[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2019 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 29
Labor
________________________
Part 1927 to End
Revised as of July 1, 2019
Containing a codification of documents of general
applicability and future effect
As of July 1, 2019
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 29:
SUBTITLE B--Regulations Relating to Labor (Continued)
Chapter XVII--Occupational Safety and Health
Administration, Department of Labor (Continued) 5
Chapter XX--Occupational Safety and Health Review
Commission 241
Chapter XXV--Employee Benefits Security
Administration, Department of Labor 315
Chapter XXVII--Federal Mine Safety and Health Review
Commission 881
Chapter XL--Pension Benefit Guaranty Corporation 935
Finding Aids:
Table of CFR Titles and Chapters........................ 1273
Alphabetical List of Agencies Appearing in the CFR...... 1293
List of CFR Sections Affected........................... 1303
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 1928.1 refers
to title 29, part 1928,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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OMB CONTROL NUMBERS
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Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register.
July 1, 2019.
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: Parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, part 1900-Sec. 1910.999, part 1910.1000-
end of part 1910, parts 1911-1925, part 1926, and part 1927 to end. The
contents of these volumes represent all current regulations codified
under this title as of July 1, 2019.
The OMB control numbers for title 29 CFR part 1910 appear in Sec.
1910.8. For the convenience of the user, Sec. 1910.8 appears in the
Finding Aids section of the volume containing Sec. 1910.1000 to the
end.
For this volume, Ann Worley was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum
Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 29--LABOR
(This book contains part 1927 to end)
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SUBTITLE B--Regulations Relating to Labor (Continued)
Part
chapter xvii--Occupational Safety and Health Administration,
Department of Labor (Continued)........................... 1928
chapter xx--Occupational Safety and Health Review Commission 2200
chapter xxv--Employee Benefits Security Administration,
Department of Labor....................................... 2509
chapter xxvii--Federal Mine Safety and Health Review
Commission................................................ 2700
chapter xl--Pension Benefit Guaranty Corporation............ 4000
[[Page 3]]
Subtitle B--Regulations Relating to Labor (Continued)
[[Page 5]]
CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT
OF LABOR (CONTINUED)
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Part Page
1927
[Reserved]
1928 Occupational safety and health standards for
agriculture............................. 7
1949 Office of Training and Education,
Occupational Safety and Health
Administration.......................... 39
1952 Approved State plans for enforcement of
State standards......................... 39
1953 Changes to State plans...................... 47
1954 Procedures for the evaluation and monitoring
of approved State plans................. 52
1955 Procedures for withdrawal of approval of
State plans............................. 58
1956 State plans for the development and
enforcement of State standards
applicable to State and local government
employees in States without approved
private employee plans.................. 69
1960 Basic program elements for Federal employee
occupational safety and health programs
and related matters..................... 77
1975 Coverage of employers under the Williams-
Steiger Occupational Safety and Health
Act of 1970............................. 103
1977 Discrimination against employees exercising
rights under the Williams-Steiger
Occupational Safety and Health Act of
1970.................................... 107
1978 Procedures for the handling of retaliation
complaints under the Employee Protection
provision of the Surface Transportation
Assistance Act of 1982 (STAA), as
amended................................. 113
1979 Procedures for the handling of
discrimination complaints under section
519 of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century................................. 122
[[Page 6]]
1980 Procedures for the handling of retaliation
complaints under section 806 of the
Sarbanes-Oxley Act of 2002, as amended.. 130
1981 Procedures for the handling of
discrimination complaints under section
6 of the Pipeline Safety Improvement Act
of 2002................................. 139
1982 Procedures for the handling of retaliation
complaints under the National Transit
Systems Security Act and the Federal
Railroad Safety Act..................... 147
1983 Procedures for the handling of retaliation
complaints under section 219 of the
Consumer Product Safety Improvement Act
of 2008................................. 158
1984 Procedures for the handling of retaliation
complaints under section 1558 of the
Affordable Care Act..................... 168
1985 Procedures for handling retaliation
complaints under the Employee Protection
Provision of the Consumer Financial
Protection Act of 2010.................. 178
1986 Procedures for the handling of retaliation
complaints under the employee protection
provision of the Seaman's Protection ACT
(SPA), as amended....................... 187
1987 Procedures for handling retaliation
complaints under section 402 of the FDA
Food Safety Modernization Act........... 196
1988 Procedures for handling retaliation
complaints under section 31307 of the
Moving Ahead for Progress in the 21st
Century Act (MAP-21).................... 205
1990 Identification, classification, and
regulation of potential occupational
carcinogens............................. 214
1991-1999
[Reserved]
[[Page 7]]
PART 1927 [RESERVED]
PART 1928_OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE--
Table of Contents
Subpart A_General
Sec.
1928.1 Purpose and scope.
Subpart B_Applicability of Standards
1928.21 Applicable standards in 29 CFR part 1910.
Subpart C_Roll-Over Protective Structures
1928.51 Roll-over protective structures (ROPS) for tractors, used in
agricultural operations.
1928.52 Protective frames for wheel-type agricultural tractors--test
procedures and performance requirements.
1928.53 Protective enclosures for wheel-type agricultural tractors--test
procedures and performance requirements.
Appendix A to Subpart C of Part 1928--Employee Operating Instructions
Appendix B to Subpart C of Part 1928--Figures C-1 through C-16
Subpart D_Safety for Agricultural Equipment
1928.57 Guarding of farm field equipment, farmstead equipment, and
cotton gins.
Subparts E-H [Reserved]
Subpart I_General Environmental Controls
1928.110 Field sanitation.
Subparts J-L [Reserved]
Subpart M_Occupational Health
1928.1027 Cadmium.
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); and Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-
90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR
65008), or 4-2010 (75 FR 55355), as applicable; and 29 CFR 1911.
Section 1928.21 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C.
533.
Source: 40 FR 18257, Apr. 25, 1975, unless otherwise noted.
Subpart A_General
Sec. 1928.1 Purpose and scope.
This part contains occupational safety and health standards
applicable to agricultural operations.
Subpart B_Applicability of Standards
Sec. 1928.21 Applicable standards in 29 CFR part 1910.
(a) The following standards in part 1910 of this chapter shall apply
to agricultural operations:
(1) Temporary labor camps--Sec. 1910.142;
(2) Storage and handling of anhydrous ammonia--Sec. 1910.111 (a)
and (b);
(3) Logging operations--Sec. 1910.266;
(4) Slow-moving vehicles--Sec. 1910.145;
(5) Hazard communication--Sec. 1910.1200;
(6) Cadmium--Sec. 1910.1027.
(7) Retention of DOT markings, placards and labels--Sec. 1910.1201.
(b) Except to the extent specified in paragraph (a) of this section,
the standards contained in subparts B through T and subpart Z of part
1910 of this title do not apply to agricultural operations.
(Section 1928.21 contains a collection of information which has been
approved by the Office of Management and Budget under OMB control number
1218-0072)
[40 FR 18257, Apr. 25, 1975, as amended at 42 FR 38569, July 29, 1977;
52 FR 31886, Aug. 24, 1987; 59 FR 36700, July 19, 1994; 59 FR 51748,
Oct. 12, 1994; 61 FR 5510, Feb. 13, 1996; 61 FR 9255, Mar. 7, 1996]
Subpart C_Roll-Over Protective Structures
Sec. 1928.51 Roll-over protective structures (ROPS) for tractors
used in agricultural operations.
(a) Definitions. As used in this subpart--
Agricultural tractor means a two-or four-wheel drive type vehicle,
or track vehicle, of more than 20 engine horsepower, designed to furnish
the power to pull, carry, propel, or drive implements that are designed
for agriculture. All self-propelled implements are excluded.
[[Page 8]]
Low profile tractor means a wheeled tractor possessing the following
characteristics:
(1) The front wheel spacing is equal to the rear wheel spacing, as
measured from the centerline of each right wheel to the centerline of
the corresponding left wheel.
(2) The clearance from the bottom of the tractor chassis to the
ground does not exceed 18 inches.
(3) The highest point of the hood does not exceed 60 inches, and
(4) The tractor is designed so that the operator straddles the
transmission when seated.
Tractor weight includes the protective frame or enclosure, all
fuels, and other components required for normal use of the tractor.
Ballast shall be added as necessary to achieve a minimum total weight of
110 lb. (50.0 kg.) per maximum power take-off horsepower at the rated
engine speed or the maximum gross vehicle weight specified by the
manufacturer, whichever is the greatest. Front end weight shall be at
least 25 percent of the tractor test weight. In case power take-off
horsepower is not available, 95 percent of net engine flywheel
horsepower shall be used.
(b) General requirements. Agricultural tractors manufactured after
October 25, 1976, shall meet the following requirements:
(1) Roll-over protective structures (ROPS). ROPS shall be provided
by the employer for each tractor operated by an employee. Except as
provided in paragraph (b)(5) of this section, a ROPS used on wheel-type
tractors shall meet the test and performance requirements of 29 CFR
1928.52, 1928.53, or 1926.1002 as appropriate. A ROPS used on track-type
tractors shall meet the test and performance requirements of 29 CFR
1926.1001.
(2) Seatbelts. (i) Where ROPS are required by this section, the
employer shall:
(A) Provide each tractor with a seatbelt which meets the
requirements of this paragraph;
(B) Ensure that each employee uses such seatbelt while the tractor
is moving; and
(C) Ensure that each employee tightens the seatbelt sufficiently to
confine the employee to the protected area provided by the ROPS.
(ii) Each seatbelt shall meet the requirements set forth in Society
of Automotive Engineers Standard SAE J4C, 1965 Motor Vehicle Seat Belt
Assemblies, \2\ except as noted hereafter:
---------------------------------------------------------------------------
\2\ Copies may be obtained from the Society of Automotive Engineers,
400 Commonwealth Drive, Warrendale, PA 15096.
---------------------------------------------------------------------------
(A) Where a suspended seat is used, the seatbelt shall be fastened
to the movable portion of the seat to accommodate a ride motion of the
operator.
(B) The seatbelt anchorage shall be capable of withstanding a static
tensile load of 1,000 pounds (453.6 kg) at 45 degrees to the horizontal
equally divided between the anchorages. The seat mounting shall be
capable of withstanding this load plus a load equal to four times the
weight of all applicable seat components applied at 45 degrees to the
horizontal in a forward and upward direction. In addition, the seat
mounting shall be capable of withstanding a 500 pound (226.8 kg) belt
load plus two times the weight of all applicable seat components both
applied at 45 degrees to the horizontal in and upward and rearward
direction. Floor and seat deformation is acceptable provided there is
not structural failure or release of the seat adjusted mechanism or
other locking device.
(C) The seatbelt webbing material shall have a resistance to acids,
alkalies, mildew, aging, moisture, and sunlight equal to or better than
that of untreated polyester fiber.
(3) Protection from spillage. Batteries, fuel tanks, oil reservoirs,
and coolant systems shall be constructed and located or sealed to assure
that spillage will not occur which may come in contact with the operator
in the event of an upset.
(4) Protection from sharp surfaces. All sharp edges and corners at
the operator's station shall be designed to minimize operator injury in
the event of an upset.
(5) Exempted uses. Paragraphs (b)(1) and (b)(2) of this section do
not apply to the following uses:
(i) Low profile tractors while they are used in orchards, vineyards
or hop
[[Page 9]]
yards where the vertical clearance requirements would substantially
interfere with normal operations, and while their use is incidental to
the work performed therein.
(ii) Low profile tractors while used inside a farm building or
greenhouse in which the vertical clearance is insufficient to allow a
ROPS equipped tractor to operate, and while their use is incidental to
the work performed therein.
(iii) Tractors while used with mounted equipment which is
incompatible with ROPS (e.g. cornpickers, cotton strippers, vegetable
pickers and fruit harvesters).
(6) Remounting. Where ROPS are removed for any reason, they shall be
remounted so as to meet the requirements of this paragraph.
(c) Labeling. Each ROPS shall have a label, permanently affixed to
the structure, which states:
(1) Manufacturer's or fabricator's name and address;
(2) ROPS model number, if any;
(3) Tractor makes, models, or series numbers that the structure is
designed to fit; and
(4) That the ROPS model was tested in accordance with the
requirements of this subpart.
(d) Operating instructions. Every employee who operates an
agricultural tractor shall be informed of the operating practices
contained in appendix A of this part and of any other practices dictated
by the work environment. Such information shall be provided at the time
of initial assignment and at least annually thereafter.
[40 FR 18257, Apr. 25, 1975, as amended at 61 FR 9255, Mar. 7, 1996; 69
FR 18803, Apr. 9, 2004; 70 FR 77003, Dec. 29, 2005]
Sec. 1928.52 Protective frames for wheel-type agricultural tractors--
test procedures and performance requirements.
(a) Purpose. The purpose of this section is to establish the test
and performance requirements for a protective frame designed for wheel-
type agricultural tractors to minimize the frequency and severity of
operator injury resulting from accidental upsets. General requirements
for the protection of operators are specified in 29 CFR 1928.51.
(b) Types of tests. All protective frames for wheel-type
agricultural tractors shall be of a model that has been tested as
follows:
(1) Laboratory test. A laboratory energy-absorption test, either
static or dynamic, under repeatable and controlled loading, to permit
analysis of the protective frame for compliance with the performance
requirements of this standard.
(2) Field-upset test. A field-upset test under controlled
conditions, both to the side and rear, to verify the effectiveness of
the protective system under actual dynamic conditions. Such testing may
be omitted when:
(i) The analysis of the protective-frame static-energy absorption
test results indicates that both FERis and FERir
(as defined in paragraph (d)(2)(ii) of this section) exceed 1.15; or
(ii) The analysis of the protective-frame dynamic-energy absorption
test results indicates that the frame can withstand an impact of 15
percent greater than the impact it is required to withstand for the
tractor weight as shown in Figure C-7.
(c) Descriptions--(1) Protective frame. A protective frame is a
structure comprised of uprights mounted to the tractor, extending above
the operator's seat. A typical two-post frame is shown in Figure C-1.
(2) Overhead weather shield. When an overhead weather shield is
available for attachment to the protective frame, it may be in place
during tests provided it does not contribute to the strength of the
protective frame.
(3) Overhead falling object protection. When an overhead falling-
object protection device is available for attachment to the protective
frame, it may be in place during tests provided it does not contribute
to the strength of the protective frame.
(d) Test procedures--(1) General. (i) The tractor weight used shall
be that of the heaviest tractor model on which the protective frame is
to be used.
(ii) Each test required under this section shall be performed on a
new protective frame. Mounting connections of the same design shall be
used during each such test.
[[Page 10]]
(iii) Instantaneous deflection shall be measured and recorded for
each segment of the test; see paragraph (e)(1)(i) of this section for
permissible deflections.
(iv) The seat-reference point (``SRP'') in Figure C-3 is that point
where the vertical line that is tangent to the most forward point at the
longitudinal seat centerline of the seat back, and the horizontal line
that is tangent to the highest point of the seat cushion, intersect in
the longitudinal seat section. The seat-reference point shall be
determined with the seat unloaded and adjusted to the highest and most
rearward position provided for seated operation of the tractor.
(v) When the centerline of the seat is off the longitudinal center,
the frame loading shall be on the side with the least space between the
centerline of seat and the protective frame.
(vi) Low-temperature characteristics of the protective frame or its
material shall be demonstrated as specified in paragraph (e)(1)(ii) of
this section.
(vii) Rear input energy tests (static, dynamic, or field-upset) need
not be performed on frames mounted to tractors having four driven wheels
and more than one-half their unballasted weight on the front wheels.
(viii) Accuracy table:
------------------------------------------------------------------------
Measurements Accuracy
------------------------------------------------------------------------
Deflection of the frame, in. (mm)......... 5
percent of the deflection
measured.
Vertical weight, lb (kg).................. 5
percent of the weight
measured.
Force applied to the frame, pounds force 5
(newtons). percent of the force
measured.
Dimensions of the critical zone, in. (mm). 0.5
in. (12.5 mm).
------------------------------------------------------------------------
(2) Static test procedure. (i) The following test conditions shall
be met:
(A) The laboratory mounting base shall be the tractor chassis for
which the protective frame is designed, or its equivalent;
(B) The protective frame shall be instrumented with the necessary
equipment to obtain the required load-deflection data at the locations
and directions specified in Figures C-2 and C-3; and
(C) When the protective frame is of a one- or two-upright design,
mounting connections shall be instrumented with the necessary equipment
to record the required force to be used in paragraph (d)(2)(iii)(E) and
(J) of this section. Instrumentation shall be placed on mounting
connections before installation load is applied.
(ii) The following definitions shall apply:
W = Tractor weight (see 29 CFR 1928.51(a)) in lb (W' in kg);
Eis = Energy input to be absorbed during side loading in ft-lb (E'is in
J [joules]);
Eis = 723 + 0.4 W (E'is = 100 + 0.12 W');
Eir = Energy input to be absorbed during rear loading in ft-lb (E'ir in
J);
Eir = 0.47 W (E'ir = 0.14 W');
L = Static load, lbf [pounds force], (N) [newtons];
D = Deflection under L, in. (mm);
L-D = Static load-deflection diagram;
Lmax = Maximum observed static load;
Load Limit = Point on a continuous L-D curve where the observed static
load is 0.8 Lmax on the down slope of the curve (see Figure C-
5);
Eu = Strain energy absorbed by the frame in ft-lb (J); area under the L-
D curve;
FER = Factor of energy ratio;
FERis = EuEis;
FERir = EuEir;
Pb = Maximum observed force in mounting connection under a static load,
L lbf (N);
Pu = Ultimate force capacity of a mounting connection, lbf (N);
FSB = Design margin for a mounting connection; and
FSB = Pu/Pb
(iii) The test procedures shall be as follows:
(A) Apply the rear load according to Figure C-3, and record L and D
simultaneously. Rear-load application shall be distributed uniformly on
the frame over an area perpendicular to the direction of load
application, no greater than 160 sq. in. (1,032 sq. cm) in size, with
the largest dimension no greater than 27 in. (686 mm). The load shall be
applied to the upper extremity of the frame at the point that is midway
between the center of the frame and the inside of the frame upright.
When no structural cross member exists at the rear of the frame, a
substitute test beam that does not add strength to the frame may be used
to complete this test procedure. The test shall be stopped when:
(1) The strain energy absorbed by the frame is equal to or greater
than the required input energy Eir; or
[[Page 11]]
(2) Deflection of the frame exceeds the allowable deflection (see
paragraph (e)(1)(i) of this section); or
(3) Frame load limit occurs before the allowable deflection is
reached in rear load (see Figure C-5).
(B) Using data obtained under paragraph (d)(2)(iii)(A) of this
section, construct the L-D diagram shown in Figure C-5;
(C) Calculate Eir;
(D) Calculate FERir;
(E) Calculate FSB as required by paragraph (d)(2)(i)(C) of this
section;
(F) Apply the side-load tests on the same frame, and record L and D
simultaneously. Side-load application shall be at the upper extremity of
the frame at a 90[deg] angle to the centerline of the vehicle. The side
load shall be applied to the longitudinal side farthest from the point
of rear-load application. Apply side load L as shown in Figure C-2. The
test shall be stopped when:
(1) The strain energy absorbed by the frame is equal to or greater
than the required input energy Eis; or
(2) Deflection of the frame exceeds the allowable deflection (see
paragraph (e)(1)(i) of this section); or
(3) Frame load limit occurs before the allowable deflection is
reached in side load (see Figure C-5).
(G) Using data obtained in paragraph (d)(2)(iii)(F) of this section,
construct the L-D diagram as shown in Figure C-5;
(H) Calculate Eis;
(I) Calculate FERis; and
(J) Calculate FSB as required by paragraph (d)(2)(i)(C) of this
section.
