[Federal Register Volume 64, Number 127 (Friday, July 2, 1999)]
[Proposed Rules]
[Pages 35972-35981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16592]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1908

[Docket No. CO-5]


Consultation Agreements: Proposed Changes to Consultation 
Procedures

AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: OSHA proposes to revise its regulations for federally-funded 
on-site

[[Page 35973]]

safety and health consultation visits to provide for greater employee 
involvement in site visits; to require that employees be informed of 
the results of these visits; to provide for the confidential treatment 
of information concerning workplace consultation visits; and to update 
its procedures for conducting consultation visits.

DATES: Written comments must be submitted on or before September 30, 
1999.

ADDRESSES: Send two copies of your comments to: Docket Office, Docket 
No. C-05, Room N2625, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 
20210. Comments limited to 10 pages or fewer may also be transmitted by 
FAX to: 202-693-1648, provided that the original and one copy of the 
comment are sent to the Docket Office immediately thereafter.
    Comments may also be submitted electronically through OSHA's 
Internet site at URL, http://www.osha/slc.gov/e-comments/e-comments-
consult.html. Information such as studies and journal articles cannot 
be attached to electronic submissions and must be submitted in 
duplicate to the above address. Such attachments must clearly identify 
the respondent's electronic submission by name, date, and subject, so 
that they can be attached to the correct submission. The entire record 
for the Proposed Changes to the Consultation Procedures is available 
for inspection and copying in the Docket Office, Docket C-05, telephone 
202-693-2350.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of 
Information and Consumer Affairs-OSHA, Rm. N-3647, 200 Constitution 
Avenue NW, Washington DC 20210. Telephone: (202) 693-1999.

SUPPLEMENTARY INFORMATION:

I. Background

The OSHA On-Site Consultation Program
    The Occupational Safety and Health Administration (OSHA), under 
cooperative agreements with agencies in 44 states, the District of 
Columbia, and several U.S. territories, administers and provides 
federal funding for an on-site consultation program which makes trained 
health and safety personnel available, at an employer's request and at 
no cost to the employer, to conduct worksite visits to identify 
occupational hazards and provide advice on compliance with OSHA 
regulations and standards. (In the remaining 6 states and 2 territories 
on-site consultation services are provided to small employers in the 
private sector as part of an OSHA-approved state plan funded by federal 
grants under section 23(g) of the Occupational Safety and Health (OSH) 
Act, rather than under cooperative agreements). Priority in providing 
on-site consultation visits is accorded to smaller employers in more 
hazardous industries. (Various OSHA directives currently specify that 
priority for consultation services be given to employers having not 
more than 250 workers at the site receiving the consultation, and no 
more than 500 workers nationwide). The consultation program was first 
authorized by Congressional appropriations action in 1974. On July 16, 
1998, President Clinton signed into law the Occupational Safety and 
Health Administration Compliance Assistance Authorization Act (CAAA), 
Pub. L. 105-197, which codifies this important OSHA program as a new 
subsection 21(d) of the Occupational Safety and Health Act.
    The OSHA on-site consultation program is administered in accordance 
with regulations at 29 CFR Part 1908. These regulations provide, among 
other things, rules and procedures for State consultants performing 
worksite visits. In the present Federal Register notice, OSHA proposes 
several revisions to these rules, and requests interested members of 
the public to submit any data, views, or arguments relevant to these 
proposed changes, during a 90-day public comment period.

II. Proposed Changes to 29 CFR 1908

Employee Walkaround Rights

    Current consultation program regulations provide that employees, 
representatives of employees, and members of joint workplace safety and 
health committees may be allowed to accompany the consultant and the 
employer's representative during the on-site consultative visit ``to 
the extent desired by the employer'' [29 CFR 1908.6(c)(2)]. Although 
these regulations encourage, but do not require, the employer to accord 
``walkaround'' rights to employee representatives, OSHA's procedures 
have for some time required that union representatives should be 
accorded walkaround rights during consultation visits to unionized 
workplaces. [Consultation Policies and Procedures Manual, TED 3.5B 
Chap.VI, p. VI-9 (1996)]. One of the goals established for OSHA by the 
National Performance Review in a 1995 report was to revise agency 
procedures to assure that employees are included in the consultation 
walkaround. [National Performance Review, The New OSHA: Reinventing 
Worker Safety and Health (May, 1995.)] Finally, the newly-enacted 
Compliance Assistance Authorization Act directs OSHA to require that 
states carrying out consultation visits ``ensure that on-site 
consultations * * * include provision for the participation by 
employees.''
    OSHA strongly believes that active employee participation is 
essential to the success of any systematic effort to address health and 
safety issues in the workplace. Although the role of employees in 
consultation visits differs from their role in OSHA enforcement 
inspections, where employee representatives have statutory rights to 
participate both in the investigation and in subsequent enforcement 
litigation, there are many potential advantages to active employee 
involvement during a consultant's worksite visit. Employees often have 
firsthand knowledge of hazards in the workplace. Sometimes, employees 
are in a position to make valuable suggestions which can be of 
assistance in formulating the consultant's recommendations. OSHA also 
believes employee involvement during a consultation visit can be a 
stimulus to further employee involvement in an employer's ongoing 
health and safety effort.
    In order to assure fuller participation by employees in the 
consultation process, OSHA is proposing to amend 29 CFR Part 1908 to 
expressly provide authorized employee representatives a right to 
accompany the consultant during the physical inspection of the 
workplace. Where there is no authorized employee representative, or if 
the representative cannot be determined, the consultant shall speak 
with a reasonable number of employees concerning matters of safety and 
health in the workplace. These general provisions are derived from the 
current employee walkaround provisions in 29 CFR Part 1903, OSHA's 
regulations on the conduct of enforcement visits. OSHA is further 
proposing that authorized employee representatives should be afforded 
the opportunity to participate in opening and closing conferences with 
the consultant (either separately or jointly with the employer).

