United Department Of Labor Advisory Committee On Construction Safety And Health Thursday October 12, 2006 | Occupational Safety and Health Administration

United Department Of Labor
Advisory Committee On Construction
Safety And Health

Thursday October 12, 2006

The Committee convened at 8:00 a.m. in room N3437 A/B/C of the third floor of the Frances Perkins Building, Department of Labor Headquarters, at 200 Constitution Avenue, N.W., Washington, D.C., Thomas Broderick, Acting Chairman, presiding.

MEMBERS PRESENT:

Thomas Broderick Acting Chairman
Stewart Burkhammer Designated Federal Official
Sarah Shortall Solicitor
Kevin Beauregard
Michael Buchet
Matt Gillen
Steven Hawkins
Michael Hayslip
Thomas Kavicky
Emmet Russell
Greg Strudwick
Michael Thibodeaux

Also Present:

Cathy Oliver
Tyna Coles
Noah Connell
Tressi Cordaro, Esq.

Attending:

Richard Dressler
Steve Brown
Kevin Brown
Sean Cusson
Michele Myers
Ben Schneider
George Kennedy
Gary Nally
Beth O'quinn
Ellen Stewart
Jon Fearess
Billy Miller
Stephen Kinn
Justin Crandol
Hank Payne

I N D E X

EXHIBITSMARKED/RECEIVED

DOL's

Number 12 55
Number 13 55
Number 14 77
Number 15148
Number 16182
Number 17225
Number 18228
Number 19239

P R O C E E D I N G S

8:11 a.m.

MR. BRODERICK: Ladies and gentlemen, welcome. We're going to go ahead and get started.

The first order of the day is for me to remind those of you who are in the gallery that there is a sign-up sheet, or there are two sign-up sheets on the table outside of this room, in the hall. And one is for all to sign to indicate that you've been at this meeting. The second one is for those of you who would like to take advantage of public comment.

For those of you who were here yesterday, you know that I made this announcement several times throughout the day, as the gallery seems to get larger and larger as the day goes on. But we welcome you and welcome your comments.

The first order of business today is something that I've been looking forward to. It's a presentation on a very important part of the Agency's work. It's a very important part of the Agency's work that has been responding more and more to the unique needs of our industry, and that's something, I think, that all of us who are sitting at this table have been hoping for, have been pushing for, and I'm sure that the presentation we're about to hear has some additional information that will be pleasing to us and to our constituents.

So, without further ado, I would like to welcome Cathy Oliver and Tyna Coles to give us an update on VPP and Challenge and voluntary programs. So welcome.

MS. OLIVER: Thank you very much.

MR. BRODERICK: Would you like for us to go around and introduce ourselves?

MS. OLIVER: That would be very good. Thank you.

MS. BRODERICK: All right. Tom, could we start with you?

MR. KAVICKY: I'm Tom Kavicky. I'm with the United Brotherhood of Carpenters and Joiners of America, Employee Representative.

MR. HAWKINS: Steve Hawkins from Tennessee, representative of the State Plan.

MR. MURPHY: Dan Murphy, Worzorick Insurance.

MR. RUSSELL: Emmet Russell with Operating Engineers and the National Union.

MR. STRUDWICK: Greg Strudwick, Greg Strudwick & Associates, an Employee Representative for NUCA.

MR. BRODERICK: Tom Broderick with the Construction Safety Council.

MR. BURKHAMMER: Stew Burkhammer, NIOSH Construction Coordinator.

MR. BEAUREGARD: Kevin Beauregard, North Carolina Department of Labor.

MR. THIBODEAUX: Mike Thibodeaux, Lennar Corporation.

MR. HAYSLIP: Good morning Cathy and Tyna. Mike Hayslip, NESTI.

MR. BUCHET: Michael Buchet, your neighbor around the corner.

MR. BRODERICK: And we might as well get a sense for our guests in the audience as well. So we'll maybe get started over on that side.

MR. DRESSLER: Dick Dressler from the Association of Equipment Manufacturers.

MR. MILLER: Billy Miller with Zurich Insurance.

MR. KINN: Steve Kinn with the Construction Employers Association and AGC of Ohio.

MS. MYERS: Michele Myers with the Associated General Contractors of America.

MR. CANNON: Kevin Cannon, National Association of Home Builders.

MR. PAYNE: Hank Payne, OSHA's Office of Training and Education.

MR. BROWN: Steve Brown, B & A Publications.

MS. O'QUINN: Beth O'Quinn, Specialized Carriers and Rigging Association.

MS. OLIVER: Thank you. We are delighted to be here. Paula White, the Director of our Directorate of the Cooperative and State Programs is sorry she couldn't make it here this morning, but Tyna Coles, our Deputy Director and myself, Cathy Oliver, will be happy to try to pitch in and give you an update about what we've been doing in the construction industry, with regard to both cooperative programs and compliance assistance and outreach.

I think we have a good story to tell. I think we are delighted to be here, in the hopes that we can continue to work with this group to build on some of the successes that we already have.

We generally have three cooperative programs that we think truly benefit, and our experience has shown, benefit the construction industry. And that's our Voluntary Protection Program, which is our premier recognition program for workplace safety and health.

We have an Alliance Program, which is a program whereby we have partnered with associations and employers and even universities to come to some agreement about a particular goal that we want to reach in safety and health, and to develop products and/or training and/or outreach in those areas.

And then finally, the Strategic Partnership Program, which is again, a program similar to the Alliance, in that it's building relationships and cooperative relationships with businesses and associations and unions. But we do it in such a way that it impacts at the actual workplace level and we can actually measure the results of what we're doing in those particular programs. So that's kind of the differences.

I'm assuming everyone is somewhat familiar with these programs. Is that fair to say? Okay, great.

We have almost 1,600 VPP sites now, covering 800,000 employers and I think the key to VPP success has been, it's been one model that has worked in a variety of industries, both large and small.

We do have work sites that range from just three employers to some that are 18,000 employers, and that's using one basic model. The differences are in the type of systems that we require when we come out and do our on-site evaluation for VPP. In other words, if you're a really small employer, we're not looking for quite the complexity in terms of a hazard identification and control system, as we would in a more complex environment.

I think this next data point is really telling, in that when we analyze the folks and VPP participants in 2005 overall, their TCIR rates were 53 percent below the industry average, which means that's close to 12,000 total cases avoided.

When we take construction out, who has done some work in the VPP area, they, in fact, see a greater benefit at 61 percent below the TCIR rate and 64 percent below the DART rate. So we know then that this model works for the construction industry.

As we build on VPP and we get more and more sites in the program, we, as an Agency, continue to struggle with trying to keep up with the demand for the program. And so we have mapped out three new areas that I'd like to talk about today.

One is our OSHA Challenge Program, which is sort of a VPP preparation program, and the second is a corporate program, which allows us to do things a little bit differently in terms of process for those companies that want to make a significant commitment to VPP and bring in a lot of sites across the nation.

And then finally, the VPP Construction, which is where I'll spend most of my time in just a few minutes.

I think it's important to note that with VPP, we have a lot of flexibility with this program and that's what's allowed us to do some of these things as we move forward, as we work with industries and as we work with unions, when we find that the rules, if you will, or the procedures, if you will, don't quite meet the needs of that particular industry or union, we're able to be somewhat flexible. And so that's why we moved in this direction.

I'm hoping Michael is passing out now, Stages at a Glance?

MR. BUCHET: Both handouts.

MS. OLIVER: Okay, both handouts. Great.

We're really excited about the OSHA Challenge Program. What it does is it breaks down VPP into three viable stages. And for each stage, it identifies what a company should be doing, in terms of action items. What documentation that company should have in place and what outcomes we're looking for. And this has been particularly successful in the construction industry, which I'll get to in just a moment.

But essentially, with this break-out then, instead of trying to do VPP all in one bite, you can take it bits a pieces. And we've really found that this has resulted in a lot of good improvements in the construction industry.

The Challenge provides some tools to help you do this, that work on a regular Word system and for each one of the stages that you go through, you can identify whether or not you're working on it, which is yellow, or you haven't done anything at all, which is red, and then for green, it means that you have made some progress in that area.

So as managers of a particular company, including the small construction sub-contractors, or even big general contractors, you can get a snapshot of where your organization is in terms of having a comprehensive safety and health management system in place.

Right now this program covers over 31,000 employees and we have 74 participants and the construction industry has been the most active in this particular program. We have eight candidates in the pipeline. Six have already applied for VPP and two have, in fact, been approved to VPP.

So as we've worked through this program, we know that if a company actually makes a commitment to go through the stages, then they will end up being ready for VPP at the end of the line. That's what our preliminary data shows.

And I should note that this program also allows for some recognition from OSHA at the incremental stages. So if your company gets through Stage 1, you get a letter from OSHA from an area office indicating that you've done a good job and please move onto Stage 2. At

Stage 2 you get a letter from Regional Administrators, and at Stage 3 you get a letter from the Assistant Secretary. So there is some recognition from OSHA built in and you also get your name on the website.

These are a couple of our successes. North American Energy Services, from 2003 to 2006, being involved in the program. They were able to reduce their TCIR rates by 57 percent and their EMR rates by 36 percent.

One of the graduates from that program that I'd just like to highlight is Garbor Brothers Precision Concrete. They were the first concrete sub-contractor to achieve VPP status. And their Safety Director, Sean Markar, has attributed their success to the OSHA Challenge Program.

In addition, they were recently approached by a Fortune 500 Company that had been giving some extra status to sub-contractors who were in VPP and now that Fortune 500 Company is going to put on the pre-qual list, give an advantage to those companies who are also in OSHA Challenge.

So we think that this VPP Challenge Program is really going to start to catch fire and be a really good base to build VPP participants in the construction industry.

The next program I'd like to highlight is VPP Corporate, and this program is essentially for those companies who want to make a significant commitment to VPP, bringing in a lot of sites. In VPP, for example, in General Electric, they've brought in over 100 sites into the VPP Program and we've been using the same processes to their review their applications and to do our on-site reviews for each one of those 100 sites. So you can see that we're actually expending probably more resources than we need to for a company that has a lot of VPP experience.

And so through VPP Corporate, we're able to streamline those processes, streamline the paperwork that a company needs to apply for VPP and streamline the actual on-site review of companies that get into the program.

Essentially, for VPP, for the Corporate Program, excuse me, it's really mainly for general industry, but we have gotten the Washington group approved to that program and we're going to kind of work with them to see if that program will actually work for the construction industry as well.

Now, what I'd like to do is talk about the demonstration program for construction that was recently announced to begin in October 2006. But I want to give you a little bit of background before I do that, because I want you to understand that we haven't moved to the point where we are with this new construction program just overnight. We've actually had some demonstration programs going on for quite a while to get us ready for this program.

In those demonstrations and the participation that we had in those demonstrations, when we evaluated the participation, through both our short-term construction and mobile workforce construction programs, we learned that those companies that were in these programs could benefit from VPP and actually did have average BLS TCIR rates, between 40 and 90 percent below the industry average and between 40 and 100 percent below the industry average. So they've been very successful.

And so because of that success, our Assistant Secretary, Mr. Foulke, has made decisions to move forward with a new mobile workforce demonstration program that will be nation-wide, and this program is open to both general contractors and sub-contractors, and those who want to apply for the program can apply at the Corporate, the Division or Business Unit level. And they need to apply in a defined geographic area, which means that a particular company or business unit can apply at say, an area office level, or a state level or a regional level. So you don't have to just be applying in one particular location.

We do, at this point, the way the program is designed, region-wide is the actual outside boundary of how you can apply for this program.

In terms of union support, those of you who are familiar with VPP, we require union sign-off for VPP. But in this particular program, we're allowing some flexibility. If the contractors you work with, if more than 50 percent of the employees are represented by the union, we require official sign-offs from those particular unions that are involved in the program.

If the employees involved are less than 50 percent, then we would want to ensure employee involvement. We would be doing that when we do our actual on-site reviews and we interview employees to determine how involved they are in the program and that they do support the VPP.

Those generals or sub-contractors that can apply, it's for all of the work that's performed by those companies, whether it be at fixed sites or mobile sites. What we're trying to do is to get an actual company or business unit to commit to VPP in a defined geographic area and then get all of their work that's performed in that geographic area up to the VPP standard and actually represented by VPP.

In terms of this, it means if you're a sub-contractor and are applying, then you don't have to have complete control over the work site that you're working on. But you do have to have a clear inspection history for three years within that defined geographic area, which means no repeats or willfuls and the like.

In terms of the program requirements, I think one point I want to make here is that we're not really trying to re-define what a comprehensive and effective comprehensive safety and health management system is. We're actually kind of tweaking the processes in order for the construction industry to participate in this program.

Some of the differences between the traditional VPP and this mobile workforce demonstration are that in the injury and illness data, we're not only looking for the injury and illness data for your employees that actually work directly for your company, but also for all of the sub-contractors that work on your projects within the defined geographic area.

I already mentioned the union commitment. A third difference of the program is the participation plan that we're asking for. So when you're actually applying for VPP, you will be sitting down with representatives in your OSHA area or Regional Office, depending on the defined geographic area you're going to apply in, and you're going to be working with them to determine how your program meets the VPP requirements and if there's certain areas where you need to do something a little different than the standard VPP practice, those things will be worked out and documented into a participation plan.

Now, I don't want to scare everybody off, like this is a huge document or anything. I mean, the ones that we've had during our demonstration trials, it's only like a two or three page document, but it basically outlines for both OSHA and the employer who is applying, exactly how we're going to work through the VPP process for this particular participation in this program.

A fourth area that's a bit different is what we call a pre-screening or oversight process that we're looking at. Obviously, if we're going to take your safety and health program and review it on a high level and then go out and just do several on-site reviews for the program to determine if you're operating at VPP status within that defined geographic area, we're going to be counting on you as an employer, on you as a sub-contractor or a general contractor, to have in place a process whereby you're ensuring that the work performed at those sites, in the defined geographic area, are at VPP status.

So when we come out and do our review, we're going to be asking you questions on how do you as a company, or how do you as a sub-contractor, ensure that your program is working effectively in all of these areas?

And then finally, the last major difference is something we're calling good practices. These are things that I'm sure you all are very familiar with, but in the construction industry, we found that there's some good practices that actually save lives.

For example, many of our VPP participants in the past have had 100 percent fall protection at six feet. They've also had proactive drug screening programs and the like. These are not requirements to get into the VPP, but these are certainly areas because they're so important to the health and safety of employees in the construction industry, that we will be looking at very closely when we come out and do our on-site review.

To apply for this program, it's very similar to traditional VPP. There are some modifications to the application process, which are available on the web, but essentially, you're trying to put together a document that covers and details how you have a comprehensive safety and health management system at your site.

We're also asking you to give us a list of your active sites, and sites that you think are going to be coming up under construction in the course of the next year. And we're also getting that participation plan into place, and for those companies that have gone through the OSHA Challenge Program that I talked about earlier, we hope to give them an expedited application review.

The evaluation process is a two-step process. The first step would be that we would come out and do that Corporate review that I mentioned earlier. We would actually review your Corporate or Division or Business Unit safety and health management system. We would interview senior officials and employees and then we would review your pre-screening process.

And then once we determine that your Corporate program is at star level, we need to go out to some of your job sites, at least one, within that defined geographic area, and actually verify that your safety and health management system is in place in that defined geographic area.

When we do the Corporate level review, we're really going to be honing in on your management leadership and your employee involvement, and I know employee involvement is done somewhat differently at a construction industry site, or at a construction for sub-contractors it would be different than for general contractors and the like. But we do want to get a sense that you do have avenues for employees to be involved in the safety and health management system.

We'll be looking at your policies and again, your pre-screening processes and also looking at your injury and illness rates. We do, on VPP evaluations, do a thorough review of the OSHA 300 laws.

When we go out to the work site, again, we're going to do at least one. If the Regional Administrator within that defined geographic area determines that they need to do a few more evaluations, the Regional Administrator does have flexibility to do that based on some criteria that we set up. In other words, if you have some different phases of construction, we may want to go out and do an on-site review to look at those types of different phases of construction. If you have different operations at various sites, we're going to want to maybe take a look at that.

But generally, we only want to do the number of on-site reviews that are necessary to determine whether or not your safety and health management system is implemented effectively within that defined geographic area. And we don't want this program to mean that you're going to get inspected more than you would if you weren't in the program. And so there are some guidelines that say that we would like to keep this under the number of sites that you would have maybe anticipated in an OSHA inspection for the program.

When we do these evaluations, they will be unannounced. If you're a sub-contractor and you're applying, obviously, we need to get some written permission from the general, that we can actually come on site. If you have 20 sites in process and you get a couple of generals that maybe don't want to see OSHA on-site, we would still have 18 sites where we could go and do these on-site reviews.

But if you had 20 projects going on and all 20 said that OSHA can't come on-site and do an evaluation then obviously, that would pose a problem and probably mean that you couldn't participate in this program.

One of the things that we found through this demonstration is that we really haven't had that much trouble getting the generals to allow OSHA on site, once they understand what we're doing there and why we're doing it. And in fact, some generals have said that they've benefited from the experience.

When we do come on-site, there will be no citations issued if the violations are immediately corrected or if there's an abatement plan in place, where we have some follow-up to determine that those hazards have, in fact, been abated.

However, if we get into a situation where someone doesn't want to correct a hazard, there could be a referral to Enforcement.

Those participants that are in the program are removed from the OSHA Program inspection list within that defined geographic area.

We do come out every 12 or 18 months to repeat our on-site evaluations. Every five years we will go back and look at your company or business unit or Corporate safety and health management program, and we will be expecting an annual self-evaluation from your site, again, on an annual basis.

So that kind of summarizes what we're doing in construction in terms of VPP. Again, one thing I failed to mention on the Challenge Program, if you could just rewind for a minute, would be that we do that program through what we call Challenge Administrators. For example, the Associated Building Contractors is a Challenge Administrators. The AGC is a Challenge Administrator. The Ohio Valley is one, and Mr. Broderick there is one of our great Challenge Administrators.

So if any of you are interested in stepping up the plate, and your role as a Challenge Administrator is really to mentor and facilitate participation by mostly sub-contractors, probably, and some generals though, in the VPP, then we would be delighted to have that. And we did hand out the stages, so you might be able to get familiar with that.

With that, I'm going to ask Tyna if she's ready to talk.

Are there any questions on construction before we move onto alliances and compliances?

MR. BRODERICK: Gentlemen? Hearing none, I guess we don't.

MS. OLIVER: Well, we have a sign-up sheet. Is anybody ready to sign up?

MS. COLES: Well, thank you. It's very nice to be with you here today. This is my first ACCSH meeting, so it's kind of exciting for me.

I'm going to talk to you briefly about the Alliance Program, some of our outreach efforts and the Partnership Program, all of which were in the Directorate of Cooperative and State Programs for OSHA.

The Alliance Program, we currently have 457 national, regional or area office alliances. Sixty-nine of these alliances are in the National Office. The remaining 388 are in regional and area offices.

We have 12 alliances with the construction-related activities. They vary in covering a variety of topics, mostly fall protection, silica and the pinch-point and equipment operation hazards.

The Alliance Program will provide training, outreach and education, a dialog on safety and health. Like the Partnership Program and in a real way, like the VPP Program, the Alliance Program develops relationships. And largely we develop relationships through this program with people that we have not worked with, certainly not as publicly in the past.

We're reaching millions of employers and employees through this program and some of our construction-related alliances include ADSC, the Construction Sawing and Drilling Association, the Independent Electrical Contractors, the National Association of Home Builders, the National Demolition Association and the National Utility Contractors Association.

I want to spend a few minutes talking about OSHA's alliance with the National Home Builders Association, or National Association of Home Builders, I'm sorry.

This alliance was signed in 2003 and renewed on October 18, 2005. What's important for us about this is this Association is a Federation of more than 800 state and local associations. We're reaching over 205,000 members, which include home builders and re-modelers, which is a very important group for OSHA to be in contact with. And through the alliance we've been able to provide the members with information, guidance, access to training resources that will help them protect both their employees' safety and their health.

On this particular alliance, we are dealing with what we call the Focus 4, falls, electrical, struck-bys and caught in between safety hazards.

The process is, as a result of this we have developed a construction round table for fall protection. We have a work group that does that. We have the residential construction and manual lifting balloon frame, safety and health information bulletin, and we have a seminar called "Building a House."

We are working on two projects coming up and one is a 10 hour outreach construction program for residential construction and a tool box talks for ladders.

As you know, we have a variety of products that we put out through the Alliance Programs and these are done jointly with our alliance partners. We have a variety of publications, safety and health topics pages, electrical tools, case studies, training and success stories.

We have 11 e-tools. These are web-based interactive training tools. They have been revised and developed collaboratively, like everything we do in the Alliance Program, with our partners.

The case studies that we have developed, we developed with Abbott Laboratories. We actually have eight of them now. These case studies are being used in business schools to help put a real world perspective on the value of safety and health.

And we also have some success stories, one with the American Heart Association. In fact, the American Heart Association has provided training on automated external defibrillators, as well as with the steel group. Chappell Steel Company operates an inspection program to improve cutting torch safety.

That's about all I think I have on the Alliance Programs. I want to spend a few minutes talking about the OSHA Strategic Partnership Program.