(3) Dynamic test procedure. (i) The following test conditions shall
be met:
(A) The protective frame and tractor shall be tested at the weight
defined by 29 CFR 1928.51(a);
(B) The dynamic loading shall be accomplished by using a 4,410-lb
(2,000-kg) weight acting as a pendulum. The impact face of the weight
shall be 27 1 in. by 27 1
in. (686 25 mm by 686 25
mm), and shall be constructed so that its center of gravity is within
1.0 in. (25.4 mm) of its geometric center. The weight shall be suspended
from a pivot point 18 to 22 ft (5.5 to 6.7 m) above the point of impact
on the frame, and shall be conveniently and safely adjustable for height
(see Figure C-6);
(C) For each phase of testing, the tractor shall be restrained from
moving when the dynamic load is applied. The restraining members shall
have strength no less than, and elasticity no greater than, that of
0.50-in. (12.7-mm) steel cable. Points of attachment for the restraining
members shall be located an appropriate distance behind the rear axle
and in front of the front axle to provide a 15[deg] to 30[deg] angle
between a restraining cable and the horizontal. For impact from the
rear, the restraining cables shall be located in the plane in which the
center of gravity of the pendulum will swing, or alternatively, two sets
of symmetrically located cables may be used at lateral locations on the
tractor. For impact from the side, restraining cables shall be used as
shown in Figures C-8 and C-9;
(D) The front and rear wheel-tread settings, when adjustable, shall
be at the position nearest to halfway between the minimum and maximum
settings obtainable on the vehicle. When only two settings are
obtainable, the minimum setting shall be used. The tires shall have no
liquid ballast, and shall be inflated to the maximum operating pressure
recommended by the manufacturer. With the specified tire inflation, the
restraining cable shall be tightened to provide tire deflection of 6 to
8 percent of the nominal tire-section width. After the vehicle is
restrained properly, a wooden beam no less than 6-in. x 6-in. (150-mm x
150-mm) in cross section shall be driven tightly against the appropriate
wheels and clamped. For the test to the side, an additional wooden beam
shall be placed as a prop against the wheel nearest to the operator's
station, and shall be secured to the base so that it is held tightly
against the wheel rim during impact. The length of this beam shall be
chosen so that it is at an angle of 25[deg] to 40[deg] to the horizontal
when it is positioned against the wheel rim. It shall have a length 20
to 25 times its depth, and a width two to three times its depth (see
Figures C-8 and C-9);
(E) Means shall be provided for indicating the maximum instantaneous
deflection along the line of impact. A simple friction device is
illustrated in Figure C-4;
[[Page 12]]
(F) No repairs or adjustments shall be made during the test; and
(G) When any cables, props, or blocking shift or break during the
test, the test shall be repeated.
(ii) H = Vertical height of the center of gravity of a 4,410-lb
(2,000-kg) weight in in. (H' in mm). The weight shall be pulled back so
that the height of its center of gravity above the point of impact is: H
= 4.92 + 0.00190 W (H' = 125 0.170 W') (see Figure
C-7).
(iii) The test procedures shall be as follows:
(A) The frame shall be evaluated by imposing dynamic loading from
the rear, followed by a load to the side on the same frame. The pendulum
swinging from the height determined by paragraph (d)(3)(ii) of this
section shall be used to impose the dynamic load. The position of the
pendulum shall be so selected that the initial point of impact on the
frame is in line with the arc of travel of the center of gravity of the
pendulum. When a quick-release mechanism is used, it shall not influence
the attitude of the block;
(B) Impact at rear. The tractor shall be restrained properly
according to paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section.
The tractor shall be positioned with respect to the pivot point of the
pendulum so that the pendulum is 20[deg] from the vertical prior to
impact as shown in Figure C-8. The impact shall be applied to the upper
extremity of the frame at the point that is midway between the
centerline of the frame and the inside of the frame upright. When no
structural cross member exists at the rear of the frame, a substitute
test beam that does not add to the strength of the frame may be used to
complete the test procedure; and
(C) Impact at side. The blocking and restraining shall conform to
paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section. The center
point of impact shall be at the upper extremity of the frame at a point
most likely to hit the ground first, and at a 90[deg] to the centerline
of the vehicle (see Figure C-9). The side impact shall be applied to the
longitudinal side farthest from the point of rear impact.
(4) Field-upset test procedure. (i) The following test conditions
shall be met:
(A) The tractor shall be tested at the weight defined in 29 CFR
1928.51(a);
(B) The following provisions address soil bank test conditions.
(1) The test shall be conducted on a dry, firm soil bank. The soil
in the impact area shall have an average cone index in the 0-in. to 6-
in. (0-mm to 152-mm) layer of not less than 150. Cone index shall be
determined according to American Society of Agricultural Engineers
(``ASAE'') recommendation ASAE R313.1-1971 (``Soil cone penetrometer''),
as reconfirmed in 1975, which is incorporated by reference. The
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The path
of vehicle travel shall be 12[deg] 2[deg] to the
top edge of the bank.
(2) ASAE recommendation R313.1-1971, as reconfirmed in 1975, appears
in the 1977 Agricultural Engineers Yearbook, or it may be examined at:
Any OSHA Regional Office; the OSHA Docket Office, U.S. Department of
Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210
(telephone: (202) 693-2350 (TTY number: (877) 889-5627)); or the
National Archives and Records Administration (``NARA''). (For
information on the availability of this material at NARA, telephone
(202) 741-6030 or access the NARA Web site at http://www.archives.gov/
federal_register/code_of_federal_regulations/ibr_locations.html.) Copies
may be purchased from the American Society of Agricultural Engineers,
2950 Niles Road, St. Joseph, MI 49085.
(C) An 18-in. (457-mm) high ramp (see Figure C-10) shall be used to
assist in upsetting the vehicle to the side; and
(D) The front and rear wheel-tread settings, when adjustable, shall
be at the position nearest to halfway between the minimum and maximum
settings obtainable on the vehicle. When only two settings are
obtainable, the minimum setting shall be used.
(ii) Field upsets shall be induced to the rear and side as follows:
(A) Rear upset shall be induced by engine power, with the tractor
operating in gear to obtain 3 to 5 mph (4.8 to 8.0 kph) at maximum
governed engine rpm by driving forward directly up
[[Page 13]]
a minimum slope of 60[deg] 5[deg] as shown in
Figure C-11, or by an alternative equivalent means. The engine clutch
may be used to aid in inducing the upset; and
(B) To induce side upset, the tractor shall be driven under its own
power along the specified path of travel at a minimum speed of 10 mph
(16 kph), or at maximum vehicle speed when under 10 mph (16 kph), and
over the ramp as described in paragraph (d)(4)(i)(C) of this section.
(e) Performance requirements--(1) General requirements. (i) The
frame, overhead weather shield, fenders, or other parts in the operator
area may be deformed in these tests, but shall not shatter or leave
sharp edges exposed to the operator, or encroach on the dimensions shown
in Figures C-2 and C-3, and specified as follows:
d = 2 in. (51 mm) inside of the frame upright to the vertical centerline
of the seat;
e = 30 in. (762 mm) at the longitudinal centerline;
f = Not greater than 4 in. (102 mm) to the rear edge of the crossbar,
measured forward of the seat-reference point (``SRP'');
g = 24 in. (610 mm) minimum; and
m = Not greater than 12 in. (305 mm), measured from the seat-reference
point to the forward edge of the crossbar.
(ii) The protective structure and connecting fasteners must pass the
static or dynamic tests described in paragraphs (d)(2), (d)(3), or
(d)(4) of this section at a metal temperature of 0 [deg]F (-18 [deg]C)
or below, or exhibit Charpy V-notch impact strengths as follows:
10-mm x 10-mm (0.394-in. x 0.394-in.) specimen: 8.0 ft-lb (10.8 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 7.5-mm (0.394-in. x 0.296-in.) specimen: 7.0 ft-lb (9.5 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 5-mm (0.394-in. x 0.197-in.) specimen: 5.5 ft-lb (7.5 J) at -20
[deg]F (-30 [deg]C); or
10-mm x 2.5-mm (0.394-in. x 0.098-in.) specimen: 4.0 ft-lb (5.5 J) at -
20 [deg]F (-30 [deg]C).
Specimens shall be longitudinal and taken from flat stock, tubular, or
structural sections before forming or welding for use in the frame.
Specimens from tubular or structural sections shall be taken from the
middle of the side of greatest dimension, not to include welds.
(2) Static test-performance requirements. In addition to meeting the
requirements of paragraph (e)(1) of this section for both side and rear
loads, FERis and FERir, shall be greater than 1.0, and when the ROPS
contains one or two upright frames only, FSB shall be greater than 1.3.
(3) Dynamic test-performance requirements. The structural
requirements shall be met when the dimensions in paragraph (e)(1) of
this section are used in both side and rear loads.
(4) Field-upset test performance requirements. The requirements of
paragraph (e)(1) of this section shall be met for both side and rear
upsets.
[70 FR 77004, Dec. 29, 2005]
Sec. 1928.53 Protective enclosures for wheel-type agricultural tractors--
test procedures and performance requirements.
(a) Purpose. The purpose of this section is to establish the test
and performance requirements for a protective enclosure designed for
wheel-type agricultural tractors to minimize the frequency and severity
of operator injury resulting from accidental upset. General requirements
for the protection of operators are specified in 29 CFR 1928.51.
(b) Types of tests. All protective enclosures for wheel-type
agricultural tractors shall be of a model that has been tested as
follows:
(1) Laboratory test. A laboratory energy-absorption test, either
static or dynamic, under repeatable and controlled loading, to permit
analysis of the protective enclosure for compliance with the performance
requirements of this standard; and
(2) Field-upset test. A field-upset test under controlled
conditions, both to the side and rear, to verify the effectiveness of
the protective system under actual dynamic conditions. This test may be
omitted when:
(i) The analysis of the protective-frame static-energy absorption
test results indicates that both FERis and FERir (as defined in
paragraph (d)(2)(ii) of this section) exceed 1.15; or
(ii) The analysis of the protective-frame dynamic-energy absorption
test results indicates that the frame can withstand an impact 15 percent
greater than the impact it is required to withstand for the tractor
weight as shown in Figure C-7.
(c) Description. A protective enclosure is a structure comprising a
frame and/
[[Page 14]]
or enclosure mounted to the tractor. A typical enclosure is shown in
Figure C-12.
(d) Test procedures--(1) General. (i) The tractor weight used shall
be that of the heaviest tractor model on which the protective enclosure
is to be used.
(ii) Each test required under this section shall be performed on a
protective enclosure with new structural members. Mounting connections
of the same design shall be used during each test.
(iii) Instantaneous deflection shall be measured and recorded for
each segment of the test; see paragraph (e)(1)(i) of this section for
permissible deflections.
(iv) The seat-reference point (``SRP'') in Figure C-14 is that point
where the vertical line that is tangent to the most forward point at the
longitudinal seat centerline of the seat back, and the horizontal line
that is tangent to the highest point of the seat cushion, intersect in
the longitudinal seat section. The seat-reference point shall be
determined with the seat unloaded and adjusted to the highest and most
rearward position provided for seated operations of the tractor.
(v) When the centerline of the seat is off the longitudinal center,
the protective-enclosure loading shall be on the side with least space
between the centerline of the seat and the protective enclosure.
(vi) Low-temperature characteristics of the protective enclosure or
its material shall be demonstrated as specified in paragraph (e)(1)(ii)
of this section.
(vii) Rear input energy tests (static, dynamic, or field-upset) need
not be performed on enclosures mounted to tractors having four driven
wheels and more than one-half their unballasted weight on the front
wheels.
(viii) Accuracy table:
------------------------------------------------------------------------
Measurements Accuracy
------------------------------------------------------------------------
Deflection of the enclosure, in. (mm)..... 5
percent of the deflection
measured.
Vertical weight, pounds (kg).............. 5
percent of the weight
measured.
Force applied to the enclosure, pounds 5
force (newtons). percent of the force
measured.
Dimensions of the critical zone, in. (mm). 0.5
in. (12.5 mm).
------------------------------------------------------------------------
(ix) When movable or normally removable portions of the enclosure
add to structural strength, they shall be placed in configurations that
contribute least to structural strength during the test.
(2) Static test procedure. (i) The following test conditions shall
be met:
(A) The laboratory mounting base shall be the tractor chassis for
which the protective enclosure is designed, or its equivalent; and
(B) The protective enclosure shall be instrumented with the
necessary equipment to obtain the required load-deflection data at the
locations and directions specified in Figures C-13 and C-14.
(ii) The following definitions shall apply:
W = Tractor weight (see 29 CFR 1928.51(a)) in lb (W'' in kg);
Eis = Energy input to be absorbed during side loading in ft-lb (E''is in
J [joules]);
Eis = 723 + 0.4 W (E''is = 100 + 0.12 W'');
Eir = Energy input to be absorbed during rear loading in ft-lb (E''ir in
J);
Eir = 0.47 W (E''ir = 0.14 W'');
L = Static load, lbf [pounds force], (N) [newtons];
D = Deflection under L, in. (mm);
L-D = Static load-deflection diagram;
Lmax = Maximum observed static load;
Load Limit = Point on a continuous L-D curve where the observed static
load is 0.8 Lmax on the down slope of the curve (see Figure C-
5);
Eu = Strain energy absorbed by the protective enclosure in ft-lbs (J);
area under the L-D curve;
FER = Factor of energy ratio;
FERis = Eu/Eis; and
FERir = Eu/Eir.
(iii) The test procedures shall be as follows:
(A) When the protective-frame structures are not an integral part of
the enclosure, the direction and point of load application for both side
and rear shall be the same as specified in 29 CFR 1928.52(d)(2);
(B) When the protective-frame structures are an integral part of the
enclosure, apply the rear load according to Figure C-14, and record L
and D simultaneously. Rear-load application shall be distributed
uniformly on the frame structure over an area perpendicular to the load
application, no greater than 160 sq. in. (1,032 sq. cm) in size, with
the largest dimension no greater than 27
[[Page 15]]
in. (686 mm). The load shall be applied to the upper extremity of the
structure at the point that is midway between the centerline of the
protective enclosure and the inside of the protective structure. When no
structural cross member exists at the rear of the enclosure, a
substitute test beam that does not add strength to the structure may be
used to complete this test procedure. The test shall be stopped when:
(1) The strain energy absorbed by the structure is equal to or
greater than the required input energy Eir; or
(2) Deflection of the structure exceeds the allowable deflection
(see paragraph (e)(1)(i) of this section); or
(3) The structure load limit occurs before the allowable deflection
is reached in rear load (see Figure C-5);
(C) Using data obtained in paragraph (d)(2)(iii)(B) of this section,
construct the L-D diagram for rear loads as shown in Figure C-5;
(D) Calculate Eir;
(E) Calculate FERir;
(F) When the protective-frame structures are an integral part of the
enclosure, apply the side load according to Figure C-13, and record L
and D simultaneously. Static side-load application shall be distributed
uniformly on the frame over an area perpendicular to the direction of
load application, and no greater than 160 sq. in. (1,032 sq. cm) in
size, with the largest dimension no greater than 27 in. (686 mm). Side-
load application shall be at a 90[deg] angle to the centerline of the
vehicle. The center of the side-load application shall be located
between point k, 24 in. (610 mm) forward of the seat-reference point,
and point l, 12 in. (305 mm) rearward of the seat-reference point, to
best use the structural strength (see Figure C-13). This side load shall
be applied to the longitudinal side farthest from the point of rear-load
application. The test shall be stopped when:
(1) The strain energy absorbed by the structure is equal to or
greater than the required input energy Eis; or
(2) Deflection of the structure exceeds the allowable deflection
(see paragraph (e)(1)(i) of this section); or
(3) The structure load limit occurs before the allowable deflection
is reached in side load (see Figure C-5);
(G) Using data obtained in paragraph (d)(2)(iii)(F) of this section,
construct the L-D diagram for the side load as shown in Figure C-5;
(H) Calculate FERis; and
(I) Calculate FERir.
(3) Dynamic test procedure. (i) The following test conditions shall
be met:
(A) The protective enclosure and tractor shall be tested at the
weight defined by 29 CFR 1928.51(a);
(B) The dynamic loading shall be accomplished by using a 4,410-lb
(2,000-kg) weight acting as a pendulum. The impact face of the weight
shall be 27 1 in. by 27 1
in. (686 25 mm by 686 25
mm), and shall be constructed so that its center of gravity is within
1.0 in. (25.4 mm) of its geometric center. The weight shall be suspended
from a pivot point 18 to 22 ft (5.5 to 6.7 m) above the point of impact
on the enclosure, and shall be conveniently and safely adjustable for
height (see Figure C-6);
(C) For each phase of testing, the tractor shall be restrained from
moving when the dynamic load is applied. The restraining members shall
have strength no less than, and elasticity no greater than, that of
0.50-in. (12.7-mm) steel cable. Points of attachment for the restraining
members shall be located an appropriate distance behind the rear axle
and in front of the front axle to provide a 15[deg] to 30[deg] angle
between the restraining cable and the horizontal. For impact from the
rear, the restraining cables shall be located in the plane in which the
center of gravity of the pendulum will swing, or alternatively, two sets
of symmetrically located cables may be used at lateral locations on the
tractor. For the impact from the side, restraining cables shall be used
as shown in Figures C-15 and C-16;
(D) The front and rear wheel-tread settings, when adjustable, shall
be at the position nearest to halfway between the minimum and maximum
settings obtainable on the vehicle. When only two settings are
obtainable, the minimum setting shall be used. The tires shall have no
liquid ballast, and shall be inflated to the maximum operating pressure
recommended by the manufacturer. With specified tire inflation, the
restraining cable shall be tightened to provide tire deflection of 6
[[Page 16]]
to 8 percent of nominal tire section width. After the vehicle is
retrained properly, a wooden beam no smaller than 6-in. x 6-in. (150-mm
x 150-mm) cross-section shall be driven tightly against the appropriate
wheels and clamped. For the test to the side, an additional wooden beam
shall be placed as a prop against the wheel nearest the operator's
station, and shall be secured to the base so that it is held tightly
against the wheel rim during impact. The length of this beam shall be
chosen so that it is at an angle of 25[deg] to 40[deg] to the horizontal
when it is positioned against the wheel rim. It shall have a length 20
to 25 times its depth, and a width two to three times its depth (see
Figures C-15 and C-16);
(E) Means shall be provided for indicating the maximum instantaneous
deflection along the line of impact. A simple friction device is
illustrated in Figure C-4;
(F) No repair or adjustments shall be made during the test; and
(G) When any cables, props, or blocking shift or break during the
test, the test shall be repeated.
(ii) H = Vertical height of the center of gravity of a 4,410-lb
(2,000-kg) weight in in. (H' in mm). The weight shall be pulled back so
that the height of its center of gravity above the point of impact is: H
= 4.92 + 0.00190 W (H' = 125 + 0.107 W') (see Figure C-7).
(iii) The test procedures shall be as follows:
(A) The enclosure structure shall be evaluated by imposing dynamic
loading from the rear, followed by a load to the side on the same
enclosure structure. The pendulum swinging from the height determined by
paragraph (d)(3)(ii) of this section shall be used to impose the dynamic
load. The position of the pendulum shall be so selected that the initial
point of impact on the protective structure is in line with the arc of
travel of the center of gravity of the pendulum. When a quick-release
mechanism is used, it shall not influence the attitude of the block;
(B) Impact at rear. The tractor shall be restrained properly
according to paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section.
The tractor shall be positioned with respect to the pivot point of the
pendulum so that the pendulum is 20[deg] from the vertical prior to
impact as shown in Figure C-15. The impact shall be applied to the upper
extremity of the enclosure structure at the point that is midway between
the centerline of the enclosure structure and the inside of the
protective structure. When no structural cross member exists at the rear
of the enclosure structure, a substitute test beam that does not add to
the strength of the structure may be used to complete the test
procedure; and
(C) Impact at side. The blocking and restraining shall conform to
paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section. The center
point of impact shall be at the upper extremity of the enclosure at a
90[deg] angle to the centerline of the vehicle, and located between a
point k, 24 in. (610 mm) forward of the seat-reference point, and a
point l, 12 in. (305 mm) rearward of the seat-reference point, to best
use the structural strength (see Figure C-13). The side impact shall be
applied to the longitudinal side farthest from the point of rear impact.
(4) Field-upset test procedure. (i) The following test conditions
shall be met:
(A) The tractor shall be tested at the weight defined in 29 CFR
1928.51(a);
(B) The following provisions address soil bank test conditions.
(1) The test shall be conducted on a dry, firm soil bank. The soil
in the impact area shall have an average cone index in the 0-in. to 6-
in. (0-mm to 152-mm) layer of not less than 150. Cone index shall be
determined according to American Society of Agricultural Engineers
(``ASAE'') recommendation ASAE R313.1-1971 (``Soil cone penetrometer''),
as reconfirmed in 1975, which is incorporated by reference. The
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The path
of vehicle travel shall be 12[deg] 2[deg] to the
top edge of the bank.