Employee Notification of Hazards

    The legislative history of the Compliance Assistance Authorization 
Act reflects a congressional expectation that in carrying out the 
mandate to provide for employee participation, information on hazards 
identified by the consultant and corrective actions proposed will be 
made available to

[[Page 35974]]

affected employees. [House Report 105-444 105th Cong., 2d Sess., 6-7]. 
The National Performance Review had earlier recommended that employees 
be furnished copies of the consultant's written report at the 
conclusion of each consultation visit. However, as is explained 
elsewhere in the present Federal Register notice, disclosure of the 
complete written report has traditionally been extremely limited. 
Present regulations protect the employer's right to keep the 
consultant's report confidential from OSHA enforcement officials [29 
CFR 1908.7(a)(3); 1908.7(c)(3)]. It has also been the longstanding 
practice of state consultation agencies not to disclose these reports 
to anyone but the subject employer.
    OSHA believes it is essential to an effective safety and health 
management system that employees be made aware of any significant 
hazards identified during the course of a consultation visit. At the 
same time, a consultation visit is a voluntary service provided to 
small employers who typically would be unable to afford the services of 
paid safety or health consultants. The visit is not an enforcement 
inspection which leads to the issuance of citations; involves the 
creation of inspection records, many of which will ultimately be 
subject to public disclosure; or has provisions that allow the employer 
to contest alleged violations. Consultation visits and subsequent 
reports reflect the best professional judgement of consultants, but the 
consultant's report of hazards does not have to meet all the legal 
standards required for the issuance of a citation for violation of OSHA 
regulations and/or the OSH Act. Further, the report often contains many 
details about business practices, processes and personnel not 
ordinarily made public by the employer. Moreover, the success of OSHA's 
consultation program depends to a great extent on the voluntary 
cooperation of employers who request its services; the confidentiality 
of the consultant's report has long been viewed by OSHA and state 
consultants as essential to continued participation by employers in 
this important program.
    OSHA proposes to amend Part 1908 to require that a list of serious 
hazards and hazards addressed by OSHA rules that are identified by the 
consultant, the corrective action proposed, and the dates for 
completion of corrective action be forwarded to the employer at the 
same time the consultant's written report is furnished. OSHA also 
proposes that each employer be required to post this list in a 
prominent place that is readily observable by all affected employees, 
for 3 working days or until hazards are corrected, whichever is later. 
If an authorized employee representative has participated in the 
consultation visit, a copy of the posted list will be furnished 
directly to the authorized representative. At the same time, as 
discussed below, language would be added to 29 CFR part 1908 making 
clear that the full text of the consultant's written report to the 
employer remains confidential, and, except in certain unusual 
circumstances, can be disclosed to others only with the employer's 
consent.
    Existing 29 CFR 1908.7(c), which deals with the effect of a prior 
consultation visit in the event of a subsequent OSHA enforcement 
inspection, is being updated. The current provision specifies at 
1908.7(c)(3) that an employer is not required to furnish a copy of the 
consultant's written report to the compliance officer, except to the 
extent that disclosure of information in the report is required by 29 
CFR 1910.20. The referenced regulation, OSHA's rule requiring that 
certain employee medical and exposure records be made available to 
employees and to OSHA, has been recodified at 29 CFR 1910.1020. 
Moreover, there are now a number of other provisions included in OSHA 
standards or regulations which require the sharing of safety- or 
health-related information which may in some instances be included in 
consultant's reports, [see, e.g. 29 CFR 1910.110(c)(3) (employee access 
to chemical process hazard analyses)]. Paragraph 1908.7(c) is therefore 
being updated to assure that information whose disclosure is 
specifically required by an OSHA standard or regulation must continue 
to be made available by the employer when such information has been 
included in a consultant's report.

Disclosure of Consultation-Related Information

1. Consultation Program Data
    During the course of a consultation visit, the consultant gathers 
information and data about work processes, business practices, safety 
procedures, and accident or injury experience at an employer's 
workplace, all of which are needed in formulating advice for the 
employer on ways of complying with OSH Act requirements. Such 
information, gathered from employers during the course of a workplace 
consultation visit, is normally retained by the state consultation 
agency. OSHA regulations have always maintained the strict 
confidentiality of employer-specific consultation information from OSHA 
enforcement personnel, in order to assure employers who avail 
themselves of this service that their use of the consultation service 
will not be the basis for scheduling an OSHA enforcement inspection or 
for other enforcement-related purposes [29 CFR 1908.7(a)(3)].
    Occasionally, non-enforcement federal OSHA personnel obtain access 
to confidential material during the course of evaluating state 
consultation programs or rendering program assistance. OSHA has had 
access to such information more frequently in recent years as the 
agency has begun to incorporate consultation program information in 
federal databases such as the Integrated Management Information System 
(IMIS.) Federally-collected management data includes, among other 
information, worksite-specific injury and illness rates for employers 
visited by consultants. In addition, some limited sharing of 
information with enforcement personnel is necessary to carry out the 
Safety and Health Achievement Recognition Program (SHARP), under which 
employers who successfully complete a consultation visit and satisfy 
certain other requirements may request an exemption from OSHA 
inspections [29 CFR 1908.7(b)(4)]. Lists of employers who have 
qualified for such an exemption must, of course, be made available to 
OSHA enforcement staff.
    Consultation-related information retained by federal OSHA is 
generally subject to the federal Freedom of Information Act (FOIA), 5 
U.S.C. 552. The FOIA provides that documents maintained by federal 
agencies must be disclosed upon request unless one of the nine 
exemptions listed in the Act applies. Exemption 4 of the FOIA exempts 
from disclosure ``commercial or financial information obtained from a 
person [that is] privileged or confidential.'' Information that relates 
to an employer's business decision to engage a consultant, and 
workplace information reviewed by that consultant during the visit, 
certainly qualifies as ``commercial'' information as that term has been 
broadly construed by the courts. Information collected by consultants 
under 29 CFR 1908 is clearly ``obtained from a person'' within the 
meaning of FOIA.
    OSHA believes such information also qualifies as ``confidential'', 
the remaining criterion for non-disclosure under Exemption 4. Federal 
court decisions establish that commercial information voluntarily 
submitted by a person to the government is ``confidential'' if it is 
the kind of

