officer is appointed, we would have a proposed standard, certainly ready for OSHA review within six months after that appointment. And beyond that point then we would have to seek comment, have a hearing and go into a final standard, which would be probably several years down the road.

Are there any questions?

MR. SMITH: Yes, I have one. You said that in going over the submittal from ACCSH that you found that the employees were offered less protection.

MR. BIERSNER: Yes.

MR. SMITH: Would you care to elaborate?

MR. BIERSNER: How is that?

MR. SMITH: I said, would you elaborate?

MR. BIERSNER: Compared to the General Industry Standard.

MR. SMITH: In what areas?

MR. BIERSNER: Basically in the way in which hazards were controlled for employees, when employees were in the confined space situation. And when a permit was going to be required.

MR. SMITH: I see.

CHAIRMAN NICHOLS: Any comments? Steve?

MR. CLOUTIER: I take major, major offense to that statement. Since I was a co-chair for that project. And we worked diligently to provide a product. Joe Deer came back here and forced us to have some expedited meetings and go forward with it. And we took it line item for line item against general industry and we cleaned up some problems that were general industry in our opinion. And if Mr. Rhoten was here in the room, I am sure he would say the same thing. And I think we looked at it very fairly, very objectively and provided a document going back to the Department that provided additional protection to employees in the work force. And I am offended by that comment from the Department.

MR. BIERSNER: Well, I think the draft was helpful to us. I mean, we certainly took some of the, you know, took much of the language, because it really did clean up that, the former General Industry Standard. But, we did a careful analysis and the additional protections that were provided, were extremely costly, but then there was also protections that were reduced. And in then the bottom was that we thought, based on your analysis, that it would end up providing less protections.

CHAIRMAN NICHOLS: Any other comments?

Hearing none. Thank you.

Moving right along, stepping a little out of order, we will have Ellen come back up and do Sanitation and Decontamination Washing Facilities.

MS. ROZNOWSKI: Thank you.

CHAIRMAN NICHOLS: Thank you.

Sanitation And Decontamination Washing Facilities:

By Ellen Roznowski:

MS. ROZNOWSKI: The issue of sanitation and decontamination was raised at an ACCSH meeting, particularly with regard to sanitation, there was a specific recommendation, as I noted, in the HASWIC report, that talked about sanitary facilities. And I will read you the recommendation.

"OSHA should amend CFR Section 1926.51, toilets at construction job sites, to specify that gender separate external and internal locking sanitary facilities be provided on construction work sites. That employees be allowed to use such facilities as needed. Be provided keys for gender appropriate facilities. That the toilet facilities be maintained in a sanitary condition and in good repair. That clean toilet paper be provided within of the toilet and hand washing facilities be located within close proximity to toilet facilities."

The additional recommendation where change rooms are provided on construction sites, these should be gender separated and provided with inside and outside locking mechanisms.

So, at a subsequent meeting I was asked to give a report on decontamination and sanitation. And I can just highlight some of the issues that I touched on with regard to decontamination.

CHAIRMAN NICHOLS: Please.

MS. ROZNOWSKI: The construction regulations address the hazard of contaminated protective clothing and equipment in a number of standards. I have these listed. I won't bring you through the list right now. But, cleaning of contaminated protective clothing is also addressed in Substance Specific Standards. And decontamination and cleaning of equipment other than protective clothing, is not addressed specifically but generally in terms of contamination of surfaces under housekeeping requirements.

Standards with provision concerning regulated areas often prohibit removal of contaminated equipment, unless it is ensealed in impermeable or lination, which requires decon procedures or disposal for clothing and equipment use in contaminated area.

We looked at citation data for the Construction SIT codes and we saw that there were relatively few violations cited for those listed requirements.

Citation data for the relevant laundry SIT codes, which we took a look at, this would be Industrial and Commercial Laundries, show few citations for violations of the asbestos letter requirements, concerning laundering of contaminated clothing.

Unlike general industry, equipment used on construction sites is moved from site to site. And rented, it is often used by multiple contractors. There is no provision for hazard notification for contaminated equipment similar to the requirements for contaminated clothing. Neither contaminated clothing or equipment need any documentation showing a chain of custody, when this material leaves the work site. For example, what it was used for and who used it and whether or not it was certified to be cleaned.

A NIOSH report to Congress published in 1996 on take home toxins, includes several incidents of co-workers and family members who were exposed to hazardous substances by coming in direct or indirect contact with contaminated equipment or clothing. Several cited scenarios occurred in the construction industry. More research is needed to identify potential exposures and determine the health risk associated with observed levels of contamination. Work practices, and controls that prevent the transport of contaminants fro the work place need to be identified and evaluated.

So that was basically what was presented to the committee with regard to decontamination.

After a discussion of the report and also the HASWIC recommendation, ACCSH established another work group for decontamination and sanitation. And Steve Cooper, who took a major role in the discussion volunteered to head up that work group. Once again, because of the ACCSH charter running out, that work group fairly subsequent, fairly soon, subsequent to that meeting, the work group did not meet. However, I meet in July with Mr. Cooper, to look at the existing standard, which OSHA has for sanitation, 1926.51, and compare that with the HASWIC recommendation and identify what possible deficiencies might need to addressed in a rulemaking. And what we found was that the existing standard did address hand washing issues in the sense that hot and cold or tepid running water was required. Towels, a provision of towels was required. And soap was required to be provided to employees.

However, there were some issues that were not addressed and this was the sex segregated provision of toilet facilities. There was no provision for locking and enclosed toilets in the existing standard. The accessibly located and in close proximity to one another, that would be the hand washing station and the toilet and also proximity to work, was not specifically addressed. And also there was no language addressing provision of a clean and sanitary facility or the provision of toilet pd from Mr. Cooper that subsequent to that, the Building Trades Health and Safety Committee had a work group on sanitation, which has met on this issue. And at this point, I will turn it over to Mr. Cooper to see if he has any additional comments.

MR. COOPER: Mr. Chairman, this issue as Ellen pointed out, was discussed thoroughly at the last group of ACCSH and a committee was set up. And we worked on the issues of two, two general issues. One is washing facilities in construction. And sanitary conditions, restrooms. Those two areas generally.

And as she also pointed out, and repeating just what she said, at the conclusion of the ACCSH committee, we could not meet, so, therefore, it is imperative that this issue, which I will say once again, the Industrial Hygienist of this country should have addressed this as number one issue years ago, we should continue on this endeavor with this committee to continue and bring forth this committee a recommendation on washing facilities in the construction industry and restrooms.

CHAIRMAN NICHOLS: Any other comments or questions?

We will discuss it.

Next we have Steve Stock to talk about Scaffolding, Appendix B. Steve?

Scaffolding Appendix B:

By Steve Stock:

MR. STOCK: Right now what you are being passed around is the latest draft of Appendix B, in Subpart L, that the work group, that was charged by this committee, prepared.

In 1997 the work group met in March 11th and 12th in Washington, here and subsequently in May, on the 5th and 6th, in Chicago and prepared this draft.

Earlier this week I spoke with Owen Smith, who was the chairman of this work group and this is what was forwarded to this office. Unresolved issues during these meetings and these were not included in this product. And I cannot say anything else, since I didn't attend these meetings. I would pass that over to Owen.

MR. SMITH: Yes, there were some unresolved issues and that had to do with tying off to the scaffold. I had mentioned it earlier that there was, should be some follow-up testing. The scaffold people understandably don't want their scaffolds tied off. And the reason for that is that they are afraid of a lawsuit. They are afraid that if they say that you can tie off to their scaffold, even though it is recognized that they will arrest a fall, that if someone dies or they hit the scaffold some kind of way and get hurt or if a weld breaks, that they are going to be sued for that. And for that reason, they issued some kind of a paper, as I understand, saying their scaffold should not be used to tie off to.

