are a small agency our jurisdiction -- we went out on boats that were up
to the source.  So where the source was, where the oil was coming out of
the ground that's Coast Guard and MMS.  MMS are the people on the rigs
and the Coast Guard also.  But  are jurisdiction, technically, is just 3
miles out on shore and then after that we don't have jurisdiction.  But
because we had the expertise on worker safety, we went out on boats
right up to where the source was.

		MR. VAN HOUTEN:  Let me put this in a somewhat bigger context because
I think there is a bigger issue here.  If you look at the oil and gas
industry as a whole, we have seen in the last year major safety and
health problems as well as environmental problems all the way through
from extraction, Deep Water Horizon is an example, through refining
where you've got the Tesoro Anacortes disaster as well as a number of
others, BP not the least of which and distribution.

		I mean just last week we had the horrible explosion that almost blow
up the entire city of San Bruno.  And I'm thinking each case trying to
figure out who has jurisdiction and who is actually in charge and how
these issues are managed.  It's a maze that nobody really seems to be
able to work through in a coherent way and I think it's a major national
issue that goes well beyond what this committee can do.  But there may
be some pieces of this that we can look into effectively and provide
some advice on.

		MS. BERKOWITZ:  And one area that we're looking at that is something
for you to think about is we are really trying to leverage our resources
like we did with NIOSH to work together with other agencies who have
different pieces of jurisdiction.  So we're sharing information and
going back and for.  So as soon as the new head of the new MMS was
appointed, now called BOMA, Michael Boehmer.  We've met with him many
times.  We've gone back and forth to educate them on what we know about
process safety.  Anyway, so it's something for you to think about in
terms of recommending to us.

		MR. VAN HOUTEN:  One point that I was reflecting on is that you did a
great job with this spill cleanup.  I'm very impressed with the work
that OSHA and NIOSH did here.  It would be a shame if we couldn't take
advantage of the expertise that your agency has to help prevent the next
explosion on an oil platform.  That's what I'm interested in trying to
bring that expertise into the overall scheme.

		CHAIRMAN SILVERSTEIN:  Linda?

		MS. MURRAY:  I have one question, but let me say something about this
chaos.  Every emergency is chaotic, otherwise almost by definition it
wouldn't be an emergency.  And even H1N1, which we should know how to
deal with the flu.  It happens every year.

		With all due respect to our attorneys, it's was more than frustrating
these legal, strange notions of who has jurisdiction.  I'm glad you all
ignored that as much as you could and encourage you to do it more.

		But my question has to do with the interaction between OSHA and NIOSH
and state and local health officials.  And as you answer that, the
reason I ask the question is this to me seems to be, especially for
NIOSH a strategic issue.  We're unlikely to have in anyone's lifetime in
this room the number of health and safety professionals that we need, in
general, and certainly to respond to emergencies.

		And so a strategic notion which fits in, which ought to fit in with
the motion of CDC is how do we build local and state infrastructure in
capacity in these areas?  And so I'm interested in what happened to the
public sector workers that were there, whether they were public health
or other local or state health -- governmental workers because I know
they were there on the ground.  What's the responsibility for helping
them, making sure they had the protection and training that they needed
and giving them some capacity because one of their tasks to help protect
workers and the general public.  So I'm interested in that.

		But again, for that to be a major strategic initiative of NIOSH and
OSHA, but especially NIOSH seems to me to be critical if we're going to
be able to go forward with this.

		CHAIRMAN SILVERSTEIN:  Let me ask one follow-up question.

		John, you indicated that you thought that heat stress was the leading
specific safety and health problem that emerged during this.  And
Debbie, you noted that OSHA does not have a heat stress rule and that
you had to rely on guidelines from the Army.  Where do you think we
ought to be moving with that gap? Is that something that needs to be
closed or did that actually get worked out on the ground in practice
adequately.

		DR. HOWARD:  For us, we're very interested in incorporating that piece
in two different ways.  For responses that involve heat exposure, we
would certainly like to take the lessons learned from this exposure and
incorporate that into a general template that Peg has talked about.

		And in fact, we have interagency group that has been meeting for about
a year, a year and a half.  They're ending their activities.  We will
have a model program, if you will, that we will incorporate that
particular lesson.  And then I think the issue that I would propose and
I think Dr. Michaels is interested in is to take the heat stress lessons
that we've learned from this response and then perhaps develop a set of
publication on that issue for that NIOSH and OSHA could co-grant on heat
stress in response to activity as well as in other things.

		For NIOSH it's been quite a few years.  There was a document done in
the eighties, which we relied on in California to do the heat stress
standard there that was a NIOSH document.  But we need to probably look
at how we can update our own publications in that area.

		CHAIRMAN SILVERSTEIN:  Yes, I'll look forward to seeing where you go
with that.

		Peter Dooley?

		MR. DOOLEY:  Yes, Peter Dooley.

		Just one comment in terms of lessons learned through this whole
process.  I mean one of the big controversies that was happening from
the beginning of the spill was this issue of health affects for workers
and some community members and the level of protective equipment that
might be best used in different work situations and the way in which you
determine that in terms of air sampling and trying to figure out what
chemicals were involved and what's being used.

		And I hope that we can learn some lessons that might help us to be
protecting workers and community members in a more efficient way from
the beginning and using the best available technology for protective
equipment in various work situations.  So the whole control banning
model of we have certain jobs that are done and we know that there can
be certain protective measures that are used for those jobs instead of
thinking that air sampling is going to be the best way to rely on
determining what should be used.

		Because we all know that air sampling can be very, very difficult to
access the exposures.  And of course, the limits that we use are very
outdated and such.  So that might just be one area that we really look
at to try and learn a lesson from this.

		CHAIRMAN SILVERSTEIN:  We clearly haven't exhausted this area, but we
do have a work group that will be meeting later.

		I've got to admit that coming into the meeting this morning it wasn't
at all clear to me whether or not the workgroup we had established maybe
had already outlived it usefulness.  That clearly is not true.  I think
some very important follow-up items related to lessons learned have come
up that that workgroup can continue to work on fruitfully.  So we'll
come back to that, or at least the workgroup will and then the whole
group tomorrow.

		So I want to thank both of you for providing the information and
helping us to figure out where to go next.  But Debbie, it looks like
you wanted to say one final thing here?

		MS. JONES:  I just wanted to say one thing.  This is Tina Jones who is
with Department of Technical Assistance and Emergency Management.  And
if you haven't been on our website, and I think most of you haven't, but
we did put up 17 different job -- this is what NACOSH asked us to do,
the different jobs where protective equipment was required and put
pictures up.  We did get copies out to the field so people could be able
to see it.  I don't know.  Did a great job.  I mean we went up with our
website I think in five or six days right after the spill.  Anyway, I
just think she did a great job.

		(Laughter.)

		CHAIRMAN SILVERSTEIN:  Thank you.  So we're going to move on to the
last item for the morning, which is additional updates from OSHA on some
areas of importance to the agency.  And then I think Dr. Howard is going
to be back later to talk about influenza.

		MS. BERKOWITZ:  Mr. Chair, at this time I'd like to take care of quite
a few housekeeping items.  These are going to be exhibits added to the
record.

		As Exhibit .5, the June 30, 2010 letter from NACOSH Chair Michael
Silverstein to Dr. Michaels on NACOSH recommendations regarding the Gulf
Oil spill of 2010.  As Exhibit .6, Dr. Michaels's July 19, 2010 response
letter, .7 a list of OSHA reference materials provided to NACOSH on
keeping workers safe during the oil spill response and cleanup
operations.  As Exhibit .8, a fact sheet on OSHA's efforts to protect
workers during the oil spill response and cleanup operations.

		As Exhibit .9, OSHA current training requirement for the Gulf Oil
spill dated July 21, 2010.  As Exhibit .10, the NIOSH/OSHA interim
guidance for protecting Deep Water Horizon response workers and
volunteers dated July 26, 210.  As Exhibit .11, an update of OSHA
activities to protect oil spill workers in the Gulf dated August 31,
2010.  As Exhibit .12, Dewell's August 18, 2010 statement warning
employees along the Gulf against withholding of HAZWOPER certificates.

		As Exhibit .13, OSHA's emergency response to oil spill initial
sampling strategy dated August 4, 2010.  As Exhibit .14, OSHA direct
reading results on the Gulf Oil spill as of August 4, 2010.  As Exhibit
.15, data on BP sampling on 2-B Toxic Ethyl.  As Exhibit .16, OSHA's
fact sheet on handling snare booms on the shore dated August 23, 2010.
As Exhibit .17, OSHA fact sheet on skimming operations near a shore
dated August 23, 2010.

		As Exhibit .18, a document entitled Safety and Health Awareness for
All Oil Spill Cleanup Workers, June 2010 publication in English.  As
Exhibit .19, that same publication dated 2010 in Spanish.  As Exhibit
.20, a contact OSHA card in English.  As Exhibit .21, a contact OSHA
card in Spanish.  And Exhibit .22, the contact OSHA card in Vietnamese.

		CHAIRMAN SILVERSTEIN:  Thank you.

		Let me just do a little check in here with the group.  We do not have
a break scheduled now.  The agency calls for an hour that will take us
through 12:30 which cuts into the usual lunch hour.  We can handle
things in a couple different ways.   We can just proceed with the agenda
as it is, just no break and continue for an hour.

		We could take a quick stretch break now and then do our hour, or we
could, and this would, in part, depend on the OSHA staff.  We could do a
half an hour, take a break for lunch and come back and do the other half
hour after lunch. Several different options.

		MR. BUCHAN:  I think 10 minutes right now and then go for it so that
we can all go to the restroom or whatever.

		DR. HOWARD:  Yes, I don't think we should split the OSHA presentation
in two.

		CHAIRMAN SILVERSTEIN:  That's fine.  Let's do it 5 minutes.  Okay,
5-minute stretch break and then we'll go through the whole --

		(Whereupon, a short recess was taken.)

		CHAIRMAN SILVERSTEIN:  We're going to move onto the next subject,
which is an update from OSHA on a variety of issues that may give
interest.  I'm sure will be of interest to the committee, but some of
which maybe subjects that we're going to take up in more detail.

		So, Debbie, how would you like to proceed?  Some introductions first?

		MS. SEMINARIO:  Do you want me to do them?

		CHAIRMAN SILVERSTEIN:  Yes.  If the three of you would introduce
yourselves.

		MS. SEMINARIO:   We have a panel.  I just want to tell you that
Dorothy Doroghty, who's the head of our Department of Standards of
Guidance is out sick today and we have her incredible staff here with us
to help with some updates.  Because Tom Glossie who is our head of our
enforcement is down at our 'Lessons Learned' I'm going to fill you in on
some updates at the beginning, mostly on enforcement and a couple of
other initiatives that Dr. Michaels will also talk about tomorrow.

		But we also have Mike Seymour from Department of Standards and
Guidance, who's going to give you a briefing on injury and illness
programs and where we are.  And Mandy Edens is going to talk about our
work on PELs, but also can talk to you about any other questions you
have on our standard and guidance activities.

		So I thought I would provide an update on a couple of things that were
raised in the last meeting and also to just give you a sense, if you
haven't been following our website and our 4,000 press releases.  We're
trying to hen we do things announce it in a way that our stakeholders as
well as the media can see because the media often doesn't cover health
and safety issue, but we think that you want to know and would be
interested.

		This is an update since we last met.  And one thing I thought I'd give
you an update on, a program that we just initiated is our Severe
Violators Enforcement Program and I'm just going to talk about some
enforcement issues.  And that was initiated about a month ago and it is
replacement of another program, EE, Enhanced Enforcement Program where
there was a congressional hearing over a year ago on that program and
there were some serious flaws.

		So the Severe Violators Enforcement Program actually takes into
account the flaws in that program that were pointed out by Congress.
And it is our program where we are focusing on the more recalcitrant
employers, which is where I think we should be focusing our resources is
on the most dangerous workplaces.

		And the SPEC Program is the nickname targets employers in a couple of
different categories that have willful repeat or failure to abate
violations when there's a fatality or catastrophe situation, when
they're exposing workers to occupational hazards that are subject for a
national emphasis program or are a high hazardous emphasis program or
that are exposing workers to hazards related to potential release of
highly hazardous chemicals or are involved in an egregious case.

		The program which is a little over a month or so old we have 27
companies in the program already.  We are going to go up with a website
to explain to people what this program is and we will list the companies
who are part of this program.

		The SPEC is a supplemental enforcement tool that includes increased
OSHA inspections in these work sites, including mandatory OSHA follow-up
inspections and inspections of other work sites of the same employer
where similar hazards and deficiencies may be present.

		And I have a breakdown of some of the initial cases that are in there
I thought you may want to discuss and that is that 23 of 27 of the
companies have 100 or less employees.  Four are larger than 100.
Twenty-four of the 27 cases are in construction.  And 3 of those 24 in
construction were brought in because of fatalities.  The rest is because
of hazards related to a national emphasis program we had or other high
hazard.  So that program is underway.

