02-122. Advisory Committees

ACTION:

Final rule; amendments to procedural rules.

SUMMARY:

The Occupational Safety and Health Administration (OSHA) is amending its rules governing membership on advisory committees to clarify that the Secretary has the discretion to remove and replace an advisory committee member at any time. The advisory committee rules, including the rules dealing with the tenure of members, are rules of agency organization, practice, or procedure, for which public notice and comment are not required.

DATES:

These amendments are effective January 7, 2002.

FOR FURTHER INFORMATION CONTACT:

Bonnie Friedman, OSHA Office of Public Affairs, U. S. Department of Labor, 200 Constitution Avenue, N.W., Room N3647, Washington, DC 20210, phone [phone].

SUPPLEMENTARY INFORMATION:

Section 7(a)(1) of the Occupational Safety and Health Act, 29 U.S.C. 656(a)(1), establishes a National Advisory Committee on Occupational Safety and Health (NACOSH). The purpose of NACOSH is to “advise, consult with, and make recommendations to the Secretary [of Labor] and the Secretary of Health and Human Services on matters relating to the administration of the Act.” 29 U.S.C. 656(a)(2). NACOSH consists of 12 members, appointed by the Secretary of Labor, who represent management, labor, occupational safety and occupational health professions, and the public.

The Construction Safety Act (CSA), 40 U.S.C. 333, created the Advisory Committee on Construction Safety and Health (ACCSH), to advise the Secretary on standard-setting and other matters related to the administration of the CSA. See 29 CFR 1912.3. In addition, section 7(b) of the Act, 29 U.S.C. 656(b), gives the Secretary of Labor the authority to establish additional advisory committees to assist in the Secretary's standard-setting functions under 29 U.S.C. 655. Such committees may be either continuing committees or ad hoc committees established to render advice in particular rulemaking proceedings. 29 CFR 1912.2. The Secretary has exercised that authority to establish, as a continuing committee, the Maritime Advisory Committee for Occupational Safety and Health (MACOSH), and has also established ad hoc committees to advise on particular rules.

Advisory committees have played an important role in the administration of the OSH Act by providing a means for the Secretary and the Assistant Secretary for Occupational Safety and Health to obtain the advice of persons representing a variety of interests on how best to fulfill the Act's objective of ensuring that American workers have safe and healthful workplaces. However, the advice the committees render is only valuable to the Secretary and the Assistant Secretary if they have full confidence in the members of the committees. To ensure such confidence, the Secretary must have the discretion to remove and replace any member in whom she lacks confidence.

The current regulations governing the tenure of all advisory committee members except those on NACOSH give the Secretary complete discretion to appoint members who have her confidence. Section 1912.3(e), which applies to ACCSH, allows the Secretary to remove and replace a member “in the interests of the administration of legislation involved.” Section 1912.10(a), which governs other continuing advisory committees, allows the Secretary to remove a member “in the interest of the administration of the Act.” Similarly, section 1912.11, which deals with ad hoc committees, allows the Secretary to remove a member “in the interest of the administration of the Act.” These provisions also provide for the Secretary to remove a member of an advisory committee if that member becomes unable to serve or no longer meets the representational requirements of the Act. The current regulation governing tenure of members on NACOSH is unique in that it does not provide for removal of a member at the discretion of the Secretary. A member may be removed only if he or she becomes unable to serve, if the Secretary determines that he or she no longer meets the representational requirements of the Act. 29 CFR 1912a.3.

OSHA believes that the same removal requirements should apply to all advisory committees. As already discussed, the Secretary and Assistant Secretary must have complete confidence in all advisory committee members and must be able to remove any member in whom they have lost confidence. Therefore, section 1912a.3, which applies to NACOSH, is being amended to be consistent with the regulations applicable to the other advisory committees under the Act to give the Secretary full discretion to remove any advisory committee member for any reason. By providing that the Secretary has complete discretion to remove a member, it is no longer necessary to include the specific bases upon which a member may be removed (i.e., unable to serve or no longer meets the representational requirements of the Act). Therefore, the sections pertaining to removal—1912a.3, 1912.3(a), 1912.10(a), and 1912.11—are being amended so that they are worded consistently and provide that the Secretary may, in his or her discretion, remove any member at any time.