In addition, they had, there were a number of videos, some of them that were used for sales and others supposedly for safety. And it was my understanding that the scaffold institute was going to come up with some guidelines for testing. And Labor was going to take to a look at those also and it was Joe Dorts and Kelly Lappings thought also that NIOSH would conduct an impartial study, so that whatever came out of that would, they could buy into.

But, I haven't seen the standards that these guys are suppose to use for the testing. And that is where it was left.

CHAIRMAN NICHOLS: Stewart?

MR. BURKHAMMER: Oh, and this document here, never came to the committee for vote, right?

MR. SMITH: That is true.

MR. BURKHAMMER: Oh, okay, thank you.

CHAIRMAN NICHOLS: Draft Appendix B to Subpart L.

MR. SMITH: Now we did go through this just like a negotiating session, we did it line by line and a buy off and we had a consensus with this. Nobody was really happy, which means it is about as best, as good as we could get, but it was contingent upon the testing. So at this point it is in process.

CHAIRMAN NICHOLS: Steve?

MR. COOPER: Are you saying then that this document is being proposed to the committee?

MR. STOCK: This was the, out latest document that the work group, that the previous ACCSH committee charged, has prepared.

MR. COOPER: Was Mr. Smith chairman?

MR. SMITH: Yes.

MR. STOCK: Yes, he was the chairman of that.

MR. COOPER: Mr. Smith, is this document being proposed to ACCSH at this time?

MR. SMITH: I would prefer to see the tests performed first. And I guess that --

CHAIRMAN NICHOLS: Bruce would like to comment.

MR. SWANSON: Mr. Cooper, these last half dozen presentations have been intended to give the new committee an update on the work in progress by the old committee. The discussion, which I understand the Chair wants to lead this afternoon, will get into whether or not these committees should be reestablished and the work continued. This work on scaffolds proposed, Subpart B, was not completed by the subgroup, was not put forward to the committee for action. And seeing how there is not a work group extant at the moment, I don't think that Mr. Smith is suggesting that this goes forward to the full committee at this time. Probably wait for a new subcommittee to review it.

CHAIRMAN NICHOLS: Stewart?

MR. BURKHAMMER: Bruce, I assume you are aware that there are two existing, were two existing work groups that were left off of this report. Data collection, which Anna Maria chaired and Musculo-Skeletal Disorders, were not on here for a report. But, they were not on here for a report. But, they were existing work groups, okay.

MR. SWANSON: That is correct.

CHAIRMAN NICHOLS: Any other questions of Steve?

Thank you.

At this time we will break and we need to have Mr. Cooper, Mr. Rhoten, Mr. Burkhammer, Mr. Evans, Mr. Buchet, and Ms. Haring-Sweeney, go to Room N-3101, get your picture taken.

We will reconvene at one o'clock.

(Whereupon, at 11:45 a.m., the meeting was recessed, to reconvene this same day, Wednesday, April 8, 1998, at 1:00 p.m.)

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

(1:00 P.M.)

CHAIRMAN NICHOLS: Before I call on Noah to give his report, I had stated this morning if there was anyone who wished from the public to speak that we would do that immediately following lunch, when we reconvened, so if there is someone from the public that wishes to come up and address the Committee, please do so.

Seeing no one at this point, we will continue on and we will have Noah Connell give his report on the Standards Progress.

Noah?

Presentation On Standard Progress Reports:

By Noah Connell:

MR. CONNELL: Thank you, Mr. Chairman. It is a pleasure to be here. I appreciate the opportunity. I am the acting Director for Construction Standards and Compliance Assistance.

First up, I will address the Safety and Health Standard. Camille gave a review this morning, of course on the recent history of the ACCSH efforts in that regard.

Here at the Directive of Construction, we have a new team leader on the Standard Project, his name is Lee Smith. And I wanted to just point out that there is a couple of things that we have to be aware of as we push this project forward. A couple of Department of Labor objectives that they have for all standards and that apply equally to us.

One is that we need to try to minimize paperwork burdens imposed by new standards. And the other is that all our new standards are suppose to be written in plain language. So, we have these goals to meet with respect to this standard as well as with all others that we are working on.

And let me just say if at any time you have any questions about any of these, please, jump right in and I will be happy to address them.

On the SENRAC proposal, Mr. Jeffress addressed where we are on SENRAC. The exact status is that Mr. Jeffress has signed off on it. The solicitor has signed off on it. We are awaiting, I believe, two more departmental clearances. We will then send it over to the Office of Management and Budget. It looks like we are on track for publication in July, in early July and we have some hopes that maybe we can get it out in late June.

With respect to Subpart M, Fall Protection, since Subpart M was issued, and that was back, I believe in August of '94, a number of issues have been raised with respect to the feasibility of fall protection in a variety of construction activities. And this list is a fairly long one. One group of these issues falls undeers, working on concrete block and foundation walls, finishing work in attics and on roofs and roofing work. In addition, we are, another major issue that has been raised, is what is the definition of residential construction. Back in December of '95, the Department issued what is known as STD 3.1, which is an instruction on residential construction. And it provides a number of alternative procedures that contracting engaged in specific activities associated with residential construction can follow and still be in compliance with Subpart M. But, that instruction was issued pending eventual rulemaking that would address all of these issues.

Now, other issues that have come to the floor with respect to fall protection include what kind of requirements are going to be apply to post frame structures, telecommunication towers, tanks, roofing in the non residential context, climbing rebar, precast erection, drilling operations, working from aerial lifts, the application of our fall protection rules to vendors, who bring materials to construction sites and what the criteria for our restraints systems should be.

Now we are going to raise all of these issues through the rulemaking process. So we are going to raise all of these things and ask for comment on them.

Also on our agenda today is a brief discussion of Certification and what this refers to is a number of our construction standards require that contractors certify that certain things, certain safety requirements have, in fact, been done. And there are a number of certification requirements, not just in construction, but in general industry as well. This has come to the surface because of the Paperwork Reduction Act.

The Paperwork Reduction Act has become somewhat of a misnomer with respect to its name, because it goes well beyond addressing paperwork. It really addresses the burden that is imposed on employers for the collection of information. And just to give needed to comply with various standards, including those involving certification, we don't, we can't just look at, for example, in a certification, how long does it take an employer to actually sign a certification. The Office of Management and Budget also includes in this calculation all of the time that it took to do the underlying requirement for which they are certifying that was done. So, if you have a requirement that cranes be inspected, the paperwork burden, the hours calculation goes beyond just the certification, it includes the time that it takes to actually inspect that crane.

The Department of Labor has committed itself to reaching a goal of a 25 percent reduction in burden hours, in our total burden hours, for all, all regulations administered by the Department. And OSHA, along with everyone else, is examining what their options are with respect to trying to meet this goal. And that means that the Directive of Construction is doing its best to figure out how we can do our fair share and contribute to the reduction. And one of the things on the table is whether we ought to consider revoking some of our certification requirements because of the number of burden hours involved. We have not decided to do that. The Department has not decided to do that. We are still looking at as one of the options. It is a relatively unattractive option, because of the safety concerns involved, but it is still on the table and we still have to consider it.

With respect to Respiratory Protection, I will ask Ellen to come on up and say a few words about Respiratory Protection.

