29 Cfr 1908.6

§ 1908.6

29 CFR Ch. XVII (7–1–07 Edition)
followed by a written report to the employer. Additional visits may be conducted at the employer’s request to
provide needed education and training,
assistance with the employer’s safety
and health program, technical assistance in the correction of hazards, or as
necessary to verify the correction of
serious hazards identified during previous visits. A compliance inspection
may in some cases be the basis for a
visit limited to education and training,
assistance with the employer’s safety
and health program, or technical assistance in the correction of hazards.
(c) Employee participation. (1) The consultant shall retain the right to confer
with individual employees during the
course of the visit in order to identify
and judge the nature and extent of particular hazards within the scope of the
employer’s request, and to evaluate the
employer’s safety and health program.
The consultant shall explain the necessity for this contact to the employer
during the opening conference, and an
employer must agree to permit such
contact before a visit can proceed.
(2)(i) In addition, an employee representative of affected employees must
be afforded an opportunity to accompany the consultant and the employer’s representative during the physical
inspection of the workplace. The consultant may permit additional employees (such as representatives of a joint
safety and health committee, if one exists at the worksite) to participate in
the walkaround, where the consultant
determines that such additional representatives will further aid the visit.
(ii) If there is no employee representative, or if the consultant is unable
with reasonable certainty to determine
who is such a representative, or if the
employee representative declines the
offer to participate, the consultant
must confer with a reasonable number
of employees concerning matters of occupational safety and health.
(iii) The consultant is authorized to
deny the right to accompany under
this section to any person whose conduct interferes with the orderly conduct of the visit.
(d) Opening and closing conferences. (1)
The consultant will encourage a joint
opening conference with employer and
employee representatives. If there is an

though they were within the scope of
the request.
(3) Employers may request onsite
consultation to assist in the abatement
of hazards cited during an OSHA enforcement inspection. However, an onsite consultative visit may not take
place after an inspection until the conditions set forth in § 1908.7(b)(3) have
been met.
(c) Scheduling priority. Priority shall
be assigned to requests from businesses
with the most hazardous operations,
with primary attention to smaller
businesses. Preference shall be given to
the smaller businesses which are in
higher hazard industries or which have
the most hazardous conditions at issue
in the request.

rfrederick on PROD1PC67 with CFR

[49 FR 25094, June 19, 1984, as amended at 65
FR 64291, Oct. 26, 2000]

§ 1908.6 Conduct of a visit.
(a) Preparation. (1) An onsite consultative visit shall be made only after appropriate preparation by the consultant. Prior to the visit, the consultant
shall become familiar with as many
factors concerning the establishment’s
operation as possible. The consultant
shall review all applicable codes and
standards. In addition, the consultant
shall assure that all necessary technical and personal protective equipment is available and functioning properly.
(2) At the time of any promotional
visit conducted by a consultant to encourage the use of the onsite consultative services, a consultation may be
performed without delay if the employer so requests and the consultant
is otherwise prepared to conduct such
consultation.
(b) Structured format. An initial onsite
consultative visit will consist of an
opening conference, an examination of
those aspects of the employer’s safety
and health program which relate to the
scope of the visit, a walkthrough of the
workplace, and a closing conference.
An initial visit may include training
and education for employers and employees, if the need for such training
and education is revealed by the
walkthrough of the workplace and the
examination of the employer’s safety
and health program, and if the employer so requests. The visit shall be

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Occupational Safety and Health Admin., Labor
objection to a joint conference, the
consultant will conduct separate conferences with employer and employee
representatives. The consultant must
inform affected employees, with whom
he confers, of the purpose of the consultation visit.
(2) In addition to the requirements of
paragraph (c) of this section, the consultant will, in the opening conference,
explain to the employer the relationship between onsite consultation and
OSHA enforcement activity, explain
the obligation to protect employees in
the event that certain hazardous conditions are identified, and emphasize the
employer’s obligation to post the List
of Hazards accompanying the consultant’s written report as described in
paragraph (e)(8) of this section.
(3) At the conclusion of the consultation visit, the consultant will conduct
a closing conference with employer and
employee representatives, jointly or
separately. The consultant will describe hazards identified during the
visit and other pertinent issues related
to employee safety and health.
(e) Onsite activity. (1) Activity during
the onsite consultative visit will focus
primarily on those areas, conditions, or
hazards regarding which the employer
has requested assistance. An employer
may expand or reduce the scope of the
request at any time during the onsite
visit. The consultant shall, if prepared
and if scheduling priorities permit, expand the scope of the visit at the time
of the request. If the employer’s request for expansion necessitates further preparation by the consultant or
the expertise of another consultant, or
if other employer requests may merit
higher priority, the consultant shall
refer the request to the consultation
manager for scheduling. In all cases in
which the scope of the visit is reduced,
the consultant remains obligated to
work with the employer to ensure correction of those serious hazards which
are identified during the visit.
(2) The consultant shall advise the
employer as to the employer’s obligations and responsibilities under applicable Federal or State law and implementing regulations.
(3) Within the scope of the employer’s
request, consultants shall review the
employer’s safety and health program

