Title of Regulation: 16VAC25-60. Administrative Regulation for the Virginia Occupational Safety and Health Program (amending 16VAC25-60-240; adding 16VAC25-60-245).

Statutory Authority: § 40.1-22 of the Code of Virginia.

Public Hearing Information:

April 16, 2009 - 10 a.m. - State Corporation Commission, Tyler Building, 1300 East Main Street, Richmond, VA

Public Comments: Public comments may be submitted until 5 p.m. on May 15, 2009.

Agency Contact: John J. Crisanti, Planning and Evaluation Manager, Department of Labor and Industry, Powers-Taylor Building, 13 South Thirteenth Street, Richmond, VA 23219, telephone (804) 786-4300, FAX (804) 786-8418, TTY (804) 786-2376, or email john.crisanti@doli.virginia.gov.

Basis: The Safety and Health Codes Board is authorized by § 40.1-22 of the Code of Virginia to:

"... adopt, alter, amend, or repeal rules and regulations to further, protect and promote the safety and health of employees in places of employment over which it has jurisdiction and to effect compliance with the federal OSH Act of 1970...as may be necessary to carry out its functions established under this title.

In making such rules and regulations to protect the occupational safety and health of employees, the Board shall adopt the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence that no employee will suffer material impairment of health or functional capacity. However, such standards shall be at least as stringent as the standards promulgated by the federal OSH Act of 1970 (P.L.91-596). In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experiences gained under this and other health and safety laws."

Purpose: The purpose of the proposal is to provide VOSH personnel with procedures on how to exercise the commissioner’s statutory authority to take and preserve testimony, examine witnesses and administer oaths, in instances where witnesses/employees/supervisors refuse requests for interviews or refuse to answer specific questions posed by a VOSH inspector.

Substance: The amendment establishes procedures for the commissioner or his appointed representatives under § 40.1-6 of the Code of Virginia to take and preserve testimony, examine witnesses and administer oaths under §§ 40.1-6 and 40.1-10. The proposed regulation specifies the wording of the oath to be administered and the manner in which it will be administered. It explains the manner in which the commissioner will appoint in writing department personnel as his representatives having the authority to administer such oaths and have the authority to examine witnesses in accordance with the procedures outlined in the regulation. It specifies that testimony preserved under the regulation would be recorded by a court reporter. It specifies the level of confidentiality that would attach to any testimony preserved under the statute. The amendment establishes a procedure for the commissioner or his authorized representatives to follow in the event that any employer refuses to make an employee or supervisor available to provide testimony in accordance with § 40.1-6 of the Code of Virginia. The proposed regulation provides that an application for an inspection warrant under §§ 40.1-49.8 through 40.1-49.12 for VOSH investigations/inspections will be submitted to the local general district or circuit court with jurisdiction over the employer.

Lastly, it establishes a procedure for the commissioner or his authorized representatives to follow in the event that any person who has sworn to give testimony willfully refuses or fails to answer any legal and proper question in accordance with §§ 40.1-10 and 40.1-6, up to and including referring such refusal to the appropriate attorney for the Commonwealth for prosecution of the individual involved.

Issues: In fatal and nonfatal accident investigations particularly and more routine inspections as well, VOSH inspectors are required to interview one or more employees and supervisors. VOSH personnel sometimes encounter witnesses/employees/supervisors that refuse to talk with our inspectors or avoid answering specific questions for a variety of reasons. Although such refusals are rare, they can have a significant impact on the promptness, thoroughness and quality of the investigation.

It is a generally accepted investigative principle that the closer in time to an event that information about the event is obtained from witnesses, the better the chance is that the information will be accurate. Refusals can result in delays in obtaining witness statements immediately after the accident occurs, potentially resulting in altered memories and less accurate information concerning the cause of the accident.

In addition, the investigative process is often a very fluid one, where statements made by one witness can lead to additional questions being asked of other witnesses, or previously undisclosed documents being obtained from the employer. Such refusals not only result in the loss of the individuals’ testimony, but can also result in the loss of other potential leads in the investigation. Early access to such information will result in higher quality investigations, and better and more accurate outcomes.

When such refusals do occur, the inability to gather crucial information from eyewitnesses and sometimes the testimony of the injured employee greatly hampers the VOSH program’s ability to complete a full and fair investigation of the accident in a timely manner. Section 40.1-49.4 A 3 of the Code of Virginia requires VOSH to issue citations within six months following the occurrence of any alleged violation. The commissioner’s statutory authority to take and preserve testimony, examine witnesses and administer oaths, if implemented through regulation, could be used to obtain necessary testimony very early in the investigative process, avoiding delays and potentially altered memories.