Respiratory Protection:

MS. ROZNOWSKI: Okay. On January 8, 1998 OSHA published the final standard for Respiratory Protection. This replaced a standard that was initially adopted in '71 and was basically the ANSII Standard, Practices for Respiratory Protection. ACCSH was given a pre-proposal draft in September of '85 and their comments went into consideration for a revised draft, which was then presented to them in March of '87. Final comments from ACCSH were delivered to OSHA in August and were considered in the writing, drafting of the final standard. There is a discussion of the Construction Advisory Committee input and how it was integrated into the final standard in the Preamble of the Standard in Section P. So if people want details, they can refer to the Preamble of the Standard.

Basically, the Standard covers all sectors except for Agriculture. And its estimated cost about $22.00 per employee on the average. And there are a number of changes that are directed towards updating the requirements to reflect current technology and also providing more specific guidance to employers about how to establish respiratory protection programs and the source of training and information and evaluation that employees need when they are wearing respirators.

So, I think that for the construction industry, what has the most significance, is the fact that where respirators are used, there needs to be a written program and there are several elements specified in the Standards, which must be covered by that program. That would be the selection, medical evaluation, fit testing, use and maintenance, which would include cleaning and disinfecting, inspection and repair of respirators.

And another significant element in this standard is that there is a requirement there be a program administrator for this respirator program, which is a change. This would be a person who basically oversees the respirator program, monitors compliance with it, and then evaluates the need to change on an as needed basis.

Employers are required to do a hazard evaluation, in more specific terms than the previous standard. And that is the fact that the employer selects respirators on the basis of a reasonable estimate of employ information in material safety data sheets, would be used for this and also the employer would have to apply the assigned protection factors, either NIOSH or ANSII protection factors since OSHA has reserved assignment of its own protection factors, in making that selection.

Employees must be medically evaluated. And for the first time, OSHA has a questionnaire that is to be filled out by employees using respirators and then is evaluated by a licensed health care professional. This would be anyone within say a state jurisdiction license to do medical evaluations.

There is then a requirement also for fit testing, which has to be done annually. It is a change, it was originally semi-annually. And this would be either qualitative, or quantitative fit testing, basically, based on the levels of concentration that the employee is exposed to and the assigned protection factors.

Let's see, I think that basically hits the, kind of the highlights. Training is more specifically defined in this standard. It is an annual requirement for those employees using respirators. It also must be updated when there is a change in the exposure or the respirator use. And the training covers why the respirator is necessary, factors affecting the protection provided by the respirator. The respirator's limitations and capabilities, what do to in emergency situations and then basically how to properly use the respirator.

So, the, as I said the Standard was published January 8, 1998. The effective date was April 8, yesterday, and the compliance dates for coming into compliance with the requirements of the Standard are September 8th for that hazard, basically the hazard evaluation determination that employees need to use respirators and then October 5th for all the other provisions of the standard.

CHAIRMAN NICHOLS: Any questions?

MR. SMITH: Yes.

CHAIRMAN NICHOLS: Owen?

MR. SMITH: That $22.00 figure that you floated, where did you get that?

MS. ROZNOWSKI: Right. Well, the OSHA Office of Regulatory Analysis does a cost benefit analysis. And they take into account basically the cost of the equipment, the training time, the time to fill out the medical evaluation form, and other aspects of the standard and then come up with a final total.

MR. SMITH: Well, the mask costs more than 20 bucks. The filters cost four or five dollars a piece. My opinion is to have a $30.00 bottom cost, without anything else. It takes at least an hour when we send them over to get them fit. You have got to pay the doctor.

MS. ROZNOWSKI: Right.

MR. SMITH: of the mask.

MS. ROZNOWSKI: I think this would average cost for all different types of masks, including the disposal ones, which cost much less than $32.00. And as a matter of fact --

MR. SMITH: But, that is a dust mask.

MS. ROZNOWSKI: Right. But, in fact, if the disposable filter face respirator and is in use and if approved for the concentrations to which an employee is exposed, can be used by employees. I think that what they determined was that 80 percent of the respirator use is what we call half mask use.

MR. SMITH: That is the one that goes, like this?

MS. ROZNOWSKI: Right. Yes.

MR. SMITH: Has got the two lungers on each side.

MS. ROZNOWSKI: Yes, cartridges, right.

MR. SMITH: Yes, the cartridges.

MS. ROZNOWSKI: That three percent of current use is powered air purifying respirators, which are the type that don't need a tight fit, which have a face piece that comes down over the head.

MR. SMITH: Yeah, but those cost a couple of hundred of dollars a piece.

MS. ROZNOWSKI: Right. That is what I am saying, this is what is it based on, that only three percent of respirator users actually use powered air purifying respirators. And that four percent is supplied or self contained breathing apparatus, which are supplied air, with their own air source. And then 13 percent is other types of respirators.

MR. SMITH: But, those kinds cost $700.00 a piece.

MS. ROZNOWSKI: Right. Exactly, and what they are saying is is that only four percent of the respirator use is that very expensive, very complicated piece of equipment. So, what they have done is then averaged all those costs out proportionally, and came up with $22.00.

MR. RHOTEN: It makes those --

MS. ROZNOWSKI: Right.

(Laughter)

MS. SHORTALL: Ellen?

MS. ROZNOWSKI: Yes. Since this was a revision of an earlier rule, were they looking at the entire costs of respirator protection or only the incremental costs of moving from one type of respirator to another or a higher protection factor?

MS. ROZNOWSKI: Oh, you are asking the wrong person that one.

MR. BIERSNER: I assisted on the --

MS. ROZNOWSKI: Thank you.

MR. BIERSNER: I am Bob Biersner.

CHAIRMAN NICHOLS: Bob, could you come up to the mike, please?

MS. ROZNOWSKI: This is the right person to ask, right here.

MR. BIERSNER: I assisted on writing that standard and it is incremental cost. And the cost per year for general contractors and builders is $73.00 per establishment, $178.00 for heavy construction, except building. And for special trade contractors, $111.00 a year. That will depend, that will vary --

MR. SMITH: Is that per employee?

MR. BIERSNER: How is that?

MR. SMITH: That is per employee?

MR. BIERSNER: No, that is per establishment.

MR. SMITH: Oh, that --

MS. SHORTALL: Mr. Biersner, could you ask you another question?

CHAIRMAN NICHOLS: One at a time, please.

MS. SHORTALL: Could I ask you another question, Mr. Biersner?

MR. BIERSNER: Yes.

MS. SHORTALL: Dealing with the reg analysis of the cost. When you are dealing with the incremental costs of moving from one protection fact to another, does that assume that there is 100 percent compliance with the earlier respiratory standard as it stood?

MR. BIERSNER: Yes, it does.

MS. SHORTALL: Okay.

CHAIRMAN NICHOLS: Mike?

MR. BUCHET: Is there anything in that calculation to show the benefit of complying with the new standard and some sort of offset against the cost?

CHAIRMAN NICHOLS: You might as well stay there, Bob.

MR. BIERSNER: Yes, there were. Both in terms of deaths presented by cardiovascular disease and cancer as well as injuries that might be associated with exposure to various hazardous substances. And those figures are in the Preamble, roughly pages 175. But, but the benefits based on lives saved and injuries prevented, did exceed the cost of the standard as estimated here and were reviewed by the Office of Management and Budget, specifically for that purpose.

CHAIRMAN NICHOLS: Questions? Stewart?

MR. BURKHAMMER: When you calculated this cost, did you go to sites and talk to people? Did you talk to the users? Did you go out and see people wearing these things and --

MR. BIERSNER: Yes, that was done but I will have to admit, much of the data were somewhat foiled in the sense that they were collected in the 1980s.

