PART 1908—CONSULTATION AGREEMENTS 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). Source: 49 FR 25094, June 19, 1984, unless otherwise noted. § 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. (b) Assistance may include education and training of the employer, the employer's supervisors, and the employer's other employees as needed to make the employer self-sufficient in ensuring safe and healthful work and working conditions. Although onsite consultation will be conducted independent of any OSHA enforcement activity, and the discovery of hazards will not mandate citation or penalties, the employer remains under a statutory obligation to protect employees, and in certain instances will be required to take necessary protective action. Employer correction of hazards identified by the consultant during a comprehensive workplace survey, and implementation of certain core elements of an effective safety and health program and commitment to the completion of others may serve as the basis for employer exemption from certain OSHA enforcement activities. States entering into Agreements under this part will receive ninety percent Federal reimbursement for allowable costs, and will provide consultation to employers requesting the service, subject to scheduling priorities, available resources, and any other limitations established by the Assistant Secretary as part of the Cooperative Agreement. (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. [49 FR 25094, June 19, 1984, as amended at 65 FR 64290, Oct. 26, 2000] § 1908.2 Definitions. As used in this part: Act Assistant Secretary Compliance Officer Consultant Consultation Cooperative Agreement Designee Education Employee Employee representative, Employer Hazard correction Imminent danger List of Hazards Offsite consultation Onsite consultation OSHA Other-than-serious hazard Programmed inspection Programmed inspection schedule RA Recognition and exemption program Serious hazard State Training [49 FR 25094, June 19, 1984, as amended at 65 FR 64290, Oct. 26, 2000] § 1908.3 Eligibility and funding. (a) State eligibility. (b) Reimbursement. (2) Reimbursement to States under this part is limited to costs incurred in providing consultation to private sector employers only. (i) In all States with Plans approved under section 18 of the Act, consultation provided to State and local governments, as well as the remaining range of voluntary compliance activities referred to in 29 CFR 1902.4(c)(2)(xiii), will not be affected by the provisions of this part. Federal reimbursement for these activities will be made in accordance with the provisions of section 23(g) of the Act. (ii) In States without Plans approved under section 18, no Federal reimbursement for consultation provided to State and local governments will be allowed, although this activity may be conducted independently by a State with 100 percent State funding. [49 FR 25094, June 19, 1984, as amended at 65 FR 64291, Oct. 26, 2000] § 1908.4 Offsite consultation. The State may provide consultative services to employers on occupational safety and health issues by telephone and correspondence, and at locations other than the employer's worksite, such as the consultation project offices. It may, under limited conditions specified by the Assistant Secretary, include training and education. § 1908.5 Requests and scheduling for onsite consultation. (a) Encouraging requests State responsibility. (2) Promotional methods. (i) Paid newspaper advertisements; (ii) Newspaper, magazine, and trade publication articles; (iii) Special direct mailings or telephone solicitations to establishments based on workers' compensation data or other appropriate listings; (iv) In-person visits to workplaces to explain the availability of the service, and participation at employer conferences and seminars; (v) Solicitation of support from State business and labor organizations and leaders, and public officials; (vi) Solicitation of publicizing by employers and employees who have received consultative services; (vii) Preparation and dissemination of publications, descriptive materials, and other appropriate items on consultative services; (viii) Free public service announcements on radio and television. (3) Scope of service. (b) Employer requests. (2) When making a request, an employer in a small, high hazard establishment shall generally be encouraged to include within the scope of such request all working conditions at the worksite and the employer's entire safety and health program. However, a more limited scope may be encouraged in larger and less hazardous establishments. Moreover, any employer may specify a more limited scope for the visit by indicating working conditions, hazards, or situations on which onsite consultation will be focused. When such limited requests are at issue, the consultant will limit review and provide assistance only with respect to those working conditions, hazards, or situations specified; except that if the consultant observes, in the course of the onsite visit, hazards which are outside the scope of the request, the consultant must treat such hazards as though they were within the scope of the request. (3) Employers may request onsite consultation to assist in the abatement of hazards cited during an OSHA enforcement inspection. However, an onsite consultative visit may not take place after an inspection until the conditions set forth in § 1908.7(b)(3) have been met. (c) Scheduling priority. [49 FR 25094, June 19, 1984, as amended at 65 FR 64291, Oct. 26, 2000] § 1908.6 Conduct of a visit. (a) Preparation. (2) At the time of any promotional visit conducted by a consultant to encourage the use of the onsite consultative services, a