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• Publication Date: 04/19/1994
• Publication Type: Proposed Rules
• Fed Register #: 59:18508-18518
• Title: Abatement Verification

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1903

[Docket No. C-03]

Abatement Verification

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice of proposed rulemaking.

SUMMARY: OSHA is developing a regulation requiring employers to certify abatement and submit abatement plans and progress reports as a result of OSHA citations. In addition, OSHA is proposing the placement of a tag on cited equipment to alert affected employees that a hazardous condition exists while abatement is being accomplished. Violation of the regulation would result in civil penalties as prescribed by section 17 of the Occupational Safety and Health Act of 1970. This notice invites interested parties to submit comments and recommendations on the issues detailed in this document, as well as other pertinent issues. All the information received in response to this notice will be carefully reviewed. The comments received will assist OSHA in developing the final regulation.

DATES: Written comments on the notice of proposed rulemaking must be postmarked no later than July 18, 1994.

ADDRESSES: Comments and information should be submitted in quadruplicate to the Docket Officer, Docket No. C-03, Occupational Safety and Health Administration, room N-2625, U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210; telephone: (202) 219-7894.

FOR FURTHER INFORMATION CONTACT: Mr. James Foster, Occupational Safety and Health Administration, Office of Public Affairs, room N-3647, U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210; telephone: (202) 219-8151.

SUPPLEMENTARY INFORMATION: The purpose of this proposed rule is to require employers to inform OSHA and their employees about measures they will take or have taken in response to OSHA citations, as well as to inform employees about OSHA citations and the alleged safety or health hazards described therein.

I. Background

Under the Occupational Safety and Health Act of 1970 (i.e., "the Act" or "the OSH Act"), 29 U.S.C. Section 651 et. seq., OSHA inspects workplaces to determine whether employers are complying with OSHA standards and other statutory or regulatory requirements. If OSHA believes that an employer has committed a violation, a citation is issued. The citation will reference the requirement allegedly violated, the alleged violation, and note the proposed penalty and a date by which the violation is to be corrected, i.e., the abatement date. Section 9(a), 29 U.S.C. Section 658(a).

Currently, the cover letter to the employer which accompanies an OSHA citation states that the employer must notify the Area Director promptly by letter of abatement of violations. (OSHA Instruction ADM 1-1.12A CH-7, August 3, 1987. "IMIS FORMS Manual", Appendix C, page C-22). No specific regulation, however, authorizes this notification action. When, therefore, an employer does not provide written verification of abatement, OSHA may, depending on the circumstances, seek to verify abatement by making further efforts to communicate with the employer (e.g., by telephone), or by conducting an on-site follow-up inspection.

On May 1991, the General Accounting Office (GAO) issued a report to Congress in which it assessed the adequacy of OSHA's policies and procedures for determining whether hazards have been abated. The report (GAO/HRD-91-35) (Ex. 1)(1) found that these policies and procedures have limitations that impede the Agency's ability to detect employers who have failed to abate the safety and health hazards for which they have been cited. GAO found that OSHA's policies: (1) Do not require, but merely request, employers to provide evidence of abatement, and (2) inadequately address confirmation of hazard abatements found at construction worksites.

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Footnote(1) "Ex.," followed by a number, designate the exhibit in the docket containing the referenced document.

The GAO report concluded that OSHA would obtain improved evidence of abatement if its regulations required employers to provide specific documentation that they have abated hazards. The report further concluded that such a requirement would enhance OSHA's ability to detect noncomplying employers and determine where to conduct follow-up inspections. Employers also would be more likely to abate hazards because they would have to provide specific evidence of abatement. Accordingly, GAO recommended that OSHA promulgate a regulation requiring employers to submit detailed evidence of what corrective actions have been taken to abate hazards.

GAO was also concerned about hazard abatement problems in the construction industry due to the mobility of hazardous equipment. The report's conclusion stated:

OSHA needs to confirm abatement of construction hazards in such a way that they will not be repeated at subsequent worksites. OSHA's practice of accepting worksite closing as a form of abatement allows the continuation of procedures and practices that perpetuate hazardous conditions. Consequently, contractors can continue to use a defective piece of equipment, untrained employees, or inadequate procedures and processes at subsequent worksites. OSHA should require contractors to take abatement actions that will correct what caused the hazard rather than just eliminate the hazard at the inspection site. (emphasis added) (GAO/HRD-91-35)

The second GAO recommendation was for OSHA to revise its polices so that (1) citations to employers at construction worksites require correcting the condition, equipment, or procedure that create the hazard, and (2) employers will not be able to "abate" hazards solely by moving to another location.

Although not referenced in the GAO report, unsuspecting employees may be exposed to similar hazards under conditions in which the place of employment and equipment are permanent, but there is a frequent turnover of employees in temporary jobs or employees are rotated frequently through different job assignments. Also, workers in mobile crews who visit different job sites should have available hazard warning information regarding defective equipment which they must operate.

Current OSHA policy is that written, detailed plans of abatement shall be submitted to the Area Director when citations are issued alleging (i.e. noise or air contaminant) violations and OSHA orders that engineering or administrative controls be implemented. In these cases, employers are also asked to submit progress reports, generally every ninety days, detailing steps taken to achieve complete abatement (e.g., procurement of engineering controls). Field Operations Manual, chapter V (appendix), E.4.a. and c., E.5.a. and c. (Ex. 2) OSHA's policy, therefore is to have employers verify that the violation cited has been corrected. Despite this policy, there is no existing regulation, enforceable by citations and civil penalties, which mandates employers to submit abatement plans, progress reports, or abatement verification letters. Thus, OSHA proposes that employers should be required by regulation to submit such documents.

Currently, 29 CFR 1903.16 requires the posting of a citation at or near the place of the alleged violation. This regulation is inadequate in many instances to notify employees that OSHA has required the abatement of hazardous conditions because citations are often posted on company bulletin boards that employees may not see or read. Employees are more likely, therefore, to be informed about hazardous equipment they are operating via a required tag affixed to that equipment than by a posted citation. OSHA already requires that employers in general industry and construction affix accident-prevention tags informing employees about hazardous conditions. 29 CFR 1910.145(f) and 1926.200(h). However, these standards do not require employers to state that a condition has been cited. Further, the General Industry standard does not apply to construction, maritime, or agricultural employers. 29 CFR 1910.145(f)(1)(ii). Therefore, OSHA also proposes that all employers covered by the OSH Act be required to affix tags to cited equipment informing employees about an OSHA citation regarding that equipment.