		I wanted to give you some other updates on enforcement and that is as
we approach the end of the fiscal year on October 1 we will have 18
egregious cases this year, which are the cases again against employers
that are the most recalcitrant employers that have willful violations.
Last fiscal year there were four cases.

		And one other thing in terms of an update we have a national emphasis
program on recordkeeping that's continuing through this fiscal year.  We
have around 185 inspections that have been initiated under it.  We are
slightly adjusting the targeting mechanism in that national emphasis
program and that should be done within the week.  So we're still moving
forward on that.

		I also wanted to talk in terms of enforcement of things that have
happened since we last met to get your feedback.  And that is, if you go
to our website, and we'd love feedback on our website, by the way
because you all represent various stakeholders and how people are using
it and how navigatible you think it is.  And we're trying very hard in
terms of improving it and getting everything out on the website in the
spirit of being open and transparent.

		But there were a number of deaths in grain elevator solos.  And a
number of completely preventable deaths in very high profile cases that
got a lot of media attention.  We actually issued three of our egregious
cases just in the last nine months to the grain industry.

		In the early 1980s or the mid-1980s, OSHA passed a very specific
standard that not only addressed how to prevent explosions in a grain
facility, but also how to prevent people from dying in grain bins and
confined space.  It's a standard with very specific, common sense rules
that if followed you won't get killed and people are just not following
it.  They're just decided not to follow it.  That somehow this isn't
going to happen to them.  And there have been so many deaths.  Last year
saw the highest number of deaths in entrapments in grain elevators from
the universities and various other academic institutions that we've been
in connection with that keep track of these.

		In November, we put a press release out calling on grain elevator
operators to prevent these deaths.  That's there a standard and to try
to alert them.  And I don't think anything happened with that.  So this
time when we had just issued a big citation for a company in Wisconsin
and then one week later a 14-year old and a 19-year old were killed in a
grain bin.  We issued an open letter to grain storage facility
operators.

		The national office mailed it to -- our list is actually on our
website, I think around 2,000 grain storage facilities.  And then we
asked the states to mail it to grain storage facilities.  The states
that have their own state OSHA to just get the word out.  We started
partnering with different journals and publications in the grain
industry, universities to figure out how do you get the word to
companies that there is a standard.  There are practices, just follow
them.  So that I think Deborah has distributed to you.

		In addition, the Clean Energy Explosion case we issued those citations
in August.  And that case, again, was very preventable and we felt very
strongly that the practice of cleaning fuel gas piping systems with
natural gas was incredibly dangerous, that people know how to prevent
it.  That there's substitutes available.  And again, we issued a letter
to I think 165 companies who would be building or refurbishing a power
plant who would be involved in this kind of activity to alert them to
the standards that we have out, to the general duty clause.

		Again, this was a case where it was a preventable incident.  They were
welding while they were doing the purging of the gas system.  So it's
just another tool where we're trying to communicate with employers and
workers about preventing unnecessary deaths and illnesses and hoping
that these letters in some way help us in our mission in terms of
deterrents because our job really is, as Dr. Michaels said, is leveling
the playing field so that employers that don't cut corners and make
investments in health and safety aren't undercut by those that do, often
just for short-term gain.  And then there's a real cost to this in terms
of disease, injury, and death.

		And the last thing I wanted to alert you to because this will be
happening next week.  And that is OSHA is launching an initiative
distracted driving.  The BLS statistics, the preliminary statistics just
came out.  And as you know, motor vehicle incidents are one of the
leading causes of occupational fatalities, especially on the road.  The
motor vehicle crashes and killed a lot of workers.

		The data is that between 11 and 20 percent of all car accidents are
due to distracted driving, that we are joining forces with Secretary
LaHood of the Department of Transportation, who's really taking the lead
on this issue.  And our focus is going to be on preventing texting while
drive.

		The Secretary of Labor will be making a speech announcing our
initiatives next week at Secretary LaHood's distracted driving summit
here in Washington, D.C.  We can talk more about that, but it's the
first OSHA has really gotten involved this way.  And it's a
multi-pronged approach and we're working across different government
agencies and looking to partner with other organizations and nonprofits
and employer groups to see if we can make a difference.  That's my
report.

		CHAIRMAN SILVERSTEIN:  Thank you.

		Why don't we go on and hear from all three and then do questions?  Is
that okay, Emory?

		MR. KNOWLES:  Sure.

		THE COURT:  Mike, you want to go ahead?

		MR. SEYMOUR:  Yes.  Good afternoon.  I'm Mike Seymour.  I work under
the Director of Standards and Guidance and I'm the project lead on our
Injury and Illness Prevention Project.  I thought I'd give you a very
quick update on what we've been up to and what we've learned and where
we think we're going next on this important project.

		As I know most of you are aware, this is perhaps Dr. Michaels's number
one priority project.  This is something he believes in very, very
strongly and has encouraged us to move forward smartly, if you will.

		But let me talk a little bit about what we're thinking about with
respect to our Injury and Illness Prevention Program regulations.
Staying consistent with OSHA's history on safety and health programs, we
have taken an approach of using core elements as the major organizing
focus in our drafting of the rule.  So certainly, one key core element
is management, what has been called management commitment.  We would
tend to call it management duties in a regulatory sense.

		And in that we're thinking about requiring that employers establish
safety and health policies.  That they set goals for their programs.
That they plan and allocate resources.  Certainly, that's a key
subelement, and assigning and communicating roles and responsibilities
to make sure that there's an organizing for in injury and illness
prevention programs.

		We feel very strongly that employer participation is a core element.
Currently, under our guidelines the employer participation is kind of
subsumed in the management commitment core element and we think it's
important that that borne out as a stand-alone element as making sure
that employers are responsible for gathering the wisdom from their
employees, giving employees a voice in safety and health programs.

		Certainly, employer participation is important in all of the
implementation of our program, from establishing the program to
maintaining and evaluating the program, making sure that employees get
access to safety and health information so that they can be as effective
as they can be in providing their input.  And making sure that employees
have a key role in incident investigations.

		The third core element is hazard identification and assessment.
Clearly, that is one of the major points of this.  This is what we've
termed a find and fixed rule, and this is the find part.  And so we're
trying to develop language that addresses what hazards must be
identified.  We want to make sure that employers gather the appropriate
information so they can identify their hazards.

		We want employers to conduct thorough workplace inspections.  We want
them to conduct incident investigations, not only for those incidents
that end up in an injury or worse, but also for those near misses.  Some
people at our stakeholder meetings called them near hits, which I
thought was really quite appropriate.

		Also, we want to focus people on hazards associated with changes in
the workplace, focus on emergency.  And part of the identification
process is also a prioritization.  We want them to understand which of
their hazards should be a high priority for control and which hazards
they might be able to wait a while to control.

		One of the things that we're very keen on making sure that we do in
this process is to develop some hazard identification tools.  Certainly,
the small and medium businesses that we've heard of in our stakeholder
conversations feel that they don't have the tools they need to
adequately identify their hazards.  And we intend to give them some of
the tools they need to move forward and do that in a competent way.

		Certainly, hazard prevention is the other part of the find and fix.
And in that we're talking about what hazards need to be controlled and
certainly hazard control priorities and some way of tracking the
effectiveness of controls is important for us to consider in a future
rule.

		Certainly, training and education is important and we're talking about
requirements for specific content and for the frequency of training.
Focusing here not only on the training of workers, which is absolutely
key, but also training of the people that have responsibilities for
implementing and maintaining and managing the Injury and Illness
Prevention Program so that they're competent to do that.  So it's really
a two-tiered training and education issue.

		And finally, program evaluation.  No program works well unless you
know what you're trying to accomplish and then check up and find out
whether or not you did, indeed, accomplish it.  So program evaluation
for the Injury and Illness Prevention Program is a real key element.

		To give you a feel for where we are, we just finished a stakeholder
meeting process.  We conducted five stakeholder meetings.  They were
attended by on the average 40 people participated in each the meetings
and we had something in the neighborhood of 150 or so people in the
audience for each of these, so they were very well attended.  They were
lively conversations.  We had lots of good ideas.

		We held the first one in East Brunswick, New Jersey at the beginning
of June; Dallas, Texas in the second week in June; here in Washington
toward the end of June, again, another one in Washington, we had plenty
of people who wanted to participate in that meeting.  Enough to have a
full second meeting, which we held on July 20.  And the final meeting we
held out in Sacramento, California on August 3.

		The notes for all of these meetings are on our website.  I believe the
Sacramento meeting, the notes for that meeting will go up this week or
at the latest early next week.  We're just in the process of finalizing
those notes.  But there you'll find 15 or 20 pages, very detailed notes
of the commentary and the conversations that took place those days.

		The meetings were eight hours long.  They went from 8:00 or 8:30 in
the morning and they adjourned at around 4:30.  And they were very
lively and they were very good conversations.  We learned quite a bit.

		MR. BUCHAN:  What were the composition of people?

		MR. SEYMOUR:  I'm sorry?

		MR. BUCHAN:  What was the composition of people?  Were there small
business employers?

		MR. SEYMOUR:  There were small business employers.  Trade associations
were certainly prevalent here at the Washington meetings.  The labor
unions were in attendance in all of the meetings.  So I think we got a
very good spread of perspectives on how to move forward and perspectives
on this important subject matter.

		MR. BUCHAN:  Thank you.

		MR. SEYMOUR:  Given that we had almost 40 hours worth of meetings, I
really can't give you a good synopsis of everything that was said.  But
let me give a couple of snippets of the kinds of things that we heard.

		We heard the I2P2 standard or the Injury and Illness Prevention
Program standards should be flexible, yet enforceable.  We heard that
standards should be simply, yet detailed.  We heard that safety
committees are effective, yet may run afoul of the National Labor
Relations Act.  We heard that management systems are desirable and yet
small businesses may not implement them.

		We heard write a performance standard, and yet tell all employers and
compliance officers exactly what's required.  And we were told that
everyone should have a written program, yet written programs tend to sit
on the shelf.

		So we learned a lot.  We talked about these issues.  And clearly, on
some of the issues like this we didn't get clarity.  But frankly, in a
stakeholder meeting process, we wouldn't exact clarity.  We wanted to
make sure that everybody had an opportunity to present their
perspective.

		One other thing that we did hear, which actually was not a dichotomy,
we heard virtually unity that safety and health, the Injury and Illness
Prevention Program should be applied universally to all employees.  And
we would appreciate this group's opinion on that subject also.

		As far as our next steps are concerned, having taken the information
from the stakeholder process and the research that the staff here at
OSHA has done, we're in the process of developing the paperwork to
initiate the small business, and this will be for process, which we hope
to begin next fiscal year.

		As I said at the beginning of my talk, this is one of Dr. Michaels's
high priorities.  He has encouraged us, like I said, to move out sharply
and I think we're in the process of doing that.  So we can expect to see
progress from one of your meetings to the next as we move forward.

		CHAIRMAN SILVERSTEIN:  Thank you.  Mandy?

		MS. EDENS:  Dorothy asked me to give you a little bit of update of
what we've been doing in terms of our -- I guess for lack of word I'll
call PEL's chatting.  I mean as most of you around the table know OSHA
has been thinking about a number of years and has several attempts in
the past to try to figure out how we can update some of our PELs that
were adopted in the early seventies when OSHA first came into existence.

		Those PELs were based at that time on data from the fifties and
sixties, and some cases, in a few instances, as early as the forties.
And so I think it's no surprise that science has moved on and a lot of
chemicals we've learned that they have hazards that exist at much lower
levels.  So I think there's been a consensus for a number of years that
the PELs in OSHA 1910-1000 standards are somewhat outdated.

		And the agency has taken some efforts in the past.  In the late
eighties, we did have a rulemaking effort where we updated a number of
the PELs that we had on the books and added a few that we didn't have
PELs for.  And it was a fairly intensive rulemaking effort at that time.
 As most rulemaking goes, there were some who thought some of the PELs
were a little to stringent.  Some who thought a few of the PELs were not
stringent enough and they were challenged in the court.  And I think as
a surprise to some what typically happens when we get challenges they
remand back the things that are under challenge.

		And in this particular case, the court looked at the whole approach
that the agency took and vacated the entire standard.  And so we ended
up in that effort going back to our 1970s PELs.  And so since that time
with that decision in our lap, we said what is it that OSHA can do,
given the constraints that the courts have put on us?  What are our
opportunities?  There were some stakeholder meetings and it's time to
come up with lists and things like that.  And some of the people on this
committee probably participated in that effort.

		But it never really took hold and we never really got back on track
with another rulemaking. S o when Dr. Michaels came in, I think in
addition to try to spearhead the I2P2 effort and to reinvigorate our
general regulatory agenda he was also interested in other kinds of ideas
at the agency.  And one of them was to try to regain maybe or
reestablish some OSHA leadership in this areas.  Where there are a lot
of PELs conversations has been going on.

