Staff guidelines on using an advisory committee to develop a rulemaking proposal

Advisory committees are often used to assist OSHSB staff in developing rulemaking proposals that may significantly impact California employers and employees. The practice is most common in the development of highly sensitive, controversial, or complex regulations. Although the use of an advisory committee is not mandated, Board and Division staff have used them for years as an effective method to reach consensus among affected groups. The resulting rulemaking package typically goes through the public hearing process with little or no controversy and results in a more effective and efficient final regulation. The composition and procedures of advisory committees to consider development of rulemaking should adhere to the following steps to ensure that the resulting rulemaking will be reasonable and effectively protect California employees.

Composition

1. Advisory committees should include one or two technical personnel from the Board and the Division. The committee membership should represent the affected industry(s) and be balanced between management and labor. Also, technical experts from other state agencies, academic institutions, professional associations, or other interested groups should be considered for membership.

2. When invited industry members or their alternates (management or labor) do not attend, the meeting should continue since those invited have the opportunity to submit comments for committee consideration.

3. The Division and the Board staff should always have a representative on each other's advisory committees.

Procedures

1. The advisory committee's purpose is to assist the Board in determining if standards are necessary to protect California's employees, and if so, how they should be crafted. The industry representatives can be of great help in offering technical expertise and in helping the staff understand problems in implementing a standard at the workplace. The staff is responsible for considering the consensus recommendations to develop a reasonable and effective proposal.

2. The Board has the responsibility to adopt standards which, in its opinion, will mitigate or remove workplace hazards. The committee should understand that its role is to advise staff on how best to meet that objective. The advisory committee should be aware that the Board or staff may choose to modify, accept or reject the advisory committee recommendation later in the rulemaking process.

3. Interested parties are encouraged to attend committee meetings even when they are not officially asked to be a member of the committee. However, the individuals selected as members should be the persons primarily relied on to develop a consensus recommendation for staff and Board consideration.

4. All members and interested parties must be given an opportunity to contribute their input on proposals in an orderly manner. If significant discussion is anticipated, the chairperson should first ask committee members to address the issues before opening discussion to others.

5. When developing a proposal in response to a federal mandate, regulations in California must be at least as effective as the corresponding federal regulations. Certainly, dissatisfaction with a federal standard can be placed in issue, but individuals should be reminded that the federal comment period was the appropriate time to express such concerns. The committee should focus on developing a reasonable proposal that is at least as effective and addresses any unique California issues.

6. With rare exception, the chairperson of the committee will be a staff member of the Board or the Division. The chairperson is responsible for setting the agenda and will also determine if a meeting should be postponed, continued, or adjourned.

7. Chairpersons should be selected for their technical expertise, along with experience and knowledge of the California OSHA program, Title 8 regulations, the industry, national consensus standards, other agency involvement, and applicable state law, particularly the Labor Code and the Administrative Procedure Act.

8. Chairpersons must be sufficiently prepared prior to committee meetings. Written materials should be provided at least one month in advance of the meeting and a notice included in the Standards Board's Calendar of Activities. It may be necessary to personally call advisory committee members to request them or a substitute to attend meetings, or to provide written comments on draft proposals. An agenda and draft proposal language, and/or other documents (e.g. copies of Title 8 regulations to be reviewed for possible revision) should be prepared and distributed prior to each meeting. Meetings should be held at State facilities in Sacramento, the Bay Area, or Los Angeles, but may be held elsewhere when proposals predominately affect another geographical region.

9. Chairpersons should refer members of the press who may, on occasion, attend or call about advisory committee meetings to the Department's public information office for statements.

10. Advisory committee meetings are informal, but certain rules of decorum apply. One person speaks at a time. Professional courtesy and respect is required from all who attend. Debates are discouraged. One person or group should not monopolize the discussion. The chairperson should be prepared to stop any conduct that does not further the purpose of the meeting. It is the chairperson's responsibility to lead the discussion and to be an example of professionalism.

11. The chairperson should understand that often consensus in all areas is not possible. The chairperson may determine that consensus is not possible within the group on any item or proposal. This can be explained when reporting to the Board with options for the Board to consider for that item. It is suggested that a controversial item might be considered out of sequence during the meeting, at the end of the meeting, or at another meeting when the group has established a cooperative working relationship.

12. Although voting of committee members is discouraged, it may be necessary to do so to develop a consensus or majority. While a consensus is more than a simple majority, it does not refer to a recommendation or position held by the advisory committee members that is unanimous. The chairperson should inform the membership that if they disagree with the consensus, their minority views will be documented in the minutes. However, they can also express their views and reasons to the Board, during the public hearing process.

13. In the event that either the Board or the Division staff disagrees with the committee consensus proposal, or the committee's consensus proposal is contrary to law or unacceptable to federal OSHA, then the necessary revisions should be made to the proposals and the committee members so informed in writing prior to scheduling the matter for Board consideration. Staff should summarize why the final proposal deviates from the committee's consensus opinion.

14. Board Staff and the committee should discuss the fiscal impact of the proposed language. Consideration should be given to any reasonable/feasible alternative to the proposed language and associated fiscal impact.

15. Post advisory committee follow-up consists of distributing minutes and any consensus proposals to members and other interested parties.

July 20, 2000