• Record Type:
    OSHA Notice
  • Current Directive Number:
    06-05 (CSP 02)
  • Old Directive Number:
    TED 3.6
  • Title:
    Consultation Policies and Procedures Manual Chapter 7: Relationship to Enforcement
  • Information Date:
Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.


OSHA NOTICE

 

 

DIRECTIVE NUMBER: 06-05 (CSP 02) EFFECTIVE DATE: December 14, 2006
SUBJECT: Consultation Policies and Procedures Manual Chapter 7: Relationship to Enforcement

 

 

 

 

ABSTRACT

 

 

 

Purpose: This Notice provides Consultation Program visit guidance for On-site Consultation Projects and OSHA personnel. This Notice cancels Chapter 6 (entitled Consultation Visit in Progress) of the Consultation Policies and Procedures Manual and replaces Chapter 7 entitled Recognition and Exemption Programs. The contents of the former Chapter 7 are now located in Chapter 8 of this Manual, see OSHA Instruction CSP 02-00-001 [TED 3.6].
 
Scope: This Notice applies OSHA-wide.
 
References: 29 Code of Federal Regulations 1908, Relationship to Enforcement; Consultation Policies and Procedures Manual (CPPM) CSP 02-00-001 [TED 3.6]; Field Inspection Reference Manual (FIRM) [CPL 02-00-103]; OSHA Notice 06-06 (CPL 02) Site-Specific Targeting 2006 (SST-06); Safety and Health Program Management Guidelines [FR 54:3904-3916.
 
Cancellations: Chapter 6: Consultation Visit in Progress of OSHA Instruction CSP 02-00-001 [TED 3.6], Chapter 6, August 06, 2001.
 
Expiration Date: This Notice will expire on December 31, 2007.
 
State Impact: This Notice is a Federal program change requiring State implementation; see Chapter 1 of this manual.
 
Action Offices: National, Regional, and Area Offices
 
Originating Office: Directorate of Cooperative and State Programs
 
Contacts: Office of Small Business Assistance
Francis Perkins Building, Room N-3700
200 Constitution Avenue, NW
Washington, DC 20210
202-693-2220

 


By and Under the Authority of

Edwin G. Foulke, Jr.
Assistant Secretary

 

 

 

 

 


 

 

 

 

 

 

Executive Summary


This Notice provides On-site Consultation Program visit guidance for State On-site Consultation Projects and OSHA personnel. It identifies the On-site Consultation Program's relationship with OSHA Enforcement and the intersection of On-site Consultation services and programs and enforcement activity. Furthermore, this Notice outlines hazard correction and verification requirements. This Notice cancels Chapter 6 (entitled Consultation Visit in Progress) of the Consultation Policies and Procedures Manual and replaces Chapter 7 entitled Recognition and Exemption Programs. The content of the former Chapter 7 is now located in Chapter 8 of this Manual, See OSHA Instruction CSP 02-00-001 [TED 3.6].

 

 

 

 

Significant Changes

 

 

 

  1. Policies and procedures regarding pre-visit related requirements, scheduling and deferrals are now included in this Notice, see X. A-C.
     
  2. Policies and procedures relating to Visit in Progress status and enforcement activities have been included, see XI. A-F.
     
  3. A new category of inspections determined by the Assistant Secretary to be critical has been added to the list of enforcement inspections that will result in the termination of in Progress status, see XI. H(4).
     
  4. This Notice contains policies and procedures regarding the correction of hazards, correction due dates, employee protections, and incidents that may trigger a On-site Consultation referral to OSHA enforcement. See XII. A-F.
     

 

 

 


 

 

 

 

TABLE OF CONTENTS

 

 

 

  1. Purpose
     
  2. Scope
     
  3. References
     
  4. Cancellations
     
  5. Expiration Date
     
  6. State Impact
     
  7. Action Information
     
  8. Significant Changes
     
  9. General
     
    1. Onsite Consultation Visit Priority
    2. Visit in Progress
    3. Enforcement Activity
       
  10. Scheduling
     
    1. Onsite Visit Request
    2. Onsite Visit Scheduling
    3. Pre-Visit Deferrals
       
  11. Onsite Consultation Visit and Enforcement
     
    1. Full Service Onsite Consultation Visits
    2. Limited Service Onsite Consultation Visits
    3. Enforcement Follow-up and Monitoring Inspections
    4. Onsite Consultation Follow-up and/or Training and Assistance Visits
    5. Fatality/Catastrophe During Visit
    6. Requirements of in Progress Status
    7. Termination of in Progress Status
       
