Consultation Agreements: Proposed Changes to Consultation Procedures, 54064-54069 [2010-22058]
Download as PDF
54064
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules
Innovation, Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502–
8931, Caroline.Daly@ferc.gov.
Helen Dyson (Legal Information), Office
of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, (202) 502–8856,
helen.dyson@ferc.gov.
SUPPLEMENTARY INFORMATION:
Supplemental Notice of Technical
Conference and Notice of Comment
Date
• August 27, 2010
Take notice that on September 13,
2010, the Federal Energy Regulatory
Commission will convene a staff-led
technical conference regarding two
issues pertaining to demand response
compensation, as previously
announced: (1) If the Commission were
to adopt a net benefits test for
determining when to compensate
demand response providers, what, if
any, requirements should apply to the
methods for determining net benefits;
and (2) what, if any, requirements
should apply to how the costs of
demand response are allocated.1
Comments concerning matters
addressed at the technical conference
and other issues related to this
proceeding are due on or before October
13, 2010. Details concerning the
technical conference and comment
procedures are set forth below.
erowe on DSK5CLS3C1PROD with PROPOSALS-1
I. Technical Conference
The technical conference will be held
on September 13, 2010, starting at 9 a.m.
(EST), in the Commission Meeting
Room at the Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426. The conference
will be open for the public to attend and
advance registration is not required.
Members of the Commission may attend
the conference.
As indicated in the Supplemental
NOPR, the panelists are invited to
discuss their views on the possible
adoption of a net benefits test, including
the methodologies for determining net
benefits, and a methodology for
allocating the costs of demand response.
In addition to the above-referenced
issues and other matters directly
1 Demand Response Compensation in Organized
Wholesale Energy Markets, Notice of Proposed
Rulemaking, 75 FR 15,362, 130 FERC ¶ 61,213
(issued March 18, 2010), as supplemented by
Supplemental Notice of Proposed Rulemaking and
Notice of Technical Conference (Supplemental
Notice), 75 FR 47,499, 132 FERC ¶ 61,094 (issued
August 2, 2010). As stated in the Supplemental
Notice, comments are due within 30 days of the
date of the technical conference. Supplemental
Notice P 19.
VerDate Mar<15>2010
19:49 Sep 02, 2010
Jkt 220001
relevant to this proceeding, discussions
at the public technical conference may
relate to matters pending in the
following additional proceedings:
Docket No. ER10–765–000, California
Independent System Operator, Inc.
(CAISO); and Docket Nos. ER09–1049–
000, ER09–1049–002, and ER09–1049–
003, Midwest Independent System
Operator, Inc.
The agenda for this conference is
attached. If any changes occur, the
revised agenda will be posted on the
Calendar of Events page on the
Commission’s Web site, https://
www.ferc.gov, prior to the event. To
ensure that all speakers have an
opportunity to address the issues, and to
have ample time for discussion,
speakers are asked to limit their opening
remarks to five minutes. Speakers are
requested to file their opening remarks
in this docket and to bring 30 copies to
the conference.
Transcripts of the conference will be
available immediately for a fee from Ace
Reporting Company (202–347–3700 or
1–800–336–6646). They will be
available for free on the Commission’s
eLibrary system and on the Calendar of
Events approximately one week after the
conference.
A free Webcast of the technical
conference in this proceeding will be
available. Anyone with Internet access
interested in viewing this conference
can do so by navigating to https://
www.ferc.gov’s Calendar of Events and
locating the appropriate event in the
Calendar. The Calendar of Events will
contain a link to the applicable Webcast
option. The Capitol Connection
provides technical support for the
Webcasts and offers the option of
listening to the conferences via phonebridge for a fee. If you have any
questions, visit https://
www.CapitolConnection.org or call (703)
993–3100.
Commission conferences are
accessible under section 508 of the
Rehabilitation Act of 1973. For
accessibility accommodations, please
send an e-mail to accessibility@ferc.gov
or call toll free 1–866–208–3372 (voice)
or 202–208–1659 (TTY), or send a FAX
to 202–208–2106 with the required
accommodations.
For more information about the
technical conference or comment
procedures, please contact:
David Hunger (Technical Information),
Office of Energy Policy and
Innovation, Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502–
8148, David.Hunger@ferc.gov.
Caroline Daly (Technical Information)
Office of Energy Policy and
Innovation, Federal Energy Regulatory
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502–
8931, Caroline.Daly@ferc.gov.
Helen Dyson (Legal Information), Office
of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, (202) 502–8856,
Helen.Dyson@ferc.gov.
Kimberly D. Bose,
Secretary.
[FR Doc. 2010–21974 Filed 9–2–10; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1908
[Docket No. OSHA–2010–0010]
RIN 1218–AC32
Consultation Agreements: Proposed
Changes to Consultation Procedures
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Proposed rule.
AGENCY:
OSHA is proposing to revise
its regulations for the federally-funded
On-site Consultation Program to: Clarify
the ability of the Assistant Secretary to
define sites which would receive
inspections regardless of Safety and
Health Achievement and Recognition
Program (SHARP) exemption status;
allow Compliance Safety and Health
Officers to proceed with enforcement
visits resulting from referrals at sites
undergoing Consultation visits and at
sites that have been awarded SHARP
status; and, limit the deletion period
from OSHA’s programmed inspection
schedule for those employers
participating in the SHARP program.
DATES: Written comments must be
submitted on or before November 2,
2010.
ADDRESSES: Written comments: You may
submit comments, identified by docket
number OSHA–2010–0010, or
regulatory information number (RIN)
1218–AC32, by any of the following
methods:
Electronically: You may submit
comments, and attachments
electronically at https://
www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the
instructions on-line for making
electronic submissions;
Fax: If your submission, including
attachments, does not exceed 10 pages,
SUMMARY:
E:\FR\FM\03SEP1.SGM
03SEP1
erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules
you may fax them to the OSHA Docket
Office at (202) 693–1648; or
Mail, hand delivery, express mail,
messenger or courier service: You must
submit your comments, and attachments
to the OSHA Docket Office, Docket
Number OSHA–2010–0010, U.S.
Department of Labor, Room N–2625,
200 Constitution Avenue, NW.,
Washington, DC 20210; telephone (202)
693–2350 (OSHA’s TTY number is (877)
889–5627). Deliveries (hand, express
mail, messenger and courier service) are
accepted during the Department of
Labor’s and Docket Office’s normal
business hours, 8:15 a.m.–4:45 p.m., e.t.
Instructions for submitting comments:
All submissions must include the
docket number (Docket No. OSHA–
2010–0010) or the RIN number (RIN
1218–AC32) for this rulemaking.
Because of security-related procedures,
submission by regular mail may result
in significant delay. Please contact the
OSHA Docket Office for information
about security procedures for making
submissions by hand delivery, express
delivery and messenger or courier
service.
All comments, including any personal
information you provide, are placed in
the public docket without change and
may be made available online at
https://www.regulations.gov. Therefore,
OSHA cautions you about submitting
personal information such as social
security numbers and birthdates. For
further information on submitting
comments, plus additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading in the
SUPPLEMENTARY INFORMATION section of
this notice.