[[Page 35975]]

information not customarily made public by the person from whom it was 
obtained. [Critical Mass Energy Project v. NRC, 975 F.2d 871 
(``Critical Mass III'')(D.C. Cir.1992)]. Even if submission of the 
information was mandatory, the information qualifies as confidential 
under Exemption 4 if disclosure would impair the effectiveness of the 
government program under which the information was submitted. [Critical 
Mass Energy Project v. NRC, 931 F.2d 939, 944-45 (``Critical Mass 
II'')(D.C. Cir. 1990)].
    As discussed above, 29 CFR Part 1908 provides that information 
about consultation visits must be kept confidential from OSHA 
enforcement personnel. The present regulation does not specifically 
address the broader issue of whether information concerning 
consultation visits to particular employers should be subject to public 
disclosure. However, as the federal grant agency and overall federal 
coordinator of the on-site consultation program, OSHA is well aware 
that state consultation providers have historically treated information 
about on-site consultation visits as a confidential business service to 
the employers who request it. OSHA believes that an employer's purely 
voluntary decision to invite a federally-funded consultant to evaluate 
conditions in his workplace, like the decisions made by other employers 
to retain paid, private sector health and safety consultants, is a 
decision an employer may, but should not be required to, disclose to 
the general public. OSHA's experience is that data and observations 
gathered by the consultant during the visit are also held in confidence 
by state agencies, in the same way a private consultant's 
recommendations would not ordinarily be made public by an employer.
    Furthermore, a long-standing concern of consultation program 
administrators is that unwarranted publication of employer lists and 
other employer-specific program data will discourage many employers 
from availing themselves of this service. OSHA has long recognized the 
importance of preserving the confidentiality of employer-specific 
consultation program information, e.g., 42 FR 41386 at 41388 (August 
16, 1977) (noting OSHA's policy that ``the identity of employers 
receiving on-site consultation is not revealed'').
    Therefore, OSHA proposes to add a provision to existing Part 1908 
specifying that consultation program information which identifies 
specific employers who have requested the services of a consultant 
under 29 CFR Part 1908 shall be kept confidential. This confidentiality 
requirement would not apply to the furnishing of certain types of 
employer specific data, such as the hazards identified and abatement 
suggested by the consultant, which must be provided to an employer's 
own workers and their representatives under the new consultation 
procedures in today's proposed rule. Because OSHA has an ongoing need 
for accurate and comprehensive consultation data to administer the 
consultation program and to evaluate its own performance and that of 
the states, OSHA retains a right of access to this data.
2. Consultant's Written Report
    Every consultative visit under Part 1908 results in the preparation 
of a written report to the employer, documenting in detail the 
conditions observed by the consultant inside the workplace. Such 
reports can include descriptions not only of processes, methods and 
materials used in the employers's business but personnel and 
administrative information. Moreover, because of OSHA's emphasis on 
evaluating the quality of the employer's accident prevention programs, 
[see 1908.6(g) and 1908.7(b)(4)], many reports will also include 
critiques of employee and manager performance that relate to the 
effectiveness of the safety and health program. OSHA does not normally 
obtain a copy of the consultant's written report, and the employer is 
not required to furnish one should OSHA request to see it during a 
subsequent inspection [1908.7(c)(3)]. These reports have long been 
treated as confidential by state consultation agencies and by 
participating employers. As explained earlier in connection with 
consultation program data, state consultation agencies have advised 
OSHA that routine disclosure of these reports would adversely affect 
employer participation in the consultation program.
    The proposed rule specifically recognizes the confidential nature 
of the consultant's written report and forbids the disclosure of the 
report except to the employer, and to OSHA upon request. OSHA retains 
the right to use a consultant's report in appropriate enforcement 
proceedings. Situations in which a consultation report might become 
relevant would include, among others, an enforcement action triggered 
by an employer's refusal to correct serious hazards identified by a 
consultant, or an investigation of false statements, or deliberately 
concealed hazards. Inquiries to OSHA's compliance staff during the 
preparation of the present proposed rule indicate that consultants' 
written reports have been used in extremely rare circumstances, 
probably no more than a half-a-dozen times in the last ten years, 
typically in cases involving serious accidents where there were 
allegations of employer bad faith. OSHA fully expects, based on past 
agency experience, that the enforcement cases in which it will be 
necessary to obtain and use consultant's reports developed under Part 
1908 will continue to be extremely rare. OSHA intends to provide 
guidance concerning circumstances under which the Assistant Secretary 
may request a Consultant's written report, after discussion with the 
State. Finally, the access rights of employees and others to certain 
specific types of information identified by particular OSHA regulations 
and standards such as 1910.1020 will continue to apply to information 
incorporated in consultation reports. Under the proposed new 
regulation, as under existing Part 1908, the employer would of course 
be free to voluntarily disclose all or parts of the consultant's 
report.
    The proposed changes to OSHA consultation regulations would be 
applicable only to information related to or generated by consultation 
visits scheduled or carried out under 29 CFR Part 1908. The OSHA 
consultation program is a unique federally-funded, state-administered 
consultation service. OSHA believes that the consultation program is 
carefully balanced to serve the objective of providing effective worker 
protection while at the same time affording a limited employer 
confidentiality as an incentive to employer participation. Because the 
OSHA consultation mechanism is a unique business service with numerous 
built-in compliance safeguards, the qualified confidentiality accorded 
to the consultant's written report and other employer-identifying 
information by the proposed regulation provides no basis for inferring 
a broader evidentiary privilege for employer audits or other self-
evaluation materials.

Revisions Delineating the Relationship With OSHA Enforcement

    Since its inception, OSHA has conducted the on-site consultation 
program independently from OSHA enforcement. Congress has endorsed 
OSHA's practice of independent management of the consultation program 
in the Compliance Assistance Authorization Act (CAAA), which specifies 
that ``(a)ctivities under this section shall be conducted independently 
of any enforcement activity.'' Nevertheless, the need to assure that 
workers are fully protected,