Legal Considerations

Introduction

For purposes of the proposed rule, there are two key terms, i.e., "abatement date" and "final order." The following discussion is provided in order to relate these terms to the statutory framework created by the OSH Act. The discussion, however, is general in nature and is not intended to address every situation that may arise in the course of litigation.

Contesting a Citation

As noted above, an employer has the right, under the OSH Act, to contest a citation or a prescribed abatement date. (employers may also contest only the amount of the penalty proposed for a violation, but this action does not delay the abatement period prescribed for that violation). An abatement date can also be contested by an affected employee or a representative of affected employees. If neither the employer nor employees contest the citation, the date set forth in the citation for the correction of the violation is the abatement date.(2)

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Footnote(2) The Act provides that an employer may file a notice of contest within fifteen working days of receiving the notification of proposed penalty. Section 10, 29 U.S.C. Section 659. (Under current OSHA practice, the notification of proposed penalty is attached to the citation.) Appellate courts have held that OSHA may set an abatement date which falls within the fifteen-day period, in which case the period allowed for contest is shortened accordingly. See Dunlop v. Haybuster Mfg. Co., 524 F.2d 222 (8th Cir. 1975); Brennan v. OSHRC and Kesler & Sons Construction Company, 513 F.2d 553, 557-58 (10th Cir. 1975).

The Act also provides that, in the event of a contest, the employer's obligation to abate a cited violation is suspended, provided that the employer's contest has been made "* * * in good faith and not solely for purposes of delay or avoidance of penalties." Section 10(b), 29 U.S.C. Section 659(b). Once a citation is contested, an employer's abatement obligation generally does not start to run until a "final order" has been issued ending the administrative phase of the litigation.

When a citation or a prescribed abatement period has been contested, the matter is adjudicated by the Occupational Safety and Health Review Commission (i.e., "the Commission"), an independent agency headed by three Presidential appointees (i.e., "Members"). Initially, a contested case is usually heard by an administrative law judge (ALJ) of the Commission. The ALJ issues a decision and order, which are then docketed with the Commission. This decision and order may subsequently be reviewed by the full Commission. Section 12(j), 29 U.S.C. Section 659(j). Under this review procedure, any Member of the Commission may direct review of the ALJ's decision and order within thirty days of the docketing date. If there is no direction for review, the ALJ's decision and order becomes the final order of the Commission. Id. Any abatement requirement affirmed or modified by an ALJ's decision and order will start to run on the date that the ALJ's decision and order become a final order. The new abatement date is determined by adding to the final order date either: (1) The number of days allowed originally for abatement in the citation (in cases where the ALJ affirms the abatement requirement) or (2) the newly specified period for abatement (in cases where the ALJ modifies the abatement requirement). If, However, the Commission reviews an ALJ's decision and order, the employer's abatement obligation remains suspended during the review process. Following its review, the Commission will generally issue its own decision, which becomes a final order thirty days after its decision is issued. Section 10(c), 29 U.S.C. Section 659(c).(3) Again, any abatement period affirmed or modified as a result of the Commission's decision will start to run from the date its decision becomes a final order.(4)

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Footnote(3) Prior to issuing its decision, the Commission may sever one or more citation items from the case if it determines that it will not review the ALJ's affirmance of those items. See Hamilton Die Cast Inc., 12 BNA OSRC 1797 (No. 83-308, 1986). The order severing citation items will become a final order as to those items.

Footnote(4)It is possible that the Commission (or an ALJ) could, in modifying an abatement requirement, state an actual date by which abatement must be accomplished. In that situation, the abatement date would be the date as specified.

An ALJ's decision and order that have not been directed for Commission review, or a decision of the Commission following such review, also may be challenged in the appropriate federal appellate court. Sections 11(a) and (b), 29 U.S.C. Section 660(a) and (b). Filing a petition for appellate court review does not automatically stay the employer's abatement requirements. Id. In extraordinary cases, however, either the Commission or the court of appeals may stay the final order at the employer's request. If stayed, the abatement requirement does not begin to run until the appellate court upholds the earlier decision of the Commission or the ALJ (i.e., to affirms or revise the abatement requirement) by issuing a mandate or an equivalent order giving legal effect to the appellate court's decision. Where a citation was vacated by the Commission or the ALJ, and the appellate court subsequently reverses that decision, the appellate court will generally remand the case to the Commission for entry of an order to affirm the citation. The abatement requirement then will begin to run thirty days after the date of the appellate court's order. Should the appellate court, in such cases, not remand the case for entry of a Commission order, the abatement obligation begins to run from the court's own entry of mandate or equivalent order.

Settlement or withdrawal of a contest. At any stage of an ongoing contest proceeding, there may be a settlement of the case, in whole or in part, or the employer may unilaterally withdraw the notice of contest, in whole or in part. Under these conditions, the ALJ or the Commission will enter an order based on the settlement or withdrawal of the notice of contest. It is OSHA's legal position that, in some circumstances, withdrawal or settlement actions by employers become final orders by operation of law upon execution, without approval by the Commission. (See Cuyahoga Valley Ry. Co. v. United Transportation Union, 474 U.S. 3 (1985)). However, for purposes of determining the timing of an employer's abatement obligations under the proposed regulation, OSHA has elected to treat orders based on settlement or withdrawal in the same manner as other ALJ and Commission orders, i.e., the abatement obligation begins to run thirty days after the docketing of the ALJ order by the Commission or after the issuance of the Commission order, as the case may be. Should the parties phrase the settlement agreement such that abatement is called for by a date certain, or that the abatement period will run from a certain event (e.g., the date of execution of the agreement), the abatement date will be determined in accordance with the terms of the agreement provided no employee or employee representative contests the abatement period specified in the agreement.

The existence of a Commission final order has a number of consequences for enforcement. If OSHA determines that an employer has failed to correct a violation on or before the expiration of the abatement date, OSHA may issue a notification of failure to abate. Section 10(b), 29 U.S.C. Section 659(b). A penalty of up to $7000 may be assessed for each day the failure to abate continues. Section 17(d), 29 U.S.C. Section 666(d). If, after a final order, the employer commits a substantially similar violation in a different location, or with a different piece of equipment, or with the same piece of equipment after a period of temporary abatement, the violation is classified as repeated and a penalty of up to $70,000 may be assessed. Section 17 (a), 29 U.S.C. Section 666(a). Further, the Secretary may file a petition for enforcement of a Commission order which has became final after a notice of contest, or after a failure to contest within fifteen working days. This petition is filed in the court of appeals and the court issues a decree enforcing the Commission final order. If the employer violates this decree, the employer may be subject to penalties for contempt of court. Section 11(b), 29 U.S.C. Section 660(b).