		And so what he did was formed an internal taskforce.  There are some
folks from the directorate in Standards and Guidance.  We reached out to
the Enforcement folks to come into the team.  There are some individuals
from our Office of the Solicitor and we had some folks from the regions
to try to come up and think of what are some of the range of options
that OSHA might pursue with trying to figure out to tackle this problem
of updating PELs.

		One of the first things we did, though, was to invite a select group
of stakeholders in and actually invited two folks from this committee.
Peg was able to show up and I think Dr. Silverstein you were just coming
back from Safari, so you couldn't attend.  But we weren't trying to be
exclusive of a lot of people.  We didn't want to have a lot of series of
stakeholder meetings like Mike did for I2P2.

		We wanted to group some folks who really have been thinking over this
over the last decade or so.  And so we had a select group of people.  We
did go out to industry and academia and the unions.  But people who have
really have been thinking about this issue over the years and try to
frame some different conversations and get their input about how they
thought the agency should move forward, whether it's a regulatory or an
enforcement type of tactic.

		So we had some different ranges of options.  Some were a
substance-by-substance approach, trying to maybe identify a subset of
chemicals that OSHA would do some rulemaking efforts or enforcement
efforts on.  Then there were a category of options that dealt with more
control-based types of options, which would be I2P2 approach or maybe a
control-banning approach where you wouldn't necessarily look at
individual chemicals on a substance-by-substance, but try to have an
approach like a safety and health management system where employers
could look at all the chemical hazards in their workplace.

		And then the third category of options were what about instead of
these long-term options like waiting for an I2P2 standard or trying to
figure out how do control-banning maybe we could use some of our
existing authorities and use some of our authority under the
Occupational Safety Health Act, using the 5A-1 authority that we have or
maybe even amending 1910-1000 in some short ways to at least alert
people that the PELs are out-of-date.  I can't imagine that there are
people that actually think they're not.  But there is no really overt
way that we say that that anywhere in the regulation.

		So anyway, we have very lively conversations and most of the people we
invited like at the I2P2 stakeholder meetings they weren't shy, so there
was no loss for people putting ideas on the board.  A couple of the
ideas just short-term ones, one was maybe you should annotate the Z
tables to clearly show to people what the health affects those PELs were
based on so that they could compare that against existing health data to
show them how they might be actually out-of-date.

		And another short-term option or an idea that came up was maybe you
could solicit some input from the public to say what are the chemicals
that you think OSHA ought to be focusing on, whether it's in a
regulatory or enforcement mode.  So we actually did that last month
where we had a web forum.  It was open for three weeks where people
could write into the agency and nominate their favorite chemical and
describe why they believed OSHA should focus their efforts on those
chemicals.  So we shut that down just earlier -- I think it was last
week we closed off the website.  We got about 130 plus nominations.  So
we're going through each of those and we hope to post those relatively
soon.

		There are few in there that weren't really germane to the topic, so we
wanted to filter those out.  But we wanted to get a chance to see what
other people were nominating so they can see what ideas are out there.
A lot of them won't be surprises to you.  I could share a few that came
up.  There were a lot of people that nominated different isocyanates.
There were a number of people who looked at manganese, carbon monoxide,
styrene.  It shouldn't really come as a surprise because these were some
of the chemicals that were of concern when we were doing original
rulemaking.

		So what we hope to do is perhaps within the week I'm hoping is to get
these nominations up, posted on our website so you can see what people
are coming up with.  And then we'll go back and try to crawl through
those nominations and maybe come up with our own list and share that
ultimately with this group and with others to see what their thoughts
are.  And then we can start to think about some strategies about of
these range of options what would be the best approach that OSHA should
take.

		So I could see this committee maybe having some ideas about OSHA
should do that -- or what strategies you think OSHA should take.  And I
should say that of these strategies we never thought one of them was
going to be the way.  It might be a mix of options, doing some
short-term things now while you work on other long-term things or a mix
of enforcement and a mix of regulations, whatever fits the bill because
this really has been a long-term problem that we really haven't always
been able to get our hands around and I think Dr. Michaels would like
to, at least if he can't complete while he's here, to start us off in
the right direction.

		CHAIRMAN SILVERSTEIN:  Thank you.

		MS. SHORTALL:  I just going to give a three-minute update about
reaching out to vulnerable the workers and then that would be our
update.  And that is a follow-up the Latino summit, which was in the
middle of April, the 15th and 16th.  And I know Dr. Michaels reported
on the last meeting.  This is again a signature initiative of Dr.
Michaels and the Secretary of Labor.

		We really strongly believe that workers and employers have to be
educated about their rights -- workers about their rights, employers
about responsibilities, what the law says, what the standards say.  And
that workers should know that they can call OSHA.  They can call OSHA
for questions.  They can call OSHA to file a compliant.  And we've bene
focusing on reaching out what we call vulnerable workers who are not in
the mainstream of the organizations that we're used to reaching out,
whether that be labor unions or small associations.  These are workers
who are mostly in low wage, high risk industries and who we are really
focusing on.

		And I just want to give you an update that around the country all of
our regions have been adding these kinds of meetings and outreach to
what they do.  In New England there have been a series of meetings.
They call it OSHA Listens when it's really for members of Latino and
other low-wage worker community where they're reaching out to explain
workers what their rights, educating them about job hazards, about how
to mitigate against hazards, about speaking up for hazards.

		In New York and New Jersey they are planning other summits and they'll
be on their website, so you know about it and come.  They had small
summit where they had a hundred people come.  I guess not so small in
New Jersey.  And they're doing another couple reaching out to Asian,
American Pacific Islander workers and also Latino workers in New York.
We've gotten a number of alliances going in Chicago.  There were some
big meetings using community organizations, church-based organizations
to come together and to hold educational seminars.  So this is really a
big focus of our efforts that we've initiated since the summit and we
will continue with this and we will continue updating our website with
this.  And I'm happy to answer any questions about it.

		CHAIRMAN SILVERSTEIN:  Thank you.  Thanks to all three of you.  I
think you put stuff on the table that we'll come back to in our group
discussions this afternoon.  And this sets us up for a conversation with
Dr. Michaels tomorrow.  I don't want to take us into our scheduled lunch
hour, so Emory you had a question and a comment and then we'll break for
lunch after that.

		MR. KNOWLES:  This was just a relatively I think quick question on the
recordkeeping special emphasis program.  Have you found any significant
trends to date in under reporting based on what you're finding in that
program?  And secondly, what has happened with the emphasis on the
incentives programs in recordkeeping?  I heard a presentation where it
was alleged that there is no correlation between incentive programs and
under reporting.  So I'd like to hear your opinion.

		MS. SHORTALL:  Dr. Michaels is going to address the whole issue of
incentive programs tomorrow, which is why it was on the preliminary
agenda and then we realized he wasn't going to be here.  So he'll
address that tomorrow.

		In terms of the inspections that have been completed, there have been
around 80, 85 inspections that were completed and I think there are
about 45 percent that have had violations.  We just actually issued, and
this was not part of an NEP, an egregious recordkeeping case that you
can look at our website for it.

		So the research is still coming in.  We're still looking at the data.
We another year to go and we have a lot of outstanding inspections out
there.  We have about a hundred that have been opened that haven't been
closed that we're waiting for results on.  And this is something that
the agency is really trying to grapple with.  We did initiate this
largely because there were a number of studies that did show a
correlation between certain kinds of incentive programs and fear of
reporting injuries and illnesses.

		There's a GAO study.  There was congressional interest and other
studies.  So we are taking a look at this and seeing what we found and
we'll report it as we go through this.

		CHAIRMAN SILVERSTEIN:  Thank you.

		MR. KNOWLES:  Point of order before we break for lunch?

		CHAIRMAN SILVERSTEIN:  It's got to be a very quick one, A Very quick
one.

		MR. KNOWLES:  I just wanted to make sure we have an opportunity to ask
questions of these folks.  Can they come back after lunch?  I mean I
don't want cut into lunch, but I also want to --

		CHAIRMAN SILVERSTEIN:  I understand.  Will one or all of you be
available?  At 1:30 Dr. Howard is going to be back to talk about flu.
And then we're going to have a group discussion in which I'm sure we're
going to want to address some of these issues.  Will there be anybody
from OSHA available later?

		MS. SHORTALL:  It would be better for us, I think, if you want to
spend 10 minutes now and then just push lunch back 10 minutes.  Would
that work?

		CHAIRMAN SILVERSTEIN:  Peg is nodding her head.  I don't know that 10
minutes is adequate.

		MR. BUCHAN:  I don't think 10 minutes is adequate.  I've got a lot
questions.

		MS. SHORTALL:  You want to question us for more.

		MR. BUCHAN:  I've got lots of questions.

		MS. SHORTALL:  Okay.

		CHAIRMAN SILVERSTEIN:  I don't know.  I'm sure I'm not the only one
who has a number of comments and questions that I would love to get into
right now, but we are going to have to break for lunch.

		Dr. Howard is scheduled back at 1:30 and I want to give ourselves time
to eat and to get back.  Unfortunately, I don't know the range of topics
that people want to talk about.  Maybe if we just went around people
should just indicate what they --

		MS. SHORTALL:  Is there a time that you want us to come back for about
a 20-minute discussion?

		CHAIRMAN SILVERSTEIN:  What?

		MS. SHORTALL:  You want us to come back right after lunch because
there is a break right after lunch at 2:15 that you could probably work
through.

		CHAIRMAN SILVERSTEIN:  Yes, 2:15.  If one or more of you can come back
at 2:15 then we can pick up with some of this.

		MS. SHORTALL:  I'll let you know.

		CHAIRMAN SILVERSTEIN:  Great.  Okay, then we are going to break for
lunch and be back here at 1:30.

		(Whereupon, a lunch recess was taken.)

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A F T E R N O O N   S E S S I O N

(1:30 p.m.)

		CHAIRMAN SILVERSTEIN:  We're going to begin the afternoon session.
Unfortunately, the technology is not working completely in our favor.
The plan was to have a big screen.  Failing that, we had a smaller
screen that we were going to fill up.  But failing that, there's just a
small picture on a small screen.  So I apologize for those of you who
are in the back who don't have a copy of the PowerPoint that I think the
committee members have.

		Dr. Howard indicates that he willing to move ahead under these
circumstances.

		DR. HOWARD:  As Winston Churchill said, if you're going through hell,
keep going.

		(Laughter.)

		CHAIRMAN SILVERSTEIN:  Let me just indicate that we can send a copy of
the PowerPoint to anybody who would like it electronically.

		MS. BERKOWITZ:  A copy of the PowerPoint will be put in the public
record and you can get to it by just going to www.regulations.gov.

		DR. HOWARD:  Take out your telescopes back there and we'll give it a
whirl.  I just wanted to introduce the three major types of influenza.
We all talk about seasonal.  This occurs every year and we don't really
pay attention to the fact that about 30,000 people actually succumb to
this every year.  Most of those people are in the older age cohorts and
we have a default setting there in terms of the amount of deaths that we
have in that regard.

		I say expected Avian Influenza.  That's the one that we hope never
comes due to H5N1.  Right now, if you look at the World Health
Organization cases, there's about a 60 percent fatality rate, which is a
eye-popping fatality rate for any disease.  So that's something that we
need to keep in mind.   And it is the background I think for which when
we discuss seasonal influenza, even though it's in a default setting in
our minds we need to think at some point we're going to have serious flu
here to deal with.  And all of our mechanisms that we talked about in
terms of protecting the population we should think with that background.

		And then this 2009 novel strain that probably isn't so novel anymore
that we had all of excitement with, and we'll talk about that more.
Everybody I think knows about the major ways that influenza is
transmitted.  By direct contact, where we touch a formite like a
handrail on a metrorail or a door knob, et cetera and we end up
transferring varions to our mucus membranes.   We're essentially
self-inoculating ourselves.

		But then there's the large droplet transmission.  These are big
droplets and shorter range aerosols.  In this picture, which is an old,
old picture.  I like to show if you can imagine droplets that are
gravitationally very large.  They're falling very close to that cough
generators mouth.  But then you see way off in the distance there you
see a small cloud of small aerosols that may be going much further.

		The relative contribution of large droplets and small aerosols is a
continuing debate and it's one in which we are trying to solve.  And we
need to solve it because it informs, scientifically, a lot of our
protective mechanisms.

		Basic terminology, I want to go over three points, even if you're not
into medicine or infectious disease but to understand influenza.  One is
infectivity, which is a term that describes the virus's ability to
really infect human beings, okay.  Because influenza viruses are a big
family and they're pig viruses and duck viruses and goose viruses and
chicken viruses and all that.  So infectivity is extremely important.

		Once a varion has gained the ability to infect humans, then the next
thing is how transmissible is it.  How fast, how efficiently can it
spread from person to person?  H5N1 right now is very inefficient.  It's
a poor transmitter.  You have to live with a chicken, literally, to get
the virus.  It doesn't propagate very well from person to person.

