Grounds for modifying abatement date. An employer may file a petition for modification of abatement date when such employer has made a good faith effort to comply with the abatement requirements of a citation, but such abatement has not been completed because of factors beyond the employer's reasonable control.
Contents of petitions. A petition for modification of abatement date shall be in writing and shall include the following information:
All steps taken by the employer, and the dates of such action, in an effort to achieve compliance during the prescribed abatement period.
The specific additional abatement time necessary in order to achieve compliance.
The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date.
All available interim steps being taken to safeguard the employees against the cited hazard during the abatement period.
When and where filed; Posting requirement; Responses to petition. A petition for modification of abatement date shall be filed with the Area Director of the United States Department of Labor who issued the citation no later than the close of the next working day following the date on which abatement was originally required. A later-filed petition shall be accompanied by the employer's statement of exceptional circumstances explaining the delay.
A copy of such petition shall be posted in a conspicuous place where all affected employees will have notice thereof or near each location where the violation occurred. The petition shall remain posted for a period of 10 days.
Affected employees or their representatives may file an objection in writing to such petition with the aforesaid Area Director. Failure to file such objection within 10 working days of the date of posting of such petition shall constitute a waiver of any further right to object to said petition.
The Secretary or his duly authorized agent shall have the authority to approve any uncontested petition for modification of abatement date filed pursuant to paragraphs (b) and (c) of this section. Such uncontested petitions shall become final orders pursuant to sections 10 (a) and (c) of the Act, 29 U.S.C. 659(a) and (c).
The Secretary or his authorized representative shall not exercise his approval power until the expiration of 15 working days from the date the petition was posted pursuant to paragraphs (c)(1) and (2) of this section by the employer.
Contested petitions. Where any petition is objected to by the Secretary or affected employees, such petition shall be processed as follows:
The Secretary shall forward the petition, citation and any objections to the Commission within 10 working days after the expiration of the 15 working day period set out in paragraph (c)(4) of this section.
The Commission shall docket and process such petitions as expedited proceedings as provided for in §2200.103 of this part.
An employer petitioning for a modification of the abatement period shall have the burden of proving in accordance with the requirements of section 10(c) of the Act, 29 U.S.C. 659(c), that such employer has made a good faith effort to comply with the abatement requirements of the citation and that abatement has not been completed because of factors beyond the employer's control.
Where the petitioner is a corporation, it shall file a separate declaration listing all parents, subsidiaries, and affiliates of that corporation or stating that the corporation has no parents, subsidiaries, or affiliates, whichever is applicable, within 10 working days after the receipt of notice of the docketing by the Commission of the petition for modification of the abatement date. The requirements set forth in §2200.35(b) through (d) shall apply.
Each objecting party shall file a response setting forth the reasons for opposing the abatement date requested in the petition, within 10 working days after the receipt of notice of the docketing by the Commission of the petition for modification of the abatement date.
[51 FR 32015, Sept. 8, 1986; 52 FR 12832, Apr. 27, 1987, as amended at 55 FR 22782, June 4, 1990; 74 FR 63986, Dec. 7, 2009]