[Federal Register Volume 65, Number 208 (Thursday, October 26, 2000)]
[Rules and Regulations]
[Pages 64282-64295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27103]



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Part II





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1908



Consultation Agreements: Changes to Consultation Procedures; Final Rule

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / 
Rules and Regulations

[[Page 64282]]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1908

[Docket No. CO-5]


Consultation Agreements: Changes to Consultation Procedures

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

ACTION: Final rule.

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SUMMARY: This final rule amends the Occupational Safety and Health 
Administration's (OSHA) regulations for federally-funded onsite safety 
and health consultation visits to: provide for greater employee 
involvement in site visits; require that employees be informed of the 
results of these visits; provide for the confidential treatment of 
information concerning workplace consultation visits; and update the 
procedures for conducting consultation visits.

EFFECTIVE DATE: This final rule will become effective on December 26, 
2000.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates 
for receipt of petitions for review of the regulation the Associate 
Solicitor for Occupational Safety and Health, Office of the Solicitor, 
Room S-4004, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: E. Tyna Coles, Director, Office of 
Cooperative Programs, Directorate of Federal-State Operations--OSHA, 
Rm. N-3700, 200 Constitution Avenue NW., Washington DC, 20210. 
Telephone: (202) 693-2213.

SUPPLEMENTARY INFORMATION:

I. Background: The OSHA Onsite Consultation Program

    The Occupational Safety and Health Administration (OSHA), under 
cooperative agreements with agencies in 48 states, the District of 
Columbia, and several U.S. territories, administers and provides 
federal funding for an onsite 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 2 states and 2 
territories, onsite 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 onsite 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 not more than 500 workers nationwide.) The 
consultation program was first authorized by Congressional 
appropriations action in 1974.
    Section 21(c) of the Occupational Safety and Health Act of 1970 (29 
U.S.C. 670(c)) directs the Secretary of Labor to establish programs for 
the education and training of employers and employees in the 
recognition, avoidance, and prevention of unsafe or unhealthful working 
conditions in employments covered by the Act. The need for a greater 
understanding by employers of their obligations under the Federal or 
State OSH Acts has been widely acknowledged. The interpretation of 
complex standards and the recognition of hazards in the workplace can 
be difficult for employers. Small business employers who may lack the 
financial resources to utilize private consultants may face even 
greater difficulty in understanding their obligations under the Act.
    Onsite consultation services can be provided without triggering the 
enforcement mechanisms of the Act. Federally funded onsite consultation 
was originally conducted only by states operating plans approved under 
section 18 of the Act. In response to the demand for consultation in 
other states, Part 1908 was first promulgated on May 20, 1975, (40 FR 
21935) to authorize federal funding of onsite consultation activity by 
States without approved State Plans through cooperative agreements 
entered into under the authority of sections 21(c) and 7(c)(1) of the 
Act. Part 1908 was subsequently amended on August 16, 1977 (42 FR 
41386) to clarify a number of provisions which had been subject to 
misinterpretation, as well as to increase the level of Federal funding 
to ninety percent, a level that was considered necessary to provide a 
strong incentive for States to enter the program. The rule was again 
amended on June 19, 1984 (49 FR 25082), to clarify various provisions 
to reflect the experience gained after 1977. The 1984 amendment also 
contained provisions allowing OSHA to grant inspection exemptions to 
employers who meet certain requirements.
    On July 16, 1998, President Clinton signed into law the 
Occupational Safety and Health Administration Compliance Assistance 
Authorization Act (CAAA), Public Law 105-197, which codifies this 
important OSHA program as a new subsection 21(d) of the Occupational 
Safety and Health Act. The regulations at 29 CFR part 1908 remain the 
rules under which the OSHA onsite consultation program is administered 
and provide, among other things, rules and procedures for state 
consultants performing worksite visits. On July 2, 1999 (64 FR 35972), 
OSHA published a document in the Federal Register requesting public 
comments on proposed changes to 29 CFR part 1908. The proposed rule was 
intended to implement the CAAA, to meet OSHA's goals for the 
consultation programs as established in the National Performance Review 
(NPR) of 1995, and to reflect current consultation policies and 
procedures. The proposal presented a number of new issues including: 
(a) Employees' right to participate in the consultation visit; (b) 
employees' right to be notified of hazards identified; and (c) OSHA's 
use of the consultants' report during an enforcement proceeding. OSHA 
received views and comments from state consultation service providers, 
OSHCON (the association representing state consultation service 
providers), employers, organizations representing employer groups, 
labor unions, members of congress and interested members of the public 
during a 90-day public comment period that ended on September 30, 1999. 
Most comments focused on the issues delineated above.

II. Summary and Explanation of Final Rule

    This section includes an analysis of the public record and the 
policy considerations underlying the decision on various provisions of 
the rule. In today's final rule, OSHA has made various changes to the 
proposed language. Editorial and grammatical corrections are made 
throughout the final rule, which do not alter the specific intent or 
purpose of the proposal's requirements. In most instances, these minor 
changes are not discussed in the preamble. The preamble focuses on 
substantive issues raised in the proposal.
    OSHA has cited public comments in the record by identifying 
exhibits parenthetically. The comments are included in Exhibit 2. 
Comment numbers identifying a particular commenter follow the exhibit 
number. If more than one comment is cited, the comment numbers are 
separated by

[[Page 64283]]

commas. For example (Ex. 2: 2, 3, 4) means Exhibit 2: comment numbers 
2, 3, and 4. The names and exhibit numbers of commenters are listed in 
Attachment I.

Section 1908.1 Purpose and scope.

    This section describes in general terms the purpose of the 
cooperative agreements between OSHA and state governments to provide 
consultation services to employers. In its present form, the rule cites 
sections 7(c)(1) and 21(c) of the Occupational Safety and Health Act of 
1970 as its source of authority. The rule currently does not explain 
the obligation of states, operating plans with consultation program 
components under section 18(b) of the Act, to operate consultation 
programs that are ``at least as effective as'' the 7(c)(1) programs.
    The proposed rule revised the section to establish section 21(d), 
the Occupational Safety and Health Administration Compliance Assistance 
Authorization Act of 1998, as the primary source of authority for this 
program. The proposal also clarified the obligation of the State plans 
to establish consultation programs that are ``at least as effective 
as'' the 21(d) consultation programs. There were no objections to these 
proposals. The proposed language is retained in the final rule without 
change.

Section 1908.2 Definitions

    This section contains definitions of terms used throughout the 
rule. The proposed rule included revised definitions of ``Employee'', 
``Employer'', ``Other-than-serious hazards'', and ``Serious-hazards'', 
and new definitions of ``List of Hazards'', ``Programmed inspection'', 
``Programmed inspection schedule'', and ``Recognition and exemption 
program'' for the purpose of part 1908.
    There were no comments on the definitions of ``Employee'', 
``Employer'', ``Other-than-serious hazards'', ``Serious-hazards'', 
``Programmed inspection'', ``Programmed inspection schedule'', and 
``Recognition and exemption program''. Those definitions are retained 
in the final rule without change.
    Two state agencies commented that the definition of ``List of 
Hazards'' needs to be further clarified with regard to what is to be 
included in the list, and whether there is a new requirement to verify 
the correction of other-than-serious hazards that are posted. The 
requirement to post the ``List of Hazards'' is intended as a means of 
informing employees about hazards in the workplace. OSHA does not 
intend to require the consultation projects to verify correction of 
other-than-serious hazards. Some commenters noted that requiring the 
employer to post the ``List of Hazards,'' including the recommended 
corrective action, would be counter-productive because of the volume 
and detail of a consultant's recommended corrective action. Others 
pointed out that the employer is not bound exclusively to the 
consultant's recommended action. OSHA agrees that the objective of 
informing employees about hazards identified by the consultant can be 
achieved without posting the recommended corrective action, and without 
requiring the posting of other-than-serious hazards. The definition of 
``List of Hazards'' in the final rule, therefore, does not include the 
recommended corrective action and other-than-serious hazards. The final 
rule will require the employer to make the consultant's recommended 
corrective action and information on other-than-serious hazards 
available at the worksite for examination by affected employees or 
their representatives.
    With respect to the definition of ``recognition and exemption 
program,'' one commenter noted that the recognition and exemption 
program should recognize and grant exemptions to sites with ``good 
basic'' safety and health programs rather than ``exemplary'' programs. 
(Ex. 2:13.) Two state agencies commented that the ``recognition and 
exemption program should recognize ``exemplary'' program(s) and not 
``basic'' programs as some have suggested.'' (Ex. 2: 9, 134.) The term 
``exemplary'' programs, as used in this rule, refers to programs that 
meet the requirements of the agency's Safety and Health Management 
Guidelines of 1989 (42 FR 3904) with respect to hazards covered by the 
Act. OSHA believes that the requirements of the 1989 guidelines can be 
met by every employer in the nation. For those genuinely working to 
achieve recognition and exemption status, the rule also permits the 
deferral of inspections. The definition is retained without change in 
the final rule.