These amendments constitute a rule of agency organization, practice, or procedure. Hence, notice-and-comment procedures are not required. 5 U.S.C. 553(b). These amendments are to take effect immediately. Given the technical and procedural nature of these amendments, the agency finds that it is unnecessary to provide 30 days before this rule takes effect, and hence has good cause for making the effective date immediate pursuant to 5 U.S.C. 553(d)(3).

AUTHORITY AND SIGNATURE:

This document was prepared under the direction of John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor. It is issued pursuant to sections 7 and 8(g)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 656, 657), 5 U.S.C. 553, and Secretary's Order 3-2000 (65 FR 50017).

List of Subjects

29 CFR Part 1912

• Advisory committees
• Freedom of information
• Occupational safety and health

29 CFR Part 1912a

• Advisory committees
• Occupational safety and health

Signed at Washington, DC, this 28th day of December, 2001.

John L. Henshaw,

Assistant Secretary of Labor.

Accordingly, parts 1912 and 1912a of 29 CFR are hereby amended as set forth below:

PART 1912—[AMENDED]

1. The authority citation for 29 CFR part 1912 is revised to read as follows:

Authority: Secs. 4, 6, 7, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 656, 657); 5 U.S.C. 553; Federal Advisory Committee Act (5 U.S.C. App. 2); sec. 107, Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 333); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 3-2000 (65 FR 50017), as applicable.

2. Paragraph (e) of § 1912.3 is revised to read as follows:

§ 1912.3

Advisory Committee on Construction Safety and Health.

* * * * *

(e) Except as provided in paragraphs (f) through (j) of this section, each member of the Advisory Committee shall serve for a period of 2 years. Appointment of a member to the Committee for a fixed time period shall not affect the authority of the Secretary to remove, in his or her discretion, any member at any time. If a member resigns or is removed before his or her term expires, the Secretary of Labor may appoint for the remainder of the unexpired term a new member who shall represent the same interest as his or her predecessor.

* * * * *

3. Paragraph (a) of § 1912.10 is revised to read as follows:

§ 1912.10

Terms of continuing committee members.

(a) Each member of a continuing committee established under section 7(b) of the Act, other than those appointed to a committee when it is formed initially shall serve for a period of 2 years. Appointment of a member to the Committee for a fixed time period shall not affect the authority of the Secretary to remove, in his or her discretion, any member at any time. If a member resigns or is removed before his or her term expires, the Secretary of Labor may appoint for the remainder of the unexpired term a new member who shall represent the same interest as his or her predecessor.

* * * * *

4. Section 1912.11 is revised to read as follows:

§ 1912.11

Terms of ad hoc committee members.

Each member of an ad hoc advisory committee shall serve for such period as the Assistant Secretary may prescribe in his notice of appointment. Appointment of a member to the Committee for a fixed time period shall not affect the authority of the Secretary to remove, in his or her discretion, any member at any time. If a member resigns or is removed before his or her term expires, the Secretary of Labor may appoint a new member to serve for the remaining portion of the period prescribed in the notice appointing the original member of the committee.

PART 1912a—[AMENDED]

5. The authority citation for 29 CFR Part 1912a is revised to read as follows:

Authority: Secs. 4, 6, 7, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 656, 657); 5 U.S.C. 553; Federal Advisory Committee Act (5 U.S.C. App. 2); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 3-2000 (65 FR 50017), as applicable.

6. Section 1912a.3 is revised to read as follows:

§ 1912a.3

Terms of membership.

Commencing on July 1, 1973, the terms of membership shall be divided into two classes, each consisting of six members. Members of the first class shall be appointed for a term of one year. Members of the second class shall be appointed for a term of two years. Thereafter, members shall be appointed for regular terms of two years. At all times the Committee shall be composed of representatives of management, labor, and occupational safety and health professions, and of the public. Appointment of a member to the Committee for a fixed time period shall not affect the authority of the Secretary to remove, in his or her discretion, any member at any time. If a member resigns or is removed before his or her term expires, the Secretary of Labor may appoint for the remainder of the unexpired term a new member who shall represent the same interest as his or her predecessor.