  12. Post -Visit Hazard Correction and Verification
     
    1. Hazard Correction
    2. Correction Due Dates
    3. Extending Correction Due Dates
    4. Interim Protection(s)
    5. Protection Plan of Action
    6. Verification of Hazard Correction
    7. [RESERVED]
    8. Referral to Enforcement
    9. Deletions and Deferrals
       

 

 

 


 

 

 

 

  1. Purpose. This Notice provides On-site Consultation Program visit guidance for State On-site Consultation Projects and OSHA personnel. It identifies the On-site Consultation Program's relationship with OSHA Enforcement and the intersection of On-site Consultation services and programs and enforcement activity. Furthermore, this Notice outlines hazard correction and verification requirements.
     
  2. Scope. This notice applies OSHA-wide.
     
  3. References.
     
    1. 29 Code of Federal Regulations(CFR) 1908, Relationship to Enforcement
    2. Consultation Policies and Procedures Manual (CPPM) [CSP 02-00-001]
    3. Field Inspection Reference Manual (FIRM) [CPL 02-00-103]
    4. OSHA Notice 05-05 (CPL 02) Site-Specific Targeting 2006 (SST-06)
    5. Safety and Health Program Management Guidelines [FR 54:3904-3916]
       
  4. Cancellations. Chapter 6: Consultation Visit in Progress of OSHA Instruction CSP 02-00-001 [TED 3.6] Chapter 6, August 6, 2001.
     
  5. Expiration Date. This Notice will expire on December 31, 2007.
     
  6. State Impact. This Notice is a Federal program change requiring State implementation. States operating Cooperative Agreements under Section 21 (d) of the OSH Act are required to follow the instructions outlined in this Notice. States operating private sector consultation programs under State plans with section 23 (g) funding must have requirements at least as effective as those outlined in this notice. [Reserved -- State Plan Language, CPPM Chapter 1.]
     
  7. Action Information.
     
    1. Responsible Office. Directorate of Cooperative and State Programs (DCSP), Office of Small Business Assistance (OSBA).
       
    2. Action Offices. National, Regional and Area Offices.
       
    3. Information Offices. National Office Directorates and State Designees.
       
  8. Significant Changes.
     
    1. Policies and procedures regarding pre-visit related requirements, scheduling and deferrals are now included in this Notice, see X. A-C.
       
    2. Policies and procedures relating to Visit in Progress status and enforcement activities have been included, see XI. A-F.
       
    3. A new category of inspections determined by the Assistant Secretary to be critical has been added to the list of enforcement inspections that will result in the termination of in Progress status, see XI. H(4).
       
    4. This Notice contains policies and procedures regarding the correction of hazards, correction due dates, employee protections, and incidents that may trigger a consultation referral to OSHA enforcement. See XII. A-F.
       
      Chapter 7:
      Relationship to Enforcement
  9. General. OSHA's On-site Consultation Program is delivered by state governments using highly qualified occupational safety and health professionals to help employers: a) detect potential safety and health hazards at their worksite; and b) establish and maintain safe and healthful workplaces. The On-site Consultation Program is completely separate from OSHA's enforcement efforts and does not issue citations or propose penalties.
     
    1. Onsite Consultation Visit Priority. A consultation visit in Progress has priority over OSHA compliance inspections pursuant to 29 CFR § 1908.7(b), except in those instances provided below at XI H. (1-4). See 29 CFR § 1908.7(b)(2) i-iv.
       
    2. Visit in Progress. A consultation visit shall be considered in Progress with regard 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. See, 29 CFR part 1908.7 (b)(i).
       
    3. Enforcement Activity. OSHA may assign a lower priority for programmed enforcement activity to those worksites for which onsite consultation visits are scheduled. See X.C. and XI. of this Chapter for exceptions.
       
  10. Scheduling
     
    1. Onsite Visit Request. Employers seeking an onsite consultation visit must request and schedule an opening conference directly with the On-site Consultation Project in the state in which the worksite that will undergo the onsite visit is located.
       
    2. Onsite Visit Scheduling. Once the employer has requested an onsite consultation visit, the scheduling of an onsite consultation visit shall be based upon the nature of the employer's request and the employer's placement within the Project's prioritization schedule. See CSP 02-00-001, CPPM Chapter 3: Promoting and Managing Consultation Services.
       
      1. Current Federal/State Inspection Activity. Consultation personnel must ask the employer whether or not any Federal or State OSHA inspection/enforcement activity is currently taking place at the worksite. If the employer answers in the affirmative, then Consultation personnel should explain to the employer that no onsite consultation can take place until the OSHA inspection/ enforcement activity is final and/ or any cited item(s) have become final order(s).
         
