Minutes of November 28, 2006

U.S. Department of Labor
200 Constitution Avenue, N.W., Room N4437 ABC
Washington, DC

CATHERINE L. THOMSEN Public Representative
ALAN MCMILLAN Public Representative
DOUGLAS KALINOWSKI Public Representative
VICKIE WELLS Public Representative
JOSEPH HOLTSHOUSER Management Representative
JIM SWARTZ Management Representative
EMORY Knowles III Safety Representative
JAMES STANLEY SafetyRepresentative
KEVIN SOMMERS Labor Representative
JAMES BLESSMAN Health Representative

Acting Chairperson Catherine Thomsen called the meeting to order at 9:13 a.m.. She welcomed everyone to the meeting and conducted a roll call. She noted that Julia Faucett was unable to attend. There is a labor representative vacancy. One of the labor representative slots is currently vacant. She also welcomed Douglas Kalinowski as a new member. Mr. Kalinowski stated that he was from the State of Michigan and the Director of Michigan Occupational Safety and Health Administration, directly involved in the safety and health of consumers. Each member formally introduced themselves. The Committee approved the July 14, 2005, minutes. Approximately 65 members of the public attended the meeting.


Assistant Secretary Edwin Foulke thanked the Committee for their commitment to serve on NACOSH. Dr. John Howard also thanked the Committee for their service and thanked Mr. Foulke for convening the meeting. He offered himself and his staff to answer any questions during and after the meeting.


Mr. Foulke stated his commitment to getting the advisory committees set up and running. He noted that the NACOSH charter expires in February and that the Agency is working on getting it signed. He also noted that the terms of several members would expire in February 2007. He wanted to make sure that the vacancies are filled. He stated his commitment to make sure that meetings are held twice a year as required by the charter.

He said that there were several new appointments: two new Deputy Assistant Secretaries-Bryan Little and Don Shaloub; Chief of Staff Gabe Sierra; Director, Directorate of Construction Steve Witt; Director, Directorate of Standards and Guidance Dorothy Dougherty. He said that there were two regional office positions open and he would be advertising shortly.

OSHA published the hexavalent chromium rule. The agency is preparing guidance documents on avian and pandemic flu. OSHA launched its VPP mobile workforce demonstration program for construction. OSHA revised the respiratory protection standard to add the definitions and requirements for the assigned protection factors and maximum use concentration. The Agency launched a five-year teen summer job safety campaign to focus on teen safety and health. OSHA published a new 68-page fire service manual to help designers of buildings on the fire protection systems. The fire protection standards for shipyards were updated.

He announced that OSHA is working with the National Highway and Safety Transportation Administration to publish new guidelines to help employers and employees reduce motor vehicle crashes. The agency is continuing to add to the Hispanic outreach efforts-PSAs, Spanish publications, web page, and alliances with Mexican consulates around key U.S. cities.

OSHA has developed a new safety and health topic page on chemical food flavoring and more than 150 strategic partnerships; 450 active alliances; 1,000 SHARP participants; and more than 1,600 worksites nationwide operating in VPP.

Mr. Foulke discussed the senior leadership meeting in Hunt Valley, Maryland, to help develop and look for the agency's future leaders. He noted that 65 percent of OSHA's current leaders could retire within the next six months. He said the meeting focused on six areas: 1) continuing improvements in workplace safety and health; 2) establishing OSHA as the resource for workplace safety and health assistance; 3) improving professionalism; 4) enhancing the transparency within state plans; 5) expanding compliance assistance; and 6) helping employers become successful.

He said fatalities this past year dropped from 5,764 in 2004 to 5,702 in 2005. He said, however, that one fatality is too many. The agency will continue to focus on that and will work on trying to reduce that number even more.

Injuries among Hispanic workers increased by two percent in 2005, although the overall rate for Hispanics dropped because of the numbers of Hispanics in the workforce had increased by a significant amount.

The number of women fatalities was down by three percent and private construction was down by four percent. With respect to the occupational injuries and illnesses, the incident rate reduced from 4.8 in 2004 to 4.6 percent in 2005. The Agency exceeded its federal inspection goal for 2006. The goal was 37,700; the actual total for FY 2006 was 38,254. The state plans inspections were slightly down in 2006, but had a significant number of 56,343. The total number of significant cases was 101.