The Partnership Program, partnerships were formalized in Occupational Safety and Health Administration in November 1998. And what we do with partnerships, it's relationship building, but these relationship buildings, unlike our Alliance Program, which we will produce products together, we'll do e-tools, we'll do other things that we will put up on our website.

When you go into a partnership, the people who we partner with, if we have a problem doing A, Q, X or Y, and we want you to work with us to educate our members on the safety ways to do whatever the topic is.

So in partnership we try to eliminate serious hazards and we create effective safety and health management systems. We measure the results. So when we get together we set up a plan and say, "This is what we want to look at and this is what we want to measure," and in general, we achieve a high degree of worker's safety and health. Worker involvement is very critical to a Partnership Program.

So we have 157 current active partnerships. Nine of them are national partnerships. We currently impact over 6,000 employers and 600,000 employees.

In 1998, all of our open partnerships impact small businesses, as you probably have heard, OSHA is making a concerted effort to engage the small business community. We have an alliance with the National Federation of Independent Businesses. So the fact that we have small business involvement in these partnerships is very important to us. And these partnerships, along with the Alliance Program and probably everything we do in the Directorate, leads to helping us to implement OSHA's Strategic Management Plan.

Now, there is one partnership which is near and dear to the hearts of people in this room. We have 116 construction industry partnerships, but AMEC Construction is the one I want to talk a little bit about today because our efforts with them have been very, very impressive and they've been unique.

AMEC Construction Management partnered to reduce worker-related fatalities and serious injuries. One of the many things that we work with them on, that they started to do as a result of this partnership, were daily site audits. They have a weekly tool box talk. They investigate near misses, with the results shared with OSHA and other job sites in the partnership. Over 2,000 employees have received training through the tool box talks and new hire orientations.

Since the partnership began in April 2002, the total pace recordable incident rate for participating AMEC sub-contractors has declined from 9.1 in 2002 to 2.8 in 2004. That's a 69 percent reduction, which we think is quite admirable.

In addition, in 2004, the 2004 rate of 2.8, is 59 percent below the 2002 non-residential construction industry average of 6.9 percent. We think both OSHA, as well as AMEC has benefited tremendously from this particular partnership.

I want to say now a few words about OSHA outreach and compliance assistance. OSHA wants to change how it is viewed by the world outside of our little OSHA world. We want to be viewed as the resource for all of your information needs on worker's safety and health, and the Assistant Secretary tells the story about it. If you're lost and you see a police officer, you go up to him and you say, "Can you give me directions?" The police officer is delighted to give you directions and you're delighted to get the directions and go on your way.

But if you commit a crime, that same police officer is the one who is going to handcuff you and put you in the squad car and take you off to jail.

Well, OSHA would like to be viewed much that way. We're here to help you. Come ask us questions, work with us in a partnership and alliance. Everyone should use our website. I think our website is one of the best the Government has available to assist employers and employees.

But at the same time, OSHA does have a statutory responsibility to fulfill its enforcement actions.

Workplace accidents and injuries are very, very expensive, and at all costs, we should try to avoid them. OSHA's website receives currently over five million visits per month. The website had over 68 million visit in fiscal year 2005, and that was up 17 million visits from 2002. This is to our compliance assistance web pages. I have data up until July for 2006, with 619,000 visitors. Certainly, the money that we put into our web pages, we think has paid off tremendously for the public.

We do these electronic e-tools. I mentioned those before. They're interactive training sessions. We have 35 e-tools currently up and available and we have 11 expert advisors. The one you see on the screen now is the silica advisor. And we have ones on falls and baggage handling, respiratory protection, machine guarding.

We have web rates, resources as well, and safety and health topic pages. We actually have 175 of them now. These provide you with complete information on your specific industry and on specific hazards within that industry. You are encouraged to view these as well. We currently have them on biological agents, construction hazards and safety measures, emergency preparedness, hazard communication, maritime industry issues, nursing home concerns and respiratory protections.

We have launched a series of pages in fiscal year 2006 on concrete and concrete products, manufacturing and construction, and we now have a steel page. In fact, the page you see here now is the concrete and concrete products manufacturing safety and health topics page.

In the compliance assistance area, also, we do a variety of outreach products. We have fact sheets, brochures, general guidance material, like the small business hand books, forms, posters and Quick cards. I know this industry, because I have worked with Stew on a variety of, Quick cards, they're a little bit too big for a pocket, but they're laminated. One side is English, one side is Spanish and we've used a lot of pictograms to tell you how to do something properly.

Some of the outreach products we are working on related to your industry are asbestos standards for the construction industry. We have an information booklet. We have the Worker Safety Series, with construction pocket guides and we have the constructions hazards Quick cards.

And that pretty much exhausts our compliance assistance materials. We are now open for any questions that you may have.

MR. KAVICKY: Mr. Chairman, Tom Kavicky with the Carpenters. We've been involved in quite a few of the strategic partnerships in Chicago, the AMEC one. Right now we're involved with McCormack Place and we've got the Lowe's partnership as well.

Where I see difficulty, where we get the resistance of contractors agreeing to these partnership is the annual inspection requirement. Are those citable, or does it work like the VPP, where if it's immediately corrected, there's no citation?

MS. COLES: Yes.

MS. OLIVER: It depends, that's the answer to your question. It depends on how the partnership is written.

We require, when we do an OSHA Strategic Partnership, that there be some form of verification, and that can be non-enforcement verification, in terms of just, we get in injury and illness data and we review that data on an annual basis, all the way up to where it would require an enforcement type evaluation.

Depending on what you choose as the verification method, it kind of determines what benefit you get from OSHA. If in fact, you want to be removed from OSHA's program inspection list, then you would have to undergo at least one annual enforcement verification.

But in the other cases, you would still be on our targeting list, but you can still be in the partnership without undergoing that. So it just depends how the partnership is structured.

MR. KAVICKY: But the enforcement part, where they go out and do the walk-through, if they see hazards at the site, are they citable, or if they're corrected immediately, are they not citable?

MS. OLIVER: Stew, can you, I'm not B-

MR. BURKHAMMER: It's supposed to work, if they walk around and they see violations and they're not of the imminent danger classification, they're allowed to correct them immediately or have a big plan that allows you to correct them.

If it's an imminent danger situation, it's citable.

MR. KAVICKY: I think that's where a lot of the confusion comes and the difficulty of putting these strategic partnerships together is that enforcement part of it, where the contractor feels that, "Why am I getting into this thing if you're going to cite me anyway if you see a guy without a hard hat or safety glasses on or things like that?"

MS. OLIVER: I think in Stew's example you wouldn't be cited for the hard hat or safety glasses.

MR. BURKHAMMER: They're not going to cite that.

MS. OLIVER: If there's a serious or imminent danger, then there would be a citation.

MR. BURKHAMMER: If there's a deep trench, the COSHO observes people work in an unprotected trench, that's certainly an imminent danger situation. Falls from heights, no fall protection, certainly an imminent danger situation.

That's the things that are going to be cited, not hard hats, safety glasses, tops on gas tanks, that kind of thing.

MR. KAVICKY: I think there's confusion regarding that. Thank you.

MS. COLES: Thank you. But that's why we want to drive home the message that, if there is a trench and an employee is hurt, what that's doing to your mod rate, what's that doing to your morale, what's that doing to your pocketbook, it's not healthy things. And that's why we want to work with you to prevent that from happening. And that, I think, is the other, I want the employer to understand that as well.

MR. KAVICKY: And really, that's the way we sell it when we're going out to these job sites trying to recruit strategic partnerships. But the difficulty has always been sitting down with OSHA and them on the other side of the table and saying, "Yes, you're going to subjected to this annual inspection and it will be enforced and you can be cited." They say, "Well, why am I in this thing?"

MS. OLIVER: Well, we certainly will take your comment and question and we can have someone dialog this up for you. I understand fully.

MR. KAVICKY: Thank you.

MS. COLES: But also, I come from the consultation part of the OSHA family. And one of the things we started to do in consultation, this is just as a way to help you encourage these things, is that, when we work with a site in a specific industry and they have a really positive experience with us, we ask them to do some of that talking for us, and we would like, invite them in to talk to other employers who are thinking about maybe having a consultation visit, which is totally voluntary.

I think maybe if they hear another employee, you know, listening to me is, I don't have the kind of credibility another employer or industry would have, in terms of helping to market the consultation program. So that might be one of the things we could do in the partnership. Some people have already worked with us and have had positive experiences, talked to the people you're trying to partner with and say, "You know, I did it and the outcome for me was extremely positive."

MR. BURKHAMMER: Tom, the two things I'll add to that. The McCormack Partnership, for one, is in Chicago. Part of that partnership when they developed it with the building trades and everybody that participated in that, was how the annual evaluation was going to be conducted. Everybody had input into that piece.

So when they go out and do the annual evaluation, it's done as a joint effort, not a singular. I think you guys participated in it.

MR. KAVICKY: Yes, we did.

MR. BURKHAMMER: So it's an open invitation for everybody to walk around and see the same thing. We're not trying to hide it.

And the other piece is, most of the partnerships, most of the construction partnerships are all done, when they go out and do an annual evaluation they start as a focused inspection in the majority of the cases, and that's also included in the partnership documents, of how they're going to do that.

MR. BRODERICK: Greg?

MR. STRUDWICK: Just one comment. Greg Strudwick from the employer's side on the private side. Is the same, it goes in line with Tom's comment of having an inspection on-site and where we find the contractor focused is on the immediate hazards. In other words, the dangers to life and health immediately, and we've had occasion where a very good contractor, bridge contractor in Florida, that would be a very good candidate for VPP, had an inspection on a bridge site over an existing canal, or whatever it was, where there was a lot of exposure.

The inspector found one fuel, gas can, that had the spark arrester removed from the inside, which is the little screen that goes into the can. The can was an approved can, but typically what happens, they go to the gas station, they stick the nozzle in, the screen stops them from sticking it down, so they take the screen out. They either leave it out or throw it away.

Their mentality was that they needed to find something wrong when they came out to the site, and so they cited the other than serious, basically, the spark arrester, which would eliminate, because of the citation, if it stood, their ability to even participate in a VPP because it would still be clear, if that's the way I just heard it.

MS. OLIVER: No. We're only talking about within that defined geographic area that you apply, if you had a willful or repeat. If you have other than serious, or even serious, it wouldn't keep you out of these cooperative programs.

MR. STRUDWICK: Okay, all right. Well, I misunderstood then, because I saw that as a clear record for three years.

But there is where we have the rub from a standpoint of, when a Compliance Officer, COSHO, comes out to a site, not just in Florida, but all over, is that the mentality is, we're going to find something and we're going to make it stick.

And so, that was one of the things that eliminates there even being, to even encourage them to take part in the VPP Program where they feel like, no matter what happens, somebody is going to find some type of a deficiency because that's their job. And so we've got to change that mentality.

We can sell this and people would be very pleased to participate, but not as a threat. It has to be as a cooperative, just like you described, a situation where people can take into consideration those type of deficiencies that are not obvious and certainly, not intentional. So that's the whole deal. We need to sell.

MS. OLIVER: Thank you for that feedback.

MR. BRODERICK: Any others? Mike?

MR. HAYSLIP: Mike Hayslip with NESTI. Tyna, good job. Very nice presentation. Very clear and concise. Thank you.

We're an Advisory Committee, as you know, so I can't help but to offer advice.

You had said something to the effect of tool box talks and ladders and things. If you do anything on A-frame ladders, I would hope that you might cover like the first foot, or at least the first six to eight inches of the back legs of a ladder. That's a good place to focus, an inspection on a ladder, and make sure the people don't want to repair those ladders themselves. I see a lot that in the field and that's where a lot of the falls are. It's at the base, they start to chip away a little bit. If you have tool box talks, that might be a good thing to focus on.

MS. COLES: Okay, thank you.

MR. HAYSLIP: Cathy, superior presentation. I think the DOL is well-served in your efforts. It was very nice.

I have a question. As you know, I sit on the Board of Directors for ASSC. We have 30,000 members and they have specialty practices. One is the construction forum.

And my question is, as I go off to the TEEX's, so to speak, and my 4,000 people in my region, if someone is interested in being an Administrator, how do they pursue that? Is it something that happens every year? Is there certain qualifications? How does someone find out more about that?

MS. OLIVER: Actually, I think this is a good time to just recognize a couple of people here. One is Stew Burkhammer. Obviously, you know him, but I just wanted to recognize him for the work that he's done to help us in the Directorate of Cooperative Programs to put all this together.

And also, I hope he's still here, but Jim Boom, in the back, who works in our particular Directorate. And so these two gentlemen have been a great help, along with others, to put these programs together.

But in answer to your question, we have a lot of materials on the OSHA Challenge Program. They are available on the website and it kind of explains what to do, in terms of wanting to be a Challenge Administrator. But the short answer is to call Jim Boom, because he administers this program for us and does an excellent job. And his number is 202-693-2213.

MR. HAYSLIP: Thank you. I already have that.

MS. OLIVER: Okay.

MR. BRODERICK: I just wanted to jump in here. Tom Broderick. Mike, it's a very painless process. An example, recently I was down in Morgantown, West Virginia at the NIOSH/NORA meeting. And one of the visitors that we had at the meeting was a fellow from West Virginia University and their construction and extension. He was interested in the Challenge Program and then becoming a Challenge Administrator. Stew is also on this committee.

So we made Stew aware that there was an interest. He got on his cell phone and called Jim and by the next day, Jim had hooked up with Marc, and as far as I know, they're rocking and rolling to have him on board as an Administrator, so that he can go out to his constituents and offer the service.

MR. GILLEN: And the meeting occurred at a VPP facility.

MR. BRODERICK: It did occur at a VPP facility, yes.

MR. HAYSLIP: And I believe, to confirm it, this is a non-compensable position, Administrators.

MS. OLIVER: Yes.

MR. HAYSLIP: All right, because people will look at the record and that should be put in there.

MS. OLIVER: And one point I'd like to add, as far as Administrators, is the Construction Administrators have been terrific in adopting some general industry work sites who want to be part of the Challenge Program, because we have a shortage of General Industry Administrators and we're working on some new marketing techniques and so on, to build a bigger base of General Industry Administrators.

But we're just delighted that the Construction Administrators have stepped forward and said, "Well, we'll help you." So it just goes to show, in terms of safety and health, everybody wants to share and everybody wants to benefit from the successes of others. So we thank you all for that.

MR. BRODERICK: Any other questions? Comments?

MS. SHORTALL: I have a couple of quick housekeeping ones. I would like to mark as Exhibit 12 and enter into the record, the hard copy of the Power Point presentation on OSHA Cooperative Programs, Compliances and Outreach Efforts, and as Exhibit 13, the OSHA Challenge Construction Track Stages at a Glance.

(Whereupon, DOL's Exhibit 12 and 13 were marked for identification purposes and entered into the record.)

MR. BRODERICK: Thank you, Sarah. No other questions or comments?

MS. OLIVER: I've been asked to clarify a particular point from Jim and Stew.

In terms of being Administrator, if you incur certain costs, like, let's say you're putting together a training program for the candidates that are going to be part of your Challenge effort, then you can charge a small fee to be reimbursed for things like materials or the room or coffee or that type of thing. It's just that there are rules that you can't make any profit off of the effort. So thank you for that clarification.

MR. BRODERICK: Thank you very much for this presentation, because this, I think as far as this Committee is concerned, is really the good stuff. Bringing together programs that accomplish what a lot of us have strived for over the years, to have examples of safety excellence, to pull those who have not achieved that up to that level.

Another exciting thing as I think about it, is it's done with the employees and for years, we've talked about how do we get employees more engaged in the process? And putting on my Challenge Administrator hat, it has been, for my staff, just an excellent experience to work with contractors who thought they had pretty good safety programs and watch them discover how they can get to the next level.

The people around this table have worked in safety for their careers and I think we've all, at one time or another, sort of hit the wall in terms of the safety program. What do we do to keep it new and get it invigorated? And that's what we have seen happen with our contractors that are going through this program. It has really invigorated their program and brought safety to the fore-front. So great stuff. Thank you.

MS. OLIVER: Thank you.

MS. COLES: Thank you.

MR. BRODERICK: The next agenda item for us to deliberate on is ACCSH work groups. I wanted to sort of get the temperature, if you will, of the group.

My inclination is, absent our Chair, Linwood Smith, who I'm sure has some ideas about how he would like to lead us going forward, as the Chair, that we not make any decisions at this meeting regarding getting rid of any of the work groups or doing anything of a permanent nature with the work groups.

I think that we've got some good work groups here and I would like to recognize that there is at least one work group that was constituted as a work group, then became a task force, because of a spike in trenching fatalities, and then phased back into being a work group.

Greg Strudwick is the Chair of that and Greg and I have talked and we would like to keep the work of that committee on-going. So that work group will be meeting prior to the next ACCSH meeting. And I don't see any reason why we can't, on any of the other work groups that you gentlemen are involved with, cannot work through the Directorate to schedule a work group meeting prior to our next meeting. Mike?

MR. THIBODEAUX: Mike Thibodeaux. In light of the Assistant Secretary's comments on residential construction that they're going to emphasize, Tom and I have talked about continuing the work on the residential fall protection work group and we'd like to coordinate with Stew and his staff on scheduling at least one more work group meeting before the next ACCSH meeting, so that we could finalize all of the comments and thoughts and so on and make a recommendation to the full committee.

MR. BRODERICK: I would like to hear from you, to get a sense of how you all feel. Is this a course that you're comfortable with? Mike?

MR. HAYSLIP: Mike Hayslip with NESTI. I agree. I might step it up a notch, in that it's a shame, in part, to meet at our next meeting before we have our first decision on when those groups will occur, because that puts us a year out.

It seems that maybe through e-mails and such, we can confirm a lot of that stuff, so then when our next meeting occurs, we indeed, meet as a work group, rather than discuss the option to meet at a later date.

MR. STRUDWICK: June of 2005 was actually the last group of work group meetings. We've had some trenching meetings in August and in December. Actually, the December meeting pretty much focused on trenching initiative and those kinds of things.

Now, what I've seen in the five years that I've been here is that during the periods of time where we have a work group meeting on a semi-annual basis or once every six months or so, we maintain continuity, and we maintain a high level of awareness and we get things done.

To wait a year between work groups is way too far out. Honestly, we lose the ability to actually resolve any matters that are internal in the work group.

I have, and I'll be happy to make them very much available to everyone, a certain amount of archives, as far as the construction trenching work group, silica, noise, all those things that we've talked about in the past. But I'm with Mike and I'm with you. Some of these need to be addressed prior to the next scheduled meeting, especially if that's six months out.

And so I just wanted to go on record as to say that we get a lot of work done when we do it in a consistent manner. If we don't, it doesn't seem to happen. So I've talked to many of you about that myself, because I think it's a concern. I wanted the new people to hear that because I want them to get involved immediately, and whatever help that I can be as far as the information that we've already gathered, along with the information that Scott provided with me, one of our past constituents, then just let me know.

And so there is the focus and the comment that I'd like to make as far as the record is concerned.

MR. BRODERICK: Stew?

MR. BURKHAMMER: I would be remiss if I didn't give you Bruce Swanson's take on work groups, which somewhat is mine and Noah's also.

Work groups are a very integral part of this committee and they have, over the years, produced a tremendous amount of work and some great recommendations to the Agency, which in a sense, has turned into potential standards, the Crane and Derrick Committee being one, the forklift group that Steve Cloutier headed years ago, certainly was one. The rocks group that Emmet has been worked very hard in and Emmet is with us on the Committee. He can, I'm sure, volunteer to be the Chair of it.

But a couple of things to keep in mind. To me, to meet just to meet is not what we're here for. And we've had some work groups in the past that have met to meet. And they come to the full ACCSH Committee and it's time for their work group report and their work group report consists of something like, "Well, we met this week and discussed several things." End of report. Or they don't have a written document to turn in that talks about what their work group did.

Greg, on his trenching work group, has a very detailed report that he turns in after the meeting. So think about why you want to meet, what you hope you'll accomplish when you meet and a product that you're working toward and a report to the Committee that makes sense and is fairly detailed and describes what you're doing.

MR. BRODERICK: Thank you, Stew. And I do, looking down the list of work groups, note that there are sitting members of this ACCSH that are assigned to all of the existing work groups, with the exception of chrome-6 or hexavalent chromium, and I see that Bill Rhoten is the only person that was on that work group and I think now that we have a standard, even though there's some contentiousness about the standard, I do question whether we need to have a hexavalent chromium work group.

So unless anyone has any strong feelings on that, I don't think we have to do anything with it until Linwood is back and then we can, at his pleasure, go ahead and vote to disband it.

But all of the other work groups have sitting members that are on it and I think that I'll share this document with you, and if you're on this work group, I would encourage you to talk with the other sitting members on that particular work group, and see what you would like to do about having a meeting prior to the next scheduled ACCSH meeting.

Later on the agenda, we are going to talk about the ACCSH schedule. Now, I may be wrong here, but I got the impression that the new Assistant Secretary was hoping that this ACCSH would meet more frequently than every six months. Stew do you have any insight on that?

MR. BURKHAMMER: He has indicated that the ACCSH work groups, he would like to see three meetings a year.

MR. BRODERICK: Very good. So B-

MR. BURKHAMMER: If you'd like, we can make copies of that so everybody gets one.

MR. BRODERICK: Okay then.

MS. SHORTALL: Mr. Chair?

MR. HAYSLIP: Mr. Chair?

MR. BRODERICK: Comments? Michael?

