64282 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations

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.

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 OSHAapproved 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

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations 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’’, ‘‘Serioushazards’’, ‘‘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-thanserious 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 StatePlan 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

§ 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 § 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,

§ 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

64284 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations

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

§ 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 § 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 § 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 nonunionized 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

§ 1908.6(c)(2)(i) to clearly indicate that

the requirements in the whole of

§ 1908.6(c)(2) are in addition to the

requirements in § 1908.6(c)(1). Further,

the phrase ‘‘or if the employee

representative declines the offer to

participate’’ is added to § 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 § 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

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations 64285

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 antidiscrimination protection and

walkaround pay. (Ex. 2: 137.) The final

rule retains § 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

§ 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

§ 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 § 1908.6(d)(3) is added

to § 1908.6(d)(2.) Section 1908.6(d)(4) is

renumbered as § 1908.6(d)(3).

The proposal at § 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 § 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

64286 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations

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

§ 1908.7(b)(1), and will be denied

participation in the recognition and

exemption program at § 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 § 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 § 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

§ 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

§ 1908.6(g) and (h) are necessary both to

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

§ 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 § 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

§ 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 § 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 § 1908.6(f)(4) referral process,

the revised § 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 § 1908.7(a)(3) were intended

to clarify the limits of informationsharing between consultation and

enforcement to achieve common

program objectives. OSHA believes that

information sharing under § 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

§ 1908.6(g)(2) and (h)(2), and to add the

inspection deferral provision under

§ 1908.7(b)(1).

At § 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

64288 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations

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 § 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 § 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

§ 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

§ 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

§ 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 § 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 (§ 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

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

64290 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations

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:

§ 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:

§ 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:

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations 64291

§ 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:

§ 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 § 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:

§ 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

64292 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations

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 § 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:

§ 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 § 1908.6(f)(1) (failure to eliminate

imminent danger,) § 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 § 1908.6(e)(7), (e)(8),

(f)(3), and (f)(5) shall apply to otherthan-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.

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

64294 Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations

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 PresidentGovernment 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 PresidentGovernmental 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, SafeState-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 AssociateGovernment 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

Federal Register / Vol. 65, No. 208 / Thursday, October 26, 2000 / Rules and Regulations 64295

2:199 Douglas DiGesare, Coordinator of

Satellite Services, Heritage Centers,

Buffalo, NY

2:201 Franklin Mirer, Director—Health and

Safety Department, International UnionUAW, 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