Draft Revisions to the Voluntary Protection Programs To Provide Safe and Healthful Working Conditions

SUMMARY: The Occupational Safety and Health Administration would like

to obtain stakeholder and public comments on proposed revisions to its

Voluntary Protection Programs (VPP), published in Draft below. The

revisions include several new criteria intended to make the VPP more

challenging and to raise the level of safety and health achievement

expected of participants. New eligibility categories allow previously

ineligible worksites to apply. The criteria also have been rewritten to

make them more easily understood and to bring the VPP's basic program

elements into conformity with OSHA's Safety and Health Program

Management Guidelines. OSHA will consider submitted comments when it

develops the final version of these revisions.

DATES: Written comments must be submitted on or before November 26,

1999.

ADDRESSES: Send two copies of your comments to: Docket Office, Docket

No. C-06, Room N-2625, Occupational Safety and Health Administration,

U.S. Department of Labor, 200 Constitution Ave., NW, Washington, DC

20210. Comments limited to 10 pages or less 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 Web

site at the following address: http://www.osha-slc.gov/e-comments/e-

comments-vpp.html. Information such as studies and journal articles

cannot be attached to electronic submissions and must be submitted in

duplicate to the Docket Office. 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 revisions to the Voluntary

Protection Programs is available for inspection and copying in the

Docket Office, Docket No. C-06, telephone 202-693-2350.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of

Public Affairs, Occupational Safety and Health Administration, Room

N3647, 200 Constitution Ave., NW, Washington, DC 20210, (202) 693-1999.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Background

The Voluntary Protection Programs (VPP), adopted by OSHA in Federal

Register Notice 47 FR 29025, July 2, 1982, have established the

efficacy of cooperative action among government, industry, and labor to

address worker safety and health issues and expand worker protection.

VPP participation requirements center on comprehensive management

systems with active employee involvement to prevent or control the

safety and health hazards at the site. Employers who qualify generally

view OSHA standards as a minimum level of safety and health performance

and set their own more stringent standards where necessary for

effective employee protection.

OSHA's experience with VPP and other programs led it to publish its

voluntary ``Safety and Health Program Management Guidelines'' (the

Guidelines) in the Federal Register on January 26, 1989, 54 FR 3904.

The Guidelines present effective criteria for organizing a managed

safety and health program. To maintain consistency in OSHA's approach

to safety and health program management, the Agency has decided to

reorganize the VPP criteria to conform more closely to the Guidelines.

This reorganization has been accomplished by merging the six

elements of the VPP into the four elements of the Guidelines.

Specifically, Management Commitment and Planning has become Management

Leadership and Employee Involvement; Hazard Assessment has become

Worksite Analysis; Hazard Correction and Control has become Hazard

Prevention and Control; Safety and Health Program Evaluation has become

part of Management Leadership and Employee Involvement; and Safety and

Health Training continues as one of four basic program elements.

The VPP criteria also have been rewritten to make them more easily

understood. This has involved changes in both language and

organization. However, except for a variety of minor clarifications,

the substance of the criteria has changed little. The two most notable

changes are an expansion of eligibility to certain classes of worksites

previously not covered by the program, and a new illness rates

reporting requirement. The latter means OSHA will consider a worksite's

illness performance as well as its injury performance when assessing

the site's level of achievement.

B. Statutory Framework

The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et

seq. (the Act and the OSH Act), was enacted ``to assure so far as

possible every working man and woman in the Nation safe and healthful

working conditions and to preserve our human resources. * * *''

Section 2(b) specifies the measures by which the Congress would

have OSHA carry out these purposes. They include the following

provisions which establish the legislative mandate for the Voluntary

Protection Programs:

``* * * (1) by encouraging employers and employees in their

efforts to reduce the number of occupational safety and health

hazards at their places of employment, and to stimulate employers

and employees to institute new and to perfect existing programs for

providing safer and healthful working conditions;''

``* * * (4) by building upon advances already made through

employer and employee initiative for providing safe and healthful

working conditions;''

``* * * (5) * * * by developing innovative methods, techniques,

and approaches for dealing with occupational safety and health

problems;''

``* * * (13) by encouraging joint labor-management efforts to

reduce injuries and disease arising out of employment.''

II. Program Changes and Rationale

A. Language and Organization

With this Notice OSHA proposes extensive editorial changes in the

language and organization of The Voluntary Protection Programs,

published as Draft below. The intent is to make the VPP criteria more

understandable.

B. Changes in Eligibility

1. Draft Section D.1., General, provides that Federal agency

worksites subject to 29 CFR part 1960 are now eligible to apply. OSHA

wants to extend recognition for safety and health program excellence to

federal sector worksites. As a result of a successful Demonstration

Program, this section now also provides that resident contractors at

participating VPP sites may make application to the VPP for their

operations at those sites. The Demonstration Program established that

at existing VPP sites, resident contractors can provide effective

safety and health protection to their employees even though they do not

control the worksite.

2. Draft Section D.2, Unionized Sites, is changed to clarify the

degree of union involvement that triggers the requirement for union

concurrence in

[[Page 55391]]

VPP participation. The old language, ``a significant portion of its

employees organized by one or more collective bargaining units,'' was

open to wide interpretation. The new language makes clear that the

concurrence of all unions is expected at any worksite where one or more

collective bargaining agents represent employees.

C. Changes in Assurances

1. Draft Section E.1. requires VPP applicants to submit assurance

that they will correct all hazards addressed by OSHA's safety and

health standards and regulations and the OSH Act's ``general duty

clause,'' Section 5(a)(1). Full compliance with OSHA's requirements has

always been a requirement of the VPP but is now made an explicit part

of the Assurances.

2. Draft Section E.2. requires the applicant to provide assurance

that site employees support the VPP application. At unionized sites,

this is accomplished by the authorized collective bargaining

representative(s) either signing the VPP application or submitting a

signed statement of support. OSHA also needs assurance that employees

at non-unionized sites support VPP participation.

3. Draft Section E.5. expands on previous language and now requires

that applicants certify to OSHA that hazards discovered through any

means will be corrected in a timely manner, with interim protection

provided as necessary. This section further provides that site

deficiencies related to compliance with OSHA requirements and

identified during the OSHA preapproval onsite review will be corrected

within 90 days. This expansion is needed to make clear to applicants

that elimination or control is expected of all identified hazards, and

not just hazards identified by the means listed in the Notice.

4. Draft Section E.10. expands the information that participating

sites must submit to OSHA each year by February 15.

a. Requiring sites to report injury and illness rates, rather than

just injury rates, will help ensure that VPP continues to set the

standard for excellence by recognizing worksites that effectively

address the full range of workplace safety and health problems.

b. OSHA needs to have participants report the injury/illness and

lost work day case numbers as well as the rates to ensure that the

rates have been calculated correctly.

c. OSHA needs to examine the participant's annual evaluation of its

safety and health program in order to determine if the site's program

is continually improving and also to spot potential program

deficiencies.

d. Because examination of contractors' rates is now part of the VPP

requirements, the injury/illness and lost workday case numbers and

rates of prominent (500 hours or more onsite in a calendar quarter)

contractors' site employees need to be submitted annually to OSHA, just

as the rates for regular site employees must be submitted annually.

e. To better understand a worksite's safety and health efforts, to

help spread the lessons learned in VPP to other worksites, and to

communicate the value of VPP, OSHA needs information on success stories

and VPP outreach efforts at each participating worksite.

D. Changes in The Star Program

1. The Purpose of the Star Program, Draft Section F.1., is expanded

to indicate that OSHA expects Star participants to share their safety

and health expertise and to encourage others to work toward comparable

success.

2. Injury/Illness Performance, Draft Section F.4., includes the

following changes:

a. Star performance criteria have changed by adding:

(1) The use of injury/illness rates to determine VPP eligibility;

(2) A requirement that rates be below rather than at or below the

industry average; and

(3) An alternative method of calculating injury/illness incidence

rates for qualifying small worksites.

The addition of illnesses and the change in minimum rates

requirements will make these requirements more reflective of the health

aspects of a safety and health program and generally more stringent.

These changes will help ensure that VPP continues to serve as a model

of excellence for the larger work community. The alternative

calculation method will help small sites to qualify for Star even when

they have experienced 1 year of abnormally high rates.

b. Calculating, collecting, and submitting contractor rates are new

VPP requirements that will enable OSHA to better determine the quality

of safety and health protection afforded to all employees on a

worksite. The requirements for contract employee coverage appear at

Draft Section F.4.a.(2).

3. Safety and Health Program Qualifications for the Star Program,

Draft Section F.5., is revised as follows:

a. OSHA has condensed from six elements to four elements the Safety

and Health Program Qualifications for the Star Program. This is done so

that the VPP requirements will conform with OSHA's Voluntary Safety and

Health Program Management Guidelines. Similarly, the names of the

activities required under each element have been changed, as

appropriate. The changes are:

(1) In Draft Section F.5.a., the name of the first element has

changed from Management Commitment and Planning to Management

Leadership and Employee Involvement. The activity Employee

Participation has changed to Employee Involvement. This activity and

the activity Safety and Health Program Evaluation are now made part of

this element.