MR. HAYSLIP: I have a comment, very briefly. This pertains to the work groups. This may be an off-mike conversation any ways. But when they decide to meet, it would be nice to have some guidance in creating the marching orders. If I'm a Chair, I don't want to necessarily set the agenda in a vacuum. I'm going to look to the Directorate for assistance.

MR. BRODERICK: Good point.

MS. SHORTALL: Mr. Chair, I guess a point of information. On this list, I'm looking over your shoulder, I saw that new members that have been placed on the Committee since the work groups last formed are not necessarily listed as being a member of a work group. How would you like to accomplish their involvement?

MR. BRODERICK: Thank you for that, Sarah. I guess when we have the list to pass around, those of you who are new on ACCSH, have an opportunity to select which work groups you would like to be on and make it known to the existing work group members who are sitting around this table, that you would like to join that particular work group. And then we can let the Directorate know who is on first.

MS. SHORTALL: And do you want them to let you know here today, or to let you know by e-mail with a copy to Mr. Smith, Linwood Smith, about their interest?

MR. BRODERICK: I think I would like to take care of this today, because they're here. Before we get away, I think that they deserve to know whether they're on a work group.

MS. SHORTALL: Okay, and we have some new members who unfortunately weren't here today.

MR. BURKHAMMER: One.

MS. SHORTALL: One?

MR. BRODERICK: I will defer to the Directorate for how that should be handled.

MR. BURKHAMMER: Mr. Chairman, for the new members, the work groups consist of co-chairs. One co-chair from a different make-up group sits on this Committee, so we don't have two employer chairs or two employee chairs or two public chairs. We split it up so we have one from each factor. Hopefully have one from each factor.

Other members can attend work groups that they're not co-chairs of, but the co-chairs are the ones that develop the report. The co-chairs are the ones that run the work group. The other ACCSH members are participants to the work group, just like any public person could also participate in any of the work groups.

So I just wanted to make sure you understand that, you can sit on any work group you like as a non-co-chair, but you're just the same as anybody else. You're there to participate. You're not there as an ACCSH person. You're there as a person who is making the group.

MR. BRODERICK: Greg?

MR. STRUDWICK: From being a member of several of the work groups, those new members that would like to participate can contact any one of the directed co-chairs that are still members, and they can fill you in or fill in the gap between why the work group was initiated and what the work group is focused on in the future, because there are a few, and I'm sure that Linwood will make some adjustments in the work groups themselves, a few of them that are not as important as they used to be.

And so Linwood is going have to give us some input. But it would seem to me that he would be interested in doing that right away, through the Directorate and through Stew and the staff and everybody. They can kind of give us that focus, so we know where to put our efforts, not towards something that's not going to really resolve any type of situation in the near future, to things that we know need to be done. So I would expect that to happen through the Directorate.

MR. BRODERICK: Yes, but I believe by the end of today the new members that we have on the Committee will have an opportunity to see what the standing committees are and let us know what their pleasure is, in terms of the work groups that they would like to participate with.

So by the end of the day, the Directorate will know what the pleasure is of those of you who are new on this committee, and then they can re-vamp that document, so that when Linwood gets back, he'll, with the exception of the boiler maker, and I understand that he will be allowed to similarly choose his work group.

Then when we reconvene, Linwood can look at the overall picture of, are we going to keep all the work groups, and if we want to, re-assign chairs at that point, we can do it.

Anymore discussion on work groups?

(No verbal response.)

MR. BRODERICK: Hearing none, I would like to mess up our agenda one more time, but this is a very pleasant departure from the agenda, and I think we're going to get back on track.

As you all know, yesterday we ran out of time for those who had come in for public comment. We had two people that were not able to make their yesterday's public comment yesterday. So with that, I would like to ask Beth O'Quinn, the Vice President with the Specialized Carriers and Rigging Association to come up and address us, I would guess, on Cranes and Derricks.

MS. O'QUINN: Thank you, Mr. Chairman and members of the Committee. As Tom stated, I am Beth O'Quinn, Vice President for Specialized Carriers and Rigging Association.

For those of you who don't know us, SC & RA is an international trade association with members who are engaged in mill-writing, manufacturing, crane rental and machinery installation, in addition to over-sized and over-weight transportation.

Our members are both union and non-union and 80 percent of our membership is considered small business. So we definitely represent the gamut of the industries that will be affected by this standard.

SC & RA, along with many other people, had a representative on the C-DAC Committee and we believe the Committee had a very good representation of all the industries that were going to be affected by this standard. You had general contractors, home builders, utilities, crane rental companies, insurance manufacturers and a few others.

As mentioned yesterday, both by this Committee and by public comment, C-DAC accomplished quite a bit during their existence. They reached consensus when many in the industry, myself included, did not think it was going to be possible. At the eleventh hour at the very last meeting, there were a couple of additional issues, training and certification, which there was a quite a bit of negotiating that happened that very last meeting, because the Committee was focused and determined to reach consensus.

In SC & RA's opinion, training and crane operator certification are two of the most important aspects of the standard. The consensus document covers a multitude of areas and the reason for it, as I explained before, was it went from six pages to, I believe, approximately 108 pages. And what was so the small contractor could pick up one document and make certain that they weren't missing something.

The current standard references other outside standards that people have to purchase and make certain that they have all the information that they need to run their businesses and remain in compliance. We received many calls during the week as to what standard covers different aspects. So in our opinion, the large volume of information that's covered is definitely necessary.

SC & RA respectfully disagrees with those who insist training costs will increase exponentially with the induction of the new standard. To us, training is a constant ongoing process. It's not something that all of a sudden because of this standard, the revision is going to be happening. It's something that anybody that's in business should be doing daily. It's constant. It's not just something that's to be done every five years, just so that they can maintain certification.

The current certifications that are available are for five years. When you take those costs, which, the costs for the tests themselves, the maximum is $275 for four specialties. When you take that, that's less than 15_ a day per operator, because you do have to remember it's for five years. It's not something and it's not a cost that's incurred every single year for every single operator.

While there is one source that we're all aware of, that currently offers this certification, the law of economics will prevail. There are other companies and associations out there that are looking to go through the process and have already begun the process, so that they can also offer this type of certification.

SC & RA believes that unregulated, in-house certification is insufficient. We agree that a regulation that includes crane operator certification will impose an additional expense for many companies, many of which are SC & RA members. But we do share the conviction that this is a cost that is well worth the cost. It can help protect workers, equipment, property and the reputation of the entire industry, and our belief is it's not a cost issue. It's about safety. And the safety is not only for the crane operator and the company and the industry, but as has been mentioned, the public and the people walking down the street that are near these pieces of equipment.

The certification establishes a minimum criteria of knowledge. It's not saying that anybody who has a certification is going to be super crane operator. We understand that. The certification that exists was written by those in the industry and again, it covered gamut's of people who helped develop those tests.

In recognition of the reduction in risk provided by operator certification, there are insurance companies currently that are offering a discount for those companies who have crane operator certification and they are offering up to a 10 percent discount in the following lines of coverage:

Contractors equipment, general liability and inland marine. And our belief is that these discounts help offset the cost of additional training, if any, that's necessary to achieve certification.

We encourage the Committee to vote positively to move the consensus forward, standard forward as is, and that concludes my comments. If anybody has any questions?

MR. BRODERICK: Thank you very much, Beth. That was very informative and I would encourage the Committee to ask questions. Comments? Mike?

MR. THIBODEAUX: Mike Thibodeaux. Beth, let me make sure I understand. You said the certification for the operators is for a five year period?

MS. O'QUINN: That is correct.

MR. THIBODEAUX: And the cost is $275 for four specialties?

MS. O'QUINN: That is correct.

MR. THIBODEAUX: That's for four different kinds of cranes?

MS. O'QUINN: I apologize. I don't have it right in front of me. It's four different types of specialties. I believe it's lattice, boom, different types of cranes. That is correct.

MR. THIBODEAUX: Okay. All right.

MR. BRODERICK: And different sizes, hydraulic cranes. It's broken down into different size rigs.

Well, thank you very much, Beth.

MS. O'QUINN: Thank you.

MR. BRODERICK: I think what we're going to do now, you have been such a hard working committee, we're going to go ahead and take, I'm going to say a 15 minute break, and then we have some hope of being back here and having our agenda kick right off with Noah at 10:00 a.m.

(Whereupon, the foregoing matter recessed briefly at 9:30 a.m. and resumed at 10:02 a.m.)

MR. BRODERICK: My watch says it's a little bit after 10:00 a.m. and accordingly, we are at the point of the agenda where the Directorate of Construction will be fielding questions and answering questions, as well as, perhaps, fielding questions, if there are others brought up.

I am right now, talking and keeping the dialog going while Noah winds his way up to the guest chair.

MS. SHORTALL: Mr. Chair? This is just a point of housekeeping. I would like to enter into the record as Exhibit-14, the ACCSH work group membership list, which is a 2006 work group list, rather than the 2005 one you had been referring to earlier.

(Whereupon, DOL's Exhibit-14 was marked for identification purposes and entered into the record.)

MR. BRODERICK: Excellent, and I see that on that list, we had disbanded the hex chrome work group, so that becomes a moot point. Thank you.

Moving right along. It gives me great pleasure to present to our ACCSH here, a man who, a couple of times, has probably done some of the most hazardous duty the Agency has to offer, and has done a wonderful job with it, Noah. Welcome.

MR. CONNELL: Thank you. I appreciate it. Thank you for giving me this opportunity.

Okay, I have a list of questions that you all put together for me to address today, and so, I will B- with some assistance, with our team here, will attempt to answer them.

If I get your question wrong and if you find that you have asked a more difficult question than the question I seem to be addressing, please don't correct me. I'm doing that on purpose.

(Laughter)

MR. CONNELL: Okay. We'll start with clarification of accreditation of the qualification certification program and how is will work. Who will monitor the accreditation process and how will that accreditation process be implemented?

Who will monitor the accreditation process? The Committee set up a structure in the C-DAC document and I'll start from the perspective of an attesting organization that is B- that an employer is using under one of the certification options to get their operator certified.

So, they want to turn to, under that option, some testing organization. That testing organization, in order to be used under option one in our certification process, would have to be accredited and under the document, that accreditation would have to come from what the document calls is a nationally recognized accrediting agency. And that's a term that's defined in the document.

The question of B- as I understand this question, it's who monitors this accrediting agency? So, we've got B- the accrediting would be, in effect, monitoring the tester, the certifier, and now this question is saying, "Who is looking after the accreditor?"

Apart from a potential spiritual answer to that, I think what the idea was by saying, "Well, it has to be nationally recognized," the idea is that this accrediting entity would have had to have attained and maintain a national recognition that they are a credible accreditor, and I think the idea is that you're not B- there isn't another entity above that, that you could keep going up and up and up.

But the idea, I think, is that if you have a legitimate accreditor, they will have a national reputation. And if they fail to live up to the international standards or national standards or industry standards, perhaps, of B- for an accreditor, then they would wind up losing this national recognition. It's not an official kind of status. But it's a reputation status.

Does that address that question? And feel free to B- yes?

MR. STRUDWICK: How many accrediting agencies are there? I have had conversations with several different people and there's some question as to how many of those exist.

MR. CONNELL: Right now we're aware of two. The B- and I always get B- one is, their acronym is NCCA, not to be confused with the NCCCO, which is a certifier. The NCCA is an accreditor of certifiers. And they've been around a long time.

Also, ANSI has, in the last couple of years, set up an accrediting entity within ANSI. So, those are the two that we know of right now.

MR. STRUDWICK: And those two could provide a road map or document of the process to become accredited?

MR. CONNELL: That's correct.

MR. STRUDWICK: Okay.

MR. CONNELL: That's correct.

MR. STRUDWICK: That was the question. I did receive information on those two, and then my question was, are there more or could there be more or are those two going to be able to handle the load, so to speak, when it comes?

MR. CONNELL: Well, I think that question is B- dove-tails into a broader question that is often asked about B- the same question is asked about certifiers.

Right now, I think the way to answer that question is right now, there is no OSHA requirement for certification of operators. There is also no current OSHA requirement, therefore, for an accreditation of certifiers.

So, in the absence of an OSHA requirement for such things, right now you already have two accreditors, and I think that the expectation of the Committee is that if the C-DAC document were to go into effect, would be issued as a proposed rule and become a final rule, there would likely be a bigger market for such things. And in this great country of ours, markets tend to get responded to by industry.

And so, I think the expectation is that you'd see some ramping up of people involved and entities involved in that, so that you'd have a leveling out of supply and demand.

But it's interesting to me that, as I said, in the absence of any such OSHA requirement, right now you've got two accreditors.

MR. STRUDWICK: Thank you, Noah.

MR. CONNELL: Let's see, how does a third party training provider or in-house trainer get their programs accredited?

Let me first clarify that it's important to keep the distinction between training and certification in mind. Certification is testing.

Now, in order for someone to pass a test, they may well need additional training beyond what they already have. But remember that these are two separate concepts. Certification is testing.

There is, in the C-DAC document, this structure for accrediting testers, what we call certifiers, in the first option of the certification provision. We do not have in the C-DAC document, any requirement for certification of trainers. So, that's the distinction there.

Another question that has come up since the C-DAC document was issued is a question about whether a certifier can also be a trainer, and the short answer is yes, as long as the requirements of the accrediting agency for that certifier have been met. And I think there are some restrictions that B- at least one of those accreditors imposes on certifiers. It doesn't preclude them from also providing training, but there has to be some adequate fire walls, so that the training process and the certification process are kept separate. But they can be done, as we understand it, by the same entity, as long as those fire walls are in place.

Okay. Next is concerns regarding levels of training, certification of the operators. Does OSHA see an operator that is running a DROT, moving materials, as skilled as the operator running a hammer-head tower crane, as an operator running a multi-hundred ton lattice boom crane? Or does OSHA see training as size, type, configuration specific? And some of the other questions, I think, relate to this same idea.

The way option one in the standard was written for certification, it specifically says that the certifier B- and I'll just read it to you. "The certifier must administer written and practical tests that provide different levels of certification based on equipment capacity and type."

We've often heard people suggesting that the C-DAC document calls for a one-size-fits-all certification. Well, this provision that I just read to you was put in there exactly because of this concern, so that it would not be one-size-fits-all. So that the certification can be tailored to these different B- basically, different demands regarding skill level. And not just skill level in terms of simple versus complicated. But the skill B- the knowledge and skills that are required for that type of crane and that capacity of crane.

So, the idea here was that it would not be one-size-fits-all. That you would have a graduated system, so that someone operating one type of equipment would not have to know all the things that would be necessary in order to run another type of equipment. So, that was the idea there.

Again, please jump in and throw in follow-up questions as I go along here, if I'm not hitting all the points.

MR. KAVICKY: Tom Kavicky with the Carpenters. How many levels are there, or projected to be?

MR. CONNELL: Well, the language in the C-DAC document refers to capacity and type, and it doesn't give any more detail about that. And I think you'll see coming out of the SBREFA process, that some of the small business entities have raised some questions about whether those words go far enough in addressing the concept that I just described. And we'll certainly be taking a look at that as the rule making process goes forward.

But the underlying idea was, we did not want to make every operator have to have the skills and knowledge to operate every conceivable kind of equipment. That was not the intent at all.

MR. KAVICKY: Thank you.

MR. CONNELL: Let's see B-

MS. SHORTALL: Noah?

MR. CONNELL: Yes.

MS. SHORTALL: Just one quick question. I think you're the one person in the entire Agency who has the proposal memorized completely. So, as you're going through, if you refer people to a certain part, could you give them the citation, for what section it is?

MR. CONNELL: Sure. The section I was just referring to, on operator qualification and certification, that's Section 14.27, and I was reading from provision (b)(1)(ii)(B).

Will a certification qualification program, now in existence and operating well, be grandfathered into the proposals program? There is no grandfathering provision in the operator qualifications certification section. But to go a little bit beyond B- or to try to dig underneath a little bit of this question, I think that if a certification qualification program is currently in existence and operating well, really, the question is, in order to meet what is in the C-DAC document, it would simply have to be accredited. And if it's a good program and it has all the elements that are necessary for accreditation, then I think the expectation is, well, it could then get accredited without too much difficulty.

So, it wouldn't be grandfathered in the sense that, there would be no waiver of the accreditation process, as the document is currently written. But the expectation is that they'd be B- that program would be well positioned to get accredited and therefore, meet the requirements.

MR. STRUDWICK: Comment. This is Greg. I think Billy Smith made us aware that there were several organizations in the process at this time.

MR. CONNELL: Yes, and I think that was the expectation and hope of the Committee, that, as I said, as this concept goes forward and if it were to become required in a final rule, that there are players out there who would jump in because they'd want to be a supplier of this service.

Also, remember that the C-DAC document had a fairly long phasing period contemplated, a four year phasing period in the C-DAC document. And part of the reason for that was this also, to allow these suppliers to ramp up and jump in.

Okay. Signaling qualification. Will current international union skills and safety training for signal-persons be acceptable and grandfathered into the program? Who will approve/accredit employer, union, other signal training programs?

Unlike the operator provisions regarding qualification and certification, when it comes to signal-persons, there is no accreditation provision in the C-DAC document for signal-persons.

Under that provision of the document, and we're looking at Section 14.28, an employer would have a couple of options. One would be to use a third party qualified evaluator to evaluate the signal-person. And the other would be for the employer to have its own qualified evaluator assess the signal-person. And in neither case is there a B- would there be a requirement that that qualified evaluator be accredited. So, it's unlike the operator qualification certification provision in that respect.

MR. HAYSLIP: Mike Hayslip, NESTI. Would you speak, if you could, to the issue of hoisting personnel and the riggers also? Is that similar to what you had commented on with signal people? People that are doing the rigging and training certification.

MR. CONNELL: The C-DAC document does not address, in any kind of detail, qualifications for riggers. We have, I think, a reference to qualified riggers. A qualified rigger is a rigger who meets the criteria for a qualified person. We don't get into that B- beyond that level.

So, again, there's no kind of certification or accreditation going on there.

So, getting back to this question, will current international union skills and training programs be acceptable? Well, they would be acceptable if they met the criteria for what signal-persons have to know in the C-DAC document. They wouldn't have to B- those programs would not have to be accredited programs. But as long as they met the criteria that's laid out in the document, they could be used for purposes of this third party qualified evaluator option, and that's 14.28(a)(1), that's option one, "A signal-person has documentation from a third party qualified evaluator showing that the signal-person meets the qualification requirements." That's just option one.

The second option is that the employer's own qualified evaluator makes that assessment.

In Section 14.07(a) and 14.08(a), what is the definition of `could', as it refers to proximity of approaching minimum distances to power lines? Could the language be more specific?

What this is in reference to is in our power line section B- and let me just give a little bit of background about this power line section, generally, because we spent a great deal of time in the Committee on trying to figure out how can we improve power line B- safety with regard to power lines?

The over-arching theme of that effort and what you see in the C-DAC document is a recognition by the Committee that if we're going to cut down on electrocutions, we have to go beyond basically just saying, "Stay away from a power line." We have to come up with a system B- an approach, a set of measures that will be designed to help the operator stay away from power lines, what we call an accident or encroachment prevention measures, because nobody intends to smack into a power line.

So, the challenge was, well, what measures can we institute that are going to help everybody do what has been required for many years, which is to stay away from a power line?

We considered a number of different options with this, one of which was simply increasing the distance away from a power line that you'd have to stay. But the concern, again, was that, well, that's just not going to be enough, because it's not going to address the underlying causes of why people wind up hitting those power lines.

So, what you see in the C-DAC document is kind of a layered approach based on -- from the moment an employer gets to the construction site, a systematic approach to staying B- to instituting procedures to stay away from those lines. And it starts with, kind of a threshold question, a basic question, and that basic question is, well, when you get to that site, when your crane is on that site, we first ask B- or you first ask yourself, with this crane operating at its maximum working radius, could it get within 20 feet of a power line?

Now, the simplest way of asking that question would be to take the crane at its maximum working radius and just rotate it 360 degrees around and ask yourself that question. Rotating that crane 360 degrees around, could I get within 20 feet?

Well, some B- in the Committee, a number of members, especially those who work a lot in urban areas, were concerned that this was going to be overly burdensome because if you're in an urban area, the likelihood B- there's a much higher likelihood that somewhere within that 360 degrees, you would get within 20 feet, even if you have no work to do, say in this quadrant behind you.

So, we added in some flexibility, where we said, "Okay, if you have no intention of working back there," then you establish what the C-DAC documents calls a work zone. And you establish that work zone by setting up flags, or markers, and telling the operator, under no circumstances can you go past the boundaries of this work zone. And by setting up those markers, now you've got visual reminders to the operator that that's their work zone. They can't go past those boundaries.

Now, you ask this threshold question, well, working B- operating within this work zone, maximum working radius, could I get within 20 feet of a power line? So, you're narrowing the amount of space that you have to worry about, in terms of doing this assessment.

So, this question, could I get within the power line, wasn't intended to be a complicated questions. It's pretty straight forward, in terms of its intent. You've got your crane. What's its maximum working radius? Okay, now you've figured that out and you know what the maximum working radius is. Go that way. Are you going to get within 20 feet? That's what was intended by `could'.

I guess another way of saying it would be, if you moved your crane, if you actually did move your crane through that area, would it hit? I'm sorry, not hit. Would it get within 20 feet of a power line? I don't know that `would' is any clearer than `could'. But that's what `could' means.