Employers would have to make employees available for private interview as identified by the commissioner or his representative in accordance with procedures in the proposed regulation, implementing the statutory requirements in §§ 40.1-6 and 40.1-10 of the Code of Virginia.

The commissioner currently has the statutory authority to "question privately any such employer, owner, operator, agent or employee" during a VOSH inspection in accordance with § 40.1-49.8 of the Code of Virginia. As noted previously, VOSH investigation procedures provide for employee interviews on all inspections, and employers, as a regular course of business, make their employees available for such interviews without limitation. VOSH does not believe the proposed regulation will have a significant cost impact on employers for the following reasons:

1. VOSH estimates that it will seek to use the new procedures in the proposed regulation to require an employer to make an employee available for an interview on an average of five or fewer cases per year.

2. The average length of a VOSH interview is normally 15 minutes or less; however, in accident cases an interview may last up to 60-90 minutes. Significant down time for employers or employees is not anticipated.

3. Interview locations would normally be at the employer’s worksite, an agreed to alternate site, or at the local VOSH Office. Significant travel costs are not anticipated.

4. VOSH will assume the cost of transcription services.

Employees would have to provide testimony, in accordance with any procedures implementing the statutory requirements in §§ 40.1-6 and 40.1-10. As noted previously, VOSH investigation procedures provide for employee interviews on all inspections, and employees and supervisory personnel regularly agree, without limitation, to be interviewed. VOSH does not believe the proposed regulation will have a significant cost impact on employees for the reasons listed above.

The department would have to designate and train personnel on the procedures implementing the statutory requirements in §§ 40.1-6 and 40.1-10. The average cost of transcriptions services ranges for a one hour interview is approximately $200. The VOSH Program estimates that annual costs for interviews under the proposed regulations would be $1,000 or less.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Safety and Health Codes Board (Board) proposes to amend its Administrative Rules for the Virginia Occupational Safety and Health (VOSH) Program to note the Department of Labor and Industry (DOLI) Commissioner’s statutory power to take and preserve testimony, examine witnesses and administer oaths, either personally or through appointed representatives. The Board also proposes to set procedures for investigations conducted by the Commissioner.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Currently, DOLI does not have regulatory language that lays out the DOLI Commissioner’s rights and responsibilities for collecting and preserving testimony related to VOSH hearings. Virginia statute does, however, list the powers and responsibilities of Commissioner, including the power to "take and preserve testimony, examine witnesses and administer oaths and file a written or printed list of relevant interrogatories and require full and complete answers to the same to be returned under oath within thirty days of the receipt (of interrogatories)." The Board proposes to amend these regulations so that the Commissioner’s statutory power in this regard is laid out in administrative code as well as statute. This proposed amendment will not allow additional power for the Commissioner, or alter how investigations are conducted, so affected entities are very unlikely to incur any costs on account of this regulatory change. To the extent that any interested party has, in the past, had to search through two sets of rules (the Code of Virginia and the Virginia Administrative Code) to ascertain the role of the Commissioner in the hearing process, this amendment should provide the benefit of clarity.

The Board also proposes to add new regulatory language that will:

• Specify the wording of the oath the Commissioner (or his representative) can administer;

• Specify that the Commissioner may appoint, in writing, a representative and that such a written appointment must include the representative’s name, the length of the appointment, how the appointment will be withdrawn (if necessary) and which of Commissioner’s duties the representative will fulfill;

• Specify that any testimony given under oath must be recorded by a court reporter; and

• Reiterate the Commissioner’s statutory authority to seek a court order to compel cooperation in VOSH investigations and list the statutory penalties that may accrue should such a court order be ignored.

All of the changes will tend to explain the investigative process for affected entities and interested parties without requiring anything additional from those entities. Accordingly, these changes will likely provide clarity without imposing additional costs.

Businesses and Entities Affected. DOLI estimates that the Commissioner has to assert his authority to take and preserve testimony in five or fewer cases annually.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB’s best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Department of Labor and Industry has no additional comment in response to the economic impact analysis.

Summary:

The proposed amendment establishes procedures for the commissioner or his appointed representatives under § 40.1-6 of the Code of Virginia to take and preserve testimony, examine witnesses and administer oaths under §§ 40.1-6 and 40.1-10.