[[Page 35976]]

as well as the practical demands of program administration, require 
some limited coordination between these two OSHA activities. Thus, for 
example, OSHA regulations have long provided that employers failing to 
correct serious hazards identified by consultants be referred to 
enforcement, 29 CFR 1908.7(f)(4), and also provide for a one-year 
exemption from general schedule programmed inspections for employers 
who complete a consultation visit and meet the requirements set forth 
in paragraph 1908.7(b)(4). Congress itself has implicitly recognized 
the importance of limited coordination between OSHA's consultation and 
enforcement activities by incorporating comparable requirements in the 
CAAA.
    Because an effective balance between consultation and enforcement 
is extremely important to OSHA as well as being an issue of interest to 
most affected parties, OSHA's proposed revisions to Part 1908 address 
this relationship in detail. OSHA's strategic plan includes the 
consultation projects as full partners. It is therefore important for 
the agency to eliminate administrative procedures that would result in 
duplication of effort between compliance and cooperative programs.
    One area of potential duplication of effort is in the conduct of 
general schedule inspections at sites that receive consultation 
service, and are working within established time frames to correct 
hazards identified by the consultant. Current OSHA procedures provide 
that general schedule compliance inspections shall not be conducted at 
worksites where a consultation visit is ``in progress,'' a time period 
which presently is defined as ``from the beginning of the opening 
conference through the end of the closing conference''. [29 CFR 
1908.7(b)(1)]. The agency believes that, for the working conditions, 
hazards or situations covered during the visit, the term ``visit in 
progress'' used in paragraph 1908.7(b) should extend from the date of 
the opening conference to the end of the correction due date agreed 
upon between the consultant and the employer, a redefinition reflected 
in the rule proposed today. This would avoid the duplication (and the 
burden to the small employer) of conducting an OSHA general schedule 
inspection on the heels of a consultation visit, while the employer is 
working to correct hazards. Proposed new language in part 1908 for 
employee notification about hazards and correction due dates, and 
OSHA's continuing obligation to perform certain types of inspections/
investigations such as imminent danger, fatality or catastrophe, and 
complaint inspections, will ensure that adequate safeguards are in 
place for employee protection.
    OSHA is also proposing to change paragraph 1908.7(b)(4), the 
Inspection Exemption Through Consultation (IETC), to reflect OSHA's 
current policy under the Safety and Health Achievement Recognition 
Program (SHARP). The SHARP policy, which has been in effect since 1995, 
also achieves one of the objectives of the Compliance Assistance 
Authorization Act. OSHA experience has shown that combining a national 
recognition program with an exemption program fosters a partnership 
that works for employees, employers, and for OSHA. SHARP achieves the 
unique objective of according national recognition and inspection 
exemption to small employers operating exemplary safety and health 
management systems at their worksites. The revised paragraph 
1908.7(b)(4) incorporates the basic requirements of the SHARP and is 
consistent with the exemption program requirements outlined in the 
CAAA, now codified as section 21(d)(4) of the OSH Act. As an editorial 
matter, the generic term ``recognition and exemption program'' is used 
in the proposed regulation in lieu of terms like SHARP or IETC.

Consultation Programs and State Plans

    The importance of recognition and exemption programs is also 
reflected in a proposed revision to paragraph 1908.1(c). That provision 
presently specifies that in states which administer OSHA-approved state 
plans, the provisions of Part 1908 which affect federal enforcement do 
not apply directly to state-administered enforcement programs, but the 
states must adopt enforcement provisions which are ``at least as 
effective'' as those of federal OSHA. The agency proposes to add 
specific requirements for recognition and exemption programs comparable 
to that outlined in the revised Part 1908 and mandated by section 
21(d)(4) of the Act.
    The recognition and exemption program involves coordination between 
two aspects of OSHA's program: the OSHA consultation service, which 
must conduct the consultation visit and employer evaluation specified 
in 21(d)(4); and OSHA's enforcement program, which honors the exemption 
from inspections granted to employers who successfully complete the 
relevant requirements. One potentially complicating factor in 
implementing the CAAA inspection exemption scheme is the division of 
work between federal OSHA and states which have assumed responsibility 
for various occupational safety and health issues under federally-
approved state plans as provided by section 18 of the Act.
    States may assume responsibility for occupational safety and health 
enforcement within their state by obtaining federal approval of a state 
plan under section 18 of the Act. Twenty-three states and two 
territories currently exercise enforcement responsibility under 
approved state plans. (A comprehensive listing of state plan states is 
set forth in 29 CFR Part 1952.) Enforcement programs under approved 
plans are not required to be identical to that of federal OSHA, but 
must be ``at least as effective.''
    States that wish to carry out federally-funded on-site consultation 
services may do so by entering into cooperative agreements with OSHA 
under 29 CFR Part 1908 and section 21 of the Act. Many states which 
have entered into consultation agreements also separately administer a 
state enforcement program under a federally-approved state plan. Other 
states, however, have elected not to assume enforcement responsibility 
under a state plan, but only to conduct on-site consultation services 
within their state by entering into cooperative agreements under 
section 21 of the Act and Part 1908. Enforcement in these states is 
provided by federal OSHA. Finally, a few states and territories 
(currently Arizona; Indiana; Kentucky; Nevada; New Mexico; Washington; 
Puerto Rico; and the U.S. Virgin Islands) administer both enforcement 
and consultation service programs as part of their state plan.
    As already discussed, exemption and recognition programs under 
section 21(d) of the Act serve the important purposes of conserving 
enforcement resources by diverting them away from sites which already 
are undergoing a comprehensive on-site safety and health review, and of 
worker protection by giving an incentive to small employers to 
undertake a program of hazard review and correction with participation 
by employees. Accordingly, the new paragraph 1908.1 would specify that 
every state providing a program of consultation services under a 
cooperative agreement pursuant to section 21(d) of the Act shall 
provide a recognition and exemption program which meets the criteria 
and procedures in paragraph 1908.7(b)(4). This basic program element 
must be provided in all states which provide consultation services 
under section 21(d) of the OSH Act and 29 CFR Part 1908, whether 
enforcement responsibility is carried out under a state plan or by 
federal OSHA.
    States which elect to carry out both enforcement and consultation 
services

[[Page 35977]]

under a state plan pursuant to section 18 of the Act, in lieu of a 
cooperative agreement under section 21(d), would not be directly bound 
by requirements in section 21(d) and 29 CFR Part 1908. However, some 
form of inspection exemption and recognition program is, in OSHA's 
judgment, an essential element in any state program which seeks to meet 
the ``at least as effective as `` criterion of section 18(c) of the 
Act. For this reason, the proposed 29 CFR 1908.1 specifies that the six 
states and two territories which provide on-site consultation services 
under the auspices of the OSHA-approved state plan, rather than a 
cooperative agreement, must provide these services in a manner ``at 
least as effective as'' the program established under Part 1908. In 
view of Congress' explicit reference in the CAAA to employee 
participation during consultation visits, OSHA will expect state plan-
based consultation programs to offer comparable notice and 
participatory opportunities to those afforded under the proposed new 
Part 1908. Additionally, the proposed revisions to section 1908.1 
specify that states providing on-site consultation under their state 
plan must either adopt the exemption and recognition program outlined 
in paragraph 1908.7(b)(4) or offer an ``at least as effective'' 
alternative.