Section 1908.3  Eligibility and Funding

    This section establishes the criteria for state eligibility to 
enter into a cooperative agreement with OSHA and sets forth the terms 
of reimbursement under the agreement. The section was amended to 
clarify that a state operating an approved section 18(b) state plan 
cannot receive funding for consultation programs under section 21(d) 
while continuing to receive funding for the same consultation program 
under section 23(g) of the Act. One commenter stated that the proposed 
rule is inconsistent with the CAAA because it will deny training and 
education funds to section 18(b) state plans with consultation programs 
funded under section 23(g). (Ex. 2:17.) This rule does not change the 
existing policy on funding of consultation programs but merely 
clarifies the policy. All State-Plan states will continue to be 
eligible for training and education program funding independent of 
funding for onsite consultation programs. The final rule retains the 
proposed language without change.

1908.5  Requests and Scheduling for Onsite Consultation

    This section includes requirements for state consultation agencies 
to encourage employers to request onsite consultation visits and to 
publicize the availability and scope of services provided. The proposed 
language changes the last sentence in Sec. 1908.5(a)(3) to reflect the 
change from Inspection Exemption Through Consultation (IETC) to the 
proposed recognition and exemption program, implemented as the Safety 
and Health Achievement Recognition Program (SHARP) in federal 
enforcement states. Even though no other changes were proposed to the 
rest of Sec. 1908.5(a)(3), one commenter stated that the language in 
the section was clearer in the existing rule. (Ex. 2:124.) Another 
commenter noted that the rights and obligations of the employer are 
explained in promotional materials, public presentations, and in the 
opening conference and need no further emphasis when the request is 
received. (Ex. 2:165.) OSHA understands the need of the various states 
to tailor their promotional and outreach materials to their unique 
markets, and that these promotional and outreach material may vary from 
state to state. It is, however, essential that regardless of the state 
providing the consultation service certain pertinent information must 
be provided to all employers who request a consultation visit. To that 
end, Sec. 1908.5(a)(3) outlines the required information. When this 
rule becomes effective, OSHA expects the promotional materials 
developed by the states to include information on the exemption and 
recognition program rather than the inspection exemption through 
consultation.
    Section 1908.5(b) includes a proposal to require consultation 
projects to inform employers about the requirement to post the ``List 
of Hazards'' when taking requests for consultation services. One state 
agency expressed the opinion that explaining the requirement to post

[[Page 64284]]

the ``List of Hazards'' when taking such a request will intimidate the 
employer. (Ex. 2:165.) OSHA does not believe that a thorough 
explanation of the reason for requiring the posting of the ``List of 
Hazards,'' together with an explanation of the benefits of the 
consultation service, including the benefits of ``consultation in 
progress'' at Sec. 1908.7(b)(1), will intimidate an employer who is 
willing to work in good faith with the consultation project. The 
following change is made in the final rule to allow the states more 
flexibility in explaining the requirement to post the ``List of 
Hazards'' to an employer. The last sentence originally proposed to be 
added to Sec. 1908.5(b) (requiring the states to explain the employer's 
obligation to post the ``List of Hazards'' during the opening 
conference) is added to the end of the cautionary statements in 
Sec. 1908.5(a)(3).

Section 1908.6  Conduct of a Visit

    This section establishes the rules for the actual conduct of a 
consultation visit. The proposed rule was designed to change this 
section in two ways. Section 1908.6(c)(2) provides for employee 
participation in the walkaround phase of the visit. The section 
provides that, at unionized sites, a duly appointed employee 
representative will be given the opportunity to accompany the 
consultant and the employer's representative in the walkaround phase of 
the visit. The section provides further that, at all other sites, the 
consultant will confer with a reasonable number of employees. The 
proposal codifies the current policy on employee participation as found 
in the Consultation Policies and Procedures Manual (CPPM) (TED 3.5B, p. 
VI-9, 1996). Several commenters noted that, even though they presently 
allow their employees to participate in the process, they are opposed 
to OSHA making employee participation a requirement for providing the 
consultative service. Many of them asserted that employee participation 
must be left to the discretion of the employer. (Ex. 2: 50, 54, 58, 62, 
68, 79, 100, 101, 106, 110, 171,183, 184, 191, 197, and 203.) Other 
commenters objected to this change, noting that the current rule allows 
for employee participation, and that the CPPM adequately addresses the 
substance of the proposed rule. (Ex. 2: 17, 73, 121, 124, 132, 142, 
147, 155.) Several employers and state agencies, however, agreed with 
the change and many noted that this is already the practice. (Ex. 2: 3, 
10, 12, 15, 25, 77, 83, 85, 86, 107, 133, 145, 158, 159, 162, 189, and 
201.) OSHA believes that because a consultation visit is ultimately 
intended to benefit employees (by assisting the employer to provide a 
workplace free of recognized hazards,) affected employees and/or their 
representatives must be provided the opportunity to participate in the 
process. This position is consistent with legislative history of the 
Occupational Safety and Health Compliance Assistance Authorization Act 
of 1998. The final rule retains the proposed language without change.
    The meaning of the term ``employee representative'' as used in the 
proposed rule caused concern among some commenters. They were concerned 
that allowing participation by undefined employee representatives would 
unduly burden small employers, and that there are situations where such 
employee participation may not be necessary. (Ex. 2: 19, 20, 31, 32, 
42, 46, 51, 66, 67, 72, 80, 119, 125, and 174.) Others completely 
objected to the section on the grounds that it had an enforcement tone 
and would reduce employers' willingness to participate in the program. 
(Ex. 2: 34, 49, 111, 130, 136, 146, and 190.) One commenter wanted OSHA 
to clarify the meaning and applicability of the section. (Ex. 2: 8.) 
Therefore, a definition of ``employee representative'' has been added 
to the final rule to clarify that, as used in this rule, the term 
refers only to duly appointed representatives of employees at unionized 
sites. At all other sites, the current practice where the consultant 
confers with a reasonable number of employees will continue.
    Despite this existing practice, there were explicit and implicit 
comments that OSHA's prescription for employee participation is a 
``one-size-fits-all'' solution, while others observed that OSHA gives 
no indication of the meaning of ``reasonable number of employees''. 
(Ex. 2: 152, 192 and 197.) The proposed rule leaves the details of 
employee participation at non-unionized sites to the discretion of the 
consultant. The consultant determines based on the unique site 
conditions when, how and how frequently to confer with employees. This 
rule does not preempt any existing state rule that provides for 
comparable employee participation.
    To remove any confusion regarding the role of employees in the 
consultation visit, the phrase ``In addition'' is added to the final 
rule at Sec. 1908.6(c)(2)(i) to clearly indicate that the requirements 
in the whole of Sec. 1908.6(c)(2) are in addition to the requirements 
in Sec. 1908.6(c)(1). Further, the phrase ``or if the employee 
representative declines the offer to participate'' is added to 
Sec. 1908.6(c)(2)(ii) of the final rule to allow the consultant the 
flexibility of proceeding where the duly appointed employee 
representative voluntarily declines the offer to participate in the 
visit. On a related matter, one commenter wanted a clarification on 
what happens if the employer refuses to allow employee participation. 
(Ex. 2: 188.) The CPPM (OSHA Instruction TED 3.5A 1996, p IV-3) 
provides clearly that, at unionized sites, the employer must afford the 
employee representative an opportunity to participate in the walkaround 
phase as well as the opening and closing conferences of the visit. The 
same section of the CPPM reserves the right of the consultant to confer 
privately with employees. The final rule continues this policy. The 
consultation visit will not proceed if the employer refuses to allow 
employee participation as prescribed in the final rule and the CPPM.
    The proposal in Sec. 1908.6(d) provided for participation by 
employee representatives in an opening and closing conference, and for 
notification of affected employees of the scope and purpose of the 
visit. Some commenters objected to this proposal on the grounds that it 
will undermine the right of the employer to control the visit and to 
voluntarily determine who participates in the process. (Ex. 2: 79, 100, 
111, 120, 146.) Others commented that mandating participation by 
employee representatives in the opening and closing conference will 
undermine the confidential nature of the process, and that it is 
inconsistent with the intent of Pub. L. 105-197. (Ex. 2: 17, 78, 101, 
106, 110, 121, 169, 184.) Another group of commenters objected to 
separate conferences on the grounds that it could be divisive and may 
put the consultant in an ``untenable position as a labor advocate''. 
(Ex. 2: 9, 77, 86, 134, 147, 155.) There were also commenters who noted 
that allowing employee representatives to participate in the opening 
and closing conference would be time consuming, burdensome, costly to 
employers, and reduce the level of participation. (Ex. 2: 89, 97, 119, 
121, 181.) Some commenters were supportive of the proposal and 
applauded OSHA's effort to encourage the inclusion of employees 
represented by organized labor in the consultative process. (Ex. 2: 83, 
107, 122, 133, 137, 145, 158, 159, 162, 189, 201, 205.) OSHA notes that 
the proposal to allow employee representatives in the opening and 
closing conference only affects unionized sites, which constitute only 
about 14% of all sites served by the consultation projects. The 
provision permitting a request for a separate