		And then pathogenicity is the issue about what kind of bad things can
happen to a person if they should get infected.   We were very fearful
of the pathogenicity of H1N1 when it first came and we're certainly very
fearful of H5N1.

		Clearly, basic infection control you all know this.  Injury controls,
administrative controls like vaccination, personal protections, a lot
education and surveillance.  In healthcare, as Bill Borwegen mentioned,
this is a significantly increasing industry, especially in home
healthcare, et cetera.  And we have millions of workers involved in this
industry.  The attack rates influenza among healthcare workers really
vary all over the map.

		And I think they vary all over the map because we really don't have
enough really good studies about that.  But certainly OSHA has ranked
healthcare workers at highest risk of influenza exposure during the
latest season, the 2009/2010 season.  And I want to lead you through a
couple of history steps here to let you know how we got to where we are
today.

		The basic historical guidance that CDC issued is in 2007 on isolation
precautions, about preventing transmission and infections to the agents
in the healthcare setting.  So that's the default setting.  It contained
annual influenza for all eligible patients and healthcare providers.  It
contained guidance about standard and droplet precautions, active
surveillance, how to restrict ill visitors and personnel from hospitals,
use of antiviral and respiratory cough and hygiene.  These are the ABCs
that have been a part of basic influenza protection.

		In that 2007 guidance, I don't want to get too detailed, but it had
some information about droplet precautions for seasonal as well as the
Avian and any pandemic strain that we have.  It only basically talked
about respiratory protection in terms of a respiratory for a very narrow
type of exposures that are in that little 2f, 2a precautions during
aerosol-generating procedures.  So I just want to leave you with that
2007.

		And then we come to what happened recently.  So this is a graph that
shows you the number of influenza cases by various type that occurred in
the weeks of the years.  So when we look at the weeks of the year, this
first set of histograms there in that slide that we're looking at now
show the season that started at Week 50, 52 that's November, December --
December actually, the end of December.

		And then one is January, the first week of the year.  Three is the
third week, fifth is in February.  So that's the normal flu season.  You
get it at the beginning of December.  You go to January, February and
March.  By Week 15, you're pretty much done.  And indeed, before H1N1
came we were done with the regular flu season.  And then all of sudden
you see things that aren't supposed to be there.  That's supposed to
continue to be flat until the next season.

		Then all of a sudden in April/May, Week 17, 19, 21 we're seeing a
whole bunch of flu cases and we're seeing this new variant, H1N1.  So
all of a sudden we have another flu season in the middle of the normal
cycle, very unusual.  And that continued.  The peak went down about Week
25, 27, 29, 31.  And then just to go forward, we had then another couple
little hits that we thought were second and third wave.  They didn't
occur.  But that, essentially, is the H1N1 that started in Mexico and
swept around the world.

		So what happened then is that CDC released infectious control guidance
on May 13.  The story broke at the end of April in Mexico.  And
additional recommendations made to this basic 2007 guidance had to do
with isolation of confirmed or probably cases.  But the big issue for
respiratory protection was for the first time then the use of a fit
tested in '95 for patient care for confirmed or probably cases
happening.  So that was a ratcheting up of respiratory protection from
the 2007.  This is the initial interim guidance.

		The rational was lack of vaccine for this novel variant, lack of
innate population immunity to this variant, lack of data regarding
transmissibility.  We weren't sure how well it was going to propagate
and we didn't really know how severe it was going to be, so we didn't
know about the pathogenicity either.  So the lack of information was the
basis for ratcheting the respiratory protections.

		Then in October of 2009 an updated interim guidance was produced that
tried to narrow this down, firm it up.  We still were probably not as
well -- we didn't still understand as well as we should the
pathogenicity of the virus.  Still concerned about that.  And the
respiratory protections still were a part of that updated October 2009
guidance.

		But we were very concerned about the supply of respirators.  We got a
lot of input from healthcare facilities about we're going to run out, et
cetera, et cetera.  So in that October guidance, we added sections with
regard to shortage and prioritized use so that people could use
respirators in a judicious fashion.  We had hospitals saying we have
8,000 employees.  We need 8,000 respirators, et cetera.  And of course,
that is not judicious use of a respirator.  So we put that into the
October 2009.

		And then, as you can see here, we're going through time here of 2009
and 2010 all the way up to our latest data, which is August 28, 2010.
And you can see here that we became -- this is the first blimp in the
histogram is the original flu season that we had.  Then came April and
May of 2009.  Then we had that huge increase and that second wave, which
worried us because as know in the Spanish flu epidemic there was a
second and third wave that was worse than the first.  And so we were
very concerned about that.

		Now things have stabilized and we're down to zero.  We're ready for
the next flu season, which will start here in October/November for
healthcare workers and later for the population because why do I say
healthcare workers get first because if you work in emergency room
urgent care you see the first patients in your community who have
influenza.  Healthcare workers are at a much greater risk because they
are taking care of the whole population.

		So at the end of the 2009/2010 H1N1 season, if you will, we counted 61
million cases and about 274,000 hospitalizations, almost 13,000
fatalities and 12,080 fatalities under the age of 17.  And this is very
unusual stuff and I'll show you a graph about that.

		This just gives you a baseline through a number of flu seasons
starting in 2006, 2007, 2008, 2009, 2010.  The red line is basically
what we're seeing in terms of the worst thing that happens when you get
influenza, which is you get pneumonia.  And you can see in 2008 it was a
bad season, and actually was little worse than 2010 in terms of
pneumonia.   that suggest the pathogenicity of H1N1 was not the worst
case scenario that we expected.

		Now this graph gives you some idea of where we see the fatalities that
are very unusual.  And this is 2006, 2007, 2008, 2009 and then 2010.
And you can see all of those purple histograms are basically deaths that
we don't expect in pediatric populations.  So the younger population
unlike the usual in-seasonal flu where most of the deaths are in
individuals greater than seven-years old, we see a substantial increase
in this flu season in younger and younger folks.

		We have again from the healthcare worker perspective we have a lot of
younger healthcare workers now coming in.  We have a lot of population
that's retiring.  We have a lot of young healthcare workers.  And also
another sensitive issues in terms of increased risk was pregnant women
and a lot of young healthcare workers do find themselves pregnant.  And
obviously, that's something that can influence that.

		So in terms of the children and young adults issue, we have concluded,
although CDC hasn't done extensive studies in this, that the lack of
immunity, the lack of seeing this virus being born in the 1980s as
opposed to being born earlier and having seen some of the H1N1
relatives, if you will, in influenza season was probably responsible for
those fatalities.

		This is just a little slide about the H1N1 pandemic vaccination
campaign.  You can see that the doses of vaccine increased through time.
 This is October all the way through March.  And even though I'm not
trying to suggest there's a correlation between the orange cases and the
vaccine, certainly having vaccine available at the time of the outbreak
is critical.

		This year we expect the H1N1 vaccine, which will be contained in the
subunit virus to be available very early.  We expect H1N1 variant to be
the predominant variant and has essentially replaced all other variants.
 So we'll have vaccine available at an earlier time.

		Now the current activities there's new CDC guidance that is being
prepared and I think some of you may have seen that in the Federal
Register recently and solicitation of comments.  And then we are doing
some research that I want to go over.  And then I want to raise some hot
button issues that I think the committee needs to chat about and maybe
do more.

		The relative contribution of routes of infection I think, again, for
us in NIOSH is imperative that we settle that scientific question.  The
continuing question of appropriate level of respiratory protection we
need to get beyond that at some point.  The vaccination issue should it
be entirely voluntary?  Is there some room for mandatory vaccination?
That's I think a public policy agenda item.  And then should CDC
guidance, which comes out on a voluntary basis, should that be made
mandatory?

		So I want to go over those three issues and offer those to the
committee for some thought, not necessarily all today but as we go
through time.  The flu season has a six to seven month time line, so
there's plenty of time.

		So on the first issue then of the 2010 updated CDC guidance, this was
a Federal Register notice on the 22nd of June and the comment period
went from the 22nd of June to the 22nd of July.  And the content is
essentially similar to the 2007, as I showed you once before in a slide
the isolation process.  Thee's N95 requirement as seen in the 2009
interim guidance.

		Airborne precautions are now extended aerosol-generating procedures
performed on patients with seasonal influenza.  So I think we've settled
that issue primarily.

		Currently, CDC is in the process of editing and finalizing the
response to comments.  And I don't have even an estimated date when it
will come out, but I think CDC will want it out before the flu season
gets into gear.  So I would expect it within the month.

		The rationales I think for changes in the respiratory protection
issues primarily are that vaccine is now available for H1N1 and the
pathogenicity that weren't certain about when this whole thing started
is better know.

		Now I want to turn to some of our research.  And again, I have to
apologize because I am a poor substitute today.  Dr. David Wiseman was
scheduled to do this talk in whose division of respiratory disease
studies in Morgantown this research as well as the health effects
laboratory in Morgantown are doing really wonderful cutting edge
research.  So I am just a poor substitute here.

		But I want to talk about this aerosol sampler that they've invented in
Morgantown to be able to sample in real clinical situations and be able
to get virus collected and analyzed.  The aerosol sampling was conducted
during the last flu season and we have every intent to fund this
activity.  And we have received funding from CDC to continue this
activity and every flu season as we through time in hospital emergency
rooms, in urgent care walk-in clinics, including dental clinics and
we're even hoping to expand it to home health situations, doing both
stationery were you station the sampler in an area of an emergency room
and you do personal aerosol sampling.

		The samples are analyzed using a test that looks for genetic material
that indicates a fingerprint for the virus.  The unfortunate thing, and
clinical infectious epidemiologists will tell you that's just fine that
you found some genetic virus laying around the emergency room.  But the
question is whether it could actually be a contagious particle and that
is the next frontier that we're trying to be -- in order to talk across
our disciplines we have to convince clinical infectious epidemiologists
that we are finding active virus that can product, not what they call
laboratory safety and health experiment.  These two papers are done in
clinical infectious disease from our folks in 2009 and 2010.  They're
already published, so you can look at those papers.

		Just to give you a glimpse of some of the findings.  We found a viral
RNA throughout the emergency department at the UVA emergency room and
the urgent care clinic in several different locations that we tested
during the last influenza season.  The exposure levels were highest in
the locations and at times when the patient loads were the heaviest.  So
that I think is good, sound epidemiology correlation.

		In the busiest day in the urgent care clinic, the airborne RNA was
detected in every room of the urgent care.  So you can essentially flood
an entire area if you have a cough generator with active viral infection
in your area.  Forty-two to 53 percent of the influenza virus RNA was in
the range that actually that is respirable when you get down to the LVOR
or the lower air sacks.  And again, this is from work by our folks in
Morgantown and published in 2009 and 2010.

		Now we're looking at some pending studies here where we're trying to
characterize the virus aerosols from the patient's coughing better.
What is the distribution of particle sizes, et cetera?  We're trying to
do laboratory simulation of healthcare worker exposure to influenza by a
model, using an N95 respirator or surgical mask and trying to figure out
-- these are mannequin tests, modeling tests to try to figure out what
kind of exposure models best simulate the real world experience.

		So we're trying to develop and improve our methods.  We've built a
live virology lab in Morgantown and we're continuing to try to
characterize all of this research.  I think it's very exciting for us.
As you know, we had a meeting in CDC in 2004 in December when we
broached some of these issues and we let many years go by before we
actually started doing this kind of research.  So I'm very happy that
this is happening.

		Now on these issues about the first question I asked about should
CDC's voluntary infection control guidance for healthcare institutions
be made mandatory?  This is an interesting issue.  And it's particularly
interesting because OSHA has placed on their regulatory agenda the idea
of doing an infectious disease standard.

		As you know, in California there is an existing aerosol transmissible
disease standard that was passed and so there is precedent for this
within the larger occupational safety and health community.  But that is
an issue in terms of the CDC guidance, which since CDC has been doing
guidance in influenza for years has always been fairly voluntary.
Hospitals they didn't pay great attention to it.  Obviously, the  more
that the Joint Commission on Hospital Healthcare Organizations takes it
up as a review able issue, then it becomes very important.  But that is
an issue.

		The other issue is the mandatory influenza vaccination.  This is an
issue some members of the committee know was a very, very big issue in
the last influenza season.  Several groups have issued statements
favoring annual influenza vaccination as a condition of employment, and
I put a couple of them down here.  One is the Society for Healthcare
Epidemiology, and I have references here, and Infectious Diseases
Society of America, and then most recently the American Academy of
Pediatrics actually voted I think last week on this issue and I put that
in there.

		The Shay position papers are probably the more thorough in terms of
principled reasoning here.  They argue that healthcare worker
vaccination is an important patient safety issue and that voluntary
approaches haven't really worked and that the risk is small for
healthcare workers relative to the patient risk.

		This is also one of our most significant issues within healthcare.
We're always trying to figure out what is the balance between patient
safety and healthcare worker safety.  And this is what makes I think the
healthcare industry a very unique industry in that regard.