MR. THIBODEAUX: Mike Thibodeaux. Under that 14.07, where is says could get in the direction, you made some comments about the maximum operating radius of the work zone. Where is that in 14.07? When we were talking about getting within 20 feet of the electrical lines, wouldn't that clarify that even more?

MR. CONNELL: Say that again.

MR. THIBODEAUX: You had said you checked the maximum operating radius of the crane in your work zone.

MR. CONNELL: No, the maximum working radius of the crane, within B- if B- now, you have an option. You can do this evaluation 360 degrees around the crane, if you want to. This option of setting up a work zone is an option and it's there for employers who don't want to do the assessment all around the crane. So, it's there as an option.

Let me say right off the bat, I readily acknowledge that this work zone concept makes this thing more complicated. It would have been a lot simpler if we had just said, "Do your assessment, 360 degrees around the crane and then go onto the next step." It would have been simpler. It would have been a little bit easier to learn.

But there were folks on the Committee who felt like, well, that's just too burdensome. We need more flexibility. So, we had to add, what I readily admit, is a complication.

And Tressi Cordaro, of our staff, has just reminded we that we deal with power lines, both in terms of the operation of a crane, and in terms of assembly and disassembly. And I've just been talking about how it works, in terms of operation. There are some slight differences when it comes to assembly and is-assembly, but I won't get into that unless you want me to.

MR. STRUDWICK: Noah, the next reference was a clarification, that was my clarification, when the question was asked as to what it was could, and that we refer back to the definition in 14.08.

So, it's not what is the definition of a work zone. It was saying that the work zone is defined in 14.08. It wasn't really a question. It was just the fact that there, the work zone was.

MR. CONNELL: I see what you're saying.

MR. STRUDWICK: In other words, the cart is a little before the horse when it comes to the definition of the work zone around the crane, when you refer to it in option two, the 20 foot clearance, ensure that no part of the crane, load line or load, including rigging and lifting accessories, gets within 20 feet of the power line by implementing the measures specified in (b), and then if no one knew, you would go over to 14.08. There is the definition, 360 degrees. And it's important to know that that's the work zone or the possibility of the entire work zone.

MR. CONNELL: Yes, if you have taken this option of setting up the work zone, then that becomes your reference point for all of the steps that follow. But that's just an option. If you don't want to do that, you don't have to. But then you do this evaluation and you set up your measures with respect to the entire radius around the crane.

MR. STRUDWICK: Just for your information at the table and in the audience, I have had that situation occur on a site where the crane was set up to work in a designated area. The contractor that I was working with has a habit of wanting to hang something from the load line overnight, the welding rig and that kind of thing, and a large front came through B- storm system came through. The break on the hydraulic crane didn't hold and it swung around into a power line and put about half of San Antonio.

So, they learned the hard way that that radius is important, even though they may not be working there at the time. Something happened after the fact, during the evening hours, that created the problem. Luckily, no one was around. Within a few minutes the entire electrical company employee list was out on site trying to figure out what happened, and it was the crane into a power line.

MR. BRODERICK: Tom Broderick, which brings us up to another point that I didn't see addressed when they talked about suspended loads. There is no prohibition for that practice, which is very common, of hanging welding machines, compressors, ladders, all manner of stuff off the hook of the crane at the end of a shift.

MR. RUSSELL: I think it is addressed, page 22, at the top. "Determine if any part of the crane, load line or load," and I think clearly when you consider what your radius is, you have to look at not only the crane, the load line and the load and what you do during the shift and at the end of the shift, if you hang something on a crane or have a load on a crane that extends that area, then considerations or adjustments have to be made.

MR. BRODERICK: With regard to the clearance distances, I would just saying as a general work practice, depending on who is doing the crane class, there is criticism of hanging heavy suspended loads for periods of time, when it isn't necessary as a part of the work process to do that. That actually is more of a security measure than anything.

MR. CONNELL: The use of the word `could' is a little different in assembly/is-assembly, because obviously there, you don't have a maximum working radius yet because you're assembling the crane.

And so, there we talk about making an assessment as to whether in the assembly process, any part of the equipment could get within 20 feet of the power line. So, that's the slight distinction between the assembly/disassembly process for power lines and operating the power lines.

MR. HAWKINS: Could you discuss this, just a little bit, in a scenario where you would have a building and maybe a power line on the other side of the building that was within 360 degree radius, were the building not there, but because the building is there and the radius of the crane and configuration in an urban setting wouldn't allow you to rotate that far because the hazard is actually on the other side of this building?

MR. CONNELL: Well, there, again, you'd be setting up B- in that scenario, you'd almost certainly be setting up a work zone. You'd be using that option, so that you wouldn't have to worry about these other power lines that you're not going to be B- you know in your mind, you're not going to be anywhere near, because you don't want your crane working anywhere near there.

But you'd still be B- in that situation, you'd still be setting up this work zone as your first step and you'd have some way of marking it so the operator would have a visual reminder of what the work zone is. It would be fairly easy, in your situation. The building itself would become part of the boundary.

MR. HAWKINS: So, nothing else would actually be required of the crane operator or the employer in a scenario like that where the building is here and it's impossible to swing the load passed the building.

MR. CONNELL: Right.

MR. HAWKINS: The hazard is on the other side. We're not going to be looking for B- and I guess I'm speaking from the regulatory, looking at this from a regulatory standpoint, we're not going to be asking you to put flags on the building or do anything else. The building is the barrier. You can't rotate passed the building. We're not asking for stops on the ring. We're not asking for flags. We would say that's good enough.

MR. CONNELL: There's really B- there's two ways of answering that. The proper way for me to answer that is, I can tell you what's in the document, and the document talks about marking the work zone, having some kind of marker of the work zone. And in 14.08, on page 21, 14.08(a)(1) identify the work zone.

There are your two options right there. Define a work zone by demarcating boundaries, such as with flags or a range limiter. It doesn't -- obviously, it doesn't address the scenario you're talking about where you have the physical impossibility of being able to go past the boundary and certainly you wouldn't need B- you already have a range limiting device in your form of the building. I don't know if we would interpret it that way.

But I think B- in questions like this where it's almost asking, "Well, how would OSHA interpret this if it became a standard?" That's a harder question to answer than, "What does this document say and call for?"

Clearly, the intent of what's been written is, when it's possible, physically possible, to go passed what you want the work zone boundaries to be, you have to have some kind of either a visible marker that's going to serve as a reminder to your operator, "I can't go past that boundary." Or you have to have, as is mentioned, a device that limits the range, and I would just throw out the idea that maybe a building in the way is such a device. But that's the general concept.

Section 14.02, which is the ground conditions section, I believe, Section 14.02 outlines requirements for the controlling entity in regard to ground conditions. Will OSHA determine who the controlling entity is in the same manner outlined in the OSHA multi-employer work site policy? I guess I'll start with that one.

The definition in the C-DAC document of a controlling entity is the same definition that is used in the steel erection standard. And I guess I would say in general terms, that's the same concept that I believe is reflected in the multi-employer policy, which is the same concept that really comes out of a whole line of case law regarding the multi-employer doctrine.

So, there was no intent to change the definition of controlling entity or to make it any different than what has B- what OSHA has been B- the approach OSHA has been taking for the past number of years, whenever that issue has come up. So, there was no change intended there.

What conditions are being considered in the term ground conditions? The Committee spent a fair amount of time wrestling with the broad question of should we have what OSHA would call a specification standard that is going to get into great detail about B- and I don't know all the technical terms, but the ground compression and ground pressures and the whole technical approach to a scientific assessment of ground conditions. That would be that at one extreme end of a specification-type requirement.

And then, at the other end of the spectrum is you have what OSHA calls a performance standard. You say, "Well, here's the result that's required." And what you see in the C-DAC document is something closer to the performance end of that spectrum. The document says that the ground conditions have to be firm, drained and graded, sufficient to support the equipment.

So, it's not a pure performance standard. It doesn't just say the ground conditions have to keep the crane from falling over. It does specifically mention firm, drained, graded. So, there are some elements that are introduced here to give employers some idea of how this would be assessed.

So, those are really the elements that the Committee built into this provision, and did not go the much more technical route of, the ground pressure has to be `x' or whatever. And by the way, a swamp doesn't have to be drained. The Committee did deal with that issue.

Does the rental of a crane with an operator change the analysis of controlling entity? I'm not sure I understand this question.

The rental of a crane with an operator raises, apart from the C-DAC document, just under current rules, often raises an issue as to who is the employer for purposes of the application of the construction crane standard? And that can get very complex, because the test for who the employer is, for OSHA purposes, is based on a complex 12, 14 point legal list of factors that come from the common law of who is an employer of an employee.

So, that question goes well beyond the C-DAC document or the current crane rule. It really is a question that applies, generally, to whom does an OSHA requirement apply, and is a particular employer engaged in construction?

It can get complex when you have a crane that's been rented by company A, and even if that crane B- if an operator comes with the crane, the question is going to basically focus on who controls the detailed performance of the operator? And that's really the B- that, in essence, is the focal point of how you go about trying to answer this question, who is the employer who is engaged in this construction, to whom a crane construction standard applies?

The issue of who is a controlling entity is really a separate question from that question. Who is a controlling entity? The definition of a controlling in short is, the entity that has control over the entire construction site. That's what a controlling entity is.

So, if you had a crane rental company, even if they were supplying the operator, is it B- and you guys can correct me if I'm wrong, but I would think that typically, that employer would not have control over the entire construction site, in most instances.

So, typically an employer like that would not qualify for being a controlling entity. Not that it couldn't occur in some cases, but I would think typically, they wouldn't be, right? They're not going to have control over the entire construction site.

MR. STRUDWICK: Let me clarify that. If I'm the small utility contractor and I don't own the crane, which is typical, I dig a large pit for a communication wall. This thing is heavy, 50,000 pounds or so, and it's installed in its entirety, one of the DSL vaults. That's what we typically would install.

Being a small contractor, someone that's doing less than five million dollars a year or $250 million, however that qualifies, and not being capable of providing my own crane operators and the ability to lift this thing, I call ABC Crane Service and tell them what I'm going to do. Have them come to the site, take a look at where we're going to set up, that kind of thing, and say, "I just need to have it in this whole," and I have no idea of the regulations or the implementation of your safety procedures, as that crane sits, because that's not part of my normal procedures.

So, am I still responsible, as the controlling entity, because I've hired that group to come and set the vault for me, if that crane should fail the attempt to set that vault?

MR. CONNELL: I gather you're asking this question with respect to ground conditions requirement, right?

MR. STRUDWICK: Correct.

MR. CONNELL: Okay, that's the right answer. It's going to be easier for me to answer that question with you saying `yes' to my question.

MR. STRUDWICK: Correct. I wanted him to visit the site. I'm making him aware that he needs to make that site visit.

MR. CONNELL: Okay, on ground conditions, and let's just quickly look at that. It's on 13. The controlling entities responsibilities are listed in 14.02c. The controlling entities shall one, ensure that ground preparations necessary to meet the requirements in paragraph B of this ground conditions provision, are provided to inform the user of the equipment of B- and the operator of the location of hazards beneath the set up area, such as voids, tanks, et cetera, that are identified in documents that are available to the controlling entity.

So, you're asking B- what you're asking me, which is the same question that came up in the C-DAC deliberations is, "Well, wait a second. I'm not an expert on how you set up a crane and what those ground conditions need to be."

So, if you drop down to 14.02(e) it says, "If the individual supervising the equipment assembly or the operator determines that ground conditions do not meet the requirements in paragraph B, that person's employer shall have a discussion with you, the controlling entity, regarding the ground preparations that are needed, so that with the use of suitable supporting materials and devices, if necessary, the requirements in the paragraph can be met.

So, the idea B- because we had this very discussion in the Committee, and the idea was, all right, once that crane person is there, they can say to you, "Wait a second. This is all messed up. I need this, this and this." And they need to have that discussion with you, so that you can get the information that you need from them.

You're still responsible for implementing what's necessary to meet the standard. But you're not entirely on your own there. That's why this provision was put in here, so that you could get that technical information from the people who would have it.

So, that B- C-DAC tried to set a balance here. There's still a recognition that you're the guy who has the authority to get done what is needed to get done. But you may need the information from somebody else, and this puts an obligation on that somebody else to give you the information.

MR. BRODERICK: Mike?

MR. HAYSLIP: Mike Hayslip, NESTI. A point of clarification. So, I'm a general contractor. I've hired several sub-contractors, who then hire a rigger or a crane to come on site. The operator of that crane says everything looks firm, looks okay, and lo and behold, he tips the crane over.

As the general contractor, even thought I have independent contractor status with my subs, have I just bought a crane as the general contractor and the citations to multi-employer that might follow?

MR. CONNELL: Well, the way this is set up, the controlling entity has the responsibility to make sure that what the standard says, in terms of ground conditions, is implemented. But there's a recognition built into this document the way it was written, that the controlling entity may not have the information that's needed on its own to figure out what needs to be figured out. So, they may need to get some help in terms of that information, from the crane folks.

Now, the ultimate test for, well, what do you have to do? You have to have ground conditions that meet the criteria that's listed in 14.02. That's what has to be done.

But the intent here was that the controlling entity would not be alone, in terms of the ability to get information that's necessary to figure this out.

It's a little hard to predict all the different scenarios that could come up. But I think when you look at this provision in its totality and B- this is, I think, a pretty unusual provision that we came up with, in terms of the requirement for this discussion to take place.

I think in terms of how would it be enforced? Whatever Administrative Law Judge is going to be looking at this, they're going to have to look at the whole section the way it was set up. I don't know how else to answer that.

MR. BRODERICK: Yes, Emmet?

MR. RUSSELL: One of the, I think, areas of discussion we had, for instance, the controlling entity does everything it can and passes on all of that information, then there's still a slight question. A for instance is, you can actually instruct the crane company that there are some variables that you're not sure of and you probably need to bring in some large mats.

The mats would distribute the weight of the crane into a larger area, where that in itself could possibly avoid any mishap, where you literally get the crane company to do some things to reduce the variables that you might not have knowledge of.

So, there was a lot of discussion, but the bottom line is, the controlling entity does what it can, passes on what information it can and makes whatever prep it can. But again, where the knowledge is not available, you can be aware that you can do matting and some other things that can make the area safe where you don't have that knowledge.

MR. HAYSLIP: So, Emmet, it seems when you say B- Mike Hayslip at NESTI. Emmet, when you say that they have to give all of that information, it seems B- my question is, how high is that duty requirement, at what level? And you seem to be telling me that it's a reasonableness standard. What you give them, you have to give them what's reasonable. I understand when the ground is bad that the sub, in my scenario, can say, "Hey, hold the horses. Hold off. I'm going to talk with you, Mr. General. I don't like this situation."

My concern is when the expert, so-called, the independent contractor, the sub, second tier sub, if you will, says everything is okay, and he's wrong. And you gave him what you thought was reasonable.

How high does it flow up the food chain? And it seems, I think, Noah's answer to the question, that it's going to get you. It's going to get the General because you are ultimately the controlling contractor.

MR. CONNELL: No, it's not strict liability. There is a recognition built into the provision itself that the controlling entity is not an expert in this area. And that's built right into this.

So, if the controlling entity reasonably relies on information that it gets from the crane folks, I have a hard time imagining how you could get a reasonable judicial decision that would say, "Well, the controlling entity is none-the-less responsible." I mean, that gets you B- that starts to look like strict liability, and strict liability is not the way this provision was written and it, in fact, is contrary to established OSHA requirements.

MR. HAYSLIP: Good. I wasn't going that far to impugn strict liability. But I am thinking about the way the different regions might enforce a given standard.

MR. CONNELL: That's another Directorate. You'll have to talk to somebody else.

MR. BRODERICK: So, it would be that element, as well as having the requirement for the General to make sure that the ground that the crane is going to be used on is level, graded and drained?

MR. CONNELL: Yes. If you B- I think reasonableness is the touch stone. If you have a crane set up area that's on a 20 percent grade and it's all muck, I think even a non-expert may recognize that that's not going to be sufficient.

MR. HAYSLIP: So, what if the second tier sub inherits the risk and blindly goes and assumes a bad situation? He's not out there. You can't just throw him under the bus and walk away.

MR. CONNELL: Well, remember that you have this provision in (e) that says if the individual supervising the equipment assembly, or the operator, determines that ground conditions do not meet the requirements in (b), that triggers the discussion.

So, this is telling them, don't just assume that what you've been given is what you're stuck with.

MR. HAYSLIP: Okay. I'm okay with that. My concern is, it's not the OSHA I'm concerned about. It's the third party law suit that is going to flow as a result of this.

MR. CONNELL: The Committee took this on because B- or my view of what happened was that the Committee took it on because it was recognized that this is a huge problem. There's a lot of crane tip overs, and a lot of the crane tip overs, and Emmet may well B- can speak to this better than me, relate to problems with ground conditions. And this is a critical area. You can't have safe crane operation without adequate ground conditions.

And so, we, as a Committee, tackled this and tried to come up with something that would be fair and workable.

MR. STRUDWICK: And to finish my scenario B-

MR. BRODERICK: Greg Strudwick.

MR. STRUDWICK: B- is that we B- excuse me, Greg Strudwick. To finish my scenario is that we did make the lift and we did use cribbing and blocking and plates underneath the outriggers of a hydraulic crane, but we made a test lift first. And that was the consensus of the group on site, is that we would make a test lift at a different angle, away from the pit, and see if we had adequate equipment to complete the lift and the center of gravity change, as it went down into whole, the whole thing.

So, it was a successful lift and it was because we all worked together, and it was a typical situation for a small contractor to be on -site and to watch all of this.

MR. HAYSLIP: Mike Hayslip, NESTI. Briefly, so you can move on, my attempts to clarify are in no means an effort to indicate that I may or may not have an exception to the standard, simply an attempt to clarify.

MR. CONNELL: Sure.

MR. BRODERICK: Noah, I want to just sort of entreat the group to take a look, does everyone have the list of questions? We are at the 11:00 a.m. hour and that was, officially on the agenda, when this discussion was to end. But I think we all came together for this meeting to make sure we can do the very best job we can by the Agency and by our industry, to give them a good crane standard. So, I do want to continue.

But there have been some very instructive public commenter's and other discussion. So, I would just ask you to read down through the balance of the questions on page two and if there are any of them that would be redundant to have Noah go through, if you could so indicate, so that we can B- and if there are none, I'm sure Noah will tackle all of these. But are there any that, the writers of the question have the answer now and would see as superfluous?

MR. THIBODEAUX: There is one, the grandfather clause for employer industry trained operators in the new standard. I think he's already addressed that.

MR. BRODERICK: Okay.

MR. HAYSLIP: The cost issue, I'm not sure that's a Noah question any ways, and we've had that addressed, I believe.

MR. BRODERICK: Is everyone comfortable with that?

ALL: Yes.

MR. BRODERICK: That would be for the training cost and the auditor issue as well?

MR. THIBODEAUX: Excuse me, Mike Thibodeaux. I don't know that the auditor's cost was in there. The training cost was addressed, $275 or something for four different B- there's going to be an additional cost, but I don't know that any one has come up with a number. I don't know if Noah even has an idea of what that is. But I think that's something.

MR. BRODERICK: So, we would like to have Noah address the auditor costs?

MR. THIBODEAUX: Please.

MR. BRODERICK: Okay, if he can. Okay, is there anything else? Good. Well, that takes a couple of them.

MR. CONNELL: Okay. I'll try to go quickly here.

MR. BRODERICK: Well, I'm sorry, and I didn't mean for you to construe this as me rushing you, because the next bits of business on the agenda has been dispatched by Mr. Burkhammer.

MR. BURKHAMMER: I'll be back after lunch.

MR. BRODERICK: So, we have until then.

MR. CONNELL: Okay. Will the proposal address issues and precautions related to the topic of critical lifts? What's the definition of critical lifts? Should there be a section devoted to critical lifts?

We had a lot of discussion in the Committee about critical lifts and there was a lot of debate about how you would define a critical lift, and the basic idea was, well, if you could define a critical lift, you would presumably want some special things done to deal with them.

But the bottom line is that we could not come to a consensus on what should constitute a critical lift for purposes of kicking in additional requirements, except that there was consensus that where you have more than one piece of equipment lifting a load, that needs some special planning.

And so, there is a provision in here on B- it's called multiple crane Derrick lifts. That's Section 14.32 that addresses that scenario, and there are some requirements for additional planning and implementation of the plan.

This is not to say that the Committee simply ignored the broader concept that in the industry, there are different schools of thought about situations beyond that, that some consider to be critical. But we couldn't reach a consensus on those others. So, that's how we wound up where we are on the critical lifts issue.

The term critical lift, you will not find in this document, I believe, for that reason.

MR. BRODERICK: Noah, did the Committee B- I can understand what a quagmire this could become. Was there any thought given to, say a non-mandatory appendix that would address critical lifts for those, sort of as an instructional?

MR. CONNELL: Well, I think the debate centered around this concept, that for some operators, something is a critical lift, largely because it's beyond what they typically do and it has some inherent risks and complexities. For others, they do it all the time and it's routine for them. And I think that was a big part of the debate. It's critical for some, and not critical for others.

So, I think it would be hard to come up with even a non-mandatory kind of approach because you'd still wind up with this basic question of, "What do we mean by a critical lift?"