Docket: To read or download
submissions in response to this Federal
Register notice, go to docket number
OSHA–2010–0010, at https://
www.regulations.gov. All submissions
are listed in the https://
www.regulations.gov index, however
some information (e.g., copyrighted
material) is not publicly available to
read or download through that Web
page. All submissions, including
copyrighted material, are available for
inspection and copying at the OSHA
Docket Office.
Electronic copies of this Federal
Register document are available at
https://www.regulations.gov. This
document as well as news releases and
other relevant information, is available
at OSHA’s Web page at https://
www.osha.gov.
For
press inquiries: MaryAnn Garrahan,
Acting Director, OSHA, Office of
Communications, Room N–3647, U.S.
FOR FURTHER INFORMATION CONTACT:
VerDate Mar<15>2010
15:30 Sep 02, 2010
Jkt 220001
Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210;
telephone (202) 693–1999. For general
and technical information: Steven F.
Witt, Director, OSHA Directorate of
Cooperative and State Programs, Room
N–3700, U.S. Department of Labor 200
Constitution Avenue, NW., Washington
DC 20210; telephone: (202) 693–2200.
SUPPLEMENTARY INFORMATION:
I. Background: The OSHA On-Site
Consultation Program
The Occupational Safety and Health
Administration (OSHA), through
cooperative agreements with agencies in
48 states, the District of Columbia and
several U.S. territories, administers and
provides Federal funding for the On-site
Consultation Program. In the states of
Kentucky and Washington, and in the
Commonwealth of Puerto Rico, on-site
consultation services are provided to
employers in the private sector as part
of an OSHA-approved state plan funded
by Federal grants under section 23(g) of
the Occupational Safety and Health
(OSH) Act. The On-site Consultation
Program provides well-trained
professional safety and health
personnel, at no cost and upon request
of an employer, to conduct worksite
visits to identify occupational hazards
and provide advice on compliance with
OSHA regulations and standards.
Priority in providing on-site
consultation visits is accorded to
smaller employers in more hazardous
industries.
The On-site Consultation Program
was first authorized by Congressional
appropriations action in 1974. On July
16, 1998, The On-site Consultation
Program was codified as a new
subsection of 21(d) of the Occupational
Safety and Health Act with the
enactment of the Occupational Safety
and Health Administration Compliance
Assistance Authorization Act (CAAA),
Public Law 105–197. OSHA’s On-site
Consultation Program is administered in
accordance with regulations at § 1908.
These regulations provide, among other
things, rules and procedures for State
consultants performing worksite visits.
Following the successful completion of
an on-site consultation visit, employers
may seek to participate in OSHA
Consultation’s SHARP (Safety and
Health Achievement Recognition
Program). The program recognizes
employers who have demonstrated
exemplary achievements in workplace
safety and health by receiving a
comprehensive safety and health
consultation visit, correcting all
workplace safety and health hazards,
adopting and implementing effective
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
54065
safety and health management systems,
and agreeing to request further
consultative visits if major changes in
working conditions or processes occur
that may introduce new hazards. Part
1908 currently allows employers
meeting these specific program
requirements an exemption from
programmed OSHA inspections for one
year.
In this Federal Register notice, OSHA
proposes revisions to these rules and
procedures, as well as poses questions,
and requests interested members of the
public to submit any data, views, or
arguments relevant to these proposed
changes, during a 60-day public
comment period.
II. Proposed Changes to 29 CFR Part
1908
Revisions Delineating the Relationship
With OSHA Enforcement
1. Other Critical Inspections
Under current § 1908.7(b)(4)(ii),
although worksites granted Safety and
Health Achievement Recognition
Program (SHARP) status and those
working towards achieving SHARP
status (Pre-SHARP) are either deleted or
deferred from the programmed
inspection lists, they are still eligible for
non-programmed inspections in the
following categories:
A. Imminent danger.
B. Fatality/Catastrophe.
C. Formal Complaints.
At times, however, special
circumstances may make it necessary to
conduct an inspection or investigation
at an establishment ordinarily exempt
because of the employer’s participation
in the OSHA On-site Consultation
Program. One such situation might arise
in connection with workplace accidents
that generate widespread public concern
about a particular hazard or substance.
As part of a national response to these
hazards, OSHA may need to conduct
programmed inspections of all sites
within a specific industry. An onsite
OSHA investigation might also be
appropriate in the rare circumstance
where a subsequent accident or other
event at a particular establishment
makes it advisable for OSHA to revisit
the site. For this reason OSHA is
proposing the addition of a fourth
category, ‘‘other critical inspections as
determined by the Assistant Secretary,’’
to the list of permissible inspections for
worksites which have otherwise been
deleted or deferred from programmed
inspection lists as a result of SHARP or
Pre-SHARP participation. Although
Section 21(d) does not contain an
explicit exception to allow for
programmed inspections under these
E:\FR\FM\03SEP1.SGM
03SEP1
54066
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules
circumstances, it does allow OSHA
discretion related to programmed
exceptions by stating that an employer
‘‘may’’ be exempt from an inspection if
the employer meets the criteria for
recognition and exemption delineated
by the statute. This addition is also
consistent with current requirements of
part 1908, as this particular exception
already exists in § 1908.7(b)(2)(iv),
which provides the same criteria for
termination of an ‘‘in progress’’
consultation visit. It is not possible to
define or predict every circumstance
where an investigation may be
necessary at a site that is deferred or
deleted from OSHA’s programmed
inspection lists as a result of
consultation activity; accordingly, the
exception is worded in very general
terms. To ensure this exception is
applied only in exceptional
circumstances where an onsite
investigation is clearly warranted, such
investigations must be approved by the
Assistant Secretary.
In addition, current § 1908.7(b)(2) is
internally inconsistent with the
provisions related to pre-SHARP and
SHARP in its use of the term
‘‘Complaints’’ as opposed to ‘‘Formal
Complaints’’ used in current
§ 1908.7(b)(4)(ii) when describing the
categories in which an employer with
an in-progress consultation visit may be
subject to termination of the visit and a
subsequent enforcement inspection.
While such distinctions do exist
between the terms ‘‘Formal Complaints’’
and ‘‘Complaints,’’ OSHA general
enforcement policy treats all types of
complaints in a similar fashion. As a
result, OSHA does not need to
distinguish between Formal Complaints
and Complaints when ascertaining the
need to interrupt ‘‘in progress’’ or
SHARP visits. Therefore, for
consistency, OSHA is proposing to use
the same language and descriptions for
the interruptions to all consultation
visits.
erowe on DSK5CLS3C1PROD with PROPOSALS-1
2. Referrals
OSHA proposes to add a new category
which will allow for termination of an
in-progress onsite consultative visit, as
well as enforcement inspections at
worksites that are otherwise in preSHARP or SHARP status. Under the
current provisions of part 1908,
enforcement activity may be initiated
under the following categories:
(i) Imminent danger investigations;
(ii) Fatality/catastrophe
investigations;
(iii) Complaint investigations;
(iv) Other critical inspections as
determined by the Assistant Secretary.