Miscellaneous Editorial Changes

    The definition of ``employer'' in 1908.2 is being modified to 
reflect recent congressional action amending OSH Act coverage to 
include the U.S. Postal Service. Definitions of various terms used in 
connection with the proposed program revisions discussed above, such as 
``recognition and exemption program,'' ``full service consultation 
visit,'' and ``list of hazards'' are also proposed, as well as revised 
definitions of ``serious'' and ``other than serious'' hazards, which 
are reworded to remove references to OSHA's superseded Field Operations 
Manual. In section 1908.3, editorial changes have been made to more 
clearly set forth the existing rule that a state which administers a 
private-sector consultation program as part of an approved state plan 
under section 18 of the Act may not additionally administer a 
consultation program under Part 1908.

III. Preliminary Economic Analysis

    The modifications to 29 CFR Part 1908 proposed today will not have 
any significant measurable economic impact either on employers or state 
consultation agencies. The OSHA on-site consultation program is 
entirely voluntary both for employers who seek this free service and 
for states which provide it. The proposal that consultation visits 
include an opportunity for employee participation would add slightly to 
the time spent by state consultants in conducting a visit. OSHA 
believes, however, that any additional demand on resources would be 
justified by the benefits of employee participation. A review of our 
data indicates that in fiscal year 1998, there was some form of 
employee participation in all consultation visits. Employers allowed 
participation which included opening and closing conferences, 
walkaround, and employee interviews, voluntarily. The data also 
indicates that 100 percent of all visits included employee 
participation in the walkaround. This new requirement is a codification 
of what already exists in practice, and will ensure that employees are 
afforded an opportunity to participate in all aspects of the 
consultation visit. The cost to employers in continuing to allow such 
participation is minimal. Employee participation will produce 
heightened awareness by the workforce and will result in a positive 
contribution to ensure a safer and healthier workplace. Further, 
employers receive these consultative services free of charge. 
Similarly, OSHA believes that the proposed amendment to require 
employers to post the list of serious hazards and hazards addressed by 
OSHA rules that are identified by the consultant, the corrective action 
proposed, and the dates for completion of corrective action will 
slightly increase the responsibilities of participating employers, but 
is offset by the value of greater employee participation in the 
consultation process and enhanced employee awareness. Finally, OSHA's 
proposal to specifically articulate in Part 1908 the agency's 
longstanding policy concerning public disclosure of employer-specific 
consultation information does not appear to impose any economic impact.
    In terms of economic impact, the rule proposed today does not 
constitute a significant regulatory action, within the meaning of 
Executive Order 12866, because it does not have an annual effect on the 
economy of $100 million or more; materially affect any sector of the 
economy; interfere with the programs of other agencies; materially 
affect the budgetary impact of grant or entitlement programs; nor 
result in other adverse effects of the kind specified in the Executive 
Order. However, the rule raises novel legal and policy issues, and has 
been submitted to OMB for review under Executive Order 12866.

IV. Regulatory Flexibility Act Certification

    Pursuant to the Regulatory Flexibility Act (RFA) [(5 U.S.C. 601 et 
seq.)], the Assistant Secretary hereby certifies that the proposed rule 
will not have a significant economic impact on a substantial number of 
small entities. The state agencies which have elected to furnish on-
site consultation services under cooperative agreements with OSHA are 
not covered entities under the RFA. Since the consultation program is 
historically targeted to small, high-hazard workplaces, employers 
affected by the proposed regulation would tend to include a substantial 
number of small entities, but, as indicated in the foregoing discussion 
of regulatory impacts, the proposed rule should have virtually no 
measurable economic impact on employers.

V. Paperwork Reduction Act

    This proposed regulation contains collection of information 
requirements. These collection of information requirements are 
identical to the collection of information requirements in the existing 
consultation agreement regulations, except that OSHA is proposing to 
add a new requirement for participating employers to post a list of 
serious hazards identified during the visit, the corrective action 
proposed by the consultant, and the correction due dates. Under the 
Paperwork Reduction Act of 1995, all collection of information 
requirements must be submitted to OMB for approval. The existing 
collection of information requirements had been approved by OMB under 
control number 1218-0110. However, these approvals were inadvertently 
allowed to lapse. Therefore, as a first step in its review of these 
regulations, OSHA on December 8, 1998 published in the Federal Register 
a request for public comment prior to requesting OMB reinstatement of 
these approvals [63 FR 67702]. The Federal Register notice on 
information collection for this rule closed without comment. It is 
currently undergoing review by OMB.

VI. Federalism

    The proposed revisions to 29 CFR Part 1908 have been reviewed under 
Executive Order 12612, Federalism (52 FR 41685; October 30, 1987), 
which sets forth fundamental federalism principles, federalism 
policymaking criteria, and provides for consultation by federal 
agencies with state or local governments

[[Page 35978]]

when policies are being formulated which potentially affect them.
    Federal OSHA meets regularly with representatives of state-operated 
on-site consultation programs, both individually and at meetings of 
OSHCON (the National Association of Occupational Safety and Health 
Consultation Programs). OSHA additionally has established a 
Consultation Steering Committee on which both OSHA and the states are 
represented. OSHA also maintains extensive and frequent communications 
with its state plan partner agencies, both individual states and 
through the Occupational Safety and Health State Plan Association 
(OSHSPA), the association of state plan states. The proposed revisions 
to Part 1908 have been discussed with all affected states via OSHCON, 
the Consultation Steering Committee and the OSHSPA, and many state 
comments are already reflected in the proposal being issued today. The 
states will, of course, also have an opportunity to submit comments 
during the 90-day public comment period which opens today.
    The revisions to 29 CFR Part 1908 proposed today are generally 
consistent with the requirements and procedures under which OSHA and 
the states have administered the consultation program for many years. 
Two of the procedural requirements which are being strengthened, 
employee participation rights and mandatory recognition and exemption 
programs, have been specifically identified by Congress as essential 
program elements in the recently-enacted Compliance Assistance 
Authorization Act. The remaining significant revision, which involves 
the confidentiality of reports and data generated by the consultation 
program, generally reflects the views historically held by states that 
this information should be kept confidential. However, the revisions 
also provide for certain limited use by OSHA of this information, a 
proposed provision which seeks to balance the states' need to minimize 
unwarranted disclosure of business information with OSHA's need for the 
data under certain circumstances. These issues have been extensively 
discussed with the states. OSHA has reviewed the proposed revisions and 
finds them to be consistent with the policymaking criteria outlined in 
Executive Order 12612. It should be noted that cooperative agreements 
pursuant to section 21 of the OSH Act, and state plans submitted and 
approved under section 18 of the Act, are entirely voluntary federal 
programs which do not involve imposition of an intergovernmental 
mandate [2 U.S.C. 1502, 658(5)].

