29 Cfr 1908.9

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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§ 1908.10

29 CFR Ch. XVII (7–1–07 Edition)

(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. State consultant
performance monitoring as set out in
§ 1908.9(b)(1) shall not preclude Federal
monitoring activity by methods determined to be appropriate by the Assistant Secretary.
(c) State reporting. For Federal monitoring and evaluation purposes, the

State shall compile and submit such
factual and statistical data in the format and at the frequency required by
the Assistant Secretary. The State
shall prepare and submit to the RA any
narrative reports, including copies of
written reports to employers as may be
required by the Assistant Secretary.
(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. The Assistant Secretary may make a Cooperative Agreement under this part with
the Governor of a State or with any
State agency designated for that purpose by the Governor.
(b) Negotiations. (1) Procedures for negotiations may be obtained through
the RA who will negotiate for the Assistant Secretary and make final recommendations on each Agreement to
the Assistant Secretary.
(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.
(1) Any Agreement and subsequent
modifications shall be in writing and
signed by both parties.
(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.

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