VerDate Mar<15>2010
15:30 Sep 02, 2010
Jkt 220001
Current OSHA enforcement policy
allows inspections to be initiated
following a referral and are considered
a type of non-programmed inspection,
similar to a complaint. In some
instances, referrals may identify hazards
or suspected hazards that will
necessitate termination of consultation
activity to allow for a non-programmed
enforcement inspection of that
particular worksite. With this change,
referrals will now be a basis to initiate
enforcement activity at worksites
subject to deferrals or deletions from
programmed inspections as a result of
either an in progress consultation visit,
or a worksite in pre-SHARP or SHARP
status. As a result of the above changes,
unprogrammed inspections will be
treated consistently for ‘‘in progress’’
interruptions and interruptions of
SHARP and Pre-SHARP status, and will
occur at the discretion of the Regional
Administrator (RA).
3. Removal From Programmed
Inspection Schedules
OSHA is proposing to revise
paragraph § 1908.7(b)(4), Programmed
Inspection Schedule, to change the
deletion period from OSHA’s
programmed inspections list. The
regulation currently states that
employers will have their names
removed from OSHA’s programmed
inspection schedule for a period of ‘‘not
less than one year.’’ Today’s proposed
rule would amend the wording in part
1908 to more closely conform to the
exemption period prescribed by section
21(d) of the Occupational Safety and
Health Act, and would provide that an
employer that meets the requirements
set forth in section 21(d) will have the
name of its establishment removed from
the general schedule inspection list for
a period of one year.
The proposed rule would also address
the issue of inspection exemptions
beyond one year. While 21(d) authorizes
a one-year exemption for a consultation
participant that successfully meets the
listed criteria, OSHA retains wide
discretion under other provisions of the
OSH Act to set priorities and establish
inspection schedules. Section 8(g) of the
Act empowers OSHA to issue rules and
regulations dealing with the inspection
of work establishments. Department of
Labor v. Kast Metals Corp. 744 F.2d
1145, 1151 (5th Cir. 1984). The agency
will never have sufficient staff to
inspect every establishment, and has
authority under the OSH Act to
schedule programmed inspections in a
way that makes efficient use of its
compliance resources where they can
have the greatest impact on worker
safety. Industrial Steel Prod. Co. v.
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
OSHA, 845 F.2d 1330, 1331 (5th Cir.
1988). Rearranging the priority of
particular establishments within an
inspection plan is reasonable and
permissible ‘‘because it furthers OSHA’s
legitimate goal of efficient resource
allocation.’’ Id. Many specialized
inspection plans developed by OSHA,
such as National Emphasis Programs,
require investigation of hazards that
potentially exist at many thousands of
establishments across the country.
Having the resources to conduct only a
finite number of programmed
inspections, OSHA must direct its
resources to those establishments most
likely to present uncorrected hazards.
Thus, for example, instead of inspecting
a facility that has had a wall-to-wall
visit by an On-site Consultation
professional in the past two years,
OSHA may reasonably decide to inspect
an establishment that has had no OSHA
intervention of any kind. Accordingly,
existing policy allows for deletion
periods extending beyond one year.
While acknowledging OSHA’s lawful
discretion to establish inspection
programs that provide for deletions from
the programmed inspection schedule
beyond the basic one-year programmed
inspection deletion under 21(d), the
proposed rule would place a one-year
limit on such additional deletions. An
employer’s fulfillment of the SHARP
participation requirements involve
completing all the steps described in
21(d), a process that can take three years
or more. Small businesses, which are
the focus of the consultation program,
are extremely dynamic and changeable.
Small enterprises can more quickly
change their operations, equipment and
safety procedures without the
investment of time and materials that a
larger business might require.
OSHA recognizes that employer
participation in voluntary programs
such as SHARP contributes greatly to
the statutory goal of eliminating
hazards, and enables the agency to
better allocate its scarce compliance
resources. However, it is also important
that OSHA retain authority to conduct
programmed inspections, and that
establishments be aware they may be
the subject of such an inspection. Such
awareness may itself be an incentive for
vigorous compliance efforts. See Reich
v. OSHRC, 102 F.3d 1200, 1203 (11th
Cir. 1997). On balance, OSHA believes
that, after the expiration of the one-year
inspection exemption provided under
21(d), the name of an establishment may
be deleted from the programmed
inspection schedule for no more than
one additional year.
E:\FR\FM\03SEP1.SGM
03SEP1
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules
4. Clarification of Terminology
Along with the changes proposed
above, OSHA also wishes to clarify
terminology used in Part 1908. Thus,
the types of enforcement exemptions for
which a worksite may be eligible after
receiving a safety and health
consultation visit should be defined and
described in the same terminology used
in the Site Specific Targeting (SST) and
other OSHA enforcement guidance.
OSHA is proposing, for consistency
with terminology used in enforcement
programs such as the SST, to use the
terms ‘‘deferral’’ and ‘‘deletion’’ when
describing exemptions from
programmed inspections. Any deferrals
and deletions are subject to the time
periods specified in the proposal and
not limited by inspection lists under the
SST.
III. Preliminary Economic Analysis
OSHA’s On-site Consultation Program
is voluntary, both for employers who
seek this no-cost service and for States
that provide it. The goal of the proposed
revisions to existing Consultation
Agreement regulations is to: (a) Clarify
the ability of the Assistant Secretary to
define sites which would receive
inspections regardless of Safety and
Health Achievement and Recognition
Program (SHARP) exemption status;
(b) allow Compliance Safety and Health
Officers to proceed with enforcement
visits resulting from referrals at sites
undergoing Consultation visits and at
sites that have been awarded SHARP
status; (c) limit the deletion period from
OSHA’s programmed inspection
schedule for those employers
participating in the SHARP program.
OSHA finds that the proposed revisions
will not impose any new cost on
affected employers.
The Agency has not quantified the
potential cost reductions to employers
or benefits to employees from the
proposed revisions to the existing rule.
The Agency has preliminarily
concluded that no additional costs will
be imposed on employers who choose to
utilize State On-site Consultation
project services and, therefore, no
adverse economic impact on those
employers is foreseen.
erowe on DSK5CLS3C1PROD with PROPOSALS-1
IV. Executive Order 12866
In terms of economic impact, the rule
being proposed 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
single sector of the economy; interfere
with the programs of other Agencies;
VerDate Mar<15>2010
15:30 Sep 02, 2010
Jkt 220001
materially affect the budgetary impact of
grant or entitlement programs; nor result
in other adverse effects of the kind
specified in the Executive Order.
V. Regulatory Flexibility Act
Certification
The On-site Consultation Program is
designed to aid small employers, the
same population identified for the
protections of the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.). Since
the proposed revisions do not impose
new costs on small employers, the
Assistant Secretary certifies that the
regulation will not have a significant
economic impact on a substantial
number of small entities. Participation
in the On-site Consultation Program
both by States and employers is
voluntary. State agencies that have
elected to furnish On-site Consultation
services under cooperative agreements
with OSHA are not covered entities
under the RFA. Since the On-site
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 proposal should
have no measurable economic impact
on employers.
VI. Environmental Impact
The proposed standard has been
reviewed in accordance with the
requirements of the National
Environmental Policy Act (NEPA) of
1969 (42 U.S.C. 4321 et seq.), the
regulations of the Council on
Environmental Quality (CEQ) (40 CFR
part 1500), and Department of Labor
(DOL) NEPA Procedures (29 CFR part
11). The provisions of the rule focus on
policies pertaining to exemptions from
programmed OSHA inspections.
