[Federal Register Volume 64, Number 127 (Friday, July 2, 1999)]
[Proposed Rules]
[Pages 35972-35981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16592]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1908
[Docket No. CO-5]
Consultation Agreements: Proposed Changes to Consultation
Procedures
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: OSHA proposes to revise its regulations for federally-funded
on-site
[[Page 35973]]
safety and health consultation visits to provide for greater employee
involvement in site visits; to require that employees be informed of
the results of these visits; to provide for the confidential treatment
of information concerning workplace consultation visits; and to update
its procedures for conducting consultation visits.
DATES: Written comments must be submitted on or before September 30,
1999.
ADDRESSES: Send two copies of your comments to: Docket Office, Docket
No. C-05, Room N2625, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC
20210. Comments limited to 10 pages or fewer may also be transmitted by
FAX to: 202-693-1648, provided that the original and one copy of the
comment are sent to the Docket Office immediately thereafter.
Comments may also be submitted electronically through OSHA's
Internet site at URL, http://www.osha/slc.gov/e-comments/e-comments-
consult.html. Information such as studies and journal articles cannot
be attached to electronic submissions and must be submitted in
duplicate to the above address. Such attachments must clearly identify
the respondent's electronic submission by name, date, and subject, so
that they can be attached to the correct submission. The entire record
for the Proposed Changes to the Consultation Procedures is available
for inspection and copying in the Docket Office, Docket C-05, telephone
202-693-2350.
FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of
Information and Consumer Affairs-OSHA, Rm. N-3647, 200 Constitution
Avenue NW, Washington DC 20210. Telephone: (202) 693-1999.
SUPPLEMENTARY INFORMATION:
I. Background
The OSHA On-Site Consultation Program
The Occupational Safety and Health Administration (OSHA), under
cooperative agreements with agencies in 44 states, the District of
Columbia, and several U.S. territories, administers and provides
federal funding for an on-site consultation program which makes trained
health and safety personnel available, at an employer's request and at
no cost to the employer, to conduct worksite visits to identify
occupational hazards and provide advice on compliance with OSHA
regulations and standards. (In the remaining 6 states and 2 territories
on-site consultation services are provided to small employers in the
private sector as part of an OSHA-approved state plan funded by federal
grants under section 23(g) of the Occupational Safety and Health (OSH)
Act, rather than under cooperative agreements). Priority in providing
on-site consultation visits is accorded to smaller employers in more
hazardous industries. (Various OSHA directives currently specify that
priority for consultation services be given to employers having not
more than 250 workers at the site receiving the consultation, and no
more than 500 workers nationwide). The consultation program was first
authorized by Congressional appropriations action in 1974. On July 16,
1998, President Clinton signed into law the Occupational Safety and
Health Administration Compliance Assistance Authorization Act (CAAA),
Pub. L. 105-197, which codifies this important OSHA program as a new
subsection 21(d) of the Occupational Safety and Health Act.
The OSHA on-site consultation program is administered in accordance
with regulations at 29 CFR Part 1908. These regulations provide, among
other things, rules and procedures for State consultants performing
worksite visits. In the present Federal Register notice, OSHA proposes
several revisions to these rules, and requests interested members of
the public to submit any data, views, or arguments relevant to these
proposed changes, during a 90-day public comment period.
II. Proposed Changes to 29 CFR 1908
Employee Walkaround Rights
Current consultation program regulations provide that employees,
representatives of employees, and members of joint workplace safety and
health committees may be allowed to accompany the consultant and the
employer's representative during the on-site consultative visit ``to
the extent desired by the employer'' [29 CFR 1908.6(c)(2)]. Although
these regulations encourage, but do not require, the employer to accord
``walkaround'' rights to employee representatives, OSHA's procedures
have for some time required that union representatives should be
accorded walkaround rights during consultation visits to unionized
workplaces. [Consultation Policies and Procedures Manual, TED 3.5B
Chap.VI, p. VI-9 (1996)]. One of the goals established for OSHA by the
National Performance Review in a 1995 report was to revise agency
procedures to assure that employees are included in the consultation
walkaround. [National Performance Review, The New OSHA: Reinventing
Worker Safety and Health (May, 1995.)] Finally, the newly-enacted
Compliance Assistance Authorization Act directs OSHA to require that
states carrying out consultation visits ``ensure that on-site
consultations * * * include provision for the participation by
employees.''
OSHA strongly believes that active employee participation is
essential to the success of any systematic effort to address health and
safety issues in the workplace. Although the role of employees in
consultation visits differs from their role in OSHA enforcement
inspections, where employee representatives have statutory rights to
participate both in the investigation and in subsequent enforcement
litigation, there are many potential advantages to active employee
involvement during a consultant's worksite visit. Employees often have
firsthand knowledge of hazards in the workplace. Sometimes, employees
are in a position to make valuable suggestions which can be of
assistance in formulating the consultant's recommendations. OSHA also
believes employee involvement during a consultation visit can be a
stimulus to further employee involvement in an employer's ongoing
health and safety effort.
In order to assure fuller participation by employees in the
consultation process, OSHA is proposing to amend 29 CFR Part 1908 to
expressly provide authorized employee representatives a right to
accompany the consultant during the physical inspection of the
workplace. Where there is no authorized employee representative, or if
the representative cannot be determined, the consultant shall speak
with a reasonable number of employees concerning matters of safety and
health in the workplace. These general provisions are derived from the
current employee walkaround provisions in 29 CFR Part 1903, OSHA's
regulations on the conduct of enforcement visits. OSHA is further
proposing that authorized employee representatives should be afforded
the opportunity to participate in opening and closing conferences with
the consultant (either separately or jointly with the employer).
Employee Notification of Hazards
The legislative history of the Compliance Assistance Authorization
Act reflects a congressional expectation that in carrying out the
mandate to provide for employee participation, information on hazards
identified by the consultant and corrective actions proposed will be
made available to
[[Page 35974]]
affected employees. [House Report 105-444 105th Cong., 2d Sess., 6-7].