He discussed the enhanced enforcement program-instituted in FY 2004. He said that from 2004 to 2006, there were approximately 1,385 enhanced enforcement cases. He reported that in FY 2006 there were 1,791 new whistleblower cases.

He reported that the OSHA website generated about one billion hits in 2006. He stressed that all the information is free. He wants to reach the people who need OSHA's help most. OSHA's overall program trained 441,000 persons. The OSHA Training Institute (OTI) trained 2,013 and the OTI educational centers trained about 25,000 persons. He stated his commitment to making the OSHA Training Institute the best in the nation. He mentioned that OSHA's 800 number is averaging about 2,200 calls per month; e-correspondence, about 462 emails per month. He said that powered industrial trucks and bloodborne pathogens are the two main issues that are most frequently raised in calls and emails. He said that compliance assistance specialists are available to help.

Regarding cooperative programs, all have increased over the past year. The agency will continue to focus on compliance assistance because they help small and medium-sized employers become safer and reduce their injuries and illnesses which reduce workers' compensation costs. He said that reduced workers' compensation costs make businesses more profitable and allows them to be more competitive and it keeps jobs in the United States.

He said that part of the government's job is to try to help all citizens to be successful. The Agency is focusing a lot of time helping businesses become successful which will keep jobs in this country. He mentioned the tremendous economic impact that the VPP program has had on particular companies. He listed that the U.S. Navy has three VPP approved shipyards and that Texas City, Texas, instituted a tax incentive and tax code for companies that participate in VPP.

Regarding standards and guidance, he said that a number of things will come out in 2007. He said that OSHA is very involved with NIOSH on the pandemic flu.


Dr. Howard said that NIOSH is now managed as a portfolio of 30 sector-based research-to-practice programs, and he encouraged everyone to review the NIOSH website. He noted that the centerpiece of the portfolio is the National Occupational Research Agenda (NORA) which was just launched for the second decade-2006 to 2016.

Dr. Howard encouraged the Committee and the public to participate in one of the sector research groups or councils. He noted that the transportation sector group would be meeting on November 29.

He said that the Committee needs to address transportation, Latino outreach-especially in construction-and emergency response back to the table where they left off in July 2005.

Dr. Howard said that regarding the program portfolio, one of the serious important issues that need to be addressed when looking at a program is whether or not it is working. NIOSH has launched an evaluation of each program, through an independent evaluation mechanism. The gold standard for that activity is the National Academy of Sciences. The evaluators are chosen independent of the agencies that are requesting an evaluation. All sector programs and a substantial number of NIOSH-managed programs like traumatic injuries, personal protective equipment through a National Academy review of the next five or six years. He discussed the evaluation report from the National Academy for the first NIOSH-managed program-hearing loss prevention program. The National Academy panel is asked to evaluate the program from two perspectives. One, the relevance of the program and how well the program meets the needs of the real world problems. Second, it evaluates its impact and whether it is having the impact that it should in the outcome sense. The hearing loss prevention program received a three out of a total of five points and a four out of five for impact. He reported that the respiratory diseases program and the agricultural sector program will be done in 2007.

Dr. Howard reported on NIOSH's work-life initiative, which is an effort to integrate traditional health protection into the new area of health promotion, where cost of health care is a significant driver, personal lifestyle issues, things that the National Safety Council has spent a lot of time in, home safety, recreational safety, highway safety, and to bring those two worlds together, so that we can actually have a holistic view of the worker as opposed to our traditional work-related view. NIOSH will hold its “Preserving and Promoting Worker Health Conference” on September 10-11, 2007 at the Marriott Crystal City Gateway.

NIOSH awarded two centers of excellence grants to promote a healthier workforce to the University of Massachusetts-Lowell and the University of Iowa, School of Public Health in Iowa.

Dr. Howard said that NIOSH and OSHA are working closely on pandemic influenza preparedness. NIOSH formed an HHS-wide workgroup, which was liasioned with OSHA, and on October 17, 2006, posted on which is the website the government uses for pandemic flu information, a new document entitled “Interim Guidance on Planning for the Use of Surgical Masks and Respirators in Health Care Settings during an Influenza Pandemic.” The guidance makes recommendations for protection of health care workers only. NIOSH is planning to issue interim planning guidance for the use of surgical masks and respirators in non-occupational community settings during an influenza pandemic.