(2) ASAE recommendation R313.1-1971, as reconfirmed in 1975, appears
in the 1977 Agricultural Engineers Yearbook, or it may be examined at:
Any OSHA Regional Office; the OSHA Docket Office, U.S. Department of
Labor, 200 Constitution Avenue, NW., Room
[[Page 17]]
N-2625, Washington, DC 20210 (telephone: (202) 693-2350 (TTY number:
(877) 889-5627)); or the National Archives and Records Administration
(``NARA''). (For information on the availability of this material at
NARA, telephone (202) 741-6030 or access the NARA Web site at http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.) Copies may be purchased from the American Society
of Agricultural Engineers 2950 Niles Road, St. Joseph, MI 49085.
(C) An 18-in. (457 mm) high ramp (see Figure C-10) shall be used to
assist in upsetting the vehicle to the side; and
(D) The front and rear wheel-tread settings, when adjustable, shall
be at the position nearest to halfway between the minimum and maximum
settings obtainable on the vehicle. When only two settings are
obtainable, the minimum setting shall be used.
(ii) Field upsets shall be induced to the rear and side.
(A) Rear upset shall be induced by engine power, with the tractor
operating in gear to obtain 3 to 5 mph (4.8 to 8.0 kph) at maximum
governed engine rpm by driving forward directly up a minimum slope of
60[deg] 5[deg] as shown in Figure C-11, or by an
alternate equivalent means. The engine clutch may be used to aid in
inducing the upset; and
(B) To induce side upset, the tractor shall be driven under its own
power along the specified path of travel at a minimum speed of 10 mph
(16 kph), or at maximum vehicle speed when under 10 mph (16 kph), and
over the ramp as described in paragraph (d)(4)(i)(C) of this section.
(e) Performance requirements--(1) General requirements. (i) The
protective enclosure structural members or other parts in the operator
area may be deformed in these tests, but shall not shatter or leave
sharp edges exposed to the operator. They shall not encroach on a
transverse plane passing through points d and f within the projected
area defined by dimensions d, e, and g, or on the dimensions shown in
Figures C-13 and C-14, as follows:
d = 2 in. (51 mm) inside of the protective structure to the vertical
centerline of the seat;
e = 30 in. (762 mm) at the longitudinal centerline;
f = Not greater than 4 in. (102 mm) measured forward of the seat-
reference point (``SRP'') at the longitudinal centerline as
shown in Figure C-14;
g = 24 in. (610 mm) minimum;
h = 17.5 in. (445 mm) minimum; and
j = 2.0 in. (51 mm) measured from the outer periphery of the steering
wheel.
(ii) The protective structure and connecting fasteners must pass the
static or dynamic tests described in paragraphs (d)(2), (d)(3), or
(d)(4) of this section at a metal temperature of 0 [deg]F (-8 [deg]C) or
below, or exhibit Charpy V-notch impact strengths as follows:
10-mm x 10-mm (0.394-in. x 0.394-in.) specimen: 8.0 ft-lb (10.8 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 7.5-mm (0.394-in. x 0.296-in.) specimen: 7.0 ft-lb (9.5 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 5-mm (0.394-in. x 0.197-in.) specimen: 5.5 ft-lb (7.5 J) at -20
[deg]F (-30 [deg]C); or
10-mm x 2.5-mm (0.394-in. x 0.098-in.) specimen: 4.0 ft-lb (5.5 J) at -
20 [deg]F (-30 [deg]C).
Specimens shall be longitudinal and taken from flat stock, tubular,
or structural sections before forming or welding for use in the
protective enclosure. Specimens from tubular or structural sections
shall be taken from the middle of the side of greatest dimension, not to
include welds.
(iii) The following provisions address glazing requirements.
(A) Glazing shall conform to the requirements contained in Society
of Automotive Engineers (``SAE'') standard J674-1963 (``Safety glazing
materials''), which is incorporated by reference. The incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
(B) SAE standard J674-1963 appears in the 1965 SAE Handbook, or it
may be examined at: any OSHA Regional Office; the OSHA Docket Office,
U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625,
Washington, DC 20210 (telephone: (202) 693-2350 (TTY number: (877) 889-
5627)); or the National Archives and Records Administration (``NARA'').
(For information on the availability of this material at NARA, telephone
(202) 741-6030 or access the NARA Web site at http://www.archives.gov/
federal_register/code_of_federal_regulations/ibr_locations.html.) Copies
may be purchased from the Society of Automotive
[[Page 18]]
Engineers, 400 Commonwealth Drive, Warrendale, Pennsylvania 15096-0001.
(iv) Two or more operator exits shall be provided and positioned to
avoid the possibility of both being blocked by the same accident.
(2) Static test-performance requirements. In addition to meeting the
requirements of paragraph (e)(1) of this section for both side and rear
loads, FERis and FER ir shall be greater than 1.0.
(3) Dynamic test-performance requirements. The structural
requirements shall be met when the dimensions in paragraph (e)(1) of
this section are used in both side and rear loads.
(4) Field-upset test performance requirements. The requirements of
paragraph (e)(1) of this section shall be met for both side and rear
upsets.
[70 FR 77004, Dec. 29, 2005, as amended at 71 FR 41145, July 20, 2006]
Sec. Appendix A to Subpart C of Part 1928--Employee Operating
Instructions
1. Securely fasten your seat belt if the tractor has a ROPS.
2. Where possible, avoid operating the tractor near ditches,
embankments, and holes.
3. Reduce speed when turning, crossing slopes, and on rough, slick, or
muddy surfaces.
4. Stay off slopes too steep for safe operation.
5. Watch where you are going, especially at row ends, on roads, and
around trees.
6. Do not permit others to ride.
7. Operate the tractor smoothly--no jerky turns, starts, or stops.
8. Hitch only to the drawbar and hitch points recommended by tractor
manufacturers.
9. When tractor is stopped, set brakes securely and use park lock if
available.
Sec. Appendix B to Subpart C of Part 1928--Figures C-1 through C-16
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[[Page 33]]
[71 FR 41146, July 20, 2006]
Subpart D_Safety for Agricultural Equipment
Sec. 1928.57 Guarding of farm field equipment, farmstead equipment,
and cotton gins.
(a) General--(1) Purpose. The purpose of this section is to provide
for the protection of employees from the hazards associated with moving
machinery parts of farm field equipment, farmstead equipment, and cotton
gins used in any agricultural operation.
(2) Scope. Paragraph (a) of this section contains general
requirements which apply to all covered equipment. In addition,
paragraph (b) of this section applies to farm field equipment, paragraph
(c) of this section applies to farmstead equipment, and paragraph (d) of
this section applies to cotton gins.
(3) Application. This section applies to all farm field equipment,
farmstead equipment, and cotton gins, except that paragraphs (b)(2),
(b)(3), and (b)(4)(ii)(A), and (c)(2), (c)(3), and (c)(4)(ii)(A) do not
apply to equipment manufactured before October 25, 1976.
(4) Effective date. This section takes effect on October 25, 1976,
except that paragraph (d) of this section is effective on June 30, 1977.
(5) Definitions--Cotton gins are systems of machines which condition
seed cotton, separate lint from seed, convey materials, and package lint
cotton.
Farm field equipment means tractors or implements, including self-
propelled implements, or any combination thereof used in agricultural
operations.
Farmstead equipment means agricultural equipment normally used in a
stationary manner. This includes, but is not limited to, materials
handling equipment and accessories for such equipment whether or not the
equipment is an integral part of a building.
Ground driven components are components which are powered by the
turning motion of a wheel as the equipment travels over the ground.
A guard or shield is a barrier designed to protect against employee
contact with a hazard created by a moving machinery part.
Power take-off shafts are the shafts and knuckles between the
tractor, or other power source, and the first gear set, pulley,
sprocket, or other components on power take-off shaft driven equipment.
(6) Operating instructions. At the time of initial assignment and at
least annually thereafter, the employer shall instruct every employee in
the safe operation and servicing of all covered equipment with which he
is or will be involved, including at least the following safe operating
practices:
(i) Keep all guards in place when the machine is in operation;
(ii) Permit no riders on farm field equipment other than persons
required for instruction or assistance in machine operation;
(iii) Stop engine, disconnect the power source, and wait for all
machine movement to stop before servicing, adjusting, cleaning, or
unclogging the equipment, except where the machine must be running to be
properly serviced or maintained, in which case the employer shall
instruct employees as to all steps and procedures which are necessary to
safely service or maintain the equipment;
(iv) Make sure everyone is clear of machinery before starting the
engine, engaging power, or operating the machine;
(v) Lock out electrical power before performing maintenance or
service on farmstead equipment.
(7) Methods of guarding. Except as otherwise provided in this
subpart, each employer shall protect employees from coming into contact
with hazards created by moving machinery parts as follows:
(i) Through the installation and use of a guard or shield or
guarding by location;
(ii) Whenever a guard or shield or guarding by location is
infeasible, by using a guardrail or fence.
(8) Strength and design of guards. (i) Where guards are used to
provide the protection required by this section, they shall be designed
and located to protect against inadvertent contact with the hazard being
guarded.
(ii) Unless otherwise specified, each guard and its supports shall
be capable of withstanding the force that a 250
[[Page 34]]
pound individual, leaning on or falling against the guard, would exert
upon that guard.
(iii) Guards shall be free from burrs, sharp edges, and sharp
corners, and shall be securely fastened to the equipment or building.
(9) Guarding by location. A component is guarded by location during
operation, maintenance, or servicing when, because of its location, no
employee can inadvertently come in contact with the hazard during such
operation, maintenance, or servicing. Where the employer can show that
any exposure to hazards results from employee conduct which constitutes
an isolated and unforeseeable event, the component shall also be
considered guarded by location.
(10) Guarding by railings. Guardrails or fences shall be capable of
protecting against employees inadvertently entering the hazardous area.
(11) Servicing and maintenance. Whenever a moving machinery part
presents a hazard during servicing or maintenance, the engine shall be
stopped, the power source disconnected, and all machine movement stopped
before servicing or maintenance is performed, except where the employer
can establish that:
(i) The equipment must be running to be properly serviced or
maintained;
(ii) The equipment cannot be serviced or maintained while a guard or
guards otherwise required by this standard are in place; and
(iii) The servicing or maintenance can be safely performed.
(b) Farm field equipment--(1) Power take-off guarding. (i) All power
take-off shafts, including rear, mid- or side-mounted shafts, shall be
guarded either by a master shield, as provided in paragraph (b)(1)(ii)
of this section, or by other protective guarding.
(ii) All tractors shall be equipped with an agricultural tractor
master shield on the rear power take-off except where removal of the
tractor master shield is permitted by paragraph (b)(1)(iii) of this
section. The master shield shall have sufficient strength to prevent
permanent deformation of the shield when a 250 pound operator mounts or
dismounts the tractor using the shield as a step.
(iii) Power take-off driven equipment shall be guarded to protect
against employee contact with positively driven rotating members of the
power drive system. Where power take-off driven equipment is of a design
requiring removal of the tractor master shield, the equipment shall also
include protection from that portion of the tractor power take-off shaft
which protrudes from the tractor.
(iv) Signs shall be placed at prominent locations on tractors and
power take-off driven equipment specifying that power drive system
safety shields must be kept in place.
(2) Other power transmission components. (i) The mesh or nip-points
of all power driven gears, belts, chains, sheaves, pulleys, sprockets,
and idlers shall be guarded.
(ii) All revolving shafts, including projections such as bolts,
keys, or set screws, shall be guarded, except smooth shaft ends
protruding less than one-half the outside diameter of the shaft and its
locking means.
(iii) Ground driven components shall be guarded in accordance with
paragraphs (b)(2)(i) and (b)(2)(ii) of this section if any employee may
be exposed to them while the drives are in motion.
(3) Functional components. Functional components, such as snapping
or husking rolls, straw spreaders and choppers, cutterbars, flail
rotors, rotary beaters, mixing augers, feed rolls, conveying augers,
rotary tillers, and similar units, which must be exposed for proper
function, shall be guarded to the fullest extent which will not
substantially interfere with normal functioning of the component.
(4) Access to moving parts. (i) Guards, shields, and access doors
shall be in place when the equipment is in operation.
(ii) Where removal of a guard or access door will expose an employee
to any component which continues to rotate after the power is
disengaged, the employer shall provide, in the immediate area, the
following:
(A) A readily visible or audible warning of rotation; and
(B) A safety sign warning the employee to:
(1) Look and listen for evidence of rotation; and
[[Page 35]]
(2) Not remove the guard or access door until all components have
stopped.
(c) Farmstead equipment--(1) Power take-off guarding. (i) All power
take-off shafts, including rear, mid-, or side-mounted shafts, shall be
guarded either by a master shield as provided in paragraph (b)(1)(ii) of
this section or other protective guarding.
(ii) Power take-off driven equipment shall be guarded to protect
against employee contact with positively driven rotating members of the
power drive system. Where power take-off driven equipment is of a design
requiring removal of the tractor master shield, the equipment shall also
include protection from that portion of the tractor power take-off shaft
which protrudes from the tractor.
(iii) Signs shall be placed at prominent locations on power take-off
driven equipment specifying that power drive system safety shields must
be kept in place.
(2) Other power transmission components. (i) The mesh or nip-points
of all power driven gears, belts, chains, sheaves, pulleys, sprockets,
and idlers shall be guarded.
(ii) All revolving shafts, including projections such as bolts,
keys, or set screws, shall be guarded, with the exception of:
(A) Smooth shafts and shaft ends (without any projecting bolts,
keys, or set screws), revolving at less than 10 rpm, on feed handling
equipment used on the top surface of materials in bulk storage
facilities; and
(B) Smooth shaft ends protruding less than one-half the outside
diameter of the shaft and its locking means.
(3) Functional components. (i) Functional components, such as
choppers, rotary beaters, mixing augers, feed rolls, conveying augers,
grain spreaders, stirring augers, sweep augers, and feed augers, which
must be exposed for proper function, shall be guarded to the fullest
extent which will not substantially interfere with the normal
functioning of the component.
(ii) Sweep arm material gathering mechanisms used on the top surface
of materials within silo structures shall be guarded. The lower or
leading edge of the guard shall be located no more than 12 inches above
the material surface and no less than 6 inches in front of the leading
edge of the rotating member of the gathering mechanism. The guard shall
be parallel to, and extend the fullest practical length of, the material
gathering mechanism.
(iii) Exposed auger flighting on portable grain augers shall be
guarded with either grating type guards or solid baffle style covers as
follows:
(A) The largest dimensions or openings in grating type guards
through which materials are required to flow shall be 4\3/4\ inches. The
area of each opening shall be no larger than 10 square inches. The
opening shall be located no closer to the rotating flighting than 2\1/2\
inches.
(B) Slotted openings in solid baffle style covers shall be no wider
than 1\1/2\ inches, or closer than 3\1/2\ inches to the exposed
flighting.
(4) Access to moving parts. (i) Guards, shields, and access doors
shall be in place when the equipment is in operation.
(ii) Where removal of a guard or access door will expose an employee
to any component which continues to rotate after the power is
disengaged, the employer shall provide, in the immediate area, the
following:
(A) A readily visible or audible warning of rotation; and
(B) A safety sign warning the employee to:
(1) Look and listen for evidence of rotation; and
(2) Not remove the guard or access door until all components have
stopped.
(5) Electrical disconnect means. (i) Application of electrical power
from a location not under the immediate and exclusive control of the
employee or employees maintaining or servicing equipment shall be
prevented by:
(A) Providing an exclusive, positive locking means on the main
switch which can be operated only by the employee or employees
performing the maintenance or servicing; or
(B) In the case of material handling equipment located in a bulk
storage structure, by physically locating on the equipment an electrical
or mechanical means to disconnect the power.
[[Page 36]]
(ii) All circuit protection devices, including those which are an
integral part of a motor, shall be of the manual reset type, except
where:
(A) The employer can establish that because of the nature of the
operation, distances involved, and the amount of time normally spent by
employees in the area of the affected equipment, use of the manual reset
device would be infeasible;
(B) There is an electrical disconnect switch available to the
employee within 15 feet of the equipment upon which maintenance or
service is being performed; and
(C) A sign is prominently posted near each hazardous component which
warns the employee that, unless the electrical disconnect switch is
utilized, the motor could automatically reset while the employee is
working on the hazardous component.
(d) Cotton ginning equipment--(1) Power transmission components. (i)
The main drive and miscellaneous drives of gin stands shall be
completely enclosed, guarded by location, or guarded by railings
(consistent with the requirements of paragraph (a)(7) of this section).
Drives between gin stands shall be guarded so as to prevent access to
the area between machines.
(ii) When guarded by railings, any hazardous component within 15
horizontal inches of the rail shall be completely enclosed. Railing
height shall be approximately 42 inches off the floor, platform, or
other working surface, with a midrail between the toprail and the
working surface. Panels made of materials conforming to the requirements
in Table D-1, or equivalent, may be substituted for midrails. Guardrails
shall be strong enough to withstand at least 200 pounds force on the
toprail.
(iii) Belts guarded by railings shall be inspected for defects at
least daily. The machinery shall not be operated until all defective
belts are replaced.
Table D-1--Examples of Minimum Requirements for Guard Panel Materials
------------------------------------------------------------------------
Largest
Clearance from mesh or Minimum
moving part at opening gage (U.S.
Material all points (in allowable standard)
inches) (in or
inches) thickness
------------------------------------------------------------------------
Woven wire.................... Under 2......... \3/8\ 16
2 to 4.......... \1/2\ 16
4 to 15......... 2 12
Expanded metal................ Under 4......... \1/2\ 18
4 to 15......... 2 13
Perforated metal.............. Under 4......... \1/2\ 20
4 to 15......... 2 14
Sheet metal................... Under 4......... .......... 22
4 to 15......... .......... 22
Plastic....................... Under 4......... .......... (\1\)
4 to 15......... .......... (\1\)
------------------------------------------------------------------------
\1\ Tensile strength of 10,000 lb/in \2\
(iv) Pulleys of V-belt drives shall be completely enclosed or
guarded by location whether or not railings are present. The open end of
the pulley guard shall be not less than 4 inches from the periphery of
the pulleys.
(v) Chains and sprockets shall be completely enclosed, except that
they may be guarded by location if the bearings are packed or if
accessible extension lubrication fittings are used.
(vi) Where complete enclosure of a component is likely to cause a
fire hazard due to excessive deposits of lint, only the face section of
nip-point and pulley guards is required. The guard shall extend at least
6 inches beyond the rim of the pulley on the in-running and off-running
sides of the belt, and at least 2 inches from the rim and face of the
pulley in all other directions.
(vii) Projecting shaft ends not guarded by location shall present a
smooth edge and end, shall be guarded by non-rotating caps or safety
sleeves, and may not protrude more than one-half the outside diameter of
the shaft.
(viii) In power plants and power development rooms where access is
limited to authorized personnel, guard railings may be used in place of
guards or guarding by location. Authorized employees having access to
power plants and power development rooms shall be instructed in the safe
operation and maintenance of the equipment in accordance with paragraph
(a)(6) of this section.
(2) Functional components. (i) Gin stands shall be provided with a
permanently installed guard designed to preclude contact with the gin
saws while
[[Page 37]]
in motion. The saw blades in the roll box shall be considered guarded by
location if they do not extend through the ginning ribs into the roll
box when the breast is in the out position.
(ii) Moving saws on lint cleaners which have doors giving access to
the saws shall be guarded by fixed barrier guards or their equivalent
which prevent direct finger or hand contact with the saws while the saws
are in motion.
(iii) An interlock shall be installed on all balers so that the
upper gates cannot be opened while the tramper is operating.
(iv) Top panels of burr extractors shall be hinged and equipped with
a sturdy positive latch.
(v) All accessible screw conveyors shall be guarded by substantial
covers or gratings, or with an inverted horizontally slotted guard of
the trough type, which will prevent employees from coming into contact
with the screw conveyor. Such guards may consist of horizontal bars
spaced so as to allow material to be fed into the conveyor, and
supported by arches which are not more than 8 feet apart. Screw
conveyors under gin stands shall be considered guarded by location.
(3) Warning device. A warning device shall be installed in all gins
to provide an audible signal which will indicate to employees that any
or all of the machines comprising the gin are about to be started. The
signal shall be of sufficient volume to be heard by employees, and shall
be sounded each time before starting the gin.