The National Performance Review had earlier recommended that employees
be furnished copies of the consultant's written report at the
conclusion of each consultation visit. However, as is explained
elsewhere in the present Federal Register notice, disclosure of the
complete written report has traditionally been extremely limited.
Present regulations protect the employer's right to keep the
consultant's report confidential from OSHA enforcement officials [29
CFR 1908.7(a)(3); 1908.7(c)(3)]. It has also been the longstanding
practice of state consultation agencies not to disclose these reports
to anyone but the subject employer.
OSHA believes it is essential to an effective safety and health
management system that employees be made aware of any significant
hazards identified during the course of a consultation visit. At the
same time, a consultation visit is a voluntary service provided to
small employers who typically would be unable to afford the services of
paid safety or health consultants. The visit is not an enforcement
inspection which leads to the issuance of citations; involves the
creation of inspection records, many of which will ultimately be
subject to public disclosure; or has provisions that allow the employer
to contest alleged violations. Consultation visits and subsequent
reports reflect the best professional judgement of consultants, but the
consultant's report of hazards does not have to meet all the legal
standards required for the issuance of a citation for violation of OSHA
regulations and/or the OSH Act. Further, the report often contains many
details about business practices, processes and personnel not
ordinarily made public by the employer. Moreover, the success of OSHA's
consultation program depends to a great extent on the voluntary
cooperation of employers who request its services; the confidentiality
of the consultant's report has long been viewed by OSHA and state
consultants as essential to continued participation by employers in
this important program.
OSHA proposes to amend Part 1908 to require that a list of serious
hazards and hazards addressed by OSHA rules that are identified by the
consultant, the corrective action proposed, and the dates for
completion of corrective action be forwarded to the employer at the
same time the consultant's written report is furnished. OSHA also
proposes that each employer be required to post this list in a
prominent place that is readily observable by all affected employees,
for 3 working days or until hazards are corrected, whichever is later.
If an authorized employee representative has participated in the
consultation visit, a copy of the posted list will be furnished
directly to the authorized representative. At the same time, as
discussed below, language would be added to 29 CFR part 1908 making
clear that the full text of the consultant's written report to the
employer remains confidential, and, except in certain unusual
circumstances, can be disclosed to others only with the employer's
consent.
Existing 29 CFR 1908.7(c), which deals with the effect of a prior
consultation visit in the event of a subsequent OSHA enforcement
inspection, is being updated. The current provision specifies at
1908.7(c)(3) that an employer is not required to furnish a copy of the
consultant's written report to the compliance officer, except to the
extent that disclosure of information in the report is required by 29
CFR 1910.20. The referenced regulation, OSHA's rule requiring that
certain employee medical and exposure records be made available to
employees and to OSHA, has been recodified at 29 CFR 1910.1020.
Moreover, there are now a number of other provisions included in OSHA
standards or regulations which require the sharing of safety- or
health-related information which may in some instances be included in
consultant's reports, [see, e.g. 29 CFR 1910.110(c)(3) (employee access
to chemical process hazard analyses)]. Paragraph 1908.7(c) is therefore
being updated to assure that information whose disclosure is
specifically required by an OSHA standard or regulation must continue
to be made available by the employer when such information has been
included in a consultant's report.
Disclosure of Consultation-Related Information
1. Consultation Program Data
During the course of a consultation visit, the consultant gathers
information and data about work processes, business practices, safety
procedures, and accident or injury experience at an employer's
workplace, all of which are needed in formulating advice for the
employer on ways of complying with OSH Act requirements. Such
information, gathered from employers during the course of a workplace
consultation visit, is normally retained by the state consultation
agency. OSHA regulations have always maintained the strict
confidentiality of employer-specific consultation information from OSHA
enforcement personnel, in order to assure employers who avail
themselves of this service that their use of the consultation service
will not be the basis for scheduling an OSHA enforcement inspection or
for other enforcement-related purposes [29 CFR 1908.7(a)(3)].
Occasionally, non-enforcement federal OSHA personnel obtain access
to confidential material during the course of evaluating state
consultation programs or rendering program assistance. OSHA has had
access to such information more frequently in recent years as the
agency has begun to incorporate consultation program information in
federal databases such as the Integrated Management Information System
(IMIS.) Federally-collected management data includes, among other
information, worksite-specific injury and illness rates for employers
visited by consultants. In addition, some limited sharing of
information with enforcement personnel is necessary to carry out the
Safety and Health Achievement Recognition Program (SHARP), under which
employers who successfully complete a consultation visit and satisfy
certain other requirements may request an exemption from OSHA
inspections [29 CFR 1908.7(b)(4)]. Lists of employers who have
qualified for such an exemption must, of course, be made available to
OSHA enforcement staff.
Consultation-related information retained by federal OSHA is
generally subject to the federal Freedom of Information Act (FOIA), 5
U.S.C. 552. The FOIA provides that documents maintained by federal
agencies must be disclosed upon request unless one of the nine
exemptions listed in the Act applies. Exemption 4 of the FOIA exempts
from disclosure ``commercial or financial information obtained from a
person [that is] privileged or confidential.'' Information that relates
to an employer's business decision to engage a consultant, and
workplace information reviewed by that consultant during the visit,
certainly qualifies as ``commercial'' information as that term has been
broadly construed by the courts. Information collected by consultants
under 29 CFR 1908 is clearly ``obtained from a person'' within the
meaning of FOIA.
OSHA believes such information also qualifies as ``confidential'',
the remaining criterion for non-disclosure under Exemption 4. Federal
court decisions establish that commercial information voluntarily
submitted by a person to the government is ``confidential'' if it is
the kind of
[[Page 35975]]
information not customarily made public by the person from whom it was
obtained. [Critical Mass Energy Project v. NRC, 975 F.2d 871
(``Critical Mass III'')(D.C. Cir.1992)]. Even if submission of the
information was mandatory, the information qualifies as confidential
under Exemption 4 if disclosure would impair the effectiveness of the
government program under which the information was submitted. [Critical
Mass Energy Project v. NRC, 931 F.2d 939, 944-45 (``Critical Mass
II'')(D.C. Cir. 1990)].