The discussion above details the regular procedures for obtaining and enforcing final Commission orders with their concomitant abatement dates. In addition, there are procedures for modifying the abatement requirements of a citation due to employer hardship. Upon a showing by an employer of inability to complete abatement within the prescribed period because of factors beyond the employer's reasonable control, the employer may obtain a modification of the abatement date. Section 10(c), 29 U.S.C. Section 659(c). A petition for modification of abatement date (PMA) must be filed no later than the close of the next working day following the date on which abatement is required. If neither OSHA nor affected employees object to the employer's request, OSHA may approve the PMA and it then becomes a final order pursuant to section 10(a) and (c) of the Act. If either OSHA or employees object to the PMA, the case is forwarded to the Commission for adjudication. See 29 CFR 2200.37. The Commission may either accept, reject, or modify the employer's request for additional time and issue an appropriate order.

II. Summary and Explanation of the Regulation

Under the proposed regulation, an employer who has received an OSHA citation must submit to the OSHA Area Director an abatement certificate, which states whether or not the violation has been abated, as documentation of abatement. The proposed regulation would also require an employer who has received an OSHA citation to submit an abatement plan, where the Area Director requests one by such means as a note on the citation, which sets forth a schedule for the implementation of abatement measures. Under the proposal the employer would also submit progress reports, which explain what measures have been taken, if any, in the process of achieving abatement, when the Area Director requires them. The proposed rule would also require employers to affix tags on equipment noting that a citation has been issued.

Paragraph (a), Scope and Application

This regulation applies to all industries covered by the OSH Act, including general industry, construction, maritime, and agricultural employers. The specific identification of the major industrial groups, in this section, is intended to make this fact clear.

Paragraph (b), Definitions

Only those terms of the definitions paragraph which were felt to need further clarification are included in this section.

Abatement date. The date by which the employer must abate a violation depends on the stage to which a case has progressed. This definition sets forth the various ways an abatement date is determined. Circumstance (1) refers to the date actually set forth in the citation, where the citation item has not been contested. As explained in Section I, this date applies even if it is with the fifteen-working-day period normally available for the filing of a notice of contest.

Circumstance (2) is self-explanatory, as it refers simply to adding to the final order date either the amount of time in days initially specified for abatement on the citation or, if that period was modified by the Commission or its judge, the amount of time so modified.

Circumstance (3) refers to a date for abatement "expressly set forth" by the Commission, or a Commission administrative law judge. The phrase "expressly set forth" refers to a date certain or to a set number of days from the final order date specified date.

Circumstance (4) refers to a date set in a PMA final order. The term (PMA) refers to a petition for modification of the abatement date described in Section 10(c) of the OSH Act, 29 U.S.C. Section 659(c). A PMA final order results either from OSHA's approval of an uncontested PMA or the Commission's approval, modification or rejection of the employer's request for additional time in order to complete abatement.

Circumstance (5) refers to settlement agreements signed by OSHA and the employer, and, in some cases, employees or their authorized representatives. As in circumstance(3) the phrase "expressly set forth" refers to a date certain or to a set number of days from the final order date or other specified date.

Abatement plan. As the definition implies with its reference to "outlining a schedule for the implementation of measures to achieve abatement", an abatement plan required by a citation will specify the requirement for and the frequency of "progress reports." Generally, abatement plans and progress reports will be associated with multi-step or long-term abatement.

Citation item. A citation item is a single instance of a violation. For example, a citation may contain "Item 1", alleging that the employer has one machine in violation of 29 CFR 1910.212(a)(1) because it was not guarded. A citation may also list several violations of the same standard under the same citation item, for example "Item 1, instance a", and "Item 1, instance b". "Item 1, Instance a", and "Item 1, Instance b", etc. are all separate "citation items" within the meaning of the proposed regulation. Final order date: The date a citation becomes a final order is the date on which a citation becomes effective. The major ways a citation can become a final order are detailed in the definition.

The first category is that of an uncontested citation. If there is no contest by either the employer or the employees, the citation becomes a final order automatically, fifteen (15) working days after the date the employer receives the citation and proposed penalty, pursuant to Section 10 of the OSH Act, 29 U.S.C. Section 659.

The second category refers to situations in which there has been a contest either by the employer or by employees, resulting in the issuance of a decision or order by an ALJ. Under Section 12(j) of the OSH Act, 29 U.S.C. Section 661(j), a decision of an ALJ becomes a final order of the Commission thirty days "after such report" if no member of the Commission directs review of the case. Section 12(j) has been construed by the Commission to mean that the thirty-day period runs from the date on which the decision of the ALJ is docketed by the Commission. (See 29 CFR 2200.90(b)(2); Robert W. Setterlin & Sons Co., 4 BNA OSHC 1214 (No. 7377, 1976)).

The third category refers to decisions issued by the Members of the Commission, including orders severing items from a case. Pursuant to Section 10(c) of the OSH Act, 29 U.S.C. Section 659(c), such decisions become final orders thirty days after their issuance, and the filing of petitions for review of these decisions in a court of appeals does not stay the employer's abatement obligation unless a stay has been expressly ordered.

The fourth category addresses the two situations in which the start of an employer's abatement obligation depends on action by a court. In those cases in which a court of appeals stays an abatement requirement, the abatement requirement starts when the court issues its mandate or an equivalent order following a decision of the court upholding the Commission's affirmance of the citation. In those cases where the Commission did not affirm a citation but the court reverses that decision, the abatement obligation starts upon the court's issuance of its mandate or equivalent order unless the court remands the case to the Commission for the issuance of an appropriate Commission order. In that situation, the abatement period starts when the Commission's order becomes final thirty days after its issuance.

PMA final order. This is the order approving, modifying or rejecting the employer's request for additional time to complete the abatement requirements of the citation.

Paragraph (c), Abatement Certificate

Paragraph (c)(1) specifies the minimum content of the abatement certificate; (c)(2) provides special procedures for reissuing an abatement certificate for those situations where abatement was not initially completed; and (c)(3) allows an employer to combine the individual certifications of hazard abatement into one certificate.

Paragraph (c)(4) of the proposed regulation requires the abatement certificate to be accompanied by "documentary evidence." OSH envisions "documentary evidence" to be any type of document which provides evidence that a violative condition which was cited has, in fact, been abated. The examples of documentary evidence which follow are provided in order to clarify OSHA's intent and are not to be considered as the only methods which would be acceptable to the Agency, nor are they automatically accepted in all cases: (1) An invoice or receipt for purchase or disposal of goods and services; (2) analyses or reports from industrial hygienists, engineers, or other experts indicating the methods by which the extent to which the hazardous condition has been abated; (3) a manufacturer's recertification for repaired equipment; (4) contracts and specifications for services; (5) training records, programs, and attendance sheets; (6) in-house certification; (7) photographic prints depicting the abated condition which have been labeled appropriately with the citation and item references as they appeared on the citation; and (8) videotape with concise audio and/or visual identification for the citation reference.

