Federal Advisory Council on Occupational Safety and Health (FACOSH)

October 21, 2010 Meeting Minutes

Great Hall

U.S. Department of Labor, Francis Perkins Building

200 Constitution Avenue, N.W., Washington, D.C. 20210

Representatives Attending

David Michaels, Chair

Assistant Secretary for Occupational Safety and Health

Department of Labor

Donald Bathurst – Management representative

Chief Administrative Officer

Department of Homeland Security

Curtis Bowling – Management representative

Director, Environmental Readiness and Safety

Department of Defense

Dennis Bushta – Management representative

Deputy Director, Office of Administration

Environmental Protection Agency

Bill Dougan – Labor representative

National President

National Federation of Federal Employees

Doug Fitzgerald – Special Agency Liaison

Director of Federal Employee Compensation

Office of Workers’ Compensation Programs

Bill Fleming – Management representative

Deputy Chief Human Capital Officer

Department of Commerce

Frank Hearl – Special Agency Liaison

Chief of Staff

National Institute for Occupational Safety and Health

Deborah Kleinberg – Labor representative

Counsel

Seafarers International Union

Bill Kojola – Labor representative

Industrial Hygienist

AFL-CIO

William “Chico” McGill, Vice Chair – Labor representative

Director, Government Employees Department

International Brotherhood of Electrical Workers, AFL-CIO

Milly Rodriguez – Labor representative

Occupational Health and Safety Specialist

American Federation of Government Employees

John Sepulveda – Management representative

Assistant Secretary for Human Resources and Administration

Chief Human Capital Officer

Department of Veterans’ Affairs

Tom Yun – Management representative

Medical Director

Department of State

Also Participating

Nalini Close, Committee Management Officer

Office of the Executive Secretariat

Department of Labor

Laura Mills Reid

Occupational Safety and Health Administration

Department of Labor

Sarah Shortall, Counsel to FACOSH

Office of the Solicitor of Labor

Department of Labor

Rob Swain, Counsel for Legal Advice

Office of the Solicitor of Labor

Department of Labor

Francis Yebesi, FACOSH – Designated Federal Official

Occupational Safety and Health Administration

Department of Labor

Call to Order

Chair, Dr. David Michaels, Assistant Secretary of Labor for Occupational
Safety and Health, called the meeting of the Federal Advisory Council on
Occupational Safety and Health (FACOSH) to order on October 21, 2010.
Dr. Michaels noted that the Council advises the Secretary on all matters
affecting the occupational safety and health (OSH) of federal employees
and encourages the establishment and maintenance of effective OSH
programs for each federal department and agency.  Francis Yebesi,
Director of the Occupational Safety and Health Administration’s
(OSHA’s), Office of Federal Agency Programs (OFAP), reviewed the
emergency evacuation and shelter-in-place procedures.

Introduction

Dr. Michaels welcomed all the FACOSH members and discussed the potential
impact of the Council on occupational safety and health across the
United States.  He noted the Council included eight new members, and
newly-created non-voting “Special Agency Liaisons (SALs).  Dr.
Michaels stated that the National Institute for Occupational Safety and
Health (NIOSH), Office of Workers’ Compensation Programs (OWCP),
Office of Personnel Management (OPM), and the General Services
Administration (GSA) had been invited to provide SALs.  Council members
and SALs then introduced themselves and provided brief backgrounds of
their activities, concerns, and OSH-related experience.

Dr. Michaels introduced Nalini Close, Committee Management Officer
(Department of Labor, DOL) to provide an overview of Federal Advisory
Committee requirements.  Ms. Close explained the Federal Advisory
Committee Act (FACA) and its requirements for committees such as FACOSH.
 She noted that the members could follow up with Mr. Yebesi if they had
questions or needed clarification.