As discussed above, 29 CFR Part 1908 provides that information
about consultation visits must be kept confidential from OSHA
enforcement personnel. The present regulation does not specifically
address the broader issue of whether information concerning
consultation visits to particular employers should be subject to public
disclosure. However, as the federal grant agency and overall federal
coordinator of the on-site consultation program, OSHA is well aware
that state consultation providers have historically treated information
about on-site consultation visits as a confidential business service to
the employers who request it. OSHA believes that an employer's purely
voluntary decision to invite a federally-funded consultant to evaluate
conditions in his workplace, like the decisions made by other employers
to retain paid, private sector health and safety consultants, is a
decision an employer may, but should not be required to, disclose to
the general public. OSHA's experience is that data and observations
gathered by the consultant during the visit are also held in confidence
by state agencies, in the same way a private consultant's
recommendations would not ordinarily be made public by an employer.
Furthermore, a long-standing concern of consultation program
administrators is that unwarranted publication of employer lists and
other employer-specific program data will discourage many employers
from availing themselves of this service. OSHA has long recognized the
importance of preserving the confidentiality of employer-specific
consultation program information, e.g., 42 FR 41386 at 41388 (August
16, 1977) (noting OSHA's policy that ``the identity of employers
receiving on-site consultation is not revealed'').
Therefore, OSHA proposes to add a provision to existing Part 1908
specifying that consultation program information which identifies
specific employers who have requested the services of a consultant
under 29 CFR Part 1908 shall be kept confidential. This confidentiality
requirement would not apply to the furnishing of certain types of
employer specific data, such as the hazards identified and abatement
suggested by the consultant, which must be provided to an employer's
own workers and their representatives under the new consultation
procedures in today's proposed rule. Because OSHA has an ongoing need
for accurate and comprehensive consultation data to administer the
consultation program and to evaluate its own performance and that of
the states, OSHA retains a right of access to this data.
2. Consultant's Written Report
Every consultative visit under Part 1908 results in the preparation
of a written report to the employer, documenting in detail the
conditions observed by the consultant inside the workplace. Such
reports can include descriptions not only of processes, methods and
materials used in the employers's business but personnel and
administrative information. Moreover, because of OSHA's emphasis on
evaluating the quality of the employer's accident prevention programs,
[see 1908.6(g) and 1908.7(b)(4)], many reports will also include
critiques of employee and manager performance that relate to the
effectiveness of the safety and health program. OSHA does not normally
obtain a copy of the consultant's written report, and the employer is
not required to furnish one should OSHA request to see it during a
subsequent inspection [1908.7(c)(3)]. These reports have long been
treated as confidential by state consultation agencies and by
participating employers. As explained earlier in connection with
consultation program data, state consultation agencies have advised
OSHA that routine disclosure of these reports would adversely affect
employer participation in the consultation program.
The proposed rule specifically recognizes the confidential nature
of the consultant's written report and forbids the disclosure of the
report except to the employer, and to OSHA upon request. OSHA retains
the right to use a consultant's report in appropriate enforcement
proceedings. Situations in which a consultation report might become
relevant would include, among others, an enforcement action triggered
by an employer's refusal to correct serious hazards identified by a
consultant, or an investigation of false statements, or deliberately
concealed hazards. Inquiries to OSHA's compliance staff during the
preparation of the present proposed rule indicate that consultants'
written reports have been used in extremely rare circumstances,
probably no more than a half-a-dozen times in the last ten years,
typically in cases involving serious accidents where there were
allegations of employer bad faith. OSHA fully expects, based on past
agency experience, that the enforcement cases in which it will be
necessary to obtain and use consultant's reports developed under Part
1908 will continue to be extremely rare. OSHA intends to provide
guidance concerning circumstances under which the Assistant Secretary
may request a Consultant's written report, after discussion with the
State. Finally, the access rights of employees and others to certain
specific types of information identified by particular OSHA regulations
and standards such as 1910.1020 will continue to apply to information
incorporated in consultation reports. Under the proposed new
regulation, as under existing Part 1908, the employer would of course
be free to voluntarily disclose all or parts of the consultant's
report.
The proposed changes to OSHA consultation regulations would be
applicable only to information related to or generated by consultation
visits scheduled or carried out under 29 CFR Part 1908. The OSHA
consultation program is a unique federally-funded, state-administered
consultation service. OSHA believes that the consultation program is
carefully balanced to serve the objective of providing effective worker
protection while at the same time affording a limited employer
confidentiality as an incentive to employer participation. Because the
OSHA consultation mechanism is a unique business service with numerous
built-in compliance safeguards, the qualified confidentiality accorded
to the consultant's written report and other employer-identifying
information by the proposed regulation provides no basis for inferring
a broader evidentiary privilege for employer audits or other self-
evaluation materials.
Revisions Delineating the Relationship With OSHA Enforcement
Since its inception, OSHA has conducted the on-site consultation
program independently from OSHA enforcement. Congress has endorsed
OSHA's practice of independent management of the consultation program
in the Compliance Assistance Authorization Act (CAAA), which specifies
that ``(a)ctivities under this section shall be conducted independently
of any enforcement activity.'' Nevertheless, the need to assure that
workers are fully protected,
[[Page 35976]]
as well as the practical demands of program administration, require
some limited coordination between these two OSHA activities. Thus, for
example, OSHA regulations have long provided that employers failing to
correct serious hazards identified by consultants be referred to
enforcement, 29 CFR 1908.7(f)(4), and also provide for a one-year
exemption from general schedule programmed inspections for employers
who complete a consultation visit and meet the requirements set forth
in paragraph 1908.7(b)(4). Congress itself has implicitly recognized
the importance of limited coordination between OSHA's consultation and
enforcement activities by incorporating comparable requirements in the
CAAA.
