[Federal Register Volume 59, Number 75 (Tuesday, April 19, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9109]
[[Page Unknown]]
[Federal Register: April 19, 1994]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1903
[Docket No. C-03]
Abatement Verification
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Notice of proposed rulemaking.
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SUMMARY: OSHA is developing a regulation requiring employers to certify
abatement and submit abatement plans and progress reports as a result
of OSHA citations. In addition, OSHA is proposing the placement of a
tag on cited equipment to alert affected employees that a hazardous
condition exists while abatement is being accomplished. Violation of
the regulation would result in civil penalties as prescribed by section
17 of the Occupational Safety and Health Act of 1970. This notice
invites interested parties to submit comments and recommendations on
the issues detailed in this document, as well as other pertinent
issues. All the information received in response to this notice will be
carefully reviewed. The comments received will assist OSHA in
developing the final regulation.
DATES: Written comments on the notice of proposed rulemaking must be
postmarked no later than July 18, 1994.
ADDRESSES: Comments and information should be submitted in
quadruplicate to the Docket Officer, Docket No. C-03, Occupational
Safety and Health Administration, room N-2625, U.S. Department of
Labor, 200 Constitution Ave. NW., Washington, DC 20210; telephone:
(202) 219-7894.
FOR FURTHER INFORMATION CONTACT:
Mr. James Foster, Occupational Safety and Health Administration, Office
of Public Affairs, room N-3647, U.S. Department of Labor, 200
Constitution Ave. NW., Washington, DC 20210; telephone: (202) 219-8151.
SUPPLEMENTARY INFORMATION: The purpose of this proposed rule is to
require employers to inform OSHA and their employees about measures
they will take or have taken in response to OSHA citations, as well as
to inform employees about OSHA citations and the alleged safety or
health hazards described therein.
I. Background
Under the Occupational Safety and Health Act of 1970 (i.e., ``the
Act'' or ``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 or regulatory requirements. If OSHA
believes that an employer has committed a violation, a citation is
issued. The citation will reference the requirement allegedly violated,
the alleged violation, and note the proposed penalty and a date by
which the violation is to be corrected, i.e., the abatement date.
Section 9(a), 29 U.S.C. 658(a).
Currently, the cover letter to the employer which accompanies an
OSHA citation states that the employer must notify the Area Director
promptly by letter of abatement of violations. (OSHA Instruction ADM 1-
1.12A CH-7, August 3, 1987. ``IMIS FORMS Manual'', Appendix C, page C-
22). No specific regulation, however, authorizes this notification
action. When, therefore, an employer does not provide written
verification of abatement, OSHA may, depending on the circumstances,
seek to verify abatement by making further efforts to communicate with
the employer (e.g., by telephone), or by conducting an on-site follow-
up inspection.
On May 1991, the General Accounting Office (GAO) issued a report to
Congress in which it assessed the adequacy of OSHA's policies and
procedures for determining whether hazards have been abated. The report
(GAO/HRD-91-35) (Ex. 1)\1\ found that these policies and procedures
have limitations that impede the Agency's ability to detect employers
who have failed to abate the safety and health hazards for which they
have been cited. GAO found that OSHA's policies: (1) Do not require,
but merely request, employers to provide evidence of abatement, and (2)
inadequately address confirmation of hazard abatements found at
construction worksites.
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\1\``Ex.,'' followed by a number, designate the exhibit in the
docket containing the referenced document.
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The GAO report concluded that OSHA would obtain improved evidence
of abatement if its regulations required employers to provide specific
documentation that they have abated hazards. The report further
concluded that such a requirement would enhance OSHA's ability to
detect noncomplying employers and determine where to conduct follow-up
inspections. Employers also would be more likely to abate hazards
because they would have to provide specific evidence of abatement.
Accordingly, GAO recommended that OSHA promulgate a regulation
requiring employers to submit detailed evidence of what corrective
actions have been taken to abate hazards.
GAO was also concerned about hazard abatement problems in the
construction industry due to the mobility of hazardous equipment. The
report's conclusion stated:
OSHA needs to confirm abatement of construction hazards in such
a way that they will not be repeated at subsequent worksites. OSHA's
practice of accepting worksite closing as a form of abatement allows
the continuation of procedures and practices that perpetuate
hazardous conditions. Consequently, contractors can continue to use
a defective piece of equipment, untrained employees, or inadequate
procedures and processes at subsequent worksites. OSHA should
require contractors to take abatement actions that will correct what
caused the hazard rather than just eliminate the hazard at the
inspection site. (emphasis added) (GAO/HRD-91-35)
The second GAO recommendation was for OSHA to revise its polices so
that (1) citations to employers at construction worksites require
correcting the condition, equipment, or procedure that create the
hazard, and (2) employers will not be able to ``abate'' hazards solely
by moving to another location.
Although not referenced in the GAO report, unsuspecting employees
may be exposed to similar hazards under conditions in which the place
of employment and equipment are permanent, but there is a frequent
turnover of employees in temporary jobs or employees are rotated
frequently through different job assignments. Also, workers in mobile
crews who visit different job sites should have available hazard
warning information regarding defective equipment which they must
operate.
Current OSHA policy is that written, detailed plans of abatement
shall be submitted to the Area Director when citations are issued
alleging (i.e. noise or air contaminant) violations and OSHA orders
that engineering or administrative controls be implemented. In these
cases, employers are also asked to submit progress reports, generally
every ninety days, detailing steps taken to achieve complete abatement
(e.g., procurement of engineering controls). Field Operations Manual,
chapter V (appendix), E.4.a. and c., E.5.a. and c. (Ex. 2) OSHA's
policy, therefore is to have employers verify that the violation cited
has been corrected. Despite this policy, there is no existing
regulation, enforceable by citations and civil penalties, which
mandates employers to submit abatement plans, progress reports, or
abatement verification letters. Thus, OSHA proposes that employers
should be required by regulation to submit such documents.
Currently, 29 CFR 1903.16 requires the posting of a citation at or
near the place of the alleged violation. This regulation is inadequate
in many instances to notify employees that OSHA has required the
abatement of hazardous conditions because citations are often posted on
company bulletin boards that employees may not see or read. Employees
are more likely, therefore, to be informed about hazardous equipment
they are operating via a required tag affixed to that equipment than by
a posted citation. OSHA already requires that employers in general
industry and construction affix accident-prevention tags informing
employees about hazardous conditions. 29 CFR 1910.145(f) and
1926.200(h). However, these standards do not require employers to state
that a condition has been cited. Further, the General Industry standard
does not apply to construction, maritime, or agricultural employers. 29
CFR 1910.145 (f)(1)(ii). Therefore, OSHA also proposes that all
employers covered by the OSH Act be required to affix tags to cited
equipment informing employees about an OSHA citation regarding that
equipment.
