 PRIVATE  

	Stakeholder Meeting:

	Establishing Indicators to Determine Whether

	State Plan Operations are at Least as

Effective as Federal OSHA

	10:05 a.m. to 12:50 p.m.

	Monday, June 25, 2012

	U.S. Department of Labor

	Francis Perkins Building

	200 Constitution Avenue, N.W., Room N3437

	Washington, D.C.  20210

	C O N T E N T S

                                             Page

Opening and Introductions

  Barbara Upston, Facilitator                   3

Background

  Jordan Barab, Deputy Assistant Secretary,

  OSHA                                         11

Draft Measures

  Doug Kalinowski, Director, Directorate of

  Cooperative and State Programs               18

  Jay Withrow, Director,

  Office of Legal Support,

  Virginia Department of Labor and Industry    26

Question 1                                     59

Question 2                                     90

Question 3                                    114

Question 4                                    130

Next Steps

  Doug Kalinowski, Director, Directorate

  of Cooperative and State Programs           147

Wrap-up and Adjourn

  Barbara Upston, Facilitator                 152

	P R O C E E D I N G S

	MR. LAHAIE:  Good morning, everybody.  Thank you for coming this
morning.  I am just here to first welcome you to our Stakeholder Meeting
and, second, let you know that bathrooms are on your left and on your
right when you exist this room.

	In the unlikely event that there is an emergency, if it is a shelter in
place, we have the shelter in place cabinets here, so we're okay here.

	If it is an evacuation where we would leave the building, in addition
to myself and the OSHA folks up here, there are a number of OSHA people
in the audience, and we will be able to point you to the nearest
stairwells and bring you out to a safe point.

	And with that, I will turn it back over to Barbara to kick us off. 
Thank you.

	Opening and Introductions

	MS. UPSTON:  Good morning.  My remarks are also addressed to you, but
since these are the participants, we are bringing them back.

	Good morning, everyone.  My name is Barbara Upston, and I am a
consultant to OSHA and frequently facilitate meetings.  My role is to
help manage the discussion and the process, not the content, I assure
you.

	So what I'd like to do, though, is begin quickly with introductions,
just go around, just your -- not "just," but your name and the
organization you are representing today.  If you could begin.

	MS. TRAHAN:  Chris Trahan, the Building and Construction Trades
Department.

	MS. HALL:  Mary Lee Hall, Legal Aid of North Carolina Farmworker Unit.

	MR. WILLIAMS:  Chris Williams, Associated Builders & Contractors.

	MR. MATUGA:  Robert Matuga, National Association of Home Builders.

	MS. SCHREIBERG:  Frances Schreiberg, Kazan McClain.

	MR. PAYNE:  Harry Payne, North Carolina Justice Center.

	MR. McGRAW:  Ron McGraw, International Association of Fire Fighters.

	MR. WITHROW:  Jay Withrow with the Virginia Department of Labor and
Industry, representing the Occupational Safety and Health State Plan
Association.

	MR. KALINOWSKI:  And I'm Doug Kalinowski, the director of the
Directorate of Cooperative and State Programs with OSHA.

	MR. BARAB:  Jordan Barab, Deputy Assistant Secretary, OSHA.

	MS. BROWN:  Diane Matthew Brown with the American Federation of State
County and Municipal Employees.

	MR. VISSCHER:  Gary Visscher with the Law Office of Adele Abrams.

	MR. JACKSON:  Gilbert Jackson, consultant with occupational safety and
health regulations.

	MS. SEMINARIO:  Peg Seminario, AFL-CIO, and my colleague, Eric Frumin,
is coming.  He was on a train from New York and was supposed to get in a
bit ago, so he may be running late.  Thank you.

	MR. RIVERA:  Jerry Rivera, National Electrical Contractors Association.

	MR. O'CONNOR:  Tom O'Connor, the National Council for Occupational
Safety and Health.

	MS. UPSTON:  Thank you all.

	One thing I can tell I think already, as the people sitting in the
back, that I may have to remind you to speak up as much as possible,
where the observers understand that the discussion is sort of up here
and effectively through each other.  I'm not going to keep saying,
"Speak up.  Speak up."

	Do we have any microphones other than the one that Jordan has?

	[No audible response.]

	MS. UPSTON:  No?  We'll see what we can do.

	Okay.  So we have an agenda this morning, and I am assuming that
everybody has a copy of it.  After a brief opening, which I will do, we
will have a little background on what we are up to today and then also a
presentation, brief presentation of the draft measures, which you can
see.

	And then there are four questions.  About 3 minutes is allocated to
each of the questions, and they will both be on the PowerPoint
presentation back there as well as they're on the agenda, so that you
can help -- I will help you, but you can keep sort of focused on what
the questions are and where they are going.

	There will be a brief break in the 11:40 range, 10 minutes.  Please
come back timely, as we will move on to Questions 3 and 4, and then
close with what the next steps are with the results of the Stakeholder
Meeting.  And we promised to be closed on or before one o'clock.  So
that's our agenda.

	The purpose for this is on the back there on the PowerPoint, it's to
provide a forum to gather information and ideas on the key outcome and
activity-based indicators and also ideas on how OSHA can use the
indicators to assess the effectiveness of State Plan States.  So the
agenda, as you can see, is designed to try to achieve the purpose and
everybody help remember what the purpose is.

	At the back table, there are a list of -- a series of materials.  I'm
assuming that everyone got them.  There's enough for everyone including
the observers.  There's a roster, which is an observer roster, the
Federal Register notices, both the original and the one extending the
comment period, copies of the draft measures, and one set of comments
that were received from the Tree Care Industry, which is not
participating or attending the meeting, but their comments are there.

	So I just briefly -- oh, and I also wanted to remind you that there are
-- let you know that there are people listening in on the phone.  They
are not participating, and they actually can't call in, but just to let
you know that there are people, additional people who are listening in
on the phone.

	And just some quick ground rules to help keep us on track, one is, of
course, to participate actively.  Those of you who are participants at
the table, you are here to -- OSHA is going to be listening.  They are
not in a -- really in a dialog with you, but they are -- so they are
hoping that you will participate actively.

	We need to have one conversation at a time.  It's very important for
yourselves as well but also because we have someone who is doing the
transcription and the recordings, and if you begin talking over each
other or having side conversations, that creates a problem.

	If you would, when you wish to speak, please just turn your name tag
sideways like that.  That way, you don't have to sit there with your
hand up, and I will quickly acknowledge you as much as possible in the
order in which you do that, and that helps keep us on target.

	Also, one conversation at a time is important.  I wear double hearing
aids.  It used to be I couldn't hear anything, but now I can hear
everything.  So -- and if I can, I'm sure you can as well.

	Please limit -- and I respectfully say speech fine.  I know that you
come with a perspective and an interest.  What's wanted here is for OSHA
to hear what those, your ideas are on the four questions, but it isn't
really a forum for long comments of that sort.  You can submit them in
writing if you have something of that sort.

	And if you disagree with other people's comments, please feel free to
do so but to challenge constructively, obviously, and respectfully.

	Observers, you are observers.  You may speak, of course, at the break
and other times, but please don't add comments during the discussion. 
And otherwise, all rules of civilized behavior apply, which I think most
people know what those are.

	So are there any questions or concerns?

	[No audible response.]

	MS. UPSTON:  Okay.  Otherwise, Jordan, if you would take it away.

	Background

	MR. BARAB:  Okay, thanks.

	As I said, I'm Jordan Barab.  I'm Deputy Assistant Secretary.  I want
to also welcome you all here.  Thank you for coming and showing your
interest in this subject.

	As Barbara said, we are looking forward to getting your input on
defining and measuring the effectiveness of OSHA through State Plans as
compared to Federal OSHA and really focusing in on what at least "as
effective" means and how we can define that, how we can actually apply
that to State Plans.

	The purpose of this meeting is to provide a forum to gather information
and ideas on key outcome and activity-based measures and how we should
use such measures to assess the effectiveness of State Plans.

	As you know, the Occupational Safety and Health Act encourages States
to set up State Plans.  One of the conditions of approval for OSHA is
that these State Plans are at least as effective as the Federal program.
 The State Plans also have cooperative programs, as does Federal OSHA.

	And one of the main features of State Plans, which I've always found,
is that they cover public sector employees, and of course, OSHA is
responsible for approval and monitoring of State Plans, Federal OSHA.

	Under the monitoring system that's been in place for more than a
decade, State Plans basically set their own strategic and annual
performance goals.  State Plans are not required to mirror OSHA's
strategic plan or other plans but must include the goal, obviously, of
reducing injuries, illnesses, and fatalities, and then State Plan
performance is primarily -- has been primarily assessed by examining a
State's progress in achieving those goals, a review of performance data
on certain mandated activities.

	Our OSHA 10 regions are responsible for monitoring and evaluating the
State Plans for a variety of means, which include regular evaluation
reports, our Federal Annual Monitoring and Evaluation report, also know
as our FAME reports.  There are quarterly meetings with the States,
between the States and the regions, and other activities.

	State Plans and regions, as I said, meet quarterly and track State
progress and different performance goals and other measures that exist
now.

	State Plans also prepare an annual self-evaluation, also known as the
SOAR report.  That stands for State OSHA Annual Report, which also
becomes part of the FAME report we do on an annual basis.

	I want to talk a little bit about the history of this exercise.  After
a series of a number of disturbing worker deaths in Las Vegas several
years ago, there were concerns raised by several different groups about
the effectiveness of the Nevada State Plan and overall State Plan
effectiveness, and this came from the media, from Congress, Office of
Inspector General, GAO.

	As a result of these concerns, OSHA initiated a special evaluation of a
Nevada Occupational Safety and Health Program in 2009, and it revealed
some fairly serious deficiencies in that plan.

	We moved on from that plan.  We decided based on the findings of that
plan, we really needed to take a much closer look at all of the State
Plans, and as a result, the FAME reports were enhanced in 2009 to
include baseline special evaluations of each State Plan.  And what we
did was we included -- and in addition to looking at all the measures
that were currently in use then, we also reviewed the effectiveness of
programmatic areas related to enforcement activities, which included
on-site audits and case file reviews.

	And each State formally responded to those, what we called the
"Enhanced FAMEs," as appropriate, and developed a corrective action plan
that was approved by OSHA.  And a more detailed review in the FAME
reports has continued in the fiscal year 2010 and 2011.  All of those,
as you are probably aware, have been posted on our website.

	The Office of Inspector General also took a look at the State Plan and
especially at OSHA's mandate to ensure that the State Plans are at least
as enforcement -- I'm sorry -- at least as effective as, and I think the
report's title kind of describes our conclusion.  The title was "OSHA
has not Determined if State Plan Programs are at Least as Effective in
Improving Workplace Safety and Health as OSHA's Federal Programs."

	And part of it was looking at our oversight.  Part of it was also
pointing out that OSHA hadn't exactly been very good at defining
effectiveness of its own program, and that was also set as a goal, which
we have been, actually since way before this report, the beginning of
this administration, really looking at different ways to measure Federal
OSHA's effectiveness.

	OSHA is working with OSHSPA to examine the monitoring system and
address the OIG recommendations to OSHA, which was, the main one to it,
define "effectiveness," design measures to quantify impact, establish a
baseline for State Plan evaluations, and revise monitoring to include an
assessment of effectiveness.

	Now, we've been working with the State Plans.  We, Federal OSHA, have
been working closely with the State Plans to develop a number of draft
measures which were posted on our website.

	Doug Kalinowski, who I think most of you know now -- and if you don't,
you can meet him now -- our new director of our Directorate of
Cooperative and State Programs, and Jay Withrow with the Virginia
Department of Labor and Industry, who is representing OSHSPA here, they
chair the committee.  We kind of call it the ALAE Committee:  At Least
As Effective As Committee, which has been meeting on a regular basis for
the last year and a half and has really done some, I think, sterling
work in not only developing measures, but I think more importantly even
developing a consensus on some of the draft, on the draft measures that
you'll see in -- that you've seen on the website, which I think it's
been herculean task.  And we really appreciate all the work that
everyone has put into that.

	There are several State Plans today participating as observers either
here in the audience or on the phone, and obviously, they are very
interested in this process and getting all of your input.

	The goal of this meeting, again, is to solicit ideas about how to
define and measure effectiveness and develop a revised monitoring system
to ensure consistency and effectiveness across State Plans.

	So I want to thank you for your participation.  I also want to
apologize, because I am going to have to leave at about 10:30, despite
the fact that I put this meeting in bold and red and flashing lights on
your calendar.  Somebody from the Deputy Secretary's office wasn't
listening, I guess.  So I will be in and out for about an hour, but this
is really important work, and we are following it very closely.

	Again, I want to thank you all for the time you are putting in today
and that you will be putting in, I'm sure, after this as well.

	So with that, Doug?

	Draft Measures

	MR. KALINOWSKI:  Thank you, Jordan.

	I am Doug Kalinowski, and Jay Withrow and I will go through the 15
draft measures that we have.

	I'm going to tell you a couple of things on the front end.  Number one,
like Jordan said, we met for about 18 months.  It was the -- board as
well as the Federal steering committee of about seven leaders within
Federal OSHA.

	Keep in mind a couple things.  Number one, these only focused on
enforcement measures.  I don't think the work of the ALAE work group is
done, because at this point, we have not had time to address compliance
assistance measures, but clearly those are key issues.

	As Jordan mentioned, every State Plan is expected to have a strategic
plan, which really says how they are going to focus the resources, what
issues they are going to focus on or industries, and measure the results
of that.  That is part of the monitoring process as well.

	Included in these is not injury rates, illness rates, or fatality
rates.  That's a given that those issues will also be tracked with every
State Plan.  So keep in mind that that is already expected on there.  So
those were listed in these issues.

