15324 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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.

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-thanserious 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.
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 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
15326 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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 nonhand-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 nonmandatory 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
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 15327

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 onesentence 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. Highgravity 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
15328 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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-toabate 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 highgravity.

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
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 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 ‘‘longterm,’’ 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
15330 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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 longterm 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 ‘‘multistep’’ 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 singlesentence 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
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 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 abatementrelated 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
15332 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 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-handheld) 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-toabate 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 nonmandatory 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 § 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
15334 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 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 Stateplan 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
15336 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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 abatementverification 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 falseinformation 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
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 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 abatementcertification letters or other documents

to them; the exceptions are Wyoming

and California, which have a regulation

and legislation, respectively, that

require employers to submit abatementcertification 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 abatementcertification 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 immediatedanger 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 §§ 1903.19, 1903.20, and

1903.21 as §§ 1903.20, 1903.21, and

1903.22, respectively, and by adding a

new § 1903.19, to read as follows:

§ 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 handheld or non-hand-held machine or

device, powered or unpowered, that is
15338 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations 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 § 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:

lllllllllllllllllllll

llllllllll.

Citation [insert #] and item [insert #] was

corrected on [insert date] by:

lllllllllllllllllllll

llllllllll.

Citation [insert #] and item [insert #] was

corrected on [insert date] by:

lllllllllllllllllllll

llllllllll.

Citation [insert #] and item [insert #] was

corrected on [insert date] by:

lllllllllllllllllllll

llllllllll.

Citation [insert #] and item [insert #] was

corrected on [insert date] by:

lllllllllllllllllllll

llllllllll.

Citation [insert #] and item [insert #] was

corrected on [insert date] by:

lllllllllllllllllllll

llllllllll.

Citation [insert #] and item [insert #] was

corrected on insert date by:

lllllllllllllllllllll

llllllllll.

Citation [insert #] and item [insert #] was

corrected on [insert date] by:

lllllllllllllllllllll

llllllllll.

I attest that the information contained in this

document is accurate.

lllllllllllllllllllll

Signature

lllllllllllllllllllll

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 lllllllllll

Page llll of llll

Citation Number(s)* lllllllllll

Item Number(s)* lllllllllllll

Action

Proposed

Completion

Date (for

abatement

plans only)

Completion

Date (for

progress reports only)

1. ....................... .................... ....................

............................

............................

2. ....................... .................... ....................

............................

............................

3. ....................... .................... ....................

............................

............................

4. ....................... .................... ....................

............................

............................ .................... ....................

5. ....................... .................... ....................

............................

............................ .................... ....................

6. ....................... .................... ....................

............................

............................ .................... ....................

7. ....................... .................... ....................

............................

Date required for final abatement: lllll

I attest that the information contained in this

document is accurate.

lllllllllllllllllllll

Signature

lllllllllllllllllllll

Typed or Printed Name

Name of primary point of contact for

questions: [optional]

Telephone number: lllllllllll

*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.

BILLING CODE 4510–26–P
15340 Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules and Regulations

[FR Doc. 97–7959 Filed 3–28–97; 8:45 am]

BILLING CODE 4510–26–C