Now, I think, as a practical matter, if you look at 14.32, somebody who wanted to apply the kind of approach that is delineated there, which is really a planning and implementation of a plan kind of approach, I think that could be kind of a model for those who wanted to do something special in certain situations, in terms of planning and preparation. But it's hard because you have these different views.

I think I already addressed the issue of certification. Why isn't the training certification delineated by size, type, configuration of the crane? Just two things to say there. One, I'd want to emphasis the distinction between training and certification. What's being referred to here is a certification, part of the testing provision. And we did attempt to have -- as I said before, to avoid a one-size-fits-all. MR. GILLEN: Noah, before you go to the next question, I had a couple of questions on the critical lift, before you moved onto NIOSH.

MR. CONNELL: Okay.

MR. GILLEN: I was bringing this issue as an issue that the researchers in Business Safety Research asked me to ask about.

I can see, now that I spent more time with the standard, that you've incorporated some of the issues, like hoisting personnel is another one that some people consider part of the critical lift issue. There's quite a few details there.

Some of the ones I didn't see, and I was wondering, because you have a better knowledge of the standard, for example, environmental conditions, a high wind condition. In looking through there, I saw that there's something for hoisting personnel, but I didn't see any general language about that.

Could you walk me through a situation where you have a crane, the ground conditions are not perfectly level, maybe just a small one percent grade, it's at 95 percent of the rated capacity, there's a 20 mile per hour wind. What does the standard B- the proposal, does it have any extra thought into that or guiding the lift or anything? How would something like that be addressed under the proposal?

MR. CONNELL: Wind was a very controversial topic in the negotiations, and I know there was B- I recall there was a lot of back and forth about it and there was some interest in trying to set a specific threshold for wind, and I don't even remember exactly.

I know we have a reference to wind, it think it's in hoisting personnel.

MR. GILLEN: It's a 20 miles per hour, there's a cut off there.

MR. CONNELL: Right. Well, there's a B- yes. More broadly though, I think there B- generally speaking, the Committee members B- I think what you were describing, with the possible exception of the grade issue, there are probably members on that Committee who would say, "Gee, you just described a typical work day."

That again, guides into this discussion of some people saying, "Look, we operate in stuff like that all the time. That's just what we do," and that's not B- it's not the environmental conditions in isolation that are causing the accidents, I think is what they would say to you.

So, other than to say, there is B- you have to operate the equipment within B- this standard taken as a whole, sets out some parameters that you can't go beyond. But in terms of just environmental conditions, they were not singled out, except when it comes to hoisting personnel. Is that it, Emmet?

MR. RUSSELL: Well, I think there's two issues that helps with Matt's question. On page 50 at the top, it talks about the operators shall test a break each time a load is more than 90 percent of capacity, 90 percent or more of capacity. And I think what that's saying is that clearly, where you have capacity you need B- in checking the brakes, you're actually checking the whole crane to make sure that the crane and the operator can actually handle the load. So, this is somewhat of a test procedure.

I think the other issue is on page 51, 14.18, where this was very crucial in terms of, if an operator thinks that there's any variables where he cannot safety handle whatever needs to be handled, he has the ability to just stop the operation and force people to take whatever safety concerns, so that whatever is being done can be done safely.

MR. GILLEN: Can I just ask, is there information available to operators, so that they would know, so they could have a conversation like this and so everybody knows if there's a wind speed of 20 miles per hour with a load like this, it means that it's going to affect the rated capacity by this much. This is part of the body of knowledge that we have, so you can have that conversation. Or is it really more of a judgment issue and there's not a lot of information available?

MR. RUSSELL: No, what we talked about was, just about every crane manufacturer, depending on the configuration of the crane, has some limits as to when you should operate or stop operation of a crane. And that would be in the individual crane's information and I think what we were depending on is the operator would know that information and the operator would know that limit, those limits per the crane and the configuration, and make the necessary judgments based on each crane's limits.

For instance, you could take one crane with 100 foot of boom and the crane is safe in this condition. You can take another crane, you put a luffer in, you put 200 or 300 foot of boom in, and all of the sudden for that same crane, you have two different conditions, where one condition, an operator can meet, another condition, the operator should not meet.

But again, that would be in the individual crane's information per the manufacturer.

MR. GILLEN: Okay. I mean, our interest in this is just from the fatality investigations. They tend to be ones where B- where just margin of error is part of the circumstances. And so it's B- I just want to make sure there's an objective basis in this standard for recognizing these events and doing something about it.

MR. RUSSELL: Well, I think at our deliberations, we knew that the variables were there, but I think we had a hard time trying to put something in a document that would be acceptable to all cranes, I think is where the problem came in.

MR. GILLEN: Thanks.

MR. BRODERICK: To add onto what Matt's question is, I think when and if the standard comes out that the requirement for training and then the resulting certification, through that process, one will then know they have the authority, plus the knowledge to base a decision and they would know that they know this. I think the standard, in and of itself, answers the question.

MR. CONNELL: Okay, next is really a question about data, what type size cranes are responsible for the fatalities and how they occurred and how did they occur, what kind of data did C-DAC use?

What kind of data did C-DAC use? We had B- first of all, we had some BLS data. The problem with BLS data, on the crane incidents, is that they combine construction and general industry. So, that's kind of an imperfect source.

We had some aggregated insurance company data. The problem with that data was that it was a list of incidents that resulted in claims. So, it was combining property only incidents with incidents involving injuries and fatalities, and we couldn't tell which was which.

We also have OSHA, some OSHA data and a study has been done B- was issued very recently. The Journal of Construction Engineering and Management, September 2006, Volume 132, Number Nine. This is a study of OSHA fatality case files. And so, they looked at the B- our investigative files in fatalities cases from, I think, 1991 through 2000-and something. Anyway, they looked at about, I think, 250 fatality investigations and looked in detail at causes and they even looked at crane types.

I can tell you that B- and so, that data, with all their imperfections, and the Committee members with their own experience, we came out with a picture that basically focused on struck-bys, electrocutions, crane overturning, were really the, I think B- and assembly/disassembly, were the key focal points. And I think if you look at these different B- the data, the data that I just described, in all of those, you will see very prominent, electrocutions, very prominent.

I think the number one incident in the aggregated insurance data we looked at was cranes toppling over. I think a common theme is that you have struck-bys. Now, the struck-bys can have many different B- you'll see in the study of the OSHA fatality files, you'll see struck-by associated with falling loads, for one reason or another, very prominent. Assembly/disassembly fatalities, very prominent.

So, I think even though these different data sources, you'll have a different number one or a different number three, cause of fatalities, there are certain themes that emerge from all of them. And those are the themes, I think, that the C-DAC Committee really focused on. And so, we have this whole new section on assembly/disassembly. We have this major emphasis, this major focus on electrocutions and preventing them.

So, we tried to B- with the data sources and the experience of the C-DAC members, we tried to be focused on what are the key hazards that this industry has to deal with, and how can we do a better job dealing with them?

Let's see, the auditor costs, I don't know the question about whether auditor cost was included in the preliminary economic analysis. We'll have to go back and see.

Who is qualified to be an auditor? Well, the way the certification provision is written, the auditor would have to be certified by an entity that is accredited for certifying operators.

So, the auditor would have a B- let's see, if we look at operator certification, this is option two, qualification by an auditor employer program and in paragraph C1(ii)A, the auditor is certified to evaluate such tests by an accredited crane/derrick operator testing organization. So, that's who would be the auditor.

What number of auditors are available? Well, this is kind of a new concept, and so, again, the Committee was assuming that B- especially with the phasing period, there would be a ramping up to meet demand.

What's the number of incidents/fatalities involving licensed operators versus non-licensed? I don't think we have B- the only data that we had that relates to that in some way, and it's to some extent indirect, there was a study done in Ontario, which had a licensing requirement and instituted a mandatory training requirement to get B- or they had both of those, and this study purports to show a dramatic decrease in fatalities.

So, that study is one indicator of the potential effectiveness of improving the crane operator training and B- you know, certification or licensing is a way of assuring that the training is had B- is taken. So, when you combine licensing and training together, so now you know that someone didn't just attend a class, they actually learned what they were suppose to learn, I think the Ontario study is some indication that that's very effective. I don't think we have any B- in terms of data, I don't think we have data, other than that on that.

MR. HAYSLIP: Can someone lose their certification?

MR. CONNELL: The operator certification provision in C-DAC does call for having procedures in effect to be re-tested, in the event that an operator applicant either fails a test or is de-certified. So, there is a reference to de-certification, although there's no details about what would trigger a de-certification in the document.

MR. BRODERICK: Also, I see the Graham Brent is here and today, he will be giving public comment and we will have a chance to ask him about CCO and how that certification process works, and I believe there is a provision in that, as well.

MR. CONNELL: I guess the last question is, why was residential construction noted as not renting/leasing cranes when that statement is not correct? That was an error in the economic analysis and they're going to fix that.

MR. BRODERICK: Okay. I was wondering, Noah, if the Committee could be provided with a copy of the fatality report that you referenced, a most recent one?

MR. CONNELL: The study?

MR. BRODERICK: Yes, and then also, we would be able to enter that into the ACCSH record.

MR. CONNELL: We can certainly enter it into the record. We can certainly make it available to the Committee. There is an issue about making copies of copyrighted material.

MS. SHORTALL: Well then, Noah, what we could do is, if you provide us with a copy, we'll enter it into the record. OSHA's procedures, in fact, the whole Federal Government -- pretty much the Federal Government's procedures on copyrighted is, the material will be available for public inspection, copied in our Technical Data Center, but it will not appear on the OSHA website.

MR. BRODERICK: Okay. Are there any other points that have been brought up? Mike?

MR. THIBODEAUX: I just thought of another question. I noticed in the document it excludes powered industrial trucks, forklifts, and then when you go into the definition, you're talking about multi-purpose machine, it says B- excuse me, "When a forklift is configured with tongs and used, it's not covered. Then when it's configured with a wench pack, gib with a hook at the end or gib fused in connection with wench, it is covered by this." Do you know why those distinctions were made?

MR. CONNELL: Well, the multi-purpose machine, which is, as I understand it, is a relatively new animal. It's a machine that's designed to be configured in a whole variety of different of ways. It could be configured as a forklift. It could be configured as crane, and it can be configured as other things, presumably.

And so, the Committee, in the scope section, said, well, with that kind of machine, when it's configured as a crane it's covered.

Now, a machine that is designed to be a forklift, that's what is B- that's excluded. Now, people use forklifts to hoist things by dangling chains off of the tongs, but that's still excluded, because that's B- you're using a forklift.

So, the Committee was trying to make this thing a little more up to date, in terms of the recognition that there are some of these machines that are designed to be configured in these different ways, and that's different than just taking a forklift and using it to hoist something. So, I think that was the thinking.

MR. THIBODEAUX: Thank you.

MR. BRODERICK: Mike?

MR. HAYSLIP: Mike Hayslip with NESTI. No comment is required. Just observation. This standard seems to cast a pretty wide net and it's one motivation is to protect the public trust, public policy, arguments and so on.

From that viewpoint, I'm personally a little disappointed in the drug testing, and even to a lesser degree, physicals are not integrated more closely or more directly with the standard.

MR. CONNELL: Well, I would like to address that, just by way of noting that those two subjects were debated pretty thoroughly in the Committee. And with respect to drug testing, there was a lot of interest in having a drug testing requirement and we spent a fair amount of research time looking into it.

What we presented to the Committee, what our team presented to the Committee in terms of information on drug testing was, look, if we were going to have a drug testing requirement, it's going to have meet certain constitutional requirements, because it would become a requirement by virtue of a Federal standard. So, you'd have to have constitutional protections.

The Committee as a whole was not comfortable with having to, as employers, having to change or B- many of them already have drug testing programs on their own. They'd have to modify those programs to provide some of these protections.

So, once we got into that detail, that's really, in my view, my recollection, that's really why we were not able to come up with a consensus for a drug testing provision, because it would have to have these protections required. Employers right now, when they're doing these programs on their own, they don't have to, in most cases, they don't have to have those kinds of protections.

So, it wasn't from a lack of interest in the subject area. It was, when you started to get into the nitty-gritty of what all the bells and whistles that would have to be attached to it, that's when the problem arose.

Physical qualifications also presented some really tough legal problems. Different kinds of B- first of all, there is no well established, universally recognized set of physical requirements that's generally accepted as being necessary to run every crane. Different cranes require different kinds of physical abilities.

Running an old friction crane versus running a tower crane that's operating on a joystick, you're looking at some very different physical demands.

So, in the absence of B- you also have some other issues like the ADA and some other tough legal issues that would have to be dealt with. The bottom line was that there wasn't going to be a straight path to identify what are the physical attributes that would be required? And it was going to take B- I think it would have taken an enormous amount of time and effort to try to come up with something that would be workable and the feeling was that it just wasn't going to be productive.

Also, we don't have data that links crane accidents with these kinds of physical problems. I'm not saying that it's not the case. I'm just saying that we don't have the data to support something like that.

And so, in the absence of having data like that, that's another major obstacle to putting something like that in the standard.

So, I just do want you to be aware that those were looked at very closely and those were the reasons why you don't see those provisions in there.

MR. BRODERICK: Emmet?

MR. RUSSELL: As I stated yesterday, the other thing the operating engineers really struggled with was drug testing had to extend beyond the crane operator. And just to give you a mini list, the operator, the signal-person, the rigger, the foreman, the assembly/disassembly crew, the mechanic, even the crew using the crane, would all have to be drug tested.

We felt as though the standard could not be expanded to cover everything a drug testing situation should cover, and most employers felt comfortable that most of the progressive employers had drug testing programs that covered the whole job site, which was better than trying to regulate drug testing beyond the crane operator.

MR. CONNELL: I would like to say one other point, just on the data question. Those of you who look at this recent study, you'll see that one of the leading causes of fatalities, according to the study, was what the study calls struck-by load, other than failure of a boom or cable.

In short, many of these are rigging failures. And there was some interest on the Committee early on to get into the issues involved with rigging. But we have to draw the line somewhere, in terms of what we were going to tackle, and the focus B- ultimately, that we decided was, we were going to tackle the crane side.

That's not to say that there aren't problems out there with rigging. But that's B- we had to do what we could do.

So, the other major items in the study were after this struck-by that I just mentioned, which is really associated mostly with rigging.

Electrocution, second; crushed during assembly/disassembly, third; failure of the boom or the cable, fourth; and crane tip over. The last three all had about the same number of fatalities. So, they were all more or less equal in ranking.

Anyway, I just wanted to point that out.

MR. GILLEN: Just a brief comment. I just very briefly went through the section on the costs and all, and I was wondering if this is an interesting standard to, perhaps, refer to the secondary benefits of the standard and regarding catastrophic damage to properties and things, it can be significant. While maybe you couldn't rely on it totally, it might be useful to point out in the preamble of the standard, secondary benefits from the standards, because they're likely to be conceivable.

MR. BRODERICK: Any other questions? Comments? Noah, thank you very much for the time here and for the amount of time that you have spent, not only negotiating this regulation, but also the steel erection standard as well.

MR. CONNELL: Thank you, Tom. I appreciate that and I want to also say, my thanks to our team. This is very much a team effort in OSHA. We've got a lot of people working on this and they're spending most of their time on it and we're going to keep doing that until we get this done.

MR. BRODERICK: Sarah?

MS. SHORTALL: As a housekeeping item, I'd like to reserve as Exhibit-15, the article from the Journal of Construction Engineering, regarding the study of OSHA case files, which Noah referenced in his question and answer period, and which I understand, you or your staff will provide to Stew Burkhammer. Thank you.

(Whereupon, DOL's Exhibit-15 was marked for identification and entered into the record.)

MR. CONNELL: Yes, thank you.

MR. BRODERICK: We have an action packed afternoon set up for ourselves. As soon as we get back from lunch, we are going to try to get caught up and address the respirator fit-testing issue. I think that will go very quickly.

And then we have a generous amount of time to again, deliberate as a Committee, on the issue of the C-DAC proposal.

Immediately following the respirator issue, we will have Mr. Brent, if he would stick around, and do his public comment from yesterday. We will then have our deliberations and I believe that is followed by another public comment period.

I see there are more people that have filed into room, so one more time, I'll let you know that there is a sign-up sheet outside, just to let OSHA know who came. There is another one for anyone who would like to make public comment.

Thus far, I have two people signed up for making public comment today. One on C-DAC, the other on hex chrome. If there are any others in the gallery who would like to make public comment, please, go ahead and make those intentions known by signing that sheet.

We'll meet back here promptly at 12:30 p.m. Thank you.

(Whereupon, the foregoing matter recessed at 11:42 a.m. and resumed at 12:41 p.m.)

MR. BRODERICK: Let's go ahead and resume, darn near on time. The next piece of business that I would like to take care of is the new fit-test approval.

Well, I'm not sure I understand that they were not coming to make further comments. Is there any further discussion, prior to us moving to making a decision on this? And if so, is that discussion something that would be enhanced by having someone from B- return from that department?

If not, I would entertain a motion. Greg?

MR. STRUDWICK: Mr. Chairman, I'd like to make a motion. After due deliberation and discussion, ACCSH approved the proposed recommended fit-test protocol as written.

MR. BRODERICK: Thank you, Greg. I have a motion. Do I hear a second?

MR. THIBODEAUX: Mr. Chair, I second that motion.

MR. BRODERICK: Motion made and seconded. Any further discussion? If not, by show of hands, those voting in favor? Those opposed? Any abstentions? Okay. I count one abstention.

MR. BUCHET: Do we need a count for the record, since they can't see the hands?

MR. BRODERICK: One abstention and nine yays. Thank you, gentlemen.

The next piece of business I would like to tackle is to invite Mr. Graham Brent to take advantage of the public comment period that he was not able to enjoy yesterday. Graham?

MR. BRENT: Thank you, Mr. Chairman. My name is Graham Brent. I'm Executive Director of the National Commission for the Certification of Crane Operators, and the first thing I'd like to do is apologize for not being here this morning. I had some personal business to take care of.

I'm also conscious that I'm following some very well informed and erudite speakers that you've heard as a Committee over the last day and a half. So, I certainly have no wish to be redundant in anything I have to say or to take up the Committee's time on issues that are no longer issues, if you will.

So, I'll just start by giving you a brief snapshot of who we are and maybe what we've been doing over the last 10 years, and then kind of throw the floor open for any questions you may still have. I did have some prepared comments, as of yesterday, but I know you've had a very capable briefing from the Acting Director or the Directorate. And so, like I said, I don't want to cover some old ground.

By way of introduction, the National Commission for the Certification of Crane Operators was established in 1995 and it was established as a non-profit organization to establish a national standard for the knowledge and skills that crane operators need to have. And then to develop a valid and reliable system for assessing knowledge B- those skills and knowledge.

It really was established as a grassroots effort. This was not something coming down necessarily from on high, if you will. This was generated from the ground up by some very concerned contractors in the industry who felt that that prevailing crane accident rate was unacceptable and that something needed to be done about it. In fact, our main focus, even pre the formation of CCO, was on training.

Now, as you've heard, the National Commission doesn't do any training, and the main reason for that is that we wanted to be able to provide an independent third party assessment through a written exam and through a practical exam of the knowledge and skill that's considered necessary for the safe operation of cranes.

I heard some discussion yesterday about accreditation and why that's important, and it's important for a number of reasons. But one of the things that accreditation does for a personnel certifying body like us, is that it ensures that we've gone through due process, in establishing what that knowledge and skill should be.

This was arrived at through a very comprehensive system called a job task analysis, part of which involves sending out surveys to operators, to superintendents, to those involved in the industry, and establishing exactly what it is the body of knowledge is that a crane operator needs.

So, we're not just testing something for the sake of testing it. We're testing something that an operator says that he uses on a regular basis, that is critical to the safe operation of the crane, and then developing a practical exam that captures, in a test environment, the actual skills used during the operation of cranes in the real world.

So, we started very small, as a small non-profit working on the basis that if you build it, they will come. We did have a lot of support in the early days, and still do, from major contractors, from the manufacturers of cranes, from industry groups, and we have partnership agreements with a dozen of those industry groups, membership groups. Some of them are represented here today.

As the program has grown, both in volume and in breadth, we've clearly amassed a considerable amount of data and experience in how to do this well and how to do it scientifically and most important, to do it fairly, so that no operator is disadvantaged by the process of testing, to the extent that we're able to do that.

During the process, we've established a voluntary program. We've been adopted by several states. In fact, 10 of the 15 states that either have a program in place or plan to have one within the next 18 months, use either CCO or the CCO model, which involves accreditation by a third party, which involves a process of test development and administration, which meets accreditation standards, so that not only do you know what you're testing, but the manner in which you're testing at is secure and reliable throughout the entire certification process.

We tested right around 45,000 crane operators in 50 states in the last 10 years, which equates to about 250,000 individual exams on the written and on the practical test.

The accreditation that we have is from the National Commission for Certifying Agencies and that's one of a number of options. The current C-DAC proposal provides for accreditation by a third party, personnel certifying body, and it's important to distinguish between accreditation that you may be familiar with in a training environment, and the accreditation that's required of us as a certifying body. It's still accreditation, but the substance of the accreditation is entirely different and the new program that ANSI has developed in the last few years, gives a lot of attention to the management system that we use, as well as to the psychometric validity of the test itself. And psychometrics is just a rather fancy and specialized way of describing the actual process and the mechanics of the test development in the test administration, to make sure that that process is sound and fair and legally defensible.

