eCFR 29 Part 1908

PART 1908 - CONSULTATION
AGREEMENTS
Authority: Secs. 7(c), 8, 21(d), Occupational Safety and Health Act of 1970 (29 U.S.C. 656,
657, 670) and Secretary of Labor's Order No. 6-96 (62 FR 111, January 2, 1997).
Source: 49 FR 25094, June 19, 1984, unless otherwise noted.

§ 1908.1 Purpose and scope.
(a) This part contains requirements for Cooperative Agreements between states and the Federal
Occupational Safety and Health Administration (OSHA) under sections 21(c) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.) and section 21(d), the
Occupational Safety and Health Administration Compliance Assistance Authorization Act of
1998 (which amends the Occupational Safety and Health Act,) under which OSHA will utilize
state personnel to provide consultative services to employers. Priority in scheduling such
consultation visits must be assigned to requests received from small businesses which are in
higher hazard industries or have the most hazardous conditions at issue in the request.
Consultation programs operated under the authority of a state plan approved under section 18
of the Act (and funded under section 23(g), rather than under a Cooperative Agreement) which
provide consultative services to private sector employers, must be “at least as effective as” the
section 21(d) Cooperative Agreement programs established by this part. The service will be
made available at no cost to employers to assist them in establishing effective occupational
safety and health programs for providing employment and places of employment which are
safe and healthful. The overall goal is to prevent the occurrence of injuries and illnesses which
may result from exposure to hazardous workplace conditions and from hazardous work
practices. The principal assistance will be provided at the employer's worksite, but off-site
assistance may also be provided by telephone and correspondence and at locations other than
the employer's worksite, such as the consultation project offices. At the worksite, the
consultant will, within the scope of the employer's request, evaluate the employer's program for
providing employment and a place of employment which is safe and healthful, as well as
identify specific hazards in the workplace, and will provide appropriate advice and assistance
in establishing or improving the employer's safety and health program and in correcting any
hazardous conditions identified.
(b) Assistance may include education and training of the employer, the employer's supervisors,
and the employer's other employees as needed to make the employer self-sufficient in ensuring
safe and healthful work and working conditions. Although onsite consultation will be
conducted independent of any OSHA enforcement activity, and the discovery of hazards will
not mandate citation or penalties, the employer remains under a statutory obligation to protect
employees, and in certain instances will be required to take necessary protective action.
Employer correction of hazards identified by the consultant during a comprehensive workplace
survey, and implementation of certain core elements of an effective safety and health program
and commitment to the completion of others may serve as the basis for employer exemption
from certain OSHA enforcement activities. States entering into Agreements under this part will

receive ninety percent Federal reimbursement for allowable costs, and will provide
consultation to employers requesting the service, subject to scheduling priorities, available
resources, and any other limitations established by the Assistant Secretary as part of the
Cooperative Agreement.
(c) States operating approved Plans under section 18 of the Act shall, in accord with section
18(b), establish enforcement policies applicable to the safety and health issues covered by the
State Plan which are at least as effective as the enforcement policies established by this part,
including a recognition and exemption program.
[49 FR 25094, June 19, 1984, as amended at 65 FR 64290, Oct. 26, 2000]

§ 1908.2 Definitions.
As used in this part:
Act means the Federal Occupational Safety and Health Act of 1970.
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and
Health.
Compliance Officer means a Federal compliance safety and health officer.
Consultant means an employee under a Cooperative Agreement pursuant to this part who
provides consultation.
Consultation means all activities related to the provision of consultative assistance under this
part, including offsite consultation and onsite consultation.
Cooperative Agreement means the legal instrument which enables the States to collaborate
with OSHA to provide consultation in accord with this part.
Designee means the State official designated by the Governor to be responsible for entering
into a Cooperative Agreement in accord with this part.
Education means planned and organized activity by a consultant to impart information to
employers and employees to enable them to establish and maintain employment and a place of
employment which is safe and healthful.
Employee means an employee of an employer who is employed in the business of that
employer which affects interstate commerce.
Employee representative, as used in the OSHA consultation program under this part, means the
authorized representative of employees at a site where there is a recognized labor organization
representing employees.