	And keep in mind also we have ranges.  A lot of people have looked at
them already.  Some of the measures have ranges.  Our expectation is
that is not a pass/fail if you're outside the range.  I think the
expectation is if somebody is monitoring the State Plan and they are
outside the range, the message there is if you had drilled down deeper
to find out why it's outside the range.  Is it an acceptable reason it's
outside the range or unacceptable reason?  And obviously, if it's
unacceptable, then it's up to OSHA to work with the State Plans to move
that State forward and work together and do that.

	And I guess I will begin and just go through the measures.  Some are
pretty self-evident.  If they are not, let us know.

	These measures came really from an agglomeration of all the measures
used within OSHA to monitor State Plans over the 40 years.  That is what
we started with, looking at all of those issues, and we also started
looking at some new ones.  And that is why we have a lot of questions,
because we couldn't always get to -- we couldn't figure out exactly what
the best thing, you know, how to measure issues that relate back to
whistleblower discrimination.  So that's one of the reasons we've having
this meeting, and we appreciate your input.

	The first one is projection -- projected versus actual conducted.  Have
you ever heard the States project that they are going to do 5,000 or
2,000 or whatever number of inspections a year?  And the expectation is,
you know, in their grant application, will that be within a certain
range, and I think what we agreed to is plus or minus 5 percent of that
range.  I mean, if you're way less than that, why is that?  If your
staffing is down, et cetera, those are the kind of things that we need
to look at dig down deeper if it's outside of that range.

	Average lapse time.  Clearly one of the --

	Yes.

	MS. SEMINARIO:  Just a question on the process here.  Are you going to
run through these, and then we are going to come back and comment on
them, or how do you want to just --

	MR. KALINOWSKI:  Yes.

	MS. SEMINARIO:  So you'll run through --

	MR. KALINOWSKI:  Yes, we're going to run through them all.

	MS. SEMINARIO:  -- and then we'll come back.  Fine.

	MR. KALINOWSKI:  Then we'll come back.

	So the second one is average lapse time.  Clearly, one of the key
issues from the initiation of an inspection to the issuance of citations
where they're appropriate, I mean, you get the hazards corrected or the
violations corrected in a timely manner, and that's one of the things
we're looking at, average days between the opening conference and
citation issuance separated by both safety and health.  And we have a
range there of plus or minus 20 percent.

	Number of inspection denials where entry not obtained.  You know, every
employer has the right to deny OSHA or the State Plan members not access
initially and, you know, mandate that the State or the Federal should
get -- administrative inspection -- and the key issue is that when that
happens, if that happens, which is very rare in -- world, but if it
does, the expectation is States will indeed, as well as Federal OSHA
will indeed, you know, obtain access when denied.

	Percent of enforcement presence.  It is not something we have measured
in previous years.  It is a relatively new thing to look at, and that
really is the number of inspections done in high-hazard industries,
okay, divided by the number of high-hazard industries in that State. 
You know, that's a ratio that you would compare on national average. 
Are we getting to the high-hazard industries?  And that's really the
percent enforcement presence.

	Average number of days to initiate a complaint investigation.  And by
complaint investigation, we are talking about, as many of you probably
know, OSHA and the States often do some investigations of complaints by
a phone, fax, and letter.  And that's really the key issue we're looking
at where we don't actually do an on-site inspection, and that's
negotiated depending on the State.  States have different expectations,
different requirements, and each State could have some variation.  So
once that is negotiated, are they meeting that negotiated number.

	The next one is average number of days to initiate a complaint
inspection, and that is actually get on site.  And that's a negotiated
number as well.

	MR. FRUMIN:  Just a clarification.  In the first one about
investigations, it makes a reference to an open conference, but are you
referring to opening conferences in a --

	MR. KALINOWSKI:  In a phone call kind of manner, yeah.

	MR. FRUMIN:  Okay.  So that --

	[Simultaneous speaking.]

	MR. FRUMIN:  [In progress] -- is not what you mean by a traditional
opening conference in an inspection?

	MR. KALINOWSKI:  No.

	MR. FRUMIN:  Okay.

	MR. KALINOWSKI:  I apologize for that, Eric.

	Average number of violations per not-in-compliance inspection, serious,
read willful or repeat.  You know, that's really the number of
violations for not-in-compliance inspection.  Are we getting to this? 
Are we finding violations at the sites we go to?  That's the question. 
Are the States finding violations at the sites they go to?

	And then that's just another issue.  If you're outside the range plus
or minus 20 percent, there could be various reasons for that.  Are you
not going to the places that have violations?  Are you not classifying
them correctly?  Are you not finding them?  Those are the things you
have to drill down deeper if we're outside that range.

	The next one is field compliance measure.  The in-compliance rate for
inspections where no violations were found for safety and health
inspections, and the real issue is are we getting to sites where we are
finding violations, again, not the number but number of sites we get to.
 In other words, if we went to 100 sites, 80 of those sites we go to,
did we find violations or not there?  And I guess this is the opposite,
not finding violations, not -- the in-compliance rate would be 20
percent.  Okay?

	MR. WITHROW:  I wanted to just say a couple of things before I go over
the rest of the measures.

	I have been with the Virginia State program for 27 years, and 25 of
those years, I've been representative for the State with the
Occupational Safety and Health State Plan Association, or OSHSPA.  I did
want to express on behalf of OSHSPA thanks to Federal OSHA and to this
group as well for looking at monitoring procedures.

	The last two times that OSHA went through the process of revising their
monitoring procedures, I was the State Plan representative on that.  I
have a lot of background in this area.

	One thing I wanted to remind the group -- again, this is based on my
experience -- years and years ago, OSHSPA had a great deal of,
comparatively speaking, resources to do monitoring.  They had more
positions in the national office.  They had positions in the regional
offices.

	Over the years, with budget cuts and reorganizations, OSHA's resources
for monitoring have been pushed down to the area office level.  So you
currently have primarily CSHOs and area office directors doing
monitoring.  So they are being taken away from enforcement inspections
to do that kind of thing.

	So when you have, when you set up a monitoring system and you comment
on a monitoring system and the measures, keep in mind that you could
have all the monitoring and data you want in the world, having the
people to actually do it and write the reports and do the on-site
monitoring, takes resources to do that.  So there always has been for
the last 25 years a rub between resources and on-site, you know, doing
detailed monitoring of State Plans.

	So when we have measures that are computer-based, data-based,
activity-based measures versus outcome-based measures, those things are
balanced so that OSHA does not have to commit too much in the way of
inspection resources to do State Plan monitoring.  OSHA is always torn. 
The area offices and the regional offices particularly are torn by the
difficulty of balancing that.

	The last thing I wanted to say, that on behalf of OSHSPA, we have had a
very good relationship with OSHA, particularly over the last 20 years, I
would say.  We have sought a partnership with OSHA to work with them on
lots of different things, not only just monitoring but standards
development, policies and procedures.  We very much appreciate that
ability to have input and work directly with OSHA officials.

	I second what Doug said about -- and what Jordan said about the work
group.  Although this is really a small number of measures, everybody
should realize, as Doug said, that the State Plan policies and
procedures manual currently sets out the strategic plan and goals and
objectives that are required for strict State Plans, lists outcome
measures, lists activity-based measures.  There's a lot more data that
is looked at than just these 15 things.  So keep that in mind.

	But we wanted to start with a core group of things, and if there are
things that we need to add into this to make sure that all the core
issues of effective government-run safety and health program -- you
know, that those things are there.

	And lastly, after what happened, you know, with Nevada and the
transparency movement in government over the last 10 years and putting
things online, OSHSPA is on the record as wanting to make sure that when
State Plan reports are put out there, to look at how effective State
Plans are, that OSHA should be held to the same measurements and the
same transparency requirements.  We would like to see these reports that
are done in area offices and regional offices put on the Web as well, so
that everybody sees a national picture of what safety and health
enforcement, consultation, compliance assistance is like, what it
currently is, and I think it gives everybody the opportunity to make
improvements to it as we go.

	And personally, I like what the AFL-CIO does on their annual report on
fatalities where they list State by State.  I think not only right now
when States are compared to Federal OSHA, it's either a national number,
or we can look at regional office numbers, the 10 regions, but we don't
have very much data broken out State by State.  And it would be helpful,
for instance, for a State the size of Virginia to be able to look at
other comparably sized Federal States to see what the data is like.

	Similar industry breakdowns, that would be of benefit to us in trying
to see how things, how we measure up against other folks.

	Now, to finish off the measures, the next measure is percent of 11(c)
discrimination investigations completed within 90 days.  That is a
requirement in the Act and has been measured previously, and we all feel
it's important to continue to measure that.

	We tried to add a second measure to look at efficiency as opposed to
just meeting the statutory requirement, so having an average days to
complete that initial investigation, we wanted to add that in there as
well.

	Measuring effectiveness of a discrimination program is very difficult. 
If anybody has any ideas, we have discussed it ad infinitum, and we
would love to hear folks' opinions on that.

	Average current penalty per serious violation, that is a measure that's
been there for a long period of time.  We did feel that it would be
helpful to break the measure down by size, since part of the OSHA Act
requires Federal OSHA and the State Plans to -- when they're assessing
penalties, take into consideration the size of the employer.  That is
the largest reduction an employer gets in a penalty calculation.  It can
be upwards of 60 percent.

	So, obviously, if a state or Federal area office has a larger mix of
small employers that get that 60-percent reduction or, vice versa, if
they have a much smaller mix, then that can impact that average serious
penalty.  And average serious penalty is one of those measures that has
been a lightning rod for Federal OSHA with their stakeholders, for State
Plans with Federal OSHA and their stakeholders.  So it's something
that's been there a long time.  It's always probably going to be there,
but we did want to give a little more up-front ability to look at how
those -- how that larger -- that average for the serious penalties is
impacted by size of the companies.

	Next one is average percent of initial penalty retained for
noncontested violations.  That is just getting at -- well, it's really
getting at two things.  One is what are the -- how good is the State
doing on settlement of its cases.  Is it giving the farm away or not in
trying to settle the case?

	It also could reflect how well the inspection was done or how well it
was not done.  Obviously, if you are negotiating from a stronger
position, you could hold the line more on penalties.

	And if you retain policy -- retain more penalty, that can act as a
deterrent against future violations.

	The next two measures have to do with response to fatal accidents and
imminent dangers.  Long-standing requirement to respond within 1 day of
those.   Obviously, with the fatality, somebody has already been killed.
 You want to get there as quickly as you can, first of all, to assure
that nobody else is going to get killed immediately.  Secondly,
fatalities are, you know, the most high-profile kind of situation that
OSHA normally gets into.  It's important to get to those quickly and do
a good job on them.

	Responding to imminent danger complaints, obviously that's a situation
where by the very definition of it, somebody can immediately be killed
or suffer serious physical harm, and you want to get there and prevent
anything, prevent that from happening.

	And the last item, again, gets to a core element of a safety and health
program.  Besides identifying occupational hazards, you want to inform
the employers of them, and then you want to assure that they get
corrected in a prompt manner.  And this measures the number of open
noncontested cases with incomplete abatement for 60 days or more.

	And that's all the measures.

	MS. SCHREIBERG:  Can I just ask a clarification --

	MR. WITHROW:  Sure.

	MS. SCHREIBERG:  -- on what you mean by noncontested?  Does that simply
mean that no appeal was filed or that it didn't go through a whole thing
in front of the OSHA administrative law judge and so forth?

	MR. WITHROW:  The reports when they run are kind of snapshots.  So when
you write the criteria for pulling the data out, it is just going to
look at violations that are currently not contested.  It's a current
shot, not contested, which means then there was an abatement date and
whether the system indicates it was abated or not.

	As you know, in the OSHA law, except for two State, two State Plans,
employers are not required to abate an item that's contested at the
time.  So it is just that when this report is run, looking at violations
that have become final during the period for, let's say, the year and
that are currently not contested.

	MS. SCHREIBERG:  And then how does it fit with the settlement thing? 
Because to me, a settlement means there was some kind of contest. 
That's where I got confused.

	MR. WITHROW:  Well, the informal conference process, it could be
contested or not contested.

	MS. SCHREIBERG:  So you're just talking through the informal as opposed
to what the percentage retained is once the case starts through that
appeals process?

	MR. WITHROW:  Once it goes in the -- because cases, you know, with the
review commissions and in States as well can go on for -- and appeals
processes can go on for years, most of these reports are written so that
it's cases that are opened during the period, because you want to look
at current inspection activity; and in this case, cases that were closed
during that period, and the violations are no longer contested.

	So the problem, one problem, you know, overall with the computer system
is to catch those cases that have been 3, 4, 5 years in the process. 
Obviously, they weren't opened during the period that you are going to
start looking at, and that initial inspection was done 5 years ago. 
Some of that, some statistics look at, you know, contested violations
that were open for that period 5 years ago, but catching results for
cases that work their way through the system over years and years is not
a -- it's just not very well done currently.

	Yeah.

	MS. UPSTON:  Before we get into the actual questions and purposes, are
there any other questions for clarification?

	The purpose of this, just to remind you, is not to get into a deep
dialog about the draft measures, although if there are questions that
you need clarified, there's a few moments to do that, but it's not a
debating about the measures.  Okay.

	Yes, thank you.

	MS. SEMINARIO:  That was helpful, because it wasn't clear to me in
coming to this meeting if the focus that it was the draft measures and
trying to get input on those or it was these broader questions.

	And I think, personally, there needs to be both, because the draft
measures here are what's going to be moved operationally, and so the
question is how to organize a discussion around these draft measures,
fitting it into 1, 2, 3 or 4.

	So we had some discussion beforehand.  We were sort of grappling with
how do we get at commenting on the draft measures, because they do fit
into this, the structure here, but they are what are going to be moved
immediately.  So that's the question for folks.

	It would help, I think, if just there's some time to talk about some of
these and get, you know, some questions and some back-and-forth, if we
can, in some organized way, given that this is the work that the work
group has put so much time and effort into, but --

	MS. UPSTON:  Well, I mean, really, the question is, Doug, you and Jay
have to decide where are the draft measures and how much discussion do
you want to devote to that, because that's not where I understood you
wanted to go with today.