Paragraph (d), Abatement Plan

Paragraph (d) of the proposed regulation refers to written abatement plans. OSHA currently requests employers to submit abatement plans when the Area Director finds them appropriate in connection with safety or health violations. The proposed regulation would give the Area Director discretion to require abatement plans with respect to either safety or health violations.

Paragraph (e), Progress Reports

Paragraph (e) of the proposal refers to written progress reports. OSHA policy currently provides for progress reports whenever the Area Director requests them in connection with safety or health violations requiring multi-step or long term abatement. The proposed regulation would make such progress reports mandatory when required by the Area Director and indicated on the citation.

Paragraph (f), Tagging of Cited Equipment

Paragraph (f) of the proposed regulation requires the placement of a tag on cited equipment in order to alert employees who might be exposed to the hazards of that equipment. The tag will state that this equipment has been cited. This procedure will address the situation, common to the construction industry, in which cited equipment is removed from one worksite to another where employees are not aware of the hazardous condition. The tag requirements found in this proposed regulation are intended to provide such employees with knowledge of the violative condition of the equipment. The proposal provides that these warning tags shall comply with the current OSHA requirements for accident prevention tags (i.e. use, signal word, and general tag criteria) found in 1910.145(f).

The proposed regulation would require the tag to remain in place on the equipment until the defect has been remedied. If the equipment is removed from the workplace, sold, or otherwise transferred, it is OSHA's intent that the tag remain on the equipment. Mere lack of employee exposure to the equipment will not allow the employer to remove the tag.

The reference to "tagging equipment" does not require the tagging of supplies, furnishings, policies, procedures or building service distribution systems such as for water. However, individual component parts within a distribution system may be subject to tagging. For example, an unguarded drive shaft on a circulating pump in a water distribution system found in violation of the machine guarding standard would be considered equipment within the meaning of the regulation and thus require tagging.

Paragraph (g), Transmittal of Documents

OSHA has included the following note in paragraph (g).

Note: Receipt of an employer's documents by the Agency under this regulation does not constitute an agreement that the employer is in compliance.

There are three reasons for this provision. First, although the Agency will try to evaluate submitted material in a timely fashion, other agency priorities may delay such action. Second, in some cases, the submitted materials may not accurately or completely describe the abatement. Third, changing working conditions may make the abatement action described in the materials submitted inaccurate or inadequate.

Paragraph (i), Posting Requirements

Paragraph (i)(5) of the proposed regulation states that the final abatement certificate must remain posted until abatement has been completed or for six calendar days, whichever is later. Thus, if abatement has been completed, the certificate shall remain posted for at least six days after completion. If abatement has not been completed, the abatement certificate initially submitted shall remain posted until the violation has been abated. When abatement has been accomplished, the new final abatement certificate shall remain posted for six days. If a final abatement certificate deals with a number of citation items, it shall remain posted for as long as it takes to comply with the posting requirements for all of the items. OSHA believes that the posting of the abatement certificate will inform employees whether or not the hazard has been abated and also help to assure the accuracy of the certificate.

III. Pertinent Legal Authority

This proposed regulation is authorized by Sections 8(c)(1), 8(g)(2), and 9(b) of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. Section 657 and 658. Under Section 8(c)(1) "[e]ach employer shall make, keep and preserve, and make available to the Secretary or the Secretary of Health [and Human Services] * * *, such records regarding his activities relating to this Act as the Secretary, in cooperation with the Secretary of Health [and Human Services] * * *, may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses." Section 8(g)(2) empowers the Secretary of labor to "prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this Act." Moreover, pursuant to Section 8(c)(1), the Secretary has authority to issue regulations requiring employers to keep their employees informed of the employers' responsibilities under the Act. Section 9(b) authorizes the Secretary to promulgate regulations associated with the posting of citations.

In addition, the Secretary's responsibilities under the Act are defined largely by its enumerated purposes, which include: Providing for appropriate reporting procedures that will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem [29 U.S.C. Section 651(b)(12)]; developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems [29 U.S.C. Section 651(b)(5)]; and providing an effective enforcement program [29 U.S.C. Section 651(b)(10)].

For the reasons set forth in the preamble, the Secretary asserts that the proposed regulation is necessary and appropriate to conduct enforcement responsibilities under the Act, to develop information about the prevention of occupational accidents and illnesses, and to inform employees of their protections and obligations under the Act.

IV. Comments and Information Requested

Comment is requested on all issues involving the proposed regulation. In particular, OSHA requests comment on the following questions:

1. What type of documentary evidence should OSHA require employers to submit as proof of final abatement? Should the type of documentation required to be submitted as proof of final abatement vary according to what is required for abatement, the type of hazard, or the classification of violation (i.e., willful, repeat, serious, other-than-serious, regulatory)? What criteria should OSHA apply in judging either the sufficiency or quality of the documentation? 2. What are the costs (time and money) of complying with this new regulation and the basis for estimating these costs? 3. What will be the effects of the requirement that employers post their abatement documents? 4. How do the proposed abatement verification procedures differ from current or previous practices of informing OSHA that abatement has been accomplished? 5. How much time does each employer currently spend on abatement verification? 6. What is the appropriate level of management to sign the abatement verification? 7. What are employer experiences with verifying abatement of cited conditions for other Federal and State agencies, especially State occupational safety and health agencies? 8. Given the need for evidence of abatement, should an employer be required to submit abatement certification if the employer has actually abated the condition during the OSHA inspection? 9. Should OSHA develop an abatement certification form? If so, what information should the form contain? 10. OSHA is proposing in paragraph (f) the use of a tag to be placed on cited equipment to alert affected employees that a hazardous condition exists with the equipment. Specific comment is requested on this particular issue. What information should the tag contain?

V. References

OSHA Policy Changes Needed to Confirm That Employers Abate Serious

Hazards (GAO/HRD-91-35, Report to Congressional Requesters, May 1991). OSHA Instruction CPL 2.45B - Field Operations Manual (FOM).