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opening and closing conference is equally available to the employer and 
the employee representative. Requests for separate opening and closing 
conferences may or may not reflect divisions between labor and 
management. Be that as it may, the consultant's role is to identify the 
hazards in the workplace, to advise affected employees about those 
hazards, to advise the employer on methods for correcting the hazards, 
and to assist the employer in establishing or improving safety and 
health programs. That function does not require the consultant to take 
sides in any internal disputes.
    The opening conference provides an opportunity for the consultant 
to explain the purpose and scope of the visit, to emphasize the 
obligations of the employer, and to reaffirm the rights and the 
authority of the employer to control the visit by expanding, limiting 
or terminating the visit at anytime. The closing conference provides an 
opportunity for the consultant to discuss findings, to advise the 
employer of interim protective methods, and to establish correction due 
dates. OSHA understands that there may be matters that the employer may 
want to discuss privately. OSHA intends to issue a guideline on matters 
that should be addressed privately with the employer, at the employer's 
request. Such matters will include the critique of workplace management 
systems for occupational safety and health.
    Some commenters expressed concern over the ability of employees to 
speak freely with the consultant in the presence of the employer 
without fear of retaliation. One commenter wanted the rule to expressly 
allow the consultant to confer privately with the employee, and raised 
the question of anti-discrimination protection and walkaround pay. (Ex. 
2: 137.) The final rule retains Sec. 1908.6(c)(1) of the present rule, 
which specifies that the consultant retains the right to confer 
individually with an employee if the consultant so wishes. Further, 
OSHA believes that any discrimination issue that may arise out of the 
consultation process is adequately addressed by section 11(c) of the 
Occupational Safety and Health Act of 1970, as implemented through 29 
CFR part 1977, and needs no further emphasis in this rule. With regard 
to walkaround pay, OSHA believes that this issue should be resolved by 
the employer and the union when the request is made.
    Regarding the requirement for the consultant to notify affected 
employees of the visit, one commenter noted that Sec. 1908.6(d)(1) is 
vague, and that its implementation could be problematic in some cases. 
(Ex. 2: 181.) The section is intended to encourage the consultant to 
use his or her best judgment in informing as many employees as possible 
of the purpose of the visit, and to increase interaction with employees 
covered by the scope of the visit. The final rule is changed to clarify 
that the provision is not intended to require the states to provide 
notice of the visit to all affected employees, but rather to inform 
employees with whom the consultant confers, of the visit's purpose.
    Concerning the proposal at Sec. 1908.6(d)(2), one commenter noted 
that the section should be changed to include the employee 
representative in the discussion of the relationship between onsite 
consultation and OSHA enforcement activity. (Ex. 2: 162.) The section 
is intended to be a cautionary statement to the employer. The 
consultation agreement is between the consultant and the employer, and 
imposes no duty on the employee representative. That section of the 
final rule therefore directs those cautionary statements exclusively to 
the employer. In order to consolidate all the cautionary statements in 
one section, the language in Sec. 1908.6(d)(3) is added to 
Sec. 1908.6(d)(2.) Section 1908.6(d)(4) is renumbered as 
Sec. 1908.6(d)(3).
    The proposal at Sec. 1908.6(e)(7), which provides that the 
consultant will assist the employer in the development of a hazard 
correction plan and provides a dispute resolution mechanism for the 
consultation project manager, is substantively the same as the language 
adopted and published in the Federal Register of June 1984 (49 FR 
25094). The only changes to the paragraph was to replace the phrase 
``an identified serious hazard exists'' with the phrase ``a serious 
hazard exist'' and to replace the word ``shall'' with ``must''. A few 
commenters, however, noted that the dispute resolution mechanism is an 
added burden, and that it gives the consultation program an enforcement 
flavor. (Ex. 2: 134, 152.) The intent of the section is to give the 
employer an opportunity to discuss any objections to the consultant's 
findings, categorization of hazards, or the established correction 
period with the consultation project manager. When an employer refuses 
to correct a serious hazard, it is eventually referred to OSHA for 
enforcement. It is therefore important for the consultation project 
manager to provide an informal forum to resolve any disputes or 
disagreements. This avenue for resolving disagreements between the 
employer and the consultant will become even more important with the 
new requirement to post the ``List of Hazards''.
    With respect to the development of the hazard correction plan, some 
commenters wanted the section changed to grant employee representatives 
the right to participate in developing the hazard correction plan. (Ex. 
2: 145, 159, 162, 189, 201.) OSHA agrees that employee participation in 
the development of the plan is desirable. Nevertheless, the 
responsibility of correcting hazards is solely the employer's. The 
consultant is required to assist the employer in developing the plan. 
However, the employer does not have to accept the consultant's 
assistance, and may choose to develop the plan on his or her own. By 
the same token, the employee representative may offer to assist the 
employer in developing the hazard correction plan. The employer is, 
however, free to accept or decline the offer.
    At Sec. 1908.6(e)(8), OSHA proposed to inform employees of hazards 
identified by the consultant by requiring the posting of a ``List of 
Hazards'', and by making a copy of the list available to the authorized 
employee representative who participates in the visit. Several 
commenters opposed the proposal, citing the following objections: (1) 
the list could be used adversely against the employer by OSHA, 
attorneys, competitors, and disgruntled employees; (2) posting the list 
will undermine the voluntary and confidential nature of the process; 
and (3) that the requirement is not in line with PL 105-197. (Ex. 2: 
34, 98, 106, 110, 123, 124, 141, 154, 157, 171, 184, 188.) Another 
group of commenters asserted that employers participating in the 
process in good faith should not be forced to advertise hazards in 
their workplace. (Ex. 2: 19, 31, 32, 42, 46, 51, 66, 67, 72, 80, 101, 
174.) There are several provisions in the final rule that are intended 
to assuage the concerns expressed. Section 1908.7(b)(1) will ensure 
that the employer is not subjected to OSHA enforcement while working 
within the established time frame to correct hazards identified by the 
consultant. In addition, the final rule includes language providing 
that complaints resulting from the posting of hazards will not result 
in enforcement action, as long as the employer is meeting his or her 
obligation with respect to interim protection and the correction time 
frame. Further, OSHA will require that the ``List of Hazards'' includes 
language that clearly states that the list is not a citation. It will 
acknowledge the employer's good faith effort in working cooperatively 
and voluntarily with the consultation project to provide a workplace 
free of

[[Page 64286]]

recognized hazards. OSHA believes that the list will serve the intent 
of Public Law 105-197 (as reflected in House Report 105-444 
accompanying the Act) by providing a means to inform affected employees 
and their representatives of hazards in the workplace.
    With regards to employer adherence to the posting requirements, 
some commenters were concerned that the proposal will be unenforceable. 
(Ex. 2: 86, 92, 131, 147.) An employer who agrees to the requirements 
for receiving the consultation service but subsequently refuses to post 
the ``List of Hazards'' will be deemed to have unilaterally terminated 
the consultation visit. Such an employer will not receive the benefit 
of any inspection deferrals, including the protection contained at 
Sec. 1908.7(b)(1), and will be denied participation in the recognition 
and exemption program at Sec. 1908.7(b)(4). Some commenters were of the 
opinion that the posting requirement entailed verification by 
consultants. They noted that verification of posting will be time 
consuming and will result in fewer actual consultative visits. (Ex. 2: 
86, 89.) One commenter (Ex. 2: 92) stated that it will be impractical 
to require verification of posting, while others (Ex. 2: 32, 165) noted 
that it should be the responsibility of the employer to inform his or 
her employees of hazards in the workplace. While OSHA agrees that it is 
the duty of the employer to identify and inform employees of the 
hazards in the workplace, OSHA feels that the consultant also has an 
obligation to inform employees of identified hazards that could cause 
injury, illness, or death. As such, OSHA believes that the ``List of 
Hazards'' is a continuation of the communication between the consultant 
and the beneficiaries of the service, and could be the beginning of the 
dialogue on workplace safety and health between the employer and his 
employees. The employer is responsible for providing additional 
information to his employees as needed. On the issue of follow-up 
visits, OSHA will not require any additional visits beyond what is 
presently required. Requirements to inform employees about hazards are 
not, in fact, an entirely new addition to the consultation program. As 
indicated in some of the comments received, some states already require 
posting or sharing of the report with employees without a detrimental 
effect on their program. Furthermore, several employers stated that 
they always post and share the consultant's report with their 
employees, or that they have no objection to the proposal. (Ex. 2: 3, 
10, 11, 49, 52, 83, 107, 125, 136, 158.) In addition, the revised 
regulation does not prohibit posting by electronic means. While in most 
instances it will be necessary to post a hard copy of the list of 
identified hazards in order to provide adequate notice to affected 
employees, posting may be by electronic means when the employer 
demonstrates that electronic transmission is the employer's normal 
means of providing notices to employees; that each employee is equipped 
with an electronic communication device; and that electronic posting 
will provide notice to each affected employee equivalent to hard-copy 
posting at the worksite.
    At Sec. 1908.6(h)(2), OSHA proposed to add a provision expressly 
designating consultation data which identifies employers who have 
requested or received a consultation visit as confidential information. 
In a related provision dealing specifically with the consultant's 
written report, OSHA proposed a new Sec. 1908.6(g)(2) which would have 
provided that consultant's written reports shall not be disclosed by 
the state except to the employer for whom it was prepared, or, upon 
request, to OSHA for use in any relevant enforcement proceedings. As 
discussed below, a provision for non-disclosure of consultation data to 
the public is included in today's final rule. Provisions relating to 
access to the consultant's report for enforcement however, have been 
revised in light of extensive comment received from states and other 
participants.
    Nondisclosure to the public of consultation data: The final rule at 
Sec. 1908.7(h)(2) allows OSHA to obtain employer specific information 
for evaluating the consultation program. As was explained in the 
proposed rule, non-enforcement federal OSHA personnel must at times 
obtain access to confidential material during the course of evaluating 
state consultation programs or rendering program assistance. OSHA has 
needed 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), and as the agency has implemented the program measurement 
activity mandated by the Government Performance and Results Act (GPRA). 
Federally-collected data includes, for example, worksite-specific 
injury and illness data to help measure the effect of the consultation 
program on participating employers' injury and illness rates.
    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 records maintained by federal 
agencies must be disclosed to members of the public 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, would appear to qualify as ``commercial'' information 
as that term has been broadly construed by the courts. Information 
collected by consultants under 29 CFR part 1908 is clearly ``obtained 
by a person'' within the meaning of FOIA.
    OSHA believes that 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 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 were mandatory, the information 
would qualify 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).
    States and employers who filed comments almost unanimously 
predicted a sharp fall off in employer participation if confidentiality 
could not be guaranteed, a belief also emphasized in comments by 
OSHCON. (Ex. 2: 147.) The American Society of Safety Engineers stated 
that in the private sector it would be considered an ethical violation 
for a consultant to disclose an employer's identity without his 
consent. (Ex. 2: 109.) Most states indicated the material is now 
treated as confidential.
    OSHA finds that site specific information and data collected by 
consultants during the consultation visit generally constitutes 
confidential commercial information under FOIA exemption 4, and 
qualifies for protection from release to the public. OSHA believes that 
the public disclosure provisions of proposed Sec. 1908.6(g) and (h) are 
necessary both to

