29 Cfr 1908.7

Occupational Safety and Health Admin., Labor

to eliminate serious hazards,) paragraph (b)(1) of this section (inspection
deferral) and paragraph (b)(4) of this
section (recognition and exemption
program).
(b) Effect upon scheduling. (1) An onsite consultative visit already in
progress will have priority over OSHA
compliance inspections except as provided in paragraph (b)(2) of this section. The consultant and the employer
shall notify the compliance officer of
the visit in progress and request delay
of the inspection until after the visit is
completed. An onsite consultative visit
shall be considered ‘‘in progress’’ in relation to the working conditions, hazards, or situations covered by the visit
from the beginning of the opening conference through the end of the correction due dates and any extensions
thereof. OSHA may, in exercising its
authority to schedule compliance inspections, assign a lower priority to
worksites where consultation visits are
scheduled.
(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

§ 1908.7(a)(3). The state may also disclose information contained in the consultant’s written report to the extent
required by 29 CFR 1910.1020 or other
applicable OSHA standards or regulations.
(h) Confidentiality. (1) The consultant
shall preserve the confidentiality of information obtained as the result of a
consultative visit which contains or
might reveal a trade secret of the employer.
(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]

rfrederick on PROD1PC67 with CFR

§ 1908.7

§ 1908.7 Relationship to enforcement.
(a) Independence. (1) Consultative activity by a State shall be conducted
independently of any OSHA enforcement activity.
(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

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§ 1908.7

29 CFR Ch. XVII (7–1–07 Edition)

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.
(A) When an employer requests participation in a recognition and exemption
program, and undergoes a consultative
visit covering all conditions and operations in the place of employment related to occupational safety and
health; corrects all hazards that were
identified during the course of the consultative visit within established time
frames; has began to implement all the
elements of an effective safety and
health program; and agrees to request
a consultative visit if major changes in
working conditions or work processes
occur which may introduce new hazards, OSHA’s Programmed Inspections
at that particular site may be deferred
while the employer is working to
achieve recognition and exemption status.
(B) Employers who meet all the requirements for recognition and exemption will have the names of their establishments removed from OSHA’s Programmed Inspection Schedule for a period of not less than one year. The exemption period will extend from the
date of issuance by the Regional Office
of the certificate of recognition.
(ii) Inspections. OSHA will continue
to make inspections in the following
categories at sites that achieved recognition status and have been granted
exemption from OSHA’s Programmed
Inspection Schedule; and at sites
granted inspection deferrals as provided for under paragraph (b)(4)(i)(A) of
this section:
(A) Imminent danger.
(B) Fatality/Catastrophe.
(C) Formal Complaints.
(5) When an employer requests consideration for participation in the recognition and exemption program under
paragraph (b)(4) of this section, the

provisions of § 1908.6(e)(7), (e)(8), (f)(3),
and (f)(5) shall apply to other-than-serious hazards as well as serious hazards.
(c) Effect upon enforcement. (1) The advice of the consultant and the consultant’s written report will not be binding
on a compliance officer in a subsequent
enforcement inspection. In a subsequent inspection, a compliance officer
is not precluded from finding hazardous
conditions, or violations of standards,
rules or regulations, for which citations would be issued and penalties
proposed.
(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

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Occupational Safety and Health Admin., Labor

All consultants shall be selected in accordance with the provisions of Executive Order 11246 of September 24, 1965,
as amended, entitled ‘‘Equal Employment Opportunity.’’
(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. As necessary, the Assistant Secretary will specify immediate
and continuing training requirements
for consultants. Expenses for training
which is required by the Assistant Secretary or approved by the RA will be
reimbursed in full.

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]

rfrederick on PROD1PC67 with CFR

§ 1908.9

§ 1908.8 Consultant specifications.
(a) Number. (1) The number of consultant positions which will be funded
under a Cooperative Agreement pursuant to this part for the purpose of providing consultation to private sector
employers will be determined by the
Assistant Secretary on the basis of program performance, demand for services, industrial mix, resources available, and the recommendation of the
RA, and may be adjusted periodically.
(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. (1) All consultants
utilized under Cooperative Agreements
pursuant to this part shall be employees of the State, qualified under State
requirements for employment in occupational safety and health. They must
demonstrate adequate education and
experience to satisfy the RA before assignment to work under an Agreement,
and annually thereafter, that they
meet the requirements set out in
§ 1908.8(b)(2), and that they have the
ability to perform satisfactorily pursuant to the Cooperative Agreement. Persons who have the potential but do not
yet demonstrate adequate education
and experience to satisfy the RA that
they have the ability to perform consultant duties independently may, with
RA approval, be trained under a Cooperative Agreement to perform consultant duties. Such persons may not, however, perform consultant duties independently until it has been determined
by the RA that they meet the requirements and have the ability indicated.

§ 1908.9 Monitoring and evaluation.
(a) Assistant Secretary responsibility. A
State’s performance under a Cooperative Agreement will be regularly monitored and evaluated by the Assistant
Secretary as part of a systematic Federal plan for this activity. The Assistant Secretary may require changes as a
result of these evaluations to foster
conformance with consultation policy.
If the State policies or practices which
require change are such that the
State’s assurance of correction of serious hazards and of the effectiveness of
employers’ safety and health programs
is in doubt, the Assistant Secretary
may, pending the completion of the
changes, suspend recognition of a
State’s consultative visits as a basis
for exemption from compliance inspection as permitted under § 1908.7(b)(4).
(b) Consultant performance—(1) State
activity. The State shall establish and
maintain an organized consultant performance monitoring system under the
Cooperative Agreement:
(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.

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