Consequently, no major negative impact
associated with the rule is foreseen on
air, water or soil quality, plant or animal
life, the use of land or other aspects of
the environment.
VII. Unfunded Mandates
For the purposes of the Unfunded
Mandates Reform Act of 1995, as well
as Executive Order 12875, this proposed
rule does not include any Federal
mandate that may result in increased
expenditures by State, local, and/or
tribal governments, or increased
expenditures by the private sector of
more than $100 million in any year.
VIII. Paperwork Reduction Act
After a thorough analysis of the
proposed revisions to part 1908, OSHA
believes that the proposal imposes no
PO 00000
Frm 00020
Fmt 4702
Sfmt 4702
54067
new collection-of-information
requirements (i.e., paperwork). The
current collections-of-information for
On-site Consultation Agreements (part
1908) are approved under Office of
Management and Budget Control
Number 1218–0110.
The proposed rule clarifies the ability
of the Assistant Secretary to define sites
which would receive inspections,
allows referrals to initiate inspections at
sites that are currently undergoing a
consultative visit, and asks the question
as to how long a deletion period from
the programmed OSHA inspection
schedule for those employers working
towards or participating in OSHA’s
recognition and exemption program
should last.
On-site Consultation Program visits
generally impose no paperwork
requirements on employers.
Specifically, all that is asked of the
employer is that the employer agrees to
correct all serious hazards identified
during the inspection and post a list of
serious hazards identified during the
visit. Alternatively (as noted in the Onsite Consultation Agreements’ approved
collection of information package 1218–
0110), there is a paperwork burden on
the State Consultation Projects.
However, the paperwork burden on the
States comes from the On-site
Consultation visit process. The
proposed changes to Part 1908 will not
affect the consultation process, but
rather only the benefits of the program
to employers. As a result, since the
consultation process remains exactly the
same, no new or additional paperwork
burden will be imposed on the States as
a result of the proposed changes to the
rule.
Interested parties who wish to
comment on OSHA’s determination that
this proposal contains no additional
paperwork requirements must send
their written comments to the Office of
Information and Regulatory Affairs,
Attn: OMB Desk Officer for OSHA,
Office of Management and Budget,
Room 10235, 726 Jackson Place, NW.,
Washington, DC 20503. Parties are also
encouraged to submit their comments
on this paperwork determination to
OSHA along with any other comments
on the proposed rule.
IX. Federalism
The proposed revisions to part 1908
have been reviewed under Executive
Order 12612, Federalism (52 FR 41685;
October 30, 1987), which 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
E:\FR\FM\03SEP1.SGM
03SEP1
54068
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules
which potentially affect them. Federal
OSHA meets regularly with
representatives of state-operated On-site
Consultation Programs, both
individually and at meetings of the
National Association of Occupational
Safety and Health Consultation
Programs (OSHCON). 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 issues covered by the
proposed revisions to part 1908 have
been discussed with the States. The
States also have an opportunity to
submit comments during the 60-day
public comment period.
The revisions to part 1908 being
proposed are generally consistent with
the requirements and procedures under
which OSHA and the States have
administered the On-site Consultation
Program for many years. OSHA has
reviewed the proposed revisions and
finds them to be consistent with the
policymaking criteria outlined in
Executive Order 12612. It should be
noted that cooperative agreements
pursuant to section 21(d) 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 [2 U.S.C.
1502, 658(5)]. Under § 1908.1(c) States
and territories operating approved Plans
under section 18 of the Act shall, in
accordance with sections 18(b) and
18(c)(2), 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: (1) A recognition and
exemption program, (2) inspection
deferral policies for employers working
to achieve recognition and exemption
status, and (3) policies for continuing
inspections.
erowe on DSK5CLS3C1PROD with PROPOSALS-1
X. Public Participation
Interested persons including State
Consultation agencies, employers and
employees who have experience with or
an interest in the On-site Consultation
Program are invited to submit written
data, views and arguments with respect
to the proposed amendments part 1908
during a 60-day public comment period.
OSHA is interested, among other things,
in the experiences of State Consultation
agencies and other affected parties
regarding the following matters:
—How would allowing the Assistant
Secretary to define sites which would
VerDate Mar<15>2010
20:08 Sep 02, 2010
Jkt 220001
receive inspections regardless of
SHARP status affect the willingness of
employers to seek SHARP
recognition?
—How would including referrals as a
reason to interrupt Consultation visits
affect employers’ willingness to seek
On-site Consultation Program
services?
—How would limiting the deletion
period from the programmed
inspection list for employers
achieving SHARP affect the On-site
Consultation Program?
—What would be the implications of
eliminating the awarding of deferrals
for those working to achieve SHARP
recognition status?
—Are there different resource
implications dependent on the length
of the deletion period?
Comments must be received on or
before November 2, 2010, and two
copies must be submitted to the OSHA
Docket Office, Docket No. OSHA–2010–
0010, U.S. Department of Labor, Room
N–2625, 200 Constitution Ave., NW.,
Washington, DC 20210. Comments
under 10 pages long may be sent via
FAX to (202) 693–2527 but must be
followed by an original in a mailed
submission. Written submissions must
clearly identify the issue addressed and
the position taken with regard to each
issue. All comments submitted to the
docket during this proceeding will be
open for public inspection and copying
at the location specified above.
List of Subjects in 29 CFR Part 1908
Occupational safety and health,
Programmed inspection schedule,
Deletion program, Recognition and
exemption, Inspections.
Authority and Signature
This document was prepared under
the direction of David Michaels, PhD
MPH, Assistant Secretary of Labor for
Occupational Safety and Health. It is
issued under sections 7(c), 8, 18, 21(d)
and 23(g) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 656,
657, 667, 670 672) and Secretary of
Labor’s Order No. 6–96 (62 FR 111),
January 2, 1997; No. 3–2000 (65 FR
50017), No. 5–2007 (72 FR 31159).
Signed at Washington, DC, this 27th day of
August 2010.
David Michaels,
Assistant Secretary of Labor for Occupational
Safety and Health.
Part 1908 of Title 29 of the Code of
Federal Regulations is hereby proposed
to be amended as follows:
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
PART 1908—CONSULTATION
AGREEMENTS—[AMENDED]
1. Revise the authority citation for
part 1908 to read as follows:
Authority: Sections 7(c), 8, 18, 21(d) and
23(g) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 656, 657, 667, 670
672) and Secretary of Labor’s Order No. 6–
96 (62 FR 111); No. 3–2000 (65 FR 50017),
No. 5–2007 (72 FR 31159).
2. In § 1908.1, revise paragraph (c) to
read as follows:
§ 1908.1
Purpose and scope.
*
*
*
*
*
(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:
(1) A recognition and exemption
program (§ 1908.7(b)(4)(i)(B));
(2) Inspection deferral policies for
employers working to achieve
recognition and exemption status
(§ 1908.7(b)(4)(i)(A)); and
(3) Policies for continuing inspections
at worksites that have received
exemption status (§ 1908.7(b)(4)(ii)).