NIOSH is undertaking a review of all research needs in asbestos and fiber toxicology and producing a white paper about this issue for research, for knowledge gaps and research needs, especially those relating to naturally occurring cleavage fragments, nano-sized fibers.

Another initiative is prevention through design. He said that anticipating and designing out potential occupational hazards is the most effective way to prevent hazards occurring and a number of agencies in the public and private sector have had initiatives in this area. A workshop on the issue will be held in April 2007 and NIOSH is looking actively for partners.

NIOSH is building on a 2002 report compiled by the National Safety Council and partners in industry, government and academia on core curriculum on occupational safety and health, which would be suitable for high school students. The curriculum will be available soon on NIOSH's website to educators and employers nationwide.

Dr. Howard announced that NIOSH would be holding an international conference on nanotechnology as it affects environmental and occupational implications and applications on December 4. In addition, the second edition of their electronic nanotechnology document is available on their website.


Sid Soderholm (NIOSH) gave a presentation on the National Occupational Research Agenda (NORA). He said that NORA is the centerpiece of many NIOSH activities. The successes of the first decade of NORA are many. There were 21 priority areas identified. The second decade of NORA was structured, based on conversations with a number of groups, including NACOSH, about how to improve on the impact during the first decade of NORA. The focus turned to sector-based partnerships. The idea of NORA is a national agenda. NIOSH will work on those priorities that it can help. It's a national agenda where NIOSH will work on the priorities that it can, but others are needed to step up the work on other priority issues where the funding and the people are there and the expertise is there.


Dorothy Dougherty, Director, Directorate of Standards and Guidance, provided an OSHA standards update. She presented slides with the names and telephone numbers of health and safety professionals in her directorate, as well as projects that they are working on. The assigned protection factors standard became effective on November 22. It completes the respiratory protection standard; it provides information on the different classes of respirators; and it indicates what level of protection one can expect to achieve.

On the guidance side, some of the big projects are avian and pandemic flu. OSHA is in the process of developing guidance on pandemic flu. The Agency published its final standard on hexavalent chromium and the start-up date was November 25. There were a number of parties that filed a petition against OSHA in the Court of Appeals in the 3rd Circuit for review of the final standard and they're going before the Court early 2007. One of the petitions from the Surface Finishing Industry Council has been resolved and OSHA entered into a settlement agreement in October. They have agreed to a faster implementation of engineering controls in exchange for regulatory relief of certain respiratory protection provisions of the standard. There are three other petitions that OSHA is evaluating.

Ms. Dougherty said that silica guidance is currently going through review. OSHA received a petition for an emergency temporary standard (ETS) on diacetyl. Some employees who work with the material have developed a serious lung disease call bronchialitis. The Agency is evaluating the ETS.

In the Office of Physical Hazards an advanced notice of proposed rulemaking (ANPR) was published on the hazard communication standard, Globally Harmonized System of Classification labeling. The comment period ended on November 17. A request for information on ionizing radiation was published in the Federal Register and a series of stakeholder meetings will be held. An ANPR on the Standards Improvement Project (SIPS) was completed and is undergoing OMB review.

A variety of ergonomic guidelines have been completed-poultry processing, retail groceries and nursing homes. The next area will be shipyards.

The Office of Safety Systems is working on a proposed rule for explosives that's currently going through final review within the Department and it will be on its way to OMB shortly. OSHA is planning to amend the explosives and blasting agent rule (29 CFR 1910.109) to reflect technological and safety advances made within the last 30 years.

There is a multi-phase project to update the consensus standards. In addition, on the guidance side, OSHA has completed projects on fire safety tips and motor vehicle safety. On the engineering side, OSHA published a proposed rule addressing operating maintenance and repair of electric power, transmission and distribution, installations, subpart B. The agency is also developing a final standard on electrical standards subpart S which is the general industry electrical standard. OSHA is also working on a variety of guidance products, such as slings, de-mounting and mounting procedures for truck and bus tires and the multi-piece rim matching.

The Office of Maritime published a direct final rule for the NFPA standards in shipyard fire protection.


Keith Goddard, Director, Directorate of Evaluation and Analysis, shared a copy of the Department of Labor's strategic plan for 2006 through 2011. He directed the group to the indicators where the Department would be measuring OSHA's effectiveness between 2006 and 2011. He also noted that the following look-back studies are in progress: methylene chloride, lead in construction, and excavation.

