[Federal Register Volume 62, Number 61 (Monday, March 31, 1997)]
[Rules and Regulations]
[Pages 15324-15340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7959]
[[Page 15323]]
_______________________________________________________________________
Part V
Department of Labor
_______________________________________________________________________
Occupational Safety and Health Administration
_______________________________________________________________________
29 CFR Part 1903
Abatement Verifcation; Final Rule
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules
and Regulations
[[Page 15324]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1903
[Docket No. C-03]
RIN 1218-AB40
Abatement Verification
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule.
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SUMMARY: OSHA is issuing a final regulation requiring those employers
who have received a citation(s) for violation(s) of the Occupational
Safety and Health Act (OSH Act or Act) to certify that they have abated
the hazardous condition for which they were cited and to inform
affected employees of their abatement actions. The abatement procedures
a specific employer must follow depend on the nature of the
violation(s) identified and the employer's abatement actions. If
abatement occurs during or immediately after the inspection that
identified the violation(s), the employer is not required to submit an
abatement certification letter to OSHA. If the violation(s) is an
other-than-serious violation, or a serious violation that does not
require additional documentation, the employer is required to certify
abatement using a simple one-page form or equivalent. In cases
involving the most serious violations, additional documentation is
required. The final regulation being published today codifies,
simplifies, and streamlines the abatement certification procedures that
OSHA has previously enforced administratively. OSHA has determined that
this abatement verification regulation will reduce employers'
paperwork, enhance employee participation in the abatement process,
increase the number of cited hazards that are quickly abated, and
streamline and standardize OSHA's abatement procedures.
DATES: This final rule is effective on May 30, 1997.
FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Office of Information
and Consumer Affairs, OSHA, Room N-3647, U.S. Department of Labor, 200
Constitution Ave., N.W., Washington, D.C. 20210; telephone: (202) 219-
8148.
SUPPLEMENTARY INFORMATION: A Table of Contents identifying the various
portions of this regulatory package follows.
Table of Contents
I. Background
II. Summary and Explanation of the Regulation
Paragraph (a). Scope and application
Paragraph (b). Definitions
Paragraph (c). Abatement certification
Paragraph (d). Abatement documentation
Paragraph (e). Abatement plans
Paragraph (f). Progress reports
Paragraph (g). Employee notification
Paragraph (h). Transmitting abatement documents
Paragraph (i). Movable equipment
III. References
IV. Pertinent Legal Authority
V. Paperwork Reduction Act of 1995
VI. Summary of the Final Economic Analysis
VII. Regulatory Flexibility Certification
VIII. Environmental Impact Assessment
IX. Federalism
X. State Plans
I. Background
Under the OSH Act, 29 U.S.C. 651 et seq., OSHA inspects workplaces
to determine whether employers are complying with OSHA standards and
other statutory and regulatory requirements. The purpose of OSHA
inspections is to identify violative conditions that pose safety and
health hazards to employees and to ensure that these conditions are
abated. If OSHA determines that a given employer has committed a
violation, a citation is issued. The citation references the alleged
violation, notes the proposed penalties, and indicates the date by
which the violation is to be corrected, i.e., the abatement date (see
Section 9(a) of the OSH Act and 29 U.S.C. 658(a)). For each inspection,
OSHA opens an employer-specific case file; this case file remains open
throughout the inspection process and is not closed until the Agency is
satisfied that abatement has occurred.
OSHA has followed a variety of administrative procedures in the
past to ensure that employers abate cited hazards, and has modified
these procedures a number of times in the years since the Agency was
established. Currently, the cover letter to the employer that
accompanies all OSHA citations states that the cited employer must
notify the Area Director promptly by letter of completed abatements, as
well as provide documentation, such as a photograph or description of
the method of abatement, that abatement has occurred. OSHA also
frequently conducts follow-up-inspections to verify that abatement has
in fact occurred.
In May 1991, the General Accounting Office (GAO) issued a report
(GAO/HRD-91-35) to Congress in which the GAO assessed the adequacy of
OSHA's policies and procedures for ensuring the abatement of cited
hazards. This report found that OSHA's abatement policies and
procedures had limitations that interfered with the Agency's ability to
identify those employers who have failed to abate the safety and health
hazards for which they had been cited. The GAO also was concerned about
hazard abatement problems in the construction industry (e.g., that some
construction employers, to avoid abatement, moved cited hazardous
equipment to another location, where the uncorrected hazard could
continue to pose a risk to unsuspecting employees). The GAO report
concluded that OSHA should correct these deficiencies by issuing a
regulation that requires employers to provide specific documentation
that they have abated cited hazards, including detailed evidence of the
corrective actions they have taken to abate such hazards, and prevents
employers from circumventing abatement by removing cited movable
equipment from the worksite and using it at another worksite.
Prior to the GAO report, the Agency had made several efforts to
strengthen OSHA's abatement verification policies by revising the OSHA
Field Operations Manual (FOM) (superseded by the Agency's Field
Inspection Reference Manual); the most recent of these revisions was
made in 1989. These revisions strengthened OSHA's abatement
verification procedures but did little to ensure that these procedures
were being applied uniformly across the regulated community.
The regulation being issued today will address the GAO's concerns
while at the same time streamlining and codifying OSHA's procedures for
abatement verification. Once this regulation is effective, these
procedures will be enforced in a consistent way by all OSHA Area
Offices, eliminating inconsistencies and reducing the amount of
paperwork employers who receive citations must complete to notify OSHA
of their abatement actions. In cases where abatement action can be
taken immediately or be completed within 24 hours of the time the
Compliance Officer has identified the violation, employers will not be
required to certify abatement. In other cases, i.e., those involving
other-than-serious and some serious violations, employers are required
only to provide OSHA with the information shown in Appendix A or its
equivalent. Additional documentation is required only for the most
serious violations (e.g., serious violations that the Agency has
specifically identified in the citation as requiring documentation and
repeat or willful violations.
[[Page 15325]]
Many employers have not been aware that the abatement verification
procedures employed by OSHA in the past have been administrative,
rather than regulatory, in nature. For example, several commenters in
this rulemaking (Exs. 4-22, 4-23, 4-28, and 4-61) were of the opinion
that no abatement verification regulation was required because OSHA
already has the legal means to verify abatement. These commenters were
apparently unaware that, because the Agency's procedures had not been
codified, they did not have the force of law.
OSHA finds that establishing effective abatement verification
procedures by regulation will have a number of benefits for employers,
employees, and OSHA. This abatement verification regulation will
strengthen employee protection by increasing the number of cited
hazards abated by employers, reduce employers' paperwork and associated
costs, increase employee involvement in the abatement process,
streamline the process, and increase the consistency of OSHA's
abatement procedures in all areas of the country.
II. Summary and Explanation of the Regulation
This section of the preamble discusses the requirements of the
final regulation, describes changes made to the regulation in response
to comments received on the proposal, and summarizes the comments
received.
Purpose
A paragraph clearly stating the purpose of this regulation has been
added to the final rule. This new paragraph describes the intent of
OSHA's inspection process and stresses that abatement of violative
conditions identified during an OSHA inspection is the overriding goal
of that process. The abatement verification regulation establishes the
procedures OSHA will follow to ensure that individual employers who
have been cited for workplace-specific hazards have abated those
hazards. The actions cited employers are required to take to verify
abatement, which are set forth in this regulation, are tailored
specifically to the nature of the hazard cited and to the employer's
abatement actions. That is, the extent of the abatement verification
required by OSHA is commensurate with the seriousness of the violation
and the actions the employer takes to abate the cited hazard.
Paragraph (a). Scope and Application
The scope of the final regulation has been revised since the
proposal to make clear that this section applies only to those
individual employers who have received an OSHA citation for a
workplace-specific violation of the Occupational Safety and Health Act.
Employers who have not been cited are not subject to this regulation.
Thus, only those employers for whom OSHA has opened a specific case
file are covered by this regulation.
Paragraph (b). Definitions
Paragraph (b) includes definitions for terms used in the final
rule. Two proposed definitions have been modified minimally in the
final rule to enhance clarity and are not further discussed here. These
terms are ``Abatement date'' and ``Final order date.'' In addition,
several terms that were defined in the proposal have been deleted from
the Definitions paragraph of the final rule because OSHA believes they
are self-explanatory. These terms include ``Area Director,''
``Assistant Secretary,'' and ``Citation item.'' Further, OSHA believes
that the meaning of several terms that were defined in the proposal is
now clear from the context in which they are used in the regulatory
text. These terms include ``Abatement plan,'' ``Commission,''
``Petition for modification of abatement date (PMA),'' ``PMA final
order,'' and ``Progress report.'' However, in response to comments,
OSHA has altered some definitions from those proposed and has added
others. These changes are discussed further in the following
paragraphs.
Abatement
OSHA has added ``Abatement'' to the list of definitions included in
the final regulation. Abatement is defined as ``action by an employer
to comply with a cited standard or regulation or to eliminate a
recognized hazard identified by OSHA during an inspection.'' This
definition makes clear that OSHA issues citations both for violations
of particular standards and for violations of the General Duty Clause
(Sec. 5(a)(1) of the Act, 29 USC 654(a)(1)), which requires employers
to provide their employees with ``employment and a place of employment
which are free from recognized hazards that are causing or are likely
to cause death or serious physical harm,'' and that the abatement
procedures prescribed by this regulation apply to both types of
violations. This definition of abatement is consistent with that used
in Chapter IV of OSHA's compliance instruction, CPL 2.103, the Field
Inspection Reference Manual (FIRM). Examples of methods commonly used
to abate cited hazards include the use of engineering controls (such as
local exhaust ventilation) to reduce the exposure of employees to a
toxic substance to the levels prescribed by an OSHA standard;
correction of a deficiency in a program, such as the respiratory
protection program required by 29 CFR 1910.134; or the use of
permissible electrical equipment to eliminate a fire hazard.
Abatement Date
The final rule defines the abatement date for an uncontested
citation as the later of the following dates: the abatement date
identified in the citation; the date approved by OSHA or established in
litigation as a result of a PMA; or the date established in a citation
by an informal settlement agreement. For contested citation items for
which the Occupational Safety and Health Review Commission has issued a
final order, the abatement date is the later of the following dates:
the date identified in the final order for abatement; the date computed
by adding the period allowed in the citation for abatement to the final
order date; or the date established by a formal settlement agreement.
OSHA has added this definition to the final rule to provide cited
employers with specific information on the meaning of this term as it
is used in the final regulation.
Affected Employees
``Affected employees'' is defined to mean ``those employees who are
exposed to the hazard(s) identified as violation(s) in a citation.''
This definition has been added to clarify that the term, as used in
this regulation, applies specifically to those employees who are put at
risk by the safety or health hazard cited by the OSHA Compliance
Officer.
OSHA received one comment (Ex. 4-31) asking that the word
``worksite'' be defined because, according to this commenter, it was
used ambiguously in the proposal. Instead of defining this term,
however, OSHA has responded to this comment by ensuring that the word
``worksite'' is used unambiguously in the final rule.
