[Federal Register Volume 67, Number 4 (Monday, January 7, 2002)]
[Rules and Regulations]
[Pages 658-660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-122]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1912 and 1912a

RIN 1218-AC04


Advisory Committees

ACTION: Final rule; amendments to procedural rules.

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

DATES: These amendments are effective January 7, 2002.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, OSHA Office of Public 
Affairs, U. S. Department of Labor, 200 Constitution Avenue, N.W., Room 
N3647, Washington, DC 20210, phone (202) 693-1999.

SUPPLEMENTARY INFORMATION: Section 7(a)(1) of the Occupational Safety 
and Health Act, 29 U.S.C. 656(a)(1), establishes a National Advisory 
Committee on Occupational Safety and Health (NACOSH). The purpose of 
NACOSH is to ``advise, consult with, and make recommendations to the 
Secretary [of Labor] and the Secretary of Health and Human Services on 
matters relating to the administration of the Act.'' 29 U.S.C. 
656(a)(2). NACOSH consists of 12 members, appointed by the Secretary of 
Labor, who represent management, labor, occupational safety and 
occupational health professions, and the public.
    The Construction Safety Act (CSA), 40 U.S.C. 333, created the 
Advisory Committee on Construction Safety and Health (ACCSH), to advise 
the Secretary on standard-setting and other matters

[[Page 659]]

related to the administration of the CSA. See 29 CFR 1912.3. In 
addition, section 7(b) of the Act, 29 U.S.C. 656(b), gives the 
Secretary of Labor the authority to establish additional advisory 
committees to assist in the Secretary's standard-setting functions 
under 29 U.S.C. 655. Such committees may be either continuing 
committees or ad hoc committees established to render advice in 
particular rulemaking proceedings. 29 CFR 1912.2. The Secretary has 
exercised that authority to establish, as a continuing committee, the 
Maritime Advisory Committee for Occupational Safety and Health 
(MACOSH), and has also established ad hoc committees to advise on 
particular rules.
    Advisory committees have played an important role in the 
administration of the OSH Act by providing a means for the Secretary 
and the Assistant Secretary for Occupational Safety and Health to 
obtain the advice of persons representing a variety of interests on how 
best to fulfill the Act's objective of ensuring that American workers 
have safe and healthful workplaces. However, the advice the committees 
render is only valuable to the Secretary and the Assistant Secretary if 
they have full confidence in the members of the committees. To ensure 
such confidence, the Secretary must have the discretion to remove and 
replace any member in whom she lacks confidence.
    The current regulations governing the tenure of all advisory 
committee members except those on NACOSH give the Secretary complete 
discretion to appoint members who have her confidence. Section 
1912.3(e), which applies to ACCSH, allows the Secretary to remove and 
replace a member ``in the interests of the administration of 
legislation involved.'' Section 1912.10(a), which governs other 
continuing advisory committees, allows the Secretary to remove a member 
``in the interest of the administration of the Act.'' Similarly, 
section 1912.11, which deals with ad hoc committees, allows the 
Secretary to remove a member ``in the interest of the administration of 
the Act.'' These provisions also provide for the Secretary to remove a 
member of an advisory committee if that member becomes unable to serve 
or no longer meets the representational requirements of the Act. The 
current regulation governing tenure of members on NACOSH is unique in 
that it does not provide for removal of a member at the discretion of 
the Secretary. A member may be removed only if he or she becomes unable 
to serve, if the Secretary determines that he or she no longer meets 
the representational requirements of the Act. 29 CFR 1912a.3.
    OSHA believes that the same removal requirements should apply to 
all advisory committees. As already discussed, the Secretary and 
Assistant Secretary must have complete confidence in all advisory 
committee members and must be able to remove any member in whom they 
have lost confidence. Therefore, section 1912a.3, which applies to 
NACOSH, is being amended to be consistent with the regulations 
applicable to the other advisory committees under the Act to give the 
Secretary full discretion to remove any advisory committee member for 
any reason. By providing that the Secretary has complete discretion to 
remove a member, it is no longer necessary to include the specific 
bases upon which a member may be removed (i.e., unable to serve or no 
longer meets the representational requirements of the Act). Therefore, 
the sections pertaining to removal--1912a.3, 1912.3(a), 1912.10(a), and 
1912.11--are being amended so that they are worded consistently and 
provide that the Secretary may, in his or her discretion, remove any 
member at any time.
    These amendments constitute a rule of agency organization, 
practice, or procedure. Hence, notice-and-comment procedures are not 
required. 5 U.S.C. 553(b). These amendments are to take effect 
immediately. Given the technical and procedural nature of these 
amendments, the agency finds that it is unnecessary to provide 30 days 
before this rule takes effect, and hence has good cause for making the 
effective date immediate pursuant to 5 U.S.C. 553(d)(3).

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

List of Subjects

29 CFR Part 1912

    Advisory committees, Freedom of information, Occupational safety 
and health.

29 CFR Part 1912a

    Advisory committees, Occupational safety and health.

    Signed at Washington, DC, this 28th day of December, 2001.
John L. Henshaw,
Assistant Secretary of Labor.

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

PART 1912--[AMENDED]

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

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

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


Sec. 1912.3  Advisory Committee on Construction Safety and Health.

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

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


Sec. 1912.10  Terms of continuing committee members.

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

    4. Section 1912.11 is revised to read as follows:

[[Page 660]]

Sec. 1912.11  Terms of ad hoc committee members.

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

PART 1912a--[AMENDED]

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

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

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


Sec. 1912a.3  Terms of membership.

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

[FR Doc. 02-122 Filed 1-4-02; 8:45 am]
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