[41 FR 10195, Mar. 9, 1976; 41 FR 11022, Mar. 16, 1976; 41 FR 22268,
June 2, 1976, as amended at 41 FR 46598, Oct. 22, 1976]
Subparts E-H [Reserved]
Subpart I_General Environmental Controls
Sec. 1928.110 Field sanitation.
(a) Scope. This section shall apply to any agricultural
establishment where eleven (11) or more employees are engaged on any
given day in hand-labor operations in the field.
(b) Definitions. Agricultural employer means any person,
corporation, association, or other legal entity that:
(i) Owns or operates an agricultural establishment;
(ii) Contracts with the owner or operator of an agricultural
establishment in advance of production for the purchase of a crop and
exercises substantial control over production; or
(iii) Recruits and supervises employees or is responsible for the
management and condition of an agricultural establishment.
Agricultural establishment is a business operation that uses paid
employees in the production of food, fiber, or other materials such as
seed, seedlings, plants, or parts of plants.
Hand-labor operations means agricultural activities or agricultural
operations performed by hand or with hand tools. Except for purposes of
paragraph (c)(2)(iii) of this section, hand-labor operations also
include other activities or operations performed in conjunction with
hand labor in the field. Some examples of hand-labor operations are the
hand-cultivation, hand-weeding, hand-planting and hand-harvesting of
vegetables, nuts, fruits, seedlings or other crops, including mushrooms,
and the hand packing of produce into containers, whether done on the
ground, on a moving machine or in a temporary packing shed located in
the field. Hand-labor does not include such activities as logging
operations, the care or feeding of livestock, or hand-labor operations
in permanent structures (e.g., canning facilities or packing houses).
Handwashing facility means a facility providing either a basin,
container, or outlet with an adequate supply of potable water, soap and
single-use towels.
Potable water means water that meets the standards for drinking
purposes of the State or local authority having jurisdiction, or water
that meets the quality standards prescribed by the U.S. Environmental
Protection Agency's National Primary Drinking Water Regulations (40 CFR
part 141).
Toilet facility means a fixed or portable facility designed for the
purpose of adequate collection and containment of the products of both
defecation and urination which is supplied with toilet
[[Page 38]]
paper adequate to employee needs. Toilet facility includes biological,
chemical, flush and combustion toilets and sanitary privies.
(c) Requirements. Agricultural employers shall provide the following
for employees engaged in hand-labor operations in the field, without
cost to the employee:
(1) Potable drinking water. (i) Potable water shall be provided and
placed in locations readily accessible to all employees.
(ii) The water shall be suitably cool and in sufficient amounts,
taking into account the air temperature, humidity and the nature of the
work performed, to meet the needs of all employees.
(iii) The water shall be dispensed in single-use drinking cups or by
fountains. The use of common drinking cups or dippers is prohibited.
(2) Toilet and handwashing facilities. (i) One toilet facility and
one handwashing facility shall be provided for each twenty (20)
employees or fraction thereof, except as stated in paragraph (c)(2)(v)
of this section.
(ii) Toilet facilities shall be adequately ventilated, appropriately
screened, have self-closing doors that can be closed and latched from
the inside and shall be constructed to insure privacy.
(iii) Toilet and handwashing facilities shall be accessibly located
and in close proximity to each other. The facilities shall be located
within a one-quarter-mile walk of each hand laborer's place of work in
the field.
(iv) Where due to terrain it is not feasible to locate facilities as
required above, the facilities shall be located at the point of closest
vehicular access.
(v) Toilet and handwashing facilities are not required for employees
who perform field work for a period of three (3) hours or less
(including transportation time to and from the field) during the day.
(3) Maintenance. Potable drinking water and toilet and handwashing
facilities shall be maintained in accordance with appropriate public
health sanitation practices, including the following:
(i) Drinking water containers shall be constructed of materials that
maintain water quality, shall be refilled daily or more often as
necessary, shall be kept covered and shall be regularly cleaned.
(ii) Toilet facilities shall be operational and maintained in clean
and sanitary condition.
(iii) Handwashing facilities shall be refilled with potable water as
necessary to ensure an adequate supply and shall be maintained in a
clean and sanitary condition; and
(iv) Disposal of wastes from facilities shall not cause unsanitary
conditions.
(4) Reasonable use. The employer shall notify each employee of the
location of the sanitation facilities and water and shall allow each
employee reasonable opportunities during the workday to use them. The
employer also shall inform each employee of the importance of each of
the following good hygiene practices to minimize exposure to the hazards
in the field of heat, communicable diseases, retention of urine and
agrichemical residues:
(i) Use the water and facilities provided for drinking, handwashing
and elimination;
(ii) Drink water frequently and especially on hot days;
(iii) Urinate as frequently as necessary;
(iv) Wash hands both before and after using the toilet; and
(v) Wash hands before eating and smoking.
(d) Dates--(1) Effective date. This standard shall take effect on
May 30, 1987.
(2) Startup dates. Employers must comply with the requirements of
paragraphs:
(i) Paragraph (c)(1), to provide potable drinking water, by May 30,
1987;
(ii) Paragraph (c)(2), to provide handwashing and toilet facilities,
by July 30, 1987;
(iii) Paragraph (c)(3), to provide maintenance for toilet and
handwashing facilities, by July 30, 1987; and
(iv) Paragraph (c)(4), to assure reasonable use, by July 30, 1987.
[52 FR 16095, May 1, 1987, as amended at 76 FR 33612, June 8, 2011]
Subparts J-L [Reserved]
[[Page 39]]
Subpart M_Occupational Health
Sec. 1928.1027 Cadmium.
See Sec. 1910.1027, Cadmium.
[61 FR 9255, Mar. 7, 1996]
PART 1949_OFFICE OF TRAINING AND EDUCATION, OCCUPATIONAL SAFETY
AND HEALTH ADMINISTRATION--Table of Contents
Subpart A_OSHA Training Institute
Sec.
1949.1 Policy regarding tuition fees.
1949.2 Definitions.
1949.3 Schedule of fees.
1949.4 Procedure for payment.
1949.5 Refunds.
Authority: Secs. 8, 26, Occupational Safety and Health Act of 1970
(29 U.S.C. 657, 670); 31 U.S.C. 9701; Secretary of Labor's Order No. 9-
83 (48 FR 35736).
Source: 49 FR 32066, Aug. 10, 1984, unless otherwise noted.
Subpart A_OSHA Training Institute
Sec. 1949.1 Policy regarding tuition fees.
(a) The OSHA Training Institute shall charge tuition fees for all
private sector students attending Institute courses.
(b) The following private sector students shall be exempt from the
payment of tuition fees.
(1) Associate members of Field Federal Safety and Health Councils.
(2) Students who are representatives of foreign governments.
(3) Students attending courses which are required by OSHA for the
student to maintain an existing designation of OSHA certified outreach
trainer.
(c) Additional exemptions may be made by the Director of the OSHA
Training Institute on a case by case basis if it is determined that the
students exempted are employed by a nonprofit organization and the
granting of an exemption from tuition would be in the best interest of
the occupational safety and health program. Individuals or organizations
wishing to be considered for this exemption shall make application to
the Director of the OSHA Training Institute in writing stating the
reasons for an exemption from payment of tuition.
[56 FR 28076, June 19, 1991]
Sec. 1949.2 Definitions.
Any term not defined herein shall have the same meaning as given it
in the Act. As used in this subpart:
Private sector students means those students attending the Institute
who are not employees of Federal, State, or local governments.
Sec. 1949.3 Schedule of fees.
(a) Tuition fees will be computed on the basis of the cost to the
Government for the Institute conduct of the course, as determined by the
Director of the Institute.
(b) Total tuition charges for each course will be set forth in the
course announcement.
Sec. 1949.4 Procedure for payment.
(a) Applications for Institute courses shall be submitted to the
Institute Registrar's office in accordance with instructions issued by
the Institute.
(b) Private sector personnel shall, upon notification of their
acceptance by the Institute, submit a check payable to ``U.S. Department
of Labor'' in the amount indicated by the course announcement prior to
the commencement of the course.
Sec. 1949.5 Refunds.
An applicant may withdraw an application and receive full
reimbursement of the fee provided that written notification to the
Institute Registrar is mailed no later than 14 days before the
commencement of the course for which registration has been submitted.
PART 1952_APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS--
Table of Contents
Subpart A_List of Approved State Plans for Private-Sector and State and
Local Government Employees
Sec.
1952.1 South Carolina.
1952.2 Oregon.
1952.3 Utah.
1952.4 Washington.
1952.5 North Carolina.
[[Page 40]]
1952.6 Iowa.
1952.7 California.
1952.8 Minnesota.
1952.9 Maryland.
1952.10 Tennessee.
1952.11 Kentucky.
1952.12 Alaska.
1952.13 Michigan.
1952.14 Vermont.
1952.15 Nevada.
1952.16 Hawaii.
1952.17 Indiana.
1952.18 Wyoming.
1952.19 Arizona.
1952.20 New Mexico.
1952.21 Virginia.
1952.22 Puerto Rico.
Subpart B_List of Approved State Plans for State and Local Government
Employees
1952.23 Connecticut.
1952.24 New York.
1952.25 New Jersey.
1952.26 The Virgin Islands.
1952.27 Illinois.
1952.28 Maine.
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902;
Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Subpart A_List of Approved State Plans for Private-Sector and State and
Local Government Employees
Sec. 1952.1 South Carolina.
(a) The South Carolina State plan received initial approval on
December 6, 1972.
(b) The South Carolina State plan received final approval on
December 18, 1987.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance officer staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984, South
Carolina, in conjunction with OSHA, completed a reassessment of the
staffing levels initially established in 1980 and proposed revised
compliance staffing benchmarks of 17 safety and 12 health compliance
officers. After opportunity for public comment and service on the AFL-
CIO, the Assistant Secretary approved these revised staffing
requirements on January 17, 1986.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/south_carolina.html.
Sec. 1952.2 Oregon.
(a) The Oregon State plan received initial approval on December 28,
1972.
(b) The Oregon State plan received final approval on May 12, 2005.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In October 1992, Oregon completed, in
conjunction with OSHA, a reassessment of the health staffing level
initially established in 1980 and proposed a revised health benchmark of
28 health compliance officers. Oregon elected to retain the safety
benchmark level established in the 1980 Report to the Court of the U.S.
District Court for the District of Columbia in 1980 of 47 safety
compliance officers. After opportunity for public comment and service on
the AFL-CIO, the Assistant Secretary approved these revised staffing
requirements on August 11, 1994.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/oregon.html.
Sec. 1952.3 Utah.
(a) The Utah State plan received initial approval on January 10,
1973.
(b) The Utah State plan received final approval on July 16, 1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984, Utah, in
conjunction with OSHA,
[[Page 41]]
completed a reassessment of the levels initially established in 1980 and
proposed revised compliance staffing benchmarks of 10 safety and 9
health compliance officers. After opportunity for public comments and
service on the AFL-CIO, the Assistant Secretary approved these revised
staffing requirements effective July 16, 1985.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/utah.html.
Sec. 1952.4 Washington.
(a) The Washington State plan received initial approval on January
26, 1973.
(b) OSHA entered into an operational status agreement with
Washington.
(c) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/washington.html.
Sec. 1952.5 North Carolina.
(a) The North Carolina State plan received initial approval on
February 1, 1973.
(b) The North Carolina State plan received final approval on
December 18, 1996.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In September 1984, North Carolina, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised benchmarks of 50 safety and 27
health compliance officers. After opportunity for public comment and
service on the AFL-CIO, the Assistant Secretary approved these revised
staffing requirements on January 17, 1986.
In June 1990, North Carolina reconsidered the information utilized
in the initial revision of its 1980 benchmarks and determined that
changes in local conditions and improved inspection data warranted
further revision of its benchmarks to 64 safety inspectors and 50
industrial hygienists. After opportunity for public comment and service
on the AFL-CIO, the Assistant Secretary approved these revised staffing
requirements on June 4, 1996.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/north_carolina.html.
Sec. 1952.6 Iowa.
(a) The Iowa State plan received initial approval on July 20, 1973.
(b) The Iowa State plan received final approval on July 2, 1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984, Iowa, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 16 safety and 13 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements effective July 2, 1985.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/iowa.html.
Sec. 1952.7 California.
(a) The California State plan received initial approval on May 1,
1973.
(b) OSHA entered into an operational status agreement with
California.
[[Page 42]]
(c) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/california.html.
Sec. 1952.8 Minnesota.
(a) The Minnesota State plan received initial approval on June 8,
1973.
(b) The Minnesota State plan received final approval on July 30,
1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Minnesota, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 31 safety and 12 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on July 30, 1985.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/minnesota.html.
Sec. 1952.9 Maryland.
(a) The Maryland State plan received initial approval on July 5,
1973.
(b) The Maryland State plan received final approval on July 18,
1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Maryland, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 36 safety and 18 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on July 18, 1985.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/maryland.html.
Sec. 1952.10 Tennessee.
(a) The Tennessee State plan received initial approval on July 5,
1973.
(b) The Tennessee State plan received final approval on July 22,
1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Tennessee, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 22 safety and 14 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on July 22, 1985.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/tennessee.html.
Sec. 1952.11 Kentucky.
(a) The Kentucky State plan received initial approval on July 31,
1973.
(b) The Kentucky State plan received final approval on June 13,
1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984
[[Page 43]]
Kentucky, in conjunction with OSHA, completed a reassessment of the
levels initially established in 1980 and proposed revised compliance
staffing benchmarks of 23 safety and 14 health compliance officers.
After opportunity for public comment and service on the AFL-CIO, the
Assistant Secretary approved these revised staffing requirements on June
13, 1985.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/kentucky.html.
Sec. 1952.12 Alaska.
(a) The Alaska State plan received initial approval on August 10,
1973.
(b) The Alaska State plan received final approval on September 28,
1984.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. Alaska's compliance staffing
benchmarks are 4 safety and 5 health compliance officers.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/alaska.html.
Sec. 1952.13 Michigan.
(a) The Michigan State plan received initial approval on October 3,
1973.
(b) OSHA entered into an operational status agreement with Michigan.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In 1992, Michigan completed, in conjunction with
OSHA, a reassessment of the levels initially established in 1980 and
proposed revised benchmarks of 56 safety and 45 health compliance
officers. After opportunity for public comment and service on the AFL-
CIO, the Assistant Secretary approved these revised staffing
requirements on April 20, 1995.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
https://www.osha.gov/dcsp/osp/stateprogs/michigan.html.
Sec. 1952.14 Vermont.
(a) The Vermont State plan received initial approval on October 16,
1973.
(b) OSHA entered into an operational status agreement with Vermont.
(c) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/vermont.html.
Sec. 1952.15 Nevada.
(a) The Nevada State plan received initial approval on January 4,
1974.
(b) The Nevada State plan received final approval on April 18, 2000.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In July 1986 Nevada, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 11 safety and 5 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on September 2, 1987.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions
[[Page 44]]
and for additional details about the plan, please visit http://
www.osha.gov/dcsp/osp/stateprogs/nevada.html.
Sec. 1952.16 Hawaii.
(a) The Hawaii State plan received initial approval on January 4,
1974.
(b) The Hawaii State plan received final approval on May 4, 1984.
(c) On September 21, 2012 OSHA modified the State Plan's approval
status from final approval to initial approval, and reinstated
concurrent federal enforcement authority pending the necessary
corrective action by the State Plan in order to once again meet the
criteria for a final approval determination. OSHA and Hawaii entered
into an operational status agreement to provide a workable division of
enforcement responsibilities.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/hawaii.html.
Sec. 1952.17 Indiana.
(a) The Indiana State plan received initial approval on March 6,
1974.
(b) The Indiana State plan received final approval on September 26,
1986.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Indiana, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 47 safety and 23 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on January 17, 1986.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/indiana.html.
Sec. 1952.18 Wyoming.
(a) The Wyoming State plan received initial approval on May 3, 1974.
(b) The Wyoming State plan received final approval on June 27, 1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Wyoming, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 6 safety and 2 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on June 27, 1985.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/wyoming.html.
Sec. 1952.19 Arizona.
(a) The Arizona State plan received initial approval on November 5,
1974.
(b) The Arizona State plan received final approval on June 20, 1985.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984, Arizona in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 9 safety and 6 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on June 20, 1985.
[[Page 45]]
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/arizona.html.
Sec. 1952.20 New Mexico.
(a) The New Mexico State plan received initial approval on December
10, 1975.
(b) OSHA entered into an operational status agreement with New
Mexico.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (``benchmarks'') necessary for a ``fully
effective'' enforcement program were required for each State operating
an approved State plan. In May 1992, New Mexico completed, in
conjunction with OSHA, a reassessment of the staffing levels initially
established in 1980 and proposed revised benchmarks of 7 safety and 3
health compliance officers. After opportunity for public comment and
service on the AFL-CIO, the Assistant Secretary approved these revised
staffing requirements on August 11, 1994.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/new_mexico.html.
Sec. 1952.21 Virginia.
(a) The Virginia State plan received initial approval on September
28, 1976.
(b) The Virginia State plan received final approval on November 30,
1988.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall,
compliance staffing levels (benchmarks) necessary for a ``fully
effective'' enforcement program were required to be established for each
State operating an approved State plan. In September 1984 Virginia, in
conjunction with OSHA, completed a reassessment of the levels initially
established in 1980 and proposed revised compliance staffing benchmarks
of 38 safety and 21 health compliance officers. After opportunity for
public comment and service on the AFL-CIO, the Assistant Secretary
approved these revised staffing requirements on January 17, 1986.
(d) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/virginia.html.
Sec. 1952.22 Puerto Rico.
(a) The Puerto Rico State plan received initial approval on August
30, 1977.
(b) OSHA entered into an operational status agreement with Puerto
Rico.
(c) The plan covers all private-sector employers and employees, with
several notable exceptions, as well as State and local government
employers and employees, within the State. For current information on
these exceptions and for additional details about the plan, please visit
http://www.osha.gov/dcsp/osp/stateprogs/puerto_rico.html.
Subpart B_List of Approved State Plans for State and Local Government
Employees
Sec. 1952.23 Connecticut.
(a) The Connecticut State plan for State and local government
employees received initial approval from the Assistant Secretary on
November 3, 1978.
(b) In accordance with 29 CFR 1956.10(g), a State is required to
have a sufficient number of adequately trained and competent personnel
to discharge its responsibilities under the plan. The Connecticut Public
Employee Only State plan provides for three (3) safety compliance
officers and one (1) health compliance officer as set forth in the
Connecticut Fiscal Year 1986 grant. This staffing level meets the
``fully effective'' benchmarks established for Connecticut for both
safety and health.
(c) The plan only covers State and local government employers and
employees within the State. For additional details about the plan,
please
[[Page 46]]
visit http://www.osha.gov/dcsp/osp/stateprogs/connecticut.html.
Sec. 1952.24 New York.
(a) The New York State plan for State and local government employees
received initial approval from the Assistant Secretary on June 1, 1984.
(b) The plan, as revised on April 28, 2006, provides assurances of a
fully trained, adequate staff, including 29 safety and 21 health
compliance officers for enforcement inspections and 11 safety and 9
health consultants to perform consultation services in the public
sector. The State has also given satisfactory assurances of continued
adequate funding to support the plan.
(c) The plan only covers State and local government employers and
employees within the State. For additional details about the plan,
please visit http://www.osha.gov/dcsp/osp/stateprogs/new_york.html.
Sec. 1952.25 New Jersey.
(a) The New Jersey State plan for State and local government
employees received initial approval from the Assistant Secretary on
January 11, 2001.
(b) The plan further provides assurances of a fully trained,
adequate staff, including 20 safety and 7 health compliance officers for
enforcement inspections, and 4 safety and 3 health consultants to
perform consultation services in the public sector, and 2 safety and 3
health training and education staff. The State has assured that it will
continue to provide a sufficient number of adequately trained and
qualified personnel necessary for the enforcement of standards as
required by 29 CFR 1956.10. The State has also given satisfactory
assurance of adequate funding to support the plan.
(c) The plan only covers State and local government employers and
employees within the State. For additional details about the plan,
please visit http://www.osha.gov/dcsp/osp/stateprogs/new_jersey.html.
Sec. 1952.26 The Virgin Islands.
(a) The Virgin Islands State plan for Public Employees Only was
approved on July 23, 2003.