	MR. KALINOWSKI:  No, I think we want to get feedback on the draft
measures as well as how they tie into these as well.

	The draft measures are at this point proposals or drafts.

	MS. UPSTON:  They're drafts, yeah.

	MR. WITHROW:  I would just say we don't want to get probably bogged
down late in discussions for the whole time, because I think these
questions, the questions -- you know, we do want to hear a lot about any
ideas for outcome-based measures, because the GAO report and so forth
have been pushing OSHA for outcome measures.  States get pushed by their
legislatures for outcome measures.

	Some of these -- anybody familiar with the monitoring system?  A lot of
these are ones that have bee monitored over the years. 

	We just tried to as -- we looked at hundreds at least, a couple of
hundred measures that have been used over the years, and tried to say
what are the core ones, what are the best ones we have that we use most
regularly from a management standpoint, from assessing measurements.

	So that's -- this is an important -- yeah, we'd like comments on those.

	The questions, you know, you ask what outcome-based measures do you
like, what activity-based measures you like.  Some of these measures on
here are activity measures.  So on Question 1(a), (b), and (c), we can
get into that under Question 1, the measures.

	MS. UPSTON:  Yes.

	MR. FRUMIN:  So I have a couple of clarification comments or questions
about the draft measures.  This is Eric Frumin from Change to Win.

	I'm sorry.  Under the technology, am I supposed to push a button or
anything?

	MS. UPSTON:  No.

	MR. FRUMIN:  No?  Okay.

	One is that the term "negotiated" is a little unclear, is very unclear
to us outsiders.  So that would be an important clarification at some
point early on in the meeting, so we understand what you are referring
to.

	Also, the term -- the reference to the State grant, the annual grants,
OSHA, the States themselves are very familiar with that process of
establishing what is, for instance, the number of inspections.  For
those of us on the outside, we're not familiar with that process.  So
that would be helpful to understand, because that's obviously a very
critical measure here, just the raw number of inspections that the State
is expected to do and that Federal OSHA is going to hold them to in a
pretty tight range.  So we appreciate some clarification about whether
that's in negotiations or it's something else.

	On this question of enforcement presence, you use rightly the term
"high-hazard industries," but that is very different -- that means very
different things in different States, both in terms of the -- both
because of the range of different kinds of industries in different
States but also the criteria for defining "high-hazard industries."

	And Federal OSHA has multiple versions of that.  It's got, you know,
the injury/illness rates and the data initiative.  It's got the
industries selected for emphasis programs at the national level, the
regional level, at the local level.  It's got industries selected for
emphasis programs because of particular kinds of hazards, like
amputations, which cuts across quite a few industries and so forth.

	So I think it will be very important in terms of understanding this
critical measure of enforcement presence for you to try to clarify for
us what did the parties mean, so to speak, when you said "high hazard,"
and is there a way of quantifying that?  Is there are way of defining
it, so that the people who are going to hold themselves to it are going
to be held accountable against some measure?

	That transparency around that question obviously is very important.

	MS. UPSTON:  Okay.  Can you let them answer?

	MR. FRUMIN:  Yeah.  Yeah.

	MS. UPSTON:  Thanks.

	MR. KALINOWSKI:  I think the key thing is we are not really limiting in
terms of high hazard.  What we try to avoid is putting in a list, like
insurance agencies and things like that in an office-type environment
and get more to the manufacture and the construction.  You would think
that anything would have either a national -- program would be a high
hazard where people are either getting injured or -- or there are
fatalities.

	So it is going to be more inclusive than exclusive.  I think we are
just trying to exclude in that situation.  The "low hazard" probably
would be a better description.

	Does that make sense?  Does that clarify?  And we will have the list.

	MR. WITHROW:  I think we can give you the -- what we did was dealing
with OSHA's Office of Statistics, the gentleman that -- Dave Schmidt
runs all the reports and things, injury, illness, and stuff, and he has
a particular definition he uses with the OSHA stuff.  So we can give
that to the group, I think, without spending a lot of time discussing
the detail of that.

	The other two items, I don't know how other States do it with the
grants and estimating inspections, but we have used -- OSHA has a long
time ago developed a form for estimating numbers of inspections in
construction manufacturing, NEPs.  Of course, you have to estimate how
many complaints you are going to get in the coming year, and complaints
can vary widely.  You estimate how many accidents that you would
investigate based on previous experience.

	They have a chart that they use, and we, to the best of my knowledge,
use that based on the number of positions we think we are going to have
filled during the year and what are average number of inspections per
CSHO are and IH.  That's what goes into it.  Again, we could probably
give more detail about that.

	And the last item was "negotiated"?  I think primarily in the issue of
dealing with complaints, it goes back to when OSHA changed from calling
complaints "formal" and "nonformal," and then they went to
"investigated" and "inspected" and the "phone" and "fax" stuff was --
you know, they put more flexibility into how much time they would take
to do phone and fax, something that was a phone and fax versus a signed
written complaint with a serious hazard.

	And some States adopted that policy.  Others kept the previous one, and
there is variety in the States about dates for handling the formal and
nonformal for -- to use the old language.  And so when they say
"negotiated," that's what's in the FOM for that State, which OSHA has
approved.

	MS. UPSTON:  Tom and then Frances.

	MR. O'CONNOR:  You have looked in a couple of these measures at number
of inspections, both absolute and then compared to high-hazard
industries, but I didn't see if there's anything specifically about
health inspections, just because they can often be very
resource-intensive.  There might be a tendency for some programs to
focus exclusively on safety inspections.  Is there any way that you are
looking at getting at just looking at to see that they, in fact, are
doing an adequate number of health inspections?

	MR. WITHROW:  In the calculation I said previously, you know, we
actually start -- there is a safety calculation and a health
calculation, how many planned inspections they're going to do, how many
complaints they estimate, how many accidents they estimate.

	So in our grant, yeah, it's broken out by safety and health and each of
those subcategories, how many we think we are going to do based on how
much staffing we have.  So, yes, there is emphasis on health, and health
is tracked separately.

	MS. UPSTON:  Frances.

	MS. SCHREIBERG:  So I was kind of following up on some of the comments
that were just made, and my question relates to a couple of things.

	One, not to be a crazy statistician, but obviously, in addition to
weighting differently health and safety, there are some situations that
are much more complex, and so I am just wondering how that gets factored
into evaluating an inspection, having done case tracking in other, you
know, settings.

	And then the second thing is that, going back to what I thought Eric
was saying at the beginning about negotiated number of inspections that
a State Plan is going to do, I think there needs to be some kind of
initial bench mark that is outside of those negotiations, that relates
not simply to the number of inspectors that you all have budgeted or we
all have budgeted in our State Plans, but perhaps is related to the
number of employees that we have in a State and how they are distributed
through the high-hazard industries or however it is that you are going
to focus that, because just to, you know, come up with some number
without regard to how that covers the State's needs doesn't make sense
to me.

	MR. KALINOWSKI:  I don't think that the number of inspections -- I
mean, I think the expectation, which everybody should keep in mind --
there are so many positions that are funded for the States, and the
expectation is the majority of those positions will be filled, and that
ties back.

	And then based on those positions, it ties back to how many inspections
you're expected to do.

	MS. SCHREIBERG:  Yeah.  And I'm saying that's not the way I would do
it.  That doesn't make sense to me.

	MR. KALINOWSKI:  You can't monitor the State and say you should -- I
guess we don't want to get in a discussion, but I think we only have so
much funding for a State, and we can't monitor a State based on
positions they don't have funding for from Federal OSHA.  Does that --

	MS. SCHREIBERG:  Well, am I just asking the wrong question?  Isn't
there something that you have to start with, the population of that
State, the working population, and how it's impacted in terms of health
and safety hazards?

	MR. WITHROW:  Briefly, the benchmark numbers that are set for the
States were based on those kinds of calculations.  Of course, those
benchmarks were done years and years ago.  There are some States that if
you re-calculated them, they would need more inspectors.  Some States
would need probably need fewer inspectors.

	MS. SCHREIBERG:  Right.

	MR. WITHROW:  There is a requirement that's part of the grant that
States have to keep -- and I always get them confused -- 80-percent
safety and -- is it 75 or 85 health?

	[No audible response.]

	MR. WITHROW:  The State has to have funded and filled, keep filled
that.  So if you're going to say a minimum benchmark as far as staffing
was concerned, that's 85.

	MS. SCHREIBERG:  Yeah.  That's --

	MR. WITHROW:  Now, as far as having a measure that, you know, is for
numbers of inspections based on population and so forth, this
enforcement presence measure does get at that at least as tracking it.

	And State Plans actually are -- when it comes to numbers of inspectors
and benchmarks actually are more well staffed than OSHA is.

	So if Federal OSHA was measurable, if we came up with a benchmark for
that, OSHA would fail it themselves, even if a lot of States didn't pass
it.

	MS. SCHREIBERG:  All right.  But again, it's --

	MS. UPSTON:  Okay.

	MR. WITHROW:  But that's --

	MS. UPSTON:  I'm going to take three more people, and then just a
reminder about the purpose of the meeting and to say if you have other
comments or particularly clarifying questions about the draft measures,
you can submit them, and OSHA will respond to them and put the responses
up where everybody can see them, just so I -- my job of moving the
meeting forward now.

	Diane?

	MS. BROWN:  You had mentioned that there is a formula that the States
use for safety versus health.  Is it also that way for private and
public?

	MR. WITHROW:  The general thing, at least in Virginia for a long time,
is we would at least have, as far as inspection activity, 5 percent of
our inspections would be in public sector as a minimum, and we track
that as well.

	MS. BROWN:  And can we include that in somehow in this draft measures,
that there be some benchmark for public employment?

	MR. WITHROW:  That's a good comment.

	MR. KALINOWSKI:  I think that's expectation, where the States have both
public and private sector.  That is a universal application, is 5
percent.

	MS. BROWN:  Okay.

	MR. WITHROW:  But, yeah, to look at whether that is an appropriate
percent is -- yeah, that's a good point to make.

	MS. UPSTON:  Gary.

	MR. VISSCHER:  A lot of these compare, would be comparisons to a
national number, correct?  The range is based on what the national is,
and I guess number one -- one of you mentioned the idea that -- I think
Jay mentioned the idea that OSHA would also have to publish its numbers.
 This kind of implies that they following the same rating system, in a
sense, right, for the same factors?

	And then related top that, I guess, is a national number, but you're
doing quarterly evaluations, is it a rolling number, or is it based on
what like OSHA's projection would be at the beginning of the year? 
What's that sort of national number referring to, I guess, is the
question.

	MR. WITHROW:  Yeah.  The reports are run on a quarterly basis for the
quarterly meetings that OSHA has with each State and where there is --
we -- some of the measures have a 1-year average, you know, for the
Federal number, and some have a 3-year rolling average.

	But as far as I know, that ends up being a rolling number.  It changes
from quarter to quarter, and if you would ask States, that's probably
traditionally one of the things we've had problems with.  Instead of
having a hard-and-fast number there to be compared to, it -- you know,
it moves around.  It's a moving target kind of situation, which makes it
difficult from a planning standpoint.

	On the other hand, you can't go out and -- or you get in trouble if you
say, "Okay, CSHO, you shall find four violations per inspection."  Then
you can be accused of trying to gin up stuff that's not really there.

	So some things do have to be kind of a rolling thing.  Others where
possible, we would like to have solid numbers when it's possible.

	MS. UPSTON:  Peg.

	MS. SEMINARIO:  On the complaint inspection indicators here, one thing
that would be, I think, very useful as an indicator -- and it goes to
what Jay was talking about earlier, this whole phone/fax,
informal/formal -- that we have gotten away in many places the idea that
a worker can file a formal written complaint and get an inspection,
which is really core to the statutes.

	And it's something that we've had a lot of disagreements with, Federal
OSHA and some States over the years, as trying to basically try to
minimize that by doing shortcuts through phone/fax.

	It would be helpful to have an indicator here that is looking at the
percentage of complaints that are responded to by inspection and the
percent that I responded to by some other means.

	And again, I understand that there's -- without trying to go and flip
the entire policy here right now that exists, because this is what Jay
said, it's very different at different places.

	At least having that information and seeing as to whether or not -- you
know, what's actually happening out there, would be very, very useful
for those of us who represent workers, wanting to make sure that people
are getting inspections in response to complaints that are being filed.

	MR. WITHROW:  Just in response to that, I would amend it by saying
percent of signed complaints responded to, to get at your core issue,
because if it doesn't come up 100 percent, then you know that some
signed complaints are not getting an inspection.  And we do keep that
data in the system whether something is signed or not.

	MS. SEMINARIO:  And we'll provide some more written comments, but
something that gets at that and doesn't mush these all together but
enables you to pull that data apart.

	MR. MATUGA:  I do have one question, clarification, and then just one
comment as well.

	From what I understand, these draft measures are going to also take a
more balanced approach.  These ones are only focusing on enforcement,
but there's going to be other components that are going to be looked at
as well in terms of what the States are doing, measuring their
effectiveness for training and outreach in cooperative programs.  Is
that correct?

	Well, I think it maybe premature for us to talk about just these draft
measures, because that's only one, one small piece, but a comment I have
about these specific measures about enforcement are really -- and one of
the things that our members brought to our attention -- is sort of the
lack of consistency and enforcement.

	This talks about raw numbers.  How many enforcement -- or how many
inspections have you done?  What was the average penalty?  How do you
make sure -- and I'm not sure how do you do that with a measure -- to
keep consistency across the board?

	From members' experience and the feedback they have given me is that
the State Plans generally are smaller entities.  The enforcement is
pretty consistent in each of the State plans for a single State Plan
where you can actually have one OSHA region, and the Federal
jurisdiction, there could be a couple States and one region where the
enforcement is inconsistent.