VI. Preliminary Regulatory Impact Analysis for Abatement Verification

A. Introductory

Executive Order 12866 (58 FR 51735) requires regulatory agencies to assess the costs and benefits of intended regulations, to consider the possible alternatives, and to select the most cost-effective form of regulation. The Regulatory Flexibility Act (5 U.S.C. Section 601 et seq.) requires the Occupational Safety and Health Administration (OSHA) to consider the impact of the regulation on small entities.

This regulatory impact analysis presents the costs, benefits (cost savings), and economic impact of the proposed regulation requiring certification of abatement. The impact on small businesses is also presented.

The Agency has preliminarily concluded that this regulation is not a "significant regulatory action" as defined in Executive Order 12866, Section 3, Paragraph (f).

The proposed regulation for abatement verification would require employers to notify OSHA Area Directors whether or not cited violations have been abated. It would require employer to notify OSHA Area Directors whether or not cited violations have been abated. It would also require employers to offer documentation of abatement plans and progress reports for multi-step abatement efforts. Based on a survey of OSHA regional offices, OSHA estimates that as many as 70 percent of cited employers eventually certify and document their abatement actions to some degree at the present time. This regulatory action will potentially affect all employers covered by the OSH Act.

This regulatory action can impose penalties for non-reporting of conditions even if they have been abated and can also lead to an increase in the penalties that employers face from unabated, violative conditions. Failure to verify abatement on a timely basis is an additional violation. When abatement is verified by the employer but not actually performed, criminal penalties for false statement may apply. Increased penalties give employers an incentive both to abate and to verify abatement, and to do so in a timely manner. Abatement reduces the risk of injury, illness, and death for employees. The Agency has not estimated the extent of injuries, illnesses, and deaths averted by this regulatory action, because abatement itself is already required by the OSH Act.

B. Costs of Compliances

Certifying Abatement

Federal OSHA and State-plan agencies performed about 127,000 workplace inspections in 1991, issuing about 413,000 separate (upgrouped) violations (Table 1). Less than 1 percent of the violations were for failure to abate. About 10 percent of all citations were contested.

There were about 9,000 follow-up inspections by OSHA and State-plan agencies in 1991 that resulted in about 4,300 violations, of which 71 were for failure to abate (Table 2). About 18 percent of all follow-up violations were contested.

The Agency estimates that it will take firms, on average, 15 minutes to prepare and mail documentation to certify abatement, independent of firm size. The Agency estimates that the managers or proprietors who prepare the certification of abatement earn a total wage of $25 per hour, based on data in the Bureau of Labor Statistics news, June 18, 1993.

A ceiling, or maximum estimate, of the cost to employers for verifying abatement, including preparation of abatement certificates and submission of documentation, can be calculated by multiplying the number of violations with the estimated average time to verify abatement (not the time and cost to comply with the OSHA standard cited) and with the supervisory wage rate (annual, including benefits), or

412,707 violations X .25 hours per citation X $25/hour = $2.6 million annually.

Since a large fraction of employers cited for violations now inform OSHA that abatement was performed and sometimes offer documentation, the new additional cost to employers from this regulation is probably much less than the ceiling estimate of $2.6 million annually. Other costs, such as for photocopying, photography, or other documenting activity, are believed to be minimal. The cost of tags for cited equipment is also minor as both the general industry and construction standards already contain accident prevention tagging requirements (See 1910.145 and 1926.200).

Abatement Plans and Progress Reports

The proposed regulation allows the Agency's Area Director "at his or her discretion" to require an abatement plan and progress reports when multi-step abatement is "deemed appropriate." At the current time, when the Area Director issues a citation to an employer (usually involving air contaminants, noise, or ergonomics) which will require a long, or multi-step, abatement effort, the citation letter lists both the steps to be taken and a schedule for completion. The Agency in its citation letter informs the employer that it must send progress reports to the Area Director.

Since the employer will have in hand OSHA's proposed plan for multi-step abatement to use as a guide, the Agency estimates that it will take an employer two hours to write the plan as required by the proposed regulation. The Agency estimates that, on average, there are three steps in a multi-step abatement and that it will take the employer 30 minutes to prepare each progress report. The Agency estimates that the total wage rate of a supervisor, manager, or proprietor who would perform this work is $25 per hour (Bureau of Labor Statistics News, June 18, 1993).

Currently, citations requiring multi-stage abatement efforts are a small percentage of all citations. Virtually all of the multi-stage abatements for Federal violations are for three causes: Ergonomics, noise, and permissible air limits. In 1991 there were 749 Federal OSHA inspections that resulted in citations for ergonomics, air contaminants, noise, or single-substance OSHA standards, resulting in 1,934 violations (all of which would have required multiple step abatement). Based on this number of multi-stage abatements required in Fiscal year 1991, and assuming that State-plan agencies had an equal number, the Agency estimates that the cost of proposing multi-step abatement plans and providing progress reports is:

Cost = (1934 X 2) X $25/hr X [2 hours + (3 X 1/2 hours)] = $338,450.

C. Benefits (Cost Savings)

Verification Efforts

This regulatory action will reduce time-consuming efforts required of OSHA's enforcement officers to verify and document abatement in order to close files, thereby increasing the time available for inspection activities. OSHA's Directorate of Compliance Programs estimates that these efforts consume approximately 5 percent of compliance staff time, or the equivalent of 50 full-time compliance officers for Federal enforcement. The Agency estimates that an equal number of full-time equivalents perform this task for State-plan agencies, or a total of 100 full-time-equivalents. With an average estimated salary of $50,000 including benefits, the dollar value of this time is approximately $5 million annually. The Agency estimates that the increased work of collecting and analyzing abatement certificates and accompanying documentation for enforcement agencies will be minor - OSHA is currently receiving abatement information for approximately 70 percent of its citations. The Agency estimates that affected employers should also save approximately the same amount of time and money ($5 million annually) spent in responding to OSHA's letters and calls seeking verification of abatement.

Follow-Up Inspections

In FY 1991, Federal OSHA performed about 2,000 follow-up inspections, and State-plan agencies about 7,000 (Table 2), for a total of about 9,000 annually. Combined, these efforts represented 100,700 staff hours,(5) or approximately 50 full-time compliance officers. One of the Agency's goals in promulgating this regulation is to reduce the resources employed in follow-up inspections as well as other unproductive efforts associated with abatement verification. The Agency's Directorate of Compliance estimates that under this regulation, the Agency will decrease its follow-up inspections by half, and OSHA estimates that State-plan agencies will do the same. With an estimated average salary and benefits of $50,000, cutting follow-up inspections by half will save enforcement agencies $1.25 million in resources annually.