Dr. Michaels introduced Laura Mills Reid, Program Analyst (OFAP, DOL),
to provide a brief overview of some of the updates to the FACOSH Bylaws
and Operating Procedures.  Ms. Reid reported that the Bylaws were
revised to provide more detail on FACOSH administration and operations,
and align the Council with FACA.  She highlighted changes to various
membership provisions and meeting guidelines, clarification of
subcommittees, elimination of alternate members, allowances for proxy
votes, and the establishment of the SAL positions.

Sarah Shortall, Counsel (DOL), provided information on the availability
of FACOSH information, records, exhibits, and other information on the
federal eRulemaking portal at   HYPERLINK "http://www.regulations.gov"
www.regulations.gov .  Mr. Bill Kojola (AFL-CIO) asked whether proxies
needed to be written and Ms. Reid confirmed that such the case.

Old Business

Protecting Our Workers and Ensuring Reemployment (POWER) Initiative

Dr. Michaels introduced Douglas Fitzgerald, SAL, OWCP, to provide a
brief update on the Protecting Our Workers and Ensuring Reemployment
(POWER) Initiative.  Mr. Fitzgerald reminded the members that the
Initiative had been officially launched the previous week and was
designed as the successor to the successful Safety, Health, and
Return-to-Employment (SHARE) Initiative.  Mr. Fitzgerald discussed the
background of the SHARE Initiative as an introduction to the POWER
Initiative and then explained how the POWER Initiative would expand and
build on the previous program’s accomplishments.

Mr. Fitzgerald noted that all federal agencies should have received
information outlining baselines and minimum goals for the Initiative.
He also stated that DOL would provide assistance to the agencies along
with posting target goals and agency performance on DOL’s website.

Improving Pandemic Preparedness in Federal Agencies

Dr. Michaels introduced Mr. Yebesi to provide an update on the status of
the recommendations for improving pandemic preparedness in federal
agencies.  Mr. Yebesi noted that the FACOSH Emerging Issues Subcommittee
had compiled an interim report, Recommendations for Consideration by the
Secretary of Labor on Pandemic H1N1 Influenza Protection for the Federal
Work Force, which the full FACOSH approved and forwarded to the
Secretary, who subsequently approved all of the recommendations.

Mr. Yebesi provided a recap of the progress to date:

Several recommendations directed DOL to communicate with agency leaders
on pandemic-related OSH issues and Dr. Michaels sent a memo to the
Designated Agency Safety and Health Officials (DASHOs) addressing these
recommendations.

FACOSH requested that the Secretary share the OSHA-related
recommendations with the appropriate agencies and she sent related memos
to OPM, the Department of Health and Human Services (DHHS), and the
White House.

FACOSH advised the Secretary to facilitate the immediate release of
OSHA’s pandemic eTool, which will likely occur in late 2010.

OSHA is exploring ways to facilitate meetings with relevant officials to
discuss issues and receive training.

FACOSH recommended updating 29 CFR Part 1960 to make the OSH program
management 1989 guidelines mandatory and OSHA is developing a new Injury
and Illness Prevention Program standard to address the issue.

New Business

Multi-Employer Citation Policy

Dr. Michaels introduced Rob Swain, Office of the Solicitor of Labor
(SOL), DOL, to discuss the multi-employer citation policy.  Mr. Swain
reported that the multi-employer policy had engendered substantial
litigation.  He noted that the policy was outlined and explained in OSHA
Directive CPL-2-0.124, OSHA Instruction on Multi-Employer Citation
Policy, and was available on OSHA’s website (  HYPERLINK
"http://www.osha.gov"  www.osha.gov ).

Mr. Swain provided a brief explanation of multi-employer worksites and
the various categories of employers (creating, controlling, exposing),
and how and when they could be cited for workplace hazards.  He noted
that DOL had won multi-employer-related lawsuits in six federal circuits
and lost in one.  Mr. Swain explained that, while the policy usually
applied to construction worksites, there was nothing prohibiting it from
applying to federal agencies and cited the U.S. Army Corps of Engineers
(USACE) as an agency that oversaw numerous construction projects and
contractors.