3. In § 1908.7, revise paragraphs
(b)(2), (b)(4)(i), and (b)(4)(ii) to read as
follows:
§ 1908.7
Relationship to enforcement.
*
*
*
*
*
(b) * * *
(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 inspections;
(ii) Fatality/catastrophe inspections;
(iii) Complaint inspections;
(iv) Referral inspections as
determined necessary by the RA;
(iv) Other critical inspections as
determined by the Assistant Secretary.
*
*
*
*
*
(4) * * *
(i) Deletion, Deferral, Recognition and
Exemption Programs—(A) Preparation
for Recognition and Exemption
Program. 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 begun to implement all
the elements of an effective safety and
health program; and agrees to request a
E:\FR\FM\03SEP1.SGM
03SEP1
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules
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 one year. The exemption
period will extend from the date of
issuance by the Regional Office of the
certificate of recognition. OSHA may in
its discretion establish inspection
programs that provide for an additional
deletion period, but such additional
deletion period shall not exceed one
year.
(ii) Inspections. OSHA will continue
to make inspections in the following
categories at sites that achieved
recognition status and have been
granted deletions 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 inspections;
(B) Fatality/catastrophe inspections;
(C) Complaint inspections;
(D) Referral inspections as determined
necessary by the RA;
(E) Other critical inspections as
determined by the Assistant Secretary.
*
*
*
*
*
[FR Doc. 2010–22058 Filed 9–2–10; 8:45 am]
BILLING CODE 4510–26–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2010–0265]
RIN 1625—AA09
Drawbridge Operation Regulations;
Curtis Creek, Baltimore, MD
Coast Guard, DHS.
Notice of proposed rulemaking;
withdrawal.
AGENCY:
erowe on DSK5CLS3C1PROD with PROPOSALS-1
ACTION:
The Coast Guard is
withdrawing its notice of proposed
rulemaking concerning the operation of
the Pennington Avenue Bridge, at mile
0.9, across Curtis Creek at Baltimore,
MD. The requested change would have
allowed the bridge to operate from a
remote location at the City of Baltimore
Transportation Management Center. The
SUMMARY:
VerDate Mar<15>2010
15:30 Sep 02, 2010
Jkt 220001
proposed rule is being withdrawn
because of the many concerned
comments sent from the primary
waterway users that transit the bridge.
DATES: The notice of proposed
rulemaking is withdrawn on September
3, 2010.
ADDRESSES: The docket for this
withdrawn rulemaking is available for
inspection or copying at the Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. You may also
find this docket on the Internet by going
to https://www.regulations.gov, inserting
USCG–2010–0265 in the ‘‘Keyword’’ box
and then clicking ‘‘Search’’.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this notice,
call or e-mail Lindsey Middleton, Fifth
Coast Guard District; telephone (757)
398–6629, e-mail
Lindsey.R.Middleton@uscg.mil. If you
have questions on viewing material in
the docket, call Renee V. Wright,
Program Manager, Docket Operations,
telephone 202–366–9826.
SUPPLEMENTARY INFORMATION:
Background
On June 2, 2010, we published an
NPRM entitled ‘‘Drawbridge Operation
Regulation Curtis Creek, Baltimore, MD’’
in the Federal Register (75 FR 30747–
30750). The rulemaking concerned
eliminating the need for a bridge tender
by allowing the bridge to be operated
from a remote location at the City of
Baltimore Transportation Management
Center. This proposed change would
have maintained the bridge’s current
operating schedule set forth in 33 CFR
117.5 that states: Drawbridges shall
open promptly and fully for the passage
of vessels when a request to open is
given.
Withdrawal
The City of Baltimore, the owner of
the Pennington Avenue Bridge, had
requested a change in the operating
procedures to allow the bridge to be
opened from a remote location at the
City of Baltimore Transportation
Management Center.
The Coast Guard received several
comments opposing the proposed rule
change. We conducted a lengthy and
thorough investigation that included a
site visit of the bridge and the Baltimore
City Transportation Management
Center. We also conducted a meeting at
the Coast Guard Yard in Baltimore, MD
with the primary waterway users that
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
54069
transit the bridge, staff from the City of
Baltimore’s Transportation division, and
their contracted consulting company.
Our investigation along with the
majority of the comments revealed that
the rulemaking could impose critical
service delays to the various industries
that rely on a timely bridge opening.
This withdrawal is based on the reason
that this change would not improve the
bridge usage for roadway and waterway
users.
Authority: This action is taken under the
authority of 33 U.S.C. 499; 33 CFR 1.05–1;
Department of Homeland Security Delegation
No. 0170.1.
Dated: August 15, 2010,
William D. Lee,
Rear Admiral, U.S. Coast Guard, Commander,
Fifth Coast Guard District.
[FR Doc. 2010–22034 Filed 9–2–10; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 76
RIN 2900–AN43
U.S. Paralympics Monthly Assistance
Allowance
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
This document proposes to
establish regulations for the payment of
a monthly assistance allowance to
military veterans training to make the
United States Paralympics team, as
authorized by section 703 of the
Veterans’ Benefits Improvement Act of
2008. The proposed rule would
facilitate the payment of a monthly
assistance allowance to a veteran with a
service-connected or nonserviceconnected disability if the veteran is
competing for a slot on or selected for
the United States Paralympics team or is
residing at a United States Paralympics
training center. The proposed rule
would require submission of an
application to establish eligibility for
the allowance and certification by the
United States Paralympics.
DATES: Comments must be received on
or before October 4, 2010.
ADDRESSES: Written comments may be
submitted through https://
www.Regulations.gov; by mail or handdelivery to Director, Regulations
Management (02REG), Department of
Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC
20420; or by fax to (202) 273–9026.
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
SUMMARY:
E:\FR\FM\03SEP1.SGM
03SEP1
Agencies
[Federal Register Volume 75, Number 171 (Friday, September 3, 2010)]
[Proposed Rules]
[Pages 54064-54069]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22058]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1908
[Docket No. OSHA-2010-0010]
RIN 1218-AC32
Consultation Agreements: Proposed Changes to Consultation
Procedures
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: OSHA is proposing to revise its regulations for the federally-
funded On-site Consultation Program to: Clarify the ability of the
Assistant Secretary to define sites which would receive inspections
regardless of Safety and Health Achievement and Recognition Program
(SHARP) exemption status; allow Compliance Safety and Health Officers
to proceed with enforcement visits resulting from referrals at sites
undergoing Consultation visits and at sites that have been awarded
SHARP status; and, limit the deletion period from OSHA's programmed
inspection schedule for those employers participating in the SHARP
program.
DATES: Written comments must be submitted on or before November 2,
2010.
ADDRESSES: Written comments: You may submit comments, identified by
docket number OSHA-2010-0010, or regulatory information number (RIN)
1218-AC32, by any of the following methods:
Electronically: You may submit comments, and attachments
electronically at https://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions on-line for making
electronic submissions;
Fax: If your submission, including attachments, does not exceed 10
pages,
[[Page 54065]]
you may fax them to the OSHA Docket Office at (202) 693-1648; or
Mail, hand delivery, express mail, messenger or courier service:
You must submit your comments, and attachments to the OSHA Docket
Office, Docket Number OSHA-2010-0010, U.S. Department of Labor, Room N-
2625, 200 Constitution Avenue, NW., Washington, DC 20210; telephone
(202) 693-2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand,
express mail, messenger and courier service) are accepted during the
Department of Labor's and Docket Office's normal business hours, 8:15
a.m.-4:45 p.m., e.t.