(2) In Draft Section F.5.b., the name of the second element has

changed from Hazard Assessment to Worksite Analysis.

(3). In Draft Section F.5.c., the name of the third element has

changed from Hazard Correction and Control to Hazard Prevention and

Control.

b. The following revisions are made in Draft Section F.5.a.,

Management Leadership and Employee Involvement:

(1) Commitment to Safety and Health Protection now includes the

requirement for an established and communicated goal for the safety and

health program and results-oriented objectives for meeting that goal,

an activity that is included in the Guidelines.

(2) Written Safety and Health Program has changed slightly to

reflect the merging of the original six basic elements into four.

(3) Management Involvement is now Management Leadership. OSHA has

added two new required activities to Management Leadership so that the

list of actions will reflect the Guidelines. These additional

activities are:

(a) Creating employee access to top management, and

(b) Ensuring that all workers at the site, including contract

workers, are provided equally high-quality safety and health

protection.

(4) New language on defining responsibility, assigning authority,

and affording adequate resources is intended to emphasize the need for

these management actions.

(5) Holding managers, supervisors, and employees accountable (line

accountability) is tied more clearly to meeting responsibilities. OSHA

no longer differentiates between managing accountability at general

industry and construction worksites, because in the Agency's experience

effective management does not differ significantly at different types

of worksites.

[[Page 55392]]

(6) Employee Involvement includes an additional requirement that

worksites must establish at least three different active and meaningful

ways for employee involvement. This requirement is intended to ensure

that employee involvement is an integral part of the safety and health

program. Also, worksites that choose to meet this requirement by

establishing safety and health committees are cautioned to ensure such

committees are established in a manner consistent with applicable law.

(7) OSHA has substantially rewritten the section Contract Worker

Coverage and expanded the requirements for contract workers to include:

(a) Documentation that contractors maintain effective safety and

health programs, and

(b) Documentation that participants maintain effective oversight of

their onsite contractors.

(c) Documentation of the participant's plan for working with a

contractor whose rates are above its industry average, in order to

reduce those rates to below average within 2 years.

This brings contractor requirements in line with current VPP

practice.

(8) OSHA has rewritten Safety and Health Program Evaluation in

order to make the requirements more understandable and participants'

evaluations more effective. The section now clearly states that all

elements of the program must be evaluated. Third parties who may be

employed to conduct the evaluation must have appropriate training and/

or experience. Also, this section provides that construction companies

must submit a final evaluation immediately prior to completion of

construction. Construction companies that fail to submit this

evaluation will not be allowed to submit VPP applications for other

sites. To emphasize the importance OSHA places on outreach activities,

OSHA now requires participants to report outreach efforts when they

submit their annual evaluation report.

c. In addition to revisions that create a more logical flow, Draft

Section F.5.b., Worksite Analysis, contains the following changes:

(1) The requirement for comprehensive safety and health surveys is

expanded to clarify and strengthen industrial hygiene requirements.

(2) OSHA has added a new requirement to analyze injury and illness

trends, intended to ensure that complete worksite analysis is being

performed.

(3) The Medical Program is renamed the Occupational Health Care

Program to better reflect its nature, and requirements are expanded and

moved to Draft Section F.5.c., Hazard Prevention and Control, to better

reflect the function of an occupational health care program.

d. OSHA has made the following revisions in Draft Section F.5.c.,

Hazard Prevention and Control:

(1) In order to complete the list of means for eliminating or

controlling hazards, OSHA has added administrative controls. The four

control methods are listed in their preferred order.

(2) Work Practice controls, Draft Section F.5.c.(1)(c), is expanded

to incorporate the requirement that the rules must be understood and

followed; must be incorporated in training, positive reinforcement, and

correction programs; and must be equitably enforced through

disciplinary rules.

(3) Monitoring and Maintenance, Draft Section F.5.c.(3), includes

the additional requirement to document this system.

(4) The Occupational Health Care Program (formerly the Medical

Program), Draft Section F.5.c.(4), is expanded to include the concept

of using occupational health care professionals in hazard analysis and

prevention. The expansion addresses the need to involve occupational

health professionals in a site's program.

(5) Emergency Procedures, Draft Section F.5.c.(5), now requires

that the written procedures must include provision for emergency

training drills for all shifts. With this change, a participant's

written procedures will reflect a requirement to conduct annual

practice drills that has been in effect for some time. Requiring drills

for all shifts will help ensure protection for all employees.

e. Safety and Health Training, Draft Section F.5.d., now specifies

that training must ensure that managers understand and are able to

carry out their safety and health responsibilities.

E. Changes in The Demonstration Program

Draft Section G.3. now provides for Demonstration Program

evaluations every 12 to 18 months instead of every 12 months.

F. Changes in The Merit Program

1. Qualifications for Merit, Draft Section H.2., contains the

following changes:

a. The addition of illnesses to the rates requirements. Previously,

only injury rates were considered.

b. A restriction on participation by sites with above average

rates. Such sites must have a plan to achieve Star rates requirements

within 2 years, it must be statistically possible to achieve this goal,

and the site's safety and health program must be at Star quality within

3 years.

c. The addition of a requirement to report contractor rates.

d. In the Merit Program for the construction industry, OSHA must

approve the designated geographical area from which company injury/

illness and lost workday incidence data are obtained.

These changes are designed to ensure that VPP participants are of

the highest caliber and that sites approved to Merit can realistically

achieve Star in a reasonable time period.

2. Term of Participation, Draft Section H.3., establishes a 3-year

time limit for a term in the Merit Program. It also explains the

circumstances that may lead OSHA to approve a second term of

participation.

3. Multi-Site Eligibility, Draft Section H.4., is a new section

that announces OSHA's expectation that companies with large numbers of

applicants may be responsible for bringing their worksites up to Star

quality before making application.

G. Changes in Application for VPP

1. Submission, Draft Section I.3., now requires applicants to

submit to the appropriate OSHA office the requested number of

application copies. This procedure is intended to expedite processing.

2. Acceptance of Application, Draft Section I.4., now permits OSHA

to return as unacceptable an incomplete application if 90 days have

passed since OSHA requested additional information and the applicant

has not responded. This provision eases both OSHA's and the applicant's

burden by establishing clear time frames for accepting complete

applications.

H. Changes in Pre-Approval Onsite Review

1. Purpose, Draft Section J.1., clarifies the VPP onsite review

team's non-enforcement nature.

2. Preparation, Draft Section J.2., is changed to emphasize the

importance of the VPP review team's having a back-up team leader

whenever possible.

3. Duration, Draft Section J.3., now reflects the reality that, on

average, 4 days onsite are needed for a review.

4. Scope, Draft Section J.4., is expanded because the onsite review

must reflect the added VPP criteria

[[Page 55393]]

proposed in this Federal Register Notice.

a. Document review must include the site contractor employees' OSHA

Form 200 log, baseline safety and industrial hygiene surveys, annual

safety and health program evaluations and audits, preventive

maintenance program documentation, accountability documentation, and

contractor safety and health programs.

b. Employee interviews must include interviews with contract

workers.

I. Changes in Recommendation for Program Denial

Draft Section L.1. is expanded to define a reasonable time for the

applicant to withdraw its application as ``not to exceed 30 calendar

days.''

J. Changes in Inspection Provisions

1. Programmed Inspections, Draft Section M.1., now explains OSHA's

rationale for removing a VPP participant from programmed inspection

lists. It also provides that a VPP applicant will be removed from

OSHA's programmed inspection lists no more than 75 calendar days prior

to the commencement of the scheduled pre-approval onsite review. The

need for this time limit stems from occasional delays in application

processing, i.e., the time from application submission to scheduled

onsite review. These delays, in turn, are due to the growth of interest

in VPP and increasing numbers of applications. The section also

provides that VPP worksites may choose to remain on the programmed

inspection lists.

2. Workplace complaints, fatalities and catastrophes, and other

significant events have been grouped together in Draft Section M.2.,

because all of these events mandate normal OSHA enforcement procedures.

3. The intent of Draft Section M.3. is to ensure that participants

understand they are subject to investigation by VPP personnel when

other significant accidents and events occur at their worksites,

whether or not normal enforcement procedures apply to the situation and

whether or not injuries occur. OSHA may decide that investigation is

necessary to determine if a serious deficiency exists in the safety and

health program.

K. Changes in Post-Approval Contact/Assistance

Draft Section N. is changed to clarify the continuing participation

steps a Star Program participant must take if the participant's 3-year

rate(s) move above the industry average.

L. Changes in Periodic Onsite Evaluation of Approved Worksites

1. Frequency of Star Program evaluation, Draft Section O.1.b, is

changed to reflect Star evaluation periods of 30 to 60 months.