Employer means a person engaged in a business who has employees, but does not include the
United States (not including the United States Postal Service,) or any state or political
subdivision of a state.
Hazard correction means the elimination or control of a workplace hazard in accord with the
requirements of applicable Federal or State statutes, regulations or standards.
Imminent danger means any conditions or practices in a place of employment which are such
that a danger exists which could reasonably be expected to cause death or serious physical
harm immediately or before the imminence of such danger can be eliminated through the
procedures set forth in § 1908.6(e)(4), (f) (2) and (3), and (g).
List of Hazards means a list of all serious hazards that are identified by the consultant and the
correction due dates agreed upon by the employer and the consultant. Serious hazards include
hazards addressed under section 5(a)(1) of the OSH Act and recordkeeping requirements
classified as serious. The List of Hazards will accompany the consultant's written report but is
separate from the written report to the employer.
Offsite consultation means the provision of consultative assistance on occupational safety and
health issues away from an employer's worksite by such means as telephone and
correspondence, and at locations other than the employer's worksite, such as the consultation
project offices. It may, under limited conditions specified by the Assistant Secretary, include
training and education.
Onsite consultation means the provision of consultative assistance on an employer's
occupational safety and health program and on specific workplace hazards through a visit to an
employer's worksite. It includes a written report to the employer on the findings and
recommendations resulting from the visit. It may include training and education needed to
address hazards, or potential hazards, at the worksite.
OSHA means the Federal Occupational Safety and Health Administration or the State agency
responsible under a Plan approved under section 18 of the Act for the enforcement of
occupational safety and health standards in that State.
Other-than-serious hazard means any condition or practice which would be classified as an
other-than-serious violation of applicable federal or state statutes, regulations or standards,
based on criteria contained in the current OSHA field instructions or approved State Plan
counterpart.
Programmed inspection means OSHA worksite inspections which are scheduled based upon
objective or neutral criteria. These inspections do not include imminent danger,
fatality/catastrophe, and formal complaints.
Programmed inspection schedule means OSHA inspections scheduled in accordance with
criteria contained in the current OSHA field instructions or approved State Plan counterpart.

RA means the Regional Administrator for Occupational Safety and Health of the Region in
which the State concerned is located.
Recognition and exemption program means an achievement recognition program of the OSHA
consultation services which recognizes small employers who operate, at a particular worksite,
an exemplary program that results in the immediate and long term prevention of job related
injuries and illnesses.
Serious hazard means any condition or practice which would be classified as a serious
violation of applicable federal or state statutes, regulations or standards, based on criteria
contained in the current OSHA field instructions or approved State Plan counterpart, except
that the element of employer knowledge shall not be considered.
State includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin
Islands, American Samoa, Guam, and the Trust Territory of the Pacific Islands.
Training means the planned and organized activity of a consultant to impart skills, techniques
and methodologies to employers and their employees to assist them in establishing and
maintaining employment and a place of employment which is safe and healthful.
[49 FR 25094, June 19, 1984, as amended at 65 FR 64290, Oct. 26, 2000]

§ 1908.3 Eligibility and funding.
(a) State eligibility. Any state may enter into an agreement with the Assistant Secretary to
perform consultation for private sector employers; except that a state having a plan approved
under section 18 of the Act is eligible to participate in the program only if that Plan does not
include provisions for federally funded consultation to private sector employers as a part of its
plan.
(b) Reimbursement.
(1) The Assistant Secretary will reimburse 90 percent of the costs incurred under a
Cooperative Agreement entered into pursuant to this part. Approved training of State staff
operating under a Cooperative Agreement and specified out-of-State travel by such staff will
be fully reimbursed.
(2) Reimbursement to States under this part is limited to costs incurred in providing
consultation to private sector employers only.
(i) In all States with Plans approved under section 18 of the Act, consultation provided to
State and local governments, as well as the remaining range of voluntary compliance
activities referred to in 29 CFR 1902.4(c)(2)(xiii), will not be affected by the provisions of
this part. Federal reimbursement for these activities will be made in accordance with the
provisions of section 23(g) of the Act.

(ii) In States without Plans approved under section 18, no Federal reimbursement for
consultation provided to State and local governments will be allowed, although this activity
may be conducted independently by a State with 100 percent State funding.
[49 FR 25094, June 19, 1984, as amended at 65 FR 64291, Oct. 26, 2000]

§ 1908.4 Offsite consultation.
The State may provide consultative services to employers on occupational safety and health
issues by telephone and correspondence, and at locations other than the employer's worksite,
such as the consultation project offices. It may, under limited conditions specified by the
Assistant Secretary, include training and education.