Mr. Swain explained that OSHA and the USACE had discussed liability for
job site hazards and personal injury lawsuits.  He clarified that the
parties had agreed to apply the multi-employer policy principles to the
federal sector in accordance with the principles’ applications in the
private sector and noted that OSHA had issued a Federal Register Notice
to that effect (60 FR 34,851).

Dr. Michaels underscored the importance of including contractors and
contractor employees in OSH programs, plans, and management systems and
noted that they needed to be included in all precautionary measures.

Mr. Bill Dougan (National Federation of Federal Employees, NFFE) noted
the importance of training for federal managers on the multi-employer
issues.  He also raised the issue of agency liability, collective
bargaining agreements, and addressing workplace safety concerns.  Dr.
Michaels commented on the relevance of the issue to FACOSH.

Mr. Chico McGill (International Brotherhood of Electrical Workers, IBEW)
commented on his experience in the shipbuilding industry and the
importance of including OSH requirements for contractors in the contract
agreement itself.  Mr. Swain replied that such discussions were, indeed,
appropriate to collective bargain negotiations.  Mr. McGill also noted
that the Maritime Advisory Council on Occupational Safety and Health had
issued guidelines for OSH programs for shipbuilding and possibly FACOSH
could consider something similar.

Mr. Bill Kojola (AFL-CIO) asked for examples of when a federal agency
would have controlling authority and opined that related education and
training could be beneficial.  Mr. Swain stated that he couldn’t
provide examples but listed several factors for consideration when
determining the extent of an employer’s “control.”

Dr. Michaels then terminated discussion on the subject and suggested it
be moved to a subcommittee.  He thanked Mr. Swain for his information
and noted that he saw his own objective for the meeting as identifying
issues and then creating subcommittees to focus on those issues.

Training

Dr. Michaels opened the discussion by noting that OSHA provided training
for federal agency OSH and collateral duty personnel through
“FEDWEEK,” but did not offer a similar program for the various
levels of agency management.  He asked for members’ thoughts on the
issue.

Mr. Dennis Bushta (Environmental Protection Agency, EPA) opined that top
management involvement was a necessary component of OSH management
systems and that senior management needed adequate preparation for its
roles and responsibilities.  Mr. Kojola (AFL-CIO) confirmed the
importance of OSH training for everyone and cited the requirements of
the American National Standards Institute’s (ANSI’s) Z-10 standard.
Mr. John Sepulveda (Department of Veterans’ Affairs, VA) commented on
his agency’s expenditures on training and the importance of training
all levels of managers and employees.  He also mentioned that the VA was
partnering with labor organizations, and contemplating a national OSH
conference.

Mr. McGill (IBEW) cited the integral nature of outreach and training to
a good OSH program.  He also commented on the relevance of the topic for
consideration by a FACOSH subcommittee.  Dr. Michaels reported that it
had been suggested that FACOSH could facilitate a training conference as
a means to share best practices.  Mr. Dougan (NFFE) suggested finding
examples and also looking at the private sector history for training and
safety culture.

At this point, Dr. Michaels turned the discussion to the related issue
of whether the Office of Personnel Management’s (OPM’s) requirements
for OSH and industrial hygiene personnel were meeting the needs of
federal agencies.  Mr. Curtis Bowling (Department of Defense, DoD)
responded that OPM’s requirements for the safety (018) and industrial
hygiene (690) job series were not working for the DoD and that his
Department was unable to hire qualified personnel.  He cited several
examples for each job series and noted how their strictures made it very
difficult to hire the necessary personnel.

Mr. Bushta (EPA) agreed with Mr. Bowling and then several members
discussed the proper FACOSH procedures for moving the issue to a
subcommittee.  Dr. Michaels asked that the members return to the
subcommittee discussion later in the meeting and then moved on to the
issue of motor vehicle safety.