2. Scope of Star Program evaluation, Draft Section O.1.c., is

expanded to include evaluation of the newly required contractor rates.

To ensure fairness, the section also includes a timetable for phasing

in the new data reporting requirements.

3. Measures of Effectiveness, Draft Section O.1.d., adds continuous

improvement in the safety and health program to the measures of

effectiveness. This section now more accurately reflects what has

always been expected of participants.

4. Evaluation Decisions and Recommendations, Draft Sections O.1.e.

and O.3.e, authorize the Regional Administrator to make the decision to

continue a participant in the Star or Merit program. The sections also

clarify the recommendations that a team may make after conducting an

evaluation.

5. Frequency of Demonstration Program evaluation, Draft Section

O.2.b., now gives the Agency greater scheduling flexibility by

requiring evaluations every 12 to 18 months instead of every 12 months.

6. Frequency of Merit Program evaluation, Draft Section O.3.b.,

changes the scheduling of Merit evaluations. OSHA and the participant

will agree on a schedule, with the first evaluation occurring within 24

months (and preferably 18 months) after approval. This scheduling will

give OSHA greater flexibility in using its resources when conducting

Merit evaluations.

M. Changes in Termination or Withdrawal

1. Reasons for Termination, Draft Section P.1.i., allows OSHA to

terminate a VPP worksite where evidence is presented that the trust and

cooperation among labor, management, and OSHA, upon which approval was

based, no longer exist. Recent experience has demonstrated a need for

this flexibility.

2. Termination Notification and Appeal or Withdrawal, Draft Section

P.2., establishes the site's right to submit a written appeal of OSHA's

decision to terminate.

3. Reapplication Following Termination, Draft Section P.4.,

requires a terminated site to wait 3 years before reapplying to the

VPP. This requirement clarifies that reapplication will be considered

only after the worksite has had sufficient time to reestablish an

effective safety and health program.

Draft: The Voluntary Protection Programs

A. Purpose of the Voluntary Protection Programs

OSHA has long recognized that a multifaceted approach is the best

way to accomplish all the goals of the Act. Compliance with

occupational safety and health standards, OSHA regulations, and the

general duty clause--all the requirements of the Act--is essential.

Rulemaking and enforcement alone, however, cannot replace the

understanding of work processes, materials, and hazards that comes with

employers' and employees' daily on-the-job experience and commitment to

workplace safety and health. This knowledge, combined with an ability

to evaluate and address hazards rapidly, enables employers and

employees to take responsibility for their own safety and health in

ways not available to OSHA. Further, OSHA's substantial experience with

site-based safety and health programs has shown the value of a

comprehensive, systematic approach to worker protection. It is OSHA's

policy, therefore, to promote safety and health programs tailored to

the needs of particular worksites.

The purpose of the Voluntary Protection Programs (VPP) is to

emphasize the importance of, encourage the improvement of, and

recognize excellence in employer-provided, employee-participative, and

generally site-specific occupational safety and health programs. These

programs are comprised of management systems for preventing or

controlling occupational hazards. Sites employing these systems not

only are working to remain compliant with OSHA's rules, but also are

striving to excel by using flexible and creative strategies that go

beyond the requirements to provide the best feasible protection for

their workers. In the process, these worksites serve as models for

effective safety and health programs in their industries while reducing

employee injuries and illnesses well below industry averages. Moreover,

the demonstrated workers' compensation cost reductions, reduced

employee turnover, quality improvements, and other benefits to which

VPP worksites testify are helping to convince skeptics that

productivity, quality, profitability, and safety are complementary

goals.

VPP participants enter into a new relationship with OSHA. In this

innovative public/private partnership, cooperation and trust nourish

improvements in safety and health, not just at VPP sites, but also

beyond the

[[Page 55394]]

worksite boundaries. VPP companies have frequent opportunity to provide

the Agency with input on safety and health matters. At the same time,

the recognition and status gained by their participation in VPP, and

their commitment to improving their industries and communities, enable

them to accomplish a broad range of safety and health objectives. VPP

participants mentor other worksites interested in improving their

safety and health programs; conduct safety and health training and

outreach seminars; and hold safety and health conferences that focus on

leading-edge safety and health issues. VPP participants also

participate with OSHA on VPP onsite reviews. This unique program gives

private and public sector safety and health professionals the

opportunity to exchange ideas, gain new perspectives, and grow

professionally.

Worksites in the VPP are removed from programmed inspection lists

for the duration of their participation, unless they choose to remain

on the lists. This helps OSHA to focus its inspection resources on

establishments that are less likely to meet the requirements of the OSH

Act. However, OSHA continues to investigate valid employee safety and

health complaints, fatalities and catastrophes, and other significant

events at VPP sites according to established Agency procedures.

Participation in any of the programs does not diminish existing

employer and employee responsibilities and rights under the Act. In

particular, OSHA does not intend to increase the liability of any party

at an approved VPP site. Employees or any representatives of employees

taking part in an OSHA-approved VPP safety and health program do not

assume the employer's statutory or common law responsibilities for

providing safe and healthful workplaces; nor are employees or their

representatives expected to guarantee a safe and healthful work

environment.

The programs included in the VPP are voluntary in the sense that no

employer is required to participate. Compliance with OSHA's

requirements and applicable laws remains mandatory. Initial achievement

and then continuing maintenance of the VPP requirements are conditions

of participation.

The Assistant Secretary for Occupational Safety and Health

determines approval for initial participation in the VPP, advancement

to the Star Program, all participation in Demonstration Programs, and

termination from the VPP. The OSHA Regional Administrator who has

jurisdiction over a participant determines approval for continuation in

the Star (including 1-year Conditional Star participation) and Merit

Programs.

B. Purpose of This Notice

This notice describes the criteria for admission to the Voluntary

Protection Programs (VPP); the conditions of participation,

termination, or withdrawal; and the means of reinstatement.

C. Program Description

1. General

The VPP emphasize the importance of comprehensive worksite safety

and health programs--safety and health management systems--in meeting

the goal of the Act ``to assure so far as possible every working man

and woman in the Nation safe and healthful working conditions and to

preserve our human resources. * * *'' This emphasis is demonstrated

through assistance to employers in their efforts to reach the VPP level

of excellence; through cooperation among government, labor, and

management to resolve safety and health problems; and through official

recognition of excellent safety and health programs. VPP sites are

expected to effectively protect their workers from the hazards of the

workplace through their safety and health programs. They do this by

meeting established, rigorous safety and health program management

criteria.

The VPP consist of three programs: Star, Demonstration, and Merit.

The Star Program recognizes worksites that are self-sufficient in their

ability to control hazards at the worksite. The Demonstration Program

recognizes worksites that have Star quality safety and health programs

but require demonstration and/or testing of experimental approaches

that differ from current Star requirements. The Merit Program

recognizes worksites that have good safety and health programs but must

take additional steps to reach Star quality.

2. Recognition

When OSHA approves an applicant for participation in the VPP, the

Agency recognizes that the applicant is providing, at a minimum, the

basic elements of ongoing, systematic protection of workers at the site

in accordance with rigorous VPP criteria. This protection makes general

schedule inspections unnecessary. Therefore, the site is removed from

OSHA's programmed inspection lists (unless the participant chooses not

to be removed). The VPP symbols of recognition are certificates and

plaques of approval and flags identifying the program in which the site

participates. The participant also may choose to use program logos on

such items as letterhead, shirts, and mugs.

3. Cooperative Relationship

VPP participants work cooperatively with the Agency, both in the

resolution of safety and health problems and in the promotion of

effective safety and health programs. This cooperation takes such forms

as presentations before meetings of labor, industry, and government

groups; input in OSHA rulemaking; and participation in activities

including OSHA Volunteers, mentoring, outreach, and training. OSHA

designates a contact person, usually the Regional VPP Manager, who

coordinates each approved site's contact with the Agency.

D. Eligibility

1. General

The VPP accepts applications from private sector general industry,

maritime, and construction worksites, and from federal agency worksites

subject to 29 CFR part 1960, that have implemented a safety and health

program. VPP accepts applications from owners and site managers (such

as a construction site's general contractor or construction manager)

who control site operations and have ultimate responsibility for

assuring safe and healthful working conditions at the site. VPP also

accepts applications from resident contractors at participating VPP

sites for the contractors' operations at those VPP sites. Site

management submits the application, but it must reflect the support of

site employees and, where applicable, their collective bargaining

representatives.

2. Unionized Sites

At sites with employees organized into one or more collective

bargaining units, the authorized representative for each collective

bargaining unit must either sign the application or submit a signed

statement indicating that the collective bargaining agent(s) support

VPP participation. Without such concurrence from all such authorized

agents, OSHA will not accept the application.

3. OSHA History

If an applicant has been inspected by OSHA within the 36-month

period preceding application, the inspection, abatement, and/or any

other history of interaction with OSHA must indicate good faith

attempts to improve safety and health. An applicant's history must

include no open investigations and no pending or open contested

citations at

[[Page 55395]]

the time of application, and no affirmed willful violations during

those prior 36 months.