		The same way the airline industry is interesting regarding
occupational safety and health perspective because we're balancing
flight attendant or crew safety and health with passenger safety and
health.  On a bus the driver's safety and health versus the passenger.
So this is not totally unique, but it certainly becomes very sharp in
the healthcare world.

		The second point is that they take the position there's a moral
obligation for healthcare workers to get vaccinated, except when they
have medical contraindications like a vaccine allergy.  And they argue
that the benefits outweigh the concerns about coercion, impact on
employer/employee relations, blah, blah, blah as well as First Amendment
issues relative to individual, religious, or personal belief objections.

		As you know, in Occupational Safety and Health we are not devoid of
those issues.  For instance, wearing hard hats, given one's religious
orientation and head scarves, et cetera.  So this is not unusual, but
the First Amendment right based on religion that involve safety and
health.

		So it certainly is going to continue to be a prominent and very
contentious issue and I thank you for your attention.  And again
apologize that Dr. Wiseman is not here to better explain the research
that NIOSH is doing.

		CHAIRMAN SILVERSTEIN:  Thank you.

		Linda, you can start.

		MS. MURRAY:  Before we starting debating the debates, let me just say
that, as you've implied, we lucked up.  But there are some things that
are standard stuff that we didn't do from OSHA, NIOSH, and CDC that I
just want to bring up.

		First, CDC did not require health departments or physicians -- while
they did require us to document many things about who we gave the
vaccine to, they did not require documentation of race and ethnicity.
And in the spotty reporting that we have, we know there was disparate
mortality rate and morbidity rate by race and ethnicity and age and
pregnancy.

		So again, the fact that in this day and age you would have a reporting
system that would fail to do that is more than distressing.  It's not
surprising and it's certainly true in or jurisdiction and all of the
jurisdictions that I know about -- local health departments that the
uptake of the vaccine is disparate by community, by racial and ethnic
community, particularly the African American community with extremely
low uptake.  Some of that is because people are suspicious.  Some of it
is because we don't have the resources to put it where it needs to be in
the right mechanism.  So that's a problem that I have just with
understanding the basis epidemiology.

		The other thing that concerns me -- two other things concern me is
that we didn't have any discussion about the impact of our national
policy on the epidemic.  So the fact that we still have an ancient --
that graph you showed where we got the vaccine too late to do any good
or to do much good I don't want people to miss that.

		So if the virulent had been higher, we would have major deaths.  The
vaccine supply would have come too late to prevent those deaths.  This
is for a couple of reasons.  One of which is that we're still using
ancient technology.  And again, as a scientific agency, not to suggest
that we -- I don't know if we're the richest any more, but whatever the
hell we are.  We have a lot of money for Afghanistan.  We should be able
to produce vaccine in modern methods.

		And the decision, which I understand considering the American culture
the decision to fail to use adjuvants in the vaccine, which means that
you have to have a higher concentration of the adjuvant vaccine in the
dosage you give people, not only is a problem for us but also dooms the
rest of the world to not having enough vaccine globally.

		Now again, this time we lucked up.  But had the virulence been higher,
our policy, stupid as it is not based in science, would have doomed
millions of people to death unnecessarily.

		Finally, what I wanted to say about workers, again before we start
debating some of these other more narrow things that we spend a lot of
time in H1N1 fussing about, we fail as a public health community to say
anything about stopping the transmission.  What would have been the most
effective method to stop the transmission, other than vaccine, would
have been to insist that every American worker have a right to sick
days.  Because we tell people cover your cough, stay home if you're
sick, have a right to sick days.

		And then of course one could have used up your sick days.  So when a
public health emergency is declared like this that involves a
communicable disease, it should have automatically triggered a mechanism
that automatically guaranteed every worker in this country paid sick
leave, if we were really serious about stopping this epidemic.

		So now those kind of basic old school, fundamental public health
approaches we didn't hear.  And this is a problem that just doesn't
impact healthcare workers.  Obviously, we're an extra high risk.  But it
impacts workers across all of our industries and to put people in a
position where they have not be able to take care of their loved ones or
go to work and risk getting sick or not be able to rest and get well
quickly because they have to pay rent is inexcusable today.

		And there were a lot of predictions and a lot of literature what
businesses going to do?  How do you have a business plan?  It doesn't
matter what your business plan is if you don't allow workers to get
paid, then they're going to come to work sick and they're going to
continue to spread the virus and they're not going to be able to get the
care that their family needs.

		So I found that very distressing and that's all I have to say.  And my
clinical friends this is a traditional tension, as you suggested,
between clinical infectious disease and occupational safety and health
folks about the masks and stuff.  I guess if you're really interested in
science that's nice.  But as far as I'm concerned, we don't really need
a whole lot of studies.  We should just use the N95 and be done with it,
but I'll leave that alone.

		CHAIRMAN SILVERSTEIN:  Peg?

		MS. SEMINARIO:  One issue that you didn't touch upon that was also a
major issue during the H1N1 outbreak was the surveillance of healthcare
workers.  And a continuing problem was the inability to identify cases
that were occurring amongst healthcare workers and then some follow back
to make some determinations of what the exposures had been.

		I know there were a couple of clusters that were examined, but just
for people who aren't immersed in the infectious disease world, those of
us who ended up becoming immersed in it because of H1N1 there a total
disconnect and different way of looking at the world between the
infectious disease community and the occupational health community as
Linda said.  And I think some progress was made in at least having some
communication on some of these issues.

		But there is a tension, a different world view that exists that
continues to create real difficulties here in trying to deal with the
worker issues and that were very much apparent early on with H1N1 and
are still very problematic.

		And the reality is you talked about that healthcare isn't different
when it comes to looking into patient safety or worker safety or
airlines or whatever, but the unfortunate experience in a lot of those
settings is that the worker's safety issues are secondary and that's I
think something that we saw here.  And from our perspectives in the
unions that NIOSH being in CDC was beneficial in some ways to have
communication, but also was difficult because they were somewhat
subsumed under the CDC and the infectious disease folks have a higher
presence in that agency and the orientation seemed to be much more
focused on infectious diseases.

		But one thing that I think that would be quite helpful that this
committee could look at, as I said, some of these institutional issues.
Given these tensions, how do we basically get to the issues of
protecting healthcare workers against a major exposure?  That is OSHA's
responsibility.  It is NIOSH's responsibility.  And to look at this and
come up with some recommendations so that the occupational health issues
have a prominence.

		There's a very active advisory committee that exist within the CDC
structure called the Advisory Committee on Infectious -- whatever that
don't have really occupational health people on it.  So all the advice
that's coming through again is putting the worker issues secondary.

		And so one of the questions is you going to be having advice coming
forward to advise OSHA and NIOSH on the worker issues this might be a
committee to look how do we get that voice, either this committee or
some other way to provide that voice?  Because right now it doesn't
exist.

		CHAIRMAN SILVERSTEIN:  Bill?

		MR. BORWEGEN:  It seems like what's going on here is this is like in
Yogi Berra's terminology deja vu all over.  I recall when we petitioned
OSHA for the blood borne pathogen standard in 1986 -- well, first of
all, the dentists said nobody wouldn't go to the dentist if they wore
gloves and no one would go today if they didn't.  We were was that we
were proposing a comprehensive infectious control program for blood
borne pathogens and we were told that, no, you just need the hepatitis B
vaccine and you can trash the rest of the standard.  You don't need
anything else.  And that vaccine is actually quite effective.  That's a
vaccine that's 99 percent effective like a lot of the other vaccines.

		The flu vaccine is singularly unique in being less effective.  It's
only 90 percent effective.  I think you need to add to your PowerPoint
that the H1N1 vaccine is only 62 percent effective.  That was reported
to the ASIP committee.  I don't know why it's kind of a secret, but it's
a state secret, I guess, except the ASIP committee knows about that.

		So now we're putting all of our eggs in one basket of the vaccination
with 13.7 million healthcare workers.  That means that even a 100
percent of healthcare workers got vaccinated we'd have 5 million
healthcare workers, including many pregnant healthcare workers that
would have insufficient immunity against the H1N1 virus, which has a
differential pathogenicity which you capture and which cannot be
emphasized enough that 95 percent of the hospitalizations and the
fatalities are people that are under the age of 65, which is the exact
opposite for regular seasonal influenza.

		I think we're mixing things up here.  I think the CDC is now proposing
to treat this as regular seasonal influenza when that is not the case.
The vaccine, they're overselling the effectiveness of the vaccine and
the bottom line is this a working person's disease.  This is why it's
the purview of this committee.  This disease is particularly affecting
working-age people.

		And there are some interesting studies out there already.  I mean
there's a study in New York that found, for instance, that the folks
that worked in the ER had H1N1 infection rates two and a half times
greater than other people that worked in that hospital.  And so that
illustrates to me that this is transmitted in the workplace, and I'm
anxious to get these reports on these other clusters.  And I think what
NIOSH could do is capture all of this healthcare worker cluster
information from all of the different states, from Wisconsin, Chicago
and we've heard about a number of other clusters to figure out what is
going here.

		You know, the CDC was adamant that they were not going to collect
information on whether or not a person was a healthcare worker.  Last
year when we had weekly phone calls we said we really need to capture
this information.  I agree with Linda.  We need to capture the
information on race and ethnicity as well.  There's a large percentage
of the -- there's significant underparticipation from African-Americans,
I can tell you that right now.  We had a worker last year who was just
fired because she didn't get the seasonal influenza vaccine under a
mandatory vaccination program.  Well, seasonal influenza didn't even
exist this past flu season after the initial outbreak, but she was
fired.  So we're starting to see more of this, of workers being fired or
workers being told they need to wear surgical masks if they don't get
the vaccine kind of like a scarlet letter.

		And all I can tell you about the Shay paper, I mean, I read it and I
read it very carefully because I read it, and I thank Sarah Shortall for
making me look more carefully at conflicts, but the bottom line is
factually people need to know that five of the nine authors receive
money from vaccine manufacturers.

		And this is not atypical among a lot of these infectious control
groups and individuals that are involved in this campaign where they
want to trash N-95s, but they want to mandate or fire healthcare workers
who don't get the vaccine or make them wear surgical masks, and I think
NIOSH could also help us to show whether or not the wearing of a
surgical mask somehow is protective, because my gut tells me that if
you're required to wear a surgical mask for eight hours a day or 12
hours a day depending on how many hours you work, if you don't get the
flu vaccine, then every time you touch your mouth to readjust the
surgical mask you're perhaps transmissibility, so that would be an
interesting question.  I saw that the president of Shay did recently say
that there was no efficacy data to show that the wearing of a surgical
mask by a worker, a healthy worker, was protective, and that's why they
think now you should fire people if they don't get the vaccine even for
religious objections, which is a violation of the EEOC guidance on the
topic.

		So this is quite a controversial area to say the least.  I think you
pushed some hot buttons, but our bottom line is I don't know what this
group wants to do or could do, it's a very complicated area, but
requiring 100 percent vaccination for a vaccine that's only 62 percent
effectiveness seems to be overkill and overreaching while at the same
time you're going to trash the ability of a pregnant healthcare worker
who may have gotten vaccinated but the vaccine didn't hold, she needs to
go into a room of a coughing patient and she will not be allowed now
under the new CDC guidance to request that she wear a fitted N-95
respirator, and I think there's something wrong with that picture.

		CHAIRMAN SILVERSTEIN:  Thank you.  Dr. Howard, I appreciate your
putting the three hot button issues on the table, and I've got a
question about one of them which really goes to one of the issues we
were discussing earlier having to do with the relationship between NIOSH
and OSHA.  One of the questions was whether or not the CDC guidelines
should be mandatory.  Well, I don't think it's a stretch to say that
insofar as OSHA last year issued a compliance directive that then became
the basis for inspections and citations that incorporated the N-95 and
other of the guideline elements that the CDC guidelines have been
mandatory in the OSHA context anyway.

		Now what I'm wondering is this, and I'm glad that Rosey is in the
audience and Debbie is back there because they may know the answer to
this.  If in fact CDC changes its guidelines so that N-95s are no longer
part of the guidelines, what's going to happen, what does OSHA intend to
do with its compliance directive?  Will it keep the N-95 requirement, or
will it follow CDC?  So the relationship here between NIOSH insofar as
it's part of CDC and OSHA really becomes a very tricky one and one that
I think bears examination.

		DR. HOWARD:  Well, sure, and you know the question probably could have
been more precisely stated, should OSHA rely solely on the CDC
recommendations as a basis for an infectious disease standard or should
it on its own go beyond that or add things that aren't included in the
CDC guidance, or in other words, will it just adopt or incorporation by
reference if you will.  So the issue is, is there another way to do
infectious disease standards and all that.  That I think obviously will
come up in the public policy discussion around this regulatory agenda
item.

		CHAIRMAN SILVERSTEIN:  Okay.  That helps clarify or make the issue
more precisely stated.  Peg?