Because an effective balance between consultation and enforcement
is extremely important to OSHA as well as being an issue of interest to
most affected parties, OSHA's proposed revisions to Part 1908 address
this relationship in detail. OSHA's strategic plan includes the
consultation projects as full partners. It is therefore important for
the agency to eliminate administrative procedures that would result in
duplication of effort between compliance and cooperative programs.
One area of potential duplication of effort is in the conduct of
general schedule inspections at sites that receive consultation
service, and are working within established time frames to correct
hazards identified by the consultant. Current OSHA procedures provide
that general schedule compliance inspections shall not be conducted at
worksites where a consultation visit is ``in progress,'' a time period
which presently is defined as ``from the beginning of the opening
conference through the end of the closing conference''. [29 CFR
1908.7(b)(1)]. The agency believes that, for the working conditions,
hazards or situations covered during the visit, the term ``visit in
progress'' used in paragraph 1908.7(b) should extend from the date of
the opening conference to the end of the correction due date agreed
upon between the consultant and the employer, a redefinition reflected
in the rule proposed today. This would avoid the duplication (and the
burden to the small employer) of conducting an OSHA general schedule
inspection on the heels of a consultation visit, while the employer is
working to correct hazards. Proposed new language in part 1908 for
employee notification about hazards and correction due dates, and
OSHA's continuing obligation to perform certain types of inspections/
investigations such as imminent danger, fatality or catastrophe, and
complaint inspections, will ensure that adequate safeguards are in
place for employee protection.
OSHA is also proposing to change paragraph 1908.7(b)(4), the
Inspection Exemption Through Consultation (IETC), to reflect OSHA's
current policy under the Safety and Health Achievement Recognition
Program (SHARP). The SHARP policy, which has been in effect since 1995,
also achieves one of the objectives of the Compliance Assistance
Authorization Act. OSHA experience has shown that combining a national
recognition program with an exemption program fosters a partnership
that works for employees, employers, and for OSHA. SHARP achieves the
unique objective of according national recognition and inspection
exemption to small employers operating exemplary safety and health
management systems at their worksites. The revised paragraph
1908.7(b)(4) incorporates the basic requirements of the SHARP and is
consistent with the exemption program requirements outlined in the
CAAA, now codified as section 21(d)(4) of the OSH Act. As an editorial
matter, the generic term ``recognition and exemption program'' is used
in the proposed regulation in lieu of terms like SHARP or IETC.
Consultation Programs and State Plans
The importance of recognition and exemption programs is also
reflected in a proposed revision to paragraph 1908.1(c). That provision
presently specifies that in states which administer OSHA-approved state
plans, the provisions of Part 1908 which affect federal enforcement do
not apply directly to state-administered enforcement programs, but the
states must adopt enforcement provisions which are ``at least as
effective'' as those of federal OSHA. The agency proposes to add
specific requirements for recognition and exemption programs comparable
to that outlined in the revised Part 1908 and mandated by section
21(d)(4) of the Act.
The recognition and exemption program involves coordination between
two aspects of OSHA's program: the OSHA consultation service, which
must conduct the consultation visit and employer evaluation specified
in 21(d)(4); and OSHA's enforcement program, which honors the exemption
from inspections granted to employers who successfully complete the
relevant requirements. One potentially complicating factor in
implementing the CAAA inspection exemption scheme is the division of
work between federal OSHA and states which have assumed responsibility
for various occupational safety and health issues under federally-
approved state plans as provided by section 18 of the Act.
States may assume responsibility for occupational safety and health
enforcement within their state by obtaining federal approval of a state
plan under section 18 of the Act. Twenty-three states and two
territories currently exercise enforcement responsibility under
approved state plans. (A comprehensive listing of state plan states is
set forth in 29 CFR Part 1952.) Enforcement programs under approved
plans are not required to be identical to that of federal OSHA, but
must be ``at least as effective.''
States that wish to carry out federally-funded on-site consultation
services may do so by entering into cooperative agreements with OSHA
under 29 CFR Part 1908 and section 21 of the Act. Many states which
have entered into consultation agreements also separately administer a
state enforcement program under a federally-approved state plan. Other
states, however, have elected not to assume enforcement responsibility
under a state plan, but only to conduct on-site consultation services
within their state by entering into cooperative agreements under
section 21 of the Act and Part 1908. Enforcement in these states is
provided by federal OSHA. Finally, a few states and territories
(currently Arizona; Indiana; Kentucky; Nevada; New Mexico; Washington;
Puerto Rico; and the U.S. Virgin Islands) administer both enforcement
and consultation service programs as part of their state plan.
As already discussed, exemption and recognition programs under
section 21(d) of the Act serve the important purposes of conserving
enforcement resources by diverting them away from sites which already
are undergoing a comprehensive on-site safety and health review, and of
worker protection by giving an incentive to small employers to
undertake a program of hazard review and correction with participation
by employees. Accordingly, the new paragraph 1908.1 would specify that
every state providing a program of consultation services under a
cooperative agreement pursuant to section 21(d) of the Act shall
provide a recognition and exemption program which meets the criteria
and procedures in paragraph 1908.7(b)(4). This basic program element
must be provided in all states which provide consultation services
under section 21(d) of the OSH Act and 29 CFR Part 1908, whether
enforcement responsibility is carried out under a state plan or by
federal OSHA.
States which elect to carry out both enforcement and consultation
services
[[Page 35977]]
under a state plan pursuant to section 18 of the Act, in lieu of a
cooperative agreement under section 21(d), would not be directly bound
by requirements in section 21(d) and 29 CFR Part 1908. However, some
form of inspection exemption and recognition program is, in OSHA's
judgment, an essential element in any state program which seeks to meet
the ``at least as effective as `` criterion of section 18(c) of the
Act. For this reason, the proposed 29 CFR 1908.1 specifies that the six
states and two territories which provide on-site consultation services
under the auspices of the OSHA-approved state plan, rather than a
cooperative agreement, must provide these services in a manner ``at
least as effective as'' the program established under Part 1908. In
view of Congress' explicit reference in the CAAA to employee
participation during consultation visits, OSHA will expect state plan-
based consultation programs to offer comparable notice and
participatory opportunities to those afforded under the proposed new
Part 1908. Additionally, the proposed revisions to section 1908.1
specify that states providing on-site consultation under their state
plan must either adopt the exemption and recognition program outlined
in paragraph 1908.7(b)(4) or offer an ``at least as effective''
alternative.