	So if that would be added to your list in some form or fashion, talking
about a consistency and that being a measure that the States are looked
at versus Federal OSHA, it might be helpful as well.

	MR. KALINOWSKI:  Well, about the challenge, I think between the 10 OSHA
regions as well as all the States too, and that's something that we try
to work towards.

	And just to add onto Peg's, we do have those data for looking at all
those different aspects of complaints.

	MR. WITHROW:  I would just say, yes, everybody struggles with
consistency.  We do from region to region in our State, from compliance
officer to compliance officer.  It is one of the things we look at.

	The serious, percent serious, percent of violations cited serious is
something that's looked at, and if a State has a lower number or a
higher number, OSHA will look.  We normally look at the last that's
published every year, the 25 most frequently cited standards by State. 
We look at that and see individual standards that are cited higher
percent serious or lower percent serious, and normally, that's where
we'll see if there's a consistency issue.

	And then from CSHO to CSHO, we will run a report to look at how many
actual regulations they cited during the year.  Some CSHOs will cite a
very broad range of violations, of standards, and some will do a pretty
narrow range of standards.  That's how you get at kind of quality
control and consistency.

	MR. FRUMIN:  But I think that --

	Oh, I'm sorry.

	Question 1

	MS. UPSTON:  Thank you.

	Doug, will you introduce the first question?  We were going to collapse
the amount of time with each of them to try to get through the main. 
Hopefully, this was a good precursor to getting at what OSHA is looking
for.

	MR. KALINOWSKI:  And I think some of the issues that you are talking
about will come out of these questions as well.

	Question 1 is, how would you define or describe the components that
constitute an OSHA-approved State Plan that was "effective" in achieving
this mission, funding, staffing, standards setting, strong enforcement
program, strong consultation, frequency of inspection, strong training
and outreach programs, level of penalties?

	MS. UPSTON:  So those are obviously to seed the discussion, and if you
have other ideas other than those, that's particularly -- obviously,
OSHA has already figured these out as possible.  So anything new and
different or clarifications or further ideas on those is what OSHA is
really looking for.  Now they are in the listening mode.

	Yes.

	MR. FRUMIN:  Eric Frumin.

	I think one of the things that needs to be evaluated much more
carefully is the extent to which the different parts of the agencies
take seriously the role of workers under this Act.

	Worker participation as a category of activity, for instance, is not
included in your sample list here, in your examples.

	Peg mentioned the question of the extent to which worker's fundamental
right to getting an inspection off of a complaint as well, but there are
others as well.  The extent to which workers participate in walk-around
inspections is a fundamental part of the Act.

	These are written into the statute.  These are not policies adopted at
the whim of some other administrator.  These are core rights that
distinguish this Act from what happened before 1970.

	So, in a variety of ways, we think it is critical that this subject be
opened up for a much more robust discussions, and that measures be
selected which can actually reveal the extent to which compliance
officers and the offices that support them interact in an effective way
or, conversely, in an ineffective way regarding worker participation. 
I'll leave it at that for the moment, but it's an important addition.

	MS. UPSTON:  Chris.

	MS. TRAHAN:  Hi.  One of the things that struck me as I was thinking
about this was a broad concept of adoption of compliance directives.

	You know, I understand States have to respond when new compliance
directives come out and determine whether or not they are going to be
adopting wholesale or if they are going to be modifying their policies
within their State and then report that back to OSHA, but how is that
measured?

	When you look at a State that -- you could look at how States, if
States wholly adopt compliance directives.  You could also look at when
they are adopting some kind of modified policy.  You have to do this
kind of thought process to see is this as effective as the policy in
place at the Federal level.

	With that as a broad example, I don't know how deeply that's
investigated during the evaluations, but at the more specific level,
there is this great compliance directive on training of compliance
officers.  And one particular measures could be the percentage of staff
meeting the training goal, as defined in this compliance directive from
2008.

	Some States have not adopted this compliance directive and choose to do
training programs that are different for their new compliance staff and
their ongoing compliance staff.  Is that as effective?  How do we
determine that?  Who is consulted to take a look at that?

	Also in this compliance directive, there's a very lovely way to do
separate training for safety compliance officers, health compliance
officers, and construction specialists, and my understanding is that
some States really stray away from that approach and don't have folks
that are as focused on the high-hazard construction industry as the
Federal model.  So that, I think is a measure that would be very useful
to look at and be part of the evaluation procedure for everybody, for
all OSHA enforcement programs.

	MS. UPSTON:  Thank you.

	Jerry.

	MR. RIVERA:  Yes.  My name is Jerry Rivera with the National Electrical
Contractors Association.

	And I guess as I am looking at some of the components, like funding
staffing, I am trying to look at it from different angles and that's a
percentage of employees reached.

	And I don't want to look at it in one specific way of just enforcement.
 I think we should be looking at it from the training, you know, here's
one component, X amount of employees, whether the State will reach
through training, consultants, alliances, and yes, inspections and
penalties.  But there should be a way to kind of evaluate the percentage
of employees within their State that are being reached to make sure the
information is within the grassroots versus focusing on just we're going
to do a thousand inspections, and we're going to find a thousand
violations, and we're not going to twitch at the penalties production.

	I think it's kind of misleading when you take it from that angle versus
if you focus on what we should really be focusing the employee.

	And that would kind of lead into if there is a penalty assessed. 
Instead of looking at being hardcore on the penalty, let's look at the
dynamics behind it.  Is the employer really redoing or instituting
programs that will help mitigate that hazard and prevent it from
happening in the future?  That should be considered.

	So, again, let's focus on the employees, how many of them are being
reached through these different means that we currently have in place.

	MS. UPSTON:  Thank you.  Mary Lee.

	MS. HALL:  One measure that occurred to me that I think is important in
terms of lots of low-wage and marginalized workers now is how well is --
are States meeting their obligations under Title 6 in terms of language
access for workers, both in terms of inspections, information, and other
things of that sort.

	And I think the Secretary already has guidance on that, that could be
made a little more specific in terms of State Plans that would assist in
determining if workers really do have access to occupational safety and
health complaints and whatever.

	The other point would be that both in terms of written, written
complaints and oral complaints, language can be an extreme barrier for
workers making that complaint.

	MS. UPSTON:  Thank you.

	Harry.

	MR. PAYNE:  Yes.  I think we have to look at the position of the State
administrator, and they need a tool in advocacy for greater numbers of
positions and money to train as some ideal standard that have their
State graded against that standard, how are you doing, because
inevitably there's a tragedy, and people say -- the story says hasn't
been inspected in umpteen years.  And that's the only evidence that they
see, inadequately funded State program.

	And if you could say you're running at 60 percent of the ideal State
program or 70 or 90 in terms of a broad standard for a State program and
a Federal program, which I think we should live under the same house.

	But I think having that standard before the tragedy can help lower the
probability that it occurs, but I think an administrator, State
administrator needs that tool to go in and say, "Look, we stink in terms
of the amount of commitment to this program.  We've got to do something,
and now it's on your head."  And I think that would be helpful.

	MS. UPSTON:  Thank you.

	Mary -- Diane.  Sorry.

	MS. BROWN:  Some of my comments are going to talk about the training of
the staff, but Chris, I think, got that pretty well.

	So I want to talk a little bit about the level of penalties.  As
represented, public employees, number of State Plan States cannot find
another public employer, or they are very, very restricted on what kind
of monetary penalty.

	So money for a penalty is not even -- how can we really even look at
that?

	So if you are going to look at effectiveness of penalties as a measure,
what about those public employees?  What are you going to measure
instead if it's not going to be the penalty, especially if you are
looking at a dollar amount?  Because zero is zero.  Okay?  Or $2.90 is
$2.90.  And so you need to have something else you are going to measure,
and generally, that's abatement time.

	The completeness of the -- what was asked to be fixed and how quickly
they did it, I mean, that's what I look at when I deal with this issue
with our public employees.

	And there's -- when we talk about high hazards, public employment has
slightly different high-hazard industries.  They are not completely
different than private sector, but there are some differences.  There
aren't comparisons to a wastewater treatment plant in private sector,
mostly because wastewater treatment doesn't make money.  So it's done by
the public sector.

	Are there compliance officers who can make those inspections?  And if
not, how do we staff that appropriately? 

	That's it.

	MS. UPSTON:  Thank you.

	Frances.

	MS. SCHREIBERG:  Yeah.  I think a couple of thoughts having actually
even following on what Diane said, but the abatement issue, I think, is
a key factor.  And it's not just abatement incomplete for 60 days or
more.

	I think what needs to be looked at is whether State programs have a
plan for speeding up on contested cases the abatement process, so do
they have, you know, a process by which those cases can essentially be
moved to the head of a queue, so that when you've got a serious citation
and you've got abatement that hasn't occurred, that that case gets
handled more quickly.  I think that to me is a really important aspect,
because everybody wants abatement to occur.  That's one of the key
elements that we're dealing with here.

	In terms of the training of staff, I would add to that some of our
State programs, ours in California, are not -- are CSHOs, do the
appeals, and they're not lawyers, and that's a big difference.  And they
need to have adequate training, and I think we need to -- in the
evaluations, you need to look at who is doing those appeals.  And
whether they're attorneys or not, they should be getting some training. 
I think the attorneys can get that training too on how these appeals are
presented, because there are lots of problems with that.

	And then the final thing that I wanted to add was -- and I really don't
know exactly how you all could approach this, but I think supervision of
the CSHOs is an aspect that we have to think about.

	And again, I am looking back at our California program to see where
things fall through the cracks, and I think there is a big hole in terms
of supervision.  There are some districts where you got a district
manager who is really looking very early on at the files that the CSHO
brings in, and then there's some where it doesn't happen until right
before the case is appealed or going to trial on the appeal.  And that
makes a huge difference in terms of what the outcome is, so something
about supervision.

	MS. UPSTON:  Thank you.

	Tom and Peg.

	MR. O'CONNOR:  Okay.  Just following up on what Mary Lee was talking
about, the language capacity, that's something we hear from folks around
the country, that it's often a problem of having inadequate number of
particularly Spanish-speaking inspectors.  A neighborhood it's related
to staff training in addition to hiring process.

	I think Cal OSHA has an interesting model where they offer incentives
to inspectors that give them tuition, books, and 4 hours a week that
they are paid, that they can learn Spanish.  And so I think that's a
really interesting model that other States could take up, and it's worth
looking at whether States are at least analyzing what their non-English
language population is in their States and whether they are covering
them.

	Just following up on something that Eric was saying about worker
involvement, we have seen a lot of lack of uniformity in both Federal
and State jurisdictions on how inspectors involve workers and
inspections in non-union workplaces, which in some States now is just
the vast majority.  So does the State have a specific policy of how they
are going to get worker involvement in their inspection process, and how
is that carried out?  That should be a part of the monitoring process.

	MS. UPSTON:  Peg and then Chris.

	MS. SEMINARIO:  I think one of the things, as Eric said and others have
said, the basis for certain standards are presented in the Act in OSHA
regulations.  This isn't a new issue.  Obviously, there's a lot of
history here.

	And one of the things I did preparing for this is go back and read the
statute and the regulations, and it lays out the different steps in the
development, but it also lays out the criteria for State Plans.  And it
lays out procedures for monitoring.

	And I think at a minimum, the things that are covered have to reflect
what's in the statute and the law, and you are missing some of those
things.  And some of them have been raised.

	There is a focus, obviously, in the statute of people, staffing being
qualified, and getting into that whole area of what the qualifications
mean and how do you monitor that, measure that, I think is worth a
fuller discussion.  I'm not saying you should dump your measures you
have now, but that clearly is something that is a critical issue, both
for the Federal Government and for the States, and so developing that in
a more robust way, I think is really important.

	The whole issue has been talked about of worker rights is critical in
workers being able to exercise rights of participating in inspections,
filing complaints.

	The outreach components, does that apply only to employers but also to
workers?

	An area that Fran started and had begun to talk about, what is the
State's capacity for handling everything at post contest?  Because that
is a big part of an enforcement program, and what is the capacity for
doing that?  What is the timeliness for taking those things up?  What
are the cases that get litigated?  Because a lot of those are the big
high-profile cases.  What's a State's ability to handle some of the
big-deal kind of cases that it confronts is an important piece of it.

	And then as Diane had said, the other piece of it, States to have a
State Plan have to cover public employees.  It's the only way they get
covered, and the statute says that that program has to be as effective
as the program for everybody else.

	So having means in place to look at what is going on vis-a-vis public
sector workers which may have different types of hazards in certain
areas, different kinds of concentration, and how the program is set up
to deal with the population but also the hazards that are present.

	MS. UPSTON:  Chris.

	MR. WILLIAMS:  Talking about the post-penalty phase and getting back to
what Jerry said in terms of worker outreach, employee and employer,
post-penalty phase, I think we need a performance metric as follow-up
training after the penalty citation is issued; in other words, a
root-cause analysis of why the citation, why the hazard occurred,
training employer and employee on how to abate that hazard so that
doesn't occur, there's no future occurrence.

	Another part of it, we talked earlier about a metric, projected -- we
talked about frequency of inspections.  There should also be a metric in
there, a projected number of consultation inspections.  Simply put on
that one, there needs to be more outreach done in terms of prevention,
and we need to get ahead of not just actual enforcement inspections, but
what to do to help out the employer and employees in educating them.

	MS. UPSTON:  Eric.

	MR. FRUMIN:  Jay mentioned the question of transparency and new
approaches to the way the government functions, and I think it's worth
adding this criteria to how the States are monitored and the Federal
OSHA as well.

	There's quite a variety of practices among the States with regard to
their maintenance of the documentation of enforcement records, including
the basic retention of records, the provision of those records to the
public.  States have different policies regarding release of enforcement
files, and there needs to be a fundamental level, a minimum foundation
of transparency that cuts across the entire program.

	Simply because a State has anxiety about releasing inspection files of
a particular business should not allow the State to withhold those
files.  Likewise, files can't be destroyed within just a few years, even
if it might meet the minimum criteria for a repeat violation.