consultation may be performed without delay if the employer so requests and the consultant is otherwise prepared to conduct such consultation. (b) Structured format. (c) Employee participation. (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. (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) Onsite activity. (2) The consultant shall advise the employer as to the employer's obligations and responsibilities under applicable Federal or State law and implementing regulations. (3) Within the scope of the employer's request, consultants shall review the employer's safety and health program and provide advice on modifications or additions to make such programs more effective. (4) Consultants shall identify and provide advice on correction of those hazards included in the employer's request and any other safety or health hazards observed in the workplace during the course of the onsite consultative visit. This advice shall include basic information indicating the possibility of a solution and describing the general form of the solution. The consultant shall conduct sampling and testing, with subsequent analyses. as may be necessary to confirm the existence of safety and health hazards. (5) Advice and technical assistance on the correction of identified safety and health hazards may be provided to employers during and after the onsite consultative visit. Descriptive materials may be provided on approaches, means, techniques, and other appropriate items commonly utilized for the elimination or control of such hazards. The consultants shall also advise the employers of additional sources of assistance, if known. (6) When a hazard is identified in the workplace, the consultant shall indicate to the employer the consultant's best judgment as to whether the situation would be classified as a “serious” or “other-than-serious” hazard. (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 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) Employer obligations. (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. (3) An employer may request, and the consultation manager may grant, an extension of the time frame established for correction of a serious hazard when the employer demonstrates having made a good faith effort to correct the hazard within the established time frame; shows evidence that correction has not been completed because of factors beyond the employer's reasonable control; and shows evidence that the employer is taking all available interim steps to safeguard the employees against the hazard during the correction period. (4) If the employer fails to take the action necessary to correct a serious hazard within the established time frame or any extensions thereof, the consultation manager shall immediately notify the appropriate OSHA enforcement authority and provide the relevant information. The OSHA enforcement authority will make a determination, based on a review of the facts, whether enforcement activity is warranted. (5) After correction of all serious hazards, the employer shall notify the consultation manager by written confirmation of the correction of the hazards, unless correction of the serious hazards is verified by direct observation by the consultant. (g) Written report. (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. (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. (Approved by the Office of Management and Budget under control number 1218-0110) [49 FR 25094, June 19, 1984, as amended at 54 FR 24333, June 7, 1989; 65 FR 64291, Oct. 26, 2000] § 1908.7 Relationship to enforcement. (a) Independence. (2) The consultative activity shall have its own identifiable managerial staff. In States with Plans approved under section 18 of the Act, this staff will be separate from the managing of compliance inspections and scheduling. (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. (2) The consultant shall terminate an onsite consultative visit already in progress where one of the following kinds of OSHA compliance inspections is about to take place: (i) Imminent danger investigations; (ii) Fatality/catastrophe investigations; (iii) Complaint investigations; (iv) Other critical inspections as determined by the Assistant Secretary. (3) An onsite consultation visit may not take place while an OSHA enforcement inspection is in progress at the establishment. An enforcement inspection shall be deemed “in progress” from the time a compliance officer initially seeks entry to the workplace to the end of the closing conference. An enforcement inspection will also be considered “in progress” in cases where entry is refused, until such times as: the inspection is conducted; the RA determines that a warrant to require entry to the workplace will not be sought; or the RA determines that allowing a consultative visit to proceed is in the best interest of employee safety and health. An onsite consultative visit shall not take place subsequent to an OSHA enforcement inspection until a determination has been made that no citation will be issued, or if a citation is issued, onsite consultation shall only take place with regard to those citation items which have become final orders. (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. (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. (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 other-than-serious hazards as well as serious hazards. (c) Effect upon enforcement. (2) The hazard identification and correction assistance given by a State consultant, or the failure of a consultant to point out a specific hazard, or other possible errors or omissions by the consultant, shall not be binding upon a compliance officer and need not affect the regular conduct of a