		MS. SEMINARIO:  Just a point of information for others on the
committee.  The other problem that we ran into during H1N1 was while CDC
put guidance forward with respect to protection for healthcare workers
that it wasn't mandatory.  Different state health departments had
different guidance, and one of the questions was then for the head of
OSHA in those states, which basically had different guidance as to
whether or not they could enforce, and so there are a lot of different
issues that were in play because there was no standard.

		So the enforcement would have been under the general duty clause,
which basically requires that there be a recognized hazard and also
certain industry practices, and the fact of the matter was is that you
had conflicting guidance coming forward from CDC at a national level and
a number of the state health departments, so it really complicated
things, and then add on top of that some of the states were fed OSHA
states, some of the states were state plan states, and so it became a
real issue for workers in terms of what kind of protection they not only
should be afforded but they could legally basically say we had a right
to, and so it was a real difficult situation for healthcare workers
depending upon what state, what health department, which OSHA was in
play.  It was sort of a mess.

		CHAIRMAN SILVERSTEIN:  And let me raise another interesting question
about relationships which has to do with the relationship between OSHA
and the state plan states.  OSHA issued its directive and all of the
state plans were required to develop directives that were at least as
effective as what OSHA had.  Now, in our state, we adopted something
that was virtually identical, so there wasn't much question, but I don't
know whether or not OSHA applied its discretion with regard to the
states in a uniform way or not.

		MR. BORWEGEN:  Well, there's a missing piece to that.  I think we need
to again for the committee's benefit, in order to come to a resolution
on this issue, NIOSH and CDC and OSHA in their wisdom did commission an
IOM panel that looked at this question and they turned around very
quickly and they in a very quick turnaround produced a letter saying
that based on what they know about transmissibility and that there's no
reason to assume that there is not at least partly an airborne component
to transmissibility that fitted N-95s should be the minimum level of
protection, so that's why I'm having even more trouble with the CDC
revision, because they contradict what the IOM found.  And again we can
argue that this disease was not as -- you know, the pathogenicity was
not as severe as we thought it would be, but I still think 30 to 36,000
fatalities a year is not insignificant.

		CHAIRMAN SILVERSTEIN:  Yes.  Well, I'd like to see who else on the
committee has something to add to this, and then we're going to move on.
 Emory?

		MR. KNOWLES:  Just a basic comment.  You mentioned the state plans.
They have up to six months to adopt a change.  By then the season is
over.

		CHAIRMAN SILVERSTEIN:  Right.  I mean, that was the way it was last
year.

		MR. KNOWLES:  So you have protections for half the population and for
the other half you don't.

		CHAIRMAN SILVERSTEIN:  It could be.  Debbie's going to be up here in a
minute.  You placed some provocative issues on the table, and what I'm
wondering is what regarding influenza NIOSH and/or OSHA feel that this
committee might be most helpful in addressing.

		MR. BORWEGEN:  Well, for NIOSH's sake, I mean, any issue related to
seasonal influenza and healthcare workers is to me open.  It depends on
what you guys want to focus on, but we welcome all advice.

		CHAIRMAN SILVERSTEIN:  Okay.  Fair enough.  Okay, anything else
specifically on influenza?  Peter?

		MR. DOOLEY:  One addition to Linda's comments about the sick days.
Even workers that have paid sick days, increasingly over there's a
system set up to discourage workers to use those sick days.  And that
has gotten more and more severe over time.  So there's a lot of polices
that are set up with companies that literally discourage against the
appropriate use of sick days in a situation like this that affects
public health.  So that's just an issue that we have there.

		CHAIRMAN SILVERSTEIN:  Looking at the agenda, we've got two things
that are remaining to be done.

		DR. HOWARD:  I'm going to just apologize to the committee.  I have to
run for a 4:00 flight and I won't be here tomorrow.  Frank Hearl will be
here to hear any comments that you have or suggestions for us
immediately and any other plans, any other support you guys need.

		CHAIRMAN SILVERSTEIN:  Let me say on behalf of the committee thank you
very much for spending this much time with us, very informative, very
useful.  You've given us a lot of stuff for us to think about and I hope
that we can meet your expectations in providing you useful advice.

		DR. HOWARD:  You r last letter I think was very helpful.

		CHAIRMAN SILVERSTEIN:  That's good feedback.  I appreciate that.

		DR.  HOWARD:  All right.  Thanks.

		CHAIRMAN SILVERSTEIN: There are two things that we may be able to do
simultaneously.  One was some follow-up discussion with OSHA about the
issues they'd placed on the table.  And then secondly, we had time set
aside for open discussion among the committee members about issues that
we might want to take up, either in subgroup or otherwise.  I think that
those kind of blend together.

		It may be time for a five-minute break before we --

		MS. BERKOWITZ:  We were supposed to start at 2:15.

		CHAIRMAN SILVERSTEIN:  Then we'll just continue with you.  I think
that Sarah had some housekeeping stuff.  Why don't you hold that until
after we have this continued discussion with Debbie Berkowitz?

		MS. BERKOWITZ:  Thank you.

		CHAIRMAN SILVERSTEIN:  And Mike and Mandy.

		As the three of you left earlier there were a number of committee
members who had burning questions or comments to make.  And so I open
the floor up again to anybody who wants to pursue the conversation with
OSHA.  Yes?

		MR. BUCHAN:  I will start off with PEL.  And what I'm about to say is
probably very naive.  But if you go back and read the original OSHA Act,
NIOSH was required to develop criteria for chemical exposures and OSHA
was required to adopt those as standards.  My question is, is why OSHA
cannot say we are mandated by the OSHA Act to adopt the RELs?  That's
probably naive, but it's just a thought?

		MS. BERKOWITZ:  I think that's a great thought, but I think that in
practice there haven't been that many criteria documents.  I mean the
larger issue is there's so many substances out there.

		MR. BUCHAN:  But you have a lot of RELs.

		MS. BERKOWITZ:  But I'm not an expert on Occupational Safety and
Health Act, although I've worked here for 25 years.  But I think there
still is an obligation on the agency to through rulemaking.  So even if
they gave us a criteria document, there is not, I don't think, a blanket
authority to just take it.

		CHAIRMAN SILVERSTEIN:  I think you're right.  Sarah's looking at the
Act.  I think I remember this that the statutory requirement is for
NIOSH to develop criteria for rulemaking and for OSHA to go through the
rulemaking process before it can issue a rule.  So it was never intended
to be automatic.  But I think it's fair to say that the congressional
intent was for the NIOSH criteria to be used in a much more deliberate
an serious way than has evolved over the years.  I think that the
circumstances developed was that OSHA develop its own rulemaking group
that went beyond what congressional expectations were.

		MS. BERKOWITZ:  Could I add one other thing here under the Act.  Mr.
Buchan, when Congress established the Occupational Safety and Health
Act, Congress delegated to the Secretary of Labor making standards and
rules.  And that's why in the Act it talks about NIOSH presenting
recommendations on criteria to OSHA.  But if OSHA was simply to blanket
adopt something like that without doing its own looking.  In essence,
that becomes a violation of the delegation of authority.  The only one
to whom this authority to issue safety and health standards across the
board, across all workplaces is to OSHA and not to NIOSH.

		Similarly, although our Act has a great preference for us to adapt
national consensus standards, we just don't in and of themselves adopt,
that we conduct a rulemaking.  We do have an obligation if we choose not
to adopt a consensus standard explain why we're not doing so and why we
think what we would be doing would be more effective for workers.

		MR. BUCHAN:  Okay, I said it was probably naive.

		MS. BERKOWITZ:  Not actually.  I mean I think that what Dr. Michaels
and Dr. Howard are trying to do is try to figure out how we can work
more collaboratively so that when they do develop the information that
we can either put that into use in terms of regulation or other efforts
that the agency has.  And I think as this PELs conversation goes on we
would be interested in ideas or a way in which we could more effectively
use NIOSH either to conserve some of our resources.  I mean right now
we're working on a rulemaking project where they're actually doing the
risk assessment for us.  So there are some opportunities I think where
the leadership of NIOSH and OSHA of trying to figure out we can use that
expertises so that we can speed up and address however the need has
been.

		CHAIRMAN SILVERSTEIN:  I appreciate that.  I think that the
relationship has gone up and down over time.  There are periods of time
in which OSHA has taken NIOSH recommendations quite seriously and other
times when OSHA has simply set them aside and not addressed them at all.
 And I'm very glad to hear that Dr. Howard and Dr. Michaels are
interested in rebuilding a very strong relationship that will result in
effective rules.  How to do that is a challenge that perhaps we can be
helpful with.  Peg?

		MS. SEMINARIO:  Just another point of information.  OSHA is also
required under the statute and under a whole variety of other statutes
and executive orders to have a much more robust -- to make a finding of
feasibility, both technological and economic feasibility, which doesn't
come through in the RELs and then to come forward in terms of regulatory
analysis.  There's a whole set of other requirements here.  And always I
would say that the vast majority of cases with respect to standards the
agency has reached feasibility constraints before it deals with risks.
So the standards aren't set based upon protecting workers from risk.
They are set because they reach a feasibility constraint.  And that
really is a huge area of resources and time and energy and a level of
analysis that is actually much more intricate and difficult at a much
more refined level than the risk assessments.  So there's a lot to do
here in addition to taking up the standards.  But I had a question.

		CHAIRMAN SILVERSTEIN:  Yes.

		MS. SEMINARIO:  On the Injury and Illness Prevention Program, I2P2
rule, are you looking at a rule?  You had said that most of the
stakeholders recommended that it apply to all employers.  You're talking
also then about all sectors, correct?

		MR. SEYMOUR:  That's correct.

		MS. SEMINARIO:  Because I think that's really important because one of
the things OSHA has done over the years, unfortunately, is with many
rules they only apply to one sector and then you never get back to
protecting the other workers.  And here you've got an opportunity, not
only in general industry, but in agriculture I'd say that this is really
critical, in maritime, in all the sectors where you operate and you have
authority that having a standard of broad application and whether it has
to have certain provisions that might have more import in application,
such as dealing with multi-location workplaces or multi-employer
workplaces.  Those things need to be dealt with as well.  But I think
dealing with a broad-based standard is really critical.  And I would
like to know whether the thinking is to have a broad-based standard?

		MR. SEYMOUR:  Our current thinking is we haven't honed down into
looking at specific sectors at this point.  And our preliminary drafts
of a potential rule do tend to be as broad as possible to cast as wide a
net as possible.  And there are some issues that need to be addressed.
Certainly, construction is one issue where there's not a fixed worksite
and a highly mobile workforce where they have some specific issues.  But
it's our hope that we can write a set of requirements that apply to
everyone to make sure that everyone gets the protection associated with
this kind of universal intervention.

		CHAIRMAN SILVERSTEIN:  Other comments?  Bill?

		MR. BORWEGEN:  A short question.  So when is the rule going to come
out, the draft?  And then I have another question, another comment.

		CHAIRMAN SILVERSTEIN:  Okay.

		MR. BORWEGEN:  So are you going the SBREFA process?  The fiscal year
starts October 1, right?

		MR. SEYMOUR:  We're certainly planning to put the SBREFA process in
place early in the fiscal year.  I can't put a particular date on it
yet.  That's really not my position to do that.

		MR. BORWEGEN:  Your colleague to your left can answer the question.

		(Laughter.)

		MR. SEYMOUR:  Well, notice I didn't give her the microphone.

		MS. BERKOWITZ:  Sorry.  I wasn't paying attention.

		MR. SEYMOUR:  It's our intention to move this on as quickly as
possible.  And I think we're putting in place the mechanisms to do that.
 Certainly, the SBREFA panel is something that we need to learn from
before we can put a final rule or, I'm sorry, a proposed rule in the
Federal Register.  But we are working as quickly as we can to be able to
get this out as quickly as possible.  I'm sorry for the bureaucratic
answer.

		MR. BORWEGEN:  Okay.  Well, that's fine.  But history is replete with
examples where we waited too long, so I know you share our zeal to move
forward quickly on this.

		The other area is I really like this thing you're going to be doing
together with DOT with texting, but I'm wondering about talking on a
cell phone or even the handset free.  And I'm wondering how far you
could go.  I mean could OSHA, for instance, recommend that employers
change their workplace policies so that workers do not text while
driving, or talk on cell phones while driving or even with hand-free
sets.  I'm thinking back to the days when Johnson & Johnson was a leader
in promoting the seatbelt us.  But I mean it would be nice -- I know
because we just changed our policy where I work and I was involved in
writing that forbids the use of even hands-free headsets.  I don't know
how well it's enforced, but except for emergency use.

		CHAIRMAN SILVERSTEIN:  Can you address that, Debbie?  Can you address
that question.

		MS. BERKOWITZ:  Yes, I'm going to address it.  Are you done?

		MR. BORWEGEN:  I'm done.