__________

Footnote(5) Estimated follow-up inspection staff hours:

1,477 (Fed) X 14 Avg. Hrs./follow-up = 20,678 Hrs. 562 (Fed) health X 46 Avg. Hrs./follow-up = 25,852 Hrs. 5,610 (State) safety X 6 Avg. Hrs./follow-up = 33,660 Hrs. 1,465 (State) health X 14 Avg. Hrs./follow-up = 20,510 Hrs.

Total = 100,700 Hrs.

Although a significant portion of a Compliance Officer's time is spent in preparation and travel to a worksite for these inspections, at the worksite he or she is accompanied by one or more employer representatives as well as an employees representative. The Agency estimates that: The total hourly wage of the employer's representative is $25; the total wage of the employee's representative is $15 (BLS News, June 18, 1993); and that a follow-up inspection takes, on average, three hours. The Agency estimates that reducing the number of follow-up inspections by half will annually save employers $540,000 [4,500 inspections X 3 hrs X ($25 + $15)].

D. Economic Impact

The Agency estimates that the economic impact on individual employers, industry profits, and product prices to be insignificant for every affected industry, and therefore concludes that the regulation is economically feasible. Only 15 minutes of a manager's time, on average, should be needed to verify abatement and provide some documentation. Since employers will avoid time spent responding to verification requests from the Agency as well as follow-up inspections, the Agency estimates that overall there is a net savings for employers. There is a savings of resources for Federal OSHA and State-plan states. As a whole this regulation should result in a saving of resources (Table 3).

TABLE 1.-OSHA INSPECTION DATA 1991
Inspections: Federal OSHA State plan States Total
    Safety
33,346 70,358 103,704
    Health
8,963 14,053 23,016
      Total
42,309 84,411 126,720
Violations:
    Willful
2,437 950 3,387
    Repeat
3,525 6,948 10,473
    Serious
93,600 58,391 151,991
    Unclassified
30 0 30
    Other-Than-Serious
50,845 167,983 218,828
    Failure to Abate
1,333 2,278 3,611
Total grouped violations 151,770 - -
Total ungrouped violations 176,157 236,550 412,707
Contested Citations 3,339 5,088 8,427
Source: OSHA's Office of Regulatory Analysis


TABLE 2.-OSHA FOLLOW-UP INSPECTION DATA 1991
  Federal OSHA State Plan States Total
Inspections:
    Safety
1,477 5,610 7,087
    Health
562 1,465 2,027
      Total
2,039 7,075 9,114
Average Case hrs./Inspection
    Safety
14 6  
    Health
46 14  
Violations:
    Willful
35 38 73
    Repeat
688 423 1,111
    Serious
991 303 1,294
    Unclassified
1 0 1
    Other-Than-Serious
773 1,005 1,778
    Failure to Abate
43 28 71
      Contested citations
119 116 235
Source: OSHA's Office of Regulatory Analysis


TABLE 3.-ESTIMATES OF COSTS AND COST SAVINGS OF
CERTIFICATION OF ABATEMENT
[In millions of dollars]
  Firms Federal and State OSHA
  Costs Savings Costs Savings
Compliance Cost:        
    Abatement verification
2.6   0  
    Abatement plans & progress reports
0.3   0  
      Total costs
2.9   0  
COST SAVINGS:        
    Verification cost savings
  5.0   5.0
    Reduction in follow-up activities
  .5   1.25
      Total Savings
  5.5   6.25
      Net Savings
  2.6   6.25
Source: OSHA's Office of Regulatory Analysis

VII. Regulatory Flexibility Certification

Pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. Section 601 et seq.), the Agency preliminarily certifies that the proposed regulation would not have a significant impact on small businesses in any industry. As shown in the earlier section on costs of compliance, the cost to individual small establishments is estimated to be the same as for larger establishments. The costs to establishments in every industry are very low. In addition, OSHA inspects proportionately more large establishments than small establishments, and the Agency as a matter of policy does not perform some types of inspections on establishments having ten or fewer employees. The Agency therefore concludes that this regulation does not place any undue burden on small businesses.

VIII. Environmental Impact Assessment

Finding of No Significant Impact

This regulation has been reviewed in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. Section 4321, et seq.), the regulations of the Council on Environmental Quality (CEQ) (40 CFR part 1500), and the Department of Labor's NEPA procedures (29 CFR part 11). The Agency estimates that the regulation and employers' compliance efforts will not have any impact on the environment or result in the release of materials that contaminate natural resources or the environment.

IX. Federalism

This proposed regulation has been reviewed in accordance with Executive Order 12612 (52 FR 41685, October 30, 1987), regarding Federalism. This Order requires that agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions which would restrict State policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. The Order provides for preemption of State law only if there is a clear congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.

With respect to States that do not have State plans, the proposed regulation conforms to the preemption provisions of section 18 of the OSH Act (29 U.S.C. Section 667) which preempts State promulgation and enforcement of requirements dealing with occupational safety and health issues covered by Federal OSHA standards unless the State has an OSHA-approved State plan. See Gade v. National Solid Wastes Management Association, 112 S.Ct. 2374 (1992). Since States without State plans are already prohibited from issuing citations for violations of requirements covered by Federal OSHA standards, the proposed regulation does not expand this limitation.

The Agency certifies that this proposed regulation has been assessed in accordance with the principles, criteria, and requirements set forth in sections 2 through 5 of Executive Order 12612. Section 18(c)(2) of the OSH Act [29 U.S.C. Section 667(c)(2)] provides that an OSHA-approved State plan must provide for the development and enforcement of safety and health standards which are, or will be, at least as effective as the Federal program. In implementing this requirement, 29 CFR 1902.3(d)(1) requires a State plan to provide a program for the enforcement of the State standards which is, or will be, at least as effective as that provided under the OSH Act, and provide assurances that the State-plan enforcement program will continue to be at least as effective as the Federal program. Furthermore, 29 CFR 1902.4(a) requires State plans to establish the same procedures and rules as those established by Federal OSHA, or alternative procedures and rules as effective as the Federal procedures and rules. In particular, a State plan must provide that employees be informed of their protections and obligations under the Act. 29 CFR 1902.4(c)(2)(iv). It must also provide for prompt notice to employers and employees when an alleged violation of standards has occurred, including the proposed abatement requirements, by such means as the issuance and posting of citations. 29 CFR 1902.4(c)(2)(x). Since the proposed regulation will improve Federal OSHA's effectiveness in enforcing the OSH Act and, in particular, will foster the abatement of violations and communication to employees about their protections under the Act, State plans will be required to adopt an identical regulation, or an equivalent regulation that is at least as effective as the Federal regulation, within six months of Federal promulgation. Thus, the proposed regulation complies with the Executive Order 12612 with respect to State plan states because (1) it deals with a problem of national scope, and (2) the OSH Act requires that State-plan states adopt OSHA regulations or equally effective regulations.