Final Order Date
The final regulation defines the final order date for uncontested
citation items as the 15th working day after the employer receives an
OSHA citation. For a contested citation item, the final order date is
(A) the 30th day after the date on which a decision or order of a
Commission (OSHRC) administrative law judge has been docketed with the
Commission unless a member has directed review; or (B) if review has
been directed, the 30th day after the
[[Page 15326]]
date on which the Commission decided or issued an order on all or the
pertinent part(s) of the case; or (C) the date on which a Federal
appeals court issues a decision in a case in which a final order of
OSHRC has been stayed. OSHA has added a definition of this term to the
final regulation to provide employers with specific information on the
meaning of this term in the context of the final rule.
Movable Equipment
The final rule defines movable equipment as any hand-held or non-
hand-held machine or device, whether powered or unpowered, that is used
to do work and is moved within or between worksites. This definition
has been added to the final rule to clarify the types of equipment to
which the requirements of paragraph (i) of the final rule apply.
Paragraph (c). Abatement Certification
Paragraph (c) of the final rule sets forth the requirements
employers must follow to certify that they have abated a workplace-
specific safety or health hazard cited by OSHA. The title of paragraph
(c) has been revised from that used in the proposed rule, ``abatement
certificate,'' to ``abatement certification'' to emphasize that the
requirements of this paragraph relate to the process of abatement
certification, rather than to a particular document.
Many commenters favored changing the Agency's current
administratively imposed abatement verification procedures or suggested
modifications to the abatement certification paragraph of the proposed
rule (Exs. 4-18, 4-32, 4-53, 4-55, and 4-57). These participants
recommended that OSHA adopt a ``tiered'' approach to abatement, i.e.,
one that tailors the extent of the abatement verification required to
the seriousness of the hazardous condition cited and the employer's
abatement response. The final regulation reflects this approach, and
the following paragraphs describe the comments received on the various
provisions of paragraph (c) and OSHA's reasoning for including the
requirements that appear in the final regulation.
Paragraph (c)(1) of the final regulation states the obligation of
employers who have received a citation to certify to OSHA that they
have abated the cited hazardous condition. Certification of abatement
must occur within 10 calendar days of the completion of the abatement
action, except in those situations addressed by paragraph (c)(2) of the
final regulation. The proposed regulation would have allowed employers
30 calendar days between the time they abated a cited violation and the
time they submitted an abatement certificate to this effect to OSHA.
Several commenters (Exs. 4-26, 4-30, 4-50, and 4-72) stated that 30
days was too long an interval between completion of abatement and
certification of abatement to OSHA. Some of these commenters argued
that this interval would delay the OSHA abatement certification review
process, while others stated that allowing such a lengthy period of
time would mean that exposed employees would not receive timely
notification that the hazardous condition to which they had been
exposed had been abated. One commenter (Ex. 4-50) stated:
The employer should be required to submit the abatement
certificate on, or within a few days after, the abatement date. In
this way, employees, who by virtue of the nature of the hazard may
not otherwise be privy to knowledge regarding the employer's
abatement action, will not be forced to wait thirty days beyond the
abatement date to know whether the hazard has been removed and their
workplace is safe.
Other commenters (Exs. 4-28 and 4-42), however, argued that 30 days was
insufficient time for employers to process certification documents
through multiple levels of legal and administrative review.
In the final regulation, the period between the abatement date and
submission of the required abatement information is 10 calendar days,
which will ensure that abatement verification is completed in an
expeditious manner. OSHA believes that a 10 calendar day period is
adequate because the Agency has simplified the abatement process by
providing an example of a non-mandatory abatement certification letter
in Appendix A. Use of this simplified form, or an equivalent form
chosen by the employer that contains the same information, will also
facilitate corporate review of the required abatement information.
Paragraph (c)(2) specifies that employers who abate a hazard
identified by an OSHA Compliance Officer immediately, i.e., either
during the inspection or within 24 hours of the time the hazard was
identified, are not required to certify abatement to OSHA in a separate
certification letter. In such cases, however, the Compliance Officer
must note in the citation that such immediate abatement has occurred.
Paragraph (c)(2) has been added to the final rule in response to
comments from rulemaking participants who urged the Agency to eliminate
unnecessary paperwork and streamline the process for those employers
who choose to abate a cited hazard immediately (defined as during the
on-site portion of the inspection, within 24 hours after the violation
was identified).
In the preamble to the proposal, OSHA raised a number of questions,
including one (Question 8) that asked for comment on the need for
written abatement certification procedures in cases where employers
abate hazards immediately. This question elicited more comments than
any other. Commenters (Exs. 4-7, 4-9 to 4-23, 4-28, 4-31 to 4-35, 4-39,
4-42, 4-47, 4-48, 4-54 to 4-57, 4-59, 4-61, 4-62, 4-64, 4-65, 4-67, 4-
69, 4-75, 4-77, 4-79, 4-83, 4-84, and 4-85) were unanimous in the
opinion that abatement certification and documentation should not be
required if immediate abatement of the violation is observed by the
OSHA Compliance Officer or occurs shortly thereafter. These
participants also stated that the proposed certification requirements,
which contained no such exception for immediate abatement, would impose
a substantial and unnecessary regulatory burden on employers choosing
the immediate abatement approach.
At the time of the proposal, it was OSHA's practice to require and
maintain an extensive abatement ``paper trail'' to ensure that cited
violations had been abated. In the meantime, however, in keeping with
OSHA's efforts to reduce paperwork, encourage compliance, enhance
employee protections, and streamline the process both for OSHA and
employers, the Agency has developed a software program to print
citations that allows Compliance Officers to record their observation
of immediate abatement directly on the citation form. This means that
citations now provide a means for OSHA to audit immediate abatements,
which makes employer certification of such abatement unnecessary. To
ensure that immediate abatements are properly documented, which will
also avoid unnecessary follow-up inspections, the Compliance Officer
will simply record the immediate abatement on Form OSHA-1B (i.e., will
enter the specific citation item and the phrase ``corrected during
inspection'' on this form) or its equivalent.
Paragraph (c)(3) identifies the minimum abatement-related
information that employers must include in the abatement certification
they submit to the OSHA Area Director. (Additional information, such as
the employer's name and address, that must be included is specified in
paragraph (h) of this section, along with other details pertaining to
the transmittal of abatement information.) The
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information required by paragraph (c)(3) includes, for each cited
violation, the date and method of abatement used, and a statement that
affected employees and their representatives have been informed of the
abatement.
The abatement certification information required by OSHA is similar
to that contained in the corresponding paragraph of the proposal,
although the language has been simplified in the final rule. OSHA
believes that, in most cases, a brief one-sentence statement describing
the action taken to abate a violation (e.g., ``replaced guard on saw'')
will be all that is needed in the certification letter.
The proposal would have required the employer to specify in the
abatement certification letter those instances where an abatement had
not been completed as planned. The proposal would also have required
the employer to submit a subsequent abatement certification letter to
OSHA when such a delayed abatement had actually been completed. These
requirements do not appear in the final regulation, however, because
existing OSHA regulations provide for the employer to file a petition
for modification of abatement (PMA) date in cases of delayed abatement.
In other words, for cases in which an employer has not abated a
violation as planned, the employer's filing of a PMA under 29 CFR
1903.14(a) reinitiates the abatement certification process.
The proposed requirement to include the date on which the employer
signed the abatement certification letter is also not included in the
final regulation, in response to a recommendation made by a commenter
(Ex. 4-61). OSHA determined that this requirement served no useful
purpose because the abatement date is already provided in the abatement
certification letter, which is signed by the employer.
One of the questions raised in the preamble to the proposed rule
(Question 9) asked whether an Agency-developed sample abatement
certification form for employers to use would be useful and
specifically asked about the information such a form should contain.
Several commenters (Exs. 4-28, 4-39, 4-42, and 4-67) stated that such a
form would reduce the compliance burden on employers. The sample
abatement certification letter, which is included as non-mandatory
Appendix A to the final regulation, was developed in response to these
comments. Appendix A is a sample abatement certification letter that is
appropriate for certifying both individual or multiple citation items
(in the latter case, employers can simply add lines as required). OSHA
has developed this abatement certification form, which is non-
mandatory, specifically to reduce the time and resource burdens for
cited employers, which were of concern to several commenters (Exs. 4-9,
4-18, 4-19, and 4-48).
Paragraph (d), Abatement Documentation
Paragraph (d), Abatement documentation, specifies the requirements
employers must follow to document the completion of abatement for
willful or repeat violations and for any serious violation for which
the citation indicates that such documentation is required.
Requiring additional abatement documentation for these more serious
violations reflects the tailored approach that many commenters (Exs. 4-
18, 4-20, 4-24, 4-32, 4-40, 4-43, 4-44, 4-53, 4-55, and 4-57) urged the
Agency to take. Such a tiered approach would require only a simple
letter certifying abatement for other-than-serious violations and for
many serious violations but would require both a certification letter
and more extensive documentation for the most serious violations, i.e.,
willful or repeat violations and those serious violations determined by
OSHA on the citation to warrant such documentation.
Some commenters (Exs. 4-49 and 4-50) recommended that certification
and documentation be required for all violations, including other-than-
serious violations, as has been OSHA's practice in the past. These
commenters argued that full certification and documentation were needed
in every case to ensure protection to employees exposed to the cited
hazards. In contrast, one commenter (Ex. 4-61) stated that abatement
documentation should not be required for any violation because
requiring employers merely to certify abatement was sufficient.
In the final regulation, OSHA has adopted a tiered abatement
certification approach that is based on the type of violation for which
the citation was issued and the employer's abatement actions in
response to the citation. The abatement certification process for
other-than-serious violations has been streamlined in the final rule as
much as possible, while the process for ensuring the abatement of more
serious violations is more extensive, as befits the greater complexity
and degree of hazard posed to workers by such violations. OSHA's
reasoning is discussed below.
Other-than-serious violations do not expose employees to life
threatening or permanently injurious conditions, because they are
defined by OSHA as violations that ``cannot reasonably be predicted to
cause death or serious physical harm to exposed employees, but [that
do] have a direct and immediate relationship to their health and
safety.'' (See OSHA Instruction CPL 2.103, Chapter III, p. III-6,
September 26, 1994.)
Although other-than-serious violations are of concern to OSHA,
abatement of these violations warrants a lesser commitment of Agency
resources than does the abatement of more serious violations. This is
particularly the case since other provisions of the final regulation
will act to provide additional protections for employees throughout the
abatement process. For example, paragraph (g) requires that employers
inform affected employees (i.e., those directly affected by the cited
hazard) and their representatives of the employer's abatement
activities; employees and their representatives must also be given the
opportunity to examine and copy all abatement materials prepared by the
employer in response to this regulation. These notification
requirements will ensure that affected employees are aware of the
employer's abatement activities and will also increase the incentives
for employers to provide accurate and timely information about their
abatement activities. Thus, in adopting a tiered approach to abatement
verification, OSHA is making effective use of both Agency and employer
resources by placing an appropriate emphasis on the more serious
violations. This approach also is consistent with the GAO's
recommendations regarding abatement verification for such violations.