The cranes and derricks advisory committee-subcommittee of ACCSH-was formed in 2003 and they reached consensus on a negotiated document in 2004. The draft proposed document included the following sections on the scope of the proposal inspections: operator certification and qualification, signal person qualification, power line safety and assembly and disassembly of cranes. He addressed those areas and talked about the preliminary initial regulatory flexibility analysis and the analysis of estimates, and how OSHA came up with interest in sectors and economics dealing with different sectors.

Under the Small Business Regulatory Fairness Enforcement Act (SBREFA), OSHA is required and authorized to develop analysis and set thresholds for doing further analysis based on the impact of these revisions, the economic impact to certain industry-size classes.

Alan McMillan requested more feedback on how things are moving forward in OSHA, particularly on motor vehicle safety. He was interested in how OSHA was getting the guidance document on motor vehicle safety into the employment community. He wanted to know how OSHA is incorporating any of the guidance either in the federal sector motor vehicle programs in the report that NACOSH did 18 months ago. The report focused on a model program in the federal agencies that can then serve as a model throughout the private sector.

Keith Goddard mentioned the draft operating plan with over 100 elements of things that regional administrators are doing to address the agency's priorities, including motor vehicle components. He said he'd be happy to provide feedback.

Jim Stanley said that the Committee never really gets to do what it's charged to do-advise OSHA and NIOSH on regulatory matters that affect the agencies. He said that more dialogue is needed and he wants to sit down in a workshop and come up with two or three issues where NACOSH can advise.

Catherine Thomsen said that in terms of being more effective as a group it is important to have a little more continuity. She's looking for a mechanism for us to think about what those topics are that are of interest and forming some subcommittee to be able to explore an issue and come up with some specific questions or recommendations for the agencies to respond to.

Dr. Blessman said that the bigger question is how we institutionalize the process, both in terms of frequency of meetings as a measure of performance, making sure that the directors when they present what is going on, make a statement about where they need support. This should be a regular item. The directors should have some thought to where the challenges are and where NACOSH may be able to help them.

Kevin Sommers said that the advisory committee is not doing much advising. He wants an opportunity to have some feedback.

Vickie Wells said that the Committee receives lots of information, but not much opportunity to meet as a Committee and do work and make recommendations.


Paula White, Director, Directorate of Cooperative and State Programs, provided an update on programs in her office. She reported that OSHA has been focused on expanding its cooperative programs and placing a greater emphasis on a variety of tools available to work with employers. There has been significant growth in all programs, including VPP and some good new partnerships. She noted that the smallest VPP site-Allegheny Energy Services-has three employees. The largest site-Northrup Grumman Newport News Shipyard-has over 18,000 employees, plus an additional 1,000 plus contract employees.

In terms of physical size, Yellowstone National Park is the biggest site.

She discussed launching the OSHA Challenge program, the corporate pilot and VPP demo for construction. Additionally, she talked about the Alliance program and its many successes as well as the consultation program.

Ms. White said that the web is our key tool to provide access to the information we have. In terms of e-tools, there are 35 and an additional 11 expert advisors. These are new e-tools-screen shots-launched in 2006, including a shipyard employment fire protection module, ergonomics in the printing industry, and a translation of the construction e-tool in Spanish. The Spanish translation has been very popular and has received a lot of hits. In October 2006, the agency published a small entity compliance guide for hexavalent chromium . Other outreach tools include: a guide to global harmonizing the system of classification, labeling of chemicals, quick cards and fact sheets that were used for the hurricane response.

Dr. Blessman asked her about any challenges and what the Committee might do to support those challenges. Ms. White answered we need assistance in how to effectively provide outreach to medium and small employers. She also said there is a small business initiative that OSHA launched approximately two years ago. There was brainstorming on developing booklets, pamphlets or web materials. She would be interested in feedback on the appropriateness of certain materials. Is it useable? Is that what people want to see? Are there ways to make our web more user friendly and more available? Should we have more printed material? Are the quick cards useful or not?