E. Assurances

Applications for the Star, Demonstration, and Merit Programs must

be accompanied by certain assurances describing what the applicant

agrees to do if the application is approved. The applicant must assure

that:

1. The applicant will correct in a timely manner all hazards

addressed by OSHA's safety and health standards and regulations and by

Section 5(a)(1) of the Act.

2. Site employees support the VPP application.

3. VPP elements are in place, and the requirements of the elements

will be met and maintained.

4. Employees, including newly hired employees and contract

employees when they reach the site, will have the VPP explained to

them, including employee rights under the program and under the Act.

5. Hazards discovered through employee notification, self-

inspections, an OSHA onsite review, accident investigations, process

hazard reviews, annual evaluations, or any other means of report,

investigation, or analysis will be corrected in a timely manner, with

effective interim protection provided as necessary. Site deficiencies

related to compliance with OSHA requirements and identified during the

OSHA preapproval onsite review will be corrected within 90 days.

6. Employees given safety and health duties as part of the

applicant's safety and health program will be protected from

discriminatory actions resulting from their carrying out such duties,

just as section 11(c) of the Act protects employees who exercise their

rights under the Act.

7. Employees will have access to the results of self-inspections,

accident investigations, and other safety and health program data upon

request. At unionized construction sites, this requirement may be met

through employee representative access to these results.

8. The information listed below will be maintained and available

for OSHA review to determine initial and continued approval to the VPP:

a. Written safety and health program;

b. All documentation enumerated under Section J.4. of this notice;

and

c. Any agreements between management and the collective bargaining

agent(s) concerning safety and health.

9. Any data necessary to evaluate the achievement of individual

Merit or One-Year Conditional goals not listed above will be made

available to OSHA for evaluation purposes.

10. Each year by February 15, each participating site will send to

its designated OSHA VPP Manager (described in Section N.1.) the site's

injury/illness incidence and lost/restricted workday case numbers and

rates, hours worked, and estimated average employment for the past full

calendar year; a copy of the most recent annual evaluation of the

site's safety and health program; a description of worksite outreach

activities; and any success stories, e.g., reductions in workers'

compensation rates, increases in employee involvement in the program,

etc.

In addition, each participating general industry or maritime site

will send to the designated OSHA VPP Manager the site's injury/illness

incidence and lost/restricted workday case numbers and rates, hours

worked, and estimated average employment for the past full calendar

year for each applicable contractor's employees who worked 500 or more

hours in any calendar quarter at the site and who are covered under

Section F.4.a.(2).

11. Whenever significant organizational or ownership changes occur,

the site shall provide OSHA a new Statement of Commitment signed by

both management and any authorized collective bargaining agents.

12. Whenever a change occurs in the authorized collective

bargaining agent, a new signed statement shall be provided indicating

that the new representative supports VPP participation.

F. The Star Program

1. Purpose

The Star Program recognizes leaders in occupational safety and

health who are successfully protecting workers from death, injury, and

illness by implementing comprehensive and effective safety and health

programs. Star participants willingly share their experience and

expertise, and they encourage others to work toward comparable success.

2. Term of Participation

The term for participation in an approved Star Program is open-

ended so long as the participating site:

a. Continues to maintain its excellent safety and health program as

evidenced by favorable evaluation by OSHA every 30 to 60 months; and

b. Submits the annual information required, e.g., annual rates data

and program evaluation (see Section E.8.).

Note: In the construction industry, participation ends with the

completion of construction work at the site.

3. Experience

All safety and health program elements needed for program success,

as delineated in F.5. below, must be operating for a period of not less

than 12 months before Star approval.

4. Injury/Illness Performance

a. The general industry or maritime applicant at the time of

approval must meet the following criteria:

(1) For site employees--Both the 3-year injury and illness

incidence rates and the lost/restricted workday injury and illness case

rates for the most recent 3 calendar years must be below the most

recent specific industry (at the three-or four-digit level) national

averages published by BLS.

Some applicants, usually smaller worksites with limited numbers of

employees and/or hours worked, may use an alternative method for

calculating incidence rates. The alternative method allows the employer

to use the best 3 out of the most recent 4 years' injury and illness

experience.

(a) To determine whether the employer qualifies for the alternative

calculation method, do the following:

Using the most recent employment statistics (hours worked

in the most recent calendar year), calculate a hypothetical rate for

the employer assuming that the employer had two cases during the year;

Compare that hypothetical rate to the most recently

published BLS rate for the industry; and

If the hypothetical rate (based on two cases) gives the

firm a rate equal to or higher than the national average for its

industry, the following alternative calculation method can be used. (If

not, it cannot be used.)

(b) If the employer qualifies for the alternative calculation

method, the best 3 of the last 4 calendar years shall be used to

calculate the 3-year rates for the employer.

(2) For contract employees--The injury and illness and lost/

restricted workday injury and illness case rates (called the site

contractor's employee rates) for the most recent calendar year for each

applicable contractor's employees assigned to site also should be below

the most recent specific industry national averages published by BLS.

(a) Applicable contractors are those employers who have contracted

with the site to perform certain jobs and whose employees worked a

total of 500 or more hours in at least 1 calendar quarter at the

worksite.

[[Page 55396]]

(b) The industry averages used shall be determined by the Standard

Industrial Classification (SIC) Code at the three-or four-digit level

for each type of work performed.

(c) At worksites where an applicable contractor's site rates may be

above the national average for the work being performed, the site must

describe the steps it is taking to ensure the contractor's site

employees are provided effective protection. The site also must

describe how it is working with the contractor to develop a plan to

reduce those rates within 2 years to below the industry average for the

work being performed.

b. The construction applicant, at the time of approval, must meet

the following criteria:

(1) The site for which VPP application is being made must have been

in operation for at least 12 months.

(2) The applicant's combined injury and illness incidence rate and

lost/restricted workday injury and illness case rate from site

inception until time of application must include all workers of all

subcontractors and must be below the national average for the type of

construction at the site according to the most precise SIC code. The

site's SIC code is determined by the type of construction project, not

individual trades.

c. Federal agency applicants shall follow the same requirements as

general industry and maritime (see a. above), except that 3-year rates

may be calculated by fiscal year instead of calendar year.

5. Safety and Health Program Qualifications for the Star Program

a. Management Leadership and Employee Involvement. Each applicant

must be able to demonstrate top-level management leadership in the

site's safety and health program. Management systems for comprehensive

planning must address protection of worker safety and health. Employees

must be meaningfully involved in the safety and health program.

(1) Commitment to Safety and Health Protection. Authority and

responsibility for employee safety and health must be integrated with

the overall management system of the organization and must involve

employees. This commitment includes:

(a) Policy. Clearly established policies for worker safety and

health protection that have been communicated to and understood by

employees; and

(b) Goal and Objectives. Established and communicated goal(s) for

the safety and health program and results-oriented objectives for

meeting that goal, so that all members of the organization understand

the results desired and the measures planned for achieving them,

especially those factors that are applicable directly to them.

(2) Commitment to VPP Participation. Management must also clearly

demonstrate commitment to meeting and maintaining the requirements of

the VPP.

(3) Planning. Planning for safety and health must be a part of the

overall management planning process. In construction, this includes

pre-job planning and preparation for different phases of construction

as the project progresses.

(4) Written Safety and Health Program. All critical elements of a

basic systems management safety and health program must be part of the

written program. These critical elements are management leadership and

employee involvement, worksite analysis, hazard prevention and control,

and safety and health training. All aspects of the safety and health

program must be appropriate to the size of the worksite and the type of

industry. Some formal requirements, such as certain written procedures

or documentation, may be waived for small businesses where the

effectiveness of the systems has been evaluated and verified. Waivers

will be decided on a case-by-case basis.

(5) Management Leadership. Managers must provide visible leadership

in implementing the program. This must include:

(a) Establishing clear lines of communication with employees;

(b) Setting an example of safe and healthful behavior;

(c) Creating an environment that allows for reasonable employee

access to top site management;

(d) Ensuring that all workers at the site, including contract

workers, are provided equally high quality safety and health

protection;

(e) Clearly defining responsibility in writing, with no unassigned

areas. Each employee, at any level, must be able to describe his/her

responsibility for safety and health;

(f) Assigning commensurate authority to those who have

responsibility;

(g) Affording adequate resources to those who have responsibility

and authority. This includes such resources as time, training,

personnel, equipment, budget, and access to expert information,

including appropriate use of certified industrial hygienists (CIH) and

certified safety professionals (CSP) as needed, based on the risks at

the site; and

(h) Holding managers, supervisors, and non-supervisory employees

accountable for meeting their responsibilities, so that essential tasks

will be performed. In addition to clearly defining and implementing

authority and responsibility for safety and health protection,

management leadership entails evaluating managers and supervisors

annually, and operating a documented system for reinforcing good and

correcting deficient performance.