§ 1908.6

and provide advice on modifications or
additions to make such programs more
effective.
(4) Consultants shall identify and
provide advice on correction of those
hazards included in the employer’s request and any other safety or health
hazards observed in the workplace during the course of the onsite consultative visit. This advice shall include
basic information indicating the possibility of a solution and describing the
general form of the solution. The consultant shall conduct sampling and
testing, with subsequent analyses. as
may be necessary to confirm the existence of safety and health hazards.
(5) Advice and technical assistance
on the correction of identified safety
and health hazards may be provided to
employers during and after the onsite
consultative visit. Descriptive materials may be provided on approaches,
means, techniques, and other appropriate items commonly utilized for the
elimination or control of such hazards.
The consultants shall also advise the
employers of additional sources of assistance, if known.
(6) When a hazard is identified in the
workplace, the consultant shall indicate to the employer the consultant’s
best judgment as to whether the situation would be classified as a ‘‘serious’’
or ‘‘other-than-serious’’ hazard.
(7) At the time the consultant determines that a serious hazard exists, the
consultant will assist the employer to
develop a specific plan to correct the
hazard, affording the employer a reasonable period of time to complete the
necessary action. The state must provide, upon request from the employer
within 15 working days of receipt of the
consultant’s report, a prompt opportunity for an informal discussion with
the consultation manager regarding
the period of time established for the
correction of a hazard or any other
substantive finding of the consultant.
(8) As a condition for receiving the
consultation service, the employer
must agree to post the List of Hazards
accompanying the consultant’s written
report, and to notify affected employees when hazards are corrected. When
received, the List of Hazards must be
posted, unedited, in a prominent place

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§ 1908.6

29 CFR Ch. XVII (7–1–07 Edition)

where it is readily observable by all affected employees for 3 working days, or
until the hazards are corrected, whichever is later. A copy of the List of Hazards must be made available to the employee representative who participates
in the visit. In addition, the employer
must agree to make information on the
corrective actions proposed by the consultant, as well as other-than-serious
hazards identified, available at the
worksite for review by affected employees or the employee representative. OSHA will not schedule a compliance inspection in response to a complaint based upon a posted List of Hazards unless the employer fails to meet
his obligations under paragraph (f) of
this section, or fails to provide interim
protection for exposed employees.
(f) Employer obligations. (1) An employer must take immediate action to
eliminate employee exposure to a hazard which, in the judgment of the consultant, presents an imminent danger
to employees. If the employer fails to
take the necessary action, the consultant must immediately notify the affected employees and the appropriate
OSHA enforcement authority and provide the relevant information.
(2) An employer must also take the
necessary action in accordance with
the plan developed under paragraph
(e)(7) of this section to eliminate or
control employee exposure to any identified serious hazard, and meet the
posting requirements of paragraph
(e)(8) of this section. In order to demonstrate that the necessary action is
being taken, an employer may be required to submit periodic reports, permit a follow-up visit, or take similar
action that achieves the same end.
(3) An employer may request, and the
consultation manager may grant, an
extension of the time frame established
for correction of a serious hazard when
the employer demonstrates having
made a good faith effort to correct the
hazard within the established time
frame; shows evidence that correction
has not been completed because of factors beyond the employer’s reasonable
control; and shows evidence that the
employer is taking all available interim steps to safeguard the employees
against the hazard during the correction period.

(4) If the employer fails to take the
action necessary to correct a serious
hazard within the established time
frame or any extensions thereof, the
consultation manager shall immediately notify the appropriate OSHA
enforcement authority and provide the
relevant information. The OSHA enforcement authority will make a determination, based on a review of the
facts, whether enforcement activity is
warranted.
(5) After correction of all serious hazards, the employer shall notify the consultation manager by written confirmation of the correction of the hazards, unless correction of the serious
hazards is verified by direct observation by the consultant.
(g) Written report. (1) A written report
shall be prepared for each visit which
results in substantive findings or recommendations, and shall be sent to the
employer. The timing and format of
the report shall be approved by the Assistant Secretary. The report shall restate the employer’s request and describe the working conditions examined by the consultant; shall, within
the scope of the request, evaluate the
employer’s program for ensuring safe
and healthful employment and provide
recommendations for making such programs effective; shall identify specific
hazards and describe their nature, including reference to applicable standards or codes; shall identify the seriousness of the hazards; and, to the extent possible, shall include suggested
means or approaches to their correction. Additional sources of assistance
shall also be indicated, if known, including the possible need to procure
specific engineering consultation, medical advice and assistance, and other
appropriate items. The report shall
also include reference to the completion dates for the situations described
in § 1908.6(f) (1) and (2).
(2) Because the consultant’s written
report contains information considered
confidential, and because disclosure of
such reports would adversely affect the
operation of the OSHA consultation
program, the state shall not disclose
the consultant’s written report except
to the employer for whom it was prepared
and
as
provided
for
in

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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]

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§ 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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