DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1903

Policy on Employee Rescue Efforts

ACTION: Issuance of interpretive rule.

SUMMARY: The Occupational Safety and Health Administration (OSHA) is issuing an interpretive regulation addressing the agency's citation policy regarding voluntary employee rescue activities.

EFFECTIVE DATE: December 27, 1994.

FOR FURTHER INFORMATION CONTACT: Anne Cyr, Acting Director, Office of Information and Consumer Affairs, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-3647, 200 Constitution Ave., NW., Washington, DC 20210. Telephone: (202) 219-8615.

SUPPLEMENTARY INFORMATION: In carrying out its enforcement responsibilities under the Occupational Safety and Health Act, OSHA from time to time investigates workplace incidents which involve not only injuries to workers directly exposed to hazards, but injuries and potential injuries to employees who voluntarily attempt to rescue or assist their fellow workers. OSHA is aware of many instances in which employees have voluntarily rescued coworkers or rendered emergency assistance in the aftermath of workplace accidents, sometimes at considerable risk to themselves. Until recently, there has been no written instruction by OSHA to its field offices providing guidance in such situations. Accordingly, the agency has decided to issue an interpretive rule clarifying its citation policy regarding employers whose employees perform or attempt to perform rescues of individuals in life-threatening danger.

It is not OSHA's policy to interfere with or to regulate every decision by a worker to place himself at risk to save another individual. Nor is it OSHA's policy to issue citations to employers whose employees voluntarily undertake acts of heroism to save another individual from imminent harm, where rescue operations are not part of the employee's job responsibilities and the likelihood that a rescue may become necessary is not reasonably foreseeable.

At the same time, employers who have employees working in environments where the possibility of life-threatening accidents is reasonably foreseeable are required by various OSHA standards and the general duty clause to take appropriate precautions to assure that the rescuers themselves do not become victims. See, e.g., Pride Oil Well Service, 15 BNA-OSHC 1808 (Rev. Comm.1992); ARO. Inc., 1 BNA-OSHC 1453 (Rev. Com. 1973). Accidents requiring rescue efforts are reasonably foreseeable in certain working environments such as, for example, trenches and excavations, hazardous waste operations and emergency response work, or construction work over water. Confined spaces are another occupational setting where rescuers, without proper equipment and precautions, often are killed or injured. "Worker Deaths in Confined Spaces: A Summary of Surveillance Findings and Investigative Case Reports", National Institute for Occupational Safety and Health, No. 94-103 (1994).

Because the occurrence of accidents which invite rescue attempts is foreseeable in various industrial processes and environments, a variety of OSHA standards include precautions and safeguards for rescue-related operations, including, e.g., the emergency planning and response provisions of the process safety management standard, 29 CFR 1910.119(n), and hazardous waste operations standard, 29 CFR 1910.120(1), (p) and (q); and the standards on confined spaces in general industry, 29 CFR 1910.146, and in grain handling, 1910.272(d), (e), and (g). In construction, specific rescue precautions are prescribed, e.g., for work performed near or over water, and for excavation work, 29 CFR 1926.106, 1926.651(g). See also 29 CFR 1910.38 (employee emergency plans in general industry) and 1926.20, .21, and .35 (training and emergency action plans in construction).

Under the interpretive rule set forth below, these and other requirements under the Occupational Safety and Health Act will be applied in situations involving employee rescue efforts only when the employer has specifically designated an employee with responsibility to perform or assist in a rescue operation, or when employees have duties directly related to workplace processes or operations where the possibility of life-threatening accidents is foreseeable.