      2. Visit Date Confirmation. if an employer's requested visit is scheduled thirty (30) days or more after the request date, Consultation personnel should contact the employer within five (5) calendar days of the scheduled visit to confirm the visit date. At the time that the employer is contacted to confirm the scheduled visit, Consultation personnel should again verify whether any Federal or State OSHA inspection activity is underway.
         
    3. Pre-Visit Deferrals. Employers requesting an onsite consultation visit as a result of the worksite's inclusion on the OSHA Site-Specific Targeting (SST) inspection list may be deferred from the SST inspection for the deferral period prescribed within the current year's SST directive. See Site-Specific Targeting directive.
       
      1. Deferral Requirements. Deferral is contingent upon the employer having requested and scheduled an initial full service comprehensive onsite consultation visit for safety or health, see Site-Specific Targeting directive. See generally CPPM Chapter 2: OSHA Cooperative Programs. No extension of the deferral beyond the prescribed days (see current year's SST directive) is possible unless the consultation visit remains in Progress.
         
      2. Project Resources. In the event that an employer requests an onsite visit which is beyond Project resources to initiate within 90 days of the date of the request, the Consultation Project Manager (CPM) will inform the employer that a visit can- not be scheduled and that the employer will not be eligible for a deferral, see CSP 02-00-001, CPPM Chapter 3 III. F-G.
         
      3. Withdrawal of Onsite Consultation Visit Request. if the employer withdraws their request for an onsite consultation visit (after receiving a deferral), the CPM shall inform the Region accordingly and the deferral shall be void. The worksite may then be included in the OSHA programmed inspection list and be subject to enforcement inspection.
         
  11. Onsite Consultation Visits and Enforcement. On-site Consultation Projects shall determine the scope of the onsite consultation visit based upon the employer's request. For purposes of efficiency and expediency, an employer's worksite shall not be subject to concurrent consultation and enforcement-related visits. Enforcement may assign a lower priority to worksites receiving a consultation visit until the completion of the correction due dates and any extensions or the consultation closing conference, see 29 CFR § 1908.7(b).
     
    1. Full Service Onsite Consultation Visits. while a worksite is undergoing a full service onsite consultation visit for safety and health, programmed enforcement activity may not occur until after the end of the worksite's visit in Progress status.
       
    2. Full Service Safety or Health Onsite Consultation Visits. An onsite consultation visit in Progress is discipline related, whether for safety or health, programmed enforcement activity may not proceed until after the end of the worksite's visit in Progress status.
       
    3. Limited Service Onsite Consultation Visits. If a worksite is undergoing a limited service onsite consultation visit, whether focused on a particular type of work process or a hazard, programmed enforcement activity may not proceed while the consultant is at the worksite. The re-scheduled enforcement activity must be limited only to those areas that were not addressed by the scope of the consultative visit (posted List of Hazards).
       
    4. Enforcement Follow-up and Monitoring Inspections. If an enforcement follow-up or monitoring inspection is to be conducted while a worksite is undergoing an onsite consultation visit, the inspection shall not be deferred; however, its scope shall be limited only to those areas required to be covered by the follow-up or monitoring inspection. In these instances, the consultant must interrupt the onsite visit until the enforcement inspection has been completed. In the event OSHA issues a citation as a result of the follow-up or monitoring inspection, an onsite consultation visit may not proceed regarding the newly cited item(s) until they have become final order(s).
       
    5. Onsite Consultation Follow-up and/or Training and Assistance Visits. Onsite consultation follow-up and/or training and assistance visits must be deferred if an OSHA enforcement inspection is to be conducted. The consultant may continue with follow-up and/or training and assistance activity only after enforcement inspection activity at the worksite is final and any cited item(s) have become final order(s).
       
    6. Fatality/Catastrophe during Visit. If a fatality or catastrophe (an incident involving the hospitalization of 3 or more employees) occurs during an onsite consultation visit, the consultant shall immediately terminate the visit. If onsite conditions permit, the consultant should remind the employer of their obligation under 29 CFR 1904.39 to notify OSHA enforcement of the incident.
       
    7. Requirements of in Progress Status. A consultation visit shall be considered to be in Progress from the beginning of the opening conference to the end of the correction due dates (including extensions). In order to maintain the status of in Progress, the employer must meet the following conditions:
       
      1. Posting the List of Hazards. Employers must post the List of Hazards, once received, in a location where it can be readily observed by all affected employees. Employers must post the List of Hazards for three working days or until the hazards identified on the list are corrected, whichever is later. For the visit to remain in Progress, no posted hazard may remain uncorrected past its correction due date (past the original due date or the extended due date). See 29 CFR 1908.6(e)(8).
         