There was five points that I was going to focus on in my remarks, had I made them yesterday, which I believe have been answered. Those were the costs of the exam, the types of tests that we offer, going from the general to the specific and whether or not these tests are machine specific or more generic than that, the sort of accreditation that we have, whether or not grandfathering was considered, and one of the issues that I know that's come up quite a lot is to whether or not we're a sole source provider for these types of tests. The answer is that we're not. We're not the only organization that is nationally B- excuse me, that is accredited by a third party organization. The same body that accredited us, also accredited Operator Engineers Local in Southern California. That state has mandatory certification for crane operators, and they went through exactly the same process we did. They started from scratch. They developed tasks. They brought in experts. They brought in a psychometrician to ensure that the process of test development was valid and reliable. They did their job analysis to make sure that the knowledge that they were testing was appropriate to crane operation. And then they went to the National Commission for Certifying Agencies and made their application and they were accredited, just the same way we were.

There's no mystery to that process. We didn't create the process. We didn't create the standards on which we based the content of the program. We didn't create the process by which the program itself became accredited. They've been available for many years. All we really did was assemble a series of exams, the current B-30 standard, which was in itself in development, there was a very large additional component made to the 1996 edition of the B-30.5 standard, and as we went along in our creation, 1995 perhaps, of this program, we drew on that.

But I guess the point is, is that that process is available to anybody. It was mentioned yesterday, another organization that was working on this too. So, in so much as I represent a means B- a body who meets the requirements, or would seem to meet the requirements of any future requirement within the C-DAC, we don't really have any doubt that there will be others that may choose to do this, and perhaps use a slightly different model.

There are many ways of meeting the accreditation requirements of either NCCA or ANSI, and they are not prescriptive in the sense of what the content the test should be. They do have requirements as to how you do what you do, and that you prove that you're doing what you do on a regular basis, and then ANSI will send in auditors and they will be sending auditors to us to make sure that we not only have a good program on paper, but that we actually do do what we say we do.

I guess at this point what I'd like to do is pause, for fear of being redundant, and just ask the Committee if you have any specific questions you'd like me to address before we go further forward?

MR. BRODERICK: Graham, I will throw it out to the group in just a second, but I know that one of the things that you indicated had been touched on. I think it might be instructive for the group to hear about the categories B- the specific categories of exams that you have now, and maybe a brief comment on the process by which you and CCO add new categories to that menu.

MR. BRENT: Well, the basis for determining what kind of categories of cranes we would have in the program was the B-30.5 standard, which identifies several types of cranes and in the proposed C-DAC document B- in the C-DAC document under the proposed requirement, similar reference to types is made there too.

One of the things that became evident during an analysis of the responses to what crane operators themselves and their supervisors felt were important areas of knowledge and skills, was just how different that knowledge or skill was between different types of cranes.

If you think about testing on a crane, you could go all the way on a continuum between machine-specific, the actual machine an operator is about to operate in the next five minutes, and all the way to the other end of the continuum, which would be any crane you saw in any place, in any environment.

Clearly, neither one of those really works very well in a testing environment or in a comprehensive analysis that's meaningful to issue a credential.

So, what we really had to find was a happy medium. What is it that needs to be tested and to what extent does that knowledge and skill vary between pieces of equipment? And if you will, an analogy might be probably all of us in this room can drive, and we all have a particular car that we drive, but when we go to rent a crane B- excuse me, rent a car from a car rental office, we may not get the car that we drive regularly. It may be a car we've never driven before. We know how to drive, but we have to familiarize ourselves with the particular controls and the operating characteristics of that particular car we get given. That's the kind of principle that we based our approach to the categories that we arrived at.

So, in the analysis, in the job task analysis of the skills and knowledge, that we did for all types of mobile cranes, and mobile cranes was our focus when we began, we felt B- the Committees felt, that put this together, that there was a significant difference between the operating characteristics of stationary cab or stationary controls, fixed control cranes and swing controls. And that, therefore, led to the distinction in our program, between small telescopic and large telescopic.

We also felt there's a distinction between the way a wheeled, mounted or a mobile lattice boom crane was positioned and set up as a track mounting crane. And so, therefore, two divisions in that area were made.

The particular tasks that were required, we felt to evaluate the physical skill were very similar. And so, when you take a practical exam through the CCO program, as a practical test side applying to offer that, you will first of all, need to supply the detail B- specific operating details, characteristics of those cranes or cranes that you wish to have tested on, and we develop a CAD which shows the specific placement of all the various test items that are needed for the practical test site lay out and then you as the test site, would lay the test out specifically to meet the characteristics of that particular machine. But the actual skills that are tested are similar across all four categories.

So, when it comes to capacity, there's a general sense, I think, that why is it that an operator of our, maybe a 35-ton crane, certified through CCO as a large telescopic crane operator should then be allowed to go out and operate a 300-ton crane?

Well, that's the difference in, I guess, the certification, the line between the certification and what it can do and what the operator's response B- the employer's responsibility still is. What we as a certification body do is to, through the certification, through the issuance of the certification card, attest to the fact that through the written exam and through the practical exam, that operator has demonstrated sufficient skill and sufficient knowledge that justifies giving him a certificate of competency. It remains the employer's responsibility to check that individual out on the specific piece of equipment.

And I guess it's important to understand that certification is a component in the array of information that an employer needs to have in order to match a particular operator with a particular crane. That's where experience and safety record and those other pieces of information, that we don't attempt to capture through the certification process, come into play.

So, we're certainly not saying as a certification body that all you need to have is a CCO certification card. We are saying that having a CCO certification card demonstrates that the person holding it has demonstrated that he or she has a certain level of knowledge, a certain level of skill, that we feel comfortable issuing a certificate of competency, which will then go to assure an employer, to a certain degree, that that individual may or may not be competent for a particular machine. But there is piece there, which will always, and I believe is the way the OSHA rules are written, will always rest on the employer's responsibility to have that individual checked out on the particular crane.

MR. BRODERICK: Any questions? Mike?

MR. THIBODEAUX: Mike Thibodeaux. What is your average or normal cost of your accreditation for, let's say, one crane operator or an employer sending five? I mean, it is the exact same amount for one as it is for five?

MR. BRENT: It's the same for five as it is B- well, it's the same per candidate. When the founding fathers, if you will, when the contractors and rental firms and steel erection firms and so forth, put this program together, as employers, they were very concerned, as concerned as I'm sure this Committee is, about the cost of the candidate. They were concerned that maybe even more than they were concerned about the viability of this organization, there were concerned that this non-impact, the operator financially -- certainly would not preclude an operator from if he were paying for the fees himself, to pay the fees then become certified. That should not be an impediment to being certified.

So, that was very much on their minds when those fees were set. They've been increased slightly, once only, in the 10 year period. And I can tell you, were it not for the financial support of the industry, I wouldn't be sitting here right now. We wouldn't be having this conversation because it's only relatively recently in our experience, in our lifetime, that we've been financially viable. And up until that point, we've been subsidized through manufacturers, through contractors and through other industry organizations that have funded this program.

MR. THIBODEAUX: That still doesn't answer my question. What is that cost?

MR. BRENT: Okay, that cost specifically, is $165 for the core exam and that gives you a core exam of one mobile crane specialty. These fees, incidentally, are all plainly listed on the website and in all the candidate hand books. All of that information is freely available on the website.

If you were to take the entire mobile crane program, that's four categories, that's five written exams, three practical exams, it would cost you $275.

If you're looking at cost, there's many way to slice and dice it. It actually works out at a matter of cents per hour. Actually, if you just simply strip out all of the training, our position would be that B- as I think you've heard here before, that most, if not all of the training, is already an employer's responsibility and all really certification does is ensure that the training has been effective.

Then a basic five year mobile crane accredited certification, which will actually cost B- would cost $225 for one category, works out at about a little bit under four cents an hour, because what you have to remember is, this is for a five year certification. You don't pay this annually. You pay it B- actually, you only really ever pay it once, because the re-certification fees and the re-certification does involve a written exam, are less than the initial certification.

So, where you would be paying $165 for one written core exam and a specialty initially, you would pay $150 only when you come back through for re-certification.

MR. BRODERICK: Any other questions?

MR. HAYSLIP: Good afternoon. Mike Hayslip from NESTI. How close are you to B- in what you do, meeting the mandates set out in this OSHA document?

MR. BRENT: Well, as I understand the OSHA document, the category that we fit into would be the first option, that would be a national accredited certifying body.

MR. HAYSLIP: And you're there now, at that level?

MR. BRENT: Correct.

MR. HAYSLIP: There's not much more you need to do -- once and if this comes into play, you're already there ready, willing and able to serve the market?

MR. BRENT: That's correct.

MR. HAYSLIP: What would cause someone to lose their certification before the five year period elapses?

MR. BRENT: There's several areas that would come into play. One, the most obvious, would be evidence of culpability in an accident. There are others. Misrepresentation of certification credentials, lapsing and not re-certifying and so forth. But the most egregious would be being the cause of an accident.

MR. HAYSLIP: So, there is, obviously as you said, there is some process that someone could ultimately be de-certified?

MR. BRENT: Well, there is, and actually, that's another benefit of having the accreditation requirement in there because both major national accrediting organizations and NCCA require certifying bodies to have a provision for revocation or suspension of certification.

MR. HAYSLIP: Is there any requirement or need for continuing education during that five period span? Are there yearly, monthly, bi-yearly, bi-annual requirements to keep up with your education, your knowledge, experience?

MR. BRENT: Well, we certainly encourage that, but we don't require it. We don't require, actually, any original training. In other words, when a candidate comes to us he or she will fill out the candidate form, include B- because we do have a physical qualification, will include a medical form, evidence of having B- an attestation of having taken a drug test, and that's it.

Now, we do know from experience, and we learned this very early on in the program, that candidates without training don't do very well on the test. And in the very early days of the program we had some test sites which had 100 percent failure rates because their candidates, as it turned out through our subsequent analysis, hadn't been trained.

The assumption was that experience and a good safety record would carry the candidates through, and while both of those two lasts things are extremely important, clearly, there weren't sufficient to meet the knowledge and skill level that was required.

MR. HAYSLIP: One final question, if you care to answer it. We talked a fair amount with the degree of the cost to the individual, and maybe his company that sponsors him or her to do this. Can you project or give us some idea of what is the cost to become an entity like yourself, say Mike and Mike and Mike want to go off and form an entity? What's that cost?

MR. BRENT: Well, I can certainly say that it's not a cheap process, and there's a good reason for that, because there are a lot of steps involved.

There's actually two ways of analyzing that cost. I can give you a dollar value, which is in the several hundred thousand dollars for it to be established initially, and through that first seven year period, where we created the mobile program and were funded through industry contributions.

The real cost, however, really is in the volunteer contributions, which are kind of an unseen cost. None of our subject matter experts are compensated. In fact, nobody, apart from the staff of NCCCO is compensated. They all serve voluntarily. They give us their expertise willingly for the betterment of the industry. It's truly, as I mentioned, was a safety initiative at the very beginning and it has maintained itself as that throughout.

There is a cost of accreditation, but there's a good reason for that too. The job, for instance, that ANSI does is extraordinarily thorough. They'll be sending two auditors to each of our three offices for two days apiece when we go through that process, and their management system requirements are easily equal to ISO-9000. In fact, the ANSI requirements are based on an ISO standard.

So, any national certification body that becomes accredited through ANSI will have met, at one other same time, the requirements of International Standard ISO-17024, which for some organizations, is of particular importance.

MR. BRODERICK: Tom?

MR. KAVICKY: Tom Kavicky with the Carpenters. Is there any qualification or requirement, once the candidate takes the testing process, both the exam and the practical, does he have to maintain so many hours per year or for the lifetime of that five year period?

MR. BRENT: There is a requirement during that period of 1,000 hours in the five year period, if the candidate does not want to be tested again on the practical. In other words, to put in another way, any candidate demonstrating that they have 1,000 hours experience during the five year period does not have to re-test on the practical. If they can't, then evidently by definition, our definition, they haven't really been operating as a crane operator. So, we need to put them through the practical again.

But we felt it was redundant to re-test a crane operator that does this every day and we're not in the business of just testing for the sake of it. So, if there's no reason to do it, we wouldn't do it.

MR. BRODERICK: Graham, when you talked about the categories and the number of categories, I believe that that number was discussing those categories that are contemplated by C-DAC, and in addition, there is a B- the overhead crane and is there another category?

MR. BRENT: Currently, I mentioned that the breadth of the program had increased too and currently, we do have additional programs, most of them I already remarked on the costs and so forth, and were confined to discussion of the mobile program, although the costs of the other two, which are tower crane and overhead crane, the costs of development of those was substantially less for us than it was for the mobile program, partly because we knew what we were doing this time and we had an understanding of what was needed. I think with all due deference and respect to the founder fathers back a couple years ago, we really didn't know where we were headed before the concept of certification was thought out as a means of determining the training was taking place and was effective.

But we do now have a tower crane program that has been in effect since 2004 and has been well received. Actually, we certified around 1,500 tower crane operators since then and the overhead crane program was finished up at the very beginning of this year, and that's addressing a somewhat different audience, although there are some overhead cranes clearly used in construction environments, as defined by OSHA. But the majority are not. They need more maintenance shops. And so, we're looking more at the general industry application.

There are plans for further expansion next year. In fact, the Commission meeting next scheduled will be in San Antonio on November 6th through 9th. Like this meeting, all of our meetings are open, and anyone who wishes to attend is welcome to attend. On Thursday, November 9th, the Commission will be making a determination as to which direction further expansion we'll take during 2007.

MR. BRODERICK: There was a concern expressed by one of us, about sort of the small end of the spectrum, or the smallest end of the spectrum, a drott, is one of those B- is that type?

MR. BRENT: Yes, that would fit into our small crane category, which is also by definition, a fixed cab, which my understanding is, most drotts are fixed, would fall into.

But we're talking about a fixed cab crane and the difference is, actually, between a fixed cab crane and swing cab crane, are much greater than between a swing cab crane of 20 tons and a swing cab crane of 200 tons. They may appear to be more, because the machine is so much bigger. Maybe the risk appears greater. Maybe the risk is greater. But in actual tasks and actual skills tested, there is much greater difference between that small crane with the fixed controls and the swing cab. And in fact, our failure rate on the fixed cab is higher than it is on the swing.

Maybe there's a corollary there between the accident statistics that we see, which are much higher with the smaller cranes than they really with the larger ones.

MR. BRODERICK: Any other questions? Matt?

MR. GILLEN: I had a question. Do either the written questions or the practice questions include scenarios with like a reduced margin of safety, similar to the critical lift issue we were discussing earlier?

MR. BRENT: Well, there certainly will be questions relating to, for instance, load jack calculation questions, which will be important in a critical lift. We have over 700 items in the item bank, so I'm not familiar with them enough to tell you if there's any specific questions about critical lifts.

But certainly, a lot of the processes that a crane operator you would hope, would need to go through and be aware of, would be components of what would be required in a critical lift and would be tested on the exam.

In the mobile crane program there are four categories, as I mentioned, and in those specialty exams, the crane operator is required to calculate in six of the questions on the test, from a load chart and they're given real life questions and during the exam itself, are required to do that calculation, come up with whatever the net capacity or configuration is required in the test.

MR. BRODERICK: Mike?

MR. HAYSLIP: Briefly, you had mentioned 1,000 hours of operation. I didn't catch the time period.

MR. BRENT: Five years.

MR. HAYSLIP: All right, thank you.

MR. BRODERICK: Are there any other questions for Graham? Well, thank you very much for coming, Graham.

MR. BRENT: Thank you. You're very welcome.

MR. BRODERICK: Well, we now have a block of time, quite a generous block of time, with which we can deliberate on how we will be ultimately voting.

As I see it, we have two options, because I think I've talked to everyone here, or just about everyone. And I don't think among this group, there's a feeling that we want to walk away from this table today without making a recommendation to the Agency about a long over due, in my opinion, crane standard.

So, what it comes down to is do we want to recommend the standard as it has been presented to us, or do we want to recommend the standard with modifications/improvements that we may think would enhance the standard? Mike?

MR. HAYSLIP: Question on the impact of those two decisions.

MR. BRODERICK: Mike Hayslip.

MR. HAYSLIP: Mike Hayslip, NESTI. What's the impact of those two outcomes? If we offer a lot of comments, how far back does that send it? What's the impact of that?

MR. BRODERICK: Sarah, please, if you would.

MS. SHORTALL: There's one special requirement in our OSHA regulations that applies to ACCSH and only to ACCSH, and that is that according to the Construction Safety Act, every time the Agency proposes a rule that has a substantial impact on construction, we must come and consult with you and get your recommendation.

Now, if you recommend something other than what is in the proposal, the Agency will have the duty to explain why it did or did not adhere to it.

Now, they will have to also include some section in their preamble to the proposed rule that said that they met the statutory requirements. They came before you, what your basic comments were, and what the outcome of that consultation process was.

So, they have yet to put that particular piece in, and so, they have to do that. But there is not obligation on the Agency to automatically adhere to your recommendations, but they will have to give some explanation.

MR. BRODERICK: Gentlemen, the floor is yours.

MS. SHORTALL: Could I do a housekeeping item while they're thinking and deliberating?

MR. BRODERICK: Certainly.

MS. SHORTALL: Since we finished our part, the last of our public discussion, public comment on cranes and derrick, I would like to enter into the record B-

MR. BRODERICK: We still have one more session.

MS. SHORTALL: But not on cranes and derricks, right?

MR. BRODERICK: Yes, we do.

MS. SHORTALL: All I want to do is enter this into the record as Exhibit-16, which is the public comment from Insulatus, Hugh Pratt, writing it for them, and this copy that's going into the record is the non-redacted copy. It will be placed in the record, but my understanding, the graphic images will probably not be placed on the website.

(Whereupon, DOL's Exhibit-16 was marked for identification purposes and entered into the record.)

MR. BRODERICK: Thank you, Sarah. And just B- I saw some nervousness in the gallery there. There will be another public comment period prior to us taking a final vote.

At this point, we are just having an opportunity to candidly discuss the direction in which we want to go. Then we'll give the final commenter's an opportunity to have the floor and when that is complete, we will then take it to a vote.

It's unusual to have this group have a loss for words.

MR. RUSSELL: Emmet Russell, I have a question, and I'm not sure that this can be answered. But I think initially, between yesterday and today, we came up with a list of questions and I guess my question would be how many of the questions have been resolved to most of our satisfaction and how many questions or issues are still out there? Not that I'm asking anyone to necessarily say that we answered everything, but I think it might be good just to know what we did resolve and kind of what we have not resolved, if I'm making sense.

MR. BRODERICK: Yes. Tom?

MR. KAVICKY: Mr. Chairman, Tom Kavicky with the Carpenters. I think the accreditation, we beat up pretty good and I learned a lot from that, the discussions with the members in the audience.

The one issue that was made aware to us from Matt Gillen, about the critical lift issue, I don't quite understand why you can't label a critical lift a critical lift. If you're working in a petrochemical plant, lifting a huge piece of machinery or a vessel, over other operating process B- processes that are running, would that be a critical lift? Would that require B- I know there's something in the standard regarding planning, extra planning, but I think Matt makes a very good point about the critical lift issue and I don't understand why we can't get a little more clarity on that.

MR. BRODERICK: Mr. Burkhammer?

MR. BURKHAMMER: I think, Tom, one of the reasons why is because different types of work may constitute different definitions of a critical lift. Lifting a vessel in a refinery is a critical lift. Lifting a vessel in a power plant may not be, depending on where the vessel is. Owners, sometimes, depending on their processes in an operating plant, determine what's a critical lift and what isn't.

So, I think the hardest thing, and

Emmet can certainly clarify this, from the deliberations that I sit in on and listen to, that was the biggest problem that the Committee had, was defining it, because there's so many different types of construction, defining a single term critical lift, and there's isn't any.

Is it tonnage that determines a critical lift? Sometimes it is, sometimes it isn't. It is shape or size or mass? Sometimes it is, sometimes it isn't.

So, I think when the Committee, in great deliberations, as Noah indicated to you, finally came to the conclusion there was no way to determine this. And I think that's why it's such a difficult thing to wrestle with, because there's no simple definition like there could be in other things. Emmet?

MR. RUSSELL: Well, for instance, a critical lift can be the operator, an operator who has operated the same crane, doing some of the same functions for the last two years, what might be critical to you, might be a normal function for him. Yet still, a new operator, first time on this crane having to do this item, this day, it's critical for him.

So, I guess, disregard how you slice it and dice it. It still doesn't come up as clear and clean.

MR. BRODERICK: The Chair. I think one of the things that we're struggling with here, and I too was dismayed, when I initially read through this and did not see critical lift carved out as a piece of it, because when I was a real safety practitioner, out working in the field, I worked in power plants, I worked in paper mills, doing heavy lifts in paper mills, very much like doing a heavy lift in a process plant. And we would have a critical lift that would reflect the fact that we were lifting around vats of very hazardous chemicals and tanks that had gases in them that, should we rupture them, would be potentially catastrophic. Working in power plants, there were fewer of those instances.

But still, critical lift was something that as the safety guy for the project, I would make sure that we had one that was specific to that particular project.