	We know, for instance, in the Federal policy, which has been on the --
in the directive since 1998 that still follow today, files involving
health inspections where air monitoring was done is kept for decades for
good reason.  So I think transparency is a very important addition to
your list, again, as Peg said, not to hold up moving forward with the
ones you have but to get into a serious discussion about it.

	MS. UPSTON:  Thank you.

	Gary.

	MR. VISSCHER:  I am going to follow up on something Rob talked about
earlier and also, I guess, comment on Peg's comment.

	I sort of came here thinking this is a huge step backwards, because all
the proposed measures were enforcement activity measures, and the
government program evaluation world has moved away from all that and has
moved into impacts, clearly, over the last decade.  That's been the
whole direction of things.

	As I was thinking about that prior to today, I agree with Peg that the
statute specifies or kind of directs that section of the OSHA act,
directs you into looking more at activities.  So I think you have sort
of a dichotomy there of following the statute versus -- or in
combination with the way that program evaluation has gone in the larger
world over the last, you know, 15 or 20 years, which is to look at
impacts, which is often more difficult but is really what the emphasis
is.  So I think to me, that's that challenge.

	I guess picking up on what Rob said, as I said, I came in thinking this
was a huge step backwards, and then I find out that really that's the
next step in your process is to look at those things.  And so we are
looking at maybe a half-a-loaf or a quarter of the loaf or something
here, which I think is important.

	But I guess I just wanted to make the comment that with regard to this
first question, which is really kind of the broad, how you define
"effective," the examples listed here are all the activities, and I
think it's really important that if you are going to weight it one way
or the other, from my perspective, you have got to look at impacts,
because that's really -- I think we've learned that in a lot of other
programs and in the OSHA world that if you just look at activities, you
may be missing the real ball game.

	MS. UPSTON:  Which is really part of the next question.

	MR. VISSCHER:  Okay.  Sorry.

	MS. UPSTON:  No, not -- Frances.

	MS. SCHREIBERG:  Yeah.  Just partly that, but on the appeals issue,
again, I keep coming back to that, because that was a big issue in
California.

	But in addition to all of the other things that I said, I think it's
important to start looking at the procedures in the State Plans for
these appeals and particularly, again, basic worker rights to
participate in those appeals.

	And sometimes the law that's created in the State, either, you know, in
State court proceedings if that's where these basic appeals go or in our
little administrative law proceedings, you end up with procedures that
cut off workers' rights and that in fact are different than the basic
decisional law that has come up through the OSHA Review Commission and
into the Federal courts in that regard.  And that can be pretty
significant.

	Again, if you look at the regulations in California regarding how we
handle our appeals, they are not up to snuff in terms of the Federal
OSHA case law that has developed overall.  And I'm not saying you have
to match exactly what the Feds do or even follow those as decisions, but
I'm saying in an overall capacity, you have to have some level of -- as
effective as they are -- particularly as it goes towards worker rights.

	The other thing is, in terms of impact, again, I think the abatement
issue has to do with impact, how quickly that abatement occurs, but also
the 11(c) has to do with impact.  And, you know, not just how many of
those cases are handled within 90 days,but it is an impact when a worker
loses his or her job as a result of being involved in safety and health.

	So, to me, I am concerned about, number one, there being a lot of
information that our State plans are going to provide to the folks when
they walk into that workplace and those folks are interviewed or those
folks are on a walk-around or those folks are just sitting there in that
plant.  Those folks need to be able to have information about what their
rights are in terms of the 11(c) components.

	The people who do the 11(c) cases need to be trained properly to handle
those cases, and I don't think that's necessarily happening.  I don't
think that there's any kind of consistency in terms of procedures, and I
think you have to -- again, because it's impact -- look at the outcome
of those cases.  And that may not be hugely easy, because some States
have private right of action, and so the, quote, "easier" and maybe more
-- you know, where there's a bigger amount of money at the end because
the worker got fired, and there's a potential for a private attorney to
take those cases.  You know, maybe those get peeled off, so you have to
think about balancing all that.  But impact is in 11(c).

	MS. UPSTON:  Jerry and then Chris and Harry, and then we are going to
take our break a little early and regroup our times for the next
questions.

	MR. RIVERA:  Jerry Rivera with NECA.

	As part of the assessment process, to assure that the States are as
effective, I would like to suggest that based on the inspections that
the CSHOs are gathering, what is the State doing to kind of mitigate or
match those conditions on the ground?  Meaning if they are finding the
fatalities during inspections, falls is a huge issue, what is the State
doing to kind of counter-react that?

	I've got to commend the Falls Campaign, which was a great initiative,
and that is something that should be considered as part of is the State
being as effective.  We always focus on inspection fatalities, but if we
really stop for a second, we are looking at the lag in indicators.  What
are we doing proactively as a State to ensure that we really bring down
those numbers and not necessarily focus on the numbers per se?

	The other one is consistency among States in the standards setting, to
verify if there is somewhat of a consistency in that assessment.  You
have Federal OSHA standards, and then you have some States who
promulgate additional rules like ergonomics or heat.  They are great,
but for an employer who is crossing State boundaries, it creates
somewhat of a confusion.  You know, you are going from California to
Nevada, there is not such a rule, but then you cross into California,
you get a $7,000 penalty.  It's a hard price to pay for something that
we assume they should be known.

	But these are things that maybe, as OSHSPA should consider is as they
start promulgating rules that are that far away from what Federal OSHA
is doing, there should be a consistency among all the States.  That way,
it makes it easier for employers to comply.

	And the other one is the training.  I want to capitalize on what folks
have said for the CSHOs.  I talked to a CSHO a while back, and he told
me he hasn't received training in the last 4 years.  You know, that's
kind of a disconnect between what the employer being chartered with and
the employee.  You know, we trained the employees a bunch.  We tell the
employers you got to train the employees, but here we have the CSHO who
hasn't been given training for the last 4 years.  It's kind of a -- you
know, they're not being effective.  They're not being offered an
opportunity to develop themselves professionally, and at the end of the
day, who pays for that?  The employee.

	MS. UPSTON:  Thank you.

	Chris.

	MS. TRAHAN:  Well, I think, you know, Jerry, you brought up a good
point, and, Rob, you did too with consistency of enforcement.  And I
just wanted to reiterate the earlier comments I had about the
implementation of compliance directives to be equally -- I think that
would led itself to that, and it is measurable.

	But there's one other thing that's come up that I wanted to kind of
raise a red flag about.  We are talking about measuring State Plan
States, and a lot of folks have brought up consultation, which I think
is an incredibly important program, and it is incredibly important to
all employers in this country, but all States have these consultation
programs, not just the State Plan States.

	So there might be a way to measure compliance assistance by State Plan
enforcement personnel, the same way Federal enforcement personnel offer
compliance assistance that's not specifically enforcement-related
activity and separate out the compliance programs that are run typically
through a different agency in that State, because it wouldn't be apples
to apples and oranges to oranges.  It just seems like a strange measure
as part of the State Plan assessment to measure the State compliance
assistance programs.

	I don't know if there is a parallel activity in your office that looks
at all of the consultation programs, but that to me is really a separate
thing, and I like the way OSHA keeps the consultation program separate
from the enforcement programs, because it does give the employers more
confidence to use those programs without it being connected to an
enforcement activity.  So I don't know that they should be lumped in
together -- measurement here.

	MS. UPSTON:  Harry.

	MR. PAYNE:  I don't know whether this is still the case, but there used
to be a disconnect between the amount of fines and citations that were
issued and their degree and the final outcome, even in the contested
case.

	A lot of times, we get the press release with the $400,000 fines
issued, and what we didn't hear later on was a small piece in the paper
that they were compromised out to a very small piece in the paper that
they were compromised out to a very small percentage of that.

	Part of our role, I would think, is to look at the quality of the
activities, and the best measure of that would be what did you get in
the end.  What was the final result of the adjudicated case?

	I think if there's a huge difference between what was initially started
out and what you eventually ended up with, that's important to know. 
And I think a lot of times, we used to say, well, that's not our fault,
that's the fault of the lawyers, they just don't press hard enough.

	But you're in a better position to affect the outlook of the lawyers
than anybody else and the quality of the material you give them to work
with.  So I hope that in our measures, we will consider not just what
was cited or agreed to but the final outcome of the tried-out cases to
see whether they, in fact, held the -- what they found in the
inspections in the course.

	MS. UPSTON:  Thank you.

	Eric, you are going to have the last word on this section.

	MR. FRUMIN:  Any organization of any size knows that research and
development, evaluation is a critical -- is critical to its success. 
Some States have done -- have plowed a lot of money into evaluation. 
Some States haven't.  Feds have done -- up and down, there is a big
evaluation on the way now.  Other times, there wasn't.  I think that
would be an important thing to look at, and there might be a way to
measure it in the way that any organization measures its investments in
R&D.

	MS. UPSTON:  Okay.  Thank you very much.

	Let's take a 10-minute break.  We're 10 minutes ahead of the break, but
we're 20 to 30 minutes behind on the second question, so it all sort of
comes out in the wash.

	So go away, if you need to, for 10 minutes.  Participants,
particularly, we are going to start back timely, so it would be helpful
if you are here.

	The rest rooms are there.  There's fountains, and the fourth floor has
a snack bar if you need to go quickly.

	Thank you.

	[Recess from 11:32 to 11:42 a.m.]

	MS. UPSTON:  Okay.  If the participants will please take their seats
again.  However brief the break was, we will move along.  I know that
was brief.  Thank you for coming back as timely as you could.

	We have made some adjustments to the times to try to catch back up, and
we will kind of borrow some time from the last one particularly and
Doug's closing comments, which he promises he will really need 10
minutes.

	So we are on to Question 2.  Doug, would you introduce it and if there
is anything further about it before we ask for comments?

	Question 2

	MR. KALINOWSKI:  Question 2 is, what indicators would you use to
determine and monitor whether approved State Plans are at least as
effective as Federal OSHA as outlined in 18(b) of the Act? 
Outcome-based measures or activity-based measures.  Outcomes is
reductions in injury and illness rates, reductions of fatality rates,
and activity-based measures begin number of inspections conducted,
number of violations issued, et cetera.

	And then we will add we really appreciate how complicated this really
is, and we do appreciate your ideas.  Thank you.

	MS. UPSTON:  Yeah.  But one of the things in the pre-discussion, the
two examples that they've given for outcomes, if you are someone who
feels strongly that outcomes is important and can offer some other
suggestions, that would be also very helpful.  The ones that are here
are the ones that OSHA primarily can think of, but if you can offer
other examples, that would be much appreciated and helpful.

	So let's begin with comments and suggestions on Question 2.

	Diane.

	MS. BROWN:  Okay.  As far as outcome versus activity-based, I realize
that we are always going to look at injury and illness rates and
fatality rates.  I don't think that we can get away from that in some
way, shape, or form.  That's what other people will judge us by as well.

	However, I think more the trends over a period of time versus a
specific snapshot in time is probably more important.

	As far as activity-based measures, of course, that's where we would
like to see it go.  Number of inspections conducted, in my view, isn't
as important as the variety of inspections that is covered in
particular.

	Okay?  I am here representing public employees.  I would like to see
more of an emphasis placed on municipal employees.  I think that is
where the vast majority of hazards are in public employment.  I would
like to see inspections done that cover things like health care and
maybe nursing home-based as well.  There's a lot of hazards there.

	I already know that in some States, they already are concentrating on
these things, but it's all over the map, so more consistency in that
regard.

	Number of violations issued to me again is -- number doesn't mean
anything to me.  It's whether -- it's the quality of the violation, and
did they look at a variety of hazards?  Again, if someone is going into
a wastewater treatment facility and they are not looking at chemicals,
confined space entry, and possible exposure to waterborne pathogens,
then they haven't looked everywhere.  So I would like to see a more
quality type of activity-based measure, if that is feasible, if that's
possible.

	MS. UPSTON:  Thank you.

	Ron.

	MR. McGRAW:  Yeah.  Well, at least as effective for public safety, I
mean, when you get State Plans, it's a home run.  Right?  It's effective
because at least it applies to public safety.

	[Laughter.]

	MR. McGRAW:  But I think there's going to be many issues.  Our
employees, probably safety employees, there is not a lot of OSHA
standards that actually apply to those sector employees, so it is going
to be hard to -- now, some of the State Plans have gone and made their
own.  Michigan has a good public safety standard.  Some of them have
adopted NFPA standards that would apply to these employees.

	So to -- in the area of public safety, at least as effective should be
as effective as what is our private sector counterparts, I think, in the
area, so seeing inspections at the same rate for municipal employees as
you see it in the private sector.

	Injury.  The public sector is also one of the worst people at reporting
injuries.  So when we are looking at injury rates and reductions, you
are not going to see -- your experience with municipal governments, they
don't report all that well to begin with.

	If you saw the reporting, you'd see the rates go up extravagantly, but
at least we'd see -- in the activity-based measure, you'd see
inspections conducted, and therefore, you'd have some measure to go off
of.

	I also see that in our sector, there's an unwillingness in the State
Plan States to actually inspect, particularly the public safety sector
that does -- I don't know what it is, about inspecting a fire department
or inspecting a police department, but the State OSHA doesn't seem to
really want to do that.  Maybe it's because of the nature of their work,
but I would like to see more inspections, so definitely activity-based
measures.  Seeing more OSHA oversight over those sectors would be
helpful.

	MS. UPSTON:  Thank you.

	Tom?

	MR. O'CONNOR:  Okay.  To the outcome measures, I think everybody here
is familiar with the problems that were just alluded to in terms of the
reliability of the injury and illness rates, and I think there's a
tendency to say, well, that's what we got to work with, it's better than
nothing.