[[Page 64287]]

protect the confidentiality interests of employers in confidential 
commercial information voluntarily provided to the state consultant, 
and to avoid the potential damage which widespread disclosure might do 
to this voluntary program whose objective is to promote the correction 
of workplace hazards by assuring continued participation of employers. 
Accordingly, the final rule includes provisions for non-disclosure of 
such information. Additionally, although OSHA has revised the wording 
of proposed Sec. 1908.6(g) relating to OSHA access, the requirement 
that the consultant's written report may be disclosed only to the 
employer for whom it was prepared, which reflects the status of these 
reports as confidential commercial information not subject to public 
disclosure, has been retained in the final rule.
    Access to consultant's reports for enforcement purposes: The 
proposed Sec. 1908.6(g) would, among other things, have required states 
to provide a copy of a consultant's written report to OSHA upon 
request, for use in enforcement proceedings to which the information 
was relevant. Although the preamble to the proposal stated that the 
enforcement cases in which OSHA would seek to obtain these reports have 
been and would continue to be extremely rare, the volume of comments in 
opposition to this proposal has caused the agency to carefully 
reexamine this issue and revise the language of the final rule. A 
number of commenters, including state agencies, expressed concern that 
the proposal undermines the wall of separation between the consultation 
projects and OSHA, and some argued the proposal violates the spirit of 
the CAAA. Several commenters worried that the proposal will lead to 
decreased usage and ultimate demise of the program (Ex. 2: 13, 39, 92, 
188,) and many employers stated they would not use the services of 
state consultants if they were not assured of confidentiality. (Ex. 2: 
3, 59, 107, 160, 183.) A group of commenters, however, agreed with the 
proposal, asserting that it strikes the proper balance between the use 
of the service by the employer and the need for employee protection. 
(Ex. 2: 25, 133.) Several state agencies proposed that, when necessary, 
OSHA should obtain the report from the employer rather than the state. 
(Ex. 2: 77, 134, 145, 162, 165, 181, 189.) OSHA shares the concern of 
the commenters that the perception of routine access to these reports 
for enforcement purposes would adversely affect employer participation 
in the consultation program. OSHA recognizes the need to preserve a 
careful balance between ensuring effective worker protection and 
encouraging employer participation. Accordingly, the final rule has 
been revised to further limit and specify situations in which 
consultation reports could be used for enforcement purposes. First, the 
final rule eliminates a proposed provision of Sec. 1908.6, to which 
many states objected, which would have required state consultants or 
consultation agencies to furnish written consultation reports to OSHA 
``upon request'' for enforcement use. Subsection 1908.6(g) of the final 
rule has been rephrased to make clear that state consultation agencies 
will be required to furnish their written reports to OSHA only as 
provided in Sec. 1908.7(a)(3)--that is, only when the state makes a 
referral to enforcement because an employer has failed to correct a 
hazard identified by the consultant, or where there is information in 
the report to which access must be provided under 29 CFR 1910.1020 or 
other applicable OSHA standards or regulations.
    Moreover, OSHA has removed from the text of Sec. 1908.6(g)(2) the 
broad language which would have given OSHA unlimited access to the 
consultant's written report in ``enforcement proceedings to which the 
information is relevant.'' The final rule allows OSHA more limited 
access. Aside from rare instances in which OSHA will seek a copy of the 
report as part of the Sec. 1908.6(f)(4) referral process, the revised 
Sec. 1908.7(c)(3) provides that OSHA may obtain the report from the 
employer only where OSHA independently determines there is reason to 
believe that the employer has failed to correct hazards identified by a 
consultant or created the same hazards again, or has made false 
statements to the state or OSHA in connection with participation in the 
consultation program. Once an OSHA inspection (or investigation) 
independently results in the identification of hazards in the 
workplace, the employer and employee interview as well as a review of 
documents provided by the employer may yield information that indicates 
that the hazard had been previously identified but had not been 
corrected by the employer, or that the employer had allowed the hazard 
to reoccur.
    Related to the concerns about the confidentiality of the 
consultants' written report, one commenter expressed concern that the 
confidentiality provisions of the proposed rule would conflict with the 
access rights of certified collective bargaining representations under 
the National Labor Relations Act (NLRA). (Ex. 2:162.) The final rule 
places no limitations on disclosure of consultation-related reports or 
information by the employer with whom the consultation was performed, 
and in no way limits the access rights of an employee organization 
under a collective bargaining agreement or the NLRA.

Section 1908.7  Relationship to Enforcement

    This section generally provides that the state consultation program 
be operated independently of federal and state OSHA enforcement 
programs. This principle of independent program administration is 
reflected in current and previous versions of 29 CFR part 1908, and is 
consistent with section 21(d) of the OSH Act. The proposed changes at 
Sec. 1908.7(a)(3) were intended to clarify the limits of information-
sharing between consultation and enforcement to achieve common program 
objectives. OSHA believes that information sharing under 
Sec. 1908.7(a)(3) is critical to ensure that qualified employers are 
granted inspection exemptions and deferrals, and that the files of 
employers not meeting their obligation are forwarded to OSHA for 
enforcement action. The final rule is changed to delete references to 
the confidentiality provision in Sec. 1908.6(g)(2) and (h)(2), and to 
add the inspection deferral provision under Sec. 1908.7(b)(1).
    At Sec. 1908.7(b)(1), OSHA proposed to change the meaning of 
consultative visit ``in progress''. One commenter was concerned that 
``in progress'' could become open ended and allow excessive correction 
due dates. The commenter suggested that a cap of 60 days should be 
placed on the duration of consultative visits ``in progress''. (Ex. 
2:6.) OSHA is mindful of the concern expressed by this commenter. 
However, OSHA believes that consultation projects are in the best 
position to determine reasonable correction due dates and are therefore 
better able to establish the cap on consultative visits ``in progress'' 
on a case-by-case basis. OSHA intends through its monitoring and 
evaluation of the consultation projects to assist the states in 
maintaining a reasonable schedule of ``correction due dates''. A number 
of commenters expressed strong support for the proposed change to the 
meaning of the consultation visit ``in progress'', observing that the 
change allows the employer to complete the corrective action as part of 
the consultative process. (Ex. 2: 1, 24, 86, 89, 92, 119, 131, 134, 
147, 149, 157, 165.) One commenter noted that the proposal does not go 
far enough. That commenter