Instructions for submitting comments: All submissions must include
the docket number (Docket No. OSHA-2010-0010) or the RIN number (RIN
1218-AC32) for this rulemaking. Because of security-related procedures,
submission by regular mail may result in significant delay. Please
contact the OSHA Docket Office for information about security
procedures for making submissions by hand delivery, express delivery
and messenger or courier service.
All comments, including any personal information you provide, are
placed in the public docket without change and may be made available
online at https://www.regulations.gov. Therefore, OSHA cautions you
about submitting personal information such as social security numbers
and birthdates. For further information on submitting comments, plus
additional information on the rulemaking process, see the ``Public
Participation'' heading in the SUPPLEMENTARY INFORMATION section of
this notice.
Docket: To read or download submissions in response to this Federal
Register notice, go to docket number OSHA-2010-0010, at https://www.regulations.gov. All submissions are listed in the https://www.regulations.gov index, however some information (e.g., copyrighted
material) is not publicly available to read or download through that
Web page. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.
Electronic copies of this Federal Register document are available
at https://www.regulations.gov. This document as well as news releases
and other relevant information, is available at OSHA's Web page at
https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT: For press inquiries: MaryAnn Garrahan,
Acting Director, OSHA, Office of Communications, Room N-3647, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-1999. For general and technical information:
Steven F. Witt, Director, OSHA Directorate of Cooperative and State
Programs, Room N-3700, U.S. Department of Labor 200 Constitution
Avenue, NW., Washington DC 20210; telephone: (202) 693-2200.
SUPPLEMENTARY INFORMATION:
I. Background: The OSHA On-Site Consultation Program
The Occupational Safety and Health Administration (OSHA), through
cooperative agreements with agencies in 48 states, the District of
Columbia and several U.S. territories, administers and provides Federal
funding for the On-site Consultation Program. In the states of Kentucky
and Washington, and in the Commonwealth of Puerto Rico, on-site
consultation services are provided to employers in the private sector
as part of an OSHA-approved state plan funded by Federal grants under
section 23(g) of the Occupational Safety and Health (OSH) Act. The On-
site Consultation Program provides well-trained professional safety and
health personnel, at no cost and upon request of an employer, to
conduct worksite visits to identify occupational hazards and provide
advice on compliance with OSHA regulations and standards. Priority in
providing on-site consultation visits is accorded to smaller employers
in more hazardous industries.
The On-site Consultation Program was first authorized by
Congressional appropriations action in 1974. On July 16, 1998, The On-
site Consultation Program was codified as a new subsection of 21(d) of
the Occupational Safety and Health Act with the enactment of the
Occupational Safety and Health Administration Compliance Assistance
Authorization Act (CAAA), Public Law 105-197. OSHA's On-site
Consultation Program is administered in accordance with regulations at
Sec. 1908. These regulations provide, among other things, rules and
procedures for State consultants performing worksite visits. Following
the successful completion of an on-site consultation visit, employers
may seek to participate in OSHA Consultation's SHARP (Safety and Health
Achievement Recognition Program). The program recognizes employers who
have demonstrated exemplary achievements in workplace safety and health
by receiving a comprehensive safety and health consultation visit,
correcting all workplace safety and health hazards, adopting and
implementing effective safety and health management systems, and
agreeing to request further consultative visits if major changes in
working conditions or processes occur that may introduce new hazards.
Part 1908 currently allows employers meeting these specific program
requirements an exemption from programmed OSHA inspections for one
year.
In this Federal Register notice, OSHA proposes revisions to these
rules and procedures, as well as poses questions, and requests
interested members of the public to submit any data, views, or
arguments relevant to these proposed changes, during a 60-day public
comment period.
II. Proposed Changes to 29 CFR Part 1908
Revisions Delineating the Relationship With OSHA Enforcement
1. Other Critical Inspections
Under current Sec. 1908.7(b)(4)(ii), although worksites granted
Safety and Health Achievement Recognition Program (SHARP) status and
those working towards achieving SHARP status (Pre-SHARP) are either
deleted or deferred from the programmed inspection lists, they are
still eligible for non-programmed inspections in the following
categories:
A. Imminent danger.
B. Fatality/Catastrophe.
C. Formal Complaints.
At times, however, special circumstances may make it necessary to
conduct an inspection or investigation at an establishment ordinarily
exempt because of the employer's participation in the OSHA On-site
Consultation Program. One such situation might arise in connection with
workplace accidents that generate widespread public concern about a
particular hazard or substance. As part of a national response to these
hazards, OSHA may need to conduct programmed inspections of all sites
within a specific industry. An onsite OSHA investigation might also be
appropriate in the rare circumstance where a subsequent accident or
other event at a particular establishment makes it advisable for OSHA
to revisit the site. For this reason OSHA is proposing the addition of
a fourth category, ``other critical inspections as determined by the
Assistant Secretary,'' to the list of permissible inspections for
worksites which have otherwise been deleted or deferred from programmed
inspection lists as a result of SHARP or Pre-SHARP participation.
Although Section 21(d) does not contain an explicit exception to allow
for programmed inspections under these
[[Page 54066]]
circumstances, it does allow OSHA discretion related to programmed
exceptions by stating that an employer ``may'' be exempt from an
inspection if the employer meets the criteria for recognition and
exemption delineated by the statute. This addition is also consistent
with current requirements of part 1908, as this particular exception
already exists in Sec. 1908.7(b)(2)(iv), which provides the same
criteria for termination of an ``in progress'' consultation visit. It
is not possible to define or predict every circumstance where an
investigation may be necessary at a site that is deferred or deleted
from OSHA's programmed inspection lists as a result of consultation
activity; accordingly, the exception is worded in very general terms.
To ensure this exception is applied only in exceptional circumstances
where an onsite investigation is clearly warranted, such investigations
must be approved by the Assistant Secretary.
In addition, current Sec. 1908.7(b)(2) is internally inconsistent
with the provisions related to pre-SHARP and SHARP in its use of the
term ``Complaints'' as opposed to ``Formal Complaints'' used in current
Sec. 1908.7(b)(4)(ii) when describing the categories in which an
employer with an in-progress consultation visit may be subject to
termination of the visit and a subsequent enforcement inspection. While
such distinctions do exist between the terms ``Formal Complaints'' and
``Complaints,'' OSHA general enforcement policy treats all types of
complaints in a similar fashion. As a result, OSHA does not need to
distinguish between Formal Complaints and Complaints when ascertaining
the need to interrupt ``in progress'' or SHARP visits. Therefore, for
consistency, OSHA is proposing to use the same language and
descriptions for the interruptions to all consultation visits.
2. Referrals
OSHA proposes to add a new category which will allow for
termination of an in-progress onsite consultative visit, as well as
enforcement inspections at worksites that are otherwise in pre-SHARP or
SHARP status. Under the current provisions of part 1908, enforcement
activity may be initiated under the following categories:
(i) Imminent danger investigations;
(ii) Fatality/catastrophe investigations;
(iii) Complaint investigations;
(iv) Other critical inspections as determined by the Assistant
Secretary.