State comments are invited on this proposal and will be fully considered before a final regulation is promulgated.

X. State Plans

There are currently 25 states and other jurisdictions with OSHA-approved occupational safety and health plans. These 25 jurisdictions are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming; and Connecticut and New York (for State and Local government employees only).

The 25 jurisdictions with their own OSHA-approved occupational safety and health plans will be required to adopt a regulation on abatement verification that is at least as effective as this Federal regulation within six months of the publication date of this Federal regulation (i.e. six months after the final rule is published).

Current State abatement verification-procedures are described in State field operation manuals and/or directives. Although these State procedures may differ from the Federal procedures, the State-plan states, like OSHA, generally lack regulations or statutory provisions specifically addressing this issue, with the exception of Wyoming which does have a regulation requiring abatement verification. Current State abatement verification procedures are identical to the Federal except as described below:

(1) Nine States have abatement verification forms: Alaska, California, Kentucky, Michigan, North Carolina, Oregon, South Carolina, Washington, and Wyoming. On these forms, the employers describe the specific measures taken to correct each alleged violation. Alaska, Oregon, Washington, Michigan, and Kentucky also ask for documentary evidence. Alaska requests employers to certify under penalty of perjury that the violations were abated by the dates specified.

(2) California and Minnesota ask employers to submit progress reports. California requests monthly progress reports for all long-term abatements, while Minnesota requests a progress report for all serious and most other violations of the State's general industry and construction standards.

(3) For long-term abatements, California requests employers to submit an abatement plan which outlines their procedures for abatement, such as plans for controls to be installed, and schedules for engineering, purchasing, and installation. Washington schedules follow-up inspections every six months to check progress made on long-term or multi-step abatement plans.

(4) Some States (e.g., South Carolina and California) send a reminder letter to the employer just before the abatement verification form is due. Washington reminds employers by letter or telephone. Kentucky and California also send follow-up letters if the form is overdue.

(5) Maryland tracks informal conference settlements to determine if abatement documentation is adequate.

(6) Wyoming has an enforcement regulation requiring the submission of written documents saying when abatement has been accomplished. Failure to do so can result in a civil penalty. Wyoming can also take legal action to enforce submission of a letter of abatement.

(7) New York, which covers only state and local government employees, conducts follow-up inspections to verify abatement for every violation; employers are not asked to send in any abatement verification information.

XI. Public Participation

Interested persons are invited to submit written comments, data, views, and arguments on any issue raised by this proposed regulation. These comments must be postmarked by July 18, 1994, and submitted in quadruplicate to the OSHA Docket Officer, Docket No. C-03, U.S. Department of Labor, Occupational Safety and Health Administration, room N2625, 200 Constitution Avenue NW., Washington, DC 20210. Written submissions must clearly identify the issues or specific provisions of the proposal which are being addressed, and the position taken with respect to these issues or provisions. Comments will be available for public inspection and copying at the above address between the hours of 8:15 a.m. and 4:45 p.m., Monday through Friday (except Federal holidays). All timely submissions will additionally, be made part of the public record for this regulation, and will be available for inspection. The preliminary regulatory impact assessment and the exhibits cited in this document will be available for public inspection and copying at the above address. All comments will be carefully evaluated and considered by OSHA in developing the final regulation.

XII. OMB Approval Under the Paperwork Reduction Act

5 CFR part 1320 sets forth procedures for agencies to follow in obtaining OMB clearance for information collection requirements under the Paperwork Reduction Act of 1980, 44 U.S.C. Section 3501 et seq. This proposed abatement verification regulation requires employers to submit to OSHA (1) an abatement certificate and accompanying documentary evidence, (2) abatement plans and progress reports when specifically required on the citation, and (3) verification that the hazardous conditions cited have been corrected. In accordance with the provisions of the Paperwork Reduction Act and regulations issued pursuant thereto, OSHA certifies that it has submitted the information collection requirements for this proposal to OMB for review under section 3504(h) of the Act.

The public reporting burden for this collection of information is estimated to average fifteen minutes per citation item. Send any comments regarding this burden estimate, or any other aspect of these information-collection procedures, including suggestions for reducing this burden, to the Office of Information Management, Department of Labor, room N-1301, 200 Constitution Avenue, NW., Washington, DC 20210, and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.

XIII. Authority

This document was prepared under the direction of Joseph A. Dear, Assistant Secretary of Labor for Occupational Safety and health, U.S. Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210. It is issued pursuant to Sections 8(c)(1), 8(g) and 9(b) of the Occupational Safety and Health Act of 1970, (29 U.S.C. Section 657, 658).

List of Subjects in 29 CFR Part 1903

Abatement, Law enforcement, Occupational safety and health, Reporting and recordkeeping requirements.

Signed in Washington, DC, this 11 day of April 1994.

Joseph A. Dear,

Assistant Secretary of Labor.

Part 1903 of title 29 of the Code of Federal Regulations is proposed to be amended as follows:

PART 1903 - INSPECTIONS, CITATION, AND PROPOSED PENALTIES

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

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

Sections 1903.7 and 1903.19 also issued under 5 U.S.C. Section 553.

1903.19, 1903.20, 1903.21 [Redesignated as 1903.20, 1903.21, 1903.22]

2. Part 1903 would be amended by redesignating 1903.19, 1903.20, and 1903.21 as 1903.20, 1903.21, and 1903.22, and by adding new 1903.19, to read as follows:

1903.19 Abatement verification.

(a) Scope and application. This regulation requires all employers to verify the abatement of violative conditions set forth in citations, as detailed below.

(b) Definitions. Abatement date means

(1) the date set forth in a citation for the abatement of a violation when the citation item has not been contested;

(2) when a citation item has been contested and the Commission has issued a final order, the date computed by adding to the final order date either the amount of time allowed for abatement in the original citation or, if the order modifies the abatement period, the newly specified period;

(3) the date for abatement expressly set forth in a final order;

(4) the date for abatement set forth in a PMA final order; or (5) the date for abatement expressly set forth in a settlement agreement.

Abatement plan is a written, detailed plan outlining a schedule for the implementation of measures to achieve abatement.

Abatement verification includes a final abatement certificate, an abatement plan and progress reports.

Area Director means the employee or officer regularly or temporarily in charge of an Area Office of the Occupational Safety and Health Administration, U.S. Department of Labor, or any other person or persons who are authorized to act for such employee or officer.

Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, or designated representative.