(b) The plan only covers State and local government employers and
employees within the State. For additional details about the plan,
please visit http://www.osha.gov/dcsp/osp/stateprogs/
virgin_islands.html.
Sec. 1952.27 Illinois.
(a) The Illinois State plan for state and local government employees
received initial approval from the Assistant Secretary on September 1,
2009.
(b) The Plan further provides assurances of a fully trained,
adequate staff within three years of plan approval, including 11 safety
and 3 health compliance officers for enforcement inspections, and 3
safety and 2 health consultants to perform consultation services in the
public sector. The state has assured that it will continue to provide a
sufficient number of adequately trained and qualified personnel
necessary for the enforcement of standards as required by 29 CFR
1956.10. The state has also given satisfactory assurance of adequate
funding to support the Plan.
(c) The plan only covers State and local government employers and
employees within the state. For additional details about the plan,
please visit http://www.osha.gov/dcsp/osp/stateprogs/illinois.html.
Sec. 1952.28 Maine.
(a) The Maine State Plan for State and local government employees
received initial approval from the Assistant Secretary on August 5,
2015.
(b) The Plan further provides assurances of a fully trained,
adequate staff within three years of plan approval, including 2 safety
and 1 health compliance officers for enforcement inspections, and 3
safety and 1 health consultants to perform consultation services in the
public sector. The State has assured that it will continue to provide a
sufficient number of adequately trained and qualified personnel
necessary for the enforcement of standards as required by 29 CFR
1956.10. The State has also given satisfactory assurance of adequate
funding to support the Plan.
(c) The plan only covers State and local government employers and
employees within the State. For additional details about the plan,
please
[[Page 47]]
visit https://www.osha.gov/dcsp/osp/stateprogs/maine.html.
[81 FR 6178, Feb. 5, 2016]
PART 1953_CHANGES TO STATE PLANS--Table of Contents
Sec.
1953.1 Purpose and scope.
1953.2 Definitions.
1953.3 General policies and procedures.
1953.4 Submission of plan supplements.
1953.5 Special provisions for standards changes.
1953.6 Review and approval of plan supplements.
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of
Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 67 FR 60125, Sept. 25, 2002, unless otherwise noted.
Sec. 1953.1 Purpose and scope.
(a) This part implements the provisions of section 18 of the
Occupational Safety and Health Act of 1970 (``OSH Act'' or the ``Act'')
which provides for State plans for the development and enforcement of
State occupational safety and health standards. These plans must meet
the criteria in section 18(c) of the Act, and part 1902 of this chapter
(for plans covering both private sector and State and local government
employers) or part 1956 of this chapter (for plans covering only State
and local government employers), either at the time of submission or--
where the plan is developmental--within the three year period
immediately following commencement of the plan's operation. Approval of
a State plan is based on a finding that the State has, or will have, a
program, pursuant to appropriate State law, for the adoption and
enforcement of State standards that is ``at least as effective'' as the
Federal program.
(b) When submitting plans, the States provide assurances that they
will continue to meet the requirements in section 18(c) of the Act and
part 1902 or part 1956 of this chapter for a program that is ``at least
as effective'' as the Federal. Such assurances are a fundamental basis
for approval of plans. (See Sec. Sec. 1902.3 and 1956.2 of this
chapter.) From time to time after initial plan approval, States will
need to make changes to their plans. This part establishes procedures
for submission and review of State plan supplements documenting those
changes that are necessary to fulfill the State's assurances, the
requirements of the Act, and part 1902 or part 1956 of this chapter.
(c) Changes to a plan may be initiated in several ways. In the case
of a developmental plan, changes are required to document establishment
of those necessary structural program components that were not in place
at the time of plan approval. These commitments are included in a
developmental schedule approved as part of the initial plan. These
``developmental changes'' must be completed within the three year period
immediately following the commencement of operations under the plan.
Another circumstance requiring subsequent changes to a State plan would
be the need to keep pace with changes to the Federal program, or
``Federal Program Changes.'' A third situation would be when changes are
required as a result of the continuing evaluation of the State program.
Such changes are called ``evaluation changes.'' Finally, changes to a
State program's safety and health requirements or procedures initiated
by the State without a Federal parallel could have an impact on the
effectiveness of the State program. Such changes are called ``State-
initiated changes.'' While requirements for submission of a plan
supplement to OSHA differ depending on the type of change, all
supplements are processed in accordance with the procedures in Sec.
1953.6.
Sec. 1953.2 Definitions.
(a) OSHA means the Assistant Secretary of Labor for Occupational
Safety and Health, or any representative authorized to perform any of
the functions discussed in this part, as set out in implementing
Instructions.
(b) State means an authorized representative of the agency
designated to administer a State plan under Sec. 1902.3(b) of this
chapter.
(c) Plan change means any modification made by a State to its
approved occupational safety and health State plan which has an impact
on the plan's effectiveness.
[[Page 48]]
(d) Plan supplement means all documents necessary to accomplish,
implement, describe and evaluate the effectiveness of a change to a
State plan which differs from the parallel Federal legislation,
regulation, policy or procedure. (This would include a copy of the
complete legislation, regulation, policy or procedure adopted; an
identification of each of the differences; and an explanation of how
each provision is at least as effective as the comparable Federal
provision.)
(e) Identical plan change means one in which the State adopts the
same program provisions and documentation as the Federal program with
the only differences being those modifications necessary to reflect a
State's unique structure (e.g., organizational responsibility within a
State and corresponding titles or internal State numbering system).
Different plan change means one in which the State adopts program
provisions and documentation that are not identical as defined in this
paragraph.
(g) Developmental change is a change made to a State plan which
documents the completion of a program component which was not fully
developed at the time of initial plan approval.
(h) Federal program change is a change made to a State plan when
OSHA determines that an alteration in the Federal program could render a
State program less effective than OSHA's if it is not similarly
modified.
(i) Evaluation change is a change made to a State plan when
evaluations of a State program show that some substantive aspect of a
State plan has an adverse impact on the implementation of the State's
program and needs revision.
(j) State-initiated change is a change made to a State plan which is
undertaken at a State's option and is not necessitated by Federal
requirements.
Sec. 1953.3 General policies and procedures.
(a) Effectiveness of State plan changes under State law. Federal
OSHA approval of a State plan under section 18(b) of the OSH Act in
effect removes the barrier of Federal preemption, and permits the State
to adopt and enforce State standards and other requirements regarding
occupational safety or health issues regulated by OSHA. A State with an
approved plan may modify or supplement the requirements contained in its
plan, and may implement such requirements under State law, without prior
approval of the plan change by Federal OSHA. Changes to approved State
plans are subject to subsequent OSHA review. If OSHA finds reason to
reject a State plan change, and this determination is upheld after an
adjudicatory proceeding, the plan change would then be excluded from the
State's Federally-approved plan.
(b) Required State plan notifications and supplements. Whenever a
State makes a change to its legislation, regulations, standards, or
major changes to policies or procedures, which affect the operation of
the State plan, the State shall provide written notification to OSHA.
When the change differs from a corresponding Federal program component,
the State shall submit a formal, written plan supplement. When the State
adopts a provision which is identical to a corresponding Federal
provision, written notification, but no formal plan supplement, is
required. However, the State is expected to maintain the necessary
underlying State document (e.g., legislation or standard) and to make it
available for review upon request. All plan change supplements or
required documentation must be submitted within 60 days of adoption of
the change. Submission of all notifications and supplements may be in
electronic format.
(c) Plan supplement availability. The underlying documentation for
identical plan changes shall be maintained by the State. Annually,
States shall submit updated copies of the principal documents comprising
the plan, or appropriate page changes, to the extent that these
documents have been revised. To the extent possible, plan documents will
be maintained and submitted by the State in electronic format and also
made available in such manner.
(d) Advisory opinions. Upon State request, OSHA may issue an
advisory opinion on the approvability of a proposed change which differs
from the Federal program prior to promulgation
[[Page 49]]
or adoption by the State and submission as a formal supplement.
(e) Alternative procedures. Upon reasonable notice to interested
persons, the Assistant Secretary may prescribe additional or alternative
procedures in order to expedite the review process or for any other good
cause which may be consistent with the applicable laws.
[67 FR 60125, Sept. 25, 2002, as amended at 80 FR 49908, Aug. 18, 2015]
Sec. 1953.4 Submission of plan supplements.
(a) Developmental changes. (1) Sections 1902.2(b) and 1956.2(b) of
this chapter require that each State with a developmental plan must set
forth in its plan, as developmental steps, those changes which must be
made to its initially-approved plan for its program to be at least as
effective as the Federal program and a timetable for making these
changes. The State must notify OSHA of a developmental change when it
completes a developmental step or fails to meet any developmental step.
(2) If the completion of a developmental step is the adoption of a
program component which is identical to the Federal program component,
the State need only submit documentation, such as the cover page of an
implementing directive or a notice of promulgation, that it has adopted
the program component, within 60 days of adoption of the change, but
must make the underlying documentation available for Federal and public
review upon request.
(3) If the completion of a developmental step involves the adoption
of policies or procedures which differ from the Federal program, the
State must submit one copy of the required plan supplement within 60
days of adoption of the change.
(4) When a developmental step is missed, the State must submit a
supplement which documents the impact on the program of the failure to
complete the developmental step, an explanation of why the step was not
completed on time and a revised timetable with a new completion date
(generally not to exceed 90 days) and any other actions necessary to
ensure completion. Where the State has an operational status agreement
with OSHA under Sec. 1954.3 of this Chapter, the State must provide an
assurance that the missed step will not affect the effectiveness of
State enforcement in any issues for which the State program has been
deemed to be operational.
(5) If the State fails to submit the required documentation or
supplement, as provided in Sec. 1953.4(a)(2), (3) or (4), when the
developmental step is scheduled for completion, OSHA shall notify the
State that documentation or a supplement is required and set a timetable
for submission of any required documentation or supplement, generally
not to exceed 60 days.
(b) Federal Program changes. (1) When a significant change in the
Federal program would have an adverse impact on the ``at least as
effective'' status of the State program if a parallel State program
modification were not made, State adoption of a change in response to
the Federal program change shall be required. A Federal program change
that would not result in any diminution of the effectiveness of a State
plan compared to Federal OSHA generally would not require adoption by
the State.
(2) Examples of significant changes to the Federal program that
would normally require a State response would include a change in the
Act, promulgation or revision of OSHA standards or regulations, or
changes in policy or procedure of national importance. A Federal program
change that only establishes procedures necessary to implement a new or
established policy, standard or regulation does not require a State
response, although the State would be expected to establish policies and
procedures which are ``at least as effective,'' which must be available
for review on request.
(3) When there is a change in the Federal program which requires
State action, OSHA shall advise the States. This notification shall also
contain a date by which States must adopt a corresponding change or
submit a statement why a program change is not necessary. This date will
generally be six months from the date of notification, except where the
Assistant Secretary determines that the nature or scope of the change
requires a different time frame, for example, a change requiring
[[Page 50]]
legislative action where a State has a biennial legislature or a policy
of major national implications requiring a shorter implementing time
frame. State notification of intent may be required prior to adoption.
(4) If the State change is different from the Federal program
change, the State shall submit one copy of the required supplement
within 60 days of State adoption. The supplement shall contain a copy of
the relevant legislation, regulation, policy or procedure and
documentation on how the change maintains the ``at least as effective
as'' status of the plan.
(5) If the State adopts a change identical to the Federal program
change, the State is not required to submit a supplement. However, the
State shall provide documentation that it has adopted the change, such
as the cover page of an implementing directive or a notice of
promulgation, within 60 days of State adoption.
(6) The State may demonstrate why a program change is not necessary
because the State program is already the same as or at least as
effective as the Federal program change. Such submissions will require
review and approval as set forth in Sec. 1953.6.
(7) Where there is a change in the Federal program which does not
require State action but is of sufficient national interest to warrant
indication of State intent, the State may be required to provide such
notification within a specified time frame.
(c) Evaluation changes. (1) Special and periodic evaluations of a
State program by OSHA in cooperation with the State may show that some
portion of a State plan has an adverse impact on the effectiveness of
the State program and accordingly requires modification to the State's
underlying legislation, regulations, policy or procedures as an
evaluation change. For example, OSHA could find that additional
legislative or regulatory authority may be necessary to effectively
pursue the State's right of entry into workplaces, or to assure various
employer rights.
(2) OSHA shall advise the State of any evaluation findings that
require a change to the State plan and the reasons supporting this
decision. This notification shall also contain a date by which the State
must accomplish this change and submit either the change supplement or a
timetable for its accomplishment and interim steps to assure continued
program effectiveness, documentation of adoption of a program component
identical to the Federal program component, or, as explained in
paragraph (c)(5) of this section, a statement demonstrating why a
program change is not necessary.
(3) If the State adopts a program component which differs from a
corresponding Federal program component, the State shall submit one copy
of a required supplement within 60 days of adoption of the change. The
supplement shall contain a copy of the relevant legislation, regulation,
policy or procedure and documentation on how the change maintains the
``at least as effective as'' status of the plan.
(4) If the State adopts a program component identical to a Federal
program component, submission of a supplement is not required. However,
the State shall provide documentation that it has adopted the change,
such as the cover page of an implementing directive or a notice of
promulgation, within 60 days of adoption of the change and shall retain
all other documentation within the State available for review upon
request.
(5) The State may demonstrate why a program change is not necessary
because the State program is meeting the requirements for an ``at least
as effective'' program. Such submission will require review and approval
as set forth in Sec. 1953.6.
(d) State-initiated changes. (1) A State-initiated change is any
change to the State plan which is undertaken at a State's option and is
not necessitated by Federal requirements. State-initiated changes may
include legislative, regulatory, administrative, policy or procedural
changes which impact on the effectiveness of the State program.
(2) A State-initiated change supplement is required whenever the
State takes an action not otherwise covered by this part that would
impact on the effectiveness of the State program. The State shall notify
OSHA as soon as it becomes aware of any change which could affect the
State's ability to meet the approval criteria in parts 1902 and
[[Page 51]]
1956 of this chapter, e.g., changes to the State's legislation, and
submit a supplement within 60 days. Other State initiated supplements
must be submitted within 60 days after the change occurred. The State
supplement shall contain a copy of the relevant legislation, regulation,
policy or procedure and documentation on how the change maintains the
``at least as effective as'' status of the plan. If the State fails to
notify OSHA of the change or fails to submit the required supplement
within the specified time period, OSHA shall notify the State that a
supplement is required and set a time period for submission of the
supplement, generally not to exceed 30 days.
Sec. 1953.5 Special provisions for standards changes.
(a) Permanent standards. (1) Where a Federal program change is a new
permanent standard, or a more stringent amendment to an existing
permanent standard, the State shall promulgate a State standard adopting
such new Federal standard, or more stringent amendment to an existing
Federal standard, or an at least as effective equivalent thereof, within
six months of the date of promulgation of the new Federal standard or
more stringent amendment. The State may demonstrate that a standard
change is not necessary because the State standard is already the same
as or at least as effective as the Federal standard change. In order to
avoid delays in worker protection, the effective date of the State
standard and any of its delayed provisions must be the date of State
promulgation or the Federal effective date whichever is later. The
Assistant Secretary may permit a longer time period if the State makes a
timely demonstration that good cause exists for extending the time
limitation. State permanent standards adopted in response to a new or
revised Federal standard shall be submitted as a State plan supplement
within 60 days of State promulgation in accordance with Sec. 1953.4(b),
Federal Program changes.
(2) Because a State may include standards and standards provisions
in addition to Federal standards within an issue covered by an approved
plan, it would generally be unnecessary for a State to revoke a standard
when the comparable Federal standard is revoked or made less stringent.
If the State does not adopt the Federal action, it need only provide
notification of its intent to retain the existing State standard to OSHA
within 6 months of the Federal promulgation date. If the State adopts a
change to its standard parallel to the Federal action, it shall submit
the appropriate documentation as provided in Sec. Sec. 1953.4(b)(3) or
(4)--Federal program changes. However, in the case of standards
applicable to products used or distributed in interstate commerce where
section 18(c)(2) of the Act imposes certain restrictions on State plan
authority, the modification, revision, or revocation of the Federal
standard may necessitate the modification, revision, or revocation of
the comparable State standard unless the State standard is required by
compelling local conditions and does not unduly burden interstate
commerce.
(3) Where a State on its own initiative adopts a permanent State
standard for which there is no Federal parallel, the State shall submit
it within 60 days of State promulgation in accordance with Sec.
1953.4(d)--State-initiated changes,
(b) Emergency temporary standards. (1) Immediately upon publication
of an emergency temporary standard in the Federal Register, OSHA shall
advise the States of the standard and that a Federal program change
supplement shall be required. This notification must also provide that
the State has 30 days after the date of promulgation of the Federal
standard to adopt a State emergency temporary standard if the State plan
covers that issue. The State may demonstrate that promulgation of an
emergency temporary standard is not necessary because the State standard
is already the same as or at least as effective as the Federal standard
change. The State standard must remain in effect for the duration of the
Federal emergency temporary standard which may not exceed six (6)
months.
(2) Within 15 days after receipt of the notice of a Federal
emergency temporary standard, the State shall advise OSHA of the action
it will take. State
[[Page 52]]
standards shall be submitted in accordance with the applicable
procedures in Sec. 1953.4(b)--Federal Program Changes, except that the
required documentation or plan supplement must be submitted within 5
days of State promulgation.
(3) If for any reason, a State on its own initiative adopts a State
emergency temporary standard, it shall be submitted as a plan supplement
in accordance with Sec. 1953.4(c), but within 10 days of promulgation.
Sec. 1953.6 Review and approval of plan supplements.
(a) OSHA shall review a supplement to determine whether it is at
least as effective as the Federal program and meets the criteria in the
Act and implementing regulations and the assurances in the State plan.
If the review reveals any defect in the supplement, or if more
information is needed, OSHA shall offer assistance to the State and
shall provide the State an opportunity to clarify or correct the change.
(b) If upon review, OSHA determines that the differences from a
corresponding Federal component are purely editorial and do not change
the substance of the policy or requirements on employers, it shall deem
the change identical. This includes ``plain language'' rewrites of new
Federal standards or previously approved State standards which do not
change the meaning or requirements of the standard. OSHA will inform the
State of this determination. No further review or Federal Register
publication is required.
(c) Federal OSHA may seek public comment during its review of plan
supplements. Generally, OSHA will seek public comment if a State program
component differs significantly from the comparable Federal program
component and OSHA needs additional information on its compliance with
the criteria in section 18(c) of the Act, including whether it is at
least as effective as the Federal program and in the case of a standard
applicable to products used or distributed in interstate commerce,
whether it is required by compelling local conditions or unduly burdens
interstate commerce under section 18(c)(2) of the Act.
(d) If the plan change meets the approval criteria, OSHA shall
approve it and shall thereafter publish a Federal Register notice
announcing the approval. OSHA reserves the right to reconsider its
decision should subsequent information be brought to its attention.
(e) If a State fails to submit a required supplement or if
examination discloses cause for rejecting a submitted supplement, OSHA
shall provide the State a reasonable time, generally not to exceed 30
days, to submit a revised supplement or to show cause why a proceeding
should not be commenced either for rejection of the supplement or for
failure to adopt the change in accordance with the procedures in Sec.
1902.17 or Part 1955 of this chapter.
PART 1954_PROCEDURES FOR THE EVALUATION AND MONITORING
OF APPROVED STATE PLANS--Table of Contents
Subpart A_General
Sec.
1954.1 Purpose and scope.
1954.2 Monitoring system.
1954.3 Exercise of Federal discretionary authority.
Subpart B_State Monitoring Reports and Visits to State Agencies
1954.10 Reports from the States.
1954.11 Visits to State agencies.
Subpart C_Complaints About State Program Administration (CASPA)
1954.20 Complaints about State program administration.
1954.21 Processing and investigating a complaint.
1954.22 Notice provided by State.
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of
Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 39 FR 1838, Jan. 15, 1974, unless otherwise noted.
Subpart A_General
Sec. 1954.1 Purpose and scope.
(a) Section 18(f) of the Williams-Steiger Occupational Safety and
Health Act of 1970 (hereinafter referred to as the Act) provides that
``the Secretary shall, on the basis of reports
[[Page 53]]
submitted by the State agency and his own inspections make a continuing
evaluation of the manner in which each State having a plan approved * *
* is carrying out such plan.''