[[Page 64288]]

wanted consultation ``in progress'' to extend from ``when a request is 
received by the Consultation Program through the end of the correction 
period, including any approved extensions''. The commenter additionally 
recommended that language be added to the provision that permits OSHA, 
in scheduling compliance inspections, to grant lower priority to 
worksites that have completed a consultative visit. (Ex. 2: 77.) One 
commenter noted that in his state, consultation in progress begins 10 
days before the opening conference and terminates at the end of the 
correction due dates. (Ex. 2: 188.) OSHA believes that the language in 
Sec. 1908.7(b)(1) (inspection deferral to sites with consultative visit 
pending,) and (b)(4)(i)(A) (inspection deferrals to sites working to 
achieve recognition and exemption status,) together with the expanded 
meaning of the consultation visit ``in progress'', provide flexibility 
for granting inspection deferrals to employers who are committed to 
working with the consultation projects.
    The proposal at Sec. 1908.7(b)(4) was intended to provide the 
framework for a recognition and exemption program that replaces the 
``inspection exemption through consultation''. There were two aspects 
to the proposal. Section 1908.7(b)(4)(i)(A) was designed to allow OSHA 
in exercising its authority to schedule compliance activity to defer 
inspections to sites working with the consultation projects to achieve 
the recognition and exemption status, while Sec. 1908.7(b)(4)(i)(B) 
established the minimum standard for achieving the recognition and 
exemption status.
    A few commenters wanted a clarification of the use of the word 
``may'' instead of ``shall'' in the proposal in section 
1908.7(b)(4)(i)(A). (Ex. 2: 9, 13, 34.) Some commenters stated that the 
proposal was inconsistent with section 21(d) of the CAAA. OSHA's 
experience with the ``inspection exemption through consultation'' 
program cautions against granting mandatory inspection exemptions or 
deferrals where the requirement for achieving an acceptable level of 
performance is subject to varied interpretations. Further, states 
operating their own enforcement programs should have reasonable 
flexibility to determine how best to achieve the objective of this 
section. OSHA's position is supported by the language at section 
21(d)(4) of the CAAA. OSHA will provide guidelines to the States to 
ensure uniformity in developing acceptable milestones for inspection 
deferrals, and to ensure that states will only grant deferrals to 
employers working with the consultation projects to achieve specific 
milestones. One commenter objected to the section, noting that the 
reference to ``effective safety and health program'' is OSHA's way of 
forcing employers to implement requirements beyond the intent of the 
CAAA. (Ex. 2: 17.) The reference to ``effective safety and health 
program'' does not impose requirements beyond the scope of the CAAA. 
OSHA notes that the section 21 (d)(4)(C) of the CAAA reflects the 
framework of an effective safety and health program. These criteria are 
further described in OSHA's voluntary Safety and Health Program 
Management Guidelines, which was published in 1989 to help employers 
establish and maintain management systems to protect their workers. 
OSHA's experience with the Safety and Health Achievement Recognition 
Program (SHARP) and with the Voluntary Protection Program (VPP) has 
shown that the guidelines can be implemented successfully by employers 
regardless of size. OSHA believes that the criteria set forth in 
Sec. 1908.7(b)(4)(i)(B), including the ``safety and health program'' 
requirement, are needed to demonstrate that type of commitment and 
ensure the continued protection of employees' safety and health even 
with a lower level of inspection activity. It is important to note that 
in addition to granting inspection exemptions to employers with 
exemplary safety and health programs, this section also contains 
provisions allowing OSHA to grant inspection deferrals to employers 
working towards an effective safety and health program with respect to 
hazards covered by the Act.
    Several commenters expressed their support for the recognition and 
inspection exemption provision at Sec. 1908.7(b)(4)(i)(B). (Ex. 2: 1, 
50, 54, 73, 119, 134, 164.) A few states operating their own 
enforcement programs indicated their satisfaction with the section, 
noting that it would allow them the flexibility of adopting and 
implementing their own program. (Ex. 2: 1, 9, 137.) One commenter 
objected to the requirement that states operating their own enforcement 
adopt an equivalent ``recognition and exemption'' program. (Ex. 2: 25.) 
OSHA believes that a ``recognition and exemption'' program achieves 
multiple purposes, two of which are to encourage employers to work 
towards voluntary compliance with the requirements of the OSH Act and 
to allow enforcement programs to strategically focus their resources. 
OSHA believes that all employers should have the opportunity to 
showcase their excellence, to be recognized for their achievement, and 
to be exempted from inspections where appropriate. The requirement of 
this section is therefore maintained without change in the final rule.
    Under Sec. 1908.7(c)(3), the employer is not required to provide a 
copy of the state consultant's report to a compliance officer. As noted 
in the discussion on confidentiality of the consultant's written report 
(Sec. 1908.6(g)(2),) several states urged that when needed the report 
should be obtained from the employer and not from the project. One 
state agency, while asserting that states should be allowed to keep the 
consultant's written report confidential, recommended that the current 
confidentiality rule be maintained, and that section 1908.7(c)(3) 
should be deleted to allow OSHA to obtain the report directly from the 
employer when necessary. (Ex. 2: 165.) As previously mentioned in the 
discussion under confidentiality of the consultants' written report, 
several state agencies were similarly inclined. Because this section of 
the rule is very important in furthering OSHA's policy of not allowing 
compliance officers to make initial requests for the consultant's 
written report and not allowing the use of the report as a means of 
identifying hazards upon which to focus inspection activity, the final 
rule includes a revised 7(c)(3). The new rule now provides that while 
employers generally will not be required to provide a copy of the 
consultant's report to the compliance officer during a subsequent 
enforcement visit, OSHA may obtain the report from the employer when 
OSHA independently determines there is reason to believe that the 
employer failed to correct serious hazards identified during the course 
of a consultation visit; created the same hazard again; or made false 
statements to the state or OSHA in connection with participation in the 
consultation program.

III. Final Economic Analysis

    The OSHA onsite consultation program is entirely voluntary both for 
employers who seek this free service and for states which elect to 
provide it. Some of the new procedures codified in today's final rule 
may add incrementally to the time or cost incurred in providing OSHA-
funded consultation services, but OSHA believes that any additional 
demand on resources will be more than offset by the benefits of 
employee participation, and will not have any significant measurable 
economic impact either on employers or state consultation agencies. The 
provision that consultation visits include an opportunity for employee 
participation

[[Page 64289]]

is unlikely to add significantly to the time spent by state consultants 
in conducting their visits. OSHA's consultation program directive has 
for many years required an opportunity for walkaround participation by 
the authorized representative in unionized facilities which are 
undergoing a consultation visit. A review of our Integrated Management 
Information System (IMIS) data indicates that in fiscal year 1998, 
there was some form of employee participation in all consultation 
visits. The IMIS data indicate that a majority of visits included some 
degree of employee participation in the walkaround, and many employers 
have voluntarily allowed participation including opening and closing 
conferences, walkaround, and employee interviews.
    The requirements included in these revisions to part 1908 are 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. Employee participation will produce heightened 
awareness by the workforce and will result in a positive contribution 
to ensure a safer and healthier workplace. OSHA believes that the 
economic cost to employers resulting from employee involvement in 
consultation visits is minimal, and in any event employers receive 
these consultative services free of charge, and no employer is required 
to undergo a consultation visit. Similarly, OSHA believes that the 
final rule's provision requiring notification of employees of hazards 
identified during the consultation visit (i.e. posting the list of 
serious hazards, requiring the employer to make information on 
corrective actions and other-than-serious hazards available to affected 
employees and employee representatives) will increase the 
responsibilities of participating employers only slightly. This cost 
however, is more than offset by the value of greater employee 
participation in the consultation process and enhanced employee 
awareness.
    Finally, provisions of the final rule dealing with the availability 
of the consultant's written report for enforcement purposes have been 
modified from those in the proposal in response to numerous state 
comments that unrestricted availability of this information to 
compliance officers would discourage employers from requesting 
consultation visits. OSHA believes that continued employer 
participation is essential to the success of this program. The agency 
has formulated a final rule which balances confidentiality of 
consultation visits with the ultimate objective of ensuring the 
correction of workplace hazards.

IV. Executive Order 12866

    In terms of economic impact, the rule proposed today does not 
constitute an economically significant regulation 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, it is deemed to be a significant regulation because it 
raises novel legal and policy issues, and has therefore been reviewed 
and approved by OMB under Executive Order 12866.

V. 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 final rule 
will not have a significant economic impact on a substantial number of 
small entities. Participation in the consultation program both by 
states and employers is entirely voluntary. The state agencies which 
have elected to furnish onsite 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 rule would tend to include a 
substantial number of small entities but, as indicated in the foregoing 
discussion of regulatory impacts, the final rule should have virtually 
no measurable economic impact on employers.

VI. Paperwork Reduction Act

    This final rule contains collection of information requirements 
which are identical to those in the existing consultation agreement 
regulations, except that OSHA is adding a new requirement for the 
states to generate and transmit a ``List of Hazards'' identified during 
the visit to the employer, and for the employer to post the list. Under 
the Paperwork Reduction Act of 1995, all collection of information 
requirements must be submitted to OMB for approval. The existing 
requirements for collection of information are approved by OMB under 
control number 1218-0110. As a first step in its review of the rule 
being issued today, OSHA published a request for public comment on 
information collection in the Federal Register (63 FR 67702) on 
December 8, 1998. That request included additional collections 
anticipated with the revision of this rule. OSHA received no comments 
on existing and the proposed information collection. OSHA has submitted 
a request to OMB for revision of the currently approved collection to 
reflect the paperwork requirements imposed by this final rule.