As required by paragraphs (c) and (d), those employers who have
received citations for willful or repeat violations, or for
specifically identified serious violations, must certify and provide
documentary evidence of their abatement actions. Although OSHA retains
the discretion to identify any serious cited hazard as one requiring
abatement documentation as well as certification, OSHA will generally
require such documentation only for ``high-gravity'' serious
violations. High-gravity serious violations are those violations that
relate to hazards that have a higher level of severity and a higher
probability of resulting in employee injury, illness, or death than
other serious violations. Examples of high-gravity serious violations
are: (1) A storage loft located 10 feet above the work floor is
accessed and worked in by employees daily, and the open side of the
loft does not have a guard rail. A fall would result in a severe
employee injury, and the probability of a fall occurring is great
because of the
[[Page 15328]]
frequency of exposure. (2) An electrically powered miter saw is being
used daily with the lower blade guard secured in the retracted
position. The probability of injury is great due to the frequency of
use and the proximity of the employee's hand to the rotating blade. The
severity of the resulting injury would undoubtedly be high.
After a careful review both of the comments received and OSHA's own
enforcement experience, OSHA has determined that it is appropriate to
require abatement certification for all cited hazardous conditions but
to reserve submission of full documentary evidence of abatement for the
most serious violations only. Comments (Exs. 4-12 through 4-16, 4-23,
4-55) submitted to the record also suggest that a number of other
Federal agencies have adopted abatement documentation procedures
similar to those being promulgated by OSHA, which increases the
Agency's confidence in adopting this approach.
OSHA retains the discretion, under paragraph (d)(1), to require
documentation of abatement for any serious violation that warrants this
extra measure of assurance. OSHA must specifically identify in the
citation those citation items for which such documentation is required.
However, OSHA generally intends to require abatement documentation in
low-or medium-gravity serious violation situations only where, in the
past 10 years, an employer has received a citation either for a willful
or failure-to-abate violation or has a history of compliance violations
that resulted in a fatality or in serious physical harm to an employee.
OSHA believes that the abatement activities of these employers deserve
closer scrutiny and more careful documentation, to ensure that cited
hazardous conditions are appropriately abated and to prevent similar
occurrences in the future. Before the effective date of this
regulation, OSHA will issue a directive to the field specifying the
conditions under which the Agency will exercise its discretionary
authority to require abatement documentation for serious violations
that are not classified as high-gravity.
Paragraph (d)(2) of the final regulation specifies the types of
documentary evidence needed to fulfill the abatement documentation
requirements set forth in paragraph (d)(1). Examples of acceptable
documentation may include invoices for the purchase of control
equipment, bills from repair services, photographs or video evidence of
the abated hazard, or other written records. Additional examples of
documentary evidence are discussed below.
In the preamble to the proposal, OSHA asked for comment on the
type, sufficiency, and quality of abatement document-ation that should
be required. One commenter, the United Steelworkers of America (Ex. 4-
72), stated that pre-and post-abatement photographs, in addition to
other forms of abatement documentation, should be provided by employers
to assist the Agency in evaluating abatement. Other commenters (Exs. 4-
26, 4-47, and 4-53) recommended that the text of the final rule include
examples of the types of abatement documentation that would be
acceptable.
In response to these comments, OSHA has included some examples of
appropriate abatement documentation in the final regulatory text and
has expanded this section of the preamble to provide additional detail.
Examples of acceptable documentation could include: photographs of the
abated condition (e.g., a machine's point of operation guard in place);
an invoice or sales receipt from a manufacturer or supplier of the
equipment used to achieve abatement; reports or evaluations by safety
and health professionals describing the actions taken to abate the
hazard or a report of results of analytical testing; documentation from
the manufacturer that the article repaired is within the manufacturer's
specifications; a copy of a signed contract for goods and services
(e.g., for needed protective equipment, an evaluation by a safety
engineer, etc.); records of training completed by employees (if the
citation is related to inadequate employee training); a photograph or
videotape of the abated condition that identifies the citation number
and item number; or a copy of program documents (if the citation
relates to a missing or inadequate program, such as a deficiency in the
employer's respirator program or hazard communication program).
As these examples demonstrate, abatement documentation must be
objective and describe or portray the abated condition adequately.
However, the final regulation does not mandate a particular type of
documentary evidence for any specific cited condition; this
determination remains the responsibility of the employer, who OSHA
believes is in the best position to make this judgment. The
acceptability of the abatement documentation will be assessed by OSHA,
either during abatement negotiations with the employer or after receipt
of the abatement documentation as part of the employer's abatement
certification submission. For example, although photographs are listed
in the final regulation as an example of abatement documentation, OSHA
will not require that photographs, including photographs of pre-and
post-abatement conditions, always be used to satisfy this requirement.
Whether photographs are appropriate, and the best kinds of photographs,
is best determined through discussions between the employer and OSHA,
using the information available in the citation and the Agency's
knowledge of the employer's workplace and history.
In summary, OSHA finds that the abatement verification procedures
being put in place by this final regulation have several components
that will interact to ensure employees a high level of protection from
exposure to cited hazards while simultaneously minimizing the amount of
paperwork and resources employers (and OSHA) will be required to
expend. These components include a tiered system of abatement
verification that requires increasing levels of documentation as the
seriousness of the violation increases; meaningful employee involvement
in all aspects of the abatement process, which will increase the
reliability of employer reporting and provide employees with the
information they need to protect themselves and their co-workers from
exposure to cited hazards; and a simplified and standardized reporting
process that allows employers to use various means of submitting
abatement information to OSHA.
Paragraph (e). Abatement Plans
Paragraph (e)(1) of the final regulation specifies that OSHA may
require employers to submit abatement plans for abatements having dates
of 90 days or greater (except for other-than-serious violations). OSHA
may require such plans for each cited violation falling in this
category and must indicate in the citation which citation items require
such plans. These provisions have been changed somewhat since the
proposal. For example, the proposed rule would have permitted OSHA to
require in the citation that an employer submit a formal plan for the
abatement of any safety and health violation for which ``multiple-
step'' or ``long-term'' abatement was necessary. In the final
regulation, the abatement plan requirement applies only to the more
serious violations (serious, willful, or repeat violations), and then
only to those abatements that have been assigned dates of 90 days or
more.
Paragraph (e)(2) stipulates that employers must submit any
abatement
[[Page 15329]]
plan required by OSHA within 25 calendar days of the final order date.
Abatement plans must identify the violations and the steps the employer
is taking to abate the violation, a schedule for achieving abatement,
and, where required by OSHA, the interim measures the employer is
taking to protect employees from the hazard represented by the
violation until abatement is complete. The requirement to provide
interim protections if directed by OSHA to do so has been added to the
final rule to be consistent with current Agency practice and to provide
employees with appropriate protection in those situations warranting
it.
Several commenters (Exs. 4-28, 4-53, 4-68, 4-77, and 4-79)
acknowledged OSHA's need for information on the employer's abatement
program in complex and lengthy abatements but were concerned about the
administrative burden and cost of formal plans. For example, the
Chemical Manufacturers Association (Ex. 4-28) stated:
OSHA accomplishes nothing by requiring detailed abatement plans.
The only information OSHA needs in this situation is the actions the
employer will take and the dates the actions will be completed. This
provides OSHA with the ability to measure whether abatement is being
achieved and by the date specified.
Another commenter, United Technologies (Ex. 4-53), interpreted the term
``formal,'' as used in the proposed regulation, to mean ``detailed,''
and recommended that this ``formal/detailed'' requirement be deleted
and replaced with a ``written plan outlining the schedule for the
implementation of measures to achieve abatement.'' Noting that an
abbreviated abatement plan would reduce the paperwork burden on
employers, United Technologies stated that ``[t]he 2 hour preparation
time in the Proposed Rule's economic modeling [to develop an abatement
plan] may underestimate the amount of time necessary to prepare a
detailed plan. * * *'' The American Society of Safety Engineers
(ASSE)(Ex. 4-68) recommended that an abatement plan consist simply of
``a written outline setting forth an implementation schedule for
measures to achieve abatement.'' ASSE stated further that ``[t]he plan
need not be `detailed' as long as a schedule exists against which
abatement can be measured.''
Several commenters (Exs. 4-8, 4-22, and 4-79) interpreted the
proposed requirement for abatement plans as applying to all violations
and indicated their concern with the scope of this requirement. Two
commenters (Exs. 4-42 and 4-43) argued that this proposed requirement
allowed OSHA too much discretion and would therefore result in
inconsistent application of the abatement plan requirement.
In response to these comments, OSHA has made two important
revisions that are reflected in paragraph (e)(1) of the final
regulation. First, the requirement now limits the applicability of this
provision to abatements of more serious violations that require longer
than 90 days to complete. In contrast, the proposed regulation limited
abatement plans to multiple-step or long-term abatement situations but
did not specify what ``long-term'' meant. In place of the proposed
terms ``multi-step'' and ``long-term,'' the final regulation specifies
that abatement plans are not required unless the abatement period is
longer than 90 calendar days, and then only if required by OSHA.
OSHA chose 90 days as the appropriate trigger for abatement plans
because the Agency's analysis of recent inspection data demonstrated
that more than 90 percent of abatements were completed within a 90-day
period. After that period, the rate at which abatements were completed
slowed significantly, indicating that the types of activities necessary
for abatements taking longer than 90 calendar days differed
substantially from those needed for abatements of shorter duration
(i.e., abatements taking more than 90 calendar days appear to be
extremely complex, and may require complicated funding arrangements as
well as detailed design and fabrication efforts).
Even for abatement periods that exceed 90 calendar days, the final
regulation provides OSHA with the discretion to decide whether an
abatement plan is or is not needed. The Agency believes that Area
Directors are in the best position to determine whether such plans are
needed because they are most familiar with the employer and the
violations described in a citation. The flexibility granted by this
requirement will substantially reduce the regulatory burden that would
be imposed both on OSHA and employers by a blanket provision requiring
plans for all lengthy abatements. At the same time, allowing OSHA
discretion to require an abatement plan will ensure that employees are
protected in those complex and lengthy abatements where additional
information is necessary to ensure satisfactory abatement progress and,
if deemed necessary by OSHA, interim employee protection.
The requirement for abatement plans for complex abatements is
consistent with the way OSHA has done business for several years. For
example, these plans often are developed jointly by OSHA and the
employer, either during an inspection or prior to the time the employer
receives a citation; the resulting plans are then incorporated into the
citation narrative. Thus, the 90-day requirement will not in any way
affect the current negotiation process that occurs between employers
and OSHA with regard to abatement plans. This final regulation only
specifies the conditions under which abatement plans may be required by
OSHA.
The second important revision made to paragraph (e)(1) since the
proposal is the elimination of other-than-serious violations from the
requirement for abatement plans. OSHA's analysis of recent inspection
data showed that only a few other-than-serious violations required more
than 90 calendar days to abate. In view of the small number of other-
than-serious violations that would be subject to this 90-day
requirement and to be consistent with the ``new OSHA'' philosophy of
focusing on the more serious hazards, the final regulation applies the
abatement plan requirements only to violations classified as serious or
above. (See the discussion under ``Abatement certification'' in this
preamble.)