So, as I was thinking this through, I guess what I was struggling with was this standard is not instructive, in that it wouldn't take a person brand new in construction safety and allow him or her to read through the standard and find something in there that would alert that person to, this is something I should be thinking about.

I guess the question, for me, then becomes, is that the role that a Federal safety standard should play? And I guess I still B- I've sort of telegraphed my thought on that when I talked to Noah before about a non-mandatory appendix that may use the term critical lift, could then potentially describe what that is with the deliberate vagueness that it seems like it would have to have to allow for these different options, and then go on to say, "But if you're going to do it, here are some of the elements that you might want to put into a critical lift plan."

So, then the standard would not only be something that regulators could use to evaluate crane operations, and it would also be a standard that would allow the industry to know what's legal and what's not legal. But then it would fulfill that additional role to provide a learning tool.

I think what I'm hearing, if I can filter through it, is that a Federal safety standard is not necessarily the place for that learning tool. And I'm having trouble in my own mind reconciling that. So, am I bringing something?

MR. GILLEN: Matt Gillen. I think you did a good job of describing it. I kind of feel the same way. It's apparent to me that the Committee really worked hard to take the concepts and incorporate them where appropriate in the standard.

By the same token, we all know sometimes the way training is done. People teach the standard, you know, and if the concept isn't in there, there's no way to even talk about it.

And so, I like your idea of there being a non-mandatory appendix. It could point out, here's the kind of provisions that are involved, and many of them are in the standard and it is non-mandatory. But then it gives people just the term to discuss the concept, if it's the operator, you know, feeling that they need to refuse something, to call in a qualified person, it just gives them the term and everybody is trained on that to discuss it, without changing the regulatory text at all.

So, those are my thoughts on it, as we discuss it. What do you think, Stew?

MR. BURKHAMMER: And that could be part of your motion, if you wish to add that, as a Committee, as a recommendation, as part of your work.

MR. BEAUREGARD: Tom, I kind of go along with what Stew was saying, and I'm not sure how you're going to formulate all of this. But what I would recommend is that if there's recommendations that the individual ACCSH members want to make, whether it be a change or modification or addition of a non-mandatory appendix, that we discuss that as a group, and as a group we decide whether or not we want to make that recommendation onto OSHA. In addition to that, put it in the form of a motion that B- make a motion that we're going to approve the crane standard, and in addition, we have the following recommendations and kind of put it all together. I don't know if that made sense or not, but instead of me making a certain B-

MR. BRODERICK: It certainly does, yes.

MR. STRUDWICK: Well, after review of the posted material we have here on the wall, that identified some of the concerns that all of us had, that Mr. Buchet was so nice to write down, my main concern, the road map towards accreditation, was satisfied by the testimony that we've heard in the last day and a half.

So, unless somebody else has a lot of heartburn, from the standpoint of that situation, I'm in favor of just moving forward and qualifying whatever suggestions that we might have that might make things a little more clear.

When I made a suggestion about critical lifts yesterday, it was just from a capacity standpoint. And I've heard an awful lot of clarification based on different tasks that are performed that satisfy my curiosity as to why there was no definition.

So, I'm with Kevin. I think that, should there something that we'd like to suggest that they take another look at, pass it right along. But I think that it's been just a fabulous day and a half of information processing and I feel very comfortable with the program as it stands.

MR. BRODERICK: Good. Are we then B-

Michael?

MR. HAYSLIP: I still think that drug testing, and to a lesser degree, physicals, are conspicuous by their absence. I just wanted to introduce the topic to see if there's any wings that might B- I want to introduce if anybody wants to comment and talk about it.

MR. BRODERICK: And this surely is the time to do it.

MR. THIBODEAUX: I talked with Michael about the drug testing, and I have a concern with that also, and I heard Noah's comments about B- I don't remember if it was due process or whether it was constitutional issues, and that B- and I think Greg brought up something about vision testing. If not physicals, but vision testing and drug testing seem, to me, to be an issue, as far as crane operation. I know I couldn't do it without these.

I'm just echoing what Michael has said concerning drug testing.

MR. MURPHY: Dan Murphy. Just a question, I guess, back to you, is where do we see drug and alcohol testing elsewhere in the standards? I mean, if we have steel erection, do we have drug testing in that?

I think that's kind of the impression I got from Noah, is that it's something the company does or whatever, because of the constitutional issues B- and this is on crane operators. I'm just asking for clarification.

MR. THIBODEAUX: I understand, Dan. But you said this is what the employers do normally. They're not required to.

MR. MURPHY: That's right.

MR. THIBODEAUX: And if they said, "Well, heck, the new standard doesn't require us to do that," but it only requires them to do all this training B- in order to save money, let's cut out this drug testing to do the training.

I'm not saying that's going to happen, Dan, but that's a possibility with some employers, we know that.

MR. MURPHY: Or we could take it a step further and we could say that there should be a section in the 19.26 standards for drug and alcohol testing, for all phases of construction, anybody in construction, not just crane operators.

MR. KAVICKY: Mr. Chairman, I have to agree with Dan on that point. The employer has to assume responsibility too, just like the worker does showing up clean on the job. If the employer feels he's not clean, send him home, get rid of him.

I don't feel that we should incorporate that into the proposed standard.

MR. RUSSELL: One of the last things I'd like to say, if you talk about drug standard, please make sure that you talk about it beyond the crane operator, because again, you cannot just drug test the crane operator.

MR. BRODERICK: Chair, here. And I think B- and I know that I'm repeating myself, in terms of trying to decipher what Noah's comments were, and so, I apologize for repeating myself.

However, my take on that was the implementation or the B- rolling a drug testing requirement into this standard may interfere, ultimately, by making it a Federal requirement with drug testing programs that may already be in place by employers. Because now, you have the Federal Government telling you what a drug testing protocol looks like. I think that that is where the constitutional concern lies.

I think that probably sub-text is NLRB decisions about drug testing, being collectively bargained, issue and that environment, but I think that B- my take from what Noah said, just plain listening to it, is more the getting in the business of interfering with an industry that has gone from not having any drug testing at all, to one where it's really become much more ubiquitous, and could the Federal Government ultimately in seven or eight years, come up with a standard that is going to set the industry back? I think that that could.

MS. SHORTALL: Could I answer a question to Dan? You asked if there any other OSHA standards that dealt with any of these issues. In our shipyard crane standard, we have a provision that talks about operator qualifications, that addresses B- or basically, says persons with uncorrected vision B- and I think it may a little bit more qualified than just uncorrected vision, diabetes, heart condition and other seizure things that might cause sudden incapacitation, would not be allowed to operate a crane.

We have, however, also in the preamble that particular standard, tried to harmonize that exception or that provision, with that ADA. So, we've looked at the frame work of the principles of the ADA. One is an appropriate to prevent someone who is a qualified applicant with a disability from working their job because they may pose a direct or imminent threat of safety and health harm to themselves or others. So, we've looked along that case line.

I think, based on that particular provision, we've tried to figure out how can we take the OSH Act and the ADA and harmonize them, so they both can effectuate their purposes without the OSH Act inadvertently trumping the ADA? And the ADA is the one that deals with all the case law on drug testing. It has case law on people with records of drug use or alcohol use, with vision, with heart ailments, with seizures.

So, we're trying to almost let the ADA, in some ways, pick up that and the employer would always have the right to assert that defense of, "Listen, I can't let this person operate the crane because they are going to be a direct and imminent threat to the safety and health of that person, or anyone else in the area." And so, there is another frame work that they may be able work under.

But I think that's one of the reasons we haven't so drastically gone into the physical qualifications, because the ADA is also dynamic statute that is changing as new case law is brought forward under it.

MR. BRODERICK: Thank you. Okay, if there is no more discussion at this point, I would like to go ahead and open up the floor to receive the final two public comment speakers. And I would like to start with the one that relates to C-DAC, and then we will have Steven Kinn come up and talk about hexavalent chromium.

So, is Gary Nally here? Gary would be the fellow that winced when I said B- or someone said there would be no more questions.

MS. SHORTALL: I do apologize, Gary.

MR. NALLY: Good afternoon. My name is Gary Nally. I'm with the Manitowoc Crane Group. Members of the Committee, thank you for allowing me this opportunity to speak on behalf of the Manitowoc Crane Group.

The Manitowoc Crane Group has been manufacturing cranes for over 80 years and has been manufacturing cranes in Pennsylvania since 1947 under the brand name of Grove.

We have manufacturing facilities in Manitowoc, Wisconsin; Shady Grove, Pennsylvania and several other countries, including Germany, France, Italy and China.

We manufacture many types of lifting equipment, including lattice boom crawler cranes, tower cranes, boom trucks and mobile hydraulic cranes, which include rough terrain cranes, truck mounted cranes and all terrain cranes. The majority of these products will be covered by this Act.

The Manitowoc Crane Group firmly believes that crane operators should be qualified to operate our products. Such qualifications are achieved through knowledge, training and experience in the safe operation of cranes.

Further, Manitowoc has supported efforts by the Federal Government to publish and update regulations governing cranes. Mike Brunet, Manager of Product Safety for the Manitowoc Crane Group, participated on the U.S. Department of Labor, Occupational Safety and Health Administration, C-DAC Consensus Rule Making Committee, representing the Association of Equipment Manufacturers.

This Consensus Committee agreed on representing B- excuse me, agreed on language addressing operator qualifications, which required that a crane operator be certified by an accredited testing organization or other agency, such as a State Governing Board.

Manitowoc also supports the publications of industry standards, governing safe operation of cranes, their participation on numerous domestic and international industry committees, including the ASMEB-30 Committee, the ISOTC-96 group on cranes, and the European standard bodies applicable to crane products. Each of these bodies publishes standards addressing qualification requirements for crane operators.

Manitowoc has supported industry efforts to provide training to crane operators. For example, Manitowoc has been a strong supporter of the National Commission for the Certification of Crane Operators, the NCCCO, since its inception in 1995. We have supported NCCCO's efforts, both monetarily and by providing personnel and resources to NCCCO to further their programs. As a matter of fact, John Kennedy, our Director of Sales, Major Crane Rental Accounts for Manitowoc Cranes, is the current President of the NCCCO Board of Directors.

Cranes have evolved significantly through the years, becoming considerably larger and with greater capacities. Cranes today have far more complexity, including integrated, electronic systems. These systems are designed to increase efficiency and make cranes easier to operate.

However, the need for training has also become more important, as the operators need to understand how these systems function, and to provide them with the knowledge to safely use the cranes. The Manitowoc Crane Group supports activities that will further efforts to ensure that cranes are being operated safely and efficiently.

We provide training programs through our crane care group, covering safe operation of cranes, and we also provide training programs to prepare candidates for the written and practical examinations offered by the NCCCO. Additionally, we provide our facilities as a site to conduct these examinations.

We are encouraged to see that the work of this Committee may stimulate training efforts as crane operators prepare for the certification exams. Everyone will benefit as more people gain a better understanding of what is involved to ensure safe crane operation.

In closing, the Manitowoc Crane Group supports the activities of this Committee and pledge our support in assisting Federal OSHA to move forward on this and any other activity that aids in the efforts to provide a safe workplace for people working on and around our cranes.

I appreciate the Committee providing me this opportunity today to present my views and those of the Manitowoc Crane Group. Thank you.

MR. BRODERICK: Thank you, Gary. Very well said. Questions?

MR. HAYSLIP: Mike with NESTI. If you care to comment, any recommendations, based upon what you might have read, with respect to this standard for this body, as we deliberate and ultimately come to a vote, that you'd like us to know?

MR. NALLY: An overview?

MR. HAYSLIP: On the bottom line, thumbs up, thumbs down, with respect to the new B- from your view of the B- your side of the fence.

MR. NALLY: Overall, it's been a commendable effort by a number parties and entities, to develop a consensus standard. Unfortunately, there are a number of issues, I think, which have been communicated to the membership where we have a concern and do not agree.

MR. HAYSLIP: Okay. Are there any significant, unintended consequences we should be aware of?

MR. NALLY: I would rather that B- I think it's already been communicated to the Committee B-

MR. HAYSLIP: Nothing new?

MR. NALLY: Nothing new.

MR. HAYSLIP: Fair enough.

MR. BRODERICK: Are you satisfied?

MR. HAYSLIP: Yes, sir.

MR. BRODERICK: Thank you. We are going switch gears for a moment here, and our friend hexavalent chromium is coming back to visit us, in a good way. Steven Kinn, welcome.

MR. KINN: Thank you, Mr. Chairman. I'm Steven Kinn with Construction Porter Association out of Cleveland, Ohio, also representing the Agency of Ohio and the Agency of America.

I'll be honest, I came with a list of things to bring the Committee and was hoping I'd hear more when it was presented yesterday on hex chrome and kind of was unsatisfied with a lot of what was say, and then today when you were talking about the work group committees, specifically hex chrome being done and maybe being looked B- being gotten rid of, it kind of raised some hairs.

Some of the issues that we're having with this new standard is, when does it actually apply? The majority of people that look at a standard, as all saying, "Yes, it's a specialty welding issue. It's only for stainless steel and high chrome contents and things like that," but the reality is, the standard applies to any hex chrome exposures and then if I can do air sampling or chemical analysis to show that the levels will be less than .5, then I can exclude those operations.

Traditionally, people have said, "Well, that's carbon steel welding. It won't apply to carbon steel welding." But even in the preambles of the standard, 64 percent of the samples that OSHA analyzed were above that .5 level, which means that 64 percent of the time, carbon steel welding is covered by this standard.

Fortunately, only of six percent of those were above the permissible exposure limit, which would trigger the need for engineering controls and respirators. The problem is, what do you have to do once the standard does apply?

With the B- I guess, the biggest impact being, where there's a hazard present or likely to be present to skin and eye contract, you have PPE. That definition of when a hazard is present is what is the big issue.

If it is as simple as, I go back and look at my last few years of 300 logs, the past history of the company and show that there have been no injuries or illnesses from chrome exposures, then I don't have to provide anything. That could work for a lot of contractors, but I've got one welding contractor that has been welding stainless steel for 20 years and has employed between 15 and 35 full-time stainless steel welders and in 20 years, they have not experienced one injury or illness related to hex chrome, and that's doing strictly stainless steel welding.

Then we have others that are reporting they have had chrome holes from people that have done both mix, mild steel and stainless steel. So, I don't know if that's going to be a true measure, because you're going to have people that are ultimately more sensitive to it than others.

I think that's where it kicks in to, if we do have to come up with a point where we say a hazard exists, I think the industry needs to have some input on how to evaluate that, other than just going back and looking at the 300 logs, the accident records for the companies, and try to come up with a definitive answer of, this is when it does exist, this is where it doesn't exist. I know we don't have a whole lot of data supporting that right now.

But if we leave it open, I'll be honest, local area offices in the Ohio area have adopted the, "Well, if the standard applies at .5, that's where the hazard exists," which, now I've got to go back and tell the carbon steel welding industry, once this standard applies to carbon steel, you now have to provide PPE specific to hex chrome exposure and then you need to lauder that material. You need to provide washing facilities, change rooms and then training, and not just training, but now we have to go back to the training to where the individual can demonstrate knowledge of the standard and the medical surveillance programs. And I will almost guarantee you, most carbon steel welding organizations are nowhere near ready to make that kind of a jump. They believe what they were told all along, this is a stainless steel issue and have shied away from it, and from my experience, they're nowhere ready to get involved in that.

What I would like to see is, if you do have that hex chrome work group, for them to address some of these issues and hopefully work with OSHA to develop that compliance guideline or document to address those issues and try to either come up with a set way of when a hazard exists or come up with a level that I can use to do a sample, wipe sample or air monitoring sample to say, "Okay, it does or it doesn't exist," because without that, you're going to have one contractor saying, "No, it doesn't exist," and they'll never do anything about it, and you'll have others that are going to be overactive with it and they're going to try to employ it in a completely different way. And then you'll have Enforcement trying to figure out which is the best way.

Locally in Ohio, I'll tell you, they're going to side with the, at .5 it's a hazard. So, you have to provide hex chrome specific PPE, which is going to be over-burdensome for most of our contractors.

Other issues that come with this standard that really open that area out, in construction, since there is no regulated area, we run into a problem with eating and drinking areas. It says I'm not allowed to bring, you know, food, drinks, cigarettes, into areas where there's exposure to hex chrome. That's easy if I've got a regulated area. I can control people's movements in those regulated areas.

Without a regulated area, we're going to have issues of, "Well, now I can tell my welder he can't bring his food and drink in, but now I have to tell him he can't bring his cigarettes in with him," whether it's carbon steel or stainless steel, and what about the laborer that walks by on the other side of the weld curtain, at what point is he far enough away that he's not exposed to a hazardous amount of hex chrome? And now I'm going to have to go back and control whether they can even bring those cigarettes anywhere near a welding operation. Is it 10 feet, 15 feet, 50 feet? Or do I have to control it and say you're not allowed to bring cigarettes on the job at all, which I'm not going to relish trying to make that type of argument to our welders.

When you get into the medical surveillance issues, there seems to be a little bit of a confusion here. I have to provide medical surveillance form those people above B- or that are exposed above the action level for more than 30 days, but I have to do it within the first 30 days.

So, I'm assuming that once I get to about the 20th day, if I think I'm going to employ them for 10 more days, then I do the medical surveillance then. I don't wait for `yes', I will be exposing them for more than 30 days above the action level. So, there's problems with the implementation of that.

The other big issue with the medical surveillance is how often it's made available. We can B- we understand the, provide it annually, provide it whenever there's signs or symptoms of exposure and that type of information. The problem we see is, the last paragraph, 19.26, 11.26(i)(6), provided at termination, unless the last one was within the past six months.

That's basically saying for most employers, specifically union employers, I'm going to have to do this every six months, because if I've gone out nine months and I'm at the point of laying off because the job is coming to an end, I can't lay off my welders until I perform a new medical surveillance. And if I've got five welders and I'm going to be looking at laying off three and I grab three and say, "Hey, I need you to go through medical surveillance," we know who is going to be laid off real quick and are they even going to stay for that medical surveillance? You're going to create problems with implementing that the way it's written.

So, it's either, do we do it annually or do we have to live with this last paragraph, and are we going to have to do it every six months for those people that are exposed above that action level? Which, above the action level, we are B- for most cases, for welding operation, you're talking about stainless steel. Very rarely will you have it with carbon steel, unless you are in a confined space operation.

Other issues come up when we're dealing with the painting, the factory brick operations. So, it's not strictly a welding issue, but it's across the board.

When we get into the carpentry work, whether it's demolition or we're constructing, if we're using pressure treated lumber, it is covered. The application of the pesticides isn't covered by OSHA. It's covered by EPA. When we work with those materials, they are covered.

So, we have additional exposures there, and trying to come up with levels of when is it a hazardous amount to be exposed to? It's still out there. I don't B- there's no set limit and we need to try to come up with some way to address that. Hopefully, we can do that here in the work group and come up with some advice or work with OSHA on that compliance document to, I guess, get a better handle on that for implementation.

MR. BRODERICK: Thank you. Now, just a matter of setting the record straight. The group that's sitting here did not get rid of the hex chrome work group?

MR. KINN: Yes.

MR. BRODERICK: Apparently, we did it at our last meeting, under Linwood, is that correct?

MS. SHORTALL: No, under Bob Krul.

MR. BRODERICK: Bob Krul. Michael?

MR. BUCHET: Michael Buchet. At the motion of then co-Chair, Mr. Rhoten, I believe the record will reflect.

MR. BRODERICK: Okay.

MR. BUCHET: With the opening that it would be re-instituted, should questions come up.

MR. BRODERICK: So, we are in a position right now, where I would not entertain a motion right now to, you, sir, Linwood Smith, who represents the AGC's ability to re-constitute the work group.

But I see that the AGC is well represented in this room and you are representing a significant population of contractors that are members of that organization. I think that if you, in fact, contact Linwood and if you were in agreement that this would be helpful to have a work group that looks at whether or not we can provide some assistance to OSHA, in terms of developing a compliance document at the next meeting, which I believe will be in the next four months or so, we would be able to re-constitute that work group and begin that process forthwith.

We also could have that on the agenda and have someone from the appropriate Directorate come and discuss whether or not our assistance would be utilized.

Some of the issues you brought up are issues that, quite frankly, I'm hoping that you got into to give public comment during the period while the record was still open for public comment. Because now, it's a little harder once the standard is where it is B-

MR. KINN: Yes.

MR. BRODERICK: B- to make any changes to it. In fact, right now it seems that the Courts will help us decide whether or not there will be any changes to that particular standard.

So, hopefully, that gives you some feeling that you've accomplished that which you set out to do in coming here. We appreciate hearing that there are some bumps in the road on a matter that, quite frankly, I think we had thought was behind us.

Does anyone have any comments?

MR. GILLEN: I have a comment and a question. Matt Gillen with NIOSH. I think NIOSH would be interested in working on some of these issues.

We put together our draft NIOSH goals, some of them related to inhalation exposures and I think the idea of recognizing that an exposure is occurring is tough for a lot of contractors, and how can you take the way they view an issue, like what's the chromium content of the welding rods and the base metal? The sort of decision process they would follow. I mean, what are the exposures you might get in those conditions and things of that nature. So, putting together tools that might help people in these situations would do a lot. We'd be interested in that.