Legal Considerations
Introduction
For purposes of the proposed rule, there are two key terms, i.e.,
``abatement date'' and ``final order.'' The following discussion is
provided in order to relate these terms to the statutory framework
created by the OSH Act. The discussion, however, is general in nature
and is not intended to address every situation that may arise in the
course of litigation.
Contesting a Citation
As noted above, an employer has the right, under the OSH Act, to
contest a citation or a prescribed abatement date. (employers may also
contest only the amount of the penalty proposed for a violation, but
this action does not delay the abatement period prescribed for that
violation). An abatement date can also be contested by an affected
employee or a representative of affected employees. If neither the
employer nor employees contest the citation, the date set forth in the
citation for the correction of the violation is the abatement date.\2\
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\2\The Act provides that an employer may file a notice of
contest within fifteen working days of receiving the notification of
proposed penalty. Section 10, 29 U.S.C. 659. (Under current OSHA
practice, the notification of proposed penalty is attached to the
citation.) Appellate courts have held that OSHA may set an abatement
date which falls within the fifteen-day period, in which case the
period allowed for contest is shortened accordingly. See Dunlop v.
Haybuster Mfg. Co., 524 F.2d 222 (8th Cir. 1975); Brennan v. OSHRC
and Kesler & Sons Construction Company, 513 F.2d 553, 557-58 (10th
Cir. 1975).
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The Act also provides that, in the event of a contest, the
employer's obligation to abate a cited violation is suspended, provided
that the employer's contest has been made ``* * * in good faith and not
solely for purposes of delay or avoidance of penalties.'' Section
10(b), 29 U.S.C. 659(b). Once a citation is contested, an employer's
abatement obligation generally does not start to run until a ``final
order'' has been issued ending the administrative phase of the
litigation.
When a citation or a prescribed abatement period has been
contested, the matter is adjudicated by the Occupational Safety and
Health Review Commission (i.e., ``the Commission''), an independent
agency headed by three Presidential appointees (i.e., ``Members'').
Initially, a contested case is usually heard by an administrative law
judge (ALJ) of the Commission. The ALJ issues a decision and order,
which are then docketed with the Commission. This decision and order
may subsequently be reviewed by the full Commission. Section 12(j), 29
U.S.C. 659(j). Under this review procedure, any Member of the
Commission may direct review of the ALJ's decision and order within
thirty days of the docketing date. If there is no direction for review,
the ALJ's decision and order becomes the final order of the Commission.
Id. Any abatement requirement affirmed or modified by an ALJ's decision
and order will start to run on the date that the ALJ's decision and
order become a final order. The new abatement date is determined by
adding to the final order date either: (1) The number of days allowed
originally for abatement in the citation (in cases where the ALJ
affirms the abatement requirement) or (2) the newly specified period
for abatement (in cases where the ALJ modifies the abatement
requirement). If, However, the Commission reviews an ALJ's decision and
order, the employer's abatement obligation remains suspended during the
review process. Following its review, the Commission will generally
issue its own decision, which becomes a final order thirty days after
its decision is issued. Section 10(c), 29 U.S.C. 659(c).\3\ Again, any
abatement period affirmed or modified as a result of the Commission's
decision will start to run from the date its decision becomes a final
order.\4\
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\3\Prior to issuing its decision, the Commission may sever one
or more citation items from the case if it determines that it will
not review the ALJ's affirmance of those items. See Hamilton Die
Cast Inc., 12 BNA OSRC 1797 (No. 83-308, 1986). The order severing
citation items will become a final order as to those items.
\4\It is possible that the Commission (or an ALJ) could, in
modifying an abatement requirement, state an actual date by which
abatement must be accomplished. In that situation, the abatement
date would be the date as specified.
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An ALJ's decision and order that have not been directed for
Commission review, or a decision of the Commission following such
review, also may be challenged in the appropriate federal appellate
court. Sections 11(a) and (b), 29 U.S.C. 660(a) and (b). Filing a
petition for appellate court review does not automatically stay the
employer's abatement requirements. Id. In extraordinary cases, however,
either the Commission or the court of appeals may stay the final order
at the employer's request. If stayed, the abatement requirement does
not begin to run until the appellate court upholds the earlier decision
of the Commission or the ALJ (i.e., to affirms or revise the abatement
requirement) by issuing a mandate or an equivalent order giving legal
effect to the appellate court's decision. Where a citation was vacated
by the Commission or the ALJ, and the appellate court subsequently
reverses that decision, the appellate court will generally remand the
case to the Commission for entry of an order to affirm the citation.
The abatement requirement then will begin to run thirty days after the
date of the appellate court's order. Should the appellate court, in
such cases, not remand the case for entry of a Commission order, the
abatement obligation begins to run from the court's own entry of
mandate or equivalent order.
Settlement or withdrawal of a contest. At any stage of an ongoing
contest proceeding, there may be a settlement of the case, in whole or
in part, or the employer may unilaterally withdraw the notice of
contest, in whole or in part. Under these conditions, the ALJ or the
Commission will enter an order based on the settlement or withdrawal of
the notice of contest. It is OSHA's legal position that, in some
circumstances, withdrawal or settlement actions by employers become
final orders by operation of law upon execution, without approval by
the Commission. (See Cuyahoga Valley Ry. Co. v. United Transportation
Union, 474 U.S. 3 (1985)). However, for purposes of determining the
timing of an employer's abatement obligations under the proposed
regulation, OSHA has elected to treat orders based on settlement or
withdrawal in the same manner as other ALJ and Commission orders, i.e.,
the abatement obligation begins to run thirty days after the docketing
of the ALJ order by the Commission or after the issuance of the
Commission order, as the case may be. Should the parties phrase the
settlement agreement such that abatement is called for by a date
certain, or that the abatement period will run from a certain event
(e.g., the date of execution of the agreement), the abatement date will
be determined in accordance with the terms of the agreement provided no
employee or employee representative contests the abatement period
specified in the agreement.
The existence of a Commission final order has a number of
consequences for enforcement. If OSHA determines that an employer has
failed to correct a violation on or before the expiration of the
abatement date, OSHA may issue a notification of failure to abate.