	But, you know, I'm not sure it is better than nothing, because there's
been an interesting study in the construction industry recently that
found there was actually by State, there was an inverse correlation
between the fatality rates and the injury and illness rates.  And if you
look a little closer at it, it seems to be in the places where there's
fewer unions.  There's maybe more pressure to not report injuries.  So
it seems staying away from that as an outcome measure seems wise.

	I could see using the reduction in fatality rates makes sense, but I
would be interested in other people's ideas about what other outcome
measures might be useful.

	And in terms of the activity measures, I would second what Diane said
about the need to look at the number of public sector inspections.

	But also going back to this issue of the health inspections, it's
addressed in terms of projected versus actual, but that you have to look
at is the actual appropriate -- excuse me -- the projected appropriate,
so are the health inspections adequate to cover, as Fran was suggesting,
the hazards in the State.

	MS. UPSTON:  Thank you.

	MS. SEMINARIO:  I think it's really hard for all the reasons that have
been said looking at injury rates and even fatality rates as measures of
at least as effective, all kinds of problems with the injury rate.

	But even looking at fatality rates, the fatality rates vary
significantly, depending upon the industry mix.  If you look at the
fatality rates in Massachusetts and Rhode Island and having to be
Federal States, they're really, really low.  If you look at the fatality
rates in Alaska, Wyoming, and they're State Plan States, they are
really, really high, but there is a lot more going on there.  The
industry mix is quite different in those States with a lot of the oil
and gas, the oil drilling, a lot more transportation.

	So I don't think you can use these as simple indicators to say, "Oh,
there's a benchmark here," against the Federal average.  I mean, I can
send everybody our report.  You can look, and you can see.  You know, we
track this, and it doesn't tell you a whole lot about whether the State
is effective.  It gives you some information about particularly
fatalities, I think, what is going on in that State, but it really
doesn't tell you a whole lot vis-a-vis the effectiveness as a b enchmark
between the Federal.

	Looking at some of that over time, maybe fatality rates in particular,
may be worthwhile.

	Can you get also at industry-level data and rate data, not numbers, at
a State level?  I know that has been difficult.  It is not published
data, and some attempts, which we will hear about, tried to get at that
in some of the more hazardous sectors.  But I think we should disabuse
GAO, Inspector General, whatever, that somehow there is an easy measure
out there against Federal, State, that you can match up, and it is going
to tell you a whole lot.

	I think they were totally wrong on that point at looking at that as a
benchmark between the Feds and the States.

	I think a lot more has got to be looked at, at levels of program
effectiveness specifically, different initiatives, what kind of
follow-up, and maybe looking at the Falls Campaign is an example.  Those
are incidents that you can count, you can measure, not necessarily in
the same time frame that you might want, but looking at some things over
time where you can see if those kinds of initiatives, both at a Federal
level, a State level are having impact.

	So are you having impact on the big drivers of the causation,
particularly on the fatalities, and then also on some of the
well-identified injuries, and we will talk more, I guess, later about
health and exposures about how to get to that.

	And on activity-based measures, I would just say I think the Federal
reports now provide a wealth of information, but again, looking at some
of this more on an industry basis, broken out, that you are getting at a
better sense of where the programs are focused.

	And I know our colleague, Bill Borwegen from SEIU, raises this all the
time, but you've been at such a move to the service sector.  Health care
is being such a big industry with high numbers and high rates of
injuries, and just trying to get some sense of what kind of activity is
going on at an industry level and then beginning to look at what needs
to go on, but at least beginning to break out the information in a
fuller way at both the Federal and State level to get some data on the
table for beginning to assess it would be helpful.

	MS. UPSTON:  Thank you.

	Frances.

	MS. SCHREIBERG:  So I agree with a lot of the comments that have been
made.  I wanted to add that, again, I mentioned earlier this idea for at
least the activity-based measures that you do need to weight things in
relationship to the complexity of an inspection in order to be fair.

	The other thing that I was thinking in terms of outcome-based measures
is looking at the literature that has been put out there and having a
sense of whether or not any of that would be useful to these
outcome-based measures.

	One of the articles that just recently came out of a Harvard study of
the California program talked about the targeted programs that we had,
and it was a very positive analysis of the kinds of preventative
measures that resulted from these random targeted inspections.

	So if there's literature out there that talks about that and that has
something to do with the mix of investigations that an OSHA program
ought to be doing, including a good portion of targeted-type random
inspections, then maybe we ought to include that as one of the
outcome-based measures to look.  I mean, it's kind of a combination of
outcome and activity, but if you know that the outcome is positive from
these types of inspections, then maybe that's something you want to
incorporate into your evaluation.  And there's other studies like that
too.

	MS. UPSTON:  Thank you.

	Gilbert.

	MR. JACKSON:  I want to support you need both outcome-based measures
and activity-based measures.  I want to emphasize the need for
activity-based measures because of the employer's underreporting of
injuries and illnesses and questionable reliability of illness and
injury reports.

	MS. UPSTON:  Ron -- or Rob.  Excuse me.

	MR. MATUGA:  Yeah.  I think that, you know, you are correct that both
outcome- and activity-based measures are needed.  However, if you look
at sort of the outcome-based measures, those are really lagging
indicators, injury and illness rates.  Over time, that is going to tell
you whether you're doing better or worse, the number of inspections, the
percent of serious violations.  Those are all lagging indicators.  How
do you switch us around and really look to -- if you look at the best
companies out there in the world, they are looking at leading indicators
in terms of what's happening.

	Can you use some type of real safety and health metrics?  And I will
just give you maybe a couple of examples.  I understand that State Plans
and Federal OSHA have very little resources to do this monitoring, so
this may be something that you all could look at.

	The number of workers trained, that is going to tell you whether or not
that's improved safety performance.  The number of voluntary compliance
inspections or site visits through VPP, through Sharp.  You can also
possibly do the number of hazards identified through those voluntarily
compliance operations as well.

	One of the other things -- we did spend a little bit of time talking to
our members about this.  One of the suggestions that came up is, you
know, this is thinking outside the box.  How about a possible survey of
-- basically a customer satisfaction survey both with Federal OSHA and
with each of the State plans?

	I know that there is a lot of data collection requirements and the
Paperwork Reduction Act, but this may be able to get to your points
about how do you get interaction with the employees.  You can --
possible survey to answer some simple questions in terms of how the
performance in Federal jurisdictions versus the States are doing as
well.

	But I would encourage you all to really look at some of these leading
indicators, because I think that is going to really how we improve, and
many of those are going to be probably activity-based, which is not
really what Congress is looking at and what the other folks in this room
are looking at.  So it is really a balance between the two, but it's
also the way you present these findings as well that's going to be
critical.

	MS. UPSTON:  Thank you.

	Chris.

	MS. TRAHAN:  Well, I wanted to echo the concern about using injury and
illness rates in any way as a metric here.

	I do see some value in using fatality rates, specifically in the
construction issue.  If you look at it over several years, you can get
to those numbers and do some State-by-State comparisons that we think
are pretty accurate.

	But I also really think that the -- and this is not something, of
course, you're going to be able to roll out in phase one of this plan,
but when you think about innovation and you think about adoption and the
ability to actually make a difference in construction safety and health,
this agency and the State Plan enforcement folks have more power and
more sway than anyone else in the country to carry the message of what
is making a difference in specifically construction safety and health,
to bring the things that we are finding in the research, and bringing
them out and making everybody aware of them, because everybody pays
attention when OSHA says look at these innovations, when State Plan
States look at what is going on in their State and see that there is
something unusual and of specific industry.  I think that should be
included in the evaluation of that State to see what kind of innovation
that we're having, to see the adoption of programs that are innovative
by State Plan States that the Federal Government is undertaking.

	All of these things, I think should roll into an evaluation process and
shouldn't be underestimated in the impact they have, because outcome
measure is really, really almost impossible in occupational safety and
health because of a variety of factors, but the agency is uniquely
positioned to probably move, move it furthest out of everybody in the
field.

	MS. UPSTON:  Mary Lee.

	MS. HALL:  I just wanted to make a point, kind of following up on Peg,
but specifically about migrant farm workers or farm workers.

	And in terms of activity-based, many State Plan States will -- the
majority of their activity in this are going to be preoccupancy
inspections of labor camps, which really is -- there's no interaction
with workers.  Workers are not there at that time, and it doesn't ever
indicate how the campus actually used, and it certainly doesn't get to
field sanitation, which is also something when a complaint is made,
field san is usually looked at in addition to the housing.

	And so I think dividing that out, sort of segmenting that, and making
sure that there are post-occupancy inspections and work in the ag area
while workers are actually there is really important, and without that,
health and safety is sort of compromised.

	MS. UPSTON:  Jerry.

	MR. RIVERA:  Jerry Rivera with NECA.

	I also support the mix of the batch.  I think to go with one or the
other, again, it's skewed, but just to capitalize and get on Rob's
point, activity-based, I look at it more as a leading indicator, what is
the State program doing with the data that is gathering as far as to
develop resources for employers, employees, the training that it's
offering to the employee community, the collaborative efforts that are
happening on the ground.  I think those all should be measured, because
at the end of the day, that's what's going to keep raising the bar to
improve safety and health in the workplace.

	And then obviously, the outcome-based is one that we are -- we should
definitely revisit those data to see if they really are effective, but
that is probably not the time here or place to address that.  So I
support the mixed batch.

	One thing that Harry mentioned towards the beginning about a
standardized process and we talk about at least as effective, well, this
is a great start coming together for OSHA and State OSHA, but, you know,
how about a standard approach towards it, you know, having not only the
Federal, State, or safety professionals come together and develop what
is, what are some of these effective approaches, because I think we are
just throwing things out there, saying, okay, we think this is just, you
know, at least as effective, but it will give some consistency, and it
will give the industry a little bit more of an engagement in the process
to make sure that we assess the right things, because it takes a lot of
time and effort to put these things together.	And as we've identified,
you know, the training and education for some of the CSHOs or some of
the Federal employees being cut, so are we really bringing in some of
the top talent to put this thing together or can we make it better by
including an industry and maybe agreeing on a standard approach towards
instituting what is at least as effective.

	MS. UPSTON:  Thank you.

	Eric.

	MR. FRUMIN:  I think this dichotomy between outcome- and activity-based
measures is an unfortunate distraction, and it was exacerbated by the
IG's report last year, which was also somewhat uninformed.

	Without going into the details of why that happened, I'd like to
analogize this briefly to looking at the health status for the country
as a whole.  We have a couple of very crude measures of health status,
life expectancy, infant mortality, and, folks, you don't really want to
know where we stand on that list.  We're about number 22 or something
behind countries that have a lot less resources than we do.

	Would that be our basis for determining our health care system, our
health care program?  Of course not.  We insist on high quality
research, case control studies, want to make sure that drugs work.  We
want to make sure that therapies work.  We want to know who is getting
what kind of treatments if we're going to invest one-sixth of our GNP in
terms of health care or nutrition programs or whatever else.  So I think
outcome measures are a nice idea, and politically, they are very
important, but looking -- do we do the kind of rigorous evaluation, a
little bit of which is starting to happen that Fran referred to, the
controlled study in California, the study that the State of Pennsylvania
supported concerning Federal enforcement in the State of Pennsylvania by
The RAND Corporation?

	They revealed many lessons about critical activity measures.  OSHA owns
the activity.  Employers own the injury rates.  Let's keep that
distinction clear.

	If we are talking about what the OSHA Act can do, let's study carefully
in a way that we would hope scientists would study health care, how
these activities, these prevention activities are carried out, and
what's effective.

	MS. UPSTON:  Thank you.

	Frances.

	MS. SCHREIBERG:  Yeah.  I have to say at the end of this in terms of
looking at fatalities, if we are going to ever do outcome measures based
on fatalities, that nowhere does anybody look at the long-term effects
of exposures to toxic substances.  And if that's not included in a way
to measure the effectiveness of our program, we have left out all of the
health protection issues that we were talking about in terms of activity
monitoring.

	You know, from my point of view, having dealt with exposures to
asbestos for the last 20 years or 25 years in my work, I think that, you
know, I can just only say that it's just critical that we look at these
long-term effects and shortening of people's lives as a result of their
toxic exposures.

	MS. UPSTON:  Gary.

	MR. VISSCHER:  Listening, I guess I feel like there's been a bit of a
strawman setup here, which is that when we talk about outcomes, we're
talking about the national injury rate is such and such and how did the
States line up against that, and if they don't, if they're below the
mean, then they are not effective or something like that.

	I don't think OSHA has ever approached it that way, and I certainly
wouldn't suggest that they do, but to throw out the idea then that not
to look at how that State is doing in making progress on its injury
rates and fatality rates does not seem to me to follow.

	So I think the approach that OSHA has used in the past, which seems to
me to be a wise one, which is require each State to look at its own
numbers and its own outcomes and say how can we make progress, how can
we make improvements on this, and some of it trend analysis.  Some of it
is looking at particular issues within that State.  It may be if it's a
State with a lot of construction deaths that are really focused on the
Fall Campaign, you know, it is very important.

	There might be other issues.  Landscaping may be an issue in some
states.  But I think you have to be guided by outcomes, because that's
how you look at whether what you're doing is making any difference.

	I don't want to get sort of thrown out, the idea thrown out that the
outcome-based measures don't matter.  It's how you do them, and it's
obviously not that simple, but you do need to know.  And I go back to
what I said earlier, which is I think the whole government program
evaluation world has moved to try and figure out whether any government
programs make any difference.  So you need to have that included in what
you come out with.

	Thanks.

	MS. UPSTON:  Thank you.

	Shall we move on?  Question No. 3.

	Question 3

	MR. KALINOWSKI:  Question No. 3.  What activity and outcome-based
measures would you use to assess effectiveness as it relates to the
reduction in health hazards, which is a tough one, and the effectiveness
of the whistleblower program under Section 11(c) of the Act?

	MS. UPSTON:  Gilbert.

	MR. JACKSON:  The second, the effective of the whistleblower program,
the reason that -- I've been a whistleblower twice in my life, to give a
little background.