(b) This part 1954 applies to the provisions of section 18(f) of the
Act relating to the evaluation of approved plans for the development and
enforcement of State occupational safety and health standards. The
provisions of this part 1954 set forth the policies and procedures by
which the Assistant Secretary for Occupational Safety and Health
(hereinafter referred to as the Assistant Secretary) under a delegation
of authority from the Secretary of Labor (Secretary's Order 12-71, 36 FR
8754, May 12, 1971) will continually monitor and evaluate the operation
and administration of approved State plans.
(c) Following approval of a State plan under section 18(c) of the
Act, workplaces in the State are subject to a period of concurrent
Federal and State authority. The period of concurrent enforcement
authority must last for at least three years. Before ending Federal
enforcement authority, the Assistant Secretary is required to make a
determination as to whether the State plan, in actual operation, is
meeting the criteria in section 18(c) of the Act including the
requirements in part 1902 of this chapter and the assurances in the
approval plan itself. After an affirmative determination has been made,
the provisions of sections 5(a)(2), 8 (except for the purpose of
carrying out section 18(f) of the Act), 9, 10, 13, and 17 of the Act
shall not apply with respect to any occupational safety or health issues
covered under the plan. The Assistant Secretary may, however, retain
jurisdiction under the above provisions in any proceeding commenced
under section 9 or 10 of the Act before the date of the determination
under section 18(e) of the Act.
(d) During this period of concurrent Federal and State authority,
the operation and administration of the plan will be continually
evaluated under section 18(f) of the Act. This evaluation will continue
even after an affirmative determination has been made under section
18(e) of the Act.
Sec. 1954.2 Monitoring system.
(a) To carry out the responsibilities for continuing evaluation of
State plans under section 18(f) of the Act, the Assistant Secretary has
established a State Program Performance Monitoring System. Evaluation
under this monitoring system encompasses both the period before and
after a determination has been made under section 18(e) of the Act. The
monitoring system is a three phased system designed to assure not only
that developmental steps are completed and that the operational plan is,
in fact, at least as effective as the Federal program with respect to
standards and enforcement, but also to provide a method for continuing
review of the implementation of the plan and any modifications thereto
to assure compliance with the provisions of the plan during the time the
State participates in the cooperative Federal-State program.
(b) Phase I of the system begins with the initial approval of a
State plan and continues until the determination required by section
18(e) of the Act is made. During Phase I, the Assistant Secretary will
secure monitoring data to make the following key decisions:
(1) What should be the level of Federal enforcement;
(2) Should plan approval be continued; and
(3) What level of technical assistance is needed by the State to
enable it to have an effective program.
(c) Phase II of the system relates to the determination required by
section 18(e) of the Act. The Assistant Secretary must decide, after no
less than three years following approval of the plan, whether or not to
relinquish Federal authority to the State for issues covered by the
occupational safety and health program in the State plan. Phase II will
be a comprehensive evaluation of the total State program, drawing upon
all information collected during Phase I.
(d) Phase III of the system begins after an affirmative
determination has been made under section 18(e) of the Act. The
continuing evaluation responsibility will be exercised under Phase III,
and will provide data concerning the total operations of a State program
to enable the Assistant Secretary to
[[Page 54]]
determine whether or not the plan approval should be continued or
withdrawn.
(e) The State program performance monitoring system provides for,
but is not limited to, the following major data inputs:
(1) Quarterly and annual reports of State program activity;
(2) Visits to State agencies;
(3) On-the-job evaluation of State compliance officers; and
(4) Investigation of complaints about State program administration.
Sec. 1954.3 Exercise of Federal discretionary authority.
(a)(1) When a State plan is approved under section 18(c) of the Act,
Federal authority for enforcement of standards continues in accordance
with section 18(e) of the Act. That section prescribes a period of
concurrent Federal-State enforcement authority which must last for at
least three years, after which time the Assistant Secretary shall make a
determination whether, based on actual operations, the State plan meets
all the criteria set forth in section 18(c) of the Act and the
implementing regulations in 29 CFR part 1902 and subpart A of 29 CFR
part 1952. During this period of concurrent authority, the Assistant
Secretary may, but shall not be required to, exercise his authority
under sections 5(a)(2), 8, 9, 10, 13 and 17 of the Act with respect to
standards promulgated under section 6 of the Act where the State has
comparable standards. Accordingly, section 18(e) authorizes, but does
not require, the Assistant Secretary to exercise his discretionary
enforcement authority over all the issues covered by a State plan for
the entire 18(e) period.
(2) Existing regulations at 29 CFR part 1902 set forth factors to be
considered in determining how Federal enforcement authority should be
exercised. These factors include:
(i) Whether the plan is developmental or complete;
(ii) Results of evaluations conducted by the Assistant Secretary;
(iii) The State's schedule for meeting Federal standards; and
(iv) Any other relevant matters.
(29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii).
(3) Other relevant matters requiring consideration in the decision
as to the level of Federal enforcement include:
(i) Coordinated utilization of Federal and State resources to
provide effective worker protection throughout the Nation;
(ii) Necessity for clarifying the rights and responsibilities of
employers and employees with respect to Federal and State authority;
(iii) Increasing responsibility for administration and enforcement
by States under an approved plan for evaluation of their effectiveness;
and
(iv) The need to react promptly to any failure of the States in
providing effective enforcement of standards.
(b) Guidelines for determining the appropriate level of Federal
enforcement. In light of the requirements of 29 CFR part 1902 as well as
the factors mentioned in paragraph (a)(3) of this section, the following
guidelines for the extent of the exercise of discretionary Federal
authority have been determined to be reasonable and appropriate. When a
State plan meets all of these guidelines it will be considered
operational, and the State will conduct all enforcement activity
including inspections in response to employee complaints, in all issues
where the State is operational. Federal enforcement activity will be
reduced accordingly and the emphasis will be placed on monitoring State
activity in accordance with the provisions of this part.
(1) Enabling legislation. A State with an approved plan must have
enacted enabling legislation substantially in conformance with the
requirements of section 18(c) and 29 CFR part 1902 in order to be
considered operational. This legislation must have been reviewed and
approved under 29 CFR part 1902. States without such legislation, or
where State legislation as enacted requires substantial amendments to
meet the requirements of 29 CFR part 1902, will not be considered
operational.
(2) Approved State standards. The State must have standards
promulgated under State law which are identical to Federal standards; or
have been found to be at least as effective as the comparable Federal
standards; or have been reviewed by OSHA and found to provide overall
protection equal to
[[Page 55]]
comparable Federal standards. Review of the effectiveness of State
standards and their enforcement will be a continuing function of the
evaluation process. Where State standards in an issue have not been
promulgated by the State or have been promulgated and found not to
provide overall protection equal to comparable Federal standards, the
State will not be considered operational as to those issues.
(3) Personnel. The State must have a sufficient number of qualified
personnel who are enforcing the standards in accordance with the State's
enabling legislation. Where a State lacks the qualified personnel to
enforce in a particular issue; e.g., Occupational Health, the State will
not be considered operational as to that issue even though it has
enabling legislation and standards.
(4) Review of enforcement actions. Provisions for review of State
citations and penalties, including the appointment of the reviewing
authority and the promulgation of implementing regulations, must be in
effect.
(c)(1) Evaluation reports. One of the factors to consider in
determining the level of Federal enforcement is the result of
evaluations conducted under the monitoring system described in this
part. While completion of an initial comprehensive evaluation of State
operations is not generally a prerequisite for a determination that a
State is operational under paragraph (b) of this section, such
evaluations will be used in determining the Federal enforcement
responsibility in certain circumstances.
(2) Where evaluations have been completed prior to the time a
determination as to the operational status of a State plan is made, the
results of those evaluations will be included in the determination.
(3) Where the results of one or more evaluations conducted during
the operation of a State plan and prior to an 18(e) determination reveal
that actual operations as to one or more aspects of the plan fail in a
substantial manner to be at least as effective as the Federal program,
and the State does not adequately resolve the deficiencies in accordance
with subpart C of part 1953, the appropriate level of Federal
enforcement activity shall be reinstated. An example of such deficiency
would be a finding that State standards and their enforcement in an
issue are not at least as effective as comparable Federal standards and
their enforcement. Federal enforcement activity may also be reinstated
where the Assistant Secretary determines that such action is necessary
to assure occupational safety and health protection to employees.
(d)(1) Recognition of State procedures. In order to resolve
potential conflicting responsibilities of employers and employees,
Federal authority will be exercised in a manner designed to recognize
the implementation of State procedures in accordance with approved plans
in areas such as variances, informing employees of their rights and
obligations, and recordkeeping and reporting requirements.
(i) Subject to pertinent findings of effectiveness under this part,
Federal enforcement proceedings will not be initiated where an employer
is in compliance with a State standard which has been found to be at
least as effective as the comparable Federal standard, or with any
temporary or permanent variance granted to such employer with regard to
the employment or place of employment from such State standard, or any
order or interim order in connection therewith, or any modification or
extension thereof: Provided such variance action was taken under the
terms and procedures required under Sec. 1902.4(b)(2)(iv) of this
chapter, and the employer has certified that he has not filed for such
variance on the same set of facts with the Assistant Secretary.
(ii) Subject to pertinent findings of effectiveness under this part,
and approval under part 1953 of this chapter, Federal enforcement
proceedings will not be initiated where an employer has posted the
approved State poster in accordance with the applicable provisions of an
approved State plan and Sec. 1902.9 of this chapter.
(iii) Subject to pertinent findings of effectiveness under this
part, and approval under part 1953 of this chapter, Federal enforcement
proceedings will not be initiated where an employer is in compliance
with the recordkeeping
[[Page 56]]
and reporting requirements of an approved State plan as provided in
Sec. 1902.7 of this chapter.
(2) [Reserved]
(e) Discrimination complaints. State plan provisions on employee
discrimination do not divest the Secretary of Labor of any authority
under section 11(c) of the Act. The Federal authority to investigate
discrimination complaints exists even after an affirmative 18(e)
determination. (See South Carolina decision 37 FR 25932, December 6,
1972). Employee complaints alleging discrimination under section 11(c)
of the Act will be subject to Federal jurisdiction.
(f)(1) Procedural agreements. A determination as to the operational
status of a State plan shall be accompanied by an agreement with the
State setting forth the Federal-State responsibilities as follows:
(i) Scope of the State's operational status including the issues
excluded from the plan, the issues where State enforcement will not be
operational at the time of the agreement and the dates for commencement
of operations;
(ii) Procedures for referral, investigation and enforcement of
employee requests for inspections;
(iii) Procedures for reporting fatalities and catastrophes by the
agency which has received the report to the responsible enforcing
authority both where the State has and has not adopted the requirement
that employers report as provided in 29 CFR 1904.8;
(iv) Specifications as to when and by what means the operational
guidelines of this section were met; and
(v) Provision for resumption of Federal enforcement activity for
failure to substantially comply with this agreement, or as a result of
evaluation or other relevant factors.
(2) Upon approval of these agreements, the Assistant Secretary shall
cause to be published in the Federal Register, notice of the operational
status of each approved State plan.
(3) Where subsequent changes in the level of Federal enforcement are
made, similar Federal Register notices shall be published.
[39 FR 22126, June 20, 1974, as amended at 39 FR 29182, Aug. 14, 1974;
39 FR 39036, Nov. 5, 1974; 40 FR 25450, June 16, 1975; 67 FR 60129,
Sept. 25, 2002; 80 FR 49908, Aug. 18, 2015]
Subpart B_State Monitoring Reports and Visits to State Agencies
Sec. 1954.10 Reports from the States.
(a) In addition to any other reports required by the Assistant
Secretary under sections 18(c)(8) and 18(f) of the Act and Sec.
1902.3(1) of this chapter, the State shall submit quarterly and annual
reports as part of the evaluation and monitoring of State programs. \1\
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\1\ Such quarterly and annual reports forms may be obtained from the
Office of the Assistant Regional Director in whose Region the State is
located.
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(b) Each State with an approved State plan shall submit to the
appropriate Regional Office an annual occupational safety and health
report in the form and detail provided for in the report and the
instructions contained therein.
(c) Each State with an approved State plan shall submit to the
appropriate Regional Office a quarterly occupational safety and health
compliance and standards activity report in the form and detail provided
for in the report and the instructions contained therein.
Sec. 1954.11 Visits to State agencies.
As a part of the continuing monitoring and evaluation process, the
Assistant Secretary or his representative shall conduct visits to the
designated agency or agencies of State with approved plans at least
every 6 months. An opportunity may also be provided for discussion and
comments on the effectiveness of the State plan from other interested
persons. These visits will be scheduled as needed. Periodic audits will
be conducted to assess the progress of the overall State program in
meeting the goal of becoming at least as effective as the Federal
program. These audits will include case file review and follow-up
inspections of workplaces.
[[Page 57]]
Subpart C_Complaints About State Program Administration (CASPA)
Sec. 1954.20 Complaints about State program administration.
(a) Any interested person or representative of such person or groups
of persons may submit a complaint concerning the operation or
administration of any aspect of a State plan. The complaint may be
submitted orally or in writing to the Assistant Regional Director for
Occupational Safety and Health (hereinafter referred to as the Assistant
Regional Director) or his representative in the Region where the State
is located.
(b) Any such complaint should describe the grounds for the complaint
and specify the aspect or aspects of the administration or operation of
the plan which is believed to be inadequate. A pattern of delays in
processing cases, of inadequate workplace inspections, or the granting
of variances without regard to the specifications in the State plans,
are examples.
(c)(1) If upon receipt of the complaint, the Assistant Regional
Director determines that there are reasonable grounds to believe that an
investigation should be made, he shall cause such investigation,
including any workplace inspection, to be made as soon as practicable.
(2) In determining whether an investigation shall be conducted and
in determining the timing of such investigation, the Assistant Regional
Director shall consider such factors as:
(i) The extent to which the complaint affects any substantial number
of persons;
(ii) The number of complaints received on the same or similar issues
and whether the complaints relate to safety and health conditions at a
particular establishment;
(iii) Whether the complainant has exhausted applicable State
remedies; and
(iv) The extent to which the subject matter of the complaint is
pertinent to the effectuation of Federal policy.
Sec. 1954.21 Processing and investigating a complaint.
(a) Upon receipt of a complaint about State program administration,
the Assistant Regional Director will acknowledge its receipt and may
forward a copy of the complaint to the designee under the State plan and
to such other person as may be necessary to complete the investigation.
The complainant's name and the names of other complainants mentioned
therein will be deleted from the complaint and the names shall not
appear in any record published, released or made available.
(b) In conducting the investigation, the Assistant Regional Director
may obtain such supporting information as is appropriate to the
complaint. Sources for this additional information may include ``spot-
check'' follow-up inspections of workplaces, review of the relevant
State files, and discussion with members of the public, employers,
employees and the State.
(c) On the basis of the information obtained through the
investigation, the Assistant Regional Director shall advise the
complainant of the investigation findings and in general terms, any
corrective action that may result. A copy of such notification shall be
sent to the State and it shall be considered part of the evaluation of
the State plan.
(d) If the Assistant Regional Director determines that there are no
reasonable grounds for an investigation to be made with respect to a
complaint under this Subpart, he shall notify the complaining party in
writing of such determination. Upon request of the complainant, or the
State, the Assistant Regional Director, at his discretion, may hold an
informal conference. After considering all written and oral views
presented the Assistant Regional Director shall affirm, modify, or
reverse his original determination and furnish the complainant with
written notification of his decision and the reasons therefore. Where
appropriate the State may also receive such notification.
Sec. 1954.22 Notice provided by State.
(a)(1) In order to assure that employees, employers, and members of
the public are informed of the procedures for complaints about State
program administration, each State with an approved State plan shall
adopt not later
[[Page 58]]
than July 1, 1974, a procedure not inconsistent with these regulations
or the Act, for notifying employees, employers and the public of their
right to complain to the Occupational Safety and Health Administration
about State program administration.
(2) Such notification may be by posting of notices in the workplace
as part of the requirement in Sec. 1902.4(c)(2)(iv) of this chapter and
other appropriate sources of information calculated to reach the public.
(b) [Reserved]
PART 1955_PROCEDURES FOR WITHDRAWAL OF APPROVAL OF STATE PLANS--
Table of Contents
Subpart A_General
Sec.
1955.1 Purpose and scope.
1955.2 Definitions.
1955.3 General policy.
1955.4 Effect of withdrawal of approval.
1955.5 Petitions for withdrawal of approval.
Subpart B_Notice of Formal Proceeding
1955.10 Publication of notice of formal proceeding.
1955.11 Contents of notice of formal proceeding.
1955.12 Administrative law judge; powers and duties.
1955.13 Disqualification.
1955.14 Ex parte communications.
1955.15 Manner of service and filing.
1955.16 Time.
1955.17 Determination of parties.
1955.18 Provision for written comments.
Subpart C_Consent Findings and Summary Decisions
1955.20 Consent findings and orders.
1955.21 Motion for a summary decision.
1955.22 Summary decision.
Subpart D_Preliminary Conference and Discovery
1955.30 Submission of documentary evidence.
1955.31 Preliminary conference.
1955.32 Discovery.
1955.33 Sanctions for failure to comply with orders.
1955.34 Fees of witnesses.
Subpart E_Hearing and Decision
1955.40 Hearings.
1955.41 Decision of the administrative law judge.
1955.42 Exceptions.
1955.43 Transmission of the record.
1955.44 Final decision.
1955.45 Effect of appeal of administrative law judge's decision.
1955.46 Finality for purposes of judicial review.
1955.47 Judicial review.
Authority: Secs. 8 and 18, 84 Stat. 1608 (29 U.S.C. 657, 667);
Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 40 FR 23467, May 30, 1975, unless otherwise noted.
Subpart A_General
Sec. 1955.1 Purpose and scope.
(a) This part contains rules of practice and procedure for formal
administrative proceedings on the withdrawal of initial or final
approval of State plans in accordance with section 18(f) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 667).
(b) These rules shall be construed to secure a prompt and just
conclusion of the proceedings subject thereto.
Sec. 1955.2 Definitions.
(a) As used in this part unless the context clearly requires
otherwise:
(1) Act means the Occupational Safety and Health Act of 1970;
(2) Assistant Secretary means Assistant Secretary of Labor for
Occupational Safety and Health;
(3) Commencement of a case under section 18(f) of the Act means, for
the purpose of determining State jurisdiction following a final decision
withdrawing approval of a plan, the issuance of a citation.
(4) Developmental step includes, but is not limited to, those items
listed in the published developmental schedule, or any revisions
thereto, for each plan. A developmental step also includes those items
in the plan as approved under section 18(c) of the Act, as well as those
items in the approval decision which are subject to evaluations (see
e.g., approval of Michigan plan), which were deemed necessary to make
the State program at least as effective as the Federal program within
the 3 year developmental period. (See part 1953 of this chapter.)
[[Page 59]]
(5) Final approval means approval of the State plan, or any
modification thereof under section 18(e) of the Act and subpart D of 29
CFR part 1902.
(6) Initial approval means approval of a State plan, or any
modification thereof under section 18(c) of the Act and subpart C of 29
CFR part 1902;
(7) Party includes the State agency or agencies designated to
administer and enforce the State plan that is the subject of withdrawal
proceedings, the Department of Labor, Occupational Safety and Health
Administration (hereinafter called OSHA), represented by the Office of
the Solicitor and any person participating in the proceedings pursuant
to Sec. 1955.17;
(8) Person means an individual, partnership, association,
corporation, business trust, legal representative, an organized group of
individuals, or an agency, authority, or instrumentality of the United
States or of a State;
(9) Secretary means Secretary of Labor;
(10) Separable portion of a plan for purposes of withdrawal of
approval generally means an issue as defined in 29 CFR 1902.2(c), i.e.,
``an industrial, occupational or hazard grouping which is at least as
comprehensive as a corresponding grouping contained in (i) one or more
sections in subpart B or R of part 1910 of this chapter, or (ii) one or
more of the remaining subparts of part 1910'': Provided, That wherever
the Assistant Secretary has determined that other industrial,
occupational or hazard groupings are administratively practicable, such
groupings shall be considered separable portions of a plan.
(b) [Reserved]
[40 FR 23467, May 30, 1975, as amended at 67 FR 60129, Sept. 25, 2002;
80 FR 49908, Aug. 18, 2015]
Sec. 1955.3 General policy.
