[Federal Register Volume 68, Number 143 (Friday, July 25, 2003)]
[Notices]
[Pages 44182-44183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18928]



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Part III





Department of Labor





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Occupational Safety and Health Administration



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Voluntary Protection Programs To Provide Safe and Healthful Working 
Conditions, Draft Revisions; Notice

  Federal Register / Vol. 68, No. 143 / Friday, July 25, 2003 / 
Notices  

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration


Voluntary Protection Programs To Provide Safe and Healthful 
Working Conditions, Draft Revisions; Notice

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

ACTION: Notice of proposed changes to the program; request for 
comments.

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SUMMARY: The Occupational Safety and Health Administration requests 
comments on a proposed revision to its Voluntary Protection Programs 
(VPP) that would change the benchmark injury and illness rates used to 
determine whether VPP applicants and participants meet the rate 
requirements for the VPP Star Program. This change would also apply to 
the requirements for construction applicants' qualification for the 
Merit Program.

DATES: Comments must be submitted by the following dates:
    Hard Copy: Your comments must be postmarked by August 25, 2003.
    Facsimile and electronic transmission: Your comments must be sent 
by August 25, 2003.

ADDRESSES: Regular mail, express delivery, hand-delivery, and messenger 
service: You must submit three copies of your comments and attachments 
to the OSHA 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. Please contact the OSHA 
Docket Office at (202) 693-2350 for information about security 
procedures concerning the delivery of materials by express delivery, 
hand delivery, and messenger service. OSHA Docket Office and Department 
of Labor hours of operation are 8:15 a.m. to 4:45 p.m., EST.
    Facsimile: If your comments, including any attachments, are 10 
pages or fewer, you may fax them to the OSHA Docket Office at (202) 
693-1648. You must include the docket number of this document, Docket 
No. C-06, in your comments.
    Electronic: You may submit comments, but not attachments, through 
OSHA's Web site at the following address: http://ecomments.osha.gov. 
Information such as studies and journal articles must be submitted in 
triplicate hard copy to the OSHA Docket Office at the address above. 
The additional materials must clearly identify your electronic comments 
by name, date, subject, and docket number so we can attach them to your 
comments.
    Access to comments and submissions: OSHA will make all comments and 
submissions available for inspection and copying at the OSHA Docket 
Office at the above address. Comments, and submissions relating to this 
document that are not protected by copyright, will also be available on 
OSHA's website. OSHA cautions you about submitting personal information 
such as Social Security numbers and birth dates. Contact the OSHA 
Docket Office at (202) 693-2350 for information about materials not 
available through the OSHA website and for assistance in using the 
website to locate docket submissions.

FOR FURTHER INFORMATION CONTACT: Cathy Oliver, Director, Office of 
Partnerships and Recognition, Occupational Safety and Health 
Administration, Room N3700, 200 Constitution Ave. NW., Washington, DC 
20210, telephone (202) 693-2213. Electronic copies of this Federal 
Register notice, as well as news releases and other relevant documents, 
are available at OSHA's website, http://www.osha.gov.

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 worksite. 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.
    One way that OSHA determines the qualification of applicants and 
the continuing qualification of participants in the VPP Star Program, 
the most challenging participation category, is to compare their injury 
and illness rates to industry rates--benchmarks--published annually by 
the Bureau of Labor Statistics (BLS). For Star eligibility, rates must 
be below the benchmark BLS rates. This notice proposes to change the 
benchmark rates that OSHA employs. Until now, the benchmarks have been 
two rates obtained from the most recent year's industry averages for 
nonfatal injuries and illnesses. OSHA proposes to now require that, to 
qualify for Star, applicants' and participants' rates must be below the 
two BLS industry rates for at least 1 of the 3 most recent years 
published. This change would also apply to the requirements for 
construction applicants' qualification for the Merit Program.

B. Statutory Framework

    The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et 
seq. (hereinafter referred to as the Act or 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 that establish the legislative framework 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 safe 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. Discussion of the Proposed Change

    OSHA has been concerned for some time about the effect on some VPP 
applicants and participants of substantial fluctuations from year to 
year in a limited number of BLS rates. For example, worksites in the 
manufacturing classification Petroleum and Coal Products/Petroleum 
Refining (Standard Industrial Classification--SIC--Code 29/291) were 
compared with published average total recordable case incidence rates 
(TCIR) of 2.50 in 1999, 3.70 in 2000, and 1.40 in 2001. This 
represented a rate change from 1999 to 2000 of plus 32 percent, and 
from 2000 to 2001 of minus 62 percent. Similarly, worksites in the 
manufacturing classification Sanitary Paper Products (SIC 2676) were 
compared with a published average TCIR of 7.00 in 1999, 4.50 in 2000, 
and 5.40 in 2001. This represented a 20 percent increase from 1999 to 
2000, and a 35 percent decrease from 2000 to 2001.