	Once in 1974, I was working on a construction site, and I reported
unsafe conditions, special ones had.  I was summarily fired, but I
decided to go to law school.

	And the second was in 2008 when I was working as General Counsel for
the North Carolina Occupational Safety and Health Review Commission, and
I reported asbestos violations in our workplace at the North Carolina
Medical Society Building.

	I did not know of the power of forces that were allied against me in
that.  The governor's brother was a doctor, lawyer, lobbyist, and member
of the Medical Society, and the Medical Society contributed $300,000 a
year to different State politicians, including the governor.  And I was
forced out of that job.

	So from my experience as a whistleblower, I've got 11 criteria, and --
well, whistleblowers get fired, as everyone knows, and blackballed from
their --

	But my first one I would look at, the number of whistleblower claims
filed, if you have a State that doesn't file many whistleblower claims,
it has a quelling effect on filing of the claims.

	I know that in some States, the workmen's comp attorneys advise their
clients not to file a retaliation claim, because they were never -- they
were found for th emergency.  So that's just a quelling effect if you
don't have a certain number -- that's my first criteria.

	And another criteria -- these are not in a good order, as they came to
you.  The criteria in the State whistleblower instruction manual as
compared to the Federal, I think in a CASPA that I filed, they found
that the State's whistleblower instruction manual was not as effective
as the Federal.

	The involvement of higher ups in the management in high-profile cases,
as mine was considered, and how much independence the investigators had.

	The number of discrimination complaints actually accepted, that's
another criteria I'm looking at.

	The number of discrimination complaints resolved favorably for the
employee, the number of discrimination complaints dismissed with
right-to-sue letters, the number of discrimination complaints taken to
court.  I know in some States, in some administrations, they had never
taken a retaliation claim to court -- never, zilch, zero.  And as far as
I know, that's never been a criteria that Federal OSHA looks at.

	The number of court cases resolved in favor of the employee and versus
those numbers resolved in favor of the employer.

	The State case law requirements, do they correspond to the
discrimination law and the case law in the Federal level?  I know
there's criteria that the States case law must be comparable to the
Federal interpretation of the regulations, et cetera, so that States'
Plans is at least as objective.  That's one of the --

	And number 10, I'm getting close to the end -- and require legislation
to overturn case law that's not favorable.  I mean, this is required in
Federal as a requirement anyways, but make it more important.

	Cover constructive discharge, have more criteria in requiring the
States to cover constructive discharge.  I believe the Feds cover
discharge more so than many of the States.

	And my last is the statute of limitations.  Increase the statute of
limitations.  Thirty days, I think that's the Federal statute of
limitations.  That's not very long.  Six months, a year, 2 years, 3
years.

	So those are the criteria that I look at from my experience, and I hope
you got a lot of information.

	MS. UPSTON:  Thank you.

	Anyone else with comments or responses to Question 3?

	Chris.

	MS. TRAHAN:  I was thinking about this term we keep using as "outcome,"
and everybody thinks it's the numbers, the fatality rates or the injury
and illness rates, but there's got to be more to it than that, and
perhaps instead of trying to identify specific outcomes for this round,
it would be worth thinking.

	It reminds me in the statute, I think, that it calls for NIOSH to be
consulted when determining the evaluation of State Plan States.  I think
I can look up the reference, and I don't know if they were involved in
this process with you all or not, but they have really wonderful
definitions for their researchers and measures.

	That as an organization that operates research projects with NIOSH, we
have got to report outputs and outcomes.  Those are the tow gold
standards for our researchers, really striving to say what have we found
in the research, what is the impact of the research, but specifically
what are the outcomes.  And we have specific definitions that we have to
meet in order to report that.

	Maybe that first step in this process would be to agree with the
definition of outcome is for the purposes of this evaluation, because an
outcome for one State may not be the same outcome for another State due
to the different industry circumstances of what's gone on in that State.

	And there could be a set of, you know, essentially hypothetical
outcomes that States can try to achieve and then be measured against
their ability to achieve their outcomes that are really unique to what's
going on in their States, and perhaps developed with the stakeholders in
their States would give an input for those kind of things, could have
some examples with Federal measures, but then, you know, there could be
additional ones from the States that are really important.

	MS. UPSTON:  Peg.

	MS. SEMINARIO:  Just to address the issue of health hazards, which is
obviously a tough one, in a lot of the activity around health hazards,
it has been driven by the issuing of standards.  And one of the things
we really haven't talked about a lot is looking at States in the way of
setting standards.

	This may be looking at it as to not as effective but sort of going
beyond, given how few health standards are coming out of the Federal
Government, particularly in the area of exposure limits or any area
here, and so looking at what's actually been done in the way of issuing
standards to address health hazards.

	And with the issuance of those standards, what kind of inspections are
done?  And again, not just looking at the overall numbers, but are there
breakouts as to how many of the health inspections are targeted in
different areas and different industries?  If we ever get any health
standards at particular issues -- I mean, a standard comes out.  You
want to have enforcement activity.  You want to have outreach activity. 
The whole point here is to reduce exposures.

	So is there information out there that you can be looking at with
respect to exposures and building into the system, going out and doing
monitoring in workplaces over time?  And again, none of this is like
immediate, but looking over time what has happened in States and Federal
agencies with respect to the kinds of exposures they're finding for
particular hazards.

	I don't think you could just address health in general but focusing on
some critical hazards, and as Chris said, there may be different hazards
in different States or higher concentrations. 

	The agency just came out last Thursday, Friday with a hazard alert on
silica exposure in hydraulic fracturing.  Silica is a common problem in
a lot of places, but hydraulic fracturing is in a lot of places but not
everywhere.  But maybe looking at what can be done here to see are we
being effective through outreach efforts here at reducing exposures to
silica that are within even some better range.

	So in this area, I think it really is focusing on particular hazards
and looking at a longer time frame than we have perhaps looked at in the
past.

	MS. UPSTON:  Thank you.

	Frances, I think Eric is next.

	MR. FRUMIN:  So we have got some handle on the question of targeting
with regard to injuries and the, quote/unquote, "safety inspections"
that are at least in concept intended to prevent injuries.  I would say
we're still pretty much in the dark when it comes to health exposures to
health hazards and the targeting of inspections related to health
hazards, not that we're unable to do it.  That just might be a
counterpoint because of an enforcement infrastructure that extends
beyond OSHA in many States over there.

	MS. UPSTON:  Frances -- oh, I'm sorry.

	MR. FRUMIN:  I think it's critical that as you move into this very
first phase of defining what Federal OSHA and the States consider
high-hazard industries, that you look extremely closely at the question
of exposure to health hazards, much more so than has been the case up
until now, and then attempt to use the next 5 years or whatever the
period of time is that flows from that to do the kinds of evaluations of
the agency's presence, not only enforcement but certainly that, to see
what's the effect of that presence.

	To simply say that we have a presence in these industries as a new
measure, but not to devote to that measure the evaluation that it
deserves would be a crime.  It would be such a lost opportunity.

	We've got a few important evaluations underway now.  The case control
study on the SST program, the one done in California on injury, and they
are all around safety inspections, but a variety of them have come up
with the kind of granular detailed look at the outcomes, what was the
results in terms of compliance, what was the result in terms of workers'
comp claims, what were the results in terms of OSHA recordables.

	We are beginning to get finally a literature, a research method, some
resources to make it work and know what the hell we're doing with regard
to safety.  If you are going to assign high-hazard categories to health,
I don't see how you can avoid doing that.  If you are going to create
this as a benchmark, please assure that you have an evaluation component
up front to go with it, so that you can learn something from it within a
few years.

	MS. UPSTON:  Frances.

	MS. SCHREIBERG:  I was going to add to the comments on the health
issues that, yeah, these are tough to try to figure out how to get a
grip on, because there are so few of these inspections that actually
occur, because we don't necessarily have emphasis programs either at the
State level that really have analyzed what is going on in the State
regarding health hazards.

	But from my perspective, there's two things that I see, and of course,
this may not be something that is ever going to be a part of the
evaluation, but I'll throw them out there.

	One is media.  I think you got a reasonable bang for your buck when
cases -- and here, I am looking at health cases are publicized, and part
of the reason that I think health cases are particularly susceptible to
getting some traction through the media is because they relate to
environmental concerns.  So those toxic substances that start in our
workplace, seep out under the door, up the chimney, down the drain, and
become environmental problems, which gets a lot more traction out there
in the public.

	So evaluating our health cases and whether or not the State Plan
Program is issuing press releases and getting the word out, I think
that's important.

	And the other thing is that I started my OSHA career related to doing
criminal prosecutions of health cases, and again, not very many States
have that, have provisions that allow them to do that, but it sure makes
a difference.  So I will just toss that out as well.

	MS. UPSTON:  Thank you.

	Any other comments or observations?

	Gary.

	MR. VISSCHER:  Are we permitted to ask questions?

	MS. UPSTON:  We will find out, won't we?

	[Laughter.]

	MR. KALINOWSKI:  Are we required to answer them?

	[Laughter.]

	MS. UPSTON:  That was my point.

	MR. VISSCHER:  And I couldn't let Rob sit through the whole meeting and
not ask.

	Is the 11(c) program right now part of the State evaluation?  There are
two measures listed on the proposed.  Are these similar to -- if the
answer to the first question is yes, then --

	MS. UPSTON:  Well, let's find out.  Is the first question -- okay. 
They are (c).

	MR. VISSCHER:  Then are these the kind of measures that are currently
used?  I don't know what is currently used.

	MR. KALINOWSKI:  Those are two of them.

	MR. VISSCHER:  Are there others right now?

	MR. KALINOWSKI:  There are others like percent meritorious cases and
things like that, yes.

	MR. VISSCHER:  How is that measured?  Percent meritorious, like a
positive outcome or something?

	MR. KALINOWSKI:  Yes, that were actually found -- where either a State
or a Federal OSHA found that there was a case for discrimination.

	MR. VISSCHER:  And I notice that the goal or the range under the
proposed would be 100 percent completed in 90 days.

	MR. WITHROW:  That is because the statute says it.  We argued about
that, but if you are going to have a measure like that and the statute
says it has to be 90 days, you can't put a goal that's more than 90
days.  That is why we threw in the second one, to get at an idea from an
efficiency standpoint just how far over 90 days are you or under 90 days
are you.

	MR. BARAB:  Yeah.  Within 90 days, kind of threw up the question when I
first looked at that, I said if we're actually using as effective as a
basis, we are hardly in a good measure to compare against.

	MR. VISSCHER:  I was going to ask how was Federal OSHA doing.

	MR. BARAB:  Right, exactly.

	MR. WITHROW:  He doesn't want to give the exact --

	[Laughter.]

	MR. BARAB:  No, we can give you the numbers, but they aren't anywhere
close to actually, you know --

	MR. KALINOWSKI:  About six States meet that 90 days.  Whether that
makes them more effective or less effective is another question.

	MR. BARAB:  And we are looking at those measures here too.  We don't
want to also have measures that actually encourage basically a negative
outcome, because we don't want to pressure our people or States to
finish up cases just to reach that measure and rush them to completion
before they're really there.

	MS. UPSTON:  Okay.  Eric?

	MR. FRUMIN:  No.

	MS. UPSTON:  Anyone else on Question 3?  

	Did that answer your questions?

	MR. VISSCHER:  Yeah.  Thank you very much.

	MS. UPSTON:  Okay.  Then let's move on to Question 4.  Doug, can you
elucidate on this, please?

	Question 4

	MR. KALINOWSKI:  If OSHA and the State Plans develop a core set of
effectiveness measures that both OSHA and State Plan programs must meet,
how should OSHA determine the range that State Plans must meet for
individual measures, and how should OSHA work with the States to address
measures that fall outside of these ranges?

	MS. UPSTON:  If you could take those two questions sort of one at a
time.  If you want to respond to both, then just be clear sort of which
one first and second, so that we can kind of track whether they are
getting answers to both of them.

	Let me go to Harry and then Frances.

	MR. PAYNE:  I see the proposal that it would be a common goal between
Federal and State OSHA programs to be one of the more heartening parts
of --

	MS. UPSTON:  Can you speak up just --

	MR. PAYNE:  I'm sorry.

	I see the fact that we are moving towards a common shared goal to be
one of the more heartening things in this process, and I highly
encourage it.

	I do think it's important, though, in the same time insist upon
transparency and communications, some of the things that the Federal
OSHA program has done about publicizing the harshest industries have
been, I think, very helpful.

	The Federal OSHA program has done about publicizing the harshest
industries have been I think very helpful.  It is kind of like when you
go up and buy a hot dog, and the health inspections stickers behind the
person who is offering the hot dog, it tells you something, but we can't
say that about the company that actually made the hot dog.

	And so I think it important to publicize who is doing a good job, who
is not, and to give a State points for that effort.

	I think to work together, if we're working on the same standard, it
includes the likelihood that we will share best practices if we are
trying to meet the same goals.

	We can share the common research if we are working against the same
standards.  I just think that -- and also, I think in scoring, I don't
think anything should be pass/fail.  I think, ultimately, there has to
be at some point, but I think to have degrees of how far you are off
some standard or some median should be a reason to intervene or a reason
to ask why, but -- and that score should be broken down by industry
type, by illness, by whatever way you can do it to see who is doing a
good job.

	So if Idaho is doing a great job on something that I am not doing a
good job, I would like to know that, and so I think breaking it out in
as much detail as we can, having transparency in the process, and then
the scoring and communicating to the media is critical.

	I think you should give States extra credit for some things, like using
epidemiological mapping, using workers' comp data, using other databases
to predict where problems would be.  While we can't make them do it, I
don't think, we can give them sort of extra points for that.

	But I do think the core should be a common set of goals and
expectations, not with a pass/fail notion, but with a highly scored
improvement notion and a reason to understand who is doing it well.

	I'm sorry that was so long.  I apologize.

	MS. UPSTON:  Frances.