MR. BURKHAMMER: So there is no inflation in this figure?

MR. BIERSNER: Oh, yes, there is inflation. What we are specifically interested in was respirator use and that is what we went out to the various sites to observe.

MR. BURKHAMMER: You have talked a lot about cost and you have $178.00 and you said per establishment. Is that a one person establishment? I mean, how did you determine that?

MR. BIERSNER: It was -- The data are analyzed in addition based on the size of the establishment and there is a specific provision in here, that analyzes it for small businesses.

MR. SMITH: I am a small business and I have got to tell you they don't fly. Let me tell you how we do it. And I am the union shop.

MR. BIERSNER: Now one thing that I would recommend, is that in the future, you should really read the proposals and if you are concerned about what the economic estimates are, make certain that the standard writers have that information. We can only, we must base our estimates on the information that is available to us.

MR. SMITH: Well, it doesn't make any difference what the estimates are, this is the real life. You know, it is something that we have to do and we don't want our guys to come down with anything. This is real life, my shop, little guy. The bottom cost for wages and fringes is 30 bucks and that is not Social Security, insurance or anything else. So, that is the guy's cost. He goes over on a Saturday to do it, so you have got the half time. You have to pay someone to come in, so we do it at our apprenticeship, and I send the guys over. So I send 15 guys, that is 15 times the 45, plus the cost of it, and each of the masks, you know, it is a health item, so you don't switch the darn things. The guy has got to be fit with it and that his mask. So, the money that you are talking about just makes no sense, you know, and I don't know anybody that use dust masks except the guys probably sweeping or dusting or something.

MR. CONNELL: I believe they are talking about incremental cost, right?

MR. BIERSNER: Incremental.

MR. CONNELL: And this is --

MR. BIERSNER: This was about what you currently pay.

MR. CONNELL: Right. So, this isn't the total costs.

MR. BIERSNER: This is what it is going to cost you in addition --

MR. CONNELL: -- of meeting the respirator requirement. This is the difference between, this is the added cost on top of what you are already paying.

MR. BIERSNER: Yes, what you are already paying.

MR. SMITH: For the paperwork, you are talking about?

MR. CONNELL: No, not the paperwork, this is to move up to the new standard, added cost of moving up to the new standard is the 117.

MR. BIERSNER: Yes, above what you are doing now in medical, above what you are doing in training, and the various other provisions of the standard, in and above what you are already doing.

MR. SMITH: So what would you estimate the cost would be totally for one person? Not people, you know, like in the business like me or the sandblast where you use --

MR. BIERSNER: Well, across --

MR. SMITH: Just the --

MR. BIERSNER: Across the board, as was stated earlier, it was $22.00 across the six million plus users of respirators in the United States.

CHAIRMAN NICHOLS: Let em interrupt and have Bruce make a comment.

MR. SWANSON: Yes, if I may. You know, the purpose, the purpose of the presentation here this afternoon and this morning, was a status report on, well this afternoon, the status report on where we are on a number of standards. And it was meant to be on a general informational. You are picking on the, I don't mean this, you are picking on the messenger here. The standard was written not in DOC or not in Bob's solicitor's office, if indeed ACCSH would, I mean, the barn is already empty on this particular standard, and it is not before you for action, but if for general education or edification purposes, if it is the sense of the ACCSH to talk about this, we can bring in the economist that indeed worked on it and walk through their figures later this afternoon or tomorrow or at your next meeting, if that fits, you know, their schedule better. We would be very happy to do that.

MR. SMITH: Well, I have some other questions with respect to, I understand you have to have a person, a special person now that monitors, you know.

MR. BIERSNER: The program administrator.

MR. SMITH: Yes. Can that guy do anything else?

MR. BIERSNER: Yes. They don't have to be dedicated. They have to be an identifiable dedicated person for the purposes of the respirator program, but they can have other jobs.

MR. SMITH: Well, do they have to be a doctor?

MR. BIERSNER: No.

MR. SMITH: How can they certify?

MR. BIERSNER: They don't even have to be an industrial hygienist. They don't have to be certified.

MR. SMITH: So what do they do? They have to go and see the person being fit, so that they have to observe directly each and every instance in which you comply.

MR. SMITH: What would the evaluation include?

MR. BIERSNER: A major component of the evaluation is to get feedback from employees about the effectiveness of their respirator use, plus to survey the work place, make certain that the respirators are being used correctly. That the right respirator have been selected. And that, in fact, the written program is updated to reflect whatever the current program is.

MR. SMITH: And he has to keep paperwork on that, correct?

MR. BIERSNER: Yes.

CHAIRMAN NICHOLS: Is there any other questions? Larry?

MR. EDGINGTON: I don't know if Bob or Ellen or who can answer this, but it is my understanding that from some circles at least with respect to the medical evaluation portion of the rule, there have been questions generated about the qualifications of the individuals performing this.

MR. BIERSNER: Yes.

MR. EDGINGTON: Where is OSHA at on that issue? Is it your intention to stay where you are at, take those concerns under advisement? Where is that going?

MR. BIERSNER: Well, we can certainly take it under advisement, but at this point, OSHA policy is that it will remain as written in the Standard, that is a physician or other licensed health care professional, if that other licensed health care professional can render that service under the scope of state licensure.

CHAIRMAN NICHOLS: Steve Cooper?

MR. COOPER: I have a question for Noah.

On that construction safety and health program, how long is it normal to get a turnaround on that stuff after we get it to you? I know that is a tough question, because -- What is close to normal?

MR. CONNELL: I don't know what the average is. I do know that it is a 23 step process that we go through and that many of those steps occur outside of DOC. In fact, I guess most of them do. So, I mean, some standards have been on a fairly quick track and gotten through relatively quickly and others took an enormous amount of time. Sometimes with the standards that have taken a great deal of time, what has probably happened there is that you had changeover in administrations and one administration has a different set of priorities than another administration. That sometimes affects how long it takes to get a standard out.

We certainly have had a real good jump start on this one because of all the work that ACCSH has done in the past on this. Also on the general industry side, you know, there is a whole another team that we are not a part of, that has done a great deal of work on the general industry standard. So, you know, we are in a much better position in terms of being able to produce a product in large measure because of all of the efforts of ACCSH.

MR. COOPER: The reason I asked, I think we gave that to you a couple of years ago, to that long ago. I was trying to figure out how long ago it was.

MR. CONNELL: I don't know when we first received the --

MR. COOPER: Quite awhile ago.

MR. CONNELL: Yes, I think it has been awhile. But, the short answer is we are in much better shape because of all the work that has been done both by ACCSH and by the other team then we otherwise would have been.

MR. SMITH: Is this the time to ask questions on these, or is there somebody else I can address the question to on this. This is from the Health Program.

CHAIRMAN NICHOLS: We are going to discuss that under work groups in a little bit.

MR. SMITH: Oh, okay, all right.

CHAIRMAN NICHOLS: In case anybody was interested in what the beeping was out in the hall, we are going to back up on the agenda in a minute. Just kidding.

Jane?

MS. WILLIAMS: Can you tell what the status of the --

MR. CONNELL: I am sorry?

MS. WILLIAMS: Can you tell me what the status of the Record keeping Standard?

MR. CONNELL: Oh, the Record keeping Standard. No, I don't have that information, I am sorry.

CHAIRMAN NICHOLS: Any other questions?