Section 10(b), 29 U.S.C. 659(b). A penalty of up to $7000 may be
assessed for each day the failure to abate continues. Section 17(d), 29
U.S.C. 666(d). If, after a final order, the employer commits a
substantially similar violation in a different location, or with a
different piece of equipment, or with the same piece of equipment after
a period of temporary abatement, the violation is classified as
repeated and a penalty of up to $70,000 may be assessed. Section 17
(a), 29 U.S.C. 666(a). Further, the Secretary may file a petition for
enforcement of a Commission order which has became final after a notice
of contest, or after a failure to contest within fifteen working days.
This petition is filed in the court of appeals and the court issues a
decree enforcing the Commission final order. If the employer violates
this decree, the employer may be subject to penalties for contempt of
court. Section 11(b), 29 U.S.C. 660(b).
The discussion above details the regular procedures for obtaining
and enforcing final Commission orders with their concomitant abatement
dates. In addition, there are procedures for modifying the abatement
requirements of a citation due to employer hardship. Upon a showing by
an employer of inability to complete abatement within the prescribed
period because of factors beyond the employer's reasonable control, the
employer may obtain a modification of the abatement date. Section
10(c), 29 U.S.C. 659(c). A petition for modification of abatement date
(PMA) must be filed no later than the close of the next working day
following the date on which abatement is required. If neither OSHA nor
affected employees object to the employer's request, OSHA may approve
the PMA and it then becomes a final order pursuant to section 10(a) and
(c) of the Act. If either OSHA or employees object to the PMA, the case
is forwarded to the Commission for adjudication. See 29 CFR 2200.37.
The Commission may either accept, reject, or modify the employer's
request for additional time and issue an appropriate order.
II. Summary and Explanation of the Regulation
Under the proposed regulation, an employer who has received an OSHA
citation must submit to the OSHA Area Director an abatement
certificate, which states whether or not the violation has been abated,
as documentation of abatement. The proposed regulation would also
require an employer who has received an OSHA citation to submit an
abatement plan, where the Area Director requests one by such means as a
note on the citation, which sets forth a schedule for the
implementation of abatement measures. Under the proposal the employer
would also submit progress reports, which explain what measures have
been taken, if any, in the process of achieving abatement, when the
Area Director requires them. The proposed rule would also require
employers to affix tags on equipment noting that a citation has been
issued.
Paragraph (a), Scope and Application
This regulation applies to all industries covered by the OSH Act,
including general industry, construction, maritime, and agricultural
employers. The specific identification of the major industrial groups,
in this section, is intended to make this fact clear.
Paragraph (b), Definitions
Only those terms of the definitions paragraph which were felt to
need further clarification are included in this section.
Abatement date. The date by which the employer must abate a
violation depends on the stage to which a case has progressed. This
definition sets forth the various ways an abatement date is determined.
Circumstance (1) refers to the date actually set forth in the citation,
where the citation item has not been contested. As explained in Section
I, this date applies even if it is with the fifteen-working-day period
normally available for the filing of a notice of contest.
Circumstance (2) is self-explanatory, as it refers simply to adding
to the final order date either the amount of time in days initially
specified for abatement on the citation or, if that period was modified
by the Commission or its judge, the amount of time so modified.
Circumstance (3) refers to a date for abatement ``expressly set
forth'' by the Commission, or a Commission administrative law judge.
The phrase ``expressly set forth'' refers to a date certain or to a set
number of days from the final order date specified date.
Circumstance (4) refers to a date set in a PMA final order. The
term (PMA) refers to a petition for modification of the abatement date
described in Section 10(c) of the OSH Act, 29 U.S.C. 659(c). A PMA
final order results either from OSHA's approval of an uncontested PMA
or the Commission's approval, modification or rejection of the
employer's request for additional time in order to complete abatement.
Circumstance (5) refers to settlement agreements signed by OSHA and
the employer, and, in some cases, employees or their authorized
representatives. As in circumstance(3) the phrase ``expressly set
forth'' refers to a date certain or to a set number of days from the
final order date or other specified date.
Abatement plan. As the definition implies with its reference to
``outlining a schedule for the implementation of measures to achieve
abatement'', an abatement plan required by a citation will specify the
requirement for and the frequency of ``progress reports.'' Generally,
abatement plans and progress reports will be associated with multi-step
or long-term abatement.
Citation item. A citation item is a single instance of a violation.
For example, a citation may contain ``Item 1'', alleging that the
employer has one machine in violation of 29 CFR 1910.212(a)(1) because
it was not guarded. A citation may also list several violations of the
same standard under the same citation item, for example ``Item 1,
instance a'', and ``Item 1, instance b''. ``Item 1, Instance a'', and
``Item 1, Instance b'', etc. are all separate ``citation items'' within
the meaning of the proposed regulation. Final order date: The date a
citation becomes a final order is the date on which a citation becomes
effective. The major ways a citation can become a final order are
detailed in the definition.
The first category is that of an uncontested citation. If there is
no contest by either the employer or the employees, the citation
becomes a final order automatically, fifteen (15) working days after
the date the employer receives the citation and proposed penalty,
pursuant to Section 10 of the OSH Act, 29 U.S.C. 659.
The second category refers to situations in which there has been a
contest either by the employer or by employees, resulting in the
issuance of a decision or order by an ALJ. Under Section 12(j) of the
OSH Act, 29 U.S.C. Sec. 661(j), a decision of an ALJ becomes a final
order of the Commission thirty days ``after such report'' if no member
of the Commission directs review of the case. Section 12(j) has been
construed by the Commission to mean that the thirty-day period runs
from the date on which the decision of the ALJ is docketed by the
Commission. (See 29 CFR 2200.90(b)(2); Robert W. Setterlin & Sons Co.,
4 BNA OSHC 1214 (No. 7377, 1976)).
The third category refers to decisions issued by the Members of the
Commission, including orders severing items from a case. Pursuant to
Section 10(c) of the OSH Act, 29 U.S.C. Sec. 659(c), such decisions
become final orders thirty days after their issuance, and the filing of
petitions for review of these decisions in a court of appeals does not
stay the employer's abatement obligation unless a stay has been
expressly ordered.
The fourth category addresses the two situations in which the start
of an employer's abatement obligation depends on action by a court. In
those cases in which a court of appeals stays an abatement requirement,
the abatement requirement starts when the court issues its mandate or
an equivalent order following a decision of the court upholding the
Commission's affirmance of the citation. In those cases where the
Commission did not affirm a citation but the court reverses that
decision, the abatement obligation starts upon the court's issuance of
its mandate or equivalent order unless the court remands the case to
the Commission for the issuance of an appropriate Commission order. In
that situation, the abatement period starts when the Commission's order
becomes final thirty days after its issuance.
PMA final order. This is the order approving, modifying or
rejecting the employer's request for additional time to complete the
abatement requirements of the citation.