§ 1908.5 Requests and scheduling for onsite consultation.
(a) Encouraging requests (1) State responsibility. The State shall be responsible for encouraging employers to request
consultative assistance and shall publicize the availability of its consultative service and the
scope of the service which will be provided. The Assistant Secretary will also engage in
activities to publicize and promote the program.
(2) Promotional methods. To inform employers of the availability of its consultative service
and to encourage requests, the State may use methods such as the following:
(i) Paid newspaper advertisements;
(ii) Newspaper, magazine, and trade publication articles;
(iii) Special direct mailings or telephone solicitations to establishments based on workers'
compensation data or other appropriate listings;
(iv) In-person visits to workplaces to explain the availability of the service, and
participation at employer conferences and seminars;
(v) Solicitation of support from State business and labor organizations and leaders, and
public officials;
(vi) Solicitation of publicizing by employers and employees who have received
consultative services;
(vii) Preparation and dissemination of publications, descriptive materials, and other
appropriate items on consultative services;
(viii) Free public service announcements on radio and television.

(3) Scope of service. In its publicity for the program, in response to any inquiry, and before
an employer's request for a consultative visit may be accepted, the state shall clearly explain
that the service is provided at no cost to an employer with federal and state funds for the
purpose of assisting the employer in establishing and maintaining effective programs for
providing safe and healthful places of employment for employees, in accord with the
requirements of the applicable state or federal laws and regulations. The state shall explain
that while utilizing this service, an employer remains under a statutory obligation to provide
safe and healthful work and working conditions for employees. In addition, while the
identification of hazards by a consultant will not mandate the issuance of citations or
penalties, the employer is required to take necessary action to eliminate employee exposure
to a hazard which in the judgment of the consultant represents an imminent danger to
employees, and to take action to correct within a reasonable time any serious hazards that are
identified. The state shall emphasize, however, that the discovery of such a hazard will not
initiate any enforcement activity, and that referral will not take place, unless the employer
fails to eliminate the identified hazard within the established time frame. The state shall also
explain the requirements for participation in the recognition and exemption program as set
forth in § 1908.7(b)(4), and shall ensure that the employer understands his or her obligation
to post the List of Hazards accompanying the consultant's written report.
(b) Employer requests.
(1) An onsite consultative visit will be provided only at the request of the employer, and shall
not result from the enforcement of any right of entry under state law.
(2) When making a request, an employer in a small, high hazard establishment shall
generally be encouraged to include within the scope of such request all working conditions at
the worksite and the employer's entire safety and health program. However, a more limited
scope may be encouraged in larger and less hazardous establishments. Moreover, any
employer may specify a more limited scope for the visit by indicating working conditions,
hazards, or situations on which onsite consultation will be focused. When such limited
requests are at issue, the consultant will limit review and provide assistance only with respect
to those working conditions, hazards, or situations specified; except that if the consultant
observes, in the course of the onsite visit, hazards which are outside the scope of the request,
the consultant must treat such hazards as 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.
[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 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 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 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 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 § 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]

§ 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 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
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 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]

§ 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. 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.

§ 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.
(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.
(d) Location of sample Cooperative Agreement. A sample Agreement is available for
inspection at all Regional Offices of the Occupational Safety and Health Administration of the
U.S. Department of Labor.
(e) Action upon requests. The State will be notified within a reasonable period of time of any
decision concerning its request for a Cooperative Agreement. If a request is denied, the State
will be informed in writing of the reasons supporting the decision. If a Cooperative Agreement
is negotiated, the initial finding will specify the period for the Agreement. Additional funds
may be added at a later time provided the activity is satisfactorily carried out and
appropriations are available. The State may also be required to amend the Agreement for
continued support.
(f) Termination. Either party may terminate a Cooperative Agreement under this part upon 30
days' written notice to the other party.
(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]

§ 1908.11 Exclusions.
A Cooperative Agreement under this part will not restrict in any manner the authority and
responsibility of the Assistant Secretary under sections 8, 9, 10, 13, and 17 of the Act, or any
corresponding State authority.