Current OSHA enforcement policy allows inspections to be initiated
following a referral and are considered a type of non-programmed
inspection, similar to a complaint. In some instances, referrals may
identify hazards or suspected hazards that will necessitate termination
of consultation activity to allow for a non-programmed enforcement
inspection of that particular worksite. With this change, referrals
will now be a basis to initiate enforcement activity at worksites
subject to deferrals or deletions from programmed inspections as a
result of either an in progress consultation visit, or a worksite in
pre-SHARP or SHARP status. As a result of the above changes,
unprogrammed inspections will be treated consistently for ``in
progress'' interruptions and interruptions of SHARP and Pre-SHARP
status, and will occur at the discretion of the Regional Administrator
(RA).
3. Removal From Programmed Inspection Schedules
OSHA is proposing to revise paragraph Sec. 1908.7(b)(4),
Programmed Inspection Schedule, to change the deletion period from
OSHA's programmed inspections list. The regulation currently states
that employers will have their names removed from OSHA's programmed
inspection schedule for a period of ``not less than one year.'' Today's
proposed rule would amend the wording in part 1908 to more closely
conform to the exemption period prescribed by section 21(d) of the
Occupational Safety and Health Act, and would provide that an employer
that meets the requirements set forth in section 21(d) will have the
name of its establishment removed from the general schedule inspection
list for a period of one year.
The proposed rule would also address the issue of inspection
exemptions beyond one year. While 21(d) authorizes a one-year exemption
for a consultation participant that successfully meets the listed
criteria, OSHA retains wide discretion under other provisions of the
OSH Act to set priorities and establish inspection schedules. Section
8(g) of the Act empowers OSHA to issue rules and regulations dealing
with the inspection of work establishments. Department of Labor v. Kast
Metals Corp. 744 F.2d 1145, 1151 (5th Cir. 1984). The agency will never
have sufficient staff to inspect every establishment, and has authority
under the OSH Act to schedule programmed inspections in a way that
makes efficient use of its compliance resources where they can have the
greatest impact on worker safety. Industrial Steel Prod. Co. v. OSHA,
845 F.2d 1330, 1331 (5th Cir. 1988). Rearranging the priority of
particular establishments within an inspection plan is reasonable and
permissible ``because it furthers OSHA's legitimate goal of efficient
resource allocation.'' Id. Many specialized inspection plans developed
by OSHA, such as National Emphasis Programs, require investigation of
hazards that potentially exist at many thousands of establishments
across the country. Having the resources to conduct only a finite
number of programmed inspections, OSHA must direct its resources to
those establishments most likely to present uncorrected hazards. Thus,
for example, instead of inspecting a facility that has had a wall-to-
wall visit by an On-site Consultation professional in the past two
years, OSHA may reasonably decide to inspect an establishment that has
had no OSHA intervention of any kind. Accordingly, existing policy
allows for deletion periods extending beyond one year.
While acknowledging OSHA's lawful discretion to establish
inspection programs that provide for deletions from the programmed
inspection schedule beyond the basic one-year programmed inspection
deletion under 21(d), the proposed rule would place a one-year limit on
such additional deletions. An employer's fulfillment of the SHARP
participation requirements involve completing all the steps described
in 21(d), a process that can take three years or more. Small
businesses, which are the focus of the consultation program, are
extremely dynamic and changeable. Small enterprises can more quickly
change their operations, equipment and safety procedures without the
investment of time and materials that a larger business might require.
OSHA recognizes that employer participation in voluntary programs
such as SHARP contributes greatly to the statutory goal of eliminating
hazards, and enables the agency to better allocate its scarce
compliance resources. However, it is also important that OSHA retain
authority to conduct programmed inspections, and that establishments be
aware they may be the subject of such an inspection. Such awareness may
itself be an incentive for vigorous compliance efforts. See Reich v.
OSHRC, 102 F.3d 1200, 1203 (11th Cir. 1997). On balance, OSHA believes
that, after the expiration of the one-year inspection exemption
provided under 21(d), the name of an establishment may be deleted from
the programmed inspection schedule for no more than one additional
year.
[[Page 54067]]
4. Clarification of Terminology
Along with the changes proposed above, OSHA also wishes to clarify
terminology used in Part 1908. Thus, the types of enforcement
exemptions for which a worksite may be eligible after receiving a
safety and health consultation visit should be defined and described in
the same terminology used in the Site Specific Targeting (SST) and
other OSHA enforcement guidance. OSHA is proposing, for consistency
with terminology used in enforcement programs such as the SST, to use
the terms ``deferral'' and ``deletion'' when describing exemptions from
programmed inspections. Any deferrals and deletions are subject to the
time periods specified in the proposal and not limited by inspection
lists under the SST.
III. Preliminary Economic Analysis
OSHA's On-site Consultation Program is voluntary, both for
employers who seek this no-cost service and for States that provide it.
The goal of the proposed revisions to existing Consultation Agreement
regulations is to: (a) Clarify the ability of the Assistant Secretary
to define sites which would receive inspections regardless of Safety
and Health Achievement and Recognition Program (SHARP) exemption
status; (b) allow Compliance Safety and Health Officers to proceed with
enforcement visits resulting from referrals at sites undergoing
Consultation visits and at sites that have been awarded SHARP status;
(c) limit the deletion period from OSHA's programmed inspection
schedule for those employers participating in the SHARP program. OSHA
finds that the proposed revisions will not impose any new cost on
affected employers.
The Agency has not quantified the potential cost reductions to
employers or benefits to employees from the proposed revisions to the
existing rule. The Agency has preliminarily concluded that no
additional costs will be imposed on employers who choose to utilize
State On-site Consultation project services and, therefore, no adverse
economic impact on those employers is foreseen.
IV. Executive Order 12866
In terms of economic impact, the rule being proposed 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 single 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.
V. Regulatory Flexibility Act Certification
The On-site Consultation Program is designed to aid small
employers, the same population identified for the protections of the
Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). Since the
proposed revisions do not impose new costs on small employers, the
Assistant Secretary certifies that the regulation will not have a
significant economic impact on a substantial number of small entities.
Participation in the On-site Consultation Program both by States and
employers is voluntary. State agencies that have elected to furnish On-
site Consultation services under cooperative agreements with OSHA are
not covered entities under the RFA. Since the On-site 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 proposal should have no measurable economic
impact on employers.
VI. Environmental Impact
The proposed standard has been reviewed in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (CEQ) (40 CFR part 1500), and Department of Labor
(DOL) NEPA Procedures (29 CFR part 11). The provisions of the rule
focus on policies pertaining to exemptions from programmed OSHA
inspections. Consequently, no major negative impact associated with the
rule is foreseen on air, water or soil quality, plant or animal life,
the use of land or other aspects of the environment.
VII. Unfunded Mandates
For the purposes of the Unfunded Mandates Reform Act of 1995, as
well as Executive Order 12875, this proposed rule does not include any
Federal mandate that may result in increased expenditures by State,
local, and/or tribal governments, or increased expenditures by the
private sector of more than $100 million in any year.