MR. BIERSNER: I would like to make one other comment about the health, or about the respirator standard. You have to be careful, 1926.102 is the General Respirator Protection Provision. But, 134, 1910.134, the big Respirator Standard, also supercedes a lot of the respirator provisions in other standards. So, for example, in your Substance Specific Standards, Asbestos, for construction and so forth, many of those provisions that have to do with respirator protection, have been superceded and are now gone and you have to comply, we did this with the new 134, we did this to bring some kind of uniformity to all of the standards that involve respirator protection. And the only provisions that weren't touched in the other standards, like the Substance Specific Standards, were basically any provision that dealt with medical evaluation for respirator use. If it required a physician, only a physician, we left that in place. And number 2, we did not touch any of the protective factors that were found in the other standards. So you often times see a table of protection factors, and those remain in place.

CHAIRMAN NICHOLS: Any comments or questions?

Thank you.

MR. CONNELL: Thank you, Mr. Chairman.

CHAIRMAN NICHOLS: What we will do at this time is, I would like to establish some of the committees in, that will be working to move ACCSH's work load forward.

At this time I would like to establish a standing committee for National Operations, that will handle administration, budget, staffing issues.

Co-chairs Steve Cooper, Stew Burkhammer, with Mike Buchet, Danny Evans, Harry Payne as members.

Field Operations, Larry Edgington, Bob Masterson as co-chairs, with Owen Smith and Jane Williams.

And Standards, Stephan Cloutier, Bill Rhoten as co-chairs, Gladys Harrington, Felipe DeVora, and Marie Haring-Sweeney.

Work Groups. Safety Program Standards,

co-chairs, Stephan Cloutier, and Bill Rhoten.

Training. The same, Stephan Cloutier and Bill Rhoten.

And the same Combined Space.

Sanitation. Steve Cooper, Jane Williams.

Scaffolding. Owen Smith, Michael Buchet.

Safety Excellence Recognition. Stewart Burkhammer, Larry Edgington.

Enforcement Priorities. Robert Masterson, Gladys Harrington.

And Musculo-Skeletal Disorders. Stewart Burkhammer, and Marie Haring-Sweeney.

For those people who else wish to participate in these work groups, please contact the co-chairs, submit your names, and information and the co-chairs will move them forward to the committee so we will be aware of who those participants will be.

(Pause.)

MS. HARRINGTON: Can we do that again because I --

CHAIRMAN NICHOLS: You mean do the whole thing or you want me to just have it printed up and --

(Pause.)

CHAIRMAN NICHOLS: I would accept at motion at this time to accept the proposed committees and co-chairs.

MR. BURKHAMMER: So moved.

MR. SMITH: Second.

CHAIRMAN NICHOLS: Second it, somebody.

MR. SMITH: Second.

CHAIRMAN NICHOLS: Owen seconded it.

MR. COOPER: Owen is always is talking, do you notice that.

CHAIRMAN NICHOLS: Seeing no comments, we will call for a vote.

All in favor signify by aye.

(Whereupon, a chorus of ayes was heard.)

CHAIRMAN NICHOLS: Opposed.

(No nays.)

CHAIRMAN NICHOLS: Thank you.

Gladys?

MS. HARRINGTON: If you have a particular interest and --

CHAIRMAN NICHOLS: If you have a particular interest and you are not assigned to a committee, please contact the committee co-chair and they will make sure that you are aware of when they are going to meet.

Mr. Cooper?

MR. COOPER: These subcommittees, at what times can they meet, other than the two days here? These can meet next month, whatever. So the question arising, if you have a co-chairman that lives in Arizona, and a chairman that lives in Virginia, will OSHA, will OSHA pay for it, travel.

CHAIRMAN NICHOLS: Cover the cost of travel.

MR. SWANSON: That is an interesting question, Mr. Cooper.

MR. COOPER: Thank you.

MR. SWANSON: If the chairman from Washington, D.C. wants to go spend a week in Phoenix, you want to know whether or not the government will pay for it, correct?

Normally, what we have done in the past, is for all ACCSH members, if travel is necessary for you to fulfill your obligation to ACCSH, we will cover that. I will be happy to look into exceptional cases, like the Arizona trip I talked about, but as a general rule we will cover all members travel.

MR. COOPER: Okay. The second question. Should those meetings, they are all on very important issues, that affect everybody in the nation, should those, I don't know how to put this properly, so maybe I shouldn't, those meeting should be held geographically. If you want to hold them all in Washington, D.C., it is fine with me, but how can you have a concern like associations out in Seattle, Washington and Mobile, Alabama, they call come here, what is the proposal by the Agency on where these periodic subcommittees should meet?

MR. SWANSON: I don't think that the Agency wishes to address where the subcommittee wishes to meet. That is really up to the chair and the committee.

MR. COOPER: So they can all meet in Washington, D.C.

MR. SWANSON: Yes, they could.

MR. COOPER: All right. Thank you.

CHAIRMAN NICHOLS: Mike.

MR. BUCHET: I have got a follow-up on that. Are the work group meetings open to the public, is there a record, in which case, then moving around the country might be useful. If they are not open to the public, then --

CHAIRMAN NICHOLS: They are open.

MR. SWANSON: In the past, these meetings and by statute, I believe, they would have to be, all the work group meetings are open to the public. We have founded a very useful tool to have the subcommittee conduct business for and on our behalf. You are an advisory committee to us and to have as many elements of the interested community as possible attend the meetings and become informed and share information with us.

CHAIRMAN NICHOLS: Marie?

MS. HARING-SWEENEY: So if separate subgroup committees occur, then they have to be announced in the Federal Register?

MS. SHORTALL: No.

MS. HARING-SWEENEY: No.

MR. BUCHET: Which brings rise of question, how would you notify the public if there is a meeting that the public can attend?

MR. SWANSON: I would, may I, Mr. Chairman?

CHAIRMAN NICHOLS: Yes.

MR. SWANSON: I would suggest that at least those that are in the room today, we are not going to use the Federal Register for subcommittee meetings, but those who are in the room today, or who know of others who are interested in these topics that the subcommittees have established for, make sure that you have the up to date membership list for ACCSH that were handed to or made available this morning and I believe there are still some copies out on the table outside. And if there are not, contact the Agency and I will make sure you get copies. Contact the chair person of the committee that you are interested in, and have that chair person tell you when and where they are going to meet.

MS. SHORTALL: I would add one other thing, just as Bruce was talking about work groups meeting. There is nothing in the regulations that would prohibit a work group in doing a committee meeting via teleconference.

MR. SWANSON: In fact, it has been done in the past.

MS. SHORTALL: And there are also a number of avenues that OSHA would have open to assist in publicizing a meeting short of a Federal Register notice. The Web page that OSHA has, for example.

CHAIRMAN NICHOLS: Robert?

MR. MASTERSON: I noticed in the work groups, you didn't address fall protection, is there a specific reason for that?

CHAIRMAN NICHOLS: No. If there is some desire to have a group, work group on fall protection, we can put one together.

Stewart?

MR. BURKHAMMER: We used to have a work group on fall protection. I think one of the reasons we kind, we didn't actually disband it, but we set it off to the side when SENRAC started and waited for their report and we never did reconstitute or re-up the committee, but we did have one. And I don't think it was ever officially disbanded. It was just put on hold.

CHAIRMAN NICHOLS: Mr. Cooper?

MR. COOPER: Mr. Chairman, could the subcommittee use a skunkworks for their telephone calls, with their committees?

MS. SHORTALL: Use the what?

MR. SWANSON: Skunkworks, it is an area --

MR. COOPER: Let me put it to you this way, there is an office in this building which they Agency uses, it is called the Skunkworks --

MR. SWANSON: By some.

MR. COOPER: And committees meet there and utilize the telephones and etc. to hold meetings there. My concern is not for myself, Mr. Chairman, because we have the capacity to pay four, five, six hundred dollar telephone bill, for a telephone conference, but someone on the committee may not.