Motor Vehicle Safety

Dr. Michaels noted that the FACOSH members from the Departments of State
and Homeland Security had mentioned the importance of motor vehicle
safety in their introductory remarks.  He also cited motor vehicles as
the leading cause of death in the private sector workforce, the issuance
of Executive Order 13153 banning federal workers from texting while
driving, and DOL’s partnership with the Department of Transportation
(DOT) to stop distracted driving as evidence of the level of interest in
the subject.  Dr. Michaels further commented that DOT’s Secretary
LaHood had made distracted driving his top priority.

Dr. Michaels explained that FACOSH had been asked to consider how to
develop a comprehensive approach to assuring safety and health for
workers who use motor vehicles as part of their routine or collateral
duties, and stated that he hoped the issue could be taken up by a FACOSH
subcommittee.

Federal Agencies and Permissible Exposure Limits

Dr. Michaels then turned the discussion to permissible exposure limits
(PELs) for hazardous chemicals, providing some history on the
development of OSHA PELs.  He also noted that, despite attempts to
update the regulations, OSHA PELs are not adequately protective.  He
explained that several organizations had researched and published
“occupational exposure limits” or “recommended exposure limits,”
that OSHA encouraged employers to use these more protective limits, and
that many federal agencies had already adopted stronger PELs.  He then
expressed his interest in suggestions for encouraging federal agencies
to “go beyond OSHA PELs” and increase worker safety.

Ms. Deborah Kleinberg (Seafarers International Union) opined that the
subject warranted examination by a subcommittee.  Mr. Bushta (EPA)
offered support for using the best possible references for determining
worker safety and good programmatic guidance and direction.

Mr. Frank Hearl (NIOSH) discussed the procedure for NIOSH Health Hazard
Evaluation reports and the recommendation for achieving the lowest
possible level of a given substance.  And Mr. Kojola (AFL-CIO) noted the
opportunity for the federal government to take the lead role in
demonstrating an interest in protecting workers.

Mr. Sepulveda asked for clarification on the formation of subcommittees
or working groups and Ms. Shortall (DOL) provided information on the
specific process.

Mr. Bushta (EPA) then asked if the discussion would be limited to
chemicals or if the issue would be expanded to include hazards such as
radiation or biologicals.  Dr. Michaels explained that the issue was
reducing exposures.  Mr. Hearl then offered the suggestion that the
effect of any eventual recommendations could be expanded if specific
language were included in federal contracts.

Dr. Michaels then closed the discussion on PELs and began an
introduction of OSHA’s coverage of overseas federal workers.

OSHA Coverage of Overseas Federal Employees

Dr. Michaels explained that, unlike the U.S.-only coverage for private
sector workers, under Executive Order 12196 OSHA covers federal workers
wherever they work.  He noted that OSHA had received complaints from
federal workers stationed overseas.  He also discussed the concern that
federal employees could be exposed to the same hazards as their private
sector counterparts at overseas locations and asked for input as to
whether it would be advisable to include requirements for OSHA
compliance in federal contracts, regardless of the location of the
worksite (U.S. or overseas).

Dr. Tom Yun (Department of State, State) mentioned several potential
issues with requiring overseas contractors, particularly in developing
countries, to comply with OSHA regulations.  Dr. Michaels acknowledged
these issues but noted again the complaints from federal employees and
asked for suggestions on how to protect overseas federal workers.

Mr. Bowling (DoD) provided information on his Department’s experience
with overseas worksites, employing foreign nationals, and the vagaries
of conflicting international jurisdictions.  Mr. McGill (IBEW) expressed
his interest in studying the issue, particularly with respect to
shipyards and vessels at sea.

At this time Dr. Michaels ended the discussion noting that the Council
had discussed the various agenda items, and then asked if the members
wished to broach other topics.

Other Issues

Upon Dr. Michaels’s inquiry, Mr. McGill (IBEW) touted the importance
of a guidance document that provided information on and examples of the
elements of a good safety and health program for federal agencies.  Dr.
Michaels then asked for other topics of interest.