(a) The following circumstances shall be cause for initiation of
proceedings under this part for withdrawal of approval of a State plan,
or any portion thereof.
(1) Whenever the Assistant Secretary determines that under Sec.
1902.2(b) of this chapter a State has not substantially completed the
developmental steps of its plan at the end of three years from the date
of commencement of operations, a withdrawal proceeding shall be
instituted. Examples of a lack of substantial completion of
developmental steps include but are not limited to the following:
(i) A failure to develop the necessary regulations and
administrative guidelines for an ``at least as effective'' enforcement
program;
(ii) Failure to promulgate all or a majority of the occupational
safety and health standards in an issue covered by the plan; or
(iii) Failure to enact the required enabling legislation.
(2) Whenever the Assistant Secretary determines that there is no
longer a reasonable expectation that a State plan will meet the criteria
of Sec. 1902.3 of this chapter involving the completion of
developmental steps within the three year period immediately following
commencement of operations, a withdrawal proceeding shall be instituted.
Examples of a lack of reasonable expectation include but are not limited
to the following:
(i) A failure to enact enabling legislation in the first two years
following commencement of operations where the remaining developmental
steps are dependent on the passage of enabling legislation and cannot be
completed within one year; or
(ii) Repeal or substantial amendment of the enabling legislation by
the State legislature so that the State program fails to meet the
criteria in Sec. 1902.3 of this chapter; or
(iii) Inability to complete the developmental steps within the
indicated three year period.
(3) Whenever the Assistant Secretary determines that in the
operation or administration of a State plan, or as a result of any
modifications to a plan, there is a failure to comply substantially with
any provision of the plan, including assurances contained in the plan, a
withdrawal proceeding shall be instituted in a State which has received
final approval under section 18(e) of the Act, and may be instituted in
a State which has received initial approval under section 18(c) of the
Act. Examples of a lack of substantial compliance include but are not
limited to the following:
[[Page 60]]
(i) Where a State over a period of time consistently fails to
provide effective enforcement of standards;
(ii) Where the rights of employees are circumscribed in such a
manner as to diminish the effectiveness of the program;
(iii) Where a State, without good cause, fails to continue to
maintain its program in accordance with the appropriate changes in the
Federal program;
(iv) Where a State fails to comply with the required assurances on a
sufficient number of qualified personnel and/or adequate resources for
administration and enforcement of the program; or
(v) Where, on the basis of actual operations, the Assistant
Secretary determines that the criteria in section 18(c) of the Act are
not being met, that the period of concurrent authority under section
18(e) of the Act should not be extended, and that final approval under
section 18(e) of the Act should not be given.
(b) A State may, at any time both before or after a determination
under section 18(e) of the Act, voluntarily withdraw its plan, or any
portion thereof, by notifying the Assistant Secretary in writing setting
forth the reasons for such withdrawal. Such notification shall be
accompanied by a letter terminating the application for related grants
authorized under section 23(g) of the Act in accordance with 29 CFR
1951.25(d). Upon receipt of the State notice the Assistant Secretary
shall cause to be published in the Federal Register a notice of
withdrawal of approval of the State plan or portion thereof (see Montana
notice 39 FR 2361, June 27, 1974).
(c) Approval of a portion of a plan may be withdrawn under any of
the paragraphs in this section when it is determined that that portion
is reasonably separable from the remainder of the plan in a manner
consistent with the provisions in Sec. 1902.2(c) of this chapter
defining the scope of a State plan. As an example, such a partial
withdrawal of approval would be considered appropriate where a State
fails to adopt, without good cause shown, Federal standards within a
separable issue, such as occupational health.
[40 FR 23467, May 30, 1975, as amended at 67 FR 60129, Sept. 25, 2002]
Sec. 1955.4 Effect of withdrawal of approval.
(a) After receipt of notice of withdrawal of approval of a State
plan, such plan, or any part thereof, shall cease to be in effect and
the provisions of the Federal Act shall apply within that State. But the
State, in accordance with section 18(f) of the Act, may retain
jurisdiction in any case commenced before receipt of the notice of
withdrawal of approval of the plan, in order to enforce standards under
the plan, whenever the issues involved in the case or cases pending do
not relate to the reasons for withdrawal of the plan.
(b) Such notice of withdrawal of approval shall operate
constructively as notice of termination of all related grants authorized
under section 23(g) of the Act in accordance with 29 CFR 1951.25(c).
Sec. 1955.5 Petitions for withdrawal of approval.
(a) At any time following the initial approval of a State plan under
section 18(c) of the Act, any interested person may petition the
Assistant Secretary in writing to initiate proceedings for withdrawal of
approval of the plan under section 18(f) of the Act and this part. The
petition shall contain a statement of the grounds for initiating a
withdrawal proceeding, including facts to support the petition.
(b)(1) The Assistant Secretary may request the petitioner for
additional facts and may take such other actions as are considered
appropriate such as:
(i) Publishing the petition for public comment;
(ii) Holding informal discussion on the issues raised by the
petition with the State and other persons affected; or
(iii) Holding an informal hearing in accordance with Sec. 1902.13
of this chapter.
(2) Any such petition shall be considered and acted upon within a
reasonable time. Prompt notice shall be given of the denial in whole or
in part of any
[[Page 61]]
petition and the notice shall be accompanied by a brief statement of the
grounds for the denial. A denial of a petition does not preclude future
action on those issues or any other issues raised regarding a State
plan.
Subpart B_Notice of Formal Proceeding
Sec. 1955.10 Publication of notice of formal proceeding.
(a) The Assistant Secretary, prior to any notice of a formal
proceeding under this subpart, shall by letter, provide the State with
an opportunity to show cause within 45 days why a proceeding should not
be instituted for withdrawal of approval of a plan or any portion
thereof. When a State fails to show cause why a formal proceeding for
withdrawal of approval should not be instituted, the State shall be
deemed to have waived its right to a formal proceeding under paragraph
(b) of this section and the Assistant Secretary shall cause to be
published in the Federal Register a notice of withdrawal of approval of
the State plan.
(b)(1) Whenever the Assistant Secretary, on the basis of a petition
under Sec. 1955.5 or on his own initiative, determines that approval of
a State plan or any portion thereof should be withdrawn, and the State
has not waived its right under Sec. 1955.3(b) or paragraph (a) of this
section to a formal proceeding, he shall publish a notice of proposed
withdrawal in the Federal Register as set out in Sec. 1955.11 and cause
such notice, in the form of a complaint, to be served on the State in
accordance with Sec. 1955.15.
(2) Not later than 5 days following the publication of the notice in
the Federal Register, the State agency shall publish, or cause to be
published, within the State reasonable notice containing a summary of
the information in the Federal notice, as well as the location or
locations where a copy of the full notice is available for inspection
and public copying.
(3) Two copies of such notice shall be served on the Assistant
Secretary in accordance with Sec. 1955.15.
(c) Not less than 30 days following publication of the notice in the
Federal Register, the State shall submit a statement of those items in
the notice which are being contested and a brief statement of the facts
relied upon, including whether the use of witnesses is intended. This
statement shall be served on the Assistant Secretary in accordance with
Sec. 1955.15. When a State fails to respond to the notice of proposed
withdrawal under paragraph (b)(1) of this section, the State shall be
deemed to have waived its right to a formal proceeding and the Assistant
Secretary shall cause to be published in the Federal Register a notice
of withdrawal of approval.
Sec. 1955.11 Contents of notice of formal proceeding.
(a) A notice of a formal proceeding published under Sec. 1955.10
shall include:
(1) A statement on the nature of the proceeding and addresses for
filing all papers;
(2) The legal authority under which the proceeding is to be held;
(3) A description of the issues and the grounds for the Assistant
Secretary's proposed withdrawal of approval;
(4) A specified period, generally not less than 30 days after
publication of the notice in the Federal Register, for the State to
submit a response to the statement of issues in the notice;
(5) A provision for designation of an administrative law judge under
5 U.S.C. 3105 to preside over the proceeding.
(b) A copy of the notice of the proceeding stating the basis for the
Assistant Secretary's determination that approval of the plan, or any
portion thereof, should be withdrawn shall be referred to the
administrative law judge.
Sec. 1955.12 Administrative law judge; powers and duties.
(a) The administrative law judge appointed under 5 U.S.C. 3105 and
designated by the Chief Administrative Law Judge to preside over a
proceeding shall have all powers necessary and appropriate to conduct a
fair, full, and impartial proceeding, including the following:
(1) To administer oaths and affirmations;
[[Page 62]]
(2) To rule upon offers of proof and receive relevant evidence;
(3) To provide for discovery, including the issuance of subpoenas
authorized by section 8(b) of the Act and 5 U.S.C. 555(d) and 556(c)(2),
and to determine the scope and time limits of the discovery;
(4) To regulate the course of the proceeding and the conduct of the
parties and their counsel;
(5) To consider and rule upon procedural requests, e.g. motions for
extension of time;
(6) To hold preliminary conferences for the settlement or
simplification of issues;
(7) To take official notice of material facts not appearing in the
evidence in the record in accordance with Sec. 1955.40(c);
(8) To render an initial decision;
(9) To examine and cross-examine witnesses;
(10) To take any other appropriate action authorized by the Act, the
implementing regulations, or the Administrative Procedure Act, 5 U.S.C.
554-557 (hereinafter called the APA).
(b) On any procedural question not otherwise regulated by this part,
the Act, or the APA, the administrative law judge shall be guided to the
extent practicable by the pertinent provisions of the Federal Rules of
Civil Procedure.
Sec. 1955.13 Disqualification.
(a) If an administrative law judge deems himself disqualified to
preside over a particular proceeding, he shall withdraw by notice on the
record directed to the Chief Administrative Law Judge. Any party who
deems an administrative law judge, for any reason, to be disqualified to
preside, or to continue to preside, over a particular proceeding may
file a motion to disqualify and remove the administrative law judge,
provided the motion is filed prior to the time the administrative law
judge files his decision. Such motion must be supported by affidavits
setting forth the alleged ground for disqualification. The Chief
Administrative Law Judge shall rule upon the motion.
(b) Contumacious conduct at any proceeding before the administrative
law judge shall be ground for summary exclusion from the proceeding. If
a witness or party refuses to answer a question after being so directed,
or refuses to obey an order to provide or permit discovery, the
administrative law judge may make such orders with regard to the refusal
as are just and proper, including the striking of all testimony
previously given by such witness on related matters.
Sec. 1955.14 Ex parte communications.
(a) Except to the extent required for the disposition of ex parte
matters, the administrative law judge shall not consult any interested
person or party or their representative on any fact in issue or on the
merits of any matter before him except upon notice and opportunity for
all parties to participate.
(b)(1) Written or oral communications from interested persons
outside the Department of Labor involving any substantive or procedural
issues in a proceeding directed to the administrative law judge, the
Secretary of Labor, the Assistant Secretary, the Associate Assistant
Secretary for Regional Programs, the Solicitor of Labor, or the
Associate Solicitor for Occupational Safety and Health, or their staffs
shall be deemed ex parte communications and are not to be considered
part of any record or the basis for any official decision, unless the
communication is made by motion to the administrative law judge and
served upon all the parties.
(2) To facilitate implementation of this requirement, the above-
mentioned offices shall keep a log of such communications which shall be
made available to the public and which may, by motion, be entered into
the record.
(c) No employee or agent of the Department of Labor engaged in the
investigation or presentation of the withdrawal proceeding governed by
this part shall participate or advise in the initial or final decision,
except as a witness or counsel in the proceeding.
Sec. 1955.15 Manner of service and filing.
(a) Service of any document upon any party may be made by personal
delivery of, or by mailing a copy of the document by certified mail, to
the last known address of the party or his representative. The person
serving the
[[Page 63]]
document shall certify to the manner and date of service.
(b) In addition to serving a copy of any documents upon the parties,
the original and two copies of each document shall be filed with the
administrative law judge. With respect to exhibits and transcripts, only
originals or certified copies need be filed.
Sec. 1955.16 Time.
Computation of any period of time under these rules shall begin with
the first business day following that on which the act, event or
development initiating such period of time shall have occurred. When the
last day of the period so computed is a Saturday, Sunday, or national
holiday, or other day on which the Department of Labor is closed, the
period shall run until the end of the next following business day. When
such period of time is 7 days or less, each of the Saturdays, Sundays,
and such holidays shall be excluded from the computation.
Sec. 1955.17 Determination of parties.
(a) The designated State agency or agencies and the Department of
Labor, OSHA, shall be the initial parties to the proceedings. Other
interested persons may, at the discretion of the administrative law
judge, be granted the right to participate as parties if he determines
that the final decision could substantially affect them or the class
they represent or that they may contribute materially to the disposition
of the proceedings.
(b)(1) Any person wishing to participate in any proceeding as a
party under paragraph (a) of this section shall submit a petition to the
administrative law judge within 30 days after the notice of such
proceeding has been published in the Federal Register. The petition
shall also be served upon the other parties. Such petition shall
concisely state:
(i) Petitioner's interest in the proceeding;
(ii) How his participation as a party will contribute materially to
the disposition of the proceeding;
(iii) Who will appear for petitioner;
(iv) The issue or issues as set out in the notice published under
Sec. 1955.10 of this part on which petitioner wishes to participate;
and
(v) Whether petitioner intends to present witnesses.
(2) The administrative law judge shall, within 5 days of receipt of
the petition, ascertain what objections, if any, there are to the
petition. He shall then determine whether the petitioner is qualified in
his judgment to be a party in the proceedings and shall permit or deny
participation accordingly. The administrative law judge shall give each
petitioner written notice of the decision on his petition promptly. If
the petition is denied, the notice shall briefly state the grounds for
denial. Persons whose petition for party participation is denied may
appeal the decision to the Secretary within 5 days of receipt of the
notice of denial. The Secretary will make the final decision to grant or
deny the petition no later than 20 days following receipt of the appeal.
(3) Where the petitions to participate as parties are made by
individuals or groups with common interests, the administrative law
judge may require all such petitioners to designate a single
representative, or he may recognize one or more of such petitioners to
represent all such petitioners.
Sec. 1955.18 Provision for written comments.
Any person who is not a party may submit a written statement of
position with 4 copies to either the Assistant Secretary or the State at
any time during the proceeding which statement shall be made available
to all parties and may be introduced into evidence by a party. Mere
statements of approval or opposition to the plan without any documentary
support shall not be considered as falling within this provision.
Subpart C_Consent Findings and Summary Decisions
Sec. 1955.20 Consent findings and orders.
(a)(1) At any time during the proceeding a reasonable opportunity
may be afforded to permit negotiation by the parties of an agreement
containing consent findings and a rule or order disposing of the whole
or any part of
[[Page 64]]
the proceeding. The allowance of such opportunity and the duration
thereof shall be in the discretion of the administrative law judge,
after consideration of the requirements of section 18 of the Act, the
nature of the proceeding, the requirements of the public interest, the
representations of the parties, and the probability of an agreement
which will result in a just disposition of the issues.
(2) Any agreement containing consent findings and a rule or order
disposing of a proceeding shall also provide:
(i) That the rule or order shall have the same force and effect as
if made after a full hearing;
(ii) A waiver of any further procedural steps before the
administrative law judge and the Secretary; and
(iii) A waiver of any right to challenge or contest the validity of
the findings and of the rule or order made in accordance with the
agreement.
(b)(1) On or before the expiration of the time granted for
negotiations, the parties or their counsel may:
(i) Submit the proposed agreement to the administrative law judge
for his consideration; or
(ii) Inform the administrative law judge that agreement cannot be
reached.
(2) In the event an agreement containing consent findings and a rule
or order is submitted within the time allowed therefor, the
administrative law judge may accept such agreement by issuing his
decision based upon the agreed findings. Such decision shall be
published in the Federal Register.
Sec. 1955.21 Motion for a summary decision.
(a)(1) Any party may move, with or without supporting affidavits,
for a summary decision on all or any part of the proceeding. Any other
party may, within 10 days after service of the motion, serve opposing
affidavits or file a cross motion for summary decision. The
administrative law judge may, in his discretion, set the matter for
argument and call for submission of briefs. The filing of any documents
under this section shall be with the administrative law judge and copies
of any such document shall be served on all the parties.
(2) The administrative law judge may grant such motion if the
pleadings, affidavits, material obtained by discovery or otherwise
obtained, or matters officially noticed, show that there is no genuine
issue as to any material fact and that a party is entitled to summary
decision. Affidavits shall set forth such facts as would be admissible
in evidence in the hearing and shall show affirmatively that the affiant
is competent to testify to the matters stated therein. When a motion for
summary decision is made and supported as provided in paragraph (a)(1)
of this section, the party opposing the motion may not rest upon the
mere allegations or denials of his pleading; his response must set forth
specific facts showing that there is a genuine issue of fact for the
hearing.
(3) Should it appear from the affidavits of a party opposing the
motion that he cannot, for reasons stated, present by affidavit facts
essential to justify his opposition, the administrative law judge may
refuse the application for summary decision or may order a continuance
to permit affidavits to be obtained, or depositions to be taken, or
discovery to be had, or may make such other order as is just.
(b)(1) The denial of all or any part of a motion or cross motion for
summary decision by the administrative law judge shall not be subject to
interlocutory appeal to the Secretary unless the administrative law
judge certifies in writing:
(i) That the ruling involves an important question of law or policy
as to which there is substantial ground for difference of opinion; and
(ii) That an immediate appeal from the ruling may materially advance
the ultimate termination of the proceeding.
(2) The allowance of such an interlocutory appeal shall not stay the
proceeding before the administrative law judge unless the Secretary so
orders.
Sec. 1955.22 Summary decision.
(a)(1) Where no genuine issue of material fact is found to have been
raised, the administrative law judge shall issue an initial decision to
become
[[Page 65]]
final 30 days after service thereof upon each party unless, within those
30 days, any party has filed written exceptions to the decision with the
Secretary. Requests for extension of time to file exceptions may be
granted if the requests are received by the Secretary no later than 25
days after service of the decision.
(2) If any timely exceptions are filed, the Secretary may set a time
for filing any response to the exceptions with supporting reasons. All
exceptions and responses thereto shall be served on all the parties.
(b)(1) The Secretary, after consideration of the decision, the
exceptions, and any supporting briefs filed therewith and any responses
to the exceptions with supporting reasons, shall issue a final decision.
(2) An initial decision and a final decision under this section
shall include a statement of:
(i) Findings of fact and conclusions of law and the reasons and
bases therefor on all issues presented;
(ii) Reference to any material fact based on official notice; and
(iii) The terms and conditions of the rule or order made.
The final decision shall be published in the Federal Register and served
on all the parties.
(c) Where a genuine material question of fact is raised, the
administrative law judge shall, and in any other case may, set the case
for an evidentiary hearing. A notice of such hearing shall be published
in the Federal Register at least 30 days prior to the hearing date.
Subpart D_Preliminary Conference and Discovery
Sec. 1955.30 Submission of documentary evidence.
(a) Where there has been no consent finding or summary decision
under subpart C of this part and a formal hearing is necessary, the
administrative law judge shall set a date by which all documentary
evidence, which is to be offered during the hearing, shall be submitted
to the administrative law judge and served on the other parties. Such
submission date shall be sufficiently in advance of the hearing as to
permit study and preparation for cross-examination and rebuttal
evidence. Documentary evidence not submitted in advance may be received
into evidence upon a clear showing that the offering party had good
cause for failure to produce the evidence sooner.
(b) The authenticity of all documents submitted in advance shall be
deemed admitted unless written objections are filed prior to the
hearing, except that a party will be permitted to challenge such
authenticity at a later date upon clear showing of good cause for
failure to have filed such written objections.
Sec. 1955.31 Preliminary conference.
(a) Upon his own motion, or the motion of a party, the
administrative law judge may direct the parties to meet with him for a
conference or conferences to consider:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to documents for
purposes of clarification, simplification, or limitation;
(3) Stipulations of fact, and of the authenticity, of the contents
of documents;
(4) Limitations on the number of parties and of witnesses;
(5) Scope of participation of petitioners under Sec. 1955.17 of
this part;
(6) Establishment of dates for discovery; and
(7) Such other matters as may tend to expedite the disposition of
the proceedings, and to assure a just conclusion thereof.
(b) The administrative law judge shall enter an order which recites
the action taken at the conference, the amendments allowed to any
documents which have been filed, and the agreements made between the
parties as to any of the matters considered. Such order shall limit the
issues for hearing to those not disposed of by admissions or agreements,
and control the subsequent course of the hearing, unless modified at the
hearing to prevent manifest injustice.