Effect of the Interpretive Rule

The present interpretive rule is intended to make clear that no citation will be issued by OSHA to any employer, under any OSHA standard or under the general duty clause, for any rescue activity by its employees except in the limited circumstances discussed in the written policy statement to be codified in 29 CFR Part 1903. The rule is adopted as a general statement of agency policy under the Administrative Procedure Act, 5 U.S.C. Sec. 553, and is an exercise of agency prosecutorial discretion in carrying out its enforcement responsibilities under the OSH Act. The interpretive rule issued today is not an exercise of standard-setting authority by OSHA; it does not require any additional compliance action by employers beyond what is already required under existing OSHA standards and the general duty clause, nor does it relieve employers of any obligations currently imposed by those requirements, including the responsibility to designate and appropriately train and equip emergency personnel when required under specific safety and health standards.

Regulatory Impact Analysis

In accordance with Executive Order 12866 (58 FR 51735, October 4, 1993) OSHA has assessed the potential impact of this interpretive rule. Based on the guidelines set forth in the Executive Order, OSHA has concluded that the interpretation is not a "significant regulatory action" which would necessitate further economic impact evaluation and the preparation of a regulatory impact analysis. As noted above, the interpretation does not add to the compliance responsibilities of any employer subject to the Act; nor would the rule interfere with action by any other agency. Finally, OSHA finds that today's interpretive rule would not have an adverse impact on small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

Administrative Procedure

The policy set forth in this Federal Register notice is both an interpretive rule and a general statement of agency policy within the meaning of 5 U.S.C. 553(b) and, accordingly, is being issued as a final rule without opportunity for public comment. OSHA finds, pursuant to 29 USC Sec. 553(d), that good cause exists for making the interpretive rule effective immediately upon publication; as discussed above, the rescue policy rule simply states OSHA's enforcement policy that citations involving employee rescue activity will be issued only with certain criteria are met, and adds no new compliance responsibilities beyond those already contained in existing OSHA standards.

List of Subjects in 29 CFR Part 1903

Occupational Safety and Health; Occupational Safety and Health Administration; Law Enforcement; Penalties.

Authority

This document was prepared under the direction of Joseph A. Dear, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 20210.

Accordingly, pursuant to section 8 of the Occupational Safety and Heath Act, 29 U.S.C. 657; Section 553 of the Administrative Procedure Act, 5 U.S.C. 553; and Secretary of Labor's Order 1-90 (55 FR 9033), 29 CFR Part 1903 is amended as set forth below.

Signed in Washington, D.C. this 20th day of December, 1994.

Joseph A. Dear,

Assistant Secretary of Labor.

PART 1903--INSPECTIONS, CITATIONS AND PROPOSED PENALTIES

1. The authority citation for Part 1903 is revised to read as follows:

Authority: Secs. 8, 9, Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 658); Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as applicable.

Sections 1903.7 and 1903.14 also issued under 5 U.S.C. 553.

2. Section 1903.14 is amended by revising the section heading and adding a new paragraph (f) to read as follows:

Sec. 1903.14 Citations; notices of de minimis violations; policy regarding employee rescue activities.

* * * * *

(f) No citation may be issued to an employer because of a rescue activity undertaken by an employee of that employer with respect to an individual in imminent danger unless:

(1)(i) Such employee is designated or assigned by the employer to have responsibility to perform or assist in rescue operations, and (ii) the employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment; or (2)(i) such employee is directed by the employer to perform rescue activities in the course of carrying out the employee's job duties, and (ii) the employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment; or (3)(i) such employee is employed in a workplace that requires the employee to carry out duties that are directly related to a workplace operation where the likelihood of life-threatening accidents is foreseeable, such as a workplace operation where employees are located in confined spaces or trenches, handle hazardous waste, respond to emergency situations, perform excavations, or perform construction over water; and

(ii) such employee has not been designated or assigned to perform or assist in rescue operations and voluntarily elects to rescue such an individual; and

(iii) the employer has failed to instruct employees not designated or assigned to perform or assist in rescue operations of the arrangements for rescue, not to attempt rescue, and of the hazards of attempting rescue without adequate training or equipment.

(4) For purposes of this policy, the term "imminent danger" means the existence of any condition or practice that could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.

[FR Doc. 94-31625 Filed 12-23-94; 8:45 am]