		MS. BERKOWITZ:  Yes, I think we're looking at all distracted driving
and I think what we're doing is we're going to focus on texting first
because that was the subject of President Obama's executive order last
week about no texting.  You know have to start somewhere in the federal
government.  Thirty states have passed -- prohibiting texting rules
already.  It's what the Department of Transportation has issued a
proposed rule in April and should become final shortly on prohibiting
texting while driving for commercial carriers.  They govern trucks that
are 10,000 pounds or more.  So now we're looking at what OSHA can do in
our jurisdiction and starting with prohibiting texting while driving,
but also prohibiting policies that require workers to text while driving
or either officially or unofficially they have to do it order to make
their quotas.  So that's what we're looking at and then expanding from
there.  So yes, I think we're just beginning this process and we're just
starting with texting while driving.

		CHAIRMAN SILVERSTEIN:  Joe?

		MR. VAN HOUTEN:  It's an offer for OSHA.  Could you think about
expanding it to hand-held devices rather than just texting because you
have GPS units?  You have computers.  You have things that are just as
dangerous as texting.  So it's just an offer to not just limit it to
texting, but think about the initial focus being on hand-held devices.

		MS. BERKOWITZ:  Right.  The Department of Transportation rules are all
devices that are brought into the vehicles and those are the hand-held.
And I think we're thinking at following that.  That's what the executive
order is too.

		CHAIRMAN SILVERSTEIN:  Emory?

		MR. KNOWLES:  Emory Knowles.  I would also strongly suggest that you
incorporate into the educational program an emphasis program for teen
workers.  Even though many of them aren't drivers, need to be reach the
younger generation that is overwhelming all of us with all of these new
technologies.

		MR. BERKOWITZ:  I don't want to give away the Secretary's whole speech
on Tuesday, but one of the key focuses and I think the areas that we can
really be very effective and partnering with the same people we do on
other job hazards is with reach out to teens in high schools and even at
younger ages about this and other occupational health hazards.  And we
happen to have a new, young worker specialists that we stole from Mike
Silverstein's Washington OSHA coming to join our OSHA next week in our
occupational health-nursing department.

		CHAIRMAN SILVERSTEIN:  Peter and the Peg.

		MR. DOOLEY:  Mike, I was glad to hear that the near miss or however
you want to call it, near hit or close calls is still on the mark in
terms of in the proposal.  And I wonder if there's any thought to
including a provision about no disciplinary action can be associated
with the reporting of near misses, since that's a huge issue that has
been recognized as far as influencing those systems.

		MR. SEYMOUR:  We certainly had a large number of conversations here
within the agency on that topic.  It does seem clear to us that any form
of retaliation, discrimination, whatever reduces the likelihood of
employees to be involved and be fully engaged in such a process is
something that we need to be serious about address.

		MS. SEMINARIO:  A couple of comments here on the issue of texting
while driving.  I think it's fine for the agency to be involved with
this, but I would just caution you based upon may decades of experience
in dealing with issues that are broad-based and where there are other
agencies that also authorities and responsibilities that there are
certain things that OSHA and only OSHA does.

		Nobody else controls exposure to chemicals in the workplace.  Nobody
else is dealing with confined spaces and lack of tiedown and workers are
being killed, falls.  And I would just caution you.  This agency has
limited resources, so to keep things in perspective and not just look at
the flavor of the month or the year.  I mean these are again important
issues, but you've got to set priorities.  And where you have other
agencies which have bigger budgets that have whole initiatives and
people and staffs devoted to these things to keep things in perspective.

		We went through experiences back with Jerry Scanlon dealing with
seatbelts.  The agency tried to work in that area here and got their
heads taken off politically because there wasn't anybody else -- I mean
there were other forces, people that could have taken that on, but you
couldn't.  The same thing happened on indoor air and smoking.  And there
are implications where with respect to the agency and preemption.  When
you start operating in workplace issues, then a state doesn't have the
authority.  You take away their authority once the feds issue a
regulation in an area.

		So I would just again caution you to keep this in perspective as far
as who else has authority?  Who can bring what to the table here and not
necessarily -- again, think about those things where you have a unique
role, are the only ones.  And we talked a lot about chemicals and you
haven't been able to address that.  And to caution you to again just
keep things in perspective with respect to authority resources and other
competing priorities.

		CHAIRMAN SILVERSTEIN:  I know that you have t leave soon, but I'd like
to comment very briefly on the comments that each of the three of you
made earlier.

		First of all, Debbie, you gave us a number of enforcement-related
examples, the SCEP Program, the recordkeeping NEP, the grain-handling
letter that you sent out.  In each case the actions that federal OSHA
took required action by the states that had state plans.  And so
speaking for a second as a state plan administrator, I would just urge
OSHA to be more attentive to the need to have discussions about those
things a bit earlier than has been the case recently.  And I think that
can be done without ceding your authority to make decisions in a timely
manner, which is really important.  But I think that there are
opportunities to strengthened the federal/state relationship on these
kinds of issues.  We really had to rush, for example, with regard to the
grain-handling letter, which took us by a greater degree of surprise
than I think was necessary.  So there's some improvements that could be
made.  So we just offer that suggestion.

		With regard to I2P2, I appreciate the breadth of the approach that
you're taking, touching all the basis with regard to the elements of a
management program, but I think that the heart of this is what you
described as find and fix, the obligation to identify hazards and once
recognized to have a plan in place to control them.  If that element is
either absent or weak, none of the rest of it matters.  And I think you
ought to focus a great deal of attention on that piece of it.  I think
that's the heart of it.  That's a personal view, but I offer that to
you.

		With regard to PELs, I understand and I would support OSHA moving
ahead on some specific chemical rules, whether it's just improving some
of the PELs by themselves or more comprehensive rules for a control of
chemical hazards.  But I really support the broader approach that I
think that you described in which you said that no one approach is going
to work, that you have to really do a number of different things.  If
all the agency does is focus on specific limits for individual
chemicals, it's equivalent to what I've thought of for a number of years
as trying to seasoning your food one grain of salt at a time.  You're
never going to get done.  I mean we're talking about tens of thousands
of chemicals and spending resources on doing complicated rulemaking on
one at a time just doesn't even come close to meeting the need.  So I
think you've got to be thinking about things quite seriously like
chemical banding or controlled banding or other methods that are going
to address numerous chemical hazards at the same time, otherwise you're
just not coming close to addressing the problem.  So I would just offer
those suggestions to OSHA.

		How much longer do you have?

		MS. BERKOWITZ:  I have until three.

		CHAIRMAN SILVERSTEIN:  Okay.  There were other hands up.  Joe?

		MR. VAN HOUTEN: I just wanted to offer a counterpoint to Peg's comment
about fleet safety.  I work at a company that has been very fortunate
not to have a fatality in our manufacturing facility for over 25 years.
During that same period of time we've had 20 employees who have been
killed in traffic accidents.  Preventing the next fatality at Johnson &
Johnson means that we want to have a very effective fleet safety program
in place.

		This group of employees, employees that drive on company business,
drive a company car on company business is currently not covered by any
standard.  You have the DOT that it meets commercial drivers, but below
that there is no standard.  I had one employee unfortunately who was
killed in a car accident.  And when I notified OSHA about the fatality,
there was no interest by OSHA in that fatality and I think that's a
shame.  And that's why I think that there should be stronger interest on
the part of OSHA to be interested in employees that drive on company
business, drive company cars on company business.

		CHAIRMAN SILVERSTEIN:  Bill?

		MR. BORWEGEN:  And I forgot about these bad situations with indoor air
quality and what were the others.  I think we can learn from Peg's
wisdom and my failure to remember some of these struggles.  But I also
concur with Joe.  So I think what we need to do is you need to try to
get DOT to carry as much of this water as possible.

		MS. BERKOWITZ:  Sure.  Right.

		MR. BORWEGEN:  And to the degree you can stay in the backseat, no pun
intended, DOT has really got to be out front on this and but you could
help inform and educate them about these situations.

		MS. BERKOWITZ:  Right.  And that's what we're planning on doing.

		CHAIRMAN SILVERSTEIN:  Other comments, questions for OSHA?  One last
one, Peg.

		MS. SEMINARIO: It's a different issue here and that is going back to
the national emphasis program on recordkeeping.  You'd said that you're
looking at modifying the targeting criteria.  Can you talk a little bit
more about what the issues were involved in the initial directive and
what you're thinking about now because this is obviously an area of
great concern and I think the approach that was taken to begin with was
pretty narrow.

		MS. BERKOWITZ:  Right.  I think that's what we felt.  I think with
every NEP that OSHA has that last for a while you tend to look at where
you're going and then decide let's shift the universe a bit.  And right
from the beginning we actually thought about that.  We thought that we
would have this go for a while and then we would shift it a bit.

		I believe that everything is almost -- we had to reconfigure the
computers, but everything should be ready in the next couple of days.
What we were looking at is slightly altering who would be subject to it.
 Right now it's only employers that have the lowest injury and illness
rates.  And that's where we were looking because there was a thinking
that that's where we would find some recordkeeping violations if they
were in high-hazard industries.

		And so now we're looking to broaden that a bit and not just the people
with the lowest injury and illness rates, but that have a little bit
higher, but are still below a certain number based on the GAO report,
based on everything we've read of where the violations are and also
trying to look at some larger facilities also and build that into the
mechanism of focusing.  That what's will take us through the next year
on this.

		CHAIRMAN SILVERSTEIN:  Thank you.  Anything else?

		(No response.)

		CHAIRMAN SILVERSTEIN:  We thank you very much.  We will continue to
talk about some of these topics with Dr. Michaels tomorrow.

		MS. BERKOWITZ:  Yes, he'll be here all day.

		CHAIRMAN SILVERSTEIN:  This sets us up very well for that conversation
with him.  So I appreciate.

		MS. BERKOWITZ:  Thank you.

		CHAIRMAN SILVERSTEIN:  We're not doing badly.  We're a bit off and
need to do some retooling for the rest of the day, but we're not doing
badly here.

		What I had anticipated for the rest of the afternoon, starting at
2:30, which has long gone now.  What I was anticipating was an hour for
us to have a discussion with the whole committee about topics that might
be appropriate for further work in addition to the continued work on the
Gulf Oil situation and then for the last hour to break into at least two
groups, probably no more than three, but two groups.  One would be Gulf
Oil and the other would be some topic that we would have decided in the
group discussion.  But I'm not sure that we have time to do it that way.
 So what I'd like to do is take a break now, a 10-minute break and then
come back and let's have a conversation about how we can most
effectively make use of the rest of the day and tomorrow morning.  So
during the break think a little bit about how we can organize the rest
of the day.

		(Whereupon, a short recess was taken.)

		CHAIRMAN SILVERSTEIN:  I'd like to go back on the record and Sarah as
a couple things to add.

		MS. SHORTALL:  Okay, Mr. Chair, I'd like to add a few more exhibits to
the record.  As Exhibit .23, the NIOSH Influenza Update PowerPoint
presented by John Howard.  As Exhibit .24, the CD distrusted to NACOSH
members containing NIOSH scientific information products.  As Exhibit
.25, 11 brochures of NIOSH informational material basically entitled A
Story of Impact.  And as Exhibit .26, comments on the CDC Guidance for
Prevention Strategics for Seasonal Influenza in Healthcare Settings from
Bonnie Rogers, Director of North Carolina Occupational Safety and Health
and Education Research Center on behalf of the National Occupational
Research Agenda Healthcare and Social Assistance Sector Council.

		With regard to Exhibit .24, what we will also be doing for the
informational record is inserting into the record a list of all records
that are on that CD and hopefully, hyperlinks to all of them so that any
member of the public would be able to get access to those documents.

		CHAIRMAN SILVERSTEIN:  Okay.  Thank you.

		I need the committee's help on making an operating decision here.  My
hope was that by this time today we would have identified one other
subject that was a good possibility for an additional workgroup and that
we would take an hour at the end of the day here to break into two
workgroups, one being the Gulf Oil and the other being the other subject
and we would have had an hour to discuss those and then we could
continue that discussion tomorrow.

		We're clearly not there yet.  So there are two options that I would
pose to you.  The first is that we break into two groups now.  One of
which would be the Gulf Oil subgroup to continue that discussion.  And
then the other group would be specifically for the purpose of doing some
brainstorming about another subject that we might tackle in more detail.
That's option one.

		Option 2 is that we simply continue to have a discussion as an entire
committee for a while doing some brainstorming about which subject or
specific subjects we really ought to focus our attention on, in addition
to Gulf Oil.  So those are two different possibilities.

		MR. BUCHAN:  I prefer Option 2.

		CHAIRMAN SILVERSTEIN:  Which would be to continue as an entire group
to do some brainstorming based on all the input we've had earlier in the
day.  Would others agree with that?

		MS. SEMINARIO:  I do.  I think that as well as far as the Gulf group
maybe refocus a little bit since there have been so many changes and we
got so much information today.  I think you're correct there's
definitely some validity keeping it going, but maybe refocus and see
what the other team members think.