Miscellaneous Editorial Changes
The definition of ``employer'' in 1908.2 is being modified to
reflect recent congressional action amending OSH Act coverage to
include the U.S. Postal Service. Definitions of various terms used in
connection with the proposed program revisions discussed above, such as
``recognition and exemption program,'' ``full service consultation
visit,'' and ``list of hazards'' are also proposed, as well as revised
definitions of ``serious'' and ``other than serious'' hazards, which
are reworded to remove references to OSHA's superseded Field Operations
Manual. In section 1908.3, editorial changes have been made to more
clearly set forth the existing rule that a state which administers a
private-sector consultation program as part of an approved state plan
under section 18 of the Act may not additionally administer a
consultation program under Part 1908.
III. Preliminary Economic Analysis
The modifications to 29 CFR Part 1908 proposed today will not have
any significant measurable economic impact either on employers or state
consultation agencies. The OSHA on-site consultation program is
entirely voluntary both for employers who seek this free service and
for states which provide it. The proposal that consultation visits
include an opportunity for employee participation would add slightly to
the time spent by state consultants in conducting a visit. OSHA
believes, however, that any additional demand on resources would be
justified by the benefits of employee participation. A review of our
data indicates that in fiscal year 1998, there was some form of
employee participation in all consultation visits. Employers allowed
participation which included opening and closing conferences,
walkaround, and employee interviews, voluntarily. The data also
indicates that 100 percent of all visits included employee
participation in the walkaround. This new requirement is a codification
of what already exists in practice, and will ensure that employees are
afforded an opportunity to participate in all aspects of the
consultation visit. The cost to employers in continuing to allow such
participation is minimal. Employee participation will produce
heightened awareness by the workforce and will result in a positive
contribution to ensure a safer and healthier workplace. Further,
employers receive these consultative services free of charge.
Similarly, OSHA believes that the proposed amendment to require
employers to post the list of serious hazards and hazards addressed by
OSHA rules that are identified by the consultant, the corrective action
proposed, and the dates for completion of corrective action will
slightly increase the responsibilities of participating employers, but
is offset by the value of greater employee participation in the
consultation process and enhanced employee awareness. Finally, OSHA's
proposal to specifically articulate in Part 1908 the agency's
longstanding policy concerning public disclosure of employer-specific
consultation information does not appear to impose any economic impact.
In terms of economic impact, the rule proposed today does not
constitute a significant regulatory action, within the meaning of
Executive Order 12866, because it does not have an annual effect on the
economy of $100 million or more; materially affect any sector of the
economy; interfere with the programs of other agencies; materially
affect the budgetary impact of grant or entitlement programs; nor
result in other adverse effects of the kind specified in the Executive
Order. However, the rule raises novel legal and policy issues, and has
been submitted to OMB for review under Executive Order 12866.
IV. Regulatory Flexibility Act Certification
Pursuant to the Regulatory Flexibility Act (RFA) [(5 U.S.C. 601 et
seq.)], the Assistant Secretary hereby certifies that the proposed rule
will not have a significant economic impact on a substantial number of
small entities. The state agencies which have elected to furnish on-
site consultation services under cooperative agreements with OSHA are
not covered entities under the RFA. Since the consultation program is
historically targeted to small, high-hazard workplaces, employers
affected by the proposed regulation would tend to include a substantial
number of small entities, but, as indicated in the foregoing discussion
of regulatory impacts, the proposed rule should have virtually no
measurable economic impact on employers.
V. Paperwork Reduction Act
This proposed regulation contains collection of information
requirements. These collection of information requirements are
identical to the collection of information requirements in the existing
consultation agreement regulations, except that OSHA is proposing to
add a new requirement for participating employers to post a list of
serious hazards identified during the visit, the corrective action
proposed by the consultant, and the correction due dates. Under the
Paperwork Reduction Act of 1995, all collection of information
requirements must be submitted to OMB for approval. The existing
collection of information requirements had been approved by OMB under
control number 1218-0110. However, these approvals were inadvertently
allowed to lapse. Therefore, as a first step in its review of these
regulations, OSHA on December 8, 1998 published in the Federal Register
a request for public comment prior to requesting OMB reinstatement of
these approvals [63 FR 67702]. The Federal Register notice on
information collection for this rule closed without comment. It is
currently undergoing review by OMB.
VI. Federalism
The proposed revisions to 29 CFR Part 1908 have been reviewed under
Executive Order 12612, Federalism (52 FR 41685; October 30, 1987),
which sets forth fundamental federalism principles, federalism
policymaking criteria, and provides for consultation by federal
agencies with state or local governments
[[Page 35978]]
when policies are being formulated which potentially affect them.
Federal OSHA meets regularly with representatives of state-operated
on-site consultation programs, both individually and at meetings of
OSHCON (the National Association of Occupational Safety and Health
Consultation Programs). OSHA additionally has established a
Consultation Steering Committee on which both OSHA and the states are
represented. OSHA also maintains extensive and frequent communications
with its state plan partner agencies, both individual states and
through the Occupational Safety and Health State Plan Association
(OSHSPA), the association of state plan states. The proposed revisions
to Part 1908 have been discussed with all affected states via OSHCON,
the Consultation Steering Committee and the OSHSPA, and many state
comments are already reflected in the proposal being issued today. The
states will, of course, also have an opportunity to submit comments
during the 90-day public comment period which opens today.
The revisions to 29 CFR Part 1908 proposed today are generally
consistent with the requirements and procedures under which OSHA and
the states have administered the consultation program for many years.
