[Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31625]
[[Page Unknown]]
[Federal Register: December 27, 1994]
_______________________________________________________________________
Part III
Department of Labor
_______________________________________________________________________
Occupational Safety and Health Administration
_______________________________________________________________________
29 CFR Part 1903
Policy on Employee Rescue Efforts; Interpretive Rule
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1903
Policy on Employee Rescue Efforts
ACTION: Issuance of interpretive rule.
-----------------------------------------------------------------------
SUMMARY: The Occupational Safety and Health Administration (OSHA) is
issuing an interpretive regulation addressing the agency's citation
policy regarding voluntary employee rescue activities.
EFFECTIVE DATE: December 27, 1994.
FOR FURTHER INFORMATION CONTACT:
Anne Cyr, Acting Director, Office of Information and Consumer Affairs,
U.S. Department of Labor, Occupational Safety and Health
Administration, Room N-3647, 200 Constitution Ave., NW., Washington, DC
20210. Telephone: (202) 219-8615.
SUPPLEMENTARY INFORMATION: In carrying out its enforcement
responsibilities under the Occupational Safety and Health Act, OSHA
from time to time investigates workplace incidents which involve not
only injuries to workers directly exposed to hazards, but injuries and
potential injuries to employees who voluntarily attempt to rescue or
assist their fellow workers. OSHA is aware of many instances in which
employees have voluntarily rescued coworkers or rendered emergency
assistance in the aftermath of workplace accidents, sometimes at
considerable risk to themselves. Until recently, there has been no
written instruction by OSHA to its field offices providing guidance in
such situations. Accordingly, the agency has decided to issue an
interpretive rule clarifying its citation policy regarding employers
whose employees perform or attempt to perform rescues of individuals in
life-threatening danger.
It is not OSHA's policy to interfere with or to regulate every
decision by a worker to place himself at risk to save another
individual. Nor is it OSHA's policy to issue citations to employers
whose employees voluntarily undertake acts of heroism to save another
individual from imminent harm, where rescue operations are not part of
the employee's job responsibilities and the likelihood that a rescue
may become necessary is not reasonably foreseeable.
At the same time, employers who have employees working in
environments where the possibility of life-threatening accidents is
reasonably foreseeable are required by various OSHA standards and the
general duty clause to take appropriate precautions to assure that the
rescuers themselves do not become victims. See, e.g., Pride Oil Well
Service, 15 BNA-OSHC 1808 (Rev. Comm.1992); ARO. Inc., 1 BNA-OSHC 1453
(Rev. Com. 1973). Accidents requiring rescue efforts are reasonably
foreseeable in certain working environments such as, for example,
trenches and excavations, hazardous waste operations and emergency
response work, or construction work over water. Confined spaces are
another occupational setting where rescuers, without proper equipment
and precautions, often are killed or injured. ``Worker Deaths in
Confined Spaces: A Summary of Surveillance Findings and Investigative
Case Reports'', National Institute for Occupational Safety and Health,
No. 94-103 (1994).
Because the occurrence of accidents which invite rescue attempts is
foreseeable in various industrial processes and environments, a variety
of OSHA standards include precautions and safeguards for rescue-related
operations, including, e.g., the emergency planning and response
provisions of the process safety management standard, 29 CFR
1910.119(n), and hazardous waste operations standard, 29 CFR
1910.120(1), (p) and (q); and the standards on confined spaces in
general industry, 29 CFR 1910.146, and in grain handling, 1910.272(d),
(e), and (g). In construction, specific rescue precautions are
prescribed, e.g., for work performed near or over water, and for
excavation work, 29 CFR 1926.106, 1926.651(g). See also 29 CFR 1910.38
(employee emergency plans in general industry) and 1926.20, .21, and
.35 (training and emergency action plans in construction).
Under the interpretive rule set forth below, these and other
requirements under the Occupational Safety and Health Act will be
applied in situations involving employee rescue efforts only when the
employer has specifically designated an employee with responsibility to
perform or assist in a rescue operation, or when employees have duties
directly related to workplace processes or operations where the
possibility of life-threatening accidents is foreseeable.