		CHAIRMAN SILVERSTEIN:  So that would mean we would stay as a group
here with two topics.  One would be general brainstorming.  My guess is
that other committees share with me the view that if we just continued
to discuss with the agency all the things that they're doing we'll never
reach any closure on anything and that we've got to pick.  And so the
first subject for us as a group would be to do some brainstorming with
an effort to make some decisions about where we would focus energies.

		And then the second topic would be helping the Gulf Oil workgroup
sharpen up the next stages of its work.  Does that work for everybody?

		MR. BUCHAN:  I would like to say something about the Gulf Oil group.
I really think that we are behind the curve now.  When we met last time
there was a lot going on that we did not know about.

		Our briefing today made me feel very good about NACOSH, OSHA, EPA,
NIEAS, and the roles that they played.  And it's still continuing.
There's still some cleanup and I agree with that.  But they are already
going though the process of lessons learned.  And I think that OSHA and
NIOSH are probably going to be in pretty good shape for whatever happens
next week that's a major disaster in this country.

		I volunteered to serve on the Gulf Oil Spill group.  And quite
frankly, I don't see that we have that much to do, considering what
NIOSH and OSHA have already done and are doing.

		CHAIRMAN SILVERSTEIN:  Okay, let's do this.  Let's take the first part
of the rest of the afternoon, the next half hour or so and talk
specifically about the Gulf Oil issue and then we'll do the more general
brainstorming.

		Thoughts about it?  Denise?

		MS. POUGET:  Just thoughts listening to the report, which I too
thought was really complete and there was a lot more going on than I
realized.

		But just in general, just so that all the lessons learned are getting
tied together, broaden the scope as to allow the lessons learned to
encompass all HAZMAT disaster, maybe perhaps not just necessarily the
Gulf oil spill.

		But one thing just from the fire department side, we have somewhat
boilerplate things that we ensure happen the minute something occurs, an
emergency occurs.  And I'm uncertain if that's the same thing because
OSHA went in there and did a lot, based on what they told us.  And maybe
all that was going on when we first met, but we didn't know that.  It
seemed a little hodgepodge from the information we were getting.  But I
would think that discussions on just in general are these lessons
learned like, for example, worker safety and health is number one.

		So what immediately happens as far as an analysis for protective
equipment, training for the individuals, organization information and
feedback for the individuals, rehabilitation for the individuals.  How
long did that take for that to happen so that if we have, for example,
another spill -- in general, you can look because there's chemical,
petroleum, so forth -- things that we should be doing immediately.  That
was my thought.

		We could make recommendations that immediately we ensure that worker
health and safety is number one.  And here are the things that we
strongly recommend that ensure are happening right off the bat.  I mean
I realize there's some assessment and so forth that takes place, but we
were kind of really unsure of what was going on last time we met, but
that was my thought.

		CHAIRMAN SILVERSTEIN:  We'll start this way.  Emory?

		MR. KNOWLES:  Emory Knowles.  Again, just a quick comment.  They're
going through the lessons learned.  I think we need to wait until we see
what comes out in terms of publications of the lessons learned.  That
will give the committee a much better idea whether or not we need to
recommend further movement, for example, towards a specific standard on
heat stress or what have you.  But I think we ought to at least give
them the opportunity to pull together the lessons learned.  I think
we'll see a lot of good from that.

		CHAIRMAN SILVERSTEIN:  Joe?

		MR. VAN HOUTEN:  Michael, the one area that still concerns me is the
issue of the 11 workers that died as part of the initial explosion.
When I reflect on OSHA's report today that the 18 egregious cases that
they brought forward this is not one of them because they don't have
jurisdiction.

		I would like us to have some discussion around that and I'll leave it
to you to find out if this is a point of order or whether we can discuss
this.  But when I look at the safety of the American workforce, I think
that these 11 Americans should be discussed.

		I don't know if any of you saw this report that just came out.  It's
called Public Attitudes Towards and Experiences With Workplace Safety.
It came out in the last month or so.  And Tom Smith who did this report
said that of all the public opinion polls that were done around the Gulf
oil spill none of them talked about the 11 workers that were killed.
All of them talked about the environmental contamination.  I'd like to
bring that discussion back so that we talk about the initial event,
those 11 people who were killed and see what kind of recommendation we
can make going forward so that these lives are protected in the future.

		CHAIRMAN SILVERSTEIN:  Peg?

		MS. SEMINARIO:  Just to follow up on that, I mean OSHA will look at
lessons learned and hopefully do that in coordination with NIOSH.  But I
think John Howard in his opening remarks on this made a very good point,
which I tried to reiterate is that in this case I think the agencies did
a good job, but there is nothing in our planning mechanisms, planning
documents in oil or in any of the other planning that goes in the
organizational structures that puts worker safety and health first.

		I mean OSHA puts it first.  NIOSH puts it first.  And they yelled and
they screamed and they got at the table.  But if you look at the
apparatus that is set up in this country for responding to emergencies,
workers safety and health is an annex.  And it's up to somebody else,
the Coast Guard or somebody else, whoever is the lead to decide whether
or not they want to activate that annex and have worker safety and
health issues looked at.

		So I don't think that's an issue of lessons learned for OSHA and NOSH.
 I think that's a policy issue that needs to be address in looking at
this, and that this committee it would be a useful role to look at those
structures and what does it take and what should change to make worker
safety and health first?  Because as I said, in every one of these cases
worker safety issues are front and center.

		I mean 11 workers died up front and the exposures were workplace here.
 But that, on paper anyway, is a secondary element of the response and I
think that's something that needs to be addressed.

		CHAIRMAN SILVERSTEIN:  That's a good point.  I think jurisdiction is
part of that, but the entire question.  Bill?

		MR. BORWEGEN:  If you look at preliminary information, it would lead
you to believe that the safety culture among the workforce could have
resulted in this tragedy.  But I just have to agree.  This idea of this
nonmandatory appendix we need to elevate OSHA's stature for these future
responses.  I mean it's crazy that it's in again a nonmandatory
appendix.  So some how we need to elevate and codify OSHA's role in
whatever national response plans we have to deal with these types of
emergencies or catastrophes.  And I think that's a unique role that this
committee could play to publicize this in equity and that it needs to be
addressed.

		Peg wants to make health and safety first.  I just want to get it on
some kind of even kill.  I mean right now it's less essentially.

		CHAIRMAN SILVERSTEIN:  I appreciate the comments being made.  I agree
with them, but I'm trying to wrestle in my mind with how as a committee
that is advisory to these agencies we can actually make some headway in
these areas because it doesn't make sense to me, for example, that we
recommend to OSHA and NIOSH that they no longer be treated as an annex.
So just help me think through what we can actually do that will have an
impact.  I'll come back around Peg.  Linda?

		MS. MURRAY:  From what I understand we're talking about, I guess I
want to strongly suggest we keep a subcommittee.  And it maybe that
we're not looking only at Gulf Oil, but I would argue that we should
expand the Gulf Oil workgroup to the protection of workers in emergency
response.  And I think we can make a series of recommendations for NOSH
and OSHA.

		I think you're right.  The real questions is not what lessons they
learned.  The real question is what lessons did Homeland Security and
the Coast Guard and the other people learn.  And I'm not confident that
they learned the right lessons.  But the advice to NOSH and OSHA could
easily be to work with the appropriate agencies, both in the mandatory
FEMA training that all public health people have to take as well as in
other setting at the federal level and filtering down to state and local
jurisdictions to give people the tools that allow them to do this.

		I  mean it's fine to say we should be first, but the reality is in
most emergency settings there's no one for hundreds of miles that have a
clue how to do that, how to protect workers.  I want to remind people
that haven't been to the FEMA training recently it's there.  I mean it's
supposed to be one of the mandatory things you're supposed to have as
somebody that pulls the trigger if health and safety of the emergency
response people are in danger.  How that gets operation-wise is
different.

		So I'm specifically suggesting that we broaden that workgroup's
charter to look at how can NOSH and OSHA, through training, policy, a
whole series of things make sure that the health and safety of workers
involved in an emergency is appropriately addressed.  And I do think
means policy changes as well as training and other kinds of stuff.

		CHAIRMAN SILVERSTEIN:  Sounds very helpful.

		MS. POUGET:  I actually totally agree with what Linda just said
because just from my perspective listening last time as an emergency
worker I'm pretty well prepared for this stuff and I'm listening to no
respirators, no this, no that.  And it seemed very fuzzy as to just
exactly what they were doing for these people.  And the one thing that
sticks out clearly in my mind is one day you're fishing for a living.
The next day you're cleaning up hazardous materials for a living.  So
these people have absolutely no idea what they're getting into, none.

		So that's why I think that something like this would be very
beneficial, these recommendations.

		CHAIRMAN SILVERSTEIN:  Yes?

		MS. SHORTALL:  Can I ask a question of Ms. Murray?

		When you said the word 'emergency,' did you mean to include the
clean-up after emergency has ended?

		MS. MURRAY:  All of it.  It has to be all of it.

		MS. SHORTALL:  Okay.

		MS. MURRAY:  And if you go through the training and manage to stay
away, which is a big challenge, the FEMA training is very clear that
you're supposed to have somebody there.  And they're very clear that it
includes pass the acute period.  That you have to be able to shut down
the entire incident.  So all of that is included.  And in something like
the Gulf Oil that may very well be nine months, a year out.

		And again, we should see NIOSH and OSHA as repositories of expertise
that is in scarce supply in our country.  So the ability to figure out
how to spread that expertise and how to be technical consultants and a
whole range of other kinds of tasks seems to me to be appropriate.

		MS. SHORTALL:  I guess the reason I ask that question is some of the
documents that the Department of Homeland Security and other agencies
have developed regarding various types of emergency situations such as
dirty bombs or biological things some of them divide the tasks very
distinctly into that which would be considered emergency response and
that which would be considered clean-up after an emergency has ended.
That's why I wanted to inquire.

		MS. MURRAY:  But don't forget we're talking about the impact on
workers.  So workers are there during all those time periods.  And I
want to be also clear that's why I asked what I did about local
governmental workers, okay.  So even workers that are  not technically
in the jurisdiction of OSHA, for example, we need to provide tools for
that.

		Let me make one concrete suggestion because I'm not on that workgroup.
 And maybe one of the things they ought to do is force BP out of the
money that they owe us, owe the government, all the different levels of
government to set up a special fund or something that can actually fund
some research and some direction in this area.  What do we do about
protecting workers, especially people that aren't normally emergency
responders?  The responders we get a bunch of training, but then we
always have people involved that don't have that level of training and
are coming in totally blind and unknown.

		CHAIRMAN SILVERSTEIN:  Anybody else?  Peg?

		MS. SEMINARIO:  One of the other issues that needs to be looked at,
which still isn't clear to me after spending a lot of time, including a
series of weekly calls we ended up having with OSHA and NIOSH on the
Gulf Coast clean-up and worker protection issues is the whole issue of
training for those individuals.  And I think it came up as an issue.
Decisions were made early on about limiting the amount of training that
was required and not applying the requirements of the HAZWOPER standard.
 Never sort of clarity as to why that was other than that's what had
happened at Exxon Valdez.

		But clearly there was not the apparatus in place, either
institutionally or with respect to the workforce there to respond to
this incident in so many ways.  And one of those ways was making sure
that people had training and what that was and what kind of training was
really needed.  I think actually looking at that in a further analysis
and evaluation, not just lessons learned but some evaluation as to
whether what was done was adequate or not is something that could
happen.  And that the training piece of it is really critical and having
in place beforehand a sense of what kind of training is appropriate.
Because this is one area where there actually are some standards that do
apply.

		CHAIRMAN SILVERSTEIN:  The jurisdictional issues are interesting.  I
carry around in my briefcase like a 7- or 8-page document that goes
through all kinds of scenarios.  If there's been a problem on Tribal
land and the employer is the Tribal employer whose jurisdiction is it?
What if it's Tribal land and it's a non-Tribal employer?  And then what
if it's an inland waterway that's navigable?  How about an inland
waterway that's not navigable?  What about if it's a railroad?  What
about if it's an airplane in the air?  It gets very complicated and I
think the Gulf Oil situation it put a spotlight on how fractured the
systems are and how OSHA and NIOSH are often peripheral or become
peripheral.

		MR. BORWEGEN:  I was going to offer a suggestion.  It might be
simplistic and not feasible, but if we are advisory to I think the
Secretaries of Labor and Health and Human Services, is it outside of our
bounds to say that -- because I don't know what agency was responsible
for safety out on that rig.  I don't know.

		But agency X is responsible for safety that because OSHA is a
recognized expert when it comes to occupational safety and health, they
must review whatever plans that agency has in place regarding on-site
inspections to make sure that they give the imprimatur to that plan on
behalf of that agency.

		So to set up OSHA as the lead agency for all federal agencies to
review issues of occupational safety and health.

		CHAIRMAN SILVERSTEIN:  Statutorily, it's going to be hard.  I mean
think about it.  All the state employees that work in Louisiana and
Florida they're not even covered by OSHA statutorily, right.