VII. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255; August 10, 
1999,) sets forth fundamental federalism principles, federalism 
policymaking criteria, and provides for consultation by federal 
agencies with state or local governments when policies are being 
formulated which potentially affect them. The revisions to 29 CFR part 
1908 were issued as a proposed rule on July 2, 1999, prior to the 
effective date of this Executive Order, and accordingly the specific 
intergovernmental consultation process provided under this Executive 
Order was not conducted. However, as discussed below, OSHA has engaged 
in extensive discussion of the proposed rule with affected state 
agencies, and has incorporated many of the concerns expressed by 
affected states in the language of the final rule issued today.
    Federal OSHA meets regularly with representatives of state-operated 
onsite consultation programs, both individually and at meetings of the 
National Association of Occupational Safety and Health Consultation 
Programs (OSHCON). 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 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.
    OSHA has reviewed the revisions to part 1908 and finds them to be 
consistent with the policymaking criteria outlined in Executive Order 
13132. 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 and accordingly 
are not covered by the

[[Page 64290]]

Unfunded Mandates Reform Act, see 2 U.S.C. 1502, 658(5). The designated 
federalism official for the Department of Labor has certified that OSHA 
has complied with the requirements of Executive Order 13132 for these 
revisions to 29 CFR part 1908.

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, Grant programs--labor, 
Intergovernmental relations, Occupational safety and health, Reporting 
and recordkeeping requirements, Small businesses, Technical assistance.

    Signed this 16 day of October, 2000 in Washington, DC.
Charles N. Jeffress,
Assistant Secretary of Labor.

    Accordingly, 29 CFR part 1908 is amended as set forth below:

PART 1908--CONSULTATION AGREEMENTS

    1. The authority citation for 29 CFR part 1908 is 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 is 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 must be assigned to requests received from 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 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 is amended by revising the definitions of 
``Employee'', ``Employer'', ``Other-than-serious hazard'', and 
``Serious-hazard'', and by adding, in alphabetical order, the 
definitions of ``Employee representative'', ``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.
    Employee representative, as used in the OSHA consultation program 
under this part, means the authorized representative of employees at a 
site where there is a recognized labor organization representing 
employees.
    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 all serious hazards that are 
identified by the consultant and the correction due dates agreed upon 
by the employer and the consultant. Serious hazards include hazards 
addressed under section 5(a)(1) of the OSH Act and recordkeeping 
requirements classified as 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 worksite, 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 is amended by revising paragraph (a) to read as 
follows:

[[Page 64291]]

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 is 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), 
and shall ensure that the employer understands his or her obligation to 
post the List of Hazards accompanying the consultant's written report.
    (b) Employer requests. (1) An onsite 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.
* * * * *

    6. Section 1908.6 is amended by:
    a. Revising paragraphs (b), (c)(2), (d), (e)(7), (e)(8), and 
(f)(2);
    b. Redesignating the text of paragraph (g) following the paragraph 
heading as paragraph (g)(1);
    c. Redesignating the text of paragraph (h) following the paragraph 
heading as paragraph (h)(1); and
    d. Adding new paragraphs (g)(2) and (h)(2).
    The revisions and additions read as follows:


Sec. 1908.6  Conduct of a visit.

* * * * *
    (b) Structured format. An initial onsite 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 walkthrough 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 walkthrough 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, 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) In addition, an employee representative of affected 
employees must be afforded an opportunity to accompany the consultant 
and the employer's representative during the physical inspection of the 
workplace. The consultant may permit additional employees (such as 
representatives of a joint safety and health committee, if one exists 
at the worksite) to participate in the walkaround, where the consultant 
determines that such additional representatives will further aid the 
visit.
    (ii) If there is no employee representative, or if the consultant 
is unable with reasonable certainty to determine who is such a 
representative, or if the employee representative declines the offer to 
participate, the consultant must 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 will 
encourage a joint opening conference with employer and employee 
representatives. If there is an objection to a joint conference, the 
consultant will conduct separate conferences with employer and employee 
representatives. The consultant must inform affected employees, with 
whom he confers, of the purpose of the consultation visit.
    (2) In addition to the requirements of paragraph (c) of this 
section, the consultant will, in the opening conference, explain to the 
employer the relationship between onsite consultation and OSHA 
enforcement activity, explain the obligation to protect employees in 
the event that certain hazardous conditions are identified, and 
emphasize the employer's obligation to post the List of Hazards 
accompanying the consultant's written report as described in paragraph 
(e)(8) of this section.
    (3) At the conclusion of the consultation visit, the consultant 
will conduct a closing conference with employer and employee 
representatives, jointly or separately. The consultant will 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 will 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 must provide, upon 
request from the employer within 15 working days of receipt of the 
consultant's report, a prompt opportunity for an 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) As a condition for receiving the consultation service, the 
employer must agree to post the List of Hazards accompanying the 
consultant's written report, and to notify affected employees when 
hazards are corrected. When received, the List of Hazards must be 
posted, unedited, in a prominent place where it is readily observable 
by all

[[Page 64292]]

affected employees for 3 working days, or until the hazards are 
corrected, whichever is later. A copy of the List of Hazards must be 
made available to the employee representative who participates in the 
visit. In addition, the employer must agree to make information on the 
corrective actions proposed by the consultant, as well as other-than-
serious hazards identified, available at the worksite for review by 
affected employees or the employee representative. OSHA will not 
schedule a compliance inspection in response to a complaint based upon 
a posted List of Hazards unless the employer fails to meet his 
obligations under paragraph (f) of this section, or fails to provide 
interim protection for exposed employees.
    (f) * * *
    (2) An employer must also take the necessary action in accordance 
with the plan developed under paragraph (e)(7) of this section to 
eliminate or control employee exposure to any identified serious 
hazard, and meet the posting requirements of paragraph (e)(8) of this 
section. In order to demonstrate that the necessary action is being 
taken, an employer may be required to submit periodic reports, permit a 
follow-up visit, or take similar action that achieves the same end.
* * * * *
    (g) Written report. (1) * * *
    (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 
state shall not disclose the consultant's written report except to the 
employer for whom it was prepared and as provided for in 
Sec. 1908.7(a)(3). The state may also disclose information contained in 
the consultant's written report to the extent required by 29 CFR 
1910.1020 or other applicable OSHA standards or regulations.
    (h) Confidentiality. (1) * * *
    (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, the state shall keep such 
information 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 shall, to the 
maximum extent permitted by law, treat information which identifies 
specific employers as exempt from public disclosure.
* * * * *

    7. Section 1908.7 is 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 onsite consultation, as 
well as the file of the consultant's visit, shall not be 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,) paragraph 
(b)(1) of this section (inspection deferral) and paragraph (b)(4) of 
this section (recognition and exemption program).
    (b) Effect upon scheduling. (1) An onsite consultative visit 
already in progress will have priority over OSHA compliance inspections 
except as provided in paragraph (b)(2) of this section. 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 onsite 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 inspections, assign a lower priority to worksites where 
consultation visits are scheduled.
* * * * *
    (4) The recognition and exemption program operated by the OSHA 
consultation projects provide 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 paragraph 
(b)(4)(i)(A) of this section:
    (A) Imminent danger.
    (B) Fatality/Catastrophe.
    (C) Formal Complaints.
    (5) When an employer requests consideration for participation in 
the recognition and exemption program under paragraph (b)(4) of this 
section, 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. If, during a 
subsequent enforcement investigation, OSHA independently determines 
there is reason to believe that the employer: failed to correct serious 
hazards identified during the course of a consultation visit; created 
the same hazard again; or made false statements to the state or OSHA in 
connection with participation in the consultation program, OSHA may 
exercise its authority to obtain the consultation report.
* * * * *

    Note: The following attachment will not appear in the Code of 
Federal Regulations.


[[Page 64293]]