Paragraph (c), Abatement Certificate
Paragraph (c)(1) specifies the minimum content of the abatement
certificate; (c)(2) provides special procedures for reissuing an
abatement certificate for those situations where abatement was not
initially completed; and (c)(3) allows an employer to combine the
individual certifications of hazard abatement into one certificate.
Paragraph (c)(4) of the proposed regulation requires the abatement
certificate to be accompanied by ``documentary evidence.'' OSH
envisions ``documentary evidence'' to be any type of document which
provides evidence that a violative condition which was cited has, in
fact, been abated. The examples of documentary evidence which follow
are provided in order to clarify OSHA's intent and are not to be
considered as the only methods which would be acceptable to the Agency,
nor are they automatically accepted in all cases: (1) An invoice or
receipt for purchase or disposal of goods and services; (2) analyses or
reports from industrial hygienists, engineers, or other experts
indicating the methods by which the extent to which the hazardous
condition has been abated; (3) a manufacturer's recertification for
repaired equipment; (4) contracts and specifications for services; (5)
training records, programs, and attendance sheets; (6) in-house
certification; (7) photographic prints depicting the abated condition
which have been labeled appropriately with the citation and item
references as they appeared on the citation; and (8) videotape with
concise audio and/or visual identification for the citation reference.
Paragraph (d), Abatement Plan
Paragraph (d) of the proposed regulation refers to written
abatement plans. OSHA currently requests employers to submit abatement
plans when the Area Director finds them appropriate in connection with
safety or health violations. The proposed regulation would give the
Area Director discretion to require abatement plans with respect to
either safety or health violations.
Paragraph (e), Progress Reports
Paragraph (e) of the proposal refers to written progress reports.
OSHA policy currently provides for progress reports whenever the Area
Director requests them in connection with safety or health violations
requiring multi-step or long term abatement. The proposed regulation
would make such progress reports mandatory when required by the Area
Director and indicated on the citation.
Paragraph (f), Tagging of Cited Equipment
Paragraph (f) of the proposed regulation requires the placement of
a tag on cited equipment in order to alert employees who might be
exposed to the hazards of that equipment. The tag will state that this
equipment has been cited. This procedure will address the situation,
common to the construction industry, in which cited equipment is
removed from one worksite to another where employees are not aware of
the hazardous condition. The tag requirements found in this proposed
regulation are intended to provide such employees with knowledge of the
violative condition of the equipment. The proposal provides that these
warning tags shall comply with the current OSHA requirements for
accident prevention tags (i.e. use, signal word, and general tag
criteria) found in Sec. 1910.145(f).
The proposed regulation would require the tag to remain in place on
the equipment until the defect has been remedied. If the equipment is
removed from the workplace, sold, or otherwise transferred, it is
OSHA's intent that the tag remain on the equipment. Mere lack of
employee exposure to the equipment will not allow the employer to
remove the tag.
The reference to ``tagging equipment'' does not require the tagging
of supplies, furnishings, policies, procedures or building service
distribution systems such as for water. However, individual component
parts within a distribution system may be subject to tagging. For
example, an unguarded drive shaft on a circulating pump in a water
distribution system found in violation of the machine guarding standard
would be considered equipment within the meaning of the regulation and
thus require tagging.
Paragraph (g), Transmittal of Documents
OSHA has included the following note in paragraph (g).
Note: Receipt of an employer's documents by the Agency under
this regulation does not constitute an agreement that the employer
is in compliance.
There are three reasons for this provision. First, although the
Agency will try to evaluate submitted material in a timely fashion,
other agency priorities may delay such action. Second, in some cases,
the submitted materials may not accurately or completely describe the
abatement. Third, changing working conditions may make the abatement
action described in the materials submitted inaccurate or inadequate.
Paragraph (i), Posting Requirements
Paragraph (i)(5) of the proposed regulation states that the final
abatement certificate must remain posted until abatement has been
completed or for six calendar days, whichever is later. Thus, if
abatement has been completed, the certificate shall remain posted for
at least six days after completion. If abatement has not been
completed, the abatement certificate initially submitted shall remain
posted until the violation has been abated. When abatement has been
accomplished, the new final abatement certificate shall remain posted
for six days. If a final abatement certificate deals with a number of
citation items, it shall remain posted for as long as it takes to
comply with the posting requirements for all of the items. OSHA
believes that the posting of the abatement certificate will inform
employees whether or not the hazard has been abated and also help to
assure the accuracy of the certificate.
III. Pertinent Legal Authority
This proposed 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.''
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.'' Moreover, 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 9(b) authorizes the Secretary
to promulgate regulations associated with the posting of citations.
In addition, the Secretary's responsibilities under the Act are
defined largely by its enumerated purposes, which include: 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 Secretary asserts
that the proposed 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.
IV. Comments and Information Requested
Comment is requested on all issues involving the proposed
regulation. In particular, OSHA requests comment on the following
questions:
1. What type of documentary evidence should OSHA require employers
to submit as proof of final abatement? Should the type of documentation
required to be submitted as proof of final abatement vary according to
what is required for abatement, the type of hazard, or the
classification of violation (i.e., willful, repeat, serious, other-
than-serious, regulatory)? What criteria should OSHA apply in judging
either the sufficiency or quality of the documentation?
2. What are the costs (time and money) of complying with this new
regulation and the basis for estimating these costs?
3. What will be the effects of the requirement that employers post
their abatement documents?
4. How do the proposed abatement verification procedures differ
from current or previous practices of informing OSHA that abatement has
been accomplished?
5. How much time does each employer currently spend on abatement
verification?
6. What is the appropriate level of management to sign the
abatement verification?
7. What are employer experiences with verifying abatement of cited
conditions for other Federal and State agencies, especially State
occupational safety and health agencies?
8. Given the need for evidence of abatement, should an employer be
required to submit abatement certification if the employer has actually
abated the condition during the OSHA inspection?
9. Should OSHA develop an abatement certification form? If so, what
information should the form contain?
10. OSHA is proposing in paragraph (f) the use of a tag to be
placed on cited equipment to alert affected employees that a hazardous
condition exists with the equipment. Specific comment is requested on
this particular issue. What information should the tag contain?
V. References
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--Field Operations Manual (FOM).
VI. Preliminary Regulatory Impact Analysis for Abatement
Verification
A. Introductory
Executive Order 12866 (58 FR 51735) requires regulatory agencies to
assess the costs and benefits of intended regulations, to consider the
possible alternatives, and to select the most cost-effective form of
regulation. The Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
requires the Occupational Safety and Health Administration (OSHA) to
consider the impact of the regulation on small entities.