Paragraph (e)(1) also explicitly states that OSHA is responsible
for identifying and communicating to the employer which citation items
need abatement plans. This provision has been revised only minimally
from the parallel requirement in the proposal. Appendix B, which is
non-mandatory, is a sample abatement plan that employers may use to
report their abatement plans to OSHA. This form also allows several
citation items to be combined into a single abatement plan. Employers
are free to use any other form to report their abatement progress,
providing that the form used contains the same information as that
shown in Appendix B.
Final rule paragraph (e)(2) retains the proposed requirement that
any required abatement plan be submitted to OSHA within 25 calendar
days after the date of the final order. Several commenters (Exs. 4-10,
4-42, and 4-67) stated that the 25-day period was too brief for
employers to devise, compile, and obtain managerial approval of
abatement plans, especially if they have many violations to correct. On
the other hand, one commenter (Ex. 4-72) found the 25-day submission
period to be excessive and recommended a 10-day submission period
instead.
OSHA believes that a 10-day submission period would not allow
sufficient time for employers to
[[Page 15330]]
investigate abatement methods, develop abatement plan(s), and transmit
them (often through corporate channels) to OSHA. However, OSHA believes
that the abbreviated format specified for abatement plans in the final
regulation makes the 25-day submission period reasonable.
In the proposal, abatement plans were required to be signed and
dated by the employer. However, in the final regulation, OSHA has
decided to allow abatement plans to be signed by the employer or the
employer's representative and not to require that abatement plans be
dated. These revisions make the signature and dating requirements for
abatement plans consistent with those for all of the abatement
documents required by this regulation (see paragraph (h)).
Paragraph (f). Progress Reports
Paragraph (f) of the final regulation states that employers are
required to submit periodic progress reports, in addition to abatement
plans, for those more serious hazards requiring long-term abatement
(i.e., greater than 90 days) and that OSHA has identified as requiring
such a report in the citation. The corresponding provision of the
proposal would have allowed OSHA to require progress reports for all
``multi-step'' abatements. This term has been defined in the final
regulation to mean abatements requiring 90 calendar days or more to
abate. Progress reports are required only for certain abatement plans,
and paragraph (f)(1) has been revised to be consistent with paragraph
(e)(1), which addresses those plans.
Paragraph (f)(1) of the final regulation indicates that OSHA must
specify in the citation each of the citation items for which a progress
report is required and the dates for submission of the initial progress
report, which may not be sooner than 30 calendar days after the
submission of an abatement plan. These requirements are unchanged from
the proposal except that the requirement for OSHA to specify which
abatement measures are to be reported has been removed from the final
regulation as unnecessary.
Final rule paragraph (f)(2) requires employers who submit progress
reports to include in such reports a brief description (generally only
a single-sentence summary) of the action being taken to abate each
cited violation and the date the abatement activity was conducted.
One commenter (Ex. 4-3) stated that OSHA should not require
progress reports if an employer abates a cited violation in fewer than
30 calendar days after the date of the final order or the date of the
PMA final order. This interpretation reflects confusion over the
meaning of the requirement for progress reports, and OSHA has responded
by clarifying paragraph (f)(1) of the final regulation. The submission
date for the first progress report is clearly specified in paragraph
(f)(1) in the final regulation as a minimum of 30 or more calendar days
after the date on which an abatement plan was submitted to OSHA. If a
violation requiring a progress report (or an abatement plan) is abated
prior to the submission date, the employer would be required only to
submit the abatement certification and abatement documentation
information required by the final regulation.
Citation items may be combined within a single progress report if
the citation items being combined have the same abatement actions,
proposed completion dates, and actual completion dates, as permitted by
the sample progress report form provided in Appendix B to the final
regulation. This form, which is non-mandatory, can be used either for
individual citation items or for multiple citation items meeting the
limitations of the form.
Like all abatement documents (see paragraph (h) of this section),
progress reports must be signed by the employer or his/her authorized
representative and include the company name and address, the OSHA
inspection number, the citation and citation item numbers, and a
statement that the information provided is accurate. The citation and
item numbers are needed by OSHA to efficiently collate progress reports
with other abatement information sent to OSHA by the employer.
Paragraph (g). Employee Notification
In the proposal, this paragraph was titled ``Posting
requirements.'' In the final regulation, it has been designated
paragraph (g), ``Employee notification,'' to clarify its purpose, which
is to strengthen the abatement verification process by involving
employees in all stages of that process. Paragraph (g)(1) requires
employers to provide those employees affected by the cited hazardous
condition, and their representatives, with information about abatement
activities by posting a copy or summary of each document submitted to
OSHA near the place where the violation occurred.
Paragraph (g)(2) specifically recognizes that posting abatement
documents or summaries of these documents may not always be an
effective way to inform affected employees and their representatives of
the employer's abatement activities due to the characteristics of the
workplace or the nature of particular jobs. For example, it may be
difficult for an employer whose employees work out of their trucks or
do not routinely assemble at a central location to communicate the
necessary abatement information to these employees by posting. OSHA
believes that employers who employ such mobile workers, e.g.,
arborists, telephone repair personnel, landscape company personnel,
salespeople, are in the best position to determine how most effectively
to communicate with these employees and their representatives about
those abatement activities that affect them. For example, such
employers may choose to convey this information in the employee's pay
envelope, inside the lid of the work crew's tool box, or in a visible
location inside the compartment that contains the cited equipment.
Other possible ways of providing employees and their representatives
with the required information include discussing the abatement
documents with these individuals at a training or tool box session or
publishing the information in an employee newsletter or other general
communication medium that reaches affected employees and their
representatives.
Affected employees and their representatives also may request
copies of all abatement documents for examination and copying.
Employers are required by paragraph (g)(3) to inform such employees of
this right.
Paragraph (g)(3)(i) indicates that employees and employee
representatives must submit requests to examine and copy abatement
documents to the employer within three working days of the time they
are notified by the employer that such documents have been submitted to
OSHA. The time period permitted for requesting abatement documents is
consistent with the citation posting period required in 29 CFR 1903.16.
OSHA believes that, since affected employees and their representatives
are aware of the cited condition because it directly affects them, 3
working days will provide sufficient time for such employees to request
abatement documents.
Paragraph (g)(3)(ii) requires employers to respond to such requests
for abatement materials within 5 working days of the receipt of such
requests. One commenter (Ex. 4-39) recommended that the regulation be
revised to specify the period during which employers must make
abatement documents available for examination and copying by employees
and their representatives, and the final rule is responsive to this
comment. The posting requirement of
[[Page 15331]]
paragraph (g)(1) is also responsive to comments (Exs. 4-19 and 4-21)
stating that the proposed requirement, which would have required
documents to remain posted until the violation was corrected or for 6
days, whichever was later, was too burdensome. As these commenters
noted, during extended abatement periods, the documents are likely to
deteriorate or to be removed. This would place employers in violation
of this paragraph of the final regulation, which requires them to
ensure that posted documents will not be altered, defaced, or
obstructed.
Paragraph (g)(4) requires employers to ensure that notice of the
availability of abatement documents is provided to employees and their
representatives at the same time or before the required abatement
information is transmitted to OSHA; that the posted documents are not
defaced, covered, or altered so as to be illegible; and that the
documents remain posted for three working days after being submitted to
OSHA.
This paragraph of the final rule has been revised in response to
comments received on the parallel provisions of the proposal. These
changes include revising the language of this requirement to conform as
closely as possible with OSHA's existing posting requirements, which
are codified at 29 CFR 1903.16, to respond to a comment (Ex. 4-33)
about the need to ensure consistency between the requirements of
paragraph (g) and those of 29 CFR 1903.16.
OSHA received one comment on the mobile work operation issue
addressed by paragraph (g)(2) of the final regulation. The National
Arborist Association (Ex. 4-8) asked OSHA to include examples of
alternative posting locations that would satisfy the posting
requirement for employers with highly mobile work operations. As the
discussion above indicates, OSHA intends to provide employers with a
mobile work force with the flexibility to use a wide range of methods
to inform employees about abatement activities. Whatever method is
chosen, however, must be effective in communicating the required
information to employees and their representatives.
One proposed requirement has not been carried forward in the final
regulation. Paragraph (i)(2) of the proposal would have permitted
employers to post a notice describing the location at which abatement
plans and progress reports could be reviewed if posting these documents
was made impractical by their size or magnitude. OSHA believes that
this requirement is unnecessary, because the proposed provision would
only have referred employees to the location of the required
information instead of providing them with the information directly.
Additionally, the abatement certification, abatement plan, and progress
report provisions of the final regulation have substantially reduced
the size and magnitude of these documents, which will make employee
notification easier.
OSHA received two comments (Exs. 4-49 and 4-50) urging the Agency
to require employers to distribute abatement documents directly to
employee representatives as a means of enhancing the completeness and
accuracy of these documents. OSHA is concerned that the voluminous
nature of some abatement documentation, e.g., documentary proof of
abatement, would make such a requirement unnecessarily burdensome for
employers. The approach adopted in the final rule affords the same
access, examination, and copying rights to employee representatives as
to the affected employees themselves. OSHA believes that requiring
employers to post copies of all abatement documents in a readily
accessible place, coupled with the final rule's requirement that
employers provide employees and their representatives with notice of
their right to examine and copy all abatement-related documents, will
provide both employees and their representatives with the information
they need to keep them fully informed of the employer's abatement
activities, as requested by these commenters.
The proposal specifically identified the Assistant Secretary as a
person authorized to examine and copy abatement documents. However,
this provision does not appear in the final regulation because, under
Section 8 of the OSH Act, the Assistant Secretary already has the
authority to review these materials.
Paragraph (h). Transmitting Abatement Documents
Paragraph (g) in the proposal, which specified requirements for
transmitting abatement information to OSHA, has been moved to paragraph
(h) in the final regulation. This paragraph contains requirements that
employers include the following information in all abatement materials
submitted to OSHA: The employer's name and address; the inspection
number; the citation number and citation item number(s); a statement to
the effect that the information provided by the employer is accurate;
and the employer's signature or that of his/her authorized
representative. These requirements apply to abatement certification
letters, abatement documentation, abatement plans, and progress
reports, i.e., to all of the abatement verification materials addressed
by this regulation. Paragraph (h)(2) specifies that the date of
postmark is the date of submission for mailed abatement verification
documents. OSHA expects that other means of transmission, such as
facsimile transmission, will also be used, if approved by the Area
Director in a given case. One commenter (Ex. 4-84) urged OSHA to
specifically identify electronic transmission as an approved method in
the regulatory text. However, although many methods of transmission are
routinely used to provide the Agency with abatement materials, e.g.,
overnight courier, hand delivery, OSHA does not believe it necessary to
specifically list these methods in the regulatory text.