Attachment I to Preamble

Exhibit 2--Commenters on Proposal

2:1  Virginia Anklin, Maryland OSHA, Laurel, MD
2:2  Benjamin Studebaker, Principal Safety Engineer, Videojet 
Systems International, Wood Dale, IL
2:3  Jill Davis, Safety & Health Director, Federal Foam 
Technologies, Ellsworth, WI
2:4  Jim Ramsay, The Kansas Contractors Association, Inc., Topeka, 
KS
2:5  Carin Clauss, Professor of Law, University of Wisconsin-
Madison, Madison, WI
2:6  Richard Terrill, Regional Administrator, OSHA, Seattle, WA
2:7  Dick Hughes, Executive Vice President, Excellence in Safety, 
Inc., Falmouth, MA
2:8  Wyatt Buchanan, Regulatory Compliance Director, C.H. Thompson 
Co., Incorporated, Binghamton, NY
2:9  John Barr, Commissioner, Virginia Dept. of Labor and Industry, 
Richmond, VA
2:10  Leland Slay, Vice President of Human/Industrial Relations, 
Associated Grocers of the South, Birmingham, AL
2:11  Diane Coppage, Corporate Secretary, Owego Contracting Co., 
Inc., Candor, NY
2:12  Howard Egerman, National Health and Safety Representative, 
American Federation of Government Employees, Oakland, CA
2:13  Charles Kramer, Consultation Officer, OSHA Region III, 
Philadelphia, PA
2:14  John Hartman, President, JH Robotics, Inc., Johnson City, NY
2:15  Paul Sadlon, Administrator, Susquehanna Nursing Home, Johnson 
City, NY
2:16  Raelyn Pearson, Treasurer, Washburn Iron Works, Inc., 
Washburn, WI
2:17  Cass Ballenger, Chairman, House Subcommittee on Workforce 
Protection, Washington, D.C.
2:18  Gerald Taylor, President, Milwaukee
    Machine and Engineering Corp., New Berlin, WI
2:19  Francis Sawyer, Secretary/Treasurer, Acro-Fab, Hannibal, NY
2:20  Gilbert Jones, Chief Financial Officer, Darman Manufacturing 
Co, Inc., Utica, NY
2:21  Steven Quandt, Executive Vice President, Columbus Chemical 
Industries, Columbus, NY
2:22  David Mlekoday, Facility Manager, Milwaukee Center for 
Independence, Milwaukee, WI
2:23  Anthony DiRenzio, DiRenzio Bros. Bakery, Inc., Binghamton, NY
2:24  Donald Heckler, Acting Director, Connecticut OSHA, 
Wethersfield, CT
2:25  Mel James, Consultation-Compliance Manager, WISHA, Olympia, WA
2:27  Mary Werheim, President, Stanek Tool, New Berlin, WI
2:28  Ken Woodring, General Manager, Dern Moore Machine Company, 
Lockport, NY
2:29  Robin Gynnild, Human Resources and Safety Director, Bauman 
Construction of Chippewa Falls, Chippewa Falls, WI
2:30  Matthew Cady, Safety Manager, Ark-Les, U.S. Controls Corp., 
New Berlin, WI
2:31  Donna Haley, Onandaga Asphalt Products, LLE., East Syracuse, 
NY
2:32  Brian Letcher, President, Syracuse Constructors, Inc. East 
Syracuse, NY
2:33  Patrick Foley, Foley Wood Products, Inc., Ellsworth, WI
2:34  Richard Muellerleile, President, Star Gas Products, Inc., 
Poughkeepsie, NY
2:35  ``Management'', Eden Tool and Die, Eden, NY
2:36  Jesse Didio, Manager, Human Resources, Bartell Machinery 
Systems, L.L.C., Rome, NY
2:37  Jane Mulvihill, President, DI Highway Sign and Structure 
Corp., New York, NY
2:38  Vincent Perello, Personnel/Purchasing Manager, Diamond Saw 
Works, Inc., Chaffee, NY
2:40  Mark Forster, Vice President, Badger Iron Works, Menomonie, WI
2:41  David Bernstein, Manager, Human Resources, Unit Drop Forge 
Co., Inc., West Allis, WI
2:43  Paul Engel, President, American Boiler Tank & Welding Co., 
Inc., Albany, NY
2:44  Darcy Fields, State of Wisconsin, Eau Claire, WI
2:45  Margaret O'Brien, Safety Coordinator, Stride Tool, 
Ellicotville, NY
2:46  E.W. Tucker, President, F.W. Tucker & Son, Inc., Oswego, NY
2:47  Pat McGowan, Vice President-Operations, Brunsell Lumber & 
Millwork, Madison, WI
2:48  Jay Czerniak, President, Niagara Punch & Die Corporation, 
Buffalo, NY
2:49  Clifford Ross, President, Easter Castings Corp., Cambridge, NY
2:50  Rick Wells, President, Mohawk Resources, Amsterdam, NY
2:51  Donna Hale, Safety Director, U.S. Highway Products, Canastota, 
NY
2:52  Bob Kellog, Vice President, Warren Tire Service Center, 
Queensbury, NY
2:53  R.W. Whitman, President, ESSCO Incorporated, Green Bay, WI
2:54  James Porter, Vice President, Solvay Paperboard, Syracuse, NY
2:55  Gail Lipka, Plant Manager, Greenbelt Industries, Buffalo, NY
2:56  Jeff Trembly, Vice President, Oshkosh Coil Spring, Inc., 
Oshkosh, WI
2:57  Wayne Trembly, President, Oshkosh Coil Spring, Inc., Oshkosh, 
WI
2:58  Douglas Hooper, ES&H Manager, Luminescent Systems, East 
Aurora, NY
2:59  Brian Riemer, Plant Manager, NY
2:60  Ted Dankert, President, The Kansas Contractors Association, 
Inc., Topeka, KS
2:61  John Tarrant, President, Tarrant Manufacturing Co., Inc., 
Saratoga, NY
2:62 W.  Romer, Personnel Director, Clear View Bag Co., Inc., 
Albany, NY
2:63  Ray Seeley, Operations Manager, Trussworks, Inc., Hayward, WI
2:64  David Clark, Plant Manager, Avon Automotive, Lockport, NY
2:65  Judith Scheitheir, Office Manager, Stainless Steel Brakes 
Corp., Clarence, NY
2:67  Donna Haley, Safety Director, Santaro, East Syracuse, NY
2:68  Tech Steel Service, Farmingdale, NY
2:69  Bill Petrillose, Building Manager, Center Ithaca-TSD 
Associates, Ithaca, NY
2:70  Clarence Cammers, Safety Manager, The Colman Group, Inc., 
Elhorn, WI
2:71  Scott Kantar, Plant Engineer, Jada Precision Plastics Co., 
Inc., Rochester, Ny 2.72 Donna Haley, Sel Ventures, LLC., East 
Syracuse, NY
2:73  Nora Eberl, Controller, Eberl Iron Works, Inc., Buffalo, NY
2:74  Robert Eck, President, Eck Plastic Arts, Inc., Binghamton, NY
2:75  Jack Ireton-Hewitt, General Manager, Champion Home Builders 
Co., Sangerfield, NY
2:76  James Haney, President, Wisconsin Manufacturers & Commerce, 
Madison, WI
2:77  Worth Joyner, Chief-Bureau Consultative Services, NC-DOL, 
Raleigh, NC
2:78  William Torrence, President, Torrance Casting, Inc., La 
Crosse, WI
2:79  Michael Camardello, Ph.D., President, Sharon's Distributors, 
Inc., Schenectady, NY
2:80  Erick Austin, Safety Manager, Felix Shoeller, Pulaski, NY
2:81  Susan Martin, Safety Director, De Kalb Forge Company, De Kalb, 
IL
2:82  Raymond Charbonneau, Plant Manager, Majic Corrugated, Inc., 
Batavia, NY
2:83  Richard Couchenour, Jamestown Advanced Products, Inc., 
Jamestown, NY
2:84  Daniel Hill, President, Metweld, Altamont, NY
2:85  Judy Betz, ITO Safety Team Member, ITO Industries, Inc., 
Bristol, WI
2:86  Robert Simmons, Assistant Director-Missouri On-Site 
Consultation Division of Labor Standards, Missouri--DOL, Jefferson 
City, MO
2:87  Jim Harrison, Medical Director, North Woods Community Health 
Center, Minong, WI
2:88  Fred Zeitz, DDS., Family Dentistry and Orthodontics, 
Middleton, WI
2:89  Louis Lento, Director-New Jersey Department of Labor, On-Site 
Consultation Program, NJ-DOL-OSHA, Trenton, NJ
2:90  Matthew Kucerak, Operations Manager, Sharon's Distributors, 
Inc., Schenectady, NY
2:91  Barbara Davis, President, Cowee, Berlin, NY
2:92  Karl Arps, Director-Bureau of Manufacturing and Technology 
Development, Wisconsin Dept. of Commerce, Madison, WI
2:93  Todd Samolinski, Vice President-Manufacturing, Fallon, Antigo, 
WI
2:94  Doug Wilcox, General Manager, McGregor, Binghamton, NY
2:95  Frances Miller, Health & Safety Administrator, Getinge/Castle 
Inc., Rochester, NY
2:96  Michael Mulcahy, GEHL, West Bend, WI
2:97  Neil Manasse, President, Harris Pallet Co., Inc., Albany, NY
2:98  John Kwiatkowski, Vice President-Operations, Owl Homes/Hawk 
Homes, Allegany, NY
2.99  Brian Flannagan, President, Primary Plastics, Inc., Endwell, 
NY
2:100  Bruce Richards, Wagner Millwork, Inc, Owego, NY
2:101  John Donaldson, President, Donaldson's Volkswagen-Audi-
Subaru, Sayville, NY
2:102  Larry Lindesmith, M.D., Gunderson Lutheran Medical Center, La 
Crosse, WI
2:103  Gary Blasiman, Environmental & Safety Engineer, Colfor 
Manufacturing, Inc., Malvern, OH

[[Page 64294]]