I did want to ask you, you mentioned the carbon steel and hex chrome exposures. I looked pretty hard for studies, when we put together our NIOSH testimony for the hex chrome hearings, to see, you know, are other studies where it's just mild steel or carbon steel and there was an over-exposure to what would be the action level for hex chrome, and I couldn't find any. Do you have studies?

MR. KINN: As far as I know, with the research that I've looked at, I haven't found very many studies that looked at strictly carbon steel. Some that will bring it into the fold, but not really explore that exposure.

We are currently conducting some research, with the help of the Ohio BWC, or Bureau Worker's Compensation, to do sampling for strictly carbon steel welding with specific rods, and then we're also adding a little bit of stainless steel, the most common rods that are used and wires that are used for stainless steel in the Northern Ohio area, to at least get some background and create some objective data that we can use for that standard to justify what levels can be expected.

We did just our first 10 results back and of the 10, two of the carbon steel welders were above the .5 threshold. What was most alarming about those is, those were the two that were outside on a five mile an hour wind day. The ones that were inside the shop with no ventilation, because of the configuration, the door was open and a window was open, enough blew away that they were below the .5. Our two guys that were outside that we expected with the wind flow to not be an issue, were are two biggest issues.

MR. GILLEN: Can you clarify something else you just mentioned? It was mild steel and some stainless steel?

MR. KINN: Of those 10, those were just strictly mild steel.

MR. GILLEN: Interesting. Okay. I'll have to talk to you about that.

MR. BRODERICK: Anything else? Thank you very much.

MR. KINN: Thank you.

MS. SHORTALL: Mr. Chair, now that the public comment period is really over B-

MR. BRODERICK: No, no, Sarah, it's not quite really over.

MS. SHORTALL: There's someone else?

MR. BRODERICK: Well, I'm going to do something unorthodox, which may not ever get me invited back to sit in this chair again. But it's come to my attention that there is some additional information, which I think will be instructive. It goes to an issue which we've had quite a bit of discussion around, the C-DAC standard, with regard to drug testing, and I would like to invite Graham Brent to come back up because he has some information about his particular certification methodology, as it relates to that. Welcome back.

MR. BRENT: Thank you, Mr. Chairman, Members of the Committee. NCCCO does, in fact, have two additional requirements for certification, that I haven't talked about here today.

One is to meet CCO's physical requirements and the second is compliance with CCO's Substance Abuse Policy.

Back when the program was formulated in the mid and early 90's, I mentioned that the B-30.5, the ASME ANSI standard was one of the Keystone's guidance documents for the content of the program. B-30.5, then and now, has a series of physical requirements. They are, incidentally, excluded from OSHA's adoption of B-30.5 as a regulation incorporated by reference, but because they were extensive and because of some of the concerns that I've heard here today by members of our organization, that operators be physically quantified, they were included in our program.

The CCO physical requirements are modeled on the B-30.5 requirements, that you can find in B-30.5 2004, with some additional items garnered from the DOT physical requirements.

In many ways, the DOT and the FAA and any other Government agencies that we could find, were used as models for elements of the program on the principle that what applied B- what could apply or be seen to be applied B- applicable to crane operators should be used, rather than to reinvent the wheel.

So, satisfactory completion by a medical doctor of the CCO physical requirements form is a necessary requirement for the application and therefore, the certification.

We will accept, in lieu of our own form, the DOT medical examiner's certificate that's issued to CDL drivers, and we do have a short list of other employer programs that meet those requirements, some employers that have very extensive requirements and are in line with either B-30.5, our physical requirements or the DOT. We'll accept those as an administrative matter to facilitate the processing of the application.

The drug testing component is addressed in our program through a candidate attestation at the time of application, that the candidate does currently, at the time of application, and will continue to meet during the course of his or her certification, this Substance Abuse Policy of CCO, which in a sentence is, that no misuse of drugs, illegal or otherwise, is tolerated during the course of the certification period, and that, to come back to a previous question, abuse of that policy is cause for suspension or revocation of the certification.

In practice, of course, that's difficult to police, and we run into all kinds of legal issues when evidence may be supplied to us of a certificate's alleged lack of compliance with the Substance Abuse Policy. But it is there, because of the concern that crane operators meet some physical requirements and are drug-free.

I would add that typically in the certification community, among those other organizations that rub shoulders with would be the masseurs or thoracic surgeons or CPA's, who incidentally, all of which may share none of our content, but all of our accreditation requirements, they typically do not have physical requirements in their professions. They leave that up to the employer to determine compliance. But it is part of our program and we do enforce it.

MR. BRODERICK: Thank you, Graham. Are there any follow-up questions?

MR. BEAUREGARD: Kevin Beauregard, Department of Labor. I just have one follow-up question on your physical requirements. Is vision part of that physical requirement?

MR. BRENT: Yes, it is.

MR. BEAUREGARD: What are those requirements?

MR. BRENT: Well, reading directly from the B-30.5 standard, our vision requirements are the same, which are vision of at least 20/30 in one eye and 20/50 in the other, with or without corrective lenses, ability to distinguish colors, regardless of position of color, differentiation is required, and normal depth perception, field of vision, and no tendencies to dizziness.

MR. BEAUREGARD: Thank you.

MR. BRODERICK: Yes.

MR. STRUDWICK: Were there any other physical requirements?

MR. BRENT: Yes, actually, there are eight listed in B-30.5, and then we have an additional four, based on the DOT CDL medical requirements.

MR. STRUDWICK: Do you have those?

MR. BRENT: I don't have them with me. They're available on the website.

MR. STRUDWICK: Thank you.

MR. BRODERICK: Mike?

MR. HAYSLIP: Mike Hayslip, NESTI. In your opinion, should an active crane operator be permitted to abuse substances or be physically unable to perform their work duties?

MR. BRENT: I'm sorry, could you read that question again?

MR. HAYSLIP: In your opinion, should an active crane operator be permitted to abuse substances or be physically unable to perform their work duties?

MR. BRENT: It's the position of NCCCO that an operator should be drug-free and that he should have no physical impairment that would create a safety risk.

MR. HAYSLIP: Would those same questions pertain to the certification, or gaining certification, of said employee?

MR. BRENT: Are you asking me if that would indicate he would not be certified by CCO?

MR. HAYSLIP: Yes.

MR. BRENT: That's correct.

MR. HAYSLIP: Okay.

MR. BRODERICK: Any other questions? Thank you, Graham.

MR. BRENT: You're welcome.

MR. BRODERICK: Did you guys find that helpful?

MR. STRUDWICK: Yes, thanks.

MR. BRODERICK: Well, it comes down to Sarah with a document in her hot little hand here, that she would like to get entered.

MS. SHORTALL: Now that the comment period is over. I would like to enter into the record as Exhibit-17, the written comments of Gary Nally with the Manitowoc Crane Group.

(Whereupon, DOL's Exhibit-17 was marked for identification purposes and entered into the record.)

MR. BRODERICK: Thank you. It's up to us, guys. We have the B- okay, well, that's when we should hurry though this. We have B- probably the weightiest thing that I have addressed since I've been on this Committee, before us.

So, my question is, do we want to make a recommendation that the Agency take this standard and continue to run with it as is, or do we want to append our recommendation to include some language around B- I think what I'm sensing is, it's pretty much come down to, if we are going to equivocate it all, it would be on the issue of the critical lift.

MR. GILLEN: It sounds like, in a way, the answer is `yes' and `yes', in that the standard is okay, but there perhaps could be a suggestion about it.

MR. BRODERICK: A non-mandatory appendix?

MR. GILLEN: Yes.

MR. BRODERICK: I'm seeing heads nodding up and down.

MR. HAYSLIP: It would be nice to define the term first, before we put an appendix to it.

MR. GILLEN: I think part of the appendix would be to sort of say it's been difficult to define and give examples. Even the NIOSH thinks it's hard to define. I don't anybody could define it. That was one of the reasons why it's winding up in an appendix.

But here's examples, and here's examples of an approach that could be used in such a case.

MR. HAYSLIP: To the degree that it promotes awareness, sounds like a good idea.

MR. BRODERICK: And I think that that's probably what we're looking for. What we're struggling with is, by not including it somewhere in the standard, are we sending a message that we just are ignoring the whole issue of critical lifts?

So, I would then entertain a motion to B- we're going to have to modify this slightly, to hear a unanimous vote from the Committee on the resolution I am about to read.

We need to add the recommendation B-

(Chair confers with Solicitor)

MR. BRODERICK: Why don't we do this? We'll take a break then we'll come back and vote on it.

(Whereupon, the foregoing matter recessed briefly at 2:08 p.m. and resumed at 2:26 p.m.)

MR. BRODERICK: All right. I think I think I see the end of the tunnel. Sarah, you must have some more stuff for us before we get going.

MS. SHORTALL: I have some more stuff. Let's see, I would like to mark as Exhibit-18, the physician instructions for medical examination that is part of the CCO certification process, and enter it into the record.

(Whereupon, DOL's Exhibit-18 was marked for identification purposes and entered into the record.)

MR. BRODERICK: All right. We had a lot of discussion over the last 20 minutes, and here is how I would like to approach this.

We have the standard that we've reviewed, and I think that there are still some lingering concerns, but I think we all realize how long it's taken us to get to where we are and that the bulk of this standard is a very well written, comprehensive standard, more comprehensive than we've seen before.

So, what I would like to do is have a resolution to suggest to the Agency that ACCSH would like to have this standard go forward. And then we will have some discussion around whether or not the issue of a non-mandatory appendix, that would address critical lifts, would be something that we would suggest or not suggest.

I was a component of suggestion, quite frankly. Initially, and after some of this discussion, I am tending to lean the other way. But I think it deserves discussion before we vote on sending that along to, in effect, append the standard.

So, what I would do, I'm going to read this document and then I will ask for a motion and a vote.

"After discussion and due deliberation, ACCSH supports the OSHA draft proposed cranes and derrick standard as currently written, and recommends to OSHA that the Agency move forward with all deliberate speed to issue the proposed standard." Do I hear a motion?

MR. RUSSELL: So moved.

MR. MURPHY: Second.

MR. BRODERICK: Moved and seconded. Any final discussion? All in favor, please raise your hand. Let the record show that we do have a unanimous consent to move this along.

With regard to the second part of this, I do have a resolution that reads, "ACCSH recommends that OSHA develop and include in the proposed rule, a non-mandatory appendix on critical lifts." Michael, I understand your concern is that we should title this slightly differently, by adding, "The ACCSH recommends that OSHA draft proposed cranes and derrick standard.&ququot;

(Chairman confers with Solicitor)

MR. BRODERICK: Well, let's have some discussion around it, because it may become a moot point if we don't.

MR. MURPHY: Dan Murphy. Tom, would you just be kind enough to read that one more time, with whatever changes you made in it?

MR. BUCHET: The confusion is the proper title of the document you are recommending forward is a draft proposed standard, would jump way up the rule making process if we called it the rule.

MR. BRODERICK: Thank you. Sarah?

MS. SHORTALL: I want to reflect that that is Mike Buchet's opinion about the language and I'm not sure I necessarily agree with that.

MR. BUCHET: It's the title of the document that the Committee has been given.

MS. SHORTALL: But I've titled it.

MR. BRODERICK: Chair here. I will read, again, a possible second recommendation that we would make to the Agency.

"ACCSH recommends that OSHA develop and include in OSHA's draft proposed cranes and derrick standard, a non-mandatory appendix on critical lifts."

Now, let's discuss that one more time. I think there is some things that I heard over the break that we should put on the table.

MR. GILLEN: You know, the materials that we've been able to review, don't include the draft preamble to the standard.

MR. BURKHAMMER: It's not ready.

MR. GILLEN: It's not ready. That's okay. Some place like the draft preamble is where things could be described.

I mean, in some respects, the issue is that it's just totally silent, but perhaps, the draft preamble could discuss how this issue came up, how it's difficult to define it and how actually, the most common situations that people give as examples for critical lift issues, are addressed by specific portions of the standard as an alternative approach.

So, for example, two or more cranes simultaneously lifting the same load is given as an example of a critical lift in the NIOSH alert, and that's addressed by Section 14.32. When personnel are being hoisted, that's given as an example. That's addressed by Section 14.31. Non-standard especially modified crane configurations. That's addressed by Section 14.34. The crane is mounted on floating barges. That's addressed by Section 14.37. Loads are lifted close to power lines. That's addressed by Section 14.08.

The high winds is addressed, partially, by the personnel being hoisted section. I understand from Emmet that that's part of the operator's training.

So, perhaps with the explanation that the approach B- I'm sort of like, back calculating that this is what happened is that, instead of having a critical lift section, the language was put right into the standard as a superior approach. And the preamble is a place to perhaps, describe this as an example.

MR. BRODERICK: So, a possible B- following that line of thinking, a possible modification to that, which I read, would be that we suggest to OSHA that they address the issue of critical lift, in some fashion, either in the preamble or a non-mandatory appendix. What ramifications would that have?

MS. SHORTALL: The non-mandatory appendix would appear in not only the Federal Register Notice, but also in the CFR, even though it's non-mandatory.

Preamble language will always appear in the Federal Register, but will not be carried over into the Code of Federal Regulations. However, it would be available on OSHA's web page, under its Federal Register listings.

MR. BRODERICK: So, as I understand it, having it as a non-mandatory appendix, published in the CFR, would, in a citation situation, be available to be cited in a general duty clause or 5-A-1 violation. But that same situation would reside with the B- or would be an issue of the Compliance Officer chose to go 5-A-1 by pulling it out of the preamble.

MS. SHORTALL: For a 5-A-1 citation, the material would not need to appear in either the preamble or in a non-mandatory appendix.

The basic requirements for a general duty clause case that OSHA brings would be first, that they have to show that there was knowledge in the industry of the hazard and that the hazard was likely to cause serious physical harm or death, and second of all, that there are ways to implement that are feasible that would reduce that hazard.

MR. BRODERICK: Well, quite frankly, I think that probably the last two would be apparent in the situation where this would be potentially cited in a post-accident situation. Now, you have a serious injury or a death and you have something that is, whether it's in the preamble or whether it's in a non-mandatory appendix, it is accessible, so someone knew or should have known.

So, I guess it becomes somewhat of a moot point. Steve?

MR. HAWKINS: Mr. Chairman, I think we started this discussion when Matt expressed concern that many of the areas identified in the NIOSH study as critical, under the very, very broad term of critical lift, hadn't been identified.

As we have gone through our deliberations, discussions and had these standards expertly explained to us by Noah this afternoon, one starts to realize that many of the areas that the NIOSH study identified as a critical lift had, in deed, been addressed by the standard, including lifting personnel, operating close to power lines and using multiple cranes on a single lift, which we had a fatality in Tennessee recently from that very practice, and do agree that that's critical.

The standard has identified all of those B- I guess I'm at the point now of wondering what's really left to discuss in a global-type sense of the word of critical lifts, when the specifics have been identified? And as we've all discussed, there's lot of things that are critical, but they are so situationally dependent, that it would be very hard to have a standard that addressed them in a very meaningful way. And it seems like we're talking about asking for a non-mandatory appendix here, but we don't really know what that is and we don't really know what we're asking for.

I personally wouldn't be comfortable voting for something that I didn't know what we're trying to accomplish there. And so, before we call for a vote, I think we should have some discussion about what specific things do we think are missing.

MR. BRODERICK: Well, I am here to serve the Committee and I'm now sensing that this second piece of language is superfluous. And so, Greg?

MR. STRUDWICK: I concur with your thoughts. Now, if we can put that into language that means that Noah's explanation was adequate, then I think it's a moot point. And I would be inclined to agree with the constituents on my side of the room, that Noah's explanation was acceptable, and represented the Committee.

MR. BRODERICK: Well, then after I say what I'm going to say, by a conspicuous silence, this whole thing will go away.

Would anyone like to make a motion that we have a non-mandatory appendix or a notation B- recommend a notation to the Agency to incorporate something in the preamble about critical lifts?

(No verbal response)

MR. BRODERICK: Well, there we go then. Moving along to the next piece of business.

MR. GILLEN: It's a matter of due diligence, apparently.

MR. BRODERICK: I think, pretty much, I have to now look to a senior member of the Directorate of Construction.

MS. SHORTALL: Can I do one more housekeeping item?

MR. BRODERICK: We have one more.

MS. SHORTALL: I have, actually, two items. One is housekeeping. One is definitely not.

I would like to reserve as Exhibit-19, a hard copy of the Power Point presentation presented yesterday by Ruth McCully on the National Response Plan, which she is going to provide to me after the meeting.

And on, definitely not, a simple housekeeping matter, I would like to thank Mr. Broderick for Chairing this meeting today. It's amazing that an Acting Chair was able to deal with what I think was the most difficult thing in my 10 years as ACCSH Council, working with B- taking the Chairmanship like a fish takes to water, and you certainly have made my job very easy and thank you very much.

(Whereupon, DOL's Exhibit-19 was marked for identification purposes and entered into the record.)

MR. BRODERICK: Well, thank you. I'm very humbled by that.

The final thing we have to do is to discuss next meeting. Is the Directorate prepared to try to come up with some dates?

MR. BURKHAMMER: We're prepared to listen to anything you all have to offer.

MR. BRODERICK: Yes, Dan?

MR. MURPHY: One thing that was discussed at length was the work groups. And so, will that be taken into consideration when we plan the dates? Will there be time set aside for work groups? I guess I just want to remind you that we haven't done a lot on those groups for a while and if we're going to meet three times a year, we can knock a lot of this stuff out if we have the time to get together.

MR. BRODERICK: My recommendation on that would be, we all know who is on the work groups and who was the last Chair of Record, and think that either the Chair or the co-Chairs, there is someone that's sitting on this Committee.

So, I would task each of the Chairs or co-Chairs to get in touch with other ACCSH members and either communicate by telephone or by e-mail and kind of get a game plan together.

Then we can communicate that to Linwood and I'm sure that he would be happy if we were prepared to come in on our normal schedule of having our work group meetings a day or two days in advance, and then reporting out at the next ACCSH meeting, and then he can determine, based on whether or not we've met, what our work product is to that point in time, whether the Committee is still worthwhile, and whether the Administration of the Committee needs to be adjusted and those sorts of issues.

MR. BURKHAMMER: I might add, as far as the work groups go, certainly, the work groups are still in place, until so changed by the Chair at the next meeting.

However, work group requests have to go through the ACCSH Program Manager, which is Michael Buchet. He will then discuss them and we will go down to the second floor and get approval from the Assistant Secretary for the work groups to meet. We just can't arbitrarily say go ahead and meet. We have to have the Assist Secretary's approval for work groups to meet.

So, if you all want to meet prior to the next meeting, whenever you decide that is going to be, and we also get approval from the Assistant Secretary to have the next meeting when you want to have the next meeting, we can move forward on the work groups at that time.

MR. BRODERICK: Very good. So, four months out would be in the February time slot? That sounds like a great time to have a meeting.

MR. STRUDWICK: The NUCA convention is February 12th through the 16th. So, that's a block of time not to.

MR. BRODERICK: I know of another conference that's going on then too. So, later in February?

I know that we have some people in the gallery who represent organizations and we don't B- we do not collectively want to clash with any major construction trade association, thereby limiting people who might want to come and participate in ACCSH.

Do any of the people in the gallery have conflicts if we were to schedule the meeting mid to late February?

MR. MATUGA: We have a date soon to be known to the Assistant Secretary B- February.

MR. BURKHAMMER: Have to come to a microphone, Rob.

MR. MATUGA: Rob Matuga with the National Association of Home Builders. We do have an invitation pending to the Assistant Secretary to come and speak to our members at our international builders show in February, and I believe that is February 5th through the 8th or 9th.

MR. BRODERICK: We have other conferences earlier in February. But we're talking now, mid to late February.

MR. MATUGA: I don't see a conflict there.

MR. BRODERICK: Okay. Beth, we're okay? Justin, okay? The 26th, 27th and 28th, is that okay?

Are there any other matters to be B- I don't think that would preclude us from doing some work, on those that want to, on that work group, between now and then.

The question is, would we like to go with the travel day, Monday, full day work group meetings on Tuesday and Wednesday, and then the full ACCSH on Thursday and half of Friday, we would travel Friday afternoon? Does that work?

Are there any other matters, fellow members of ACCSH, that you would like to discuss?

MR. THIBODEAUX: We've already talked to a couple of ACCSH members about the residential fall protection work group, and Kevin and Mike Hayslip are going to be on the Committee and work with Tom and I.

MR. BRODERICK: Very good. Well, before I gavel us out of here and ask for a motion to adjourn, Stew has to say something.

MR. BURKHAMMER: On behalf of the Agency, I want to thank the Committee for all their due deliberations and all the work effort that you put into this meeting. It was truly a unique meeting. I want to thank our Acting Chair, Mr. Tom Broderick, for taking on this role at a difficult meeting. He's done an outstanding job and I'm very thankful you agreed to take on this assignment.

I want to thank all the people in the public that came up and made wonderful suggestions, recommendations and comments. Thank you. And thank all of you for attending the meeting.

MR. BRODERICK: And my parting shot is, I am very much humbled to be surrounded at this table and in this room by people who live and breathe a similar mission, and that's a shared mission with OSHA that every working man and woman get to go home at the end of the day safe and healthy.

So, with that, I would entertain a motion to adjourn.

MR. MURPHY: So moved.

ALL: Second.

MR. BRODERICK: Very good. See you next time.

(Whereupon, the foregoing matter concluded at 2:50 p.m.)