This regulatory impact analysis presents the costs, benefits (cost
savings), and economic impact of the proposed regulation requiring
certification of abatement. The impact on small businesses is also
presented.
The Agency has preliminarily concluded that this regulation is not
a ``significant regulatory action'' as defined in Executive Order
12866, Section 3, Paragraph (f).
The proposed regulation for abatement verification would require
employers to notify OSHA Area Directors whether or not cited violations
have been abated. It would require employer to notify OSHA Area
Directors whether or not cited violations have been abated. It would
also require employers to offer documentation of abatement plans and
progress reports for multi-step abatement efforts. Based on a survey of
OSHA regional offices, OSHA estimates that as many as 70 percent of
cited employers eventually certify and document their abatement actions
to some degree at the present time. This regulatory action will
potentially affect all employers covered by the OSH Act.
This regulatory action can impose penalties for non-reporting of
conditions even if they have been abated and can also lead to an
increase in the penalties that employers face from unabated, violative
conditions. Failure to verify abatement on a timely basis is an
additional violation. When abatement is verified by the employer but
not actually performed, criminal penalties for false statement may
apply. Increased penalties give employers an incentive both to abate
and to verify abatement, and to do so in a timely manner. Abatement
reduces the risk of injury, illness, and death for employees. The
Agency has not estimated the extent of injuries, illnesses, and deaths
averted by this regulatory action, because abatement itself is already
required by the OSH Act.
B. Costs of Compliances
Certifying Abatement
Federal OSHA and State-plan agencies performed about 127,000
workplace inspections in 1991, issuing about 413,000 separate
(upgrouped) violations (Table 1). Less than 1 percent of the violations
were for failure to abate. About 10 percent of all citations were
contested.
There were about 9,000 follow-up inspections by OSHA and State-plan
agencies in 1991 that resulted in about 4,300 violations, of which 71
were for failure to abate (Table 2). About 18 percent of all follow-up
violations were contested.
The Agency estimates that it will take firms, on average, 15
minutes to prepare and mail documentation to certify abatement,
independent of firm size. The Agency estimates that the managers or
proprietors who prepare the certification of abatement earn a total
wage of $25 per hour, based on data in the Bureau of Labor Statistics
news, June 18, 1993.
A ceiling, or maximum estimate, of the cost to employers for
verifying abatement, including preparation of abatement certificates
and submission of documentation, can be calculated by multiplying the
number of violations with the estimated average time to verify
abatement (not the time and cost to comply with the OSHA standard
cited) and with the supervisory wage rate (annual, including benefits),
or
412,707 violations x .25 hours per citation x $25/hour=
=$2.6 million annually.
Since a large fraction of employers cited for violations now inform
OSHA that abatement was performed and sometimes offer documentation,
the new additional cost to employers from this regulation is probably
much less than the ceiling estimate of $2.6 million annually. Other
costs, such as for photocopying, photography, or other documenting
activity, are believed to be minimal. The cost of tags for cited
equipment is also minor as both the general industry and construction
standards already contain accident prevention tagging requirements (See
1910.145 and 1926.200).
Abatement Plans and Progress Reports
The proposed regulation allows the Agency's Area Director ``at his
or her discretion'' to require an abatement plan and progress reports
when multi-step abatement is ``deemed appropriate.'' At the current
time, when the Area Director issues a citation to an employer (usually
involving air contaminants, noise, or ergonomics) which will require a
long, or multi-step, abatement effort, the citation letter lists both
the steps to be taken and a schedule for completion. The Agency in its
citation letter informs the employer that it must send progress reports
to the Area Director.
Since the employer will have in hand OSHA's proposed plan for
multi-step abatement to use as a guide, the Agency estimates that it
will take an employer two hours to write the plan as required by the
proposed regulation. The Agency estimates that, on average, there are
three steps in a multi-step abatement and that it will take the
employer 30 minutes to prepare each progress report. The Agency
estimates that the total wage rate of a supervisor, manager, or
proprietor who would perform this work is $25 per hour (Bureau of Labor
Statistics News, June 18, 1993).
Currently, citations requiring multi-stage abatement efforts are a
small percentage of all citations. Virtually all of the multi-stage
abatements for Federal violations are for three causes: Ergonomics,
noise, and permissible air limits. In 1991 there were 749 Federal OSHA
inspections that resulted in citations for ergonomics, air
contaminants, noise, or single-substance OSHA standards, resulting in
1,934 violations (all of which would have required multiple step
abatement). Based on this number of multi-stage abatements required in
Fiscal year 1991, and assuming that State-plan agencies had an equal
number, the Agency estimates that the cost of proposing multi-step
abatement plans and providing progress reports is:
Cost = (1934 x 2) x $25/hr x [2 hours + (3 x \1/2\ hours)] =
$338,450.
C. Benefits (Cost Savings)
Verification Efforts
This regulatory action will reduce time-consuming efforts required
of OSHA's enforcement officers to verify and document abatement in
order to close files, thereby increasing the time available for
inspection activities. OSHA's Directorate of Compliance Programs
estimates that these efforts consume approximately 5 percent of
compliance staff time, or the equivalent of 50 full-time compliance
officers for Federal enforcement. The Agency estimates that an equal
number of full-time equivalents perform this task for State-plan
agencies, or a total of 100 full-time-equivalents. With an average
estimated salary of $50,000 including benefits, the dollar value of
this time is approximately $5 million annually. The Agency estimates
that the increased work of collecting and analyzing abatement
certificates and accompanying documentation for enforcement agencies
will be minor--OSHA is currently receiving abatement information for
approximately 70 percent of its citations. The Agency estimates that
affected employers should also save approximately the same amount of
time and money ($5 million annually) spent in responding to OSHA's
letters and calls seeking verification of abatement.
Follow-Up Inspections
In FY 1991, Federal OSHA performed about 2,000 follow-up
inspections, and State-plan agencies about 7,000 (Table 2), for a total
of about 9,000 annually. Combined, these efforts represented 100,700
staff hours,\5\ or approximately 50 full-time compliance officers. One
of the Agency's goals in promulgating this regulation is to reduce the
resources employed in follow-up inspections as well as other
unproductive efforts associated with abatement verification. The
Agency's Directorate of Compliance estimates that under this
regulation, the Agency will decrease its follow-up inspections by half,
and OSHA estimates that State-plan agencies will do the same. With an
estimated average salary and benefits of $50,000, cutting follow-up
inspections by half will save enforcement agencies $1.25 million in
resources annually.