VII. Public Participation

    Interested persons including state consultation agencies, employers 
and employees who have experience with or an interest in the 
consultation program are invited to submit written data, views and 
arguments with respect to the proposed amendments to Part 1908 during a 
90-day public comment period. OSHA is interested, among other things, 
in the experiences of State consultation agencies and other affected 
parties regarding the following matters:

--How would the requirements for employee participation and 
notification of hazards affect the willingness of employers to 
participate in the consultation program?
--What proportion of site visits by federally-funded consultants 
currently involve some form of employee participation? How many involve 
complete walkaround participation? What proportion of sites are union 
and nonunion?
--What types of trade secret or other confidential information are 
typically included in a consultant's report?
--Are the names of employers who request consultation usually publicly 
disclosed in your State? How is employer-specific information such as 
the consultant's report treated under State disclosure laws?

    Would employers be less likely to request federally-funded 
consultation services if participation in this program is not 
confidential?
    Comments must be received on or before ________[date], and must be 
submitted in quadruplicate to Docket No. ________, Docket Office, Room 
N-2625, U.S. Department of Labor-OSHA, 200 Constitution Ave., N.W., 
Washington, DC 20210. Comments under 10 pages long may be sent via 
telefax to (202) 219-5546 but must be followed by a mailed submission 
in quadruplicate. Written submissions must clearly identify the issue 
addressed and the position taken with regard to each issue. All 
comments submitted to the docket during this proceeding will be open 
for public inspection and copying at the location specified above. No 
hearing will be held on this proposal.

VIII. Authority

    This document was prepared under the direction of Charles N. 
Jeffress, Assistant Secretary of Labor for Occupational Safety and 
Health. It is issued under sections 7(c), 8, and 21(d) of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 656, 657, 670) 
and Secretary of Labor's Order No. 6-96 (62 FR 111, January 2, 1997).

List of Subjects in 29 CFR Part 1908

    Confidential business information, Occupational safety and health, 
Small business.

    Signed this 24th day of June, 1999 in Washington, DC.
Charles N. Jeffress,
Assistant Secretary of Labor.

    It is proposed to amend 29 CFR part 1908 as set forth below:

PART 1908--CONSULTATION AGREEMENTS

    The authority citation for 29 CFR part 1908 would be revised to 
read as follows:

    Authority: Secs. 7(c), 8, 21(d), Occupational Safety and Health 
Act of 1970 (29 U.S.C. 656, 657, 670) and Secretary of Labor's Order 
No. 6-96 (62 FR 111 January 2, 1997).

    2. Section 1908.1 would be amended by revising paragraphs (a) and 
(c) to read as follows:


Sec. 1908.1  Purpose and scope.

    (a) This part contains requirements for Cooperative Agreements 
between States and the Federal Occupational Safety and Health 
Administration (OSHA) under sections 21(c) of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 651 et seq.) and section 21(d), the 
Occupational Safety and Health Administration Compliance Assistance 
Authorization Act of 1998 (which amends the Occupational Safety and 
Health Act), under which OSHA will utilize State personnel to provide 
consultative services to employers. Priority in scheduling such 
consultation visits shall be assigned to small businesses which are in 
higher hazard industries or have the most hazardous conditions at issue 
in the request. Consultation programs operated under the authority of a 
State plan approved under Section 18 of the Act (and funded under 
Section 23(g), rather than under a Cooperative Agreement) which provide 
consultative services to private sector employers, must be ``at least 
as effective as'' the section 21(d) Cooperative Agreement programs 
established by this Part. The service will be made available at no cost 
to employers to assist them in establishing effective occupational 
safety and health programs for providing employment and places of 
employment which are safe and healthful. The overall goal is to prevent 
the occurrence of injuries and illnesses which may result from

[[Page 35979]]

exposure to hazardous workplace conditions and from hazardous work 
practices. The principal assistance will be provided at the employer's 
worksite, but off-site assistance may also be provided by telephone and 
correspondence, and at locations other than the employer's worksite, 
such as the consultation project offices. At the worksite, the 
consultant will, within the scope of the employer's request, evaluate 
the employer's program for providing employment and a place of 
employment which is safe and healthful, as well as identify specific 
hazards in the workplace, and will provide appropriate advice and 
assistance in establishing or improving the employer's safety and 
health program and in correcting any hazardous conditions identified.
* * * * *
    (c) States operating approved Plans under section 18 of the Act 
shall, in accord with section 18(b), establish enforcement policies 
applicable to the safety and health issues covered by the State Plan 
which are at least as effective as the enforcement policies established 
by this part, including a recognition and exemption program.
    3. Section 1908.2 would be amended by revising the definitions of 
``Employee'', ``Employer'', ``Other-than-serious hazards'', and 
``Serious hazard'', and by adding the definitions of ``List of 
Hazards'', ``Programmed inspection'', ``Programmed inspection 
schedule'', and ``Recognition and exemption program'' to read as 
follows:


Sec. 1908.2  Definitions.