	MS. SCHREIBERG:  So I'm just going to talk about the second one, and I
think that, again, I am going to use California as an example.  And I
think it was a good example, and the key element in the oversight that
the Federal OSHA folks had on the California plan was the involvement of
workers and the involvement of worker representatives of the unions, of
worker centers.

	And I think that this is not something, you know -- the question here
is how should OSHA work to address measures that fall outside, and I
want to push it back to how should OSHA start the whole process of doing
the evaluation once you all have the criteria developed, and that is to
sit down with the employees and their representatives who are affected
by these programs, and to get input from them and to bring them along in
this entire process, because I think that what you do afterwards has
also got to be driven by what the worker needs are.  They are the people
who are supposed to be protected by this law, and I think that there are
-- from our point of view, we guided Federal OSHA towards the appeals
process, which was a horrible mess in California, and we were able to
then make changes through legislation and through, you know, continuing.

	We are continuing to do changes through regulations, and we are still
stuck, by the way, in some areas.  And maybe that means we will file a
CASPA, but if we weren't involved to begin with, we wouldn't be involved
later on to get to your question of measures that fall outside your
ranges.  So that's kind of my emphasis on this, is to look at employee
involvement all the way along.

	MS. UPSTON:  Peg.

	MS. SEMINARIO:  One of the things that has been helpful in this process
is the amount of transparency that has gone in with just putting the
reports up on the Web, making them available and accessible, because I
think when you look at sort of the history of activity here, a lot of
the move on State Plans, as Harry had said earlier, response to
tragedies.  You don't want to have to be in a place where you are only
addressing problems in a crisis.  The whole point of this should be
trying to have the States and Federal OSHA improve it.

	And to go back to something Fran said initially, it wouldn't be a bad
idea to come up with a sense of -- for both the Feds and the States --
what do we think effective is, and putting aside resources or whatever,
but if we wanted an effective safety and health program, what level of
oversight, coming up with some sense of what should it be, because
obviously so much of this gets driven, almost -- a big determinate is
what the resources are both at the Federal level and State level to
devote to these activities.

	If you go back, as Jay said, and you look at the benchmarks here and
how they were developed, they really were developed initially based upon
an industry mix, the number of workplaces, the frequency of inspection,
how many inspectors you needed.  That was never done for Federal OSHA.

	So I think getting some sense of overall what do you want it to be
effective but some better clarity as to what the Federal benchmarks are
and more transparency and consistency of what the Federal program you
are matching it against and how that is playing out in the regions and
area offices -- I mean, we delve into a lot of this stuff with our
annual report, but having some consistency across the programs, both
Federal and State, and making that data accessible in an easy way, that
you can get a pretty clear picture easily as to what is going on, and
what are the problem areas that need to be addressed would be very
helpful.

	And it would also be interesting to know what's the range right now,
talk about what should the ranges be.  If you had Federal benchmark,
what is the range that you are seeing amongst Federal, State, and some
of the key indicators now?  How broad of a distribution is it, and what
needs to be done to make that distribution either narrower on the back
end or even having the States become leaders and out there further ahead
doing more than the Federal Government?

	MS. UPSTON:  Thank you.

	Gilbert.

	MR. JACKSON:  I want to address the second part of the Question 4:  How
should OSHA work with the States to address measures that fall outside
of these ranges?

	I think the first step would be cooperation to see if the State will
make the effort to make those changes, and if that doesn't work, I think
that the Federal law should be willing to use the statutory and
regulatory tools they have when this happens.  And that is if they don't
make the change at the recalcitrant, take over concurrent jurisdiction. 
Don't be afraid to use it.

	And the second thing would be, if that doesn't work, then revoke the
State Plan.  I've seen very strong reluctance on OSH to do either one of
those two, and it may be because of the political climate.  I don't
know, but these are the tools that OSH has to force States to comply. 
Don't be afraid to use them.

	MS. UPSTON:  Jerry.

	MR. RIVERA:  This is Jerry Rivera with NECA.

	First of all, I want to start -- you know, we've all shared some ideas,
but I also want to acknowledge that this is a huge step in the right
direction on behalf of Federal OSHA and the State programs to work
collaboratively on this front.  I think that's the right path.

	The agreed-upon measures should look at somewhat of a consistent
approach, and I know we're talking just about State programs, but
whatever is agreed upon at the table should really apply to both State
and Federal, so that everybody is measuring themselves up to the same
standard.

	If there is any change that occurs that impacts a State program, I
think, again, OSHSPA should be the group that should be communicating
the dissemination among all of the States.  And again, I want to
capitalize on that also because of the fact that some States develop
some rules that are a little bit above the benchmark, which is great,
but there should be somewhat of a concerted effort to drive that across
other State-run programs.  And at the same time, for OSHSPA to look at
that internally and say, "Look, this is probably not a good idea for
other States to adopt, because it was not as effective in one State." 

	Again, I want to get OSHSPA on the State front that flexibility to
institute some of those changes and evaluate programs, so that they have
that communication directly with OSHA.

	And on the Federal front, maybe we can use this as a cleaning curve. 
Maybe OSHSPA could have the opportunity to evaluate a Federal program,
if that's even allowed.

	But again, I think I agree -- and the transparency and holding each
other to the same standard versus just saying, "Hey, we're going to come
in.  We're going to evaluate you.  Yeah, we're including you here, but,
you know, it ends there."  I think it works both ways, and I think both
will benefit.  At the end of the day, again, the employees are the ones
who benefit from this collaboration.

	MS. UPSTON:  Thank you.

	Eric.

	MR. FRUMIN:  At the outset, Doug Kalinowski talked about the importance
of these measures as kind of clues for looking further, and I think
that's going to be an important lessons going forward.

	These are very summary tools, and we could get fixated on whether it's
exactly the right number or should be a little different, but we are
hobbled by the fact that, as Jordan outlined in the beginning, the
evaluation has been very hands-off for a long time, and it was only in
response to a terrible disaster in which many people died -- and an
enterprising young reporter decided to lift the lid on it and shake the
dickens out of the powers-that-be in Nevada, and some other political
things changed around the same time -- that we're even here today with a
completely different approach to monitoring.

	Case file reviews are very important, and thank goodness, OSHA started
doing them, but it's not enough.  Hands-on evaluation of compliance
officer competency, actual pairing up of inspectors would be a very
important next step, and there are many other ways to dig down, as Doug
Kalinowski referred, to dig deeper, to get to the bottom of these
problems.

	So I would say however OSHA and the States together answer the first
question, bear in mind that one needs to have these measures serve
effectively as windows, doors, whatever you want to -- clues for looking
further.  Don't create a measure that's the end of discussion, but
create a measure that allows you to look further in the sense that Chris
talked about, what are the root causes.  How do we learn from what this
problem is in one State across multiple States?

	If you are then able to do that, to take these measures as clues, to
dig deeper, then the results of that could be very revealing, not only
for the agencies, for the governors, for State legislatures, for the
media, whatever, and create the kind of presence and awareness on the
issue that can drive some change, even where the politics are very
helpful.

	And I think if you can keep that kind of perspective open as part of
what you are thinking about, then you won't be locked into this terrible
dilemma that Gil just talked about where the choice is either the
nuclear option of pulling the plug or continuing an ineffective
hands-off enforcement that leads to the next Nevada or the next handling
or the next disaster.

	So give yourself the ability to dig deeper and make sure that there is
transparency along the way, and you get a lot of help.  You won't be
hamstrung.

	MS. UPSTON:  Thank you.

	Diane.

	MS. BROWN:  Very shortly, because I'm not quite as elegant as Eric is.

	When you realize that there's issues at a State Plan level, realize too
that the employees who depend on that State Plan lose a lot of
confidence and feel that even though there is State Plan coverage, they
really have nowhere to go.  So that is important to address those issues
very openly, very transparently, and with some due force.

	On the other hand, revoking a plan affluently kills coverage for public
employees because now they're not covered anymore.  So we are not
interested in seeing State Plans having their coverage pulled.  We would
like to see them remedy the problems that they have, realizing that some
of the problems that all these States are having is a matter of funding.
 Can't do a whole lot when there is no money.  So that that is a core
issue I don't think any of us in this room can fix or even discuss out
of a problem, that it has to be at some level, at a national level, that
they are willing to put money into safety and health and the people who
enforce it.  And that's a conversation for a different day.

	MS. UPSTON:  Peg.

	MS. SEMINARIO:  Just one follow-up to what I said earlier.

	I think the Fed OSHA already does this in its evaluation, but I think
when you are looking at States that are outside the ranges that you are
establishing, that is also makes sense to give some emphasis as to
whether the problem is really, really serious, like it's really, really
bad, like critical, instead of where it falls in a degree of
seriousness, and also in terms of priorities as to what really needs to
be dealt with first, because clearly there are certain problems out
there that have a much more immediate impact.

	If you don't have any inspectors, suddenly your inspection floors isn't
-- you don't have anybody conducting inspections.  Even if you get all
the standards and all the other things, you've got a pretty severe
problem.  So I think some way of ranking these or some warning system,
first, what are the critical aspects, the point of criticality would be
considered maybe a useful thing to think about.

	MS. UPSTON:  Gilbert.

	MR. BARAB:  I think the points covered, if you don't have a State Plan
State -- and I was a State employee, but an ineffective program for
State employees, you know, is that any worse than no program?  That's
one issue.

	And the other is that a threat to take over either a concurrent
jurisdiction or revoke the State Plan can have a motivating effect on
the legislator to take, to take action, and I think that in some States
to remedy the problem, either by transferring the OSH division to
another agency or passing stronger legislation.

	That happened with the Hamlet, with the Hamlet fund, the same
concurrent jurisdiction taking over.  It had never gotten final
approval, I don't think.  The legislature stepped forward, and you
created position, the money for new positions, and the State's program,
Occupational Safety and Health Program, had the benchmarks that were
required of it, and they approved their outreach for safety and health
and for affecting employees of the State.

	So I think a credible threat would not necessarily lead to a taking
over of the State program, but it has to be a credible threat.

	MS. UPSTON:  Any other last comments on this question?

	[No audible response.]

	MS. UPSTON:  Thank you, Gilbert.

	Going once, going twice?

	[No audible response.]

	MS. UPSTON:  Okay.  Doug?

	Next Steps

	MR. KALINOWSKI:  Well, I can't thank you all enough for either
listening in or speaking up, and you all realize how complicated this
is.  I salute the States and all participating and working on this
together.  I think that's the goal of everything we are going to be
doing from now forward.  What are the next steps?

	Well, just so everybody knows, written comments will be received
through July 6th.  The transcripts of this meeting will be prepared and
on our website this Friday, which is the 29th of June.  You all will
have the opportunity to look at those and study those again.

	The work group is scheduled to meet on July 18th, I believe.  We will
look at all the comments and try to move forward and solidify some of
these things.  We have taken your comments and any comments received,
and our goal, 10 days, within the directorate is to get all of those
comments summarized in advance, so the work group can deal with them in
a constructive manner.

	Something else you ought to keep in mind in evaluating States' plans --
and I think Jay said it earlier -- the area office of State Plan and
OSHA has had a lot of turnover.  So one of the goals, one of the
difficulties we all deal with is getting consistent evaluations.  They
come on, they get evaluated, the area office, so 27 State Plans and
territories are evaluated across the country.

	So one of the key things that we have to work on doing, which we are
working on right now, is revamping our monitoring and training program
for our own OSHA people to monitor the State Plans and allowing the
State Plans to be part of that training too, so they can understand how
they should be monitored and will be monitored, because there's more
monitoring than just these 15 measures or just looking at the strategic
plan.

	I mean, part of the monitoring, if you have an issue and you want to do
case file reviews, how do you look at those case file reviews?  How do
you study those?  How do you prepare them?  How do you put together
information, so that if there are issues with those case files, you have
a good way to get back to those States to say, "Hey, this is what we
found.  This wasn't isolated," so that we would find a pattern of
things?  And how do you collect that information?  I think the long-term
goal is to figure out how to work together.

	Somebody said this already, and it's one of my favorite terms.  It's to
make a difference.  How do we make a difference on a Federal level?  How
do we make a difference on each State Plan?  And that should be our goal
to do that.

	Jordan, do you want to say anything?

	MR. BARAB:  No.  I just want to -- nothing much.

	[Laughter.]

	MR. BARAB:  I will start off saying no, and then I start blabbing away.

	But I do want to thank you for coming here.  On the one hand, this
hasn't been an easy process.  It's been a very necessary process, I
think a very profitable process, but again not easy.  And I appreciate,
certainly appreciate the efforts of the States and OSHSPA in this.  When
we look at where we are now and where we began this process, I think
we've made enormous strides, and I think as the discussion today
indicated, we still have a long way to go.

	We are under no illusion that we are almost there or that we're even
getting there now, but if we keep on with this process, more or less as
a stage process, then I think we will eventually at least be making
progress, making things better, and working toward that goal where we
actually have a process that everybody agrees with and that actually is
focused on making mistakes, at least as effective as the Federal
Government, while hopefully making all of us more effective along the
way.

	Again, I appreciate this.  I think we have a comment period that
remains open.  Please supplement with written comments, and we will
certainly take all that into account.

	MR. FRUMIN:  Just a process question.  So do you have a milestone in
mind for what happens with these and when, understanding that there are
many issues that are never going to be part of this, others that might
be part of a next phase?  What next?

	MR. BARAB:  Well, this phase, I think we'd like to have kind of this
phase finished and ready to implement by the beginning of the next
fiscal year, Federal fiscal year.

	MR. FRUMIN:  Good.

	MR. BARAB:  That's always a good time to implement things.  So we'll
see what we can get finished and agreed to at that point, and then we
will immediately continue working on the next phase.

	MR. FRUMIN:  Great.

	Wrap-up and Adjourn

	MS. UPSTON:  So we are adjourned.  Thank you all very much.

	[Whereupon, at 12:50 p.m., the Stakeholder Meeting concluded.]

 

 

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