---------------------------------------------------------------------------
\5\Estimated follow-up inspection staff hours:
1,477 (Fed) safety x 14 Avg. Hrs./follow-up = 20,678 Hrs.
562 (Fed) health x 46 Avg. Hrs./follow-up = 25,852 Hrs.
5,610 (State) safety x 6 Avg. Hrs./follow-up = 33,660 Hrs.
1,465 (State) health x 14 Avg. Hrs./follow-up = 20,510 Hrs.
Total = 100,700 Hrs.
---------------------------------------------------------------------------
Although a significant portion of a Compliance Officer's time is
spent in preparation and travel to a worksite for these inspections, at
the worksite he or she is accompanied by one or more employer
representatives as well as an employees representative. The Agency
estimates that: The total hourly wage of the employer's representative
is $25; the total wage of the employee's representative is $15 (BLS
News, June 18, 1993); and that a follow-up inspection takes, on
average, three hours. The Agency estimates that reducing the number of
follow-up inspections by half will annually save employers $540,000
[4,500 inspections x 3 hrs x ($25 + $15)].
D. Economic Impact
The Agency estimates that the economic impact on individual
employers, industry profits, and product prices to be insignificant for
every affected industry, and therefore concludes that the regulation is
economically feasible. Only 15 minutes of a manager's time, on average,
should be needed to verify abatement and provide some documentation.
Since employers will avoid time spent responding to verification
requests from the Agency as well as follow-up inspections, the Agency
estimates that overall there is a net savings for employers. There is a
savings of resources for Federal OSHA and State-plan states. As a whole
this regulation should result in a saving of resources (Table 3).
Table 1.--OSHA Inspection Data 1991
------------------------------------------------------------------------
State
Federal plan Total
OSHA States
------------------------------------------------------------------------
Inspections:
Safety............................. 33,346 70,358 103,704
Health............................. 8,963 14,053 23,016
--------------------------------
Total.......................... 42,309 84,411 126,720
Violations:
Willful............................ 2,437 950 3,387
Repeat............................. 3,525 6,948 10,473
Serious............................ 93,600 58,391 151,991
Unclassified....................... 30 0 30
Other-Than-Serious................. 50,845 167,983 218,828
Failure to Abate................... 1,333 2,278 3,611
--------------------------------
Total grouped violations....... 151,770 - -
Total ungrouped violations..... 176,157 236,550 412,707
================================
Contested Citations............ 3,339 5,088 8,427
------------------------------------------------------------------------
Source: OSHA's Office of Regulatory Analysis.
Table 2.--OSHA Follow-Up Inspection Data 1991
------------------------------------------------------------------------
State
Federal plan Total
OSHA States
------------------------------------------------------------------------
Inspections:
Safety............................. 1,477 5,610 7,087
Health............................. 562 1,465 2,027
--------------------------------
Total.......................... 2,039 7,075 9,114
Average Case hrs./Inspection
Safety............................. 14 6 .........
Health............................. 46 14 .........
Violations:
Willful............................ 35 38 73
Repeat............................. 688 423 1,111
Serious............................ 991 303 1,294
Unclassified....................... 1 0 1
Other-Than-Serious................. 773 1,005 1,778
Failure to Abate................... 43 28 71
================================
Contested citations............ 119 116 235
------------------------------------------------------------------------
Source: OSHA's Office of Regulatory Analysis.
Table 3.--Estimates of Costs and Cost Savings of Certification of Abatement
[In millions of dollars]
----------------------------------------------------------------------------------------------------------------
Firms Federal and State
---------------------- OSHA
----------------------
Costs Savings Costs Savings
----------------------------------------------------------------------------------------------------------------
Compliance Cost:
Abatement verification......................................... 2.6 ......... 0 ..........
Abatement plans & progress reports............................. 0.3 ......... 0 ..........
----------- -----------
Total costs................................................ 2.9 ......... 0 ..........
COST SAVINGS:
Verification cost savings...................................... ......... 5.0 ......... 5.0
Reduction in follow-up activities.............................. ......... .5 ......... 1.25
----------- -----------
Total Savings.............................................. ......... 5.5 ......... 6.25
=========== ===========
Net Savings................................................ ......... 2.6 ......... 6.25
----------------------------------------------------------------------------------------------------------------
Source: OSHA's Office of Regulatory Analysis.
VII. Regulatory Flexibility Certification
Pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et
seq.), the Agency preliminarily certifies that the proposed regulation
would not have a significant impact on small businesses in any
industry. As shown in the earlier section on costs of compliance, the
cost to individual small establishments is estimated to be the same as
for larger establishments. The costs to establishments in every
industry are very low. In addition, OSHA inspects proportionately more
large establishments than small establishments, and the Agency as a
matter of policy does not perform some types of inspections on
establishments having ten or fewer employees. The Agency therefore
concludes that this regulation does not place any undue burden on small
businesses.
VIII. Environmental Impact Assessment
Finding of No Significant Impact
This 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). The Agency estimates that the
regulation and employers' compliance efforts will not have any impact
on the environment or result in the release of materials that
contaminate natural resources or the environment.
IX. Federalism
This proposed regulation has been reviewed in accordance with
Executive Order 12612 (52 FR 41685, October 30, 1987), 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 which would restrict State policy options, and
take such actions only when there is clear constitutional authority and
the presence of a problem of national scope. The Order provides for
preemption of State law only if there is a clear congressional intent
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 State plans, the proposed
regulation conforms to the preemption provisions of section 18 of the
OSH Act (29 U.S.C. 667) which 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 State plan. See Gade v. National Solid Wastes Management
Association, 112 S.Ct. 2374 (1992). Since States without State plans
are already prohibited from issuing citations for violations of
requirements covered by Federal OSHA standards, the proposed regulation
does not expand this limitation.
The Agency certifies that this proposed regulation has been
assessed in accordance with the principles, criteria, and requirements
set forth in 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 which 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 provide a program for the
enforcement of the State standards which is, or will be, at least as
effective as that 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 as
those 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. 29 CFR 1902.4(c)(2)(iv). It must also
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.
29 CFR 1902.4(c)(2)(x). Since the proposed regulation will improve
Federal OSHA's effectiveness in enforcing 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 proposed regulation complies
with the Executive Order 12612 with respect to State plan states
because (1) it deals with a problem of national scope, and (2) the OSH
Act requires that State-plan states adopt OSHA regulations or equally
effective regulations.
State comments are invited on this proposal and will be fully
considered before a final regulation is promulgated.
X. State Plans
There are currently 25 states and other jurisdictions with 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; and Connecticut and
New York (for State and Local government employees only).
