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To: Regional Administrators and National Office Directors

Subject: Providing for Consultation in a State 18(b) Plan

1. Purpose. To provide guidance to Regional Offices and designated State agencies concerning consultation programs in State plans as part of the voluntary compliance program required by Subsection 1902.4(c)(xiii) of the State plan regulations. This directive deals specifically with State plans which include provisions for consultation at the workplace.

2. Explanation

A. In the Federal program, consultative services, as distinguished from inspections, are provided by OSHA for educational purposes to encourage and assist employers in achieving voluntary compliance. Such activity is provided to the maximum extent feasible, although, based on legal interpretations of the Act, OSHA has been able to provide such consulatation only away from the workplace without the empoloyer risking the imposition of sanctions. When consultation does take place at the work site and violations are found, appropriate citations and proposed penalties must be issued. It is clear that a State consultation program would be acceptable if, like the Federal program currently does, it requires the triggering of appropriate enforcement procedures when a violation is found during on-site consultation.

B. Many States, however, wish to provide some appropriate consultation at the workplace as well as off-site without sanctions necessarily being imposed. In line with the

OSHA Instruction STP 2.3 October 30, 1978

policy of maximum flexibility in the State plan, OSHA has adopted the policy that the States, in accordance with the Act and regulations and subject to the qualifications outlined below, may develop and carry out a program of on-site consultation provided that it does not detract from the effectiveness of the State's enforcement program.

C. In approving a State plan, the Secretary is charged with responsibility for assuring that that plan provides for an enforcement program that is or will be at least as effective as the Federal program. The term "enforcement" in a State plan, and for the purpose of this directive, includes inspections, citations and sanctions, but not voluntary compliance programs. Voluntary compliance may not be a substitute for the enforcement mechanisms. Therefore, the purpose of this directive is set forth ground rules a State must follow in devising a consultation program involving on-site visits. These rules will assure that the consultation program is completely over and above the enforcement program and will in no way impair or detract from that enforcement effort.

3. Requirements and Recommendations for On-Site Consultations

For a consultation program which includes on-site visits to be approvable as part of a State plan, the following conditions must be met and the State must be able to demonstrate in the plan that procedures are or will not be present to assure that the conditions will continue to be met. The conditions are:

A. The State's enforcement program must be judged at least as effective as the Federal enforcement program.

B. The staff used for consultation must be a different staff than that used for enforcement purposes.

C. The State plan must show a quantitative relationship between the amount of time and staff effort devoted to on-site and other consultation as distinct from enforcement activities. The plan must also provide

OSHA Instruction STP 2.3 October 30, 1978

assurance that a large backlog of requests for consultation will not be reduced by diverting staffing who should otherwise be engaged in enforcement, thereby weakening the effectiveness of the enforcement program.

D. The purpose of a visit to a workplace, whether it is for enforcement or consultation, must be made known to the employer immediately upon entering the workplace.

E. There must be a procedure to assure timely abatement of situations involving imminent danger and serious violations. In the case of the former, the consultant must either have authority to take action to avert the imminent danger himself, or be required to call in enforcement personnel at once. For serious violations, he must advise him of a reasonable abatement period. He must also advise the employer that, at the end of the reasonable abatement period, there will be a follow-up visit for the purpose of enforcement, including the issuance of a citation if the identified serious violation still exists, but not including enforcement action for failure to abate.

F. The program of on-site consultation should not intrude into the business of private engineering firms or professional consultants. The service provided by the State should concern itself with the end results, not the detailed means by which to achieve compliance with a standard.

G. Employers must be notified that consultative visits will not provide immunity from a future regularly scheduled inspection or an inspection resulting from a complaint. Further, any employer who has requested a consultative visit and has been placed on a waiting list would still be subject to any inspection during that period that would normally be scheduled or that would result from a complaint. Employer must also be advised that the opinions, suggestions and advice offered by a consultant will not be binding on a compliance officer and will not preclude the finding of alleged violations nor the proposing of penalties.

OSHA Instruction STP 2.3 October 30, 1978

In addition to the requirements noted above States should consider including consultation with the affected employees at the workplace, in order to obtain any suggestions or information they might have within the scope of the consultation visits. It is also recommended that State personnel responsible for operating a consultation program should develop an equitable system for responsibility to employers requests for consultation, taking into account the availability of State staff, number of requests, and the nature of the organization asking for the consultation.

5. Action. ARA's for State Programs should make the contents of this directive available to State designees.

6. Filing. This directive is effective immediately and will continue in force until rescinded.

Chain Robbins Deputy Assistant Secretary/Administrator

DISTRIBUTION:

National Office Field:

A/Sec. 3 Regional Administrators 3 Dep. A/Sec 1 RAO 2 Spec. Assts 1 ARA's 1 Directors 3 Regional Directors 1 SOL 26 SOL Regional Attorneys 2 BLS 1 Regional Review Commissions 1 Review Commission 6 Training Institute 1 HEW 1 NACOSH Subcommittee (1) Division Chiefs 3 National Governor's Convention (1)