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OSHA Instruction TED 3.1 October 30, 1978

OSHA PROGRAM DIRECTIVE #76-3

TO: REGIONAL ADMINISTRATORS ASSISTANT REGIONAL ADMINISTRATORS

Subject: Modification of the Requirements for Consultation Programs in State 18(b) Plans

References: Program Directive #72-27, Providing for Consultation in a State 18(b) Plan

Program Directive #74-13, Modification of the Requirements for Consultation Programs in a State 18(b) Plan

1. Purpose. This Program Directive rescinds Program Directive #74-13 and revises the requirements for insuring abatement of hazards disclosed during State consultative visits.

2. Background. Program Directive #72-17 set out the requirements for approval of State consultation programs under approved 18(b) plans. Among those requirements was a procedure to assure timely abatement of serious violations. That requirement was deleted by Program Directive #74-13. Upon reconsideration, it appears that in order to assure adequate worker protection, it is necessary to include a provision for timely abatement of observed conditions which create a substantial probability of death or serious physical harm.

3. Action.

a. Program Directive #74-13 is hereby rescinded.

b. Section 2.A. of Program Directive #72-27 is amended by deleting the last sentence in that paragraph.

c. Section 3.E. of Program Directive #72-27 shall now read:

"E. There must be a procedure to assure the timely abatement of situations involving imminent danger or a substantial probability of death or serious physical harm.

OSHA Instruction TED 3.1 October 30, 1978

1) When an employer fails to immediately eliminate or otherwise control an imminent danger situation disclosed during the consultative visit, the consultant shall, first, immediately notify the affected employees and second, immediately notify enforcement personnel unless the consultant has authority to take appropriate and effective action in such situations and does take such action.

2) Where there is substantial probability that death or serious physical harm could result from condition(s) disclosed during the consultative visit--the consultant shall notify the employer of such condition(s) and afford the employer a reasonable time in which to abate these conditions. Where the consultant is not satisfied through a further consultative visit, documentary evidence, or otherwise that such abatement has taken place, the consultant shall immediately notify enforcement personnel who will take appropriate action."

d. Program Directive #72-27 is amended by adding a new section 4 which reads:

"4. Priority-Setting Within the Consultation Activity

A priority of set of priorities for structuring this consultation activity must be established by the State and should reflect local needs and concerns to the greatest possible degree. In developing its priorities, the State should follow the Federal priority of smaller-sized businesses in higher risk industries.

e. Regional Administrators shall immediately provide a copy of this directive to the designated State agencies in their regions.

f. States how administering consultation programs which do not include procedures for timely abatement of conditions creating a substantial probability of death or serious physical harm shall submit plan amendments conforming to the requirements in this directive within 90 days.

States now in the process of developing consultation programs should include in their programs procedures for timely abatement of conditions creating a substantial probability of death or serious physical harm.

OSHA Instruction TED 3.1 October 30, 1978

States administering approved consultation programs which include procedures for timely abatement of conditions creating a substantial probability of death or serious physical harm need take no further action.

4. Filing. This directive is effective immediately and shall remain in effect until further notice.

Barry J. White Associate Assistant Secretary for Regional Programs

(Originator: ORSE)

Distribution: A-1, B-2, C-2, D-4, E-2