(6) Employee Involvement. The site culture must enable and

encourage employee involvement in the planning and operation of the

safety and health program and in decisions that affect employees'

safety and health. The requirement for employee participation may be

met in a variety of ways, as long as employees have at least three

active and meaningful ways to participate in safety and health problem

identification and resolution. This involvement must be in addition to

the individual right to notify appropriate managers of hazardous

conditions and practices and to have issues addressed. Examples of

acceptable employee involvement include but are not limited to the

following:

(a) Participating in ad hoc safety and health problem-solving

groups,

(b) Participating in audits and/or worksite inspections,

(c) Participating in accident and incident investigations,

(d) Developing and/or participating in employee improvement

suggestion programs,

(e) Training other employees in safety and health,

(f) Analyzing job/process hazards,

(g) Acting as safety observers,

(h) Serving on safety and health committees constituted in

conformance to the National Labor Relations Act.

(7) Contract Worker Coverage. All contractors and subcontractors,

whether in general industry, construction, or maritime, are required to

follow worksite safety and health rules and procedures applicable to

their activities while at the site.

(a) Essentially, participants are expected to require of their

contractor(s) what OSHA requires of them, an effective safety and

health program management system in place with injury and illness rates

for site contractor employees below the averages for their industries.

(b) Participants must demonstrate that they have considered the

safety and health programs and/or performance history of all

contractors during the evaluation and selection of these contractors.

(c) Participants must document that all contractors and

subcontractors operating routinely at the site maintain effective

safety and health programs and

[[Page 55397]]

comply with applicable safety and health rules and regulations.

Such documentation must describe the authority for the

oversight, coordination, and enforcement of those programs by the

applicant, and there must be documentary evidence of the exercise of

this authority at the site.

Such documentation must describe the means for prompt

elimination or control of hazards, however detected, by the applicant

in the event that contractors or individuals fail to correct or control

such hazards.

Such documentation must describe how the contractor

submits the injury/illness incidence and lost/restricted workday data

as described in F.4.a.(2) and how, if the applicable contractor's

employee rates are above the BLS averages for their industries, the

participant will work with the contractor to ensure that these rates

will be reduced to below average within 2 years.

Such documentation must describe the penalties, including

contractor correction and/or dismissal from the worksite, for willful

or repeated non-compliance by contractors, subcontractors, or

individuals.

(8) Safety and Health Program Evaluation. The applicant must have a

system for annually evaluating the operation of the safety and health

program. This system will judge success in meeting the program's goal

and objectives, and will assist those responsible to determine and

implement changes for continually improving worker safety and health

protection.

(a) The system must provide for an annual written narrative report

with recommendations for timely improvements, assignment of

responsibility for those improvements, and documentation of timely

follow-up action or the reason no action was taken.

(b) The evaluation must assess the effectiveness of all elements

described in F.5. and any other elements of the site's safety and

health program.

(c) When a participant submits its annual evaluation report to

OSHA, the site must also provide a report describing its outreach

activities, including efforts such as mentoring other worksites, making

presentations at meetings and conferences, providing input into OSHA's

rulemaking, and generally helping OSHA to carry out its mission.

(d) The evaluation may be conducted by competent corporate or site

personnel or by competent private sector third parties who are trained

and/or experienced in performing such evaluations. The evaluation

should follow any format recommended by OSHA.

(e) In construction, the evaluation must be conducted annually and

immediately prior to completion of construction. The final evaluation

is to determine what has been learned about safety and health

activities that can be used to improve the contractor's safety and

health program at other sites. If a construction company does not

provide this final evaluation, OSHA will not consider subsequent VPP

applications for other sites operated by that company.

b. Worksite Analysis. Management of safety and health programs must

begin with a thorough understanding of all hazardous situations to

which employees may be exposed and the ability to recognize and correct

all hazards as they arise. This requires:

(1) Procedures to ensure analysis of all newly acquired or altered

facilities, processes, materials, equipment, and/or phases before use

begins, to identify hazards and the means for their prevention or

control.

(2) Comprehensive safety and health surveys, at intervals

appropriate for the nature of workplace operations, which include:

(a) Identification of safety hazards accomplished by an initial

comprehensive baseline survey and then subsequent surveys as needed;

(b) Identification of health hazards and employee exposure levels

accomplished through an industrial hygiene sampling rationale and

strategy. Sampling rationale should be based on data including reviews

of work processes, material safety data sheets, employee complaints,

exposure incidents, medical records, and previous monitoring results.

The sampling strategy should include baseline and subsequent surveys

that assess employees' exposure through screening and full shift

sampling when necessary; and

(c) The use of nationally recognized procedures for all sampling,

testing, and analysis with written records of results.

(3) Routine examination and analysis of safety and health hazards

associated with individual jobs, processes, or phases and inclusion of

the results in training and hazard control programs. This may include

job hazard analysis and/or process hazard review. In construction, the

emphasis must be on special safety and health hazards of each craft and

each phase of work.

(4) A system for conducting, as appropriate, routine self-

inspections that follows written procedures or guidance and that

results in written reports of findings and tracking of hazard

elimination or control to completion.

(a) In general industry and maritime, these inspections must occur

no less frequently than monthly and must cover the whole worksite at

least quarterly;

(b) In construction, these inspections must cover the entire

worksite at least weekly.

(5) A reliable system for employees, without fear of reprisal, to

notify appropriate management personnel in writing about conditions

that appear hazardous and to receive timely and appropriate responses.

The system must include tracking of responses and tracking of hazard

elimination or control to completion.

(6) An accident/incident investigation system that includes written

procedures or guidance, with written reports of findings and hazard

elimination or control tracking to completion. Investigations are

expected to seek out root causes of the accident or event and to cover

``near miss'' incidents.

(7) A system to analyze trends through a review of injury/illness

experience and hazards identified through inspections, employee

reports, accident investigations, and/or other means, so that patterns

with common causes can be identified and the causes eliminated or

controlled.

c. Hazard Prevention and Control. Based on the results of worksite

analysis, identified hazards must be eliminated or controlled by

developing and implementing the systems enumerated beginning at (2)

below.

(1) The following hierarchy shall govern actions to eliminate or

control hazards, with (a) being the most desirable:

(a) Engineering controls are the most reliable and effective type

of controls. These are design changes that directly eliminate (ideally)

or limit the severity and/or likelihood of the hazard, e.g. reduction

in pressure/amount of hazardous material, substitution of less

hazardous material, reduction of noise produced, fail-safe design, leak

before burst, fault tolerance/redundancy, ergonomics, etc. Although not

as reliable as true engineering controls, this category also includes

protective safety devices such as guards, barriers, interlocks,

grounding and bonding systems, pressure relief valves to keep pressure

within a safe limit, etc. These items typically seek to reduce

indirectly the likelihood of the hazard. These controls are often

linked with caution and warning devices like detectors and alarms that

are either automatic (do not require a human response) or manual

(require a human response);

[[Page 55398]]

(b) Administrative controls that significantly limit daily exposure

to hazard by control or manipulation of the work schedule or manner in

which work is performed, e.g., job rotation;

(c) Work Practice controls, a type of administrative control that

includes workplace rules, safe and healthful work practices, and

procedures for specific operations. Work Practice controls modify the

manner in which an employee performs assigned work. This modification

may result in a reduction of exposure through such methods as changing

work habits, improving sanitation and hygiene practices, or making

other changes in the way the employee performs the job. These controls

must be:

Understood and followed by all affected parties;

Appropriate to the hazards of the site;

Equitably enforced through a clearly communicated written

disciplinary system that includes procedures for disciplinary action or

reorientation of managers, supervisors, and non-supervisory employees

who break or disregard safety rules, safe work practices, proper

materials handling, or emergency procedures;

Written, implemented, and updated by management as needed,

and must be used by employees; and

Incorporated in training, positive reinforcement, and

correction programs; and

(d) Personal protective equipment.

(2) A system for initiating and tracking hazard elimination or

control in a timely manner;

(3) A written system for, and ongoing documentation of, the

monitoring and maintenance of workplace equipment such as preventive

and predictive maintenance, to prevent equipment from becoming

hazardous;

(4) An occupational health care program that uses licensed health

care professionals to assess employee health status for prevention of

and early recognition and treatment of illness and injury; and that

provides, at a minimum, certified first aid and cardiopulmonary

resuscitation (CPR) providers onsite for all shifts, and physician and

emergency medical care available within a reasonable time and distance.

Occupational health care professionals should be used as appropriate to

accomplish these functions; and

(5) Procedures for response to emergencies on all shifts. These

procedures must be written and communicated to all employees, must list

requirements for personal protective equipment, first aid, medical

care, and emergency egress, and must include provisions for emergency

telephone numbers, exit routes, and training drills including, at a

minimum, annual evacuation drills.

d. Safety and Health Training. Training is necessary to reinforce

and complement management's commitment to prevent exposure to hazards.