VIII. Paperwork Reduction Act
After a thorough analysis of the proposed revisions to part 1908,
OSHA believes that the proposal imposes no new collection-of-
information requirements (i.e., paperwork). The current collections-of-
information for On-site Consultation Agreements (part 1908) are
approved under Office of Management and Budget Control Number 1218-
0110.
The proposed rule clarifies the ability of the Assistant Secretary
to define sites which would receive inspections, allows referrals to
initiate inspections at sites that are currently undergoing a
consultative visit, and asks the question as to how long a deletion
period from the programmed OSHA inspection schedule for those employers
working towards or participating in OSHA's recognition and exemption
program should last.
On-site Consultation Program visits generally impose no paperwork
requirements on employers. Specifically, all that is asked of the
employer is that the employer agrees to correct all serious hazards
identified during the inspection and post a list of serious hazards
identified during the visit. Alternatively (as noted in the On-site
Consultation Agreements' approved collection of information package
1218-0110), there is a paperwork burden on the State Consultation
Projects. However, the paperwork burden on the States comes from the
On-site Consultation visit process. The proposed changes to Part 1908
will not affect the consultation process, but rather only the benefits
of the program to employers. As a result, since the consultation
process remains exactly the same, no new or additional paperwork burden
will be imposed on the States as a result of the proposed changes to
the rule.
Interested parties who wish to comment on OSHA's determination that
this proposal contains no additional paperwork requirements must send
their written comments to the Office of Information and Regulatory
Affairs, Attn: OMB Desk Officer for OSHA, Office of Management and
Budget, Room 10235, 726 Jackson Place, NW., Washington, DC 20503.
Parties are also encouraged to submit their comments on this paperwork
determination to OSHA along with any other comments on the proposed
rule.
IX. Federalism
The proposed revisions to part 1908 have been reviewed under
Executive Order 12612, Federalism (52 FR 41685; October 30, 1987),
which 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
[[Page 54068]]
which potentially affect them. Federal OSHA meets regularly with
representatives of state-operated On-site Consultation Programs, both
individually and at meetings of the National Association of
Occupational Safety and Health Consultation Programs (OSHCON). 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 issues covered by the proposed
revisions to part 1908 have been discussed with the States. The States
also have an opportunity to submit comments during the 60-day public
comment period.
The revisions to part 1908 being proposed are generally consistent
with the requirements and procedures under which OSHA and the States
have administered the On-site Consultation Program for many years. OSHA
has reviewed the proposed revisions and finds them to be consistent
with the policymaking criteria outlined in Executive Order 12612. It
should be noted that cooperative agreements pursuant to section 21(d)
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 [2 U.S.C. 1502,
658(5)]. Under Sec. 1908.1(c) States and territories operating
approved Plans under section 18 of the Act shall, in accordance with
sections 18(b) and 18(c)(2), 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: (1) A recognition and exemption program, (2)
inspection deferral policies for employers working to achieve
recognition and exemption status, and (3) policies for continuing
inspections.
X. Public Participation
Interested persons including State Consultation agencies, employers
and employees who have experience with or an interest in the On-site
Consultation Program are invited to submit written data, views and
arguments with respect to the proposed amendments part 1908 during a
60-day public comment period. OSHA is interested, among other things,
in the experiences of State Consultation agencies and other affected
parties regarding the following matters:
--How would allowing the Assistant Secretary to define sites which
would receive inspections regardless of SHARP status affect the
willingness of employers to seek SHARP recognition?
--How would including referrals as a reason to interrupt Consultation
visits affect employers' willingness to seek On-site Consultation
Program services?
--How would limiting the deletion period from the programmed inspection
list for employers achieving SHARP affect the On-site Consultation
Program?
--What would be the implications of eliminating the awarding of
deferrals for those working to achieve SHARP recognition status?
--Are there different resource implications dependent on the length of
the deletion period?
Comments must be received on or before November 2, 2010, and two
copies must be submitted to the OSHA Docket Office, Docket No. OSHA-
2010-0010, U.S. Department of Labor, Room N-2625, 200 Constitution
Ave., NW., Washington, DC 20210. Comments under 10 pages long may be
sent via FAX to (202) 693-2527 but must be followed by an original in a
mailed submission. Written submissions must clearly identify the issue
addressed and the position taken with regard to each issue. All
comments submitted to the docket during this proceeding will be open
for public inspection and copying at the location specified above.
List of Subjects in 29 CFR Part 1908
Occupational safety and health, Programmed inspection schedule,
Deletion program, Recognition and exemption, Inspections.
Authority and Signature
This document was prepared under the direction of David Michaels,
PhD MPH, Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under sections 7(c), 8, 18, 21(d) and 23(g) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 656, 657, 667,
670 672) and Secretary of Labor's Order No. 6-96 (62 FR 111), January
2, 1997; No. 3-2000 (65 FR 50017), No. 5-2007 (72 FR 31159).
Signed at Washington, DC, this 27th day of August 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Part 1908 of Title 29 of the Code of Federal Regulations is hereby
proposed to be amended as follows:
PART 1908--CONSULTATION AGREEMENTS--[AMENDED]
1. Revise the authority citation for part 1908 to read as follows:
Authority: Sections 7(c), 8, 18, 21(d) and 23(g) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 656, 657, 667,
670 672) and Secretary of Labor's Order No. 6-96 (62 FR 111); No. 3-
2000 (65 FR 50017), No. 5-2007 (72 FR 31159).
2. In Sec. 1908.1, revise paragraph (c) to read as follows:
Sec. 1908.1 Purpose and scope.
* * * * *
(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:
(1) A recognition and exemption program (Sec. 1908.7(b)(4)(i)(B));
(2) Inspection deferral policies for employers working to achieve
recognition and exemption status (Sec. 1908.7(b)(4)(i)(A)); and
(3) Policies for continuing inspections at worksites that have
received exemption status (Sec. 1908.7(b)(4)(ii)).
3. In Sec. 1908.7, revise paragraphs (b)(2), (b)(4)(i), and
(b)(4)(ii) to read as follows:
Sec. 1908.7 Relationship to enforcement.
* * * * *
(b) * * *
(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 inspections;
(ii) Fatality/catastrophe inspections;
(iii) Complaint inspections;
(iv) Referral inspections as determined necessary by the RA;
(iv) Other critical inspections as determined by the Assistant
Secretary.
* * * * *
(4) * * *
(i) Deletion, Deferral, Recognition and Exemption Programs--(A)
Preparation for Recognition and Exemption Program. 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 begun to
implement all the elements of an effective safety and health program;
and agrees to request a
[[Page 54069]]
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 one year. The
exemption period will extend from the date of issuance by the Regional
Office of the certificate of recognition. OSHA may in its discretion
establish inspection programs that provide for an additional deletion
period, but such additional deletion period shall not exceed one year.
(ii) Inspections. OSHA will continue to make inspections in the
following categories at sites that achieved recognition status and have
been granted deletions 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 inspections;
(B) Fatality/catastrophe inspections;
(C) Complaint inspections;
(D) Referral inspections as determined necessary by the RA;
(E) Other critical inspections as determined by the Assistant
Secretary.
* * * * *
[FR Doc. 2010-22058 Filed 9-2-10; 8:45 am]
BILLING CODE 4510-26-P