      2. Hazard Correction. Employers must take action to eliminate exposure to hazards which, in the judgment of the consultant, presents an imminent danger as well as to correct all hazards identified as serious in order to maintain in Progress status. The employer must also provide documentation of the action(s) taken to eliminate or control the identified hazards to the On-site Consultation Project by fax, letter or e-mail.
         
    8. Termination of in Progress Status. A visit in Progress is terminated when OSHA enforcement initiates any of the following:
       
      1. Imminent danger investigation;
         
      2. Fatality/catastrophe investigation;
         
      3. Complaint or Referral investigation; or
         
      4. Other critical inspections as determined by the Assistant Secretary.
         
  12. Post-Visit Hazard Correction and Verification
     
    1. Hazard Correction. Consultants must inform the employer that all serious hazards must be corrected in accordance with mutually agreed-upon correction due dates and that they must provide to the CPM documentation of the action(s) taken to eliminate or control the hazards identified on the List of Hazards. In addition, consultants must inform employers that they should correct other-than-serious hazards in a timely manner, but are not required to send verification of the correction of these hazards to the CPM. Consultants also must inform employers that they may be cited for any serious or other-than-serious hazards, identified during an OSHA enforcement inspection.
       
    2. Correction Due Dates. Correction due dates are to be established by Consultation personnel. Correction due dates will be the shortest interval within which an employer can reasonably be expected to correct the hazard. Factors such as an employer's economic and work capability may be considered in devising correction due dates
       
    3. Extending Correction Due Dates. An employer may request, and the CPM may grant, an extension of the time frame established for the correction of hazards identified on the List of Hazards. This extension may be granted when the employer has: 1) demonstrated that a good faith effort has been made to correct the hazard within the established time frame, 2) shown evidence that correction has not been completed because of factors beyond the employer's reasonable control, and 3) shown evidence that the employer is taking all available interim steps to safeguard affected employees against the hazard during the correction period. Extensions to correction due date(s) will be approved for the shortest reasonable period of time.
       
      1. Requests for extensions must:
         
        1. Be in writing. if the extension was initially requested by phone, a confirmation of the request must be received either via fax, postal or electronic mail;
        2. Contain the reason(s) why the hazard has not been corrected;
        3. Contain the number of days needed for the extension; and
        4. Describe the interim protection provided to affected employees to protect them from the particular hazard(s).
           
      2. Whenever an extension to a correction due date(s) is granted, a new List of Hazards must be prepared by the On-site Consultation Project indicating the hazards requiring an extension and the revised date(s) of correction. The employer must then post the new List of Hazards for the required period.
         
      3. If the initial or extended correction due date is more than 90 days, whether initial or extension, On-site Consultation Projects may require the employer to submit a Protection Plan of Action for each serious hazard.
         
    4. Interim Protection(s). Where a serious hazard(s) is identified and is not immediately corrected in the presence of the consultant, employers must provide interim protections for affected employees at the worksite while the identified hazard(s) are being corrected. Interim protections include but are not limited to the following:
       
      1. Engineering Controls. Engineering controls consist of, but not limited to, substitution, isolation, ventilation and equipment modification.
         
      2. Administrative Controls. Any procedure that significantly limits daily exposure by control or manipulation of the work schedule or manner in which work is performed is considered a means of administrative control. The use of personal protective equipment is not considered a means of administrative control.
         
      3. Work Practice Controls. Work practice controls are one type of administrative control in which the employer modifies the manner in which the employee performs assigned work. Such modification may result in a reduction of exposure through such methods as changing work procedures, improving sanitation and hygiene practices, or making other changes in the way the employee performs the job.
         
      4. Personal Protective Equipment and/or Clothing. Providing the proper personal protective equipment (PPE) to all affected employees and training affected employees in the proper selection, use and maintenance of the PPE.
         
    5. Protection Plan of Action (Plan). In circumstances where a consultant determines that an identified serious hazard(s) requires a complex correction solution(s) that may take more than 90 days to institute, the employer is required to submit a Plan. Such circumstances that may require such a Plan may include but are not limited to: a) extensive redesign requirements (such as the installation of a ventilation system) and/or b) factors delaying correction that are beyond the employer's control.
       