All employees must understand the hazards to which they may be exposed

and how to prevent harm to themselves and others from such hazard

exposure. Effective training enables employees to accept and follow

established safety and health procedures. Training for safety and

health must ensure that:

(1) Managers and supervisors understand their safety and health

responsibilities (see F.5.a.) and are able to carry them out

effectively;

(2) Managers, supervisors, and non-supervisory employees (including

contract employees) are made aware of hazards, and are taught how to

recognize hazardous conditions and the signs and symptoms of workplace-

related illnesses;

(3) Managers, supervisors, and non-supervisory employees (including

contract employees) learn the safe work procedures to follow in order

to protect themselves from hazards, through training provided at the

same time they are taught to do a job and through reinforcement;

(4) Managers, supervisors, non-supervisory employees (including

contractor employees), and visitors on the site understand what to do

in emergency situations; and

(5) Where personal protective equipment is required, employees

understand that it is required, why it is required, its limitations,

how to use it, and how to maintain it; and employees use it properly.

6. Compliance with OSHA Requirements

All Star sites are expected to comply with OSHA requirements. Any

site deficiencies related to compliance that are uncovered through an

OSHA onsite review, an internal inspection, an employee report, or

other means shall be corrected promptly.

G. Demonstration Programs

1. Program Purpose and Approval

a. Demonstration Programs provide the opportunity for companies

and/or worksites to demonstrate the effectiveness of alternative

methods of achieving safety and health program excellence that could be

substituted for current Star requirements. OSHA may approve a

Demonstration Program for such purposes as:

(1) Exploring the application of VPP in industries where OSHA lacks

substantial experience;

(2) Testing alternative application and approval protocols that may

enable sites currently ineligible for VPP to qualify for participation;

and

(3) Demonstrating the feasibility of joint federal agency

oversight, including joint audits, in the area of workplace safety and

health.

b. A Demonstration Program also may be used to demonstrate the

potential for a new VPP program.

c. The basic parameters of a Demonstration Program shall be

developed at the National Office or Regional level and shall include a

clear outline of specific requirements.

d. The decision to implement a Demonstration Program shall be

approved by the Assistant Secretary before any worksite is considered

for participation.

2. Qualifications for Demonstration Programs

a. Safety and Health Program Requirements. Demonstration Program

applicants must have a site safety and health program that, at a

minimum, addresses the basic elements (management leadership and

employee involvement, worksite analysis, hazard prevention and control,

and safety and health training) described for Star in Section F.5.

above. How the applicant implements these elements may be the subject

of demonstration so long as Star quality protection is afforded to all

employees and contractors. Further, where an alternative is being

tested, the applicant may not be required to meet each of the specific

elements that comprise each basic element.

b. Injury and Illness Rates. These are identical to Star Program

rates requirements. See F.4.

c. Applicants must demonstrate to the Assistant Secretary's

satisfaction that the alternative approach shows reasonable promise of

being successful and of leading to changes in the Star Program

requirements.

3. Term of Participation

Worksites may be approved to a Demonstration Program for the period

of time agreed upon in advance of approval, but not to exceed 5 years

and subject to regular evaluation every 12 to 18 months.

4. Approval of Demonstration Program Worksite to Star

a. Approval to Star is contingent upon:

(1) Successful demonstration of the alternative aspects of the

safety and health program; and

[[Page 55399]]

(2) A decision by the Assistant Secretary that changing the

requirements of the Star Program to allow inclusion of these

alternative provisions is desirable and will result in a continuing

high level of worker protection.

b. Once a decision has been made by the Assistant Secretary to

change Star requirements, those changes will be effective on the date

they are announced to the public.

c. When the change has become effective, the Demonstration site(s)

may be approved to Star without submitting a new application or

undergoing further onsite review, provided that the approval occurs no

later than 1 year following the last evaluation under the Demonstration

Program. If more than 1 year has elapsed, an evaluation shall be

conducted prior to recommending the worksite for approval to the Star

Program.

5. Demonstration Termination

a. OSHA will terminate a Demonstration Program for the following

reasons:

(1) The Demonstration is likely to endanger workers at the approved

site(s).

(2) It is unlikely that the Demonstration will result in

participating sites' approval to the Star Program or creation of a new

Program.

(3) The Demonstration period has expired.

b. When a Demonstration Program ends, any participating sites not

approved to Star will be terminated from the VPP.

H. The Merit Program

1. Purpose

The Merit Program is aimed at employers in any industry who do not

yet meet the qualifications for the Star Program but who have

implemented a safety and health program and who want to work toward

Star Program participation. If OSHA determines that an employer has

demonstrated the commitment and possesses the resources to achieve Star

requirements within 3 years, Merit is used to set goals that, when

achieved, will qualify the site for Star participation.

2. Qualifications for Merit

a. Safety and Health Program Requirements. An eligible applicant to

the Merit Program must have a written safety and health program that

covers the essential elements described in Section F.5. for Star.

(1) The basic elements (management leadership and employee

involvement, worksite analysis, hazard prevention and control, and

safety and health training) must all be operational or, at a minimum,

in place and ready for implementation by the date of approval. For the

construction industry, each site must have in place an active program

that provides for safety and health inspections involving trained

employees before approval.

(2) The eligible applicant may not have met each of the specific

Star requirements comprising each basic element. Participation in Merit

is an opportunity for employers and their employees to work with OSHA

to improve the quality of their safety and health programs and, if

necessary, reduce their injury and illness rates to meet the

requirements for Star. The site's safety and health program must be at

Star quality within 3 years.

b. Injury and Illness Rates.

(1) For general industry and maritime, if the applicant's 3-year

injury and illness incidence and/or lost/restricted workday case rate

for the last 3 calendar years prior to approval does not meet the Star

rates requirement (F.4.a.), the applicant must have a plan to achieve

Star rates requirements within 2 years. It must be statistically

possible to achieve this goal.

For each applicable contractor working at the site (for definition

see F.4.a.(2)(a)), if one or both rates are above the national average,

the site must demonstrate what action will be taken to reduce the

rate(s) so that within 2 years they are below the applicable contractor

industry average(s) for the work being performed at the site.

(2) For construction, if the injury and illness rates for the

applicant site are not below the industry averages as required for

Star, the applicant company must demonstrate that the company's 3-year

injury and illness rates are below the most recently published BLS

national average for the industry (at the three-digit level). The

injury and illness incidence rate and the lost/restricted workday case

rate must each be calculated over the last 3 complete calendar years.

The rate must include all the applicant's employees who are actually

employed at construction sites in that SIC. The applicant may use

nationwide employment or may designate, with OSHA approval, an

appropriate geographical area that includes the site for which

application is made.

c. Goals/Annual Evaluation. In consultation with the applicant,

OSHA will set goals to bring Merit sites up to Star level. Site

deficiencies related to compliance with OSHA rules will be listed as

90-day items and not included in longer-term Merit goals. How a site is

working toward or has achieved its Merit goals must be discussed in the

site's annual evaluation of its safety and health program (Section

F.5.a.(12)).

3. Term of Participation

Worksites will be approved to the Merit Program for a period of

time agreed upon in advance of approval but not to exceed 3 years. The

term will depend upon how long it is expected to take the applicant to

accomplish the goals for Star participation. Participation is canceled

at the end of the term unless approval for a second term is recommended

and is approved by the Assistant Secretary. Approval for a second term

will be recommended only when unanticipated unique circumstances slow

the participant's progress toward accomplishing the goals.

4. Multi-Site Eligibility

OSHA expects that companies having many sites applying to the VPP

will be able to learn from the experience of their first few approved

sites and, therefore, will be able to bring their remaining sites to

Star quality before submitting VPP applications. If OSHA determines

that any such company has the resources to develop Star quality

worksites, OSHA, at its discretion, may limit the number of Merit sites

approved in the VPP from that company. In situations where this limit

has been imposed and reached, and where a VPP team determines that an

additional site is not at Star quality, the team shall give the site a

list of goals to be met and documented and a minimum time frame of at

least 1 year before a team will return to the site for further review.

I. Application for VPP

1. Instructions

OSHA will prepare, keep current, and make available to all

interested parties application guidelines that explain the information

to be submitted for OSHA review.

2. Content

a. Eligible applicants are required to provide all information

described in the most current version of the relevant application

instructions.

b. Amendments to submitted applications shall be requested when the

application information is insufficient to determine eligibility for

onsite review.

c. Materials needed to document the safety and health program that

may involve trade secrets or employee privacy interests must not be

included in the application. Instead, such

[[Page 55400]]

materials must be described in the application and provided only for

viewing at the site during an application assistance visit and/or

during the Pre-Approval Onsite Review.

3. Submission

The number of application copies requested by OSHA shall be

submitted to the appropriate OSHA Regional Office or, in the case of

some Demonstration Program applications, to OSHA's Directorate of

Federal-State Operations in Washington, DC. Normally, at least two

copies will be required, but the number requested may vary depending

upon circumstances particular to the program and/or the applicant.