Mr. Dougan (NFFE) explained that he held a proxy for Colleen Kelly,
President, National Treasury Employees Union (NTEU) and she had provided
him with a couple of issues to offer for group consideration.  He stated
that Ms. Kelly was concerned about radiation exposure, particularly for
Transportation Security Administration (TSA) and Customs and Border
Protection (CBP) employees.  She also wanted to raise the issue of
bedbug infestations, both with regard to government buildings and as
encountered while travelling.  Dr. Michaels offered that the issue would
be a good topic for the Emerging Issues Subcommittee.

Mr. Bushta (EPA) then spoke about how teleworking would be incorporated
into OSH perspectives, particularly with the increased emphasis on
expanding teleworking at federal agencies.

Ms. Milly Rodriguez (American Federation of Government Employees, AFGE)
then mentioned the issue of indoor air quality and asked about the SALs
from GSA and OPM.  Dr. Michaels explained that both agencies had been
asked to provide SALs but that only the SALs from NIOSH and OWCP were
present at the meeting.  Ms. Rodriguez then stressed the importance of
input from GSA on federal building maintenance issues.  She also
expressed an interest in the subject of older workers and their
ergonomic and exposure considerations.

Mr. Kojola (AFL-CIO) stated his interest in discussing worker
protections and infectious diseases, noting the wide range of protection
levels among federal agencies.  He opined that the Emerging Issues
Subcommittee ought to continue its work in the area.

Ms. Shortall (DOL) clarified that Dr. Michaels could establish
subcommittees as necessary.  Dr. Michaels then stated that he wished to
form two subgroups: Emerging Issues, chaired by Mr. McGill (IBEW) and
Mr. Bathurst (DHS), and a group on program and training that he hoped
Mr. Kojola (AFL-CIO) would be willing to co-chair (Mr. Kojola
assented.), and possibly Mr. Bowling (DoD) would also be interested.
When there was no discussion on the issue, Dr. Michaels stated that he
would formally establish the committees.

Ms. Shortall (DOL) then offered that the FACOSH members might find the
dockets and public records of other OSH-related advisory committees
(such as the Advisory Committee on Construction Safety and Health)
useful since the other committees were discussing some similar topics
and issues.  Dr. Michaels touted the merits of Ms. Shortall’s
suggestion and stated that active participants would be provided the
relevant websites and URLs.

Mr. Sepulveda (VA) then asked for a time frame for subcommittee
recommendations.  Dr. Michaels answered that he hoped for
recommendations by the next FACOSH meeting, tentatively planned for
April 2011.

At this point, Dr. Michaels opened the floor for statements from the
audience.  Since there were no statements offered, he turned the
discussion to the time and location of the next Council meeting.

Next Meeting and Adjournment

Dr. Michaels suggested meeting on April 14 or April 21, 2011 at the
Department of Labor, Francis Perkins Building.  Following a motion to
adjourn, Dr. Michaels adjourned the meeting.

* Exhibit documents (listed below) from this meeting are available for
copying and inspection at the OSHA Docket Office, Docket No.
OSHA-2010-0031, Room N-3437, U.S. Department of Labor, 200 Constitution
Avenue, N.W., Washington DC 20210; telephone<PHONE_NUMBER>.  Exhibits
can also be accessed at   HYPERLINK "http://www.regulations.gov"
http://www.regulations.gov , the federal eRulemaking Portal.

Documents

Document 	Document Description

0001	Meeting Agenda

0002	Updated FACOSH Member List

0003	Meeting briefing materials booklet for members

0004	Meeting materials booklet for guest attendees

0005	NIOSH Overview one-pager

0006	NIOSH brochure on research priorities through partnership

0007	NIOSH Health Hazard evolution program handout

0008	Secretary of Labor’s Report to the President on Federal
Department and Agency Occupational Safety and Health Program Activity
for FY 2009

0009	OSHA Directive CPL 2-0124, Multi-Employer Citation Policy

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