      1. The date for submitting the Plan will be established by On-site Consultation personnel. A separate Plan must be submitted for each identified hazard.
         
      2. The Plan must:
         
        1. Identify the hazard and steps to be taken to correct it;
        2. Outline the anticipated long-term hazard correction procedures;
        3. Include milestones (or a schedule) for correcting the hazard; and
        4. Include information regarding how affected employees will be protected from the hazard or hazardous condition in the interim until hazard correction is completed.
           
      3. The employer will provide periodic progress reports on the status of the hazard correction process (the frequency of the reports is to be determined by the On-site Consultation Project).
         
    6. Verification of Hazard Correction.
       
      1. Imminent Danger. Consultants shall ensure that all hazards that present an imminent danger to employees are corrected immediately.
         
      2. Serious Hazards. Consultants shall verify that all hazards identified as serious are corrected within a reasonable time frame.
         
        1. The CPM will employ a tracking system to assure the timely verification of serious hazard corrections.
        2. Serious hazards must be verified as having been corrected or eliminated within the correction due dates identified in the written report to the employer and the List of Hazards, or as outlined in the Plan. The following are the recognized verification methods:
          i. Onsite Verification. When a hazard correction has been witnessed by a consultant during the visit, the hazard will be considered corrected and then noted accordingly in the written report to the employer.
          1. Consultants are required to provide a narrative and/or picture(s) to support the verification of the hazard correction.
          ii. Offsite Verification. When a consultant is unable to verify the correction of a serious hazard before the conclusion of the visit, the consultant must inform the employer that they must provide written confirmation of the corrected hazard(s) to the On-site Consultation Project. Written verification may be faxed or sent via postal or electronic mail to the On-site Consultation Project. Written verification must include:
          1. The date that the hazard(s) was corrected or eliminated; and
          2. A description and/or pictures(s) of the corrective method employed. The employer may also include copies of receipts for purchased equipment or services, and any other proof of hazard correction.
          iii. Follow-up Visit. In addition to the above methods, On-site Consultation Projects may at their discretion conduct a follow-up visit to the worksite to verify the correction of those hazards identified on the List of Hazards.
    7. [RESERVED]:
       
    8. Referral to Enforcement. An employer's refusal or failure to correct an imminent danger situation and/or an identified serious hazards may result in a referral to OSHA enforcement.
       
      1. Grounds for referral to OSHA Enforcement include:
        1. Imminent Danger. If, during the course of conducting a onsite consultation visit the consultant observes an imminent danger situation, he/she must immediately inform the employer. If the employer refuses to correct or eliminate the hazard immediately, the consultant will terminate the visit immediately and then make a referral to OSHA enforcement.
           
        2. Serious Hazard(s) Not Corrected. When it is determined that an employer is no longer acting in good faith and/or is refusing to correct or eliminate a serious hazard within the established due date, including any extensions, a referral to enforcement must be made at that time.
           
      2. Process for referral to OSHA Enforcement:
        1. Consultant. The consultant conducting the visit shall notify the CPM immediately upon an employer's:
          i. Refusal to correct or eliminate an imminent danger, or
          ii. Refusal to correct or eliminate a serious hazard.
        2. Consultation Project Manager. Upon determining that an employer is no longer acting in good faith and/or is refusing to correct identified hazards, the CPM will immediately notify the Regional Office.
           
        3. Regional Administrator. The Regional Administrator will determine whether the employer is to be referred for enforcement action within five (5) days of the notification of hazard violation or within one (1) day if there is an imminent danger situation. The Regional Administrator will also notify the OSHA Area Director of the worksite's loss of in Progress status.
          i. To assist the Regional Office in its determination, On-site Consultation Projects shall forward information regarding the worksite's identified hazards and the circumstances of the employer's refusal.
    9. Deletions and Deferrals
       
      1. [RESERVED]
         
      2. Pre-SHARP. If a worksite is in pre-SHARP status, that is, is in the process of meeting the criteria for SHARP, OSHA programmed inspections at the site may be deferred for up to 18 months while the employer is working to achieve recognition and exemption status. See 29 CFR §1908.7(b)(4)(i)(A). [Reserved- See generally CPPM Chapter 8: OSHA's SHARP and Pre-SHARP].
         
      3. SHARP. If a worksite achieves SHARP status, it is to be deleted from OSHA's programmed inspection schedule for a period established by the On-site Consultation Project and approved by the Regional Administrator. See 29 CFR §1908.7(b)(4)(i)(B). [Reserved- See generally CPPM Chapter 8: OSHA's SHARP and Pre-SHARP].
         

 

 

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.