Consultation Agreements: Proposed Changes to Consultation Procedures

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