2:104  Scott Kuhlmey, Safety Coordinator, Shur-Line, Lancaster, NY
2:106  Bill Welch, Safety Director, BRB Contractors, Inc., Topeka, 
KS
2:107  William MacGuane, Safety & Security Supervisor, Quesbecor 
Printing, Buffalo Inc., Depew, NY
2:108  Robert Green, Safety Director, K. J. Transportation, 
Farmington, NY
2:109  Frank Perry, President, American Society of Safety Engineers, 
Des Plaines, IL
2:110  Deborah Kruesi, Chief Operating Officer, ComposiTools, Inc., 
Albany, NY
2:111  Kevin Burke, Vice President-Government Relations, Food 
Distributors International, Falls Church, VA
2:112  Thomas Herrman, DEEP Administrator, Niagara Frontier 
Automobile Dealers Association, Williamsville, NY
2:113  George Frazer, Safety and Health Engineering Technician, 
Jensen Fittings Corporation, North, NY
2:114  Ralph Krall, Manager of Safety and Human Resources, Clifford-
Jacobs Forging Company, Champaign, IL
2:115  J.D. Teclaw, Human Resource Director, Mapleton Wood Products, 
Thorp, WI
2:116  T.G. Getz, President, Moline Forge, Moline, IL
2:117  Brian Grossman, Assistant Environmental & Safety Manager, 
Portland Forge, Portland, IN
2:118  David Johnson, President, Corfu Machine Co., Inc., Corfu, NY
2:119  Kenneth Reichard, Commissioner of Labor and Industry, 
Maryland-DLLR, Baltimore, MD
2:120  Thomas O'Connor, Director of Technical Services, National 
Grain and Feed Association, Washington, D.C.
2:121  Marsha Greenfield, Public Policy Attorney, American 
Association of Homes and Services, Washington, D.C.
2:122  Joe Leean, Secretary, Wisconsin Department of Health and 
Family Services, Madison, WI
2:123  Thomas Sullivan, Regulatory Policy Council, National 
Federation of Independent Business, Washington, D.C.
2:124  Connie Varcasia, NY-DOL, Albany, NY
2:125  Beth Van Emburgh, Associate Manager, Regulatory Affairs, 
American Association of Airport Executives, Alexandria, VA
2:126  Karen Gilbert, Office Manager, Trevor Industries, Inc., Eden, 
NY
2:127  Stephan Foster, Safety Assistant Administrator, Department of 
Employement, Cheyenne, WY
2:128  Raymond Wilson, Safety Director, n/a, Rome, NY
2:129  Nancy Stumpf, CEO, Dream Wing, Hartland, WI
2:130  Michael Kelly, Facilities Manager, Deridder, Rochester, NY
2:131  Terry Haden, Facilitator, Salina Safety Network, Salina, KS
2:132  Rudolph Leutzinger, Project Manager, Kansas City Department 
of Human Resources, Topeka, KS
2:133  James Frederick, Health Safety and Environment Department, 
United Steelworkers of America, Pittsburgh, PA
2:134  Lisa Blunt-Bradley, Secretary of Labor, Delaware--DOL, 
Wilmington, DE
2:136  Douglas Gaffney, Controller, Niagara Transformer Corp., 
Buffalo, NY
2:137  Joe Norsworthy, Secretary of Labor, Commonwealth of Kentucky 
Labor Cabinet, Frankfort, KY
2:138  Edward Owsinski, Director of Engineering, Paz Systems, 
Farmingdale, NY
2:139  Jeffrey Woitha, Vice President, Carbo Forge & Machining, 
Fremont, OH
2:140  Michael Marsala, Environmental Engineer, Guardian Industries 
Corp., Geneva, NY
2:141  Zwack, Inc., Stephentown, NY
2:142  Hawaii--OSH, Honolulu, HI
2:143  Jim Redmona, Director Safety & Health Services, GBC Safety 
and Construction Services, Inc., Albany, NY
2:144  Fred Kohloff, Director, Environmental Health & Safety, 
American Foundrymen's Society, Inc., Washington, D.C.
2:145  Peg Seminario, Director--Department of Occupational Safety & 
Health, A.F.L.C.I.O., Washington, D.C.
2:147  William Weems, Presidnet, OSHCON, Tuscaloosa, AL
2:148  Holly Evans, Vice President-Governmental Relations, IPC-
Association Connecting Electronics Industries, Northbrook, IL
2:149  John Engler, Program Director, PA-OSHA, Indiana, PA
2:150  Douglas Capell, Personnel Director, Trek, Medina, NY
2:151  Holly Bodnar, Secretary, Pine Bush Equipment Co., Inc., Pine 
Bush, NY
2:152  Owen Wagner, Director--Occupational Safety & Health Division, 
Ohio Bureau of Employment Services, Columbus, OH
2:153  David Stangel, Plant Manager, Copeland Coating Co., Inc., 
Nassau, NY
2:154  Douglas Greenhaus, Director--Environment, Health & Safety, 
National Automobile Dealers Association, McLean, VA
2:155  Allen Williams, Assistant Director for Occupational Safety 
and Health, Safe-State-University of Alabama, AL
2:156  Brian Gitt, President, Paceline Construction Corporation, 
Warwick, NY
2:157  Jennifer Burgess, Director--Safety Section, West Virginia, 
DOL, Charleston, WV
2:158  Ned Murphy, Safety Manager, Hammond & Irving, Auburn, NY
2:159  Jacqueline Nowell, Director, Occupational Safety and Health 
Office--Field Services Department, United Food and Commercial 
Workers International Union, Washington, D.C.
2:160  Patty Kelley, Operations Coordinator, Crescent Manufacturing, 
Eden, NY
2:161  John Patchett, Executive Vice President, State Medical 
Society of Wisconsin, Madison, WI
2:162  Eric Frumin, Director--Occupational Safety and Health, UNITE, 
New York, NY
2:163  Steve and Marie Daigle, Owners, Daigle Brothers Inc., 
Tomahawk, WI
2:165  Brenda Reneau, Commissioner of Labor, Oklahoma--DOL, Oklahoma 
City, OK
2:166  Richard Rohm, Plant Manager, Pilotron Company of America LLC, 
Niagara Falls, NY
2:168  Gary Buckner, Business Manager, Spooner Creek Designs, Shell 
Lake, WI
2:169  Ross Pepe, President, Construction Industry Council, 
Tarrytown, NY
2:170  W.D. Price, Vice President-Finance and Administration, Canton 
Drop Forge, Canton, OH
2:171  Dan Marx, Senior Associate-Government Affairs, Graphic Arts 
Technical Foundation, Sewickley, PA
2:171  David Munschhauer, President, S.E.H. Metal Fabricators, Inc., 
Buffalo, NY
2:172  Jacqueline Schommer, Vice President-Human Resources, Durex 
Products, Inc., Luck, WI
2:173  Paul Evans, Plant Manager, Robbins Sports Surfaces, White 
Lake, WI
2:174  Marvin Smith, General Manager, Frazier Industrial Company, 
Waterloo, NY
2:175  Gary Bouffard, Executive Vice President and Chief Operating 
Officer, Ideal Forging Corporation, Southington, CT
2:176  James Koczak, Vice President Human Resources, Ideal Forging 
Corporation, Southington, CT
2:177  Sal Lento, Plant Manager, Ideal Forging Corporation, 
Southington, CT
2:178  Francis Gualtieri, Safety/Environmental Coordinator, Ideal 
Forging Corporation, Southington, CT
2:179  Pam McDonough, Director, Illinois Department of Commerce and 
Community, Springfield, IL
2:180  Muskego, Windlake Animal Hospital, Muskego, WI
2:181  Gary Sloop, CSP, State Consultant, Las Vegas, NV
2:182  Cory Tomczyk, Industrial Recyclers of Wisconsin, Mosinee, WI
2:183  Margaret Buchmann, Treasurer, Brown County Cabinets, Green 
Bay, WI
2:184  Norb Plassmeyer, Vice President and Director of Environmental 
Affairs, Associated Industries of Missouri, Jefferson City, MO
2:185  Robert Ehlert, Safety Director, Bassett Mechanical, Kaukauna, 
WI
2:187  Peter Pipp, Safety Director, Cudahy Tanning Co., Inc., 
Cudahy, WI
2:188  James Collins, MNOSHA Management Team Director, Minnesota 
Department of Labor and Industry, St. Paul, MN
2:189  Michael Sprinker, Director ICWUC Health and Safety 
Department, International Chemical Workers Union Council, Akron, OH
2:190  Charles Maresca, Director--Legal and Regulatory Affairs, 
Associated Builders and Contractors, Rosslyn, VA
2:191  Martin David, NY
2:192  John Sweeney, Member of Congress, House of Representatives, 
Washington, D.C.
2:193  Andy Mayts, NUCA President, National Utility Contractors 
Association, Arlington, VA
2:195  Timothy Joyce, Commissioner, Indiana-DOL, Indianapolis, IN
2:196  Travis Beason, Corporate Safety/Environmental Director, Zero 
Mountain, Inc., Ft. Smith, AR
2:197  Wendy Gramm, Director--Regulatory Studies Program, Mercatus 
Center, Arlington, VA
2:198  Robert Mitvalsky, Director of Plant Operations, Chamberlain, 
Scranton, PA

[[Page 64295]]

2:199  Douglas DiGesare, Coordinator of Satellite Services, Heritage 
Centers, Buffalo, NY
2:201  Franklin Mirer, Director--Health and Safety Department, 
International Union-UAW, Detroit, MI
2:202  Manuel Rosas, Trainer, NC-DOL, Pineville, NC
2:203  National Roofing Contractors Association, Washington, D.C.
2:204  Michael Duggan, President, Vulcan Steam Forging Co., Buffalo, 
NY
2:205  Major Owens, Member of Congress, House of Representatives, 
Washington, D.C.

[FR Doc. 00-27103 Filed 10-25-00; 8:45 am]
BILLING CODE 4510-26-P