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1994-09-05
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U.S. DEPARTMENT OF LABOR
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
STEEL ERECTION
NEGOTIATED RULEMAKING ADVISORY COMMITTEE
GROUNDRULES
1. Goal of the Committee.
The goal of the Negotiating Committee is to reach consensus on a recommended safety standard
for steel erection.
2. Participants
a. Interests Represented. Any interest that would be significantly affected by an OSHA safety
standard for steel and other structural erection may be represented in the negotiations.
b. Parties to the Negotiations. The Committee consists of those individuals whom the Secretary
appoints, as nominated by the affected interests. Each organization or interest caucus that is
directly represented on the Committee shall be deemed a party to the negotiations.
c. Committee Members. Each committee member appointed by the Secretary agrees to serve until
the dissolution of the Committee unless that member become unable to serve, resigns, or ceases
to maintain the representational requirements.
d. Alternates for Committee Members. Each party to the negotiations may designate an alternate
Committee Member. Alternates may substitute for Committee Members in the event the
Member cannot attend a session of the Negotiating Committee.
e. Additional Interests. Additional organizational interests may join the Committee after
negotiations have begun only with the concurrence of the Committee.
f. Attendance at Meetings.
(1) Each Committee Member agrees to make a good faith effort to attend every session of the
Negotiating Committee. In addition, the Committee Member's alternate agrees to make
a good faith effort to attend all Committee meetings and to represent the interest at any
meeting that the Member is unable to attend.
(2) Only Committee Members or their alternates have the privilege of sitting at the
negotiating table and of speaking from the floor during the negotiations without
Committee approval, except
(a) any Committee Member may call upon another individual to elaborate on a relevant
point,
(b) Committee Counsel may raise and address appropriate points, and
(c) any person attending the Committee meetings may address the Committee if time
permits or file statements with the Committee.
g. Constituents' Interests. Committee Members are expected to represent the concerns of their
interest group to ensure that any agreement developed by the Committee is acceptable to the
organization or caucus which the Committee Member represents.
3. Decisionmaking
a. Consensus. The Committee will operate by consensus which, for these purposes, means the
unanimous concurrence of all parties to the negotiations. Concurrence will be assumed absent
overt dissent. All agreements reached during the negotiations are tentative and may be made
by the Members present at the meeting or their Alternates who attend a meeting in their stead
until the Committee reaches an agreement that is binding on the parties.
b. Workgroups.
(1) Workgroups may be formed to address specific issues and to develop information for,
advise, and make recommendations to the Committee. Although each party may designate
a member of each workgroup, the membership of each workgroup should consist of no
more than fifteen people. Other individuals who the Committee believes would enhance
the functioning of a workgroup or representatives of interests that would be significantly
affected by the topics addressed by the workgroup but which are not otherwise represented
on the Negotiating Committee may also serve on that workgroup. Not all organizations
or interest caucuses represented on the Negotiating Committee need to participate in each
workgroup.
(2) OSHA will provide appropriate support for the Workgroups, including a senior economist,
senior technical staff, clerical support, and so forth.
(3) Workgroups are not authorized to make decisions for the Committee as a whole.
Decisions to forward a report of a workgroup to the Negotiating Committee shall be made
with the concurrence of all workgroup members who are present at the meeting where the
decision is made.
(4) Workgroup meetings will be held between the full sessions and will be scheduled in the
same location and time whenever possible. All Committee Members will be notified of
all workgroup meetings.
c. Discontinue if Unproductive. The Committee may discontinue negotiations at any time if they
do not appear productive.
d. Deadline for Negotiations. Negotiations will terminate by June 14, 1995 unless the Committee
decides to extend the deadline.
4. Agreement
a. Written Statement. Any agreement reached by the Committee on recommended standards will
take the form of a written statement that will be signed by all parties to the negotiations. It
is anticipated that the agreement will include the specific language of a proposed rule, its
supporting preamble, a Regulatory Impact Analysis, and all other appropriate materials
necessary for the publication of a Notice of Proposed Rulemaking.
b. Statement as Basis for NPRM. OSHA agrees to use the written statement as the basis for a
Notice of Proposed Rulemaking to the maximum extent possible consistent with the Agency's
legal obligations.
c. Distribution of NPRM. OSHA agrees to send the Members of the Committee copies of the
proposed standard and its preamble prior to the signature of the Secretary. OSHA will consult
with Committee Members with respect to the draft standard and preamble in an effort to
address any concerns they may have.
d. No Negative Comments. Each party agrees not to file negative comments on the proposed
standard or its preamble to the extent they have the same substance and effect as the written
statement.