The proposed rule contained a note to the effect that Agency
receipt of documents should not be interpreted as compliance with the
regulation's transmittal requirements. Two commenters (Exs. 4-10 and 4-
69) stated that this note was unnecessary because it merely reminded
employers to retain proof that they had submitted abatement
certifications and/or documentation, especially in the case of
facsimile transmissions. According to these commenters, this is already
industry practice. OSHA agrees that the provisions of the final
regulation are adequate to notify employers that they are responsible
for ensuring that OSHA has received the required abatement information.
This note therefore does not appear in the final regulation.
The proposal contained a paragraph entitled Accuracy of
documentation. In the final regulation, OSHA has eliminated this
paragraph and simply requires that employers attest to the accuracy of
any abatement-related information they submit to OSHA at the time of
transmittal. Accurate information is essential to the working of the
streamlined abatement process OSHA is putting into place with this
final regulation. Based on the Agency's past experience, OSHA believes
that the overwhelming majority of employers recognize the importance of
accurate abatement information, and that the incentives provided under
this final regulation (streamlined process, availability of easy-to-use
abatement forms, employee involvement) will encourage full compliance
with the regulation's provisions.
Paragraph (h)(1) of the final regulation requires employers to
provide some information that was not specified in the proposal. This
information includes the inspection, citation, and citation item
numbers. OSHA currently assigns
[[Page 15332]]
each violation a citation and item number that serves as a unique
identifier for that inspection. This additional information will
benefit both the Agency and employers because it will enable OSHA to
distinguish readily between abated and unabated violations, enhance
OSHA's ability to retrieve and review abatement materials, and expedite
approval of abatement activities. This information will also allow OSHA
to determine the appropriateness and completeness of the materials
submitted by employers and to identify those needing additional
attention.
In the proposal, abatement certificates were required to be signed
by the employer or the employer's duly authorized representative. In
the preamble to the proposal, OSHA asked for comments on the
appropriate level of management needed to serve as an employer's duly
authorized representative in abatement matters. Commenters responding
to this question had a wide range of opinions on this issue. Some
argued that employers should have complete discretion in this matter
(e.g., ``OSHA should leave to each employer's discretion the decision
regarding what is the appropriate level of personnel authorized to bind
the company by signing the abatement certification'' (Ex. 4-83)), while
others recommended that specific personnel be designated for this
function (e.g., a corporate officer (Ex. 4-28) or the owner or general
manager (Ex. 4-48)). Many commenters recommended that signatory
authority be limited to managers who have knowledge of the employer's
abatement activities and the authority to commit the employer's
resources to these activities (Exs. 4-6, 4-7, 4-23, 4-33, 4-34, 4-54,
4-55, 4-56, 4-64, and 4-77). Two commenters supported the language of
the proposed requirement, which allowed employers flexibility in
designating their representatives (Exs. 4-47 and 4-67).
The Agency has decided that it would be inappropriate to identify
particular management positions or job titles in this requirement
because positions and titles vary widely among organizations.
Accordingly, the final regulation has made only minor revisions to the
proposed language. For example, the word ``duly'' has been removed from
the phrase ``authorized representative'' to remove any suggestion that
a formal process of designating an authorized representative is
required. The language of this provision in the final regulation thus
allows employers additional discretion and flexibility in assigning
signatory authority for the purpose of abatement certification, which
will further expedite the process.
Paragraph (i). Movable Equipment
Paragraph (i) of the final regulation requires employers to alert
employees to the presence of cited movable equipment on the worksite
either by tagging the equipment's operating controls or the equipment's
hazardous components, or affixing a copy of the citation itself to the
controls or hazardous components of the cited equipment. In the
proposal, this paragraph was designated as paragraph (f), ``Tagging
cited equipment.'' This title has been revised in the final regulation
to better indicate that this paragraph applies only to movable
equipment, as defined in paragraph (b) of this regulation.
OSHA has included this requirement in the final regulation at least
partly in response to the GAO's findings (discussed further in the
Background section of this preamble) that, in the past, employers may
have been able to circumvent abatement by removing hazardous equipment
from the site after it had been cited and then subsequently returning
this equipment--without repair--to the site or moving it to another
site. Two commenters (Exs. 4-9 and 4-57) stated that the tagging
requirements specified in the proposal were unnecessary because these
requirements duplicated the provisions of 29 CFR 1910.147 (i.e., OSHA's
``lockout-tagout'' standard). OSHA believes that these commenters have
misconstrued the intent of 29 CFR 1910.147's lockout/tagout
requirements. The tags of the lockout/tagout standard are intended to
alert employees that measures have been taken to control hazardous
energy before service or maintenance is performed on the equipment. In
contrast, the warning tags required by this regulation are intended to
provide warning to employees that a piece of equipment needs to be
repaired and poses a serious risk to employees, and to provide such
warning even in cases where that equipment is moved to another
location, either on or off the worksite where it was first cited.
The preamble of the proposal asked for comment on the proposed
tagging provision. These comments, and OSHA's responses to them, are
discussed below. The proposal would have required employers to affix a
warning tag to cited equipment on receipt of the citation. OSHA
received a number of comments regarding this paragraph. One commenter,
the American Feed Industry Association (Ex. 4-19), was concerned about
the proposed requirement's lack of specificity. This commenter stated:
The use of warning tags would be inconsistent and confusing. For
example, a violation could be cited for not having wheel chocks in
place under a parked semi trailer at a loading dock. What should be
tagged, the chocks or the trailer? Would the employer keep the
chocks tagged until another trailer was parked at the dock? Would an
employee not use the chocks on that trailer assuming the chocks
themselves may be defective?
Another commenter, the Synthetic Organic Chemical Manufacturers
Association, Inc. (Ex. 4-22), argued that the proposed provision was
duplicative of OSHA's existing citation posting requirement:
[T]his requirement is superfluous and a paperwork burden. In
most cases posting of the citation would alert affected employees
that a hazard exists. An additional punitive piece of paper, such as
tagging, would not increase employee safety, it would only add to
the requirements for abatement.
Two other commenters (Exs. 4-25 and 4-72) expressed support for the
provision. The Food & Allied Service Trades (Ex. 4-25) commented, ``To
strengthen the intent of this provision, we believe the cited equipment
should be incapacitated until the hazard has been abated.'' The United
Steelworkers of America (Ex. 4-72) strongly endorsed the tagging
provision, noting that:
This [requirement] will help to ensure that workers are fully
informed as to [the] hazard[s] they may be exposed to. The posting
requirements related to posting the citations at or near where the
violations exist have been diluted over the years. It is the
exception rather than the rule when citations are posted at or near
the violation. Posting these types [of] tags on cited equipment will
finally achieve what the drafters of the OSH Act intended, namely to
advise workers of unsafe conditions in their work area. (Emphasis in
original.)
One commenter, the National Arborist Association (Ex. 4-8), argued
that tagging a single piece of equipment that allegedly violates an
OSHA safety standard would send a very negative message to users of
similar equipment in a firm even if the similar equipment is not cited
and is indeed safe to operate. However, OSHA believes that the
information presented on the tag (e.g., hazard cited) is sufficient to
identify why a given piece of equipment has been cited and to keep
employees from generalizing to other equipment.
In response to these comments, the Agency has made three major
revisions to the proposed posting requirements to reduce the regulatory
burden associated with compliance, while preserving the protection
afforded to employees by these provisions. The first major
[[Page 15333]]
revision made to this paragraph in the final regulation is to state
more specifically when the tagging actions by the employer are to occur
and to limit the requirement for immediate tagging to hand-held
equipment only. A tag must be affixed to other (i.e., non-hand-held)
cited movable equipment only if the equipment is actually moved within
the worksite at which the equipment was cited, or is moved from that
worksite to another worksite before the cited hazards are abated.
Employers must ensure, in accordance with paragraph (i)(5), that
the tag or copy of the citation is not covered by other material and is
not altered or defaced so as to be illegible. Paragraph (i)(6)
indicates when the warning tag or copy of the citation may be removed;
the conditions under which removal may occur include: when abatement
has taken place and any abatement documents required by this regulation
have been submitted to OSHA, when the cited equipment has been removed
permanently from the worksite or is no longer in the employer's
control, or when the Commission has vacated the citation.
The second of these revisions is to except other-than-serious
violations from the tagging requirements of the final regulation. As
noted above in the discussion of paragraph (c), Abatement
certification, violations are characterized as other-than-serious if
they do not expose employees to the risk of life-threatening or
permanently injurious conditions. Other-than-serious violations also
usually require only simple, straightforward corrections that can be
accomplished on-site or during short abatement periods. Limiting the
applicability of the tagging provision to serious, willful, and repeat
violations, and to violative conditions for which the employer has
received a failure-to-abate notice, is consistent both with paragraph
(c) of the final regulation, which requires abatement documentation
only for this group of more serious violations, and with OSHA's
emphasis on the most serious hazards.
OSHA believes that hand-held equipment that has been cited must be
tagged promptly because this equipment is easily moved within and
between worksites and is frequently used by employees who may not have
notice of the cited hazard. In addition, the record did not indicate
that there was another reliable and practical method that would meet
the employee notification requirement of this provision under these
workplace conditions.
Other equipment (i.e., equipment that is not hand-held) is less
readily moved than hand-held equipment and thus is more likely than
hand-held equipment to remain at the location described and/or
documented in the citation. OSHA believes that, under these conditions
(i.e., as long as the cited equipment remains at the location described
and/or documented in the citation), the posting requirements of 29 CFR
1903.16 will provide employees with adequate notification of the cited
hazard. If this equipment is moved within or between worksites,
however, employees who have not seen the posted citation in the old
location could unknowingly be exposed to the cited hazard in the new
location. Affixing a warning tag to the operating controls or the
hazardous component(s) of this equipment will ensure that such
employees in the new location are properly notified of the violation.
Paragraph (i)(3)(ii) of the final regulation requires employers to
affix a warning tag to this equipment before it is moved.
OSHA will be providing non-mandatory warning tags for employers to
use to meet the requirements of this paragraph. The Agency believes
that doing so will encourage compliance with the tagging requirement
and reduce the regulatory burden of this requirement on employers. A
note to paragraph (i)(2) of the final regulation specifies that
employers may use tags supplied by OSHA for this purpose (see Appendix
C). This provision also permits employers to use their own tags to meet
this requirement, provided that these tags conform to the design and
information specifications of the sample tag displayed in Appendix C;
this provision ensures employees that employer-designed tags will
protect them at least as effectively as the warning tags supplied by
OSHA.
The last major revision to proposed paragraph (i) permits employers
the choice of either posting a copy of the citation or affixing a
warning tag directly on the operating controls or the hazardous
component of the cited equipment. This change will allow employers
additional flexibility and will also satisfy the requirements of 29 CFR
1903.16, OSHA's existing posting requirement. The proposal would have
required employers both to affix a warning tag to the operating
controls or the hazardous component of the cited equipment and to post
a copy of the citation ``at or near each place an alleged violation
referred to in the citation occurred,'' as required by 29 CFR 1903.16.
There are situations, however, where affixing a copy of the citation to
hand-held equipment may be difficult or impractical, and in such cases
tagging is the only feasible method of providing employees with notice
of the violation.