Citation item is a separately designated portion of a citation containing one or more instances of violation.

Commission is the Occupational Safety and Health Review Commission. Equipment is a machine or device, powered or unpowered, used to do work. Final order date is (1) where the citation item has not been contested, the fifteenth working day after the employer's receipt of the notification of proposed penalty with respect to a citation item; (2) the thirtieth day after the date on which a decision of a Commission administrative law judge, including an order approving a settlement or a withdrawal of a notice of contest, has been docketed with the Commission, unless a member of the Commission has directed review; (3) where review has been directed, the thirtieth day after the date on which the Commission issues its decision, including but not limited to, an order approving a settlement or a withdrawal of a notice of contest, or an order severing citation items from a case; or (4) the date on which a court of appeals issues a decision where the Commission order has been previously stayed.

PMA is a petition for modification of the abatement date. PMA final order is (1) OSHA's approval of an uncontested PMA; (2) an order of a Commission administrative law judge granting a PMA, in whole or in part, unless the judge's decision is directed for review within thirty days of its docketing with the Commission; (3) an order of Members of the Commission granting a PMA, in whole or in part, where review has been directed; or (4) an order of a court of appeals granting a PMA, in whole or in part.

Progress report is a written report explaining what measures have been taken, if any, in the process of achieving abatement of a violative condition in a citation item, other than measures ultimately achieving abatement; and the dates on which those measures have been taken.

(c) Abatement certificate. Each employer shall submit to the Area Director issuing the citation an abatement certificate with respect to each citation item, and do so within thirty calendar days after the abatement date for the citation item.

(1) The abatement certificate shall contain the following information:

(i) Each citation item;

(ii) A statement noting whether or not abatement has been accomplished with respect to each citation item and instance listed in the citation;

(iii) A description of the measures taken to accomplish abatement;

(iv) The date abatement was accomplished;

(v) If abatement has not been accomplished, the reason(s) for not abating;

(vi) The signature of the employer or the employer's duly authorized representative;

(vii) The date of the signature.

(2) If the employer has initially stated in an abatement certificate that a particular citation item has not been abated, and later the employer abates the condition, the employer shall submit to the Area Director issuing the citation a new abatement certificate within five calendar days after abatement.

(3) Abatement certificates for more than one citation item may be combined in a single document.

(4) Each abatement certificate with respect to a citation item shall be accompanied by documentary evidence that is sufficient to demonstrate clearly that the hazard has been corrected.

(d) Abatement plan.

(1) An Area Director may require in a citation that the employer submit a formal plan for the abatement of safety and health violations in instances where multiple steps or long-term abatement actions are necessary.

(2) When called for in a citation, the employer shall prepare a written, signed, and dated abatement plan with respect to each citation item for which the plan is required.

(3) Abatement plans for more than one citation item may be combined within a single document.

(4) The abatement plan shall be submitted to the Area Director issuing the citation within twenty-five calendar days after the date of the final order or the date of the PMA final order.

(e) Progress reports. An Area Director, at his or her discretion, may require progress reports in a citation where multi-step abatement is deemed appropriate.

(1) The Area Director shall specify the citation item with respect to which the progress reports are required, the measures which the Area Director expects to be taken on or before the submission of each progress report, and the date for the submission of each progress report, expressed as the number of calendar days from the date of the final order or the date of the PMA final order.

(2) The employer shall submit to the Area Director the requested progress reports with respect to each citation item for which they are required under the abatement plan.

(3) Progress reports for more than one citation item may be combined within a single document.

(4) Progress reports shall be submitted at intervals specified by the Area Director in the citation, but the first progress report shall not be submitted earlier than thirty calendar days after the date of the final order or the date of the PMA final order.

(f) Tagging cited equipment. (1) The employer shall affix a "Warning" tag on all cited equipment upon receipt of the citation.

(2) The design, application, and use of the tag required by this section shall be in accordance with 29 CFR 1910.145(f)(4).

(3) In addition to the information set forth in 1910.145(f), the tag shall identify the equipment, state that a citation has been issued, and identify where the citation is posted.

(4) The employer shall ensure that the tag remains affixed to the cited equipment in a conspicuous location at or near the controls of such equipment and/or the hazardous portion of the equipment, until the cited equipment is brought into compliance with OSHA requirements or the equipment is permanently removed from service. The temporary removal from service of cited equipment is not compliance with OSHA requirements for the purpose of this section. The protection and posting requirements of paragraph (i)(4) of this section are also applicable to this paragraph.

(g) Document Transmittal. When this section requires submission of a document to the Area Director, it may be submitted by first-class mail, postage prepaid, facsimile transmission, or hand delivery. When the document is mailed, the date of submission is the date of the postmark. When the document is submitted by facsimile transmission or hand delivery, the date of submission is the date when the document is received by the Area Director.

Note: Receipt of an employer's documents by the Agency under this regulation does not constitute an agreement that the employer is in compliance.

(h) Accuracy of documentation. The employer shall assure that each statement in a document or accompanying documentation required by this section is accurate.

(i) Posting requirements. A copy of each document required to be submitted to the Area Director shall be posted, at the time of submission, at or near each place the violation(s) described in the citation occurred.

(1) Where, because of an employer's operations, it is not practicable to post a document at or near the location of the violation(s), such document shall be posted, unedited, in a prominent place where it will be readily observable by all affected employees.

(2) Where it is physically impracticable, because of a document's size or magnitude, to post abatement plans and progress reports, a notice to affected employees shall be posted indicating the location where the document(s) can be reviewed.

(3) The abatement certificates, abatement plan(s) and progress reports shall be provided, upon request for examination and copying, to employees, to employee representatives, and to the Assistant Secretary.

Note: If employers are engaged in activities which are geographically dispersed (see 1903.2(b)), the document may be posted at the location where employees report each day. If employees do not primarily work at, or report to, a single location (see 1903.2(b)), the document may be posted at the location where employees work.

(4) The employer shall assure that any document required to be posted by this section is not altered, defaced, or covered by other material.

(5) Any document required to be posted by this section shall remain posted until the violation has been abated, or for six calendar days, whichever is later.

(j) Penalties. Any employer failing to comply with the provisions of this section shall be subject to citation and penalty in accordance with the provisions of Section 9 and 17 of the Act.

(k) False statements. False statements knowingly made in any document required by this section are subject to criminal penalties set forth in section 17(g) of the Act. False statements knowingly and willfully made in any document required by this section are subject to the criminal penalties set forth in 18 U.S.C. Section 1001.

[FR Doc. 94-9109 Filed 4-18-94; 8:45 am]


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