Knut Ringen
Chairman
Advisory Committee on Construction
Safety and Health
Occupational Safety and Health Administration
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Dear Chairman Ringen:
First, we offer our congratulations to Owen Smith of Anzalone & Associates, the newest member of the Advisory Committee on Construction Safety and Health (ACCSH). It has been a concern of the Office of Advocacy that no active member of the committee is an owner or manager of a small construction firm. We recognize the difficulty in attracting an individual who meets this criterion because of the limitations on his or her resources. We are confident that Mr. Smith will be an asset to the committee, and I look forward to more small business participation on the committee in the future.
Thank you for the opportunity to address ACCSH during the June meeting. It was a pleasure to brief the committee on the Regulatory Flexibility Act. As the committee continues to consider the issue of safety and health programs for the industry, the Office of Advocacy (1)of the Small Business Administration is offering preliminary comments.
ACCSH is expected to present a recommendation to the Occupational Safety and Health Administration for a standard that requires firms to establish a safety and health program. Advocacy has received copies of the draft documents considered by the ACCSH working group and participated in the working group meetings on this proposal. We appreciation this inclusion. In addition, we are pleased that the ACCSH working group has invited small business representatives to participate in the process of developing a safety and health program draft. We are concerned that when this work continues during your meeting next week in Spokane, Washington, many of the working group members will be unable to attend and contribute, the Office of Advocacy included.
In light of the meeting venue, I am providing comments to you to share with the committee on the proposed workgroup revised draft (June 13, 1996). This version is a significant improvement over earlier drafts. First, in section (b)(8), each contractor shall for their employees: "Provide the opportunity to involve their employees in: review of project fatality, injury and illness records." This is a very broad statement. Privacy issues could arise if records about individual employees are shared. Therefore, I recommend that the statement specifies "review of the employer's log and summary of occupational injury and illness." The citation for the log and summary (§1904.2) could be provided here or in a definition under section (a). The supplementary records (§1904.4) kept on individual employee incidents should not be accessible to other employees.
Second, section (b)(12) requires the maintenance of training records. I want to bring to your attention the increasing use of performance standards for training requirements. Moreover, OSHA is under tremendous pressure as a result of the Paperwork Reduction Act to decrease recordkeeping requirements. The agency will be hard pressed to justify new broad sweeping requirements for training paperwork.
Third, section (c) establishes a new mandate for one employer controlling another. Subcontract arrangements vary tremendously in the industry. As the committee has heard over and over, a large commercial site can have completely different industry practices than a residential project. The right regulation for one project could be totally unsuitable for another. I believe that section (c)(2) is a big step forward in this area and could achieve the objectives of this section. However, section (c)(1) is a major increase of OSHA regulation and could potentially conflict with normal contractual relations. The language put forth by Charlie Darnell of the National Construction Safety Executives is an improvement over the latest draft language. However, I would reiterate that OSHA is entering new territory and should tread cautiously.
Advocacy is asking that ACCSH closely evaluate the impact this regulation could have on small construction firms. This industry is dominated by the smallest firms. Nearly 80 percent of all construction firms are employers have 10 or fewer employees. Firms that have less than 20 employees are nearly 90 percent of the industry.(3)
Since OSHA relies heavily on the advice of the public advisory committees and seriously considers any proposal forwarded from the committees, Advocacy wants to assure the concerns of small business are considered by ACCSH. When the committee considers the draft document, your deliberations should include the question, "How would a company with five employees go about applying this standard?" With over 900 pages of regulations in Title 29 of the Code of Federal Regulations, Part 1926, small firms do not want just another layer of regulation. The safety and health program should be useful to employers and employees.
Thank you for considering our comments.
Sincerely,
Anita Drummond
Policy Advocate
cc: Judy Paul Russell
Swanson Greg Watchman
ENDNOTES
1 The Office of Advocacy was established by Congress under Public Law 94-305 to advocate the views of small business before Federal agencies and Congress. Advocacy also is required by §612 of the Regulatory Flexibility Act (Public Law 96-354) to monitor agencies' compliance with the RFA. The Act requires agencies to endeavor to fit regulatory and informational requirements to the scale of the businesses and other small entities subject to regulation. The agencies are required to solicit and consider flexible regulatory alternatives.
2 Public Law 104-13
3 1992 Bureau of the Census