The 25 jurisdictions with their own OSHA-approved occupational
safety and health plans will be required to adopt a regulation on
abatement verification that is at least as effective as this Federal
regulation within six months of the publication date of this Federal
regulation (i.e. six months after the final rule is published).
Current State abatement verification-procedures are described in
State field operation manuals and/or directives. Although these State
procedures may differ from the Federal procedures, the State-plan
states, like OSHA, generally lack regulations or statutory provisions
specifically addressing this issue, with the exception of Wyoming which
does have a regulation requiring abatement verification. Current State
abatement verification procedures are identical to the Federal except
as described below:
(1) Nine States have abatement verification forms: Alaska,
California, Kentucky, Michigan, North Carolina, Oregon, South Carolina,
Washington, and Wyoming. On these forms, the employers describe the
specific measures taken to correct each alleged violation. Alaska,
Oregon, Washington, Michigan, and Kentucky also ask for documentary
evidence. Alaska requests employers to certify under penalty of perjury
that the violations were abated by the dates specified.
(2) California and Minnesota ask employers to submit progress
reports. California requests monthly progress reports for all long-term
abatements, while Minnesota requests a progress report for all serious
and most other violations of the State's general industry and
construction standards.
(3) For long-term abatements, California requests employers to
submit an abatement plan which outlines their procedures for abatement,
such as plans for controls to be installed, and schedules for
engineering, purchasing, and installation. Washington schedules follow-
up inspections every six months to check progress made on long-term or
multi-step abatement plans.
(4) Some States (e.g., South Carolina and California) send a
reminder letter to the employer just before the abatement verification
form is due. Washington reminds employers by letter or telephone.
Kentucky and California also send follow-up letters if the form is
overdue.
(5) Maryland tracks informal conference settlements to determine if
abatement documentation is adequate.
(6) Wyoming has an enforcement regulation requiring the submission
of written documents saying when abatement has been accomplished.
Failure to do so can result in a civil penalty. Wyoming can also take
legal action to enforce submission of a letter of abatement.
(7) New York, which covers only state and local government
employees, conducts follow-up inspections to verify abatement for every
violation; employers are not asked to send in any abatement
verification information.
XI. Public Participation
Interested persons are invited to submit written comments, data,
views, and arguments on any issue raised by this proposed regulation.
These comments must be postmarked by July 18, 1994, and submitted in
quadruplicate to the OSHA Docket Officer, Docket No. C-03, U.S.
Department of Labor, Occupational Safety and Health Administration,
room N2625, 200 Constitution Avenue NW., Washington, DC 20210. Written
submissions must clearly identify the issues or specific provisions of
the proposal which are being addressed, and the position taken with
respect to these issues or provisions. Comments will be available for
public inspection and copying at the above address between the hours of
8:15 a.m. and 4:45 p.m., Monday through Friday (except Federal
holidays). All timely submissions will additionally, be made part of
the public record for this regulation, and will be available for
inspection. The preliminary regulatory impact assessment and the
exhibits cited in this document will be available for public inspection
and copying at the above address. All comments will be carefully
evaluated and considered by OSHA in developing the final regulation.
XII. OMB Approval Under the Paperwork Reduction Act
5 CFR part 1320 sets forth procedures for agencies to follow in
obtaining OMB clearance for information collection requirements under
the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. This
proposed abatement verification regulation requires employers to submit
to OSHA (1) an abatement certificate and accompanying documentary
evidence, (2) abatement plans and progress reports when specifically
required on the citation, and (3) verification that the hazardous
conditions cited have been corrected. In accordance with the provisions
of the Paperwork Reduction Act and regulations issued pursuant thereto,
OSHA certifies that it has submitted the information collection
requirements for this proposal to OMB for review under section 3504(h)
of the Act.
The public reporting burden for this collection of information is
estimated to average fifteen minutes per citation item. Send any
comments regarding this burden estimate, or any other aspect of these
information-collection procedures, including suggestions for reducing
this burden, to the Office of Information Management, Department of
Labor, room N-1301, 200 Constitution Avenue, NW., Washington, DC 20210,
and to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503.
XIII. Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and health, U.S.
Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210.
It 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).
List of Subjects in 29 CFR Part 1903
Abatement, Law enforcement, Occupational safety and health,
Reporting and recordkeeping requirements.
Signed in Washington, DC, this 11 day of April 1994.
Joseph A. Dear,
Assistant Secretary of Labor.
Part 1903 of title 29 of the Code of Federal Regulations is
proposed to be amended as follows:
PART 1903--INSPECTIONS, CITATION, AND PROPOSED PENALTIES
1. The authority citation for Part 1903 would be revised to read as
follows:
Authority: Secs. 8, 9, Occupational Safety and Health Act of
1970 (29 U.S.C. 657, 658); Secretary of Labor's Order No. 12-71 (36
FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR
9033), as applicable.
Sections 1903.7 and 1903.19 also issued under 5 U.S.C. 553.
Secs. 1903.19, 1903.20, 1903.21 [Redesignated as Secs. 1903.20,
1903.21, 1903.22]
2. Part 1903 would be amended by redesignating Secs. 1903.19,
1903.20, and 1903.21 as Secs. 1903.20, 1903.21, and 1903.22, and by
adding new Sec. 1903.19, to read as follows:
Sec. 1903.19 Abatement verification.
(a) Scope and application. This regulation requires all employers
to verify the abatement of violative conditions set forth in citations,
as detailed below.
(b) Definitions.
Abatement date means (1) the date set forth in a citation for the
abatement of a violation when the citation item has not been contested;
(2) when a citation item has been contested and the Commission has
issued a final order, the date computed by adding to the final order
date either the amount of time allowed for abatement in the original
citation or, if the order modifies the abatement period, the newly
specified period; (3) the date for abatement expressly set forth in a
final order; (4) the date for abatement set forth in a PMA final order;
or (5) the date for abatement expressly set forth in a settlement
agreement.
Abatement plan is a written, detailed plan outlining a schedule for
the implementation of measures to achieve abatement.
Abatement verification includes a final abatement certificate, an
abatement plan and progress reports.
Area Director means the employee or officer regularly or
temporarily in charge of an Area Office of the Occupational Safety and
Health Administration, U.S. Department of Labor, or any other person or
persons who are authorized to act for such employee or officer.
Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health, or designated representative.
Citation item is a separately designated portion of a citation
containing one or more instances of violation.
Commission is the Occupational Safety and Health Review Commission.
Equipment is a machine or device, powered or unpowered, used to do
work.