16VAC25-60-240. Walkthrough.

Walkthrough by the commissioner for the inspection of any workplace includes the following privileges.

1. The commissioner shall be in charge of the inspection and, as part of an inspection, may question privately any employer, owner, operator, agent, or employee. The commissioner shall conduct the interviews of persons during the inspection or at other convenient times. The commissioner may take and preserve testimony, examine witnesses and administer oaths as provided for in 16VAC25-60-245.

2. As part of an inspection, the commissioner may take or obtain photographs, video recordings, audio recordings and samples of materials, and employ other reasonable investigative techniques as deemed appropriate. As used here, the term "employ other reasonable investigative techniques" includes, but is not limited to, the use of devices to measure employee exposures and the attachment of personal sampling equipment such as dosimeters, pumps, badges and other devices to employees in order to monitor their exposures.

3. Any employee representative selected to accompany the commissioner during the inspection of the workplace shall be an employee of the employer. Additional employer representatives and employee representatives may be permitted by the commissioner to accompany the inspection team where the commissioner determines such additional persons will aid in the inspection. A different employer representative or employee representative may accompany the commissioner during each phase of the inspection if, in the determination of the commissioner, this will aid in the conduct of the inspection.

4. The commissioner may limit the number of representatives when the inspection group would be of such size as to interfere with the inspection or create possible safety hazards, or when the representative does not represent an employer or employee present in the particular area under inspection.

5. In such cases as stated in subdivision 4 of this section, the commissioner must give each walkthrough representative the opportunity to advise of possible safety or health hazards and then proceed with the inspection without walkthrough representatives. Whenever the commissioner has limited the number of employee walkthrough representatives, a reasonable number of employees shall be consulted during the inspection concerning possible safety or health hazards.

6. Technical personnel such as safety engineers and industrial hygienists or other consultants to the commissioner or the employer may accompany the commissioner if the commissioner determines that their presence would aid in the conduct of the inspection and agreement is obtained from the employer or the commissioner obtains an order under § 40.1-6(8)(b) of the Code of Virginia. All such consultants shall be bound by the confidentiality requirements of § 40.1-51.4:1 of the Code of Virginia.

7. The commissioner is authorized to dismiss from the inspection party at any time any person or persons whose conduct interferes with the inspection.

16VAC25-60-245. Take and preserve testimony, examine witnesses and administer oaths.

A. Subdivision 4 of § 40.1-6 of the Code of Virginia authorizes the commissioner, in the discharge of his duties, to take and preserve testimony, examine witnesses and administer oaths. In accordance with subdivision 5 of § 40.1-6 of the Code of Virginia, the Commissioner of Labor and Industry may appoint such representatives as are necessary to carry out the functions outlined in subdivision 4 of § 40.1-6 of the Code of Virginia. Such appointments shall be made in writing; identify the individual being appointed, the length of appointment, the method of withdrawal of such appointment; and specify what duties are being prescribed.

B. The oath shall be administered by the commissioner's appointed representative to the witness as follows: "Do you swear or affirm to tell the truth."

C. Testimony given under oath shall be recorded by a court reporter.

D. Questioning of employers, owners, operators, agents or employees under oath shall be in private in accordance with subdivision 2 of § 40.1-49.8 of the Code of Virginia.

E. An employer's refusal to make an owner, operator, agent or employee available to the commissioner for examination under this section shall be considered a refusal to consent to the commissioner's inspection authority under § 40.1-49.8 of the Code of Virginia. Upon such refusal the commissioner may seek an administrative search warrant in accordance with the provisions contained in §§ 40.1-49.9 through 40.1-49.12 of the Code of Virginia, and obtain an order from the appropriate judge commanding the employer to make the subject owner, operator, agent or employee available for examination at a specified location by a date and time certain.

F. In accordance with § 40.1-10 of the Code of Virginia, if any person who may be sworn to give testimony shall willfully fail or refuse to answer any legal and proper question propounded to him concerning the subject of the examination under § 40.1-6 of the Code of Virginia, he shall be guilty of a misdemeanor. Such person, upon conviction thereof, shall be fined not exceeding $100 nor less than $25 or imprisoned in jail not exceeding 90 days or both. Any such refusal on the part of any person to comply with this section may be referred by the Commissioner of Labor and Industry to the appropriate attorney for the Commonwealth for prosecution.