e. Response to Public Comments. OSHA will consider all relevant comments submitted
concerning the Notice of Proposed Rulemaking and will make such modifications in the
proposed standard and its preamble as are necessary when issuing a final standard. After the
close of the comment period on the Notice of Proposed Rulemaking, the Committee shall
reconvene as necessary to consider those comments for preparation of the final rule.
f. No Adverse Action and Support. Each party agrees not to take any action to inhibit the
adoption of the recommended proposed standard as a final standard to the extent the final
standard and its preamble have the same substance and effect as the written statement. If any
person does anything to inhibit the adoption of a final standard that has the same substance
and effect as the written statement, each party other than OSHA agrees to submit comments
to OSHA and any other relevant Federal official stating that
(1) the party concurred in the written statement, and
(2) it supports the adoption of a final standard with the same substance and effect as the
written statement.
g. Distribution of Draft Final Rule. OSHA will send the Members of the Committee copies of
the final standard and its preamble prior to the signature of the Secretary. OSHA will consult
with Committee Members with respect to the draft final standard and preamble in an effort
to address any concerns they may have to the maximum extent consistent with applicable law.
h. Final Standard. Recognizing that under the Appointments Clause of the Constitution
governmental authority may be exercised only by officers of the United States and recognizing
that it is OSHA's sole responsibility to issue a final standard, OSHA intends to issue a final
standard that is based on the written agreement concurred in by the Committee as modified
pursuant to Paragraph (e).
i. No Challenge. Each party agrees not to challenge the standard in court to the extent that the
final standard and its preamble have the same substance and effect as the written statement.
j. Memo of Concurrence in Docket. Each party other than OSHA agrees to submit a
memorandum to the docket that it participated in the negotiations and that it concurred in the
recommended proposed standard when considered as a whole if
(1) adverse comments are filed with the agency or the standard is challenged in court and
(2) the preamble and standard have the same substance and effect as the written statement.
5. Facilitator
A neutral facilitator will work with all the parties to ensure that the process runs smoothly. The
facilitator serves at the will of the Committee.
6. Meetings
a. FACA, NRA, and DOL Policy. The negotiations will be conducted under the Federal Advisory
Committee Act (FACA), the Negotiated Rulemaking Act of 1990 (NRA), and the
Department of Labor's Negotiated Rulemaking Policy.
b. Open Meetings. Negotiating sessions will be announced in the Federal Register prior to the
meeting and will be open to the public.
c. Meeting Summaries. The proceedings will not be electronically recorded, but summaries of
Committee meetings will be prepared by the facilitator for the convenience of the Committee.
Such meeting summaries shall not be approved by the Committee and shall not be construed
or taken to represent the official position of the Committee or any Member as to what
transpired at Committee meetings. No photographs may be taken during meetings without
the approval of the Committee.
d. Agendas. Meeting agendas will be developed by consensus.
e. Impasse. If a deadlock or impasse is declared by any party, the facilitator will be available to
help the deadlocked parties to try to resolve the impasse.
f. Caucus. Any party or the facilitator may declare a caucus at any time. The facilitator will be
available to help in caucus activities.
7. Safeguards for the Parties
a. Good Faith. All parties agree to act in good faith in all aspects of these negotiations. Specific
offers, positions, or statements made during the negotiations may not be used by other parties
for any purpose outside the negotiations or as a basis for future litigation. It is the intent of the
Committee that other attendees of the Committee's meetings also voluntarily comply with this
provision in order to support the negotiation process by encouraging the free and open
exchange of ideas, views, and information prior to achieving consensus. Personal attacks will
not be tolerated. The parties agree to address the issues in the Committee and not to subvert
its process by appealing to others within a member's organization and interest to take a position
different from the one the member is taking in the Committee's activities.
b. Right to Withdraw. Any party may withdraw from the negotiations at any time without
prejudice. The remaining Committee Members will then decide whether to continue the
negotiations.
c. Others' Positions. No party will make public announcements or hold discussions with the press
characterizing the position of any other party even if that party withdraws from the
negotiations.
d. Information.
(1) All parties agree not to withhold relevant and non-proprietary information, recognizing that
competitive concerns may make disclosure of certain information unlawful or competitively
sensitive. If a party believes it cannot or should not release such information, it will provide
the substance of the information in some form (such as by aggregating data, by deleting
non-relevant confidential information, by providing summaries, or by furnishing it to a
neutral consultant to use or abstract) or a general description of it and the reason for not
providing it directly.
(2) Parties agree to provide information called for by this paragraph as much in advance of the
meeting at which such information is to be used as is reasonably convenient. All parties
agree not to divulge information that is not required to be included in the meeting
summaries and which is shared by others in confidence.
(3) Information and data provided to the Committee in writing is a matter of public record.