But, you can easily run up bills of $400, $500.00 and if you are hooked up to lots of places, you have got lots of expense.

MR. SWANSON: All I can say, Mr. Cooper, is that, you know, the Agency will support the work of the subgroups any way, shape, or form we can and will make available, I do the office that you allude to, or whatever office that we could find as a substitute. And if there are people around the country that wish to participate in teleconferencing, we also, as you know, have OSHA area offices out there that might well be available for teleconference use.

CHAIRMAN NICHOLS: To go back Bob's question in regard to fall protection. Is it the desire of this group to put the fall protection work group back into action?

Steve?

MR. COOPER: I have a question, and I guess it is through all of us here, where are we at on Subpart M? Is that, you know, that is fall protection --

MR. BURKHAMMER: That is what the group was originated for.

MR. COOPER: And so, as a group, the group is for Subpart M, so where are we at on fall protection in that, does anyone know or should I have not raised the question?

CHAIRMAN NICHOLS: Bruce?

MR. SWANSON: Noah, would you like to redo that part that Mr. Cooper missed on Subpart M?

MR. COOPER: I would appreciate it. Me and you can, the rest of these guys can go home.

MR. CONNELL: Where we are on M, is, we are anticipating and hoping that in, by end of July of this year, we will raise all the issues that I referred to in the Federal Register and invite comment on all those issues.

MR. COOPER: On fall protection, in M?

MR. CONNELL: Yes. On fall protection as they apply to all of the questions that have been raised with respect to the feasibility of complying with M.

MR. COOPER: And that is going to be open for 120 days or a period?

MR. CONNELL: Yes, that will be open for the standard period for notice and comment, informal rulemaking. And we will go from there.

MR. COOPER: So, Bob, you are familiar with the time frame, okay.

MR. MASTERSON: I would still like to move that the group be brought back together to address these issues and have recommendations from the full body to OSHA.

CHAIRMAN NICHOLS: Do we have volunteers for

co-chairs of that work group?

Bob? Robert Masterson. Do we have another volunteer for a co-chair?

(Pause.)

MS. SHORTALL: You need a second for the motion.

CHAIRMAN NICHOLS: Felipe.

(Pause.)

CHAIRMAN NICHOLS: Volunteers for the subcommittee.

MR. COOPER: Do we call this a subcommittee, standing committee, or work group?

CHAIRMAN NICHOLS: Work group.

MR. COOPER: Thank you, Mr. Chairman.

CHAIRMAN NICHOLS: Sorry, work group.

MS. SHORTALL: You need a second to establish the work group.

CHAIRMAN NICHOLS: I need a second to establish --

MR. CLOUTIER: I second.

CHAIRMAN NICHOLS: Three of them on this side.

All in favor of the motion to reestablish the work group fall protection signify by saying aye.

(Whereupon, a chorus of ayes was heard.)

CHAIRMAN NICHOLS: Opposed.

(Whereupon, no nays were heard.)

CHAIRMAN NICHOLS: Carried.

Any other, Stewart?

MR. BURKHAMMER: We have one other work group that Anna Marie chaired and that is data collection. That product was never finished. I think we ought to reconstitute the data collection with a new chairman. And we should find out, I think from Camille, who the work group liaison was with OSHA and get the material, so the new committee is able to review what the previous committee did. There was a lot of data collected.

CHAIRMAN NICHOLS: Is that a motion?

MR. BURKHAMMER: So moved.

CHAIRMAN NICHOLS: Is there support to establish the work group on data collection?

MR. RHOTEN: I will second that.

CHAIRMAN NICHOLS: Second.

Marie?

MS. HARING-SWEENEY: This is an area that any of any of us who look at the data know that there are significant problems. And I will volunteer to be the chair on this one.

CHAIRMAN NICHOLS: Thank you. Do we have another willing volunteer? Unwilling volunteer?

Mike?

MR. BUCHET: I will volunteer to be the, the unwilling volunteer co-chair. My eyes are gone anyway.

CHAIRMAN NICHOLS: We need approval of this. All in favor of setting up the work group on data collection, signify aye.

(Whereupon, a chorus of ayes was heard.)

CHAIRMAN NICHOLS: Opposed.

(Whereupon, no nays were heard.)

CHAIRMAN NICHOLS: Ayes have it.

Robert?

MR. MASTERSON: One last request of the committee co-chairs, could they make sure that the full body receives notification of the work group meetings.

MR. SWANSON: Let me offer my office as a conduit, whenever a work group chair is going to have a meeting, if you will just let us know the time, place and particulars about it, we will make sure that the rest of the committee is made aware of it.

MR. MASTERSON: Thank you.

MR. EDGINGTON: In the category of a new work group, Tim, I think there is some interest on my part and perhaps others, to take a look at Subpart N. So far as I know, I think the last time that was visited was the better part of three decades ago. The industry has changed rapidly, technology, work practices, equipment. I know we have got a whole range of B-30 standards out there now that weren't there then. And it might be worthwhile be taking a look at that. And I would so move.

MS. SHORTALL: Did you say N?

MR. EDGINGTON: N as in Nancy.

CHAIRMAN NICHOLS: Motion to establish work group on Subpart N.

MR. CLOUTIER: Second.

CHAIRMAN NICHOLS: Second. And I understand Larry is volunteering as co-chair. Is there -- Mr. Cooper. Mr. Cooper also.

Does everybody understand the motion to set up work group on Subpart N.

All in favor of the motion signify by aye.

(Whereupon, a chorus of ayes was heard.)

CHAIRMAN NICHOLS: Opposed.

Carried.

Any others?

(Pause.)

CHAIRMAN NICHOLS: At this time we will bring forth the discussion if this body so desires to discuss more of the issues around the work groups and what you would like to see brought up as Owen had asked some questions previously, this would be the time to bring those questions forward.

Bill, you had a question?

MR. RHOTEN: Yes, I would like to revisit the safety shoes issue.

CHAIRMAN NICHOLS: That wasn't what the beeper was for.

MR. RHOTEN: Just for clarification. It seems like what we have done this morning is take the recommendation from OSHA and say no to that. And then went back to the status quo that was used, language that caused us problems in the past. And I understand there was a memo that clarifies this position that has also caused us problems.

And I guess my question is, I am certain that OSHA might not take any suggestions from us in tact, but I think we need to discuss, and discuss that standard and the motion --

CHAIRMAN NICHOLS: Before we do that, Sarah, would like to give a little discussion in regard to that.

MS. SHORTALL: Yes, both ways here. This is a copy of the Union Tank case, which is the precipitator for the movement on the protective, PPE revision. In this particular situation, OSHA had cited an employer for failing to provide PPE. Part of it was for shoes, others were for gloves. The Review Commission struck down OSHA's interpretation that employers were required not only to provide but also to pay for this equipment. They struck it down for basically two reasons.

Number 1 was that we had revised the PPE provision very recently and had not addressed it during that rulemaking. And the second reason was that they found that OSHA, since it at first put PPE provisions into the CFR, had issued at least five letters of interpretation that offered what the Commission viewed to be conflicting view points as to whether or not the employer was required to pay for. One of the letters of interpretation that was referred to in this case, was the Stanley Letter, that you have before you. So, the Commission was aware of the Stanley Letter, which was one of the more recent attempts to clarify.

As a result, OSHA has been moving in two directions to address this particular case. One of the directions it did not take was to appeal this case. And the reason it choose not to appeal this case, is it decided probably the best thing to do was to move forward with new rulemaking to address directly and clarify OSHA's intent as to who should be paying for equipment.