Rich Fairfax said that for the past six years OSHA's been planning to conduct around 37,700 inspections. Since FY 2003, OSHA has exceeded that number. OSHA's numbers dropped slightly from the previous year, but was still quite a bit higher than what was planned. The largest region is Region 5 and they conducted the most inspections. He stated that OSHA has always done more unprogrammed inspections than programmed inspections. However, starting in FY 2000, OSHA was even in the number of programmed versus unprogrammed inspections and now are much higher in the programmed category. This is a good thing because it allows OSHA to direct where it inspects, which translates into the most hazardous workplaces.

He said that we were probably at around 38 to 40 percent complaint inspections. The inspections were really complaint driven in a number of regions. Since 1999 or 2000, the percent of complaint inspections has been decreasing steadily, 19 percent is the lowest it's ever been. Fewer complaints allow the agency to do more targeted or programmed inspections.

Catherine Thomsen asked whether the number of complaints has gone down also. Mr. Fairfax said yes and that the number of non-formal complaints probably has remained fairly steady. The number of actual formal complaints received has gone down.

James Stanley inquired if state inspection figures were included. Mr. Fairfax indicated no. Mr. Holtshouser inquired about the high fatality rate in Regions 4 and 6. Mr. Fairfax explained that there's a tremendous amount of construction going on in Florida and Texas and fatalities are all there. Those regions direct their resources to construction. The number one cause of fatalities in construction is falls from elevation.

He discussed OSHA whistleblower program. In 2005, almost 1,800 whistleblower investigations were conducted. The number fluctuates from 1,800 to about 2,200 per year. Of those cases, 14 of the complainants withdrew them; 64 percent were dismissed by OSHA, 22 percent have merit findings; and of that 22 percent, six percent are merit findings that OSHA is unable to settle and they go unto the next step. Sixty-six percent of OSHA's cases that we find are merit, we settle, and then 28 percent are settled otherwise, meaning the complainant and the company got together and settled on their own, or the union was able to work out a settlement or they took their case before an Administrative Law Judge and it was settled. It shows that from 2000 until about 2004, the merit rate had been dropping. The last two years, it's been increasing.

Mr. Stanley said that the Occupational Safety and Health Review Commission (OSHRC) decided a pretty interesting case on hazards, basically saying that an employer doesn't have to train on specific chemicals. He wanted to know the agency's reaction.

Mr. Fairfax said that the agency is still looking at it and all past interpretations that we've done. The Agency currently has no position.

Ms. Thomsen asked Mr. Fairfax if there were any areas that the Committee could help with in the enforcement area. He said he interested in look for better ways or mechanisms to target inspections.


Dr. Howard suggested we need advice in all areas of occupational safety and health. He suggested NACOSH's input into NORA.

Dr. Keith Goddard said he would make reports available on OSHA/NIOSH Issues Exchange Group (IEG) activities. Additionally, OSHA and NIOSH will decide on priorities the Committee can work on. Once decided, information will be provided in advance of the next meeting to give the Committee time to debate their options. An update on motor vehicle safety will be provided.

There was some discussion about the process for filling vacancies due to expire in February 2007 as well as the charter which was due to expire on February 14, 2007.

There were more discussions about the lack of meetings and the lack of continuity makes it difficult for the Committee to be focused. It was suggested that spreadsheets or summaries of previous NACOSH activities be provided to members to help with the continuity issue. Thoughts were shared on better preparation for new members so they would be able to contribute to the Committee immediately. Mentoring new members was one suggestion. Keith Goddard agreed to look at the structure and process of the Committee for future meetings.

Vickie Wells suggested that more time is needed in the meetings to allow time for the Committee to work. She said that the Committee was most productive when there were work groups around specific issues and the Committee had half a day to meet as work groups and develop some recommendations. The Committee needs input from the heads of NIOSH and OSHA about what their priorities are and what issues they would like NACOSH to work on.

Catherine Thomsen said that the OSHA has asked for some input on how to better disseminate information to some of the small and medium size businesses and the opportunity to participate in some of the NORA sector groups and to give input on the design and some of the priorities for that group.


Assistant Secretary Foulke thanked everyone for their service and he welcomed the various perspectives shared. When asked about dates for the next meeting, he suggested May. He also said he want to meet at least twice a year and told the Committee members to let him know if they needed to meet more often.

Dr. Howard also thanked the Committee for their service. He also said that NIOSH will probably reappoint Vickie Wells as public representative; however, Julia Faucett had other commitments and HHS would be looking for her replacement.

Ms. Thomsen adjourned the meeting at 4:00 p.m.