Sec. 1955.32 Discovery.
(a)(1) At any time after the commencement of a proceeding under this
[[Page 66]]
part, but generally before the preliminary conference, if any, a party
may request of any other party admissions that relate to statements or
opinions of fact, or of the application of law to fact, including the
genuineness of any document described in the request. Copies of
documents shall be served with the request unless they have been or are
otherwise furnished or made available for inspection or copying. The
matter shall be deemed admitted unless within 30 days after service of
the request, or within such shorter or longer time as the administrative
law judge may prescribe, the party to whom the request is directed
serves upon the party requesting the admission a specific written
response.
(2) If objection is made, the reasons therefor shall be stated. The
answer shall specifically deny the matter or set forth in detail the
reasons why the answering party cannot truthfully admit or deny the
matter. A denial shall fairly meet the substance of the requested
admission and when good faith requires that a party qualify his answer
or deny only a part of the matter on which an admission is requested, he
shall specify so much of it as is true and qualify or deny the
remainder. An answering party may not give lack of information or
knowledge as the reason for failure to admit or deny unless he states
that he has made reasonable inquiry and that the information known or
readily obtainable by him is insufficient to enable him to admit or
deny.
(3) The party who has requested the admission may move to determine
the sufficiency of the answers or objections. Unless the administrative
law judge determines that an objection is justified, he may order either
that the matter is admitted or that an amended answer be served. The
administrative law judge may, in lieu of these orders, determine that
final disposition of the requests be made at a preliminary conference,
or at a designated time prior to the hearing. Any matter admitted under
this section is conclusively established unless the administrative law
judge on motion permits withdrawal or amendment of the admission. Copies
of all requests and responses shall be served on all parties and filed
with the administrative law judge.
(b)(1) The testimony of any witness may be taken by deposition.
Depositions may be taken orally or upon written interrogatories before
any person designated by the administrative law judge or having power to
administer oaths.
(2) Any party desiring to take the deposition of a witness may make
application in writing to the administrative law judge setting forth:
(i) The time when, the place where, and the name and post office
address of the person before whom the deposition is to be taken;
(ii) The name and address of each witness; and
(iii) The subject matter concerning which each witness is expected
to testify.
(3) Such notice as the administrative law judge may order shall be
given by the party taking the deposition to every other party.
(c)(1) Each witness testifying upon deposition shall be sworn, and
the parties not calling him shall have the right to cross-examine him.
The questions propounded and the answers thereto, together with all
objections made, shall be reduced to writing and shall be read to or by
the witness unless such examination and reading are waived by the
witness and the parties. Any changes in form or substance which the
witness desires to make shall be entered upon the deposition by the
officer with a statement of the reasons given by the witness for making
them. The deposition shall then be signed by the witness and certified
by the officer before whom the deposition was taken. Thereafter, the
officer shall seal the deposition, with copies thereof, in an envelope
and mail the same by registered or certified mail to the administrative
law judge.
(2) Subject to such objections to the questions and answers as were
noted at the time of taking the deposition, and to the provisions in
Sec. 1955.40(b)(1), any part or all of a deposition may be offered into
evidence by the party taking it as against any party who was present,
represented at the taking of the deposition, or who had due notice
thereof.
[[Page 67]]
(d) Whenever appropriate to a just disposition of any issue in the
proceeding the administrative law judge may allow discovery by any other
appropriate procedure, such as by interrogatories upon a party or
request for production of documents by a party.
(e) Upon motion by a party or by the person from whom discovery is
sought, and for good cause shown, the administrative law judge may make
any order which justice requires to limit or condition discovery in
order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.
Sec. 1955.33 Sanctions for failure to comply with orders.
(a) If a party or an official or agent of a party fails, without
good cause, to comply with an order including, but not limited to, an
order for the taking of a deposition, written interrogatories, the
production of documents, or an order to comply with a subpoena, the
administrative law judge or the Secretary or both, for the purpose of
permitting resolution of relevant issues and disposition of the
proceeding without unnecessary delay despite such failure, may take such
action as is just, including but not limited to the following:
(1) Infer that the admission, testimony, documents, or other
evidence would have been adverse to the party;
(2) Rule that for the purposes of the proceeding, the matter or
matters concerning which the order or subpoena was issued be taken as
established adversely to the party;
(3) Rule that the party may not introduce into evidence or otherwise
rely, in support of any claim or defense, upon testimony by such party,
officer or agent, or the documents or other evidence;
(4) Rule that the party may not be heard to object to introduction
and use of secondary evidence to show what the withheld admission,
testimony, documents, or other evidence would have shown;
(5) Rule that a pleading, or part of a pleading, on a motion or
other submission by the party, concerning which the order or subpoena
was issued, be stricken or that decision on the pleading be rendered
against the party, or both.
(b) Any such action may be taken by written or oral order issued in
the course of the proceeding or by inclusion in the initial decision of
the administrative law judge or an order or opinion of the Secretary.
The parties may seek, and the administrative law judge may grant, such
of the foregoing means of relief or other appropriate relief as may be
sufficient to compensate for the lack of withheld testimony, documents,
or other evidence.
Sec. 1955.34 Fees of witnesses.
Witnesses, including witnesses for depositions, shall be paid the
same fees and mileage that are paid witnesses in the courts of the
United States. Fees shall be paid by the party at whose instance the
witness appears, and the person taking a deposition shall be paid by the
party at whose instance the deposition is taken.
Subpart E_Hearing and Decision
Sec. 1955.40 Hearings.
(a)(1) Except as may be ordered otherwise by the administrative law
judge, the Department of Labor shall proceed first at the hearing.
(2) The Department of Labor shall have the burden of proof to
sustain the contentions alleged in the notice of proposed withdrawal,
published under Sec. 1955.10(b)(1) but the proponent of any factual
proposition shall be required to sustain the burden of proof with
respect thereto.
(b)(1) A party shall be entitled to present his case or defense by
oral or documentary evidence, to submit rebuttal evidence, and to
conduct such cross-examination as may be required for a full and true
disclosure of the facts. Any oral or documentary evidence may be
received, but the administrative law judge shall exclude evidence which
is irrelevant, immaterial, or unduly repetitious.
(2) The testimony of a witness shall be upon oath or affirmation
administered by the administrative law judge.
(3) If a party objects to the admission or rejection of any
evidence, or to the limitation of the scope of any examination or cross-
examination, or to the
[[Page 68]]
failure to limit such scope, he shall state briefly the grounds for such
objection. Rulings on all objections shall appear in the record. Only
objections made before the administrative law judge may be relied upon
subsequently in the proceeding.
(4) Formal exception to an adverse ruling is not required.
(c) Official notice may be taken of any material fact not appearing
in evidence in the record, which is among the traditional matters of
judicial notice, or concerning which the Department of Labor by reason
of its functions is presumed to be expert: Provided, that the parties
shall be given adequate notice, at the hearing or by reference in the
administrative law judge's and the Secretary's decision of the matters
so noticed and shall be given adequate opportunity to show the contrary.
(d) When an objection to a question propounded to a witness is
sustained, the examining party may make a specific offer of proof of
what the party expects to prove by the answer of the witness orally or
in writing. Written offers of proof, adequately marked for
identification, shall be retained in the record so as to be available
for consideration by any reviewing authority.
(e) Hearings shall be stenographically reported. Copies of the
transcript may be obtained by the parties and the public upon payment of
the actual cost of duplication to the Department of Labor in accordance
with 29 CFR 70.62(c).
(f) Corrections of the official transcript may be made only when
they involve errors affecting substance and then only in the manner
herein provided. Corrections may be ordered by the administrative law
judge or agreed to in a written stipulation by all parties or their
representatives. Where the parties are in disagreement, the
administrative law judge shall determine the corrections to be made and
so order. Corrections may be interlineated in the official transcript so
as not to obliterate the original text.
Sec. 1955.41 Decision of the administrative law judge.
(a) Within 30 days after receipt of notice that the transcript of
the testimony has been filed with the administrative law judge, or such
additional time as the administrative law judge may allow, each party
may file with the administrative law judge proposed findings of fact,
conclusions of law, and rules or orders, together with a supporting
brief expressing the reasons for such proposals. Such proposals and
brief shall be served on all other parties and shall refer to all
portions of the record and to all authorities relied upon in support of
each proposal.
(b)(1) Within a reasonable time after the time allowed for the
filing of proposed findings of fact, conclusions of law, and rules or
orders, the administrative law judge shall make and serve upon each
party his initial decision which shall become final upon the 30th day
after service thereof unless exceptions are filed thereto.
(2) The decision of the administrative law judge shall be based
solely upon substantial evidence on the record as a whole and shall
state all facts officially noticed and relied upon. The decision of the
administrative law judge shall include:
(i) A statement of the findings of fact and conclusions of law, with
reasons and bases therefor upon each material issue of fact, law, or
discretion presented on the record;
(ii) Reference to any material fact based on official notice; and
(iii) The appropriate rule, order, relief, or denial thereof.
Sec. 1955.42 Exceptions.
(a) Within 30 days after service of the decision of the
administrative law judge, any party may file with the Secretary written
exceptions thereto with supporting reasons. Such exceptions shall refer
to the specific findings of fact, conclusions of law, or terms of the
rule or order excepted to; and shall suggest corrected findings of fact,
conclusions of law, or terms of the rule or order referencing the
specific pages of the transcript relevant to the suggestions. Requests
for extension of time to file exceptions may be granted if the requests
are received by the Secretary no later than 25 days after service of the
decision.
(b) If any timely exceptions are filed, the Secretary may set a time
for filing
[[Page 69]]
any response to the exceptions with supporting reasons. All exceptions
and responses thereto shall be served on all the parties.
Sec. 1955.43 Transmission of the record.
If exceptions are filed, the Secretary shall request the
administrative law judge to transmit the record of the proceeding to the
Secretary for review. The record shall include the State plan; a copy of
the Assistant Secretary's notice of proposed withdrawal; the State's
statement of items in contention; the notice of the hearing if any; any
motions and requests filed in written form and rulings thereon; the
transcript of the testimony taken at the hearing, together with any
documents or papers filed in connection with the preliminary conference
and the hearing itself; such proposed findings of fact, conclusions of
law, rules or orders, and supporting reasons as may have been filed; the
administrative law judge's decision; and such exceptions, responses, and
briefs in support thereof as may have been filed in the proceedings.
Sec. 1955.44 Final decision.
(a) After review of any exceptions, together with the record
references and authorities cited in support thereof, the Secretary shall
issue a final decision ruling upon each exception and objection filed.
The final decision may affirm, modify, or set aside in whole or in part
the findings, conclusions, and the rule or order contained in the
decision of the administrative law judge. The final decision shall also
include reference to any material fact based on official notice.
(b) The Secretary's final decision shall be served upon all the
parties and shall become final upon the 30th day after service thereof
unless the Secretary grants a stay pending judicial review.
Sec. 1955.45 Effect of appeal of administrative law judge's decision.
An administrative law judge's decision shall be stayed pending a
decision on appeal to the Secretary. If there are no exceptions filed to
the decisions of the administrative law judge, the administrative law
judge's decision shall be published in the Federal Register as a final
decision and served upon the parties.
Sec. 1955.46 Finality for purposes of judicial review.
Only a final decision by the Secretary under Sec. 1955.44 shall be
deemed final agency action for purposes of judicial review. A decision
of an administrative law judge which becomes final for lack of appeal is
not deemed final agency action for purposes of 5 U.S.C. 704.
Sec. 1955.47 Judicial review.
The State may obtain judicial review of a decision by the Secretary
in accordance with section 18(g) of the Act.
PART 1956_STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT
OF STATE STANDARDS APPLICABLE TO STATE AND LOCAL GOVERNMENT EMPLOYEES
IN STATES WITHOUT APPROVED PRIVATE EMPLOYEE PLANS--Table of Contents
Subpart A_General
Sec.
1956.1 Purpose and scope.
1956.2 General policies.
Subpart B_Criteria
1956.10 Specific criteria.
1956.11 Indices of effectiveness.
Subpart C_Approval, Change, Evaluation and Withdrawal of Approval
Procedures
1956.20 Procedures for submission, approval and rejection.
1956.21 Procedures for submitting changes.
1956.22 Procedures for evaluation and monitoring.
1956.23 Procedures for certification of completion of development and
determination on application of criteria.
1956.24 Procedures for withdrawal of approval.
Subpart D--General Provisions and Conditions [Reserved]
Authority: Section 18 (29 U.S.C. 667), 29 CFR parts 1902 and 1955,
and Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 41 FR 12429, Mar. 4, 1977, unless otherwise noted.
[[Page 70]]
Subpart A_General
Sec. 1956.1 Purpose and scope.
(a) This part sets forth procedures and requirements for approval,
continued evaluation, and operation of State plans submitted under
section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C.
667) (hereinafter called the Act) for the development and enforcement of
State standards applicable to State and local government employees in
States without approved private employee plans. Although section 2(b) of
the Act sets forth the policy of assuring every working man and woman
safe and healthful working conditions, State and local government
agencies are excluded from the definition of ``employer'' in section
3(5). Only under section 18 of the Act are such public employees ensured
protection under the provisions of an approved State plan. Where no such
plan is in effect with regard to private employees, State and local
government employees have not heretofore been assured any protections
under the Act. Section 18(b), however, permits States to submit plans
with respect to any occupational safety and health issue with respect to
which a Federal standard has been promulgated under section 6 of the
Act. Under Sec. 1902.2(c) of this chapter, an issue is defined as ``any
* * * industrial, occupational, or hazard grouping that is found to be
administratively practicable and * * * not in conflict with the purposes
of the Act.'' Since Federal standards are in effect with regard to
hazards found in public employment, a State plan covering this
occupational category meets the definition of section 18 and the
regulations. It is the purpose of this part to assure the availability
of the protections of the Act to public employees, where no State plan
covering private employees is in effect, by adapting the requirements
and procedures applicable to State plans covering private employees to
the situation where State coverage under section 18(b) is proposed for
public employees only.
(b) In adopting these requirements and procedures, consideration
should be given to differences between public and private employment.
For instance, a system of monetary penalties applicable to violations of
public employers may not in all cases be necessarily the most
appropriate method of achieving compliance. Further, the impact of the
lack of Federal enforcement authority application to public employers
requires certain adjustments of private employer plan procedures in
adapting them to plans covering only public employees in a State.
Sec. 1956.2 General policies.
(a) Policy. The Assistant Secretary of Labor for Occupational Safety
and Health (hereinafter referred to as the Assistant Secretary) will
approve a State plan which provides an occupational safety and health
program for the protection of State and local government employees
(hereinafter State and local government employees are referred to as
public employees) that in his judgment meets or will meet the criteria
set forth in Sec. 1956.10. Included among these criteria is the
requirement that the State plan for public employees (hereinafter such a
plan will be referred to as the plan) provides for the development and
enforcement of standards relating to hazards in employment covered by
the plan which are or will be at least as effective in providing safe
and healthful employment and places of employment for public employees
as standards promulgated and enforced under section 6 of the Act. In
determining whether a plan satisfies the requirement of effectiveness,
the Assistant Secretary will measure the plan against the indices of
effectiveness, set forth in Sec. 1956.11.
(b) Developmental plan. (1) A State plan for an occupational safety
and health program for public employees may be approved although, upon
submission, it does ot fully meet the criteria set forth in Sec.
1956.10, if it includes satisfactory assurances by the State that it
will take the necessary steps to bring the program into conformity with
these criteria within the 3-year period immediately following the
commencement of the plan's operation. In such a case, the plan shall
include the specific actions the State proposes to take, and a time
schedule for their accomplishment which is not to exceed 3 years, at the
end of which the plan will
[[Page 71]]
meet the criteria in Sec. 1956.10. A developmental plan shall include
the dates within which intermediate and final action will be
accomplished. Although administrative actions, such as stages for
application of standards and enforcement, related staffing, development
of regulations may be developmental, to be considered for approval, a
State plan for public employees must contain at time of plan approval
basic State legislative and/or executive authority under which these
actions will be taken. If necessary program changes require further
implementing executive action by the Governor or supplementary
legislative action by the State, a copy of the appropriate order, or the
bill or a draft of legislation that will be or has been proposed for
enactment shall be submitted, accompanied by:
(i) A statement of the Governor's support of the legislation or
order and
(ii) A statement of legal opinion that the proposed legislation or
executive action will meet the requirements of the Act and this part in
a manner consistent with the State's constitution and laws.
(2) On the basis of the State's submission, the Assistant Secretary
will approve the plan if he finds that there is a reasonable expectation
that the plan for public employees will meet the criteria in Sec.
1956.10 within the indicated 3 year period. In such a case, the
Assistant Secretary shall not make a determination that a State is fully
applying the criteria in Sec. 1956.10 until the State has completed all
the developmental steps specified in the plan which are designed to make
it at least as effective as the Federal program for the private sector,
and the Assistant Secretary has had at least 1 year to evaluate the plan
on the basis of actual operations following the completion of all
developmental steps. If at the end of 3 years from the date of
commencement of the plan's operation, the State is found by the
Assistant Secretary, after affording the State notice and an opportunity
for a hearing, not to have substantially completed the developmental
steps of the plan, he shall withdraw the approval of the plan.
(3) Where a State plan approved under part 1902 of this chapter is
discontinued, except for its public employee component, or becomes
approved after approval of a plan under this part, the developmental
period applicable to the public employee component of the earlier plan
will be controlling with regard to any such public employee coverage.
For good cause, a State may demonstrate that an additional period of
time is required to make adjustments on account of the transfer from one
type of plan to another.
(c) Scope of a State plan for public employees. (1) A State plan for
public employees must provide for the coverage of both State and local
government employees to the full extent permitted by the State laws and
constitution. The qualification ``to the extent permitted by its law''
means only that where a State may not constitutionally regulate
occupational safety and health conditions in certain political
subdivisions, the plan may exclude such political subdivision employees
from coverage.
(2) The State shall not exclude any occupational, industrial, or
hazard grouping from coverage under its plan unless the Assistant
Secretary finds that the State has shown there is no necessity for such
coverage.
Subpart B_Criteria
Sec. 1956.10 Specific criteria.
(a) General. A State plan for public employees must meet the
specific criteria set forth in this section.
(b) Designation of State agency. (1) The plan shall designate a
State agency or agencies which will be responsible for administering the
plan throughout the State.
(2) The plan shall also describe the authority and responsibilities
vested in such agency or agencies. The plan shall contain assurances
that any other responsibilities of the designated agency shall not
detract significantly from the resources and priorities assigned to the
administration of the plan.
(3) A State agency or agencies must be designated with overall
responsibility for administering the plan throughout the State. Subject
to this overall responsibility, enforcement of
[[Page 72]]
standards may be delegated to an appropriate agency having occupational
safety and health responsibilities or expertise throughout the State.
Included in this overall responsibility are the requirements that the
designated agency have, or assure the provision of necessary qualified
personnel, legal authority necessary for the enforcement of the
standards and make reports as required by the Assistant Secretary.
(c) Standards. The State plan for public employees shall include, or
provide for the development or adoption of, standards which are or will
be at least as effective as those promulgated under section 6 of the
Act. The plan shall also contain assurances that the State will continue
to develop or adopt such standards. Indices of the effectiveness of
standards and procedures for the development or adoption of standards
against which the Assistant Secretary will measure the plan in
determining whether it is approvable are set forth in Sec. 1956.11(b).
(d) Enforcement. (1) The State plan for public employees shall
provide a program for the enforcement of the State standards which is,
or will be, at least as effective in assuring safe and healthful
employment and places of employment as the standards promulgated by
section 6 of the Act; and provide assurances that the State's
enforcement program for public employees will continue to be at least as
effective in this regard as the Federal program in the private sector.
Indices of the effectiveness of a State's enforcement plan against which
the Assistant Secretary will measure the plan in determining whether it
is approvable are set forth in Sec. 1956.11(c).
(2) The plan shall require State and local government agencies to
comply with all applicable State occupational safety and health
standards included in the plan and all applicable rules issued
thereunder, and employees to comply with all standards, rules, and
orders applicable to their conduct.
(e) Right of entry and inspection. The plan shall contain adequate
assurances that inspectors will have a right to enter covered workplaces
which is at least as effective as that provided in section 8 of the