The second thing, which is currently under consideration but has not yet been adopted. We don't know if this will be the approach, is to issue sort of like a Stanley update letter, that might acknowledge the Review Commission opinion that there were conflicting views and try to provide not only additional clarification as to who has to pay, but interim, that would include OSHA reasoning that would also probably be appearing in the proposed rule.

MR. RHOTEN: I guess I don't understand, does OSHA have a position?

MS. SHORTALL: Pardon?

MR. RHOTEN: Does OSHA have a position?

MS. SHORTALL: OSHA's position --

MR. RHOTEN: I mean, OSHA's position as presented, is the employer is to pay for his boots, right?

MS. SHORTALL: OSHA's position that it took in Union Tank was that the employer was required to pay for the PPE. And that was OSHA's interpretation of what the word provide meant.

MR. RHOTEN: Right.

MS. SHORTALL: The Review Commission did not agree that OSHA's interpretation of provide was a reasonable interpretation, and the reason it said it was not reasonable was, number 1, we could have clarified it in recent rulemaking on PPE. And number 2, they felt OSHA had issued too many conflicting letters of interpretation regarding who must pay for PPE.

MR. RHOTEN: Right and I understand it is a very confusing matter over the last few years. But, I guess my question is, besides this committee having an opinion, and we are split on it, does the Administration of OSHA have an opinion on whether or not they think the employee should buy his own shoes? I guess your suggestion was going to be clarification forthcoming, right, from OSHA?

MS. SHORTALL: I would say that the view point right now is what you see in the proposed, in the proposed rule.

MR. RHOTEN: Which is that the employee should buy his shoes.

MS. SHORTALL: That the employer not be required to pay for items that are able to be used away from the work place or are inherently personal.

MR. RHOTEN: Which is, I guess what I just said is that the employee is going to buy his own shoes, right? That is my problem with it, you know, and I guess I want to revisit it and have more comment. The only suggestion out of this committee is, to back to OSHA and suggest, go back to the chaotic position we had before. And I hoped we could talk about it more and come to some compromise, it might clarify it better, you know.

CHAIRMAN NICHOLS: Mike?

MR. BUCHET: In listening to the discussion earlier this morning, I understand that the draft language was offered as OSHA's opinion, but that there was explanatory text that would be provided at some point in maybe the Preamble, that suggested there would be some qualifiers even for these two exceptions if contamination was involved.

MS. SHORTALL: Yes. Yes. In fact, that is also addressed in the Stanley Letter as well, where shoes were number 1, not used away from the work place. Or number 2, where they involved contamination or some other issues of why they could not be removed from the work place, that would indicate that the employer would have a continuing obligation to pay for that PPE.

MR. BUCHET: It would make it a lot easier for me to comprehend what we are doing, if I could see the whole thing laid out. Instead of saying, okay, here is an idea, here are a couple of exceptions. The discussion, I believe that you just had, you broaden these two exceptions to include other items of personal nature. And now we are finding it again by saying contamination may be in effect on something that we have narrowed, broadened, and we are renarrowing and I am getting lost. Is there anything that has all those laid out in bullet points?

MS. SHORTALL: It is not bullet points, but there is, they are working on a preamble. The preamble has not thus been finished. I have a feeling that since it has been reviewed by the Assistant Secretary, there is definitely explanation down on paper as to OSHA's interpretation of the proposed language.

MR. BUCHET: I would invite the Agency to either show or to us or present it to us as a whole piece.

CHAIRMAN NICHOLS: Larry?

MR. EDGINGTON: Sort of picking up on Mr. Rhoten's comment, is that, you know, this whole exclusionary business with respect to items that can be used away from the work place, or items of a personal nature, I guess I would point out to OSHA, that I think you are on a very slippery slope there. Because currently in the regulations, there are requirements that employers provide certain items that clearly can be used away from the work site. For example, I know in my craft, in dredging, we do an awful lot of work around the water and employers are required to . And my point simply is you are on a very slippery slope there. There is a whole range of equipment in the work place that could be used away from the work place. And I really think you are headed in the wrong direction when you use that as the basis for exclusion.

CHAIRMAN NICHOLS: Marie.

MS. HARING-SWEENEY: I have two points. One is I agreed with Mike, I would like to see the whole text, you know, with the preamble and all the points laid out. Because what we got was just a little piece and then this, the Union Tank just comes up today. And it would have been nice to see the whole package and some sort of general understanding of what was going on before we had to, on our initial day, come out and vote on this.

Secondly, I would like to state a NIOSH position in terms of personal protective equipment, is that in our criteria documents and in all other statements relative to personal protective equipment, we hold that the employer should pay for it. Now maybe other people disagree with it. If they have to bring it home, or if they wear it at home, so much the better because when they come back to work the next day, they may be protected. They may, you know, they may be whole.

CHAIRMAN NICHOLS: Steve?

MR. COOPER: Did you say there were, how many interpretations of the, did you say five?

MS. SHORTALL: I am saying the Review Commission found at least five.

MR. COOPER: Interpretations from the Agency?

MS. SHORTALL: Letters of Interpretation issued by OSHA from 1976 to 1993, clarifying employer responsibility to provide PPE under Section 1910.132. That is on page three of the decision.

MR. COOPER: Well, my question, Mr. Chairman, is how do you expect this committee to and we spent a lot of time on it and a lot of time of people in this audience here, on this issue, how can you expect us to respond to this when there is five interpretations? I knew of one, which was the Stanley Letter. But, there is five, you know, now we are starting all over again.

MS. SHORTALL: I think, I think what the Agency is doing is, saying if it were to accept the Review Commission's opinion that there were at least five conflicting interpretations, its best course wasresents, this proposed rule represents, in essence, the Agency's final clarification.

MR. COOPER: But, in discussion this morning, whether your are pro or con on this issue, our discussion has been to no avail and wasted. If we had this information at least when we reviewed this, which we didn't have, a document from the Review Commission. So does that recreate the question again, or has the committee spoken on the issue?

(Pause.)

CHAIRMAN NICHOLS: If the Commission wishes to reconsider, we would need a motion to do so and we would need two thirds support for the motion.

Jane?

MS. WILLIAMS: Before we would entertain a motion to reconsider the question, I think it is still clear that we don't have all the information. And would it not be more appropriate that we consider possibly postponing, a general order or something, until all the information is provided and we can come back more informed, to discuss it at that time. Just a consideration in lieu of redetermining.

CHAIRMAN NICHOLS: Michael?

MR. BUCHET: I take it that if we don't make a motion now, what we voted on this morning goes forward, no matter what we do to look at the material, is that accurate?

CHAIRMAN NICHOLS: That is accurate.

MR. BUCHET: I will make a motion that we reconsider the discussion of PPE and hold it pending some ability to review the five various decisions and whatever other material is available, so we have a fuller appreciation.

(Pause.)

CHAIRMAN NICHOLS: What I am to understand is that the five issues that are out there are moot because the, OSHA is moving forward with the rulemaking, so this is what is proposed.

Bill?

MR. RHOTEN: Well, this is what is being proposed now, so my suggestion is that to any input, even if this committee voted to put a period after that, that in fact would be disregarded by OSHA anyway, is that correct?

MS. SHORTALL: I don't think it would be disregarded by OSHA. OSHA does have to seek from this Committee a recommendation. And I am certain that the Agency before it would publish anything, would consider very carefully this Committee's recommendation. I am just saying up to the point of coming before you, this was the Agency's current thinking.

MR. RHOTEN: Right.