* * * * *
    ``Employee'' means an employee of an employer who is employed in 
the business of that employer which affects interstate commerce.
    ``Employer'' means a person engaged in a business who has 
employees, but does not include the United States (not including the 
United States Postal Service), or any State or political subdivision of 
a State.
* * * * *
    ``List of Hazards'' means a list of serious hazards and hazards 
addressed by OSHA rules that are identified by the consultant, the 
corrective actions proposed by the consultant, and the correction due 
dates agreed upon by the employer and the consultant. Hazards addressed 
by OSHA rules shall be included in the list without regard to 
classification as ``serious'' or ``other-than-serious.'' The List of 
Hazards will accompany the consultant's written report but is separate 
from the written report to the employer.
* * * * *
    ``Other-than-serious hazard'' means any condition or practice which 
would be classified as an other-than-serious violation of applicable 
Federal or State statutes, regulations or standards, based on criteria 
contained in the current OSHA field instructions or approved State Plan 
counterpart.
    ``Programmed inspection'' means OSHA worksite inspections which are 
scheduled based upon objective or neutral criteria. These inspections 
do not include imminent danger, fatality/catastrophe, and formal 
complaints.
    ``Programmed inspection schedule'' means OSHA inspections scheduled 
in accordance with criteria contained in the current OSHA field 
instructions or approved State Plan counterpart.
* * * * *
    ``Recognition and exemption program'' means an achievement 
recognition program of the OSHA consultation services, which recognizes 
small employers who operate, at a particular work site, an exemplary 
program that results in the immediate and long term prevention of job 
related injuries and illnesses.
    ``Serious hazard'' means any condition or practice which would be 
classified as a serious violation of applicable Federal or State 
statutes, regulations or standards, based on criteria contained in the 
current OSHA field instructions or approved State Plan counterpart, 
except that the element of employer knowledge shall not be considered.
* * * * *
    4. Section 1908.3 would be amended by revising paragraph (a) to 
read as follows:


Sec. 1908.3  Eligibility and funding.

    (a) State eligibility. Any State may enter into an Agreement with 
the Assistant Secretary to perform consultation for private sector 
employers; except that a State having a Plan approved under section 18 
of the Act is eligible to participate in the program only if that Plan 
does not include provisions for federally funded consultation to 
private sector employers as a part of its plan.
* * * * *
    5. Section 1908.5 would be amended by revising paragraphs (a)(3) 
and (b)(1) to read as follows:


Sec. 1908.5  Requests and scheduling for onsite consultation.

    (a) * * *
    (3) Scope of service. In its publicity for the program, in response 
to any inquiry, and before an employer's request for a consultative 
visit may be accepted, the State shall clearly explain that the service 
is provided at no cost to an employer with Federal and State funds for 
the purpose of assisting the employer in establishing and maintaining 
effective programs for providing safe and healthful places of 
employment for employees, in accord with the requirements of the 
applicable State or Federal laws and regulations. The State shall 
explain that while utilizing this service, an employer remains under a 
statutory obligation to provide safe and healthful work and working 
conditions for employees. In addition, while the identification of 
hazards by a consultant will not mandate the issuance of citations or 
penalties, the employer is required to take necessary action to 
eliminate employee exposure to a hazard which in the judgment of the 
consultant represents an imminent danger to employees and to take 
action to correct, within a reasonable time, any serious hazards that 
are identified. The State shall emphasize, however, that the discovery 
of such a hazard will not initiate any enforcement activity, and that 
referral will not take place, unless the employer fails to eliminate 
the identified hazard within the established time frame. The State 
shall also explain the requirements for participation in the 
recognition and exemption program as set forth in Sec. 1908.7(b)(4).
    (b) Employer requests. (1) An on-site consultative visit will be 
provided only at the request of the employer, and shall not result from 
the enforcement of any right of entry under State law. When taking a 
request for assistance, the Project shall explain the employer's 
obligation to post the List of Hazards accompanying the consultant's 
written report.
* * * * *
    6. Section 1908.6 would be amended by revising paragraphs (b), 
(c)(2), (d), (e)(7), (e)(8), and (f)(2); by redesignating (g) as (g)(1) 
and (h) as (h)(1); and by adding new paragraphs (g)(2), and (h)(2) as 
follows:


Sec. 1908.6  Conduct of a visit.

    (a) * * *
    (b) Structured format. An initial on-site consultative visit will 
consist of an opening conference, an examination of those aspects of 
the employer's safety and health program which relate to the scope of 
the visit, a walk through of the workplace, and a closing conference. 
An initial visit may include training and education for employers and 
employees, if the need for such training and education is revealed by 
the walk

[[Page 35980]]