4. Acceptance of Application

a. OSHA conducts an initial review of each application to determine

whether it meets VPP criteria that can be substantiated by the site's

written safety and health program and supporting documentation. The

applicant shall be given the opportunity to improve its application by

submitting amended or additional materials.

b. If the application is incomplete, and if after notification the

applicant has not responded within 90 days to OSHA's request for more

information, the Agency will consider the application unacceptable and

will return it to the site. The site may resubmit the application when

it is complete.

5. Withdrawal of Application

a. Any applicant may withdraw a submitted application at any time.

When the applicant notifies OSHA of its desire to withdraw, the

original application(s) will be returned to the applicant.

b. OSHA may keep the assigned VPP Manager's marked working copy of

the application for a year before discarding it, in order to respond

knowledgeably should the applicant raise questions concerning the

handling of the application. Once an application has been withdrawn, a

new submission of an application is required to be considered for VPP

approval.

6. Public Access

The following documents shall be maintained by OSHA for public

access beginning on the day the site attains VPP approval and

continuing for so long as the site remains in VPP:

a. In the National Office--Site information and the general

description of the site's safety and health program from the

application; pre-approval report and subsequent evaluation reports

prepared by OSHA; the Regional Administrator's letter of

recommendation; transmittal memoranda to Assistant Secretary; and the

Assistant Secretary's and Regional Administrator's approval letters.

b. In the Regional Office--Complete VPP application and amendments;

pre-approval report and subsequent evaluation reports; the Regional

Administrator's letter of recommendation; Regional Administrator

transmittal memoranda to Assistant Secretary via the Director of

Federal-State Operations; the Assistant Secretary's approval letters;

the memorandum to the appropriate Area Director removing the approved

site from the general inspection list; and related correspondence.

J. Pre-Approval Onsite Review

1. Purpose. The pre-approval review, which OSHA conducts in a non-

enforcement capacity, is a review of the site's safety and health

program. It is conducted to:

a. Verify the information supplied in the application concerning

qualification for the VPP;

b. Identify the strengths and weaknesses of the site's safety and

health program;

c. Determine the adequacy of the site's safety and health program

to address the hazards of the site and to ensure compliance with all

OSHA requirements; and

d. Obtain information to assist the Assistant Secretary in making

the VPP approval decision.

2. Preparation. The review shall be arranged at the mutual

convenience of OSHA and the applicant. The review team shall consist of

a team leader; a back-up team leader (whenever possible); and health,

safety, and other specialists as required by the size of the site and

the complexity of its operations.

3. Duration. The time required for the pre-approval onsite review

will depend upon the size of the site and the complexity of its

operations. Pre-approval reviews usually average 4 days onsite, but may

be shorter or longer based on the decision of the Regional

Administrator or Regional VPP Manager.

4. Scope. All pre-approval onsite reviews follow a three-pronged

strategy that assesses a site's safety and health program by means of

document review, site walkthrough, and employee interviews.

The onsite review shall include a review of injury and illness

records, recalculation and verification of the injury/illness and

incidence rates submitted with the application, verification that the

safety and health program described in the application has been

implemented effectively, a general assessment of safety and health

conditions to determine if the safety and health program adequately

protects workers from the hazards at the site, and verification of

compliance with OSHA and VPP requirements.

The review shall include random formal and informal interviews with

relevant individuals (such as members of any safety and health

committees, management personnel, randomly selected non-supervisory

employees, and contract workers).

Onsite document review shall entail examination of the following

records (or samples) if they exist and are relevant to the application

or to the safety and health program:

a. Written safety and health program;

b. Management statement of commitment to safety and health;

c. The OSHA Form 200 log for the site and for all site contractor

employees who are required to report;

d. Safety and health manual(s);

e. Safety rules, emergency procedures, and examples of safe work

procedures;

f. The system for enforcing safety rules;

g. Reports from employees of safety and health problems and

documentation of management's response;

h. Self-inspection procedures, reports, and correction tracking;

i. Accident investigation reports and analyses;

j. Safety and health committee minutes;

k. Employee orientation and safety training programs and attendance

records;

l. Baseline safety and industrial hygiene exposure assessments and

updates;

m. Industrial hygiene monitoring records, results, exposure

calculations, analyses and summary reports;

n. Annual safety and health program evaluations and site and/or

corporate audits (where site audits are not comprehensive) necessary to

establish that VPP requirements are being met (trade secret concerns

will be accommodated to the extent possible), including the documented

follow-up activities, for at least the last 3 years;

o. Preventive maintenance program and records;

p. Accountability and responsibility documentation, e.g.,

performance standards and appraisals;

q. Contractor safety and health program(s);

r. Occupational health care programs and records;

[[Page 55401]]

s. Available resources devoted to safety and health;

t. Hazard and process analyses;

u. Process Safety Management documentation, if applicable;

v. Employee involvement activities; and

w. Other records that provide relevant documentation of VPP

qualifications.

K. Recommendation for Program Approval

1. Deferred Approval

If the pre-approval review determines that the applicant needs to

take steps to meet one or more program requirements or to come into

compliance with OSHA rules, the applicant will be given reasonable time

(up to 90 days) before a recommendation for VPP approval is made to the

Assistant Secretary. When necessary, an onsite visit shall be made to

verify the actions taken after the pre-approval onsite review visit.

2. Approval

If, in the opinion of the OSHA pre-approval onsite review team, the

applicant has met the qualifications for participation in a VPP, the

team's recommendation shall be made to the Regional Administrator, who,

on concurrence, shall recommend approval to the Director of Federal-

State Operations (FSO). The Director of Federal-State Operations shall

review the pre-approval report for compliance with the program criteria

and consistent application of the qualifications requirements and, on

concurrence, shall forward the recommendation to the Assistant

Secretary to approve participation. Approval shall occur on the day

that the Assistant Secretary signs a letter informing the applicant of

approval.

L. Recommendation for Program Denial

1. If OSHA determines that the applicant does not meet the

requirements for participation in one of the VPP, the Agency shall

allow reasonable time (not to exceed 30 calendar days) for the

applicant to withdraw its application before the Regional Administrator

makes a denial recommendation to the Assistant Secretary.

2. If the Assistant Secretary accepts the recommendation to deny

approval, the denial will occur as of the date the Assistant Secretary

signs a letter informing the applicant of the decision.

3. An applicant may appeal to the Assistant Secretary a finding by

the OSHA pre-approval team that requirements have not been met. The

Director of Federal-State Operations shall forward the appeal to the

Assistant Secretary, along with the team's recommendation of denial and

the FSO Director's own recommendation.

4. Should the Assistant Secretary for any reason reject the

recommendation to approve made by the Director of FSO and/or the

Regional Administrator, a letter from the Assistant Secretary denying

approval and explaining the rejection will be sent to the applicant.

The denial will occur as of the date of the letter.

M. Inspection/Investigation Provisions

1. Programmed Inspections

Participating worksites, unless they choose otherwise, shall be

removed from OSHA's programmed inspection lists, including any lists of

targeted sites for the duration of approved participation in the VPP.

The applicant worksite shall be removed from the programmed inspection

lists no more than 75 calendar days prior to the commencement of its

scheduled pre-approval onsite review. The site shall remain off those

lists until official denial of the application, applicant withdrawal of

its application, or, if the applicant is approved to the VPP,

subsequent cessation of active participation in the VPP.

2. Unprogrammed Inspections

a. Workplace complaints to OSHA, all fatalities and catastrophes,

and other significant events shall be handled by enforcement personnel

in accordance with normal OSHA enforcement procedures.

b. The history of the VPP demonstrates that safety and health

problems discovered during contact with worksites normally are resolved

cooperatively. Nevertheless, OSHA must reserve the right, where

employees' safety and health are seriously endangered and site

management refuses to correct the situation, to refer the situation to

the Assistant Secretary for review and enforcement action. The employer

shall be informed that a referral will be made to the Assistant

Secretary and that enforcement action may result.

3. Additional VPP Investigations

a. Following significant events, e.g., fatalities, chemical spills

or leaks, or other accidents, OSHA may choose to use VPP personnel to

conduct an onsite review to determine a participating site's continued

eligibility for VPP.

b. OSHA also may choose to investigate other significant accidents

or events that come to its attention and that are not required to be

handled with normal OSHA enforcement procedures, whether or not injury/

illness is involved. OSHA will use VPP personnel to determine whether

the accident or incident reflects a serious deficiency in the site's

safety and health program.

N. Post-Approval Contact/Assistance

1. OSHA Contact Person

The Contact Person for each VPP worksite shall be the appropriate

Regional VPP Manager or his/her designee. This person shall be

available to assist the participant, as needed.