CHAIRMAN NICHOLS: Bruce?

MR. SWANSON: If I may, Folks. You know, the Assistant Secretary was in here this morning, he heard an hour's worth of, or thereabouts, discussion on how this Committee felt regarding the proposal. The proposal that he brought before this Committee for consultation as the statute requires, was a proposal that we are going to go ahead and do by notice and comment, which that the Review Commission criticized us for not having sought notice and comment on before, and that is our interpretation of the word "provide." Now, I don't know that we had five letters of interpretation over the last 20 years. The Review Commission says we did, maybe we did. But, all of those have been letters of interpretation. And I agree with Sarah, that is really moot to the point. The Review Commission said what you should have done, is taken official action through your standard setting process and given your definition of "provide" for the world to comment on. That is what the Assistant Secretary told you this morning, that he is in the process of doing. He said, "I would be intes morning to vote, with the exception of the other public agency, he heard your comments. I heard him say on the record before he left, that he was going to due consideration to what it is you had to say. And whether the resolution was that OSHA shouldn't go forward with this, or should or shouldn't go forward with it, he told you that he is going forward with the proposal to establish his understanding of what the term "provide" means for personal protective equipment. He is going forward with that, in spite of whatever resolution we come out of here with. But, he was very interested in hearing your nay comments, pointing out some issues that it was at least not clear in the proposed standard what his thinking was. And I suspect there might still be some modifications made, if not to the text, at least to the language in the preamble, which can be used for interpretative purposes later.

But, it is not necessary for you to take any further action. You can if you want, and I am not trying to dissuade you, but what this Committee does on this particular issue, I don't think is going to stop the Assistant Secretary from proceeding with this proposal.

MR. BUCHET: But, I guess it is for me to speak, since I put a motion on the floor.

CHAIRMAN NICHOLS: Yes.

MR. BUCHET: I am perfectly willing to retract the motion, but is there a way for us to have the full of OSHA's thoughts on this topic, so that we can give useful advice to the Assistant Secretary, because apparently we voted on a draft that has interpretations bound to it that we didn't hear until after we voted on this. This exclusion, this non exclusion, that was not discussed before we went into this. And I would like to hear those. I am really curious how we are going to define the contamination that is on these things and how we look at things that are of a personal nature.

MS. SHORTALL: In all fairness to Mr. Martonik, who s point of shoes and prescription eyeglasses. So, that is --

MR. BUCHET: That is there.

MS. SHORTALL: That is clearly on the, that is clearly at the table. As to the other two, he did provide a certain qualification to the general exception for employers paying. And the two that he outlined were, number 1, if it involved contamination, and it should not be removed from the work place, or if for some other reasons, the employer did not want the item removed from the work place.

CHAIRMAN NICHOLS: Mr. Cooper?

MR. COOPER: Mr. Chairman, one thing I don't know if everyone is aware of, but we have been aware of the Stanley Memo and we have been aware of, Bruce, and we have been aware that, this Committee has been discussing most all day that safety shoes and safety glasses would be proposed, paid for by the employer, but with the Stanley Memo, it goes further. And it says to include cold weather outer wear of the type worn by construction workers. So now we are talking about winter clothing. Which adds another area. So, now it is not two, it is three under the existing Stanley Memo, which is in effect now, I believe, Bruce, so that is three. Today, the Agency's statement today on the Stanley Memo is that there will be three exclusions, eyewear and outer wear now. So, my question, Bruce, is this, is it is your understanding that once there is a standard promulgated on PPE, that all of these interpretations will go away, for at least the time being?

MR. SWANSON: Well, if Sarah were here, I would let her give you a legal answer, but I believe that the Review Commission believes that their decision has already caused much of this to go away. They have indicated that the Agency's interpretative letters are of little import here, "provide" means, what the courts have said "provide" means, which does not necessarily mean to be paid for, unless OSHA takes some official action to clarify that "provide" means employer pays for in OSHA's opinion. Commission, if that is what you mean, take formal action and make it so. So we are starting down that road, slippery slope or not, we are starting down that road to indicate that in most circumstances, "provide" means pay for by the employer.

Now there has been much discussion here today and as I said, the Assistant Secretary heard you, that maybe the whole world doesn't agree with the exceptions, and the exceptions, perhaps, won't, shouldn't be there in the proposal. That is what he heard said. This is only a proposal at this stage. Fortunately for us, we have brought Mr. Martonik back into the room to answer all your hard questions, Steve.

MR. COOPER: Mr. Swanson, I can agree with you that the Assistant Secretary probably knows what this Committee feels on this already. Because you had a vote six to seven for the employer to pay it, then you had another vote which passed to leave it the way it is. So I don't know how long this Committee should ride this dead horse. He knows how we feel, it would appear to me.

MR. SWANSON: I think he does, too. And if I was wise, I wouldn't respond to that, but I think, nonetheless, I think for purposes of the record, the vote that you had this morning, that came out 7-6 was on a proposed resolution for an amendment to the language and that was that, that amendment was defeated. That was defeated. But, I did not hear, unless I was out of the room, I did not hear a vote on OSHA's proposal, endorsing or not endorsing OSHA's proposal. You were silent on that. So it was only the resolution with the substitution, that was defeated. OSHA --

MS. SHORTALL: There was a second vote.

MR. BUCHET: Then at some point because I voted against it, I thought that there was a vote taken to keep the existing 1926.95 language.

CHAIRMAN NICHOLS: There was. There was and it passed 6 to 2.

MR. SWANSON: But, that was not on OSHA's proposal that they, that Mr. Martonik came to explain to you this morning. It was keep the language as it is in 1926 right now, right? That is the 6-2 vote.

CHAIRMAN NICHOLS: Robert?

MR. MASTERSON: I pass.

CHAIRMAN NICHOLS: Okay. Bill, you had a question?

MR. RHOTEN: I think I made my position.

MR. SMITH: That horse is dead.

CHAIRMAN NICHOLS: Any other questions?

MR. SMITH: I move the agenda.

CHAIRMAN NICHOLS: Any other questions, comments in regard to work group activities that you wish to discuss?

MR. RHOTEN: Well, maybe this particular subject needs to have a work group. I mean, why not? There is going to be more communication with OSHA, is that correct?

CHAIRMAN NICHOLS: Pardon?

MR. RHOTEN: Is there going to be more communication on this issue coming from OSHA.

CHAIRMAN NICHOLS: You mean, what was requested over here?

MR. RHOTEN: Well, I think what was requested was that we spar around with this issue all day, now OSHA is going to do something. I guess, the question is, do we feel like OSHA has gotten enough input from us on the issue or not. When they get into specific language and what they are going to do --

CHAIRMAN NICHOLS: When they get into --

MR. RHOTEN: Do we get an opportunity to have any input on that language?

CHAIRMAN NICHOLS: Certainly, there will be a public hearing in regard to moving forward, which everyone will have an opportunity to participate in that.

MR. RHOTEN: Okay.

CHAIRMAN NICHOLS: Which I think the Assistant Secretary also referred to in his comments.

Any other work group discussions?

MR. BURKHAMMER: Are we going to take under consideration your memo to the Advisory Committee on the recommended program standard revision along the comments today, or is that going to be referred to the work group?

CHAIRMAN NICHOLS: Refer that to the work group.

MR. BURKHAMMER: Thank you.

CHAIRMAN NICHOLS: Do we have, at this point, any public comment? Does anyone wish to make any public comments before we adjourn for the day?

Seeing none, we will adjourn for today and reconvene tomorrow morning at 9:00 a.m.

(Whereupon, at 2:20 p.m., the meeting was adjourned.)