OSHA received one comment indicating concern about the
applicability of the tagging requirements to the construction industry.
This commenter (Ex. 4-38) stated that ``[t]he construction industry
should not be forced to comply with 29 CFR 1910.145(f)(4) which is not
applicable to the construction industry.'' The concerns of this
commenter are addressed in paragraph (i)(4) of the final regulation,
which states that employers in the construction industry who comply
with the design and use requirements for tags specified in paragraphs
29 CFR 1926.20(b)(3) and 29 CFR 1926.200(h) of the construction
industry standards will be deemed to be in compliance with paragraph
(i) of this section if the tag used contains the information required
by paragraph (i)(2) of the final regulation. OSHA believes that the
addition of paragraph (i)(4) to the final regulation will improve
compliance with the requirement among employers in the construction
industry because they have extensive experience and familiarity with
the design and use requirements for tags that were developed for their
industry.
Paragraph (i)(2) of the final regulation requires tags that are
used to comply with the abatement verification regulation's tagging
requirements to warn employees about the nature of the violation and
identify where the citation has been posted for affected employees to
review.
OSHA received several comments on this provision of the proposal.
These commenters (Exs. 4-12, 4-13, 4-14, 4-15, and 4-16) stated that
including any information on the warning tag was too burdensome, would
endanger employees who read the tag by bringing them within the ambit
of the cited hazard, or would discourage employees from operating cited
equipment that could be used safely under specific conditions. For
example, one commenter (Ex. 4-12) made the following observation:
If OSHA develops a tag (i.e., a ``red'' danger tag) that
complies with 29 CFR Sec. 1910.145, which employees understand to
mean that equipment to which it was attached is the subject of a
violation, the tag need only be recognized for that purpose. The tag
should not contain any information, it should merely be identifiable
by employees, who can then read the citation on the bulletin board,
where citations are generally posted. If employees have to read a
tag, which may be attached to moving equipment or equipment being
used, employees could be endangered.
However, OSHA does not share this view, because for employees to
have the
[[Page 15334]]
information they need to protect themselves and their co-workers from
cited equipment hazards, the warning tag must identify the specific
equipment cited, state that a citation has been issued by OSHA, and
specify where the citation is posted for employee review. This minimal
amount of information will alert employees to the hazard and allow them
to confirm which equipment (or component) has been cited. Identifying
the location of the posted citation will permit employees to find and
review the citation for more specific and detailed information about
the violation. The Agency does believe, however, that a brief
description of the violation is all that is needed on the tag (e.g.,
``no guard for blade'').
The proposed rule contained a paragraph stating that employers who
fail to comply with the requirements of this abatement verification
regulation will be subject to citation and penalties under the OSH Act.
This provision has not been included in the final regulation, in
response to comments on this issue (Exs. 4-6, 4-25, 4-29, 4-33, 4-63).
For example, the American Forest & Paper Association (Ex. 4-29)
recommended that this paragraph not be included in the final regulation
because this information was communicated adequately in the preamble.
Another commenter (Ex. 4-33) stated that this paragraph should not be
included in the final regulation because the regulated community
already understands that OSHA has statutory authority to impose
penalties on employers who violate OSHA standards and regulations and
thus that describing this authority was unnecessary. OSHA agrees with
these commenters, and this provision is not included in the final
regulation.
As previously described, OSHA has included in the final regulation
three non-mandatory appendices (A, B, and C) to assist employers in
complying with this regulation. These appendices were the direct result
of numerous favorable comments received to a question raised in the
proposal asking whether or not OSHA should develop sample abatement
certification forms. By supplying employers with samples of most of the
documents this regulation requires, OSHA is reducing burdens on
employers, facilitating compliance, and, in turn, enhancing employee
protection.
III. References
Government Accounting Office (1991). OSHA Policy Changes Needed to
Confirm That Employers Abate Serious Hazards. GAO/HRD-91-35, Report to
Congressional Requesters, May 1991.
OSHA Instruction CPL 2.45B, June 15, 1989, and associated revisions
(CH-1 through CH-5 dated March 3, 1995), Field Operations Manual (FOM).
OSHA Instruction CPL 2.103, September 26, 1994, Field Inspection
Reference Manual (FIRM).
IV. Pertinent Legal Authority
This final regulation is authorized by Sections 8(c)(1), 8(g)(2),
and 9(b) of the Occupational Safety and Health Act of 1970 (the Act),
29 U.S.C. 657 and 658. Under Section 8(c)(1) ``[e]ach employer shall
make, keep and preserve, and make available to the Secretary or the
Secretary of Health [and Human Services] * * *, such records regarding
his activities relating to this Act as the Secretary, in cooperation
with the Secretary of Health [and Human Services] * * *, may prescribe
by regulation as necessary or appropriate for the enforcement of this
Act or for developing information regarding the causes and prevention
of occupational accidents and illnesses.'' Additionally, pursuant to
Section 8(c)(1), the Secretary has authority to issue regulations
requiring employers to keep their employees informed of the employers'
responsibilities under the Act. Section 8(g)(2) empowers the Secretary
of Labor to ``prescribe such rules and regulations as he may deem
necessary to carry out [his] responsibilities under this Act.'' Section
9(b) authorizes the Secretary to promulgate regulations associated with
the posting of citations.
The Agency's responsibilities under the Act are defined largely by
the enumerated purposes, including: Providing for appropriate reporting
procedures that will help achieve the objectives of this Act and
accurately describe the nature of the occupational safety and health
problem (29 U.S.C. 651(b)(12)); developing innovative methods,
techniques, and approaches for dealing with occupational safety and
health problems (29 U.S.C. 651(b)(5)); and providing an effective
enforcement program (29 U.S.C. 651(b)(10)).
For the reasons set forth in the preamble, the Assistant Secretary
asserts that this final regulation is necessary and appropriate to
conduct enforcement responsibilities under the Act, to develop
information about the prevention of occupational accidents and
illnesses, and to inform employees of their protections and obligations
under the Act.
V. Paperwork Reduction Act of 1995
The final rule does not contain a collection of information within
the meaning of the Paperwork Reduction Act (``PRA''). The PRA applies
to collections of information that establish ``identical''
recordkeeping or reporting requirements applicable to ten or more
persons. The Act exempts information obtained ``during the conduct of *
* * an administrative action or investigation involving an agency
against specific individuals or entities * * *'' 44 U.S.C.
3518(c)(1)(B)(ii). In addition, ``information'' does not include simple
certifications.
The final rule addresses OSHA's investigation procedures for
assuring abatement in specific cases, i.e., those where a case file is
open for the conduct of an inspection of safety and health conditions
in the particular employer's workplace and where specific violations
are found. The purpose of an OSHA inspection or administrative action
is to protect employees by achieving abatement of the hazards
identified at the workplace. This purpose is not fulfilled, and the
case file is not closed, until OSHA is satisfied that abatement has in
fact occurred. The hazards cited and the abatement measures undertaken
are specific to the equipment, workplace configuration, and other
characteristics of a given workplace and the work operations conducted
at that site.
OSHA has tailored the requirements of the final rule to the
seriousness of the particular cited hazard, the time that will be
needed for abatement, and the response the employer has taken toward
abating the hazard. If the employer abates the hazard during inspection
or within 24 hours thereafter, no abatement certification is required.
Further, if the cited condition involves an other-than-serious
violation or where the circumstances otherwise make it appropriate,
only a certification of abatement is required. Only in individual cases
where more serious hazards are encountered (e.g., violative conditions
resulting in a willful or repeat citation or in a serious citation
which the Agency specifically identifies as requiring additional
evidence) does the final rule require a cited employer to submit
additional proof of abatement. The documentation submitted will vary
with the individual circumstances of the case.
The determination that this final rule is not within the coverage
of the Paperwork Reduction Act has been made by OSHA after careful
review of the Act, its legislative history, the implementing
regulations (5 CFR Part 1320), and OMB's 1989 ``Information Collection
Handbook.'' This determination is consistent with OSHA's traditional
practice. As discussed above, OSHA's field offices have traditionally
collected from employers evidence that cited violations have been
abated, and these
[[Page 15335]]
submissions have not been treated as subject to the Paperwork Reduction
Act. OSHA notes, however, that at the time the proposed rule was
published in 1994, the Agency submitted a request for clearance of the
rule under the PRA to OMB and invited public comment on the request.
OSHA has now determined that the final rule does not contain a
collection of information within the meaning and scope of the Paperwork
Reduction Act of 1995.
VI. Summary of the Economic Analysis of the Final Abatement
Verification Rule
Under Executive Order (EO) 12866, OSHA is required to conduct an
economic analysis of the costs, benefits, and economic impacts of major
rules promulgated by the Agency. There are several criteria for
determining which rules are major, as defined by the EO. The final
abatement verification rule does not meet any of the criteria for a
major rule. However, to provide employers, employees, and other
interested parties with information on the data and reasoning relied on
by the Agency, OSHA has analyzed the economic impacts of this rule. The
complete Final Economic Analysis is available in the docket for this
rulemaking [Docket C-03].
The final abatement verification regulation requires employers who
have been cited for violations of the Occupational Safety and Health
Act to certify that they have abated the hazardous condition for which
they were cited, to document the methods they have used to abate the
hazard, and to notify those employees who were exposed to the hazard of
the abatement actions they have taken. In most cases, employers will be
able to certify abatement using a simple one-page form letter supplied
by OSHA. In cases involving more serious violations, additional
abatement documentation is required.
OSHA has required employers to provide evidence of abatement for
cited hazardous conditions for more than 20 years, following the
procedures for abatement verification set forth in the Field Operations
Manual and its successor publication, the Field Inspection Reference
Manual. When employers did not provide the requested information, or
provided insufficient information, the Agency wrote or phoned employers
to prompt them to supply the requested information. If necessary, the
Agency contacted employers repeatedly or made follow-up inspections to
ensure that the cited violations had been abated. These dunning efforts
are unnecessarily resource-intensive for both the Agency and cited
employers. Employers who have in the past ignored Federal and State-
plan agency requests for verification that abatement has taken place
will now be required to provide these materials or risk being cited by
OSHA.
The final regulation reduces the burden on cited employers by
generally requiring less abatement information than before and by
providing simple forms to assist employers to comply. (Employers may
also use forms of their own design that contain the same information.)
Several significant revisions made to the regulation since the
proposal have reduced the costs employers will incur to comply. For
example, under the final regulation:
Violations that are immediately abated require no
abatement certification.
For other-than-serious violations, and for most serious
violations, only a simple abatement letter is required to verify
abatement (a sample format for this letter is provided by OSHA).
Overall, OSHA estimates that 90 percent of all violations will require
only a simple letter certifying that abatement has occurred.
Employers are required to provide additional documentation
(proof) of abatement only for the more serious violations. The Agency
estimates that no more than sixteen percent of all serious violations
will require such additional documentation.
Abatement plans, when required, will generally be simple,
one-page documents (see Appendix B).
Progress reports, when required, have been simplified to
require only a single-sentence description of the interim actions
taken. OSHA is also providing a sample form for abatement plans and
progress reports.