Effect of the Interpretive Rule
The present interpretive rule is intended to make clear that no
citation will be issued by OSHA to any employer, under any OSHA
standard or under the general duty clause, for any rescue activity by
its employees except in the limited circumstances discussed in the
written policy statement to be codified in 29 CFR Part 1903. The rule
is adopted as a general statement of agency policy under the
Administrative Procedure Act, 5 U.S.C. Sec. 553, and is an exercise of
agency prosecutorial discretion in carrying out its enforcement
responsibilities under the OSH Act. The interpretive rule issued today
is not an exercise of standard-setting authority by OSHA; it does not
require any additional compliance action by employers beyond what is
already required under existing OSHA standards and the general duty
clause, nor does it relieve employers of any obligations currently
imposed by those requirements, including the responsibility to
designate and appropriately train and equip emergency personnel when
required under specific safety and health standards.
Regulatory Impact Analysis
In accordance with Executive Order 12866 (58 FR 51735, October 4,
1993) OSHA has assessed the potential impact of this interpretive rule.
Based on the guidelines set forth in the Executive Order, OSHA has
concluded that the interpretation is not a ``significant regulatory
action'' which would necessitate further economic impact evaluation and
the preparation of a regulatory impact analysis. As noted above, the
interpretation does not add to the compliance responsibilities of any
employer subject to the Act; nor would the rule interfere with action
by any other agency. Finally, OSHA finds that today's interpretive rule
would not have an adverse impact on small entities within the meaning
of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
Administrative Procedure
The policy set forth in this Federal Register notice is both an
interpretive rule and a general statement of agency policy within the
meaning of 5 U.S.C. 553(b) and, accordingly, is being issued as a final
rule without opportunity for public comment. OSHA finds, pursuant to 29
USC Sec. 553(d), that good cause exists for making the interpretive
rule effective immediately upon publication; as discussed above, the
rescue policy rule simply states OSHA's enforcement policy that
citations involving employee rescue activity will be issued only with
certain criteria are met, and adds no new compliance responsibilities
beyond those already contained in existing OSHA standards.
List of Subjects in 29 CFR Part 1903
Occupational Safety and Health; Occupational Safety and Health
Administration; Law Enforcement; Penalties.
Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Ave. N.W., Washington, D.C.
20210.
Accordingly, pursuant to section 8 of the Occupational Safety and
Heath Act, 29 U.S.C. 657; Section 553 of the Administrative Procedure
Act, 5 U.S.C. 553; and Secretary of Labor's Order 1-90 (55 FR 9033), 29
CFR Part 1903 is amended as set forth below.
Signed in Washington, D.C. this 20th day of December, 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
PART 1903--INSPECTIONS, CITATIONS AND PROPOSED PENALTIES
1. The authority citation for Part 1903 is revised to read as
follows:
Authority: Secs. 8, 9, Occupational Safety and Health Act of
1970 (29 U.S.C. 657, 658); Secretary of Labor's Order No. 12-71 (36
FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR
9033), as applicable.
Sections 1903.7 and 1903.14 also issued under 5 U.S.C. 553.
2. Section 1903.14 is amended by revising the section heading and
adding a new paragraph (f) to read as follows:
Sec. 1903.14 Citations; notices of de minimis violations; policy
regarding employee rescue activities.
* * * * *
(f) No citation may be issued to an employer because of a rescue
activity undertaken by an employee of that employer with respect to an
individual in imminent danger unless:
(1) (i) Such employee is designated or assigned by the employer to
have responsibility to perform or assist in rescue operations, and
(ii) the employer fails to provide protection of the safety and
health of such employee, including failing to provide appropriate
training and rescue equipment; or
(2) (i) such employee is directed by the employer to perform rescue
activities in the course of carrying out the employee's job duties, and
(ii) the employer fails to provide protection of the safety and
health of such employee, including failing to provide appropriate
training and rescue equipment; or
(3) (i) such employee is employed in a workplace that requires the
employee to carry out duties that are directly related to a workplace
operation where the likelihood of life-threatening accidents is
foreseeable, such as a workplace operation where employees are located
in confined spaces or trenches, handle hazardous waste, respond to
emergency situations, perform excavations, or perform construction over
water; and
(ii) such employee has not been designated or assigned to perform
or assist in rescue operations and voluntarily elects to rescue such an
individual; and
(iii) the employer has failed to instruct employees not designated
or assigned to perform or assist in rescue operations of the
arrangements for rescue, not to attempt rescue, and of the hazards of
attempting rescue without adequate training or equipment.
(4) For purposes of this policy, the term ``imminent danger'' means
the existence of any condition or practice that could reasonably be
expected to cause death or serious physical harm before such condition
or practice can be abated.
[FR Doc. 94-31625 Filed 12-23-94; 8:45 am]
BILLING CODE 4510-26-M