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    The effect of these rate fluctuations is to create an unpredictable 
moving target that, in any particular year, may not fairly represent 
the injury and illness situation in an industry. It certainly creates a 
difficult dilemma for OSHA if the agency must approve one worksite and 
disapprove another when both have similarly excellent safety and health 
management systems and similar injury and illness experience. This 
situation occurs when OSHA compares one worksite against a 2000 
benchmark rate, for example, and a similarly performing site against an 
unreasonably divergent 2001 benchmark rate.
    There is no easy solution to this problem. Injury and illness rates 
are useful tools in judging how well a worksite is protecting its 
employees. OSHA believes, however, that the goals of VPP are not well 
served when worksites that have established excellent protective 
systems and that are steadily improving their injury and illness rates 
fail to obtain Star approval because of statistical anomalies in 
national rates.
    After exploring various ways to address this problem, OSHA proposes 
to change the way it compares VPP applicants' and participants' injury 
and illness rates to the national rates that BLS publishes. The agency 
would no longer compare the individual worksite rates to the most 
recently published BLS industry rates at the most precise level 
available (at this time usually three or four digits). Instead, OSHA 
would look at the most recent 3 years of BLS rates (at the most precise 
level available each year) and require that worksite rates be below at 
least 1 of those 3 years of rates to qualify or continue to qualify for 
Star participation.
    This proposed change might have the effect of reducing somewhat the 
weight OSHA heretofore has assigned to rates within VPP. Rates will 
continue to play a significant role, however. They are one indicator of 
how well a safety and health management system is operating and of how 
well a VPP candidate or participant is fulfilling the requirement for 
continuous improvement. In addition to examining a worksite's injury 
and illness rates, OSHA will continue to carefully evaluate how well a 
site is implementing the required major elements of Management 
Leadership and Employee Involvement; Worksite Analysis; Hazard 
Prevention and Control; and Safety and Health Training.
    By going to the BLS website, a worksite aspiring to qualify for 
Star or to continue its Star qualification will be able to easily 
determine the rate against which its own rate will be compared. If 
there is a downward trend in the industry, that also will be apparent, 
but a sudden, inexplicably large drop in the BLS's industry rate will 
not have the impact it currently has for some VPP participants and 
applicants. And while a sudden, inexplicably large increase in the 
BLS's industry rate may make it easier for a worksite to meet the Star 
rate requirements, the program's many other, rigorous requirements will 
continue to ensure that only worksites with excellent safety and health 
management systems gain VPP Star approval.
    To implement this revision, OSHA proposes changes in the following 
sections of the VPP:
    III.F.4.a.(1) This is the basic Star rate requirement.
    III.F.4.a.(2)(a) This is the alternative rate calculation available 
to qualifying small businesses.
    III.H.2.b.(2) This deals with construction applicants' 
qualification for VPP's Merit Program.

III. Proposed Changes to the Voluntary Protection Programs

A. The Star Rate Requirement.

    The beginning of III.F.4.a.(1) would change to:
    ``For site employees--Two rates reflecting the experience of the 
most recent 3 calendar years must be below at least 1 of the 3 most 
recent years of specific industry national averages for nonfatal 
injuries and illnesses (at the most precise level available, either 
three or four digits) published by the Bureau of Labor Statistics 
(BLS).''

B. The Alternative Rate Calculation for Qualifying Small Businesses

    The complete wording of III.F.4.a.(2)(a) would change to:
    ``To determine whether the employer qualifies for the alternative 
calculation method, do the following:
    [sbull] Using the most recent employment statistics (hours worked 
in the most recent calendar year), calculate a hypothetical total 
recordable case incidence rate for the employer assuming that the 
employer had two cases during the year;
    [sbull] Compare that hypothetical rate to the 3 most recently 
published years of BLS combined injury/illness total recordable case 
incidence rates for the industry; and
    [sbull] If the hypothetical rate (based on two cases) is equal to 
or higher than the national average for the firm's industry in at least 
1 of the 3 years, the employer qualifies for the alternative 
calculation method.''

C. Construction Applicants' Qualification for Merit

    The beginning of III.H.2.b.(2) would change to:
    ``For construction, if the incidence rates for the applicant site 
are not below the industry averages as required for Star, the applicant 
company must demonstrate that the company-wide 3-year rates are below 
at least 1 of the 3 most recently published years of BLS rates for the 
industry (at the three-digit level).''

    Signed at Washington, DC this 8th day of July 2003.
John L. Henshaw,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 03-18928 Filed 7-24-03; 8:45 am]
BILLING CODE 4510-26-P