Final order date is (1) where the citation item has not been
contested, the fifteenth working day after the employer's receipt of
the notification of proposed penalty with respect to a citation item;
(2) the thirtieth day after the date on which a decision of a
Commission administrative law judge, including an order approving a
settlement or a withdrawal of a notice of contest, has been docketed
with the Commission, unless a member of the Commission has directed
review; (3) where review has been directed, the thirtieth day after the
date on which the Commission issues its decision, including but not
limited to, an order approving a settlement or a withdrawal of a notice
of contest, or an order severing citation items from a case; or (4) the
date on which a court of appeals issues a decision where the Commission
order has been previously stayed.
PMA is a petition for modification of the abatement date.
PMA final order is (1) OSHA's approval of an uncontested PMA; (2)
an order of a Commission administrative law judge granting a PMA, in
whole or in part, unless the judge's decision is directed for review
within thirty days of its docketing with the Commission; (3) an order
of Members of the Commission granting a PMA, in whole or in part, where
review has been directed; or (4) an order of a court of appeals
granting a PMA, in whole or in part.
Progress report is a written report explaining what measures have
been taken, if any, in the process of achieving abatement of a
violative condition in a citation item, other than measures ultimately
achieving abatement; and the dates on which those measures have been
taken.
(c) Abatement certificate. Each employer shall submit to the Area
Director issuing the citation an abatement certificate with respect to
each citation item, and do so within thirty calendar days after the
abatement date for the citation item.
(1) The abatement certificate shall contain the following
information:
(i) Each citation item;
(ii) A statement noting whether or not abatement has been
accomplished with respect to each citation item and instance listed in
the citation;
(iii) A description of the measures taken to accomplish abatement;
(iv) The date abatement was accomplished;
(v) If abatement has not been accomplished, the reason(s) for not
abating;
(vi) The signature of the employer or the employer's duly
authorized representative;
(vii) The date of the signature.
(2) If the employer has initially stated in an abatement
certificate that a particular citation item has not been abated, and
later the employer abates the condition, the employer shall submit to
the Area Director issuing the citation a new abatement certificate
within five calendar days after abatement.
(3) Abatement certificates for more than one citation item may be
combined in a single document.
(4) Each abatement certificate with respect to a citation item
shall be accompanied by documentary evidence that is sufficient to
demonstrate clearly that the hazard has been corrected.
(d) Abatement plan. (1) An Area Director may require in a citation
that the employer submit a formal plan for the abatement of safety and
health violations in instances where multiple steps or long-term
abatement actions are necessary.
(2) When called for in a citation, the employer shall prepare a
written, signed, and dated abatement plan with respect to each citation
item for which the plan is required.
(3) Abatement plans for more than one citation item may be combined
within a single document.
(4) The abatement plan shall be submitted to the Area Director
issuing the citation within twenty-five calendar days after the date of
the final order or the date of the PMA final order.
(e) Progress reports. An Area Director, at his or her discretion,
may require progress reports in a citation where multi-step abatement
is deemed appropriate.
(1) The Area Director shall specify the citation item with respect
to which the progress reports are required, the measures which the Area
Director expects to be taken on or before the submission of each
progress report, and the date for the submission of each progress
report, expressed as the number of calendar days from the date of the
final order or the date of the PMA final order.
(2) The employer shall submit to the Area Director the requested
progress reports with respect to each citation item for which they are
required under the abatement plan.
(3) Progress reports for more than one citation item may be
combined within a single document.
(4) Progress reports shall be submitted at intervals specified by
the Area Director in the citation, but the first progress report shall
not be submitted earlier than thirty calendar days after the date of
the final order or the date of the PMA final order.
(f) Tagging cited equipment. (1) The employer shall affix a
``Warning'' tag on all cited equipment upon receipt of the citation.
(2) The design, application, and use of the tag required by this
section shall be in accordance with 29 CFR 1910.145(f)(4).
(3) In addition to the information set forth in 1910.145(f), the
tag shall identify the equipment, state that a citation has been
issued, and identify where the citation is posted.
(4) The employer shall ensure that the tag remains affixed to the
cited equipment in a conspicuous location at or near the controls of
such equipment and/or the hazardous portion of the equipment, until the
cited equipment is brought into compliance with OSHA requirements or
the equipment is permanently removed from service. The temporary
removal from service of cited equipment is not compliance with OSHA
requirements for the purpose of this section. The protection and
posting requirements of paragraph (i)(4) of this section are also
applicable to this paragraph.
(g) Document Transmittal. When this section requires submission of
a document to the Area Director, it may be submitted by first-class
mail, postage prepaid, facsimile transmission, or hand delivery. When
the document is mailed, the date of submission is the date of the
postmark. When the document is submitted by facsimile transmission or
hand delivery, the date of submission is the date when the document is
received by the Area Director.
Note: Receipt of an employer's documents by the Agency under this
regulation does not constitute an agreement that the employer is in
compliance.
(h) Accuracy of documentation. The employer shall assure that each
statement in a document or accompanying documentation required by this
section is accurate.
(i) Posting requirements. A copy of each document required to be
submitted to the Area Director shall be posted, at the time of
submission, at or near each place the violation(s) described in the
citation occurred.
(1) Where, because of an employer's operations, it is not
practicable to post a document at or near the location of the
violation(s), such document shall be posted, unedited, in a prominent
place where it will be readily observable by all affected employees.
(2) Where it is physically impracticable, because of a document's
size or magnitude, to post abatement plans and progress reports, a
notice to affected employees shall be posted indicating the location
where the document(s) can be reviewed.
(3) The abatement certificates, abatement plan(s) and progress
reports shall be provided, upon request for examination and copying, to
employees, to employee representatives, and to the Assistant Secretary.
Note: If employers are engaged in activities which are
geographically dispersed (see Sec. 1903.2(b)), the document may be
posted at the location where employees report each day. If employees
do not primarily work at, or report to, a single location (see
Sec. 1903.2(b)), the document may be posted at the location where
employees work.
(4) The employer shall assure that any document required to be
posted by this section is not altered, defaced, or covered by other
material.
(5) Any document required to be posted by this section shall remain
posted until the violation has been abated, or for six calendar days,
whichever is later.
(j) Penalties. Any employer failing to comply with the provisions
of this section shall be subject to citation and penalty in accordance
with the provisions of Section 9 and 17 of the Act.
(k) False statements. False statements knowingly made in any
document required by this section are subject to criminal penalties set
forth in section 17(g) of the Act. False statements knowingly and
willfully made in any document required by this section are subject to
the criminal penalties set forth in 18 U.S.C. 1001.
[FR Doc. 94-9109 Filed 4-18-94; 8:45 am]
BILLING CODE 4510-26-P