For employers who have movable equipment that has been
cited as a serious hazard by OSHA, the final regulation allows
employers either to post a copy of the citation on the cited equipment
or to attach a warning tag, supplied by OSHA or devised by the
employer, to this equipment to alert affected employees to the presence
of the hazard.
Summary of the Costs and Benefits of the Final Regulation
In most cases, OSHA estimates that the final regulation will reduce
the costs that cited employers currently incur to verify abatement.
This conclusion is based primarily on the fact that the final
regulation will only affect those employers who are actually cited for
violations (i.e., about two-thirds of inspected employers currently)
and on evidence that most of these cited employers already supply
Federal and State-plan enforcement agencies with more information on
abatement than will be required under the final regulation. Overall,
the cost of compliance for employers to verify abatement is estimated
to be $2 million less per year than employers are currently incurring
(estimated to be $4.4 million) to comply with OSHA's administrative
procedures for abatement verification.
The Agency estimates that the final abatement verification
regulation will save employers an additional $4 million annually
because they will no longer expend their time and money to respond to
dunning efforts to ensure that abatement has taken place. The final
rule's net benefits, or cost savings, for employers are estimated to be
$6 million annually: a $2 million savings in reduced paperwork to
complete abatement verification forms and a $4 million savings in
reduced personnel time and effort to respond to OSHA phone and mail
inquiries about the status of abatement. In addition, the Agency
estimates that Federal and State-plan agencies will experience resource
savings of $4.5 million annually under the final regulation (i.e., will
save this amount in personnel costs formerly expended in dunning
activity and follow-up inspections). Other benefits of the final
regulation include enhanced worker protection because hazards will be
abated more quickly, and greater employee awareness of, and
participation in, the employer's abatement activities.
For a complete discussion of the methodology used to develop the
costs of compliance, cost savings, and net benefits of the final
abatement verification regulation, see the Final Economic Analysis in
the docket for this rulemaking.
VII. Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., OSHA has performed a screening analysis to identify any
significant economic impacts of the final regulation on a substantial
number of small businesses. At the time of the proposal, OSHA's
Preliminary Regulatory Impact Assessment specifically stated that the
regulation would not have such impacts. OSHA received no comments on
this conclusion or the methodology used to reach that determination.
Accordingly, the Agency certifies that the final regulation will not
have a significant impact on a substantial
[[Page 15336]]
number of small businesses, defined for the purpose of this regulation
as those with fewer than 20 employees.
As discussed in Section VI of this preamble, the final regulation
will reduce the costs small establishments currently incur to comply
with OSHA's procedural requirements for abatement verification. The
cost of the final regulation for employers in those small
establishments that receive OSHA citations, including those for small
governmental entities regulated under State-plan programs, is well
below any measure of significant economic impact. The Agency therefore
concludes that this regulation will not have a significant impact on a
substantial number of small entities.
VIII. Environmental Impact Assessment
Finding of No Significant Impact
This final regulation has been reviewed in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (CEQ) (40 CFR Part 1500), and the Department of
Labor's NEPA procedures (29 CFR Part 11). Because the regulation
exclusively addresses reporting requirements, it will not have an
impact on the environment or result in the release of materials that
contaminate natural resources or the environment.
IX. Federalism
The final regulation has been reviewed in accordance with Executive
Order 12612 (52 FR 41685), regarding Federalism. This Order requires
that agencies, to the extent possible, refrain from limiting state
policy options, consult with States prior to taking any actions that
would restrict state policy options, and take such actions only if
clear constitutional authority exists and the problem is of national
scope. The Order provides for preemption of State law only if a clear
Congressional intent has been expressed for the Agency to do so. Any
such preemption is to be limited to the extent possible.
With respect to states that do not have OSHA-approved occupational
safety and health State plans, the final regulation conforms to the
preemption provisions of Section 18 of the OSH Act (29 U.S.C. 667);
this section preempts State promulgation and enforcement of
requirements dealing with occupational safety and health issues covered
by Federal OSHA standards unless the state has an OSHA-approved Sate
plan. (See Gade v. National Solid Wastes Management Association, 112
S.Ct. 2374 (1992).) Since states without State plans are prohibited
already from issuing citations for violations of requirements covered
by Federal OSHA standards, this final regulation does not expand this
limitation.
The Agency certifies that this final regulation has been assessed
in accordance with the principles, criteria, and requirements set forth
under Sections 2 through 5 of Executive Order 12612. Section 18(c)(2)
of the OSH Act (29 U.S.C. 667(c)((2)) provides that an OSHA-approved
State plan must provide for the development and enforcement of safety
and health standards that are, or will be, at least as effective as the
Federal program. In implementing this requirement, 29 CFR 1902.3(d)(1)
requires a State plan to establish a program for the enforcement of
state standards that is, or will be, at least as effective as the
standard provided under the OSH Act, and provide assurances that the
State plan enforcement program will continue to be at least as
effective as the Federal program. Furthermore, 29 CFR 1902.4(a)
requires state plans to establish the same procedures and rules that
are established by Federal OSHA, or alternative procedures and rules as
effective as the Federal procedures and rules. In particular, a State
plan must provide that employees be informed of their protections and
obligations under the Act. (See 29 CFR 1902.4(c)(2)(iv).) The plan also
must provide for prompt notice to employers and employees when an
alleged violation of standards has occurred, including the proposed
abatement requirements, by such means as the issuance and posting of
citations. (See 29 CFR 1902.4(c)(2)(x).) Since this final regulation
will improve Federal OSHA's enforcement of the OSH Act and, in
particular, will foster the abatement of violations and communication
to employees about their protections under the Act, State plans will be
required to adopt an identical regulation, or an equivalent regulation
that is at least as effective as the Federal regulation, within six
months of Federal promulgation. Thus, the final regulation complies
with Executive Order 12612 with respect to State Plan States because
(1) the final regulation deals with a problem of national scope, and
(2) the OSH Act requires that State Plan States adopt the OSHA
regulation or an equally-effective regulation. Since a number of State
Plan States already have abatement-verification and employee-
notification procedures similar to the requirements specified under
this regulation, they will only need to reissue the requirement as an
enforceable regulation.
State comments were invited on prepublication drafts of both the
proposed and final regulation, and these comments were fully considered
before a final regulation was promulgated. Two State Plan States,
Michigan and Minnesota, commented (Exs. 4-86 and 4-87, respectively) on
the draft proposed regulation. Michigan and Minnesota again submitted
comments on the draft final regulation, along with Maryland (Exs. 4-89,
4-90, and 4-91, respectively). These states expressed concern about the
tagging and posting requirements, the paperwork burden these
requirements impose on employers, and the use of additional state
resources to implement the regulation. Minnesota also wanted a number
of items clarified in the compliance guidance that OSHA will issue with
this regulation (e.g., the application of the tagging and reporting
requirements in contested cases). The final regulation has addressed
the States' concerns regarding the tagging and posting requirements,
and lessened the paperwork burden for both employers and the
enforcement agencies (i.e., OSHA and State Plan States). This reduced
paperwork burden, the compliance guidance that will accompany this
final regulation, and the economic benefits that will accrue to
enforcement agencies under the final regulation (see ``Economic
Analysis'' above) will reduce the burden to, and enhance the economic
resources of, the Federal and State agencies responsible for enforcing
the final regulation.
OSHA also sought information from the State Plan States that
require abatement documents on their experience with employers
providing false information on the documents. On average, these states
reported a false-information rate of five per cent or less.
X. State Plans
Currently, 25 states and other jurisdictions have OSHA-approved
occupational safety and health plans. These 25 jurisdictions are:
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland,
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin
Islands, Washington, and Wyoming; Connecticut and New York have State
Plan jurisdiction for state and local government employees only.
The 25 jurisdictions with their own OSHA-approved occupational
safety and health plans are required to adopt a regulation on abatement
verification
[[Page 15337]]
and employee notification that is at least as effective as this Federal
regulation within six months of the publication date of the final
regulation.
Current State abatement-verification and employee-notification
procedures are described in State field operations manuals and/or
directives. Although these state procedures may differ from the federal
procedures, the State Plan States, like Federal OSHA, generally lack
regulations or statutory provisions specifically addressing this issue,
and thus do not by regulation compel employers to submit abatement-
certification letters or other documents to them; the exceptions are
Wyoming and California, which have a regulation and legislation,
respectively, that require employers to submit abatement-certification
documents be submitted to the state occupational safety and health
agencies.
Existing State abatement-certification procedures are identical to
the current Federal practices except as described below:
(1) The following nine States have abatement-certification forms:
Alaska, California, Kentucky, Michigan, North Carolina, Oregon, South
Carolina, Washington, and Wyoming. On these forms, employers describe
the specific actions taken to correct each alleged violation. Alaska,
Oregon, Washington, Michigan, and Kentucky also ask for documentary
evidence of abatement. Alaska requires employers to certify, under
penalty of perjury, that the violations were abated by the dates
specified.
(2) For serious violations, California has adopted legislation that
requires an abatement statement to be signed under penalty of perjury.
(3) Minnesota requests a progress report for all serious, and most
other, violations of the State's general industry and construction
standards.
(4) Washington schedules follow-up inspections every six months to
assess progress made on lengthy or multi-step abatement plans.
(5) Some states (e.g., South Carolina and California) send a
reminder letter to employers just before the abatement-certification
form is due. Washington reminds employers of this event by letter or
telephone. Kentucky and California also send follow-up letters if the
form is overdue.
(6) Maryland tracks informal conference settlements to determine if
the abatement documentation is adequate.
(7) Wyoming has an enforcement regulation requiring submission of
written documents stating the date abatement was accomplished. Failure
to do so can result in a civil penalty. Wyoming also can take legal
action to enforce submission of abatement letters.
(8) New York, which covers only state and local government
employees, conducts follow-up inspections to validate abatement of
every violation; employers are not asked to send abatement-
certification information to the state agency.
A number of states have ``red-tag'' authority, which allows them to
issue a restraining order in an immediate-danger situation involving
hazardous equipment (or other condition or practice). This red tag
authority is different from the orange warning tag required by the
abatement verification and employee notification regulation; use of
orange warning tags does not prohibit operation of cited equipment,
while use of red tags does prohibit such operation.
List of Subjects in 29 CFR Part 1903
Abatement; Abatement certification; Abatement plan; Progress
reports; Abatement verification; Employee notification; Movable
equipment; Occupational safety and health; Posting; Tags.
Authority
This document was prepared under the direction of Gregory R.
Watchman, Acting Assistant Secretary of Labor for Occupational Safety
and Health, U.S. Department of Labor, 200 Constitution Ave., N.W.,
Washington, D.C. 20210. The final regulation is issued pursuant to
Sections 8(c)(1), 8(g), and 9(b) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 657, 658).
Signed in Washington, D.C., this 19th day of March 1997.
Gregory R. Watchman,
Acting Assistant Secretary of Labor.
Part 1903 of CFR 29 is hereby amended as set forth below.