2. Assistance

a. In some cases, such as in a Demonstration Program, at

construction sites, or when needed for the Merit Program, an onsite

assistance visit may be scheduled, e.g., to respond to employer

technical inquiries or to ensure the efficacy of a Demonstration.

b. Whenever significant changes in ownership or organizational

structure occur, or the authorized collective bargaining agent changes,

OSHA may make an onsite assistance visit if needed to determine the

impact of the changes on VPP participation. In the event of such

changes, the appropriate Regional Administrator must be notified of the

change, and a new signed Statement of Commitment shall be required. The

Statement must be signed by management and appropriate bargaining

representatives.

c. Whenever the 3-year injury and illness or lost/restricted

workday rates of a Star Program participant exceed the latest national

average published by BLS, at the discretion of the Regional

Administrator, the participant may be required to develop an agreed

upon 2-year rate reduction plan. If appropriate, OSHA may make an

onsite assistance visit to help the site develop the plan.

O. Periodic Onsite Evaluation of Approved Worksites

1. The Star Program

a. Purpose. Onsite evaluations of Star participants are intended

to:

(1) Determine continued qualification for the Star Program;

(2) Document results of program participation in terms of the

evaluation criteria and other noteworthy aspects of the site's safety

and health program; and

(3) Identify any problems that have the potential to adversely

affect continued Star Program qualification and determine appropriate

follow-up actions.

b. Frequency. The first post-approval evaluation shall be within 30

to 42 months of the initial Star approval or, in the case of a

Demonstration Program site

[[Page 55402]]

that has been approved to Star, within 30 to 42 months of the last

Demonstration evaluation. Subsequently, all Star participants shall be

evaluated at no greater than 60-month intervals. (The identification of

potentially serious safety and health risks may create the need for

more frequent evaluations.)

c. Scope. OSHA's evaluation of Star Program participants shall

consist mainly of an onsite visit similar in duration and scope to the

pre-approval program review described in J.3-4. OSHA shall review the

documentation of program implementation since pre-approval review or

since the previous evaluation. The evaluation shall include a review of

injury and illness incidence and lost/restricted workday case rates for

the site and for its applicable contractor employees as described in

F.4. The rates reported shall be for the latest 3 complete calendar

years. The report requirements for applicable contractor rates will be

phased in as follows:

(1) In 2000, contractor data for calendar year 1999;

(2) In 2001, contractor data for calendar years 1999 and 2000;

(3) Thereafter, data for the most recent 3 calendar years.

d. Measures of Effectiveness. OSHA shall use the following factors

in the evaluation of Star Program participants:

(1) Continued compliance with the program requirements and

continuous improvement in the safety and health program;

(2) Satisfaction and continuing demonstrated commitment of

employees and management;

(3) Nature and validity of any complaints received by OSHA;

(4) Nature and resolution of problems that may have come to OSHA's

attention since approval or the last evaluation; and

(5) The effectiveness of employee participation programs.

e. Evaluation Decisions and Recommendations. The Regional

Administrator may make one of the following decisions/recommendations

following a Star evaluation visit:

(1) Decision to continue participation in the Star Program;

(2) Decision to allow a 1-year conditional participation in the

Star Program. The VPP onsite review team may recommend this alternative

if it finds that the site has allowed one or more program elements to

slip below Star quality. The site must return its safety and health

program to Star quality within 90 calendar days of the evaluation visit

and must demonstrate a commitment to maintain that level of quality. A

VPP onsite review team shall return in 1 year to determine if the

site's safety and health program remains at Star quality. If Star

quality has been maintained, the team shall recommend the site be re-

approved to the Star Program; or

(3) Termination. After considering the recommendation of the VPP

onsite review team, the Regional Administrator may recommend to the

Assistant Secretary that a site be terminated if the site has been

found to have significantly failed to maintain its safety and health

program at Star quality.

2. The Demonstration Program

a. Purpose of Evaluation. Onsite Demonstration evaluations are

intended to:

(1) Determine continued qualification for the Demonstration

Program;

(2) Document results of program participation in terms of the

evaluation criteria and other noteworthy aspects of the site's safety

and health program;

(3) Ensure that the demonstration aspects of the program continue

to be effective and to protect employees; and

(4) Identify any problems that have the potential to adversely

affect continued Demonstration Program qualification and determine

appropriate follow-up actions.

b. Frequency. Demonstration Program participants shall be evaluated

every 12 to 18 months.

c. Scope. Identical to Star Program evaluations; see O.1.c. above.

d. Measures of Effectiveness. A Demonstration Program evaluation

shall assess the effectiveness of the alternate criteria being

demonstrated. It also shall consider all factors used to measure the

effectiveness of Star Program participants. See O.1.d. above.

e. Evaluation Recommendations and Decisions. The Regional

Administrator may make one of the following recommendations to the

Assistant Secretary following a Demonstration evaluation visit. The

Assistant Secretary will then decide:

(1) Continued participation in the Demonstration Program;

(2) Changes in the Star requirements to include the aspects being

demonstrated because they provide effective Star quality safety and

health protection; or

(3) Termination because either the Demonstration aspects do not

provide Star quality protection or the site has significantly failed to

maintain the remainder of its safety and health program at Star

quality.

3. The Merit Program

a. Purpose of Evaluation. Onsite Merit evaluations are intended to:

(1) Determine continued qualification for the Merit Program, or

determine whether the applicant may be approved for the Star Program;

(2) Determine whether adequate progress has been made toward the

agreed-upon Merit goals;

(3) Identify any problems in the safety and health program or its

implementation that need resolution in order to continue qualification

or meet agreed-upon goals;

(4) Document program improvements and/or improved results; and

(5) Provide advice and suggestions for needed improvements.

b. Frequency. The first evaluation of a Merit participant shall be

conducted within 24 months (18 months is recommended) of approval. The

site may request an earlier evaluation if it believes it has met Star

Program qualifications.

c. Scope. OSHA's evaluation of Merit Program participants shall

consist mainly of an onsite visit similar in duration and scope to the

pre-approval program review described in J.3-4. OSHA shall review

documentation of program implementation since the pre-approval review

or the previous evaluation. The evaluation shall include a review of

injury and illness incidence and lost/restricted workday case rates for

the site and for its applicable contractor employees as described in

E.4.

d. Measures of Effectiveness. The following factors shall be

measured in the evaluation of Merit Programs:

(1) Continued adequacy of the safety and health program to address

the potential hazards of the workplace;

(2) Comparison of employer and contractor rates to the industry

average;

(3) Satisfaction and continuing demonstrated commitment of

employees and management;

(4) Nature and validity of any complaints received by OSHA;

(5) Resolution of problems that have come to OSHA's attention;

(6) Effectiveness of the employee participation program; and

(7) Progress made toward goals specified in the pre-approval or

previous evaluation report.

e. Evaluation Decisions and Recommendations. The Regional

Administrator may make one of the following decisions/recommendations

following a Merit evaluation visit:

(1) Decision for continued Merit participation;

(2) Recommendation for advancement to the Star Program; or

(3) Recommendation for termination.

[[Page 55403]]

P. Termination or Withdrawal

1. Reasons for Termination.

A site will be terminated from the VPP when:

a. Participating site management, or the duly authorized collective

bargaining agent, where applicable, withdraws support for VPP

participation.

b. A site fails to maintain its safety and health program in

accordance with the program requirements.

c. No significant progress has been made toward achieving the

established Merit goals or 1-year Star Conditional goals.

d. The Merit term of approval has expired, and no recommendation

has been made for a second term.

e. Construction work at a construction industry site has been

completed.

f. The sale of a VPP site to another company or a management change

has significantly weakened the safety and health program.

g. Resident contractor participation is no longer possible because

the host site no longer participates in VPP.

h. OSHA terminates a Demonstration Program for just cause.

i. The Regional Administrator presents written evidence to the

Assistant Secretary that the essential trust and cooperation among

labor, management, and OSHA no longer exist, and therefore recommends

termination, and the Assistant Secretary concurs.

2. Termination Notification and Appeal or Withdrawal

Under most circumstances, OSHA shall provide the participant and

bargaining unit representatives 30 days' notice of intent to terminate

a site's participation in the VPP. During the 30-day period, the

participant is entitled to appeal in writing to the Assistant Secretary

and to provide reasons why it believes the site should not be removed

from the VPP.

OSHA will not provide 30 days' notice when:

a. Other terms for termination were agreed upon before approval;

b. A set period for approval is expiring; or

c. Construction has been completed at a participating construction

site.

3. Withdrawal of a Participating Site. Upon receipt of an OSHA

notice of intent to terminate, or for any reason, a participant may

withdraw from the VPP by submitting written notification to the

appropriate Regional Administrator.

4. Reapplication Following Termination. OSHA will not consider the

reapplication of a terminated site for a period of 3 years from the

date of termination.

Q. Reinstatement

Reinstatement requires reapplication.

Signed at Washington, DC, this 4th day of October, 1999.

Charles N. Jeffress,

Assistant Secretary for Occupational Safety and Health.

[FR Doc. 99-26558 Filed 10-8-99; 8:45 am]

BILLING CODE 4510-26-P