Two of the procedural requirements which are being strengthened,
employee participation rights and mandatory recognition and exemption
programs, have been specifically identified by Congress as essential
program elements in the recently-enacted Compliance Assistance
Authorization Act. The remaining significant revision, which involves
the confidentiality of reports and data generated by the consultation
program, generally reflects the views historically held by states that
this information should be kept confidential. However, the revisions
also provide for certain limited use by OSHA of this information, a
proposed provision which seeks to balance the states' need to minimize
unwarranted disclosure of business information with OSHA's need for the
data under certain circumstances. These issues have been extensively
discussed with the states. OSHA has reviewed the proposed revisions and
finds them to be consistent with the policymaking criteria outlined in
Executive Order 12612. It should be noted that cooperative agreements
pursuant to section 21 of the OSH Act, and state plans submitted and
approved under section 18 of the Act, are entirely voluntary federal
programs which do not involve imposition of an intergovernmental
mandate [2 U.S.C. 1502, 658(5)].
VII. Public Participation
Interested persons including state consultation agencies, employers
and employees who have experience with or an interest in the
consultation program are invited to submit written data, views and
arguments with respect to the proposed amendments to Part 1908 during a
90-day public comment period. OSHA is interested, among other things,
in the experiences of State consultation agencies and other affected
parties regarding the following matters:
--How would the requirements for employee participation and
notification of hazards affect the willingness of employers to
participate in the consultation program?
--What proportion of site visits by federally-funded consultants
currently involve some form of employee participation? How many involve
complete walkaround participation? What proportion of sites are union
and nonunion?
--What types of trade secret or other confidential information are
typically included in a consultant's report?
--Are the names of employers who request consultation usually publicly
disclosed in your State? How is employer-specific information such as
the consultant's report treated under State disclosure laws?
Would employers be less likely to request federally-funded
consultation services if participation in this program is not
confidential?
Comments must be received on or before ________[date], and must be
submitted in quadruplicate to Docket No. ________, Docket Office, Room
N-2625, U.S. Department of Labor-OSHA, 200 Constitution Ave., N.W.,
Washington, DC 20210. Comments under 10 pages long may be sent via
telefax to (202) 219-5546 but must be followed by a mailed submission
in quadruplicate. Written submissions must clearly identify the issue
addressed and the position taken with regard to each issue. All
comments submitted to the docket during this proceeding will be open
for public inspection and copying at the location specified above. No
hearing will be held on this proposal.
VIII. Authority
This document was prepared under the direction of Charles N.
Jeffress, Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under sections 7(c), 8, and 21(d) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 656, 657, 670)
and Secretary of Labor's Order No. 6-96 (62 FR 111, January 2, 1997).
List of Subjects in 29 CFR Part 1908
Confidential business information, Occupational safety and health,
Small business.
Signed this 24th day of June, 1999 in Washington, DC.
Charles N. Jeffress,
Assistant Secretary of Labor.
It is proposed to amend 29 CFR part 1908 as set forth below:
PART 1908--CONSULTATION AGREEMENTS
The authority citation for 29 CFR part 1908 would be revised to
read as follows:
Authority: Secs. 7(c), 8, 21(d), Occupational Safety and Health
Act of 1970 (29 U.S.C. 656, 657, 670) and Secretary of Labor's Order
No. 6-96 (62 FR 111 January 2, 1997).
2. Section 1908.1 would be amended by revising paragraphs (a) and
(c) to read as follows:
Sec. 1908.1 Purpose and scope.
(a) This part contains requirements for Cooperative Agreements
between States and the Federal Occupational Safety and Health
Administration (OSHA) under sections 21(c) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.) and section 21(d), the
Occupational Safety and Health Administration Compliance Assistance
Authorization Act of 1998 (which amends the Occupational Safety and
Health Act), under which OSHA will utilize State personnel to provide
consultative services to employers. Priority in scheduling such
consultation visits shall be assigned to small businesses which are in
higher hazard industries or have the most hazardous conditions at issue
in the request. Consultation programs operated under the authority of a
State plan approved under Section 18 of the Act (and funded under
Section 23(g), rather than under a Cooperative Agreement) which provide
consultative services to private sector employers, must be ``at least
as effective as'' the section 21(d) Cooperative Agreement programs
established by this Part. The service will be made available at no cost
to employers to assist them in establishing effective occupational
safety and health programs for providing employment and places of
employment which are safe and healthful. The overall goal is to prevent
the occurrence of injuries and illnesses which may result from
[[Page 35979]]
exposure to hazardous workplace conditions and from hazardous work
practices. The principal assistance will be provided at the employer's
worksite, but off-site assistance may also be provided by telephone and
correspondence, and at locations other than the employer's worksite,
such as the consultation project offices. At the worksite, the
consultant will, within the scope of the employer's request, evaluate
the employer's program for providing employment and a place of
employment which is safe and healthful, as well as identify specific
hazards in the workplace, and will provide appropriate advice and
assistance in establishing or improving the employer's safety and
health program and in correcting any hazardous conditions identified.
* * * * *
(c) States operating approved Plans under section 18 of the Act
shall, in accord with section 18(b), establish enforcement policies
applicable to the safety and health issues covered by the State Plan
which are at least as effective as the enforcement policies established
by this part, including a recognition and exemption program.
3. Section 1908.2 would be amended by revising the definitions of
``Employee'', ``Employer'', ``Other-than-serious hazards'', and
``Serious hazard'', and by adding the definitions of ``List of
Hazards'', ``Programmed inspection'', ``Programmed inspection
schedule'', and ``Recognition and exemption program'' to read as
follows:
Sec. 1908.2 Definitions.
* * * * *
``Employee'' means an employee of an employer who is employed in
the business of that employer which affects interstate commerce.
``Employer'' means a person engaged in a business who has
employees, but does not include the United States (not including the
United States Postal Service), or any State or political subdivision of
a State.