compliance inspection or preclude the finding of alleged violations and the issuance of citations, or constitute a defense to any enforcement action. (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. (4) If, however, the employer chooses to provide a copy of the consultant's report to a compliance officer, it may be used as a factor in determining the extent to which an inspection is required and as a factor in determining proposed penalties. When, during the course of a compliance inspection, an OSHA compliance officer identifies the existence of serious hazards previously identified as a result of a consultative visit, the Area Director shall have authority to assess minimum penalties if the employer is in good faith complying with the recommendations of a consultant after such consultative visit. (Approved by the Office of Management and Budget under control number 1218-0110) [49 FR 25094, June 19, 1984, as amended at 54 FR 24333, June 7, 1989; 65 FR 64292, Oct. 26, 2000] § 1908.8 Consultant specifications. (a) Number. (2) States shall make efforts to utilize consultants with the safety and health expertise necessary to properly meet the demand for consultation by the various industries within a State. The RA will determine and negotiate a reasonable balance with the State on an annual basis. (b) Qualifications. (2) Minimum requirements of consultants shall include the following: (i) The ability to identify hazards; the ability to assess employee exposure and risk; knowledge of OSHA standards; knowledge of hazard correction techniques and practices; knowledge of workplace safety and health program requirements; and the ability to effectively communicate, both orally and in writing. (ii) Consultants shall meet any additional degree and/or experience requirements as may be established by the Assistant Secretary. (c) Training. § 1908.9 Monitoring and evaluation. (a) Assistant Secretary responsibility. (b) Consultant performance State activity. (i) Operation of the system shall conform to all requirements established by the Assistant Secretary. The system shall be approved by the Assistant Secretary before it is placed in operation. (ii) A performance evaluation of each State consultant performing consultation services for employers shall be prepared annually. All aspects of a consultant's performance shall be reviewed at that time. Recommendation for remedial action shall be made and acted upon. The annual evaluation report shall be a confidential State personnel record and may be timed to coincide with regular personnel evaluations. (iii) Performance of individual consultants shall be measured in terms of their ability to identify hazards in the workplaces which they have visited; their ability to determine employee exposure and risk, and in particular their performance under § 1908.6 (e) and (f); their knowledge and application of applicable Federal or State statutes, regulations or standards; their knowledge and application of appropriate hazard correction techniques and approaches; their knowledge and application of the requirements of an effective workplace safety and health program; and their ability to communicate effectively their findings and recommendations and the reasons for them to employers, and relevant information, skills and techniques to employers and employees. (iv) Accompanied visits to observe consultants during onsite consultative visits shall be conducted periodically in accord with a plan established in each annual Cooperative Agreement. The State may also conduct unaccompanied visits to workplaces which received onsite consultation, for the purpose of evaluating consultants. A written report of each visit shall be provided to the consultant. These visits shall be conducted only with the expressed permission of the employer who requests the onsite consultative visit. (v) The State will report quarterly to the RA on system operations, including copies of accompanied visit reports completed that quarter. (2) Federal activity. (c) State reporting. (Approved by the Office of Management and Budget under control number 1218-0110) [49 FR 25094, June 19, 1984, as amended at 54 FR 24333, June 7, 1989] § 1908.10 Cooperative Agreements. (a) Who may make Agreements. (b) Negotiations. (2) States with Plans approved under section 18 of the Act may initiate negotiations in anticipation of the withdrawal from the Plan of Federally funded onsite consultation services to private sector employers. (3) Renegotiation of existing Agreements funded under this part shall be initiated within 30 days of the effective date of these revisions. (c) Contents of Cooperative Agreement. (2) Each Agreement shall provide that the State will conform its operations under the Agreement to: (i) The requirements contained in this part 1908; (ii) All related formal directives subsequently issued by the Assistant Secretary implementing this regulation. (3) Each Agreement shall contain such other explicit written commitments in conformance with the provisions of this part as may be required by the Assistant Secretary. Each Agreement shall also include a budget of the State's anticipated expenditures under the Agreement, in the detail and format required by the Assistant Secretary. (d) Location of sample Cooperative Agreement. (e) Action upon requests. (f) Termination. (Approved by the Office of Management and Budget under control number 1218-0110) [49 FR 25094, June 19, 1984, as amended at 54 FR 24333, June 7, 1989] § 1908.11 Exclusions. A Cooperative Agreement under this part will not restrict in any manner the authority and responsibility of the Assistant Secretary under sections 8, 9, 10, 13, and 17 of the Act, or any corresponding State authority.