through of the workplace and the examination of the employer's safety 
and health program and if the employer so requests. The visit shall be 
followed by a written report to the employer. Additional visits may be 
conducted at the employer's request to provide needed education and 
training, assistance with the employer's safety and health program, or 
technical assistance in the correction of hazards, or as necessary to 
verify the correction of serious hazards identified during previous 
visits. A compliance inspection may, in some cases, be the basis for a 
visit limited to education and training, assistance with the employer's 
safety and health program, or technical assistance in the correction of 
hazards.
    (c) * * *
    (2)(i) A representative authorized by affected employees shall be 
afforded an opportunity to accompany the consultant and the employer's 
representative during the physical inspection of the workplace. 
Additional employees (such as representatives of a joint safety and 
health committee, if one exists at the worksite) may be permitted to 
accompany the consultant during the physical inspection, where the 
consultant determines that such additional representatives will further 
aid the visit.
    (ii) If there is no authorized representative of employees, or if 
the consultant is unable with reasonable certainty to determine who is 
such a representative, the consultant shall confer with a reasonable 
number of employees concerning matters of occupational safety and 
health.
    (iii) The consultant is authorized to deny the right to accompany 
under this section to any person whose conduct interferes with the 
orderly conduct of the visit.
    (d) Opening and closing conferences. (1) The consultant shall 
attempt to inform all affected employees of the purpose of the 
consultation visit, and shall encourage a joint opening conference with 
employer and employee representatives. If there is an objection to a 
joint conference, the consultant shall conduct separate conferences 
with employer and employee representatives.
    (2) In addition to the requirements of Sec. 1908.6(c), the 
consultant shall, in the opening conference, explain to the employer 
the relationship between on-site consultation and OSHA enforcement 
activity and shall explain the obligation to protect employees in the 
event that certain hazardous conditions are identified.
    (3) During the opening conference, the consultant shall emphasize 
the employer's obligation to post the List of Hazards accompanying the 
consultant's written report as described below in Sec. 1908.6(e)(8).
    (4) At the conclusion of the consultation visit, the consultant 
will conduct a closing conference with employer and employee 
representatives, jointly or separately. The consultant shall describe 
hazards identified during the visit, and other pertinent issues related 
to employee safety and health.
    (e) * * *
    (7) At the time the consultant determines that a serious hazard 
exists, the consultant shall assist the employer to develop a specific 
plan to correct the hazard, affording the employer a reasonable period 
of time to complete the necessary action. The State shall provide, upon 
request from the employer within 15 working days of receipt of the 
consultant's report, an opportunity for an expeditious informal 
discussion with the consultation manager regarding the period of time 
established for the correction of a hazard or any other substantive 
finding of the consultant.
    (8) Upon receipt, the employer shall post the List of Hazards 
accompanying the consultant's written report, and notify affected 
employees when hazards are corrected. The List of Hazards shall be 
posted, unedited, in a prominent place where it is readily observable 
by all affected employees for 3 working days, or until the hazards are 
corrected, whichever is later. The consultation project shall make 
available a copy of the List of Hazards to the authorized 
representative of affected employees.
    (f) * * *
    (2) An employer must also take the necessary action in accordance 
with the plan developed under Sec. 1908.6(e)(7) to eliminate or control 
employee exposure to any identified serious hazard, and meet the 
posting requirements of Sec. 1908.6(e)(8). In order to demonstrate that 
the necessary action is being taken, an employer may be required to 
submit periodic reports, permit a followup visit, or take similar 
action.
* * * * *
    (g) * * *
    (2) Because the consultant's written report contains information 
considered confidential, and because disclosure of such reports would 
adversely affect the operation of the OSHA consultation program, the 
consultant's written report shall not be disclosed except to the 
employer for whom it was prepared and, upon request, to OSHA. OSHA may 
use information contained in the report in enforcement proceedings 
which result from an employer's failure to correct hazards identified 
during a consultation visit under this Part, or which involve 
misconduct relating to an employer's participation in the consultation 
program, or other enforcement proceedings to which the information is 
relevant.
    (h) * * *
    (2) Disclosure of consultation program information which identifies 
employers who have requested the services of a consultant would 
adversely affect the operation of the OSHA consultation program as well 
as breach the confidentiality of commercial information not customarily 
disclosed by the employer. Accordingly, such information shall be kept 
confidential. The State shall provide consultation program information 
requested by OSHA, including information which identifies employers who 
have requested consultation services. OSHA may use such information to 
administer the consultation program and to evaluate state and federal 
performance under that program, but information which identifies 
specific employers shall not otherwise be disclosed.
    7. Section 1908.7 would be amended by revising paragraphs (a)(3), 
(b)(1), (b)(4), (b)(5), and (c)(3) to read as follows:


Sec. 1908.7 Relationship to enforcement.

    (a) * * *
    (3) The identity of employers requesting on-site consultation, as 
well as the file of the consultant's visit, shall not be forwarded or 
provided to OSHA for use in any compliance activity, except as provided 
for in Sec. 1908.6(f)(1) (failure to eliminate imminent danger), 
Sec. 1908.6(f)(4) (failure to eliminate serious hazards), 
Sec. 1908.6(g)(2) (confidentiality of consultant's written report), 
Sec. 1908.6(h)(2) (confidentiality of employer specific data), and 
Sec. 1908.7(b)(4) (recognition and exemption program).
    (b) Effect upon scheduling. (1) An on-site consultative visit 
already in progress will have priority over OSHA compliance inspections 
except as provided in Sec. 1908.7(b)(2). The consultant and the 
employer shall notify the compliance officer of the visit in progress 
and request delay of the inspection until after the visit is completed. 
An on-site consultative visit shall be considered ``in progress'' in 
relation to the working conditions, hazards, or situations covered by 
the visit from the beginning of the opening conference through the end 
of the correction due dates and any extensions thereof. OSHA may, in 
exercising its authority to schedule compliance

[[Page 35981]]

inspections, assign a lower priority to worksites where consultation 
visits are pending.
* * * * *
    (4) The recognition and exemption program of the Occupational 
Safety and Health Administration (OSHA) consultation services provides 
incentives and support to smaller, high-hazard employers to work with 
their employees to develop, implement, and continuously improve the 
effectiveness of their workplace safety and health management system.
    (i) Programmed Inspection Schedule. (A) When an employer requests 
participation in a recognition and exemption program, and undergoes a 
consultative visit covering all conditions and operations in the place 
of employment related to occupational safety and health; corrects all 
hazards that were identified during the course of the consultative 
visit within established time frames; has began to implement all the 
elements of an effective safety and health program; and agrees to 
request a consultative visit if major changes in working conditions or 
work processes occur which may introduce new hazards, OSHA's Programmed 
Inspections at that particular site may be deferred while the employer 
is working to achieve recognition and exemption status.
    (B) Employers who meet all the requirements for recognition and 
exemption will have the names of their establishments removed from 
OSHA's Programmed Inspection Schedule for a period of not less than one 
year. The exemption period will extend from the date of issuance by the 
Regional Office of the certificate of recognition.
    (ii) Inspections. OSHA will continue to make inspections in the 
following categories at sites that achieved recognition status and have 
been granted exemption from OSHA's Programmed Inspection Schedule; and 
at sites granted inspection deferrals as provided for under 
Sec. 1908.7(b)(4)(i)(A):
    (A) Imminent danger.
    (B) Fatality/Catastrophe.
    (C) Formal Complaints.
    (5) When an employer requests consideration for participation in 
the recognition and exemption program under Sec. 1908.7(b)(4), the 
provisions of Sec. 1908.6(e)(7), (e)(8), (f)(3), and (f)(5) shall apply 
to other-than-serious hazards as well as serious hazards.
    (c) * * *
    (3) In the event of a subsequent inspection, the employer is not 
required to inform the compliance officer of the prior visit. The 
employer is not required to provide a copy of the state consultant's 
written report to the compliance officer, except to the extent that 
disclosure of information contained in the report is required by 29 CFR 
1910.1020 or other applicable OSHA standard or regulation.
* * * * *
[FR Doc. 99-16592 Filed 7-1-99; 8:45 am]
BILLING CODE 4510-26-P