Regulatory Text
PART 1903--[AMENDED]
1. The authority citation for Part 1903 of Title 29 of the Code of
Federal Regulations is revised to read as follows:
Authority: Sections 8 and 9 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 657, 658); 5 U.S.C. 553; Secretary of
Labor's Order No. 1-90 (55 FR 9033) or 6-96 (62 FR 111), as
applicable.
2. 29 CFR Part 1903 is amended by redesignating Secs. 1903.19,
1903.20, and 1903.21 as Secs. 1903.20, 1903.21, and 1903.22,
respectively, and by adding a new Sec. 1903.19, to read as follows:
Sec. 1903.19 Abatement verification.
Purpose. OSHA's inspections are intended to result in the abatement
of violations of the Occupational Safety and Health Act of 1970 (the
OSH Act). This section sets forth the procedures OSHA will use to
ensure abatement. These procedures are tailored to the nature of the
violation and the employer's abatement actions.
(a) Scope and application. This section applies to employers who
receive a citation for a violation of the Occupational Safety and
Health Act.
(b) Definitions. (1) Abatement means action by an employer to
comply with a cited standard or regulation or to eliminate a recognized
hazard identified by OSHA during an inspection.
(2) Abatement date means:
(i) For an uncontested citation item, the later of:
(A) The date in the citation for abatement of the violation;
(B) The date approved by OSHA or established in litigation as a
result of a petition for modification of the abatement date (PMA); or
(C) The date established in a citation by an informal settlement
agreement.
(ii) For a contested citation item for which the Occupational
Safety and Health Review Commission (OSHRC) has issued a final order
affirming the violation, the later of:
(A) The date identified in the final order for abatement; or
(B) The date computed by adding the period allowed in the citation
for abatement to the final order date;
(C) The date established by a formal settlement agreement.
(3) Affected employees means those employees who are exposed to the
hazard(s) identified as violation(s) in a citation.
(4) Final order date means:
(i) For an uncontested citation item, the fifteenth working day
after the employer's receipt of the citation;
(ii) For a contested citation item:
(A) The thirtieth day after the date on which a decision or order
of a commission administrative law judge has been docketed with the
commission, unless a member of the commission has directed review; or
(B) Where review has been directed, the thirtieth day after the
date on which the Commission issues its decision or order disposing of
all or pertinent part of a case; or
(C) The date on which a federal appeals court issues a decision
affirming the violation in a case in which a final order of OSHRC has
been stayed.
(5) Movable equipment means a hand-held or non-hand-held machine or
device, powered or unpowered, that is
[[Page 15338]]
used to do work and is moved within or between worksites.
(c) Abatement certification. (1) Within 10 calendar days after the
abatement date, the employer must certify to OSHA (the Agency) that
each cited violation has been abated, except as provided in paragraph
(c)(2) of this section.
(2) The employer is not required to certify abatement if the OSHA
Compliance Officer, during the on-site portion of the inspection:
(i) Observes, within 24 hours after a violation is identified, that
abatement has occurred; and
(ii) Notes in the citation that abatement has occurred.
(3) The employer's certification that abatement is complete must
include, for each cited violation, in addition to the information
required by paragraph (h) of this section, the date and method of
abatement and a statement that affected employees and their
representatives have been informed of the abatement.
Note to paragraph (c): Appendix A contains a sample Abatement
Certification Letter.
(d) Abatement documentation. (1) The employer must submit to the
Agency, along with the information on abatement certification required
by paragraph (c)(3) of this section, documents demonstrating that
abatement is complete for each willful or repeat violation and for any
serious violation for which the Agency indicates in the citation that
such abatement documentation is required.
(2) Documents demonstrating that abatement is complete may include,
but are not limited to, evidence of the purchase or repair of
equipment, photographic or video evidence of abatement, or other
written records.
(e) Abatement plans. (1) The Agency may require an employer to
submit an abatement plan for each cited violation (except an other-
than-serious violation) when the time permitted for abatement is more
than 90 calendar days. If an abatement plan is required, the citation
must so indicate.
(2) The employer must submit an abatement plan for each cited
violation within 25 calendar days from the final order date when the
citation indicates that such a plan is required. The abatement plan
must identify the violation and the steps to be taken to achieve
abatement, including a schedule for completing abatement and, where
necessary, how employees will be protected from exposure to the
violative condition in the interim until abatement is complete.
Note to paragraph (e): Appendix B contains a Sample Abatement
Plan form.
(f) Progress reports. (1) An employer who is required to submit an
abatement plan may also be required to submit periodic progress reports
for each cited violation. The citation must indicate:
(i) That periodic progress reports are required and the citation
items for which they are required;
(ii) The date on which an initial progress report must be
submitted, which may be no sooner than 30 calendar days after
submission of an abatement plan;
(iii) Whether additional progress reports are required; and
(iv) The date(s) on which additional progress reports must be
submitted.
(2) For each violation, the progress report must identify, in a
single sentence if possible, the action taken to achieve abatement and
the date the action was taken.
Note to paragraph (f): Appendix B contains a Sample Progress
Report Form.
(g) Employee notification. (1) The employer must inform affected
employees and their representative(s) about abatement activities
covered by this section by posting a copy of each document submitted to
the Agency or a summary of the document near the place where the
violation occurred.
(2) Where such posting does not effectively inform employees and
their representatives about abatement activities (for example, for
employers who have mobile work operations), the employer must:
(i) Post each document or a summary of the document in a location
where it will be readily observable by affected employees and their
representatives; or
(ii) Take other steps to communicate fully to affected employees
and their representatives about abatement activities.
(3) The employer must inform employees and their representatives of
their right to examine and copy all abatement documents submitted to
the Agency.
(i) An employee or an employee representative must submit a request
to examine and copy abatement documents within 3 working days of
receiving notice that the documents have been submitted.
(ii) The employer must comply with an employee's or employee
representative's request to examine and copy abatement documents within
5 working days of receiving the request.
(4) The employer must ensure that notice to employees and employee
representatives is provided at the same time or before the information
is provided to the Agency and that abatement documents are:
(i) Not altered, defaced, or covered by other material; and
(ii) Remain posted for three working days after submission to the
Agency.
(h) Transmitting abatement documents. (1) The employer must
include, in each submission required by this section, the following
information:
(i) The employer's name and address;
(ii) The inspection number to which the submission relates;
(iii) The citation and item numbers to which the submission
relates;
(iv) A statement that the information submitted is accurate; and
(v) The signature of the employer or the employer's authorized
representative.
(2) The date of postmark is the date of submission for mailed
documents. For documents transmitted by other means, the date the
Agency receives the document is the date of submission.
(i) Movable equipment. (1) For serious, repeat, and willful
violations involving movable equipment, the employer must attach a
warning tag or a copy of the citation to the operating controls or to
the cited component of equipment that is moved within the worksite or
between worksites.
Note to paragraph (i)(1): Attaching a copy of the citation to
the equipment is deemed by OSHA to meet the tagging requirement of
paragraph (i)(1) of this section as well as the posting requirement
of 29 CFR 1903.16.
(2) The employer must use a warning tag that properly warns
employees about the nature of the violation involving the equipment and
identifies the location of the citation issued.
Note to paragraph (i)(2): Non-Mandatory Appendix C contains a
sample tag that employers may use to meet this requirement.
(3) If the violation has not already been abated, a warning tag or
copy of the citation must be attached to the equipment:
(i) For hand-held equipment, immediately after the employer
receives the citation; or
(ii) For non-hand-held equipment, prior to moving the equipment
within or between worksites.
(4) For the construction industry, a tag that is designed and used
in accordance with 29 CFR 1926.20(b)(3) and 29 CFR 1926.200(h) is
deemed by OSHA to meet the requirements of this section when the
information required by paragraph (i)(2) is included on the tag.
(5) The employer must assure that the tag or copy of the citation
attached to movable equipment is not altered, defaced, or covered by
other material.
(6) The employer must assure that the tag or copy of the citation
attached to
[[Page 15339]]
movable equipment remains attached until:
(i) The violation has been abated and all abatement verification
documents required by this regulation have been submitted to the
Agency;
(ii) The cited equipment has been permanently removed from service
or is no longer within the employer's control; or
(iii) The Commission issues a final order vacating the citation.
Appendices to Sec. 1903.19--Abatement Verification
Note: Appendices A through C provide information and
nonmandatory guidelines to assist employers and employees in
complying with the appropriate requirements of this section.
Appendix A to Section 1903.19--Sample Abatement-Certification Letter
(Nonmandatory)
(Name), Area Director
U. S. Department of Labor--OSHA
Address of the Area Office (on the citation)
[Company's Name]
[Company's Address]
The hazard referenced in Inspection Number [insert 9-digit #]
for violation identified as:
Citation [insert #] and item [insert #] was corrected on [insert
date] by:
----------------------------------------------------------------------
____________________.
Citation [insert #] and item [insert #] was corrected on [insert
date] by:
----------------------------------------------------------------------
____________________.
Citation [insert #] and item [insert #] was corrected on [insert
date] by:
----------------------------------------------------------------------
____________________.
Citation [insert #] and item [insert #] was corrected on [insert
date] by:
----------------------------------------------------------------------
____________________.
Citation [insert #] and item [insert #] was corrected on [insert
date] by:
----------------------------------------------------------------------
____________________.
Citation [insert #] and item [insert #] was corrected on [insert
date] by:
----------------------------------------------------------------------
____________________.
Citation [insert #] and item [insert #] was corrected on insert date
by:
----------------------------------------------------------------------
____________________.
Citation [insert #] and item [insert #] was corrected on [insert
date] by:
----------------------------------------------------------------------
____________________.
I attest that the information contained in this document is
accurate.
----------------------------------------------------------------------
Signature
----------------------------------------------------------------------
Typed or Printed Name
Appendix B to Section 1903.19--Sample Abatement Plan or Progress Report
(Nonmandatory)
(Name), Area Director
U. S. Department of Labor--OSHA
Address of Area Office (on the citation)
[Company's Name]
[Company's Address]
Check one:
Abatement Plan [ ]
Progress Report [ ]
Inspection Number------------------------------------------------------
Page ________ of ________
Citation Number(s)*----------------------------------------------------
Item Number(s)*--------------------------------------------------------
Proposed Completion
Completion Date (for
Action Date (for progress
abatement reports
plans only) only)
1............................................. ........... ...........
2............................................. ........... ...........
3............................................. ........... ...........
4............................................. ........... ...........
........... ...........
5............................................. ........... ...........
........... ...........
6............................................. ........... ...........
........... ...........
7............................................. ........... ...........
Date required for final abatement:-------------------------------------
I attest that the information contained in this document is
accurate.
----------------------------------------------------------------------
Signature
----------------------------------------------------------------------
Typed or Printed Name
Name of primary point of contact for questions: [optional]
Telephone number:------------------------------------------------------
*Abatement plans or progress reports for more than one citation
item may be combined in a single abatement plan or progress report
if the abatement actions, proposed completion dates, and actual
completion dates (for progress reports only) are the same for each
of the citation items.
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[GRAPHIC] [TIFF OMITTED] TR31MR97.016
[FR Doc. 97-7959 Filed 3-28-97; 8:45 am]
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