* * * * *
``List of Hazards'' means a list of serious hazards and hazards
addressed by OSHA rules that are identified by the consultant, the
corrective actions proposed by the consultant, and the correction due
dates agreed upon by the employer and the consultant. Hazards addressed
by OSHA rules shall be included in the list without regard to
classification as ``serious'' or ``other-than-serious.'' The List of
Hazards will accompany the consultant's written report but is separate
from the written report to the employer.
* * * * *
``Other-than-serious hazard'' means any condition or practice which
would be classified as an other-than-serious violation of applicable
Federal or State statutes, regulations or standards, based on criteria
contained in the current OSHA field instructions or approved State Plan
counterpart.
``Programmed inspection'' means OSHA worksite inspections which are
scheduled based upon objective or neutral criteria. These inspections
do not include imminent danger, fatality/catastrophe, and formal
complaints.
``Programmed inspection schedule'' means OSHA inspections scheduled
in accordance with criteria contained in the current OSHA field
instructions or approved State Plan counterpart.
* * * * *
``Recognition and exemption program'' means an achievement
recognition program of the OSHA consultation services, which recognizes
small employers who operate, at a particular work site, an exemplary
program that results in the immediate and long term prevention of job
related injuries and illnesses.
``Serious hazard'' means any condition or practice which would be
classified as a serious violation of applicable Federal or State
statutes, regulations or standards, based on criteria contained in the
current OSHA field instructions or approved State Plan counterpart,
except that the element of employer knowledge shall not be considered.
* * * * *
4. Section 1908.3 would be amended by revising paragraph (a) to
read as follows:
Sec. 1908.3 Eligibility and funding.
(a) State eligibility. Any State may enter into an Agreement with
the Assistant Secretary to perform consultation for private sector
employers; except that a State having a Plan approved under section 18
of the Act is eligible to participate in the program only if that Plan
does not include provisions for federally funded consultation to
private sector employers as a part of its plan.
* * * * *
5. Section 1908.5 would be amended by revising paragraphs (a)(3)
and (b)(1) to read as follows:
Sec. 1908.5 Requests and scheduling for onsite consultation.
(a) * * *
(3) Scope of service. In its publicity for the program, in response
to any inquiry, and before an employer's request for a consultative
visit may be accepted, the State shall clearly explain that the service
is provided at no cost to an employer with Federal and State funds for
the purpose of assisting the employer in establishing and maintaining
effective programs for providing safe and healthful places of
employment for employees, in accord with the requirements of the
applicable State or Federal laws and regulations. The State shall
explain that while utilizing this service, an employer remains under a
statutory obligation to provide safe and healthful work and working
conditions for employees. In addition, while the identification of
hazards by a consultant will not mandate the issuance of citations or
penalties, the employer is required to take necessary action to
eliminate employee exposure to a hazard which in the judgment of the
consultant represents an imminent danger to employees and to take
action to correct, within a reasonable time, any serious hazards that
are identified. The State shall emphasize, however, that the discovery
of such a hazard will not initiate any enforcement activity, and that
referral will not take place, unless the employer fails to eliminate
the identified hazard within the established time frame. The State
shall also explain the requirements for participation in the
recognition and exemption program as set forth in Sec. 1908.7(b)(4).
(b) Employer requests. (1) An on-site consultative visit will be
provided only at the request of the employer, and shall not result from
the enforcement of any right of entry under State law. When taking a
request for assistance, the Project shall explain the employer's
obligation to post the List of Hazards accompanying the consultant's
written report.
* * * * *
6. Section 1908.6 would be amended by revising paragraphs (b),
(c)(2), (d), (e)(7), (e)(8), and (f)(2); by redesignating (g) as (g)(1)
and (h) as (h)(1); and by adding new paragraphs (g)(2), and (h)(2) as
follows:
Sec. 1908.6 Conduct of a visit.
(a) * * *
(b) Structured format. An initial on-site consultative visit will
consist of an opening conference, an examination of those aspects of
the employer's safety and health program which relate to the scope of
the visit, a walk through of the workplace, and a closing conference.
An initial visit may include training and education for employers and
employees, if the need for such training and education is revealed by
the walk
[[Page 35980]]
through of the workplace and the examination of the employer's safety
and health program and if the employer so requests. The visit shall be
followed by a written report to the employer. Additional visits may be
conducted at the employer's request to provide needed education and
training, assistance with the employer's safety and health program, or
technical assistance in the correction of hazards, or as necessary to
verify the correction of serious hazards identified during previous
visits. A compliance inspection may, in some cases, be the basis for a
visit limited to education and training, assistance with the employer's
safety and health program, or technical assistance in the correction of
hazards.
(c) * * *
(2)(i) A representative authorized by affected employees shall be
afforded an opportunity to accompany the consultant and the employer's
representative during the physical inspection of the workplace.
Additional employees (such as representatives of a joint safety and
health committee, if one exists at the worksite) may be permitted to
accompany the consultant during the physical inspection, where the
consultant determines that such additional representatives will further
aid the visit.
(ii) If there is no authorized representative of employees, or if
the consultant is unable with reasonable certainty to determine who is
such a representative, the consultant shall confer with a reasonable
number of employees concerning matters of occupational safety and
health.
(iii) The consultant is authorized to deny the right to accompany
under this section to any person whose conduct interferes with the
orderly conduct of the visit.
(d) Opening and closing conferences. (1) The consultant shall
attempt to inform all affected employees of the purpose of the
consultation visit, and shall encourage a joint opening conference with
employer and employee representatives. If there is an objection to a
joint conference, the consultant shall conduct separate conferences
with employer and employee representatives.
(2) In addition to the requirements of Sec. 1908.6(c), the
consultant shall, in the opening conference, explain to the employer
the relationship between on-site consultation and OSHA enforcement
activity and shall explain the obligation to protect employees in the
event that certain hazardous conditions are identified.
(3) During the opening conference, the consultant shall emphasize
the employer's obligation to post the List of Hazards accompanying the
consultant's written report as described below in Sec. 1908.6(e)(8).
(4) At the conclusion of the consultation visit, the consultant
will conduct a closing conference with employer and employee
representatives, jointly or separately. The consultant shall describe
hazards identified during the visit, and other pertinent issues related
to employee safety and health.
(e) * * *
(7) At the time the consultant determines that a serious hazard
exists, the consultant shall assist the employer to develop a specific
plan to correct the hazard, affording the employer a reasonable period
of time to complete the necessary action. The State shall provide, upon
request from the employer within 15 working days of receipt of the
consultant's report, an opportunity for an expeditious informal
discussion with the consultation manager regarding the period of time
established for the correction of a hazard or any other substantive
finding of the consultant.
(8) Upon receipt, the employer shall post the List of Hazards
accompanying the consultant's written report, and notify affected
employees when hazards are corrected. The List of Hazards shall be
posted, unedited, in a prominent place where it is readily observable
by all affected employees for 3 working days, or until the hazards are
corrected, whichever is later. The consultation project shall make
available a copy of the List of Hazards to the authorized
representative of affected employees.
(f) * * *
(2) An employer must also take the necessary action in accordance
with the plan developed under Sec. 1908.6(e)(7) to eliminate or control
employee exposure to any identified serious hazard, and meet the
posting requirements of Sec. 1908.6(e)(8). In order to demonstrate that
the necessary action is being taken, an employer may be required to
submit periodic reports, permit a followup visit, or take similar
action.
* * * * *
(g) * * *
(2) Because the consultant's written report contains information
considered confidential, and because disclosure of such reports would
adversely affect the operation of the OSHA consultation program, the
consultant's written report shall not be disclosed except to the
employer for whom it was prepared and, upon request, to OSHA. OSHA may
use information contained in the report in enforcement proceedings
which result from an employer's failure to correct hazards identified
during a consultation visit under this Part, or which involve
misconduct relating to an employer's participation in the consultation
program, or other enforcement proceedings to which the information is
relevant.
(h) * * *
(2) Disclosure of consultation program information which identifies
employers who have requested the services of a consultant would
adversely affect the operation of the OSHA consultation program as well
as breach the confidentiality of commercial information not customarily
disclosed by the employer. Accordingly, such information shall be kept
confidential. The State shall provide consultation program information
requested by OSHA, including information which identifies employers who
have requested consultation services. OSHA may use such information to
administer the consultation program and to evaluate state and federal
performance under that program, but information which identifies
specific employers shall not otherwise be disclosed.
7. Section 1908.7 would be amended by revising paragraphs (a)(3),
(b)(1), (b)(4), (b)(5), and (c)(3) to read as follows:
Sec. 1908.7 Relationship to enforcement.
(a) * * *
(3) The identity of employers requesting on-site consultation, as
well as the file of the consultant's visit, shall not be forwarded or
provided to OSHA for use in any compliance activity, except as provided
for in Sec. 1908.6(f)(1) (failure to eliminate imminent danger),
Sec. 1908.6(f)(4) (failure to eliminate serious hazards),
Sec. 1908.6(g)(2) (confidentiality of consultant's written report),
Sec. 1908.6(h)(2) (confidentiality of employer specific data), and
Sec. 1908.7(b)(4) (recognition and exemption program).
(b) Effect upon scheduling. (1) An on-site consultative visit
already in progress will have priority over OSHA compliance inspections
except as provided in Sec. 1908.7(b)(2). The consultant and the
employer shall notify the compliance officer of the visit in progress
and request delay of the inspection until after the visit is completed.
An on-site consultative visit shall be considered ``in progress'' in
relation to the working conditions, hazards, or situations covered by
the visit from the beginning of the opening conference through the end
of the correction due dates and any extensions thereof. OSHA may, in
exercising its authority to schedule compliance
[[Page 35981]]
inspections, assign a lower priority to worksites where consultation
visits are pending.
* * * * *
(4) The recognition and exemption program of the Occupational
Safety and Health Administration (OSHA) consultation services provides
incentives and support to smaller, high-hazard employers to work with
their employees to develop, implement, and continuously improve the
effectiveness of their workplace safety and health management system.
(i) Programmed Inspection Schedule. (A) When an employer requests
participation in a recognition and exemption program, and undergoes a
consultative visit covering all conditions and operations in the place
of employment related to occupational safety and health; corrects all
hazards that were identified during the course of the consultative
visit within established time frames; has began to implement all the
elements of an effective safety and health program; and agrees to
request a consultative visit if major changes in working conditions or
work processes occur which may introduce new hazards, OSHA's Programmed
Inspections at that particular site may be deferred while the employer
is working to achieve recognition and exemption status.
(B) Employers who meet all the requirements for recognition and
exemption will have the names of their establishments removed from
OSHA's Programmed Inspection Schedule for a period of not less than one
year. The exemption period will extend from the date of issuance by the
Regional Office of the certificate of recognition.
(ii) Inspections. OSHA will continue to make inspections in the
following categories at sites that achieved recognition status and have
been granted exemption from OSHA's Programmed Inspection Schedule; and
at sites granted inspection deferrals as provided for under
Sec. 1908.7(b)(4)(i)(A):
(A) Imminent danger.
(B) Fatality/Catastrophe.
(C) Formal Complaints.
(5) When an employer requests consideration for participation in
the recognition and exemption program under Sec. 1908.7(b)(4), the
provisions of Sec. 1908.6(e)(7), (e)(8), (f)(3), and (f)(5) shall apply
to other-than-serious hazards as well as serious hazards.
(c) * * *
(3) In the event of a subsequent inspection, the employer is not
required to inform the compliance officer of the prior visit. The
employer is not required to provide a copy of the state consultant's
written report to the compliance officer, except to the extent that
disclosure of information contained in the report is required by 29 CFR
1910.1020 or other applicable OSHA standard or regulation.
* * * * *
[FR Doc. 99-16592 Filed 7-1-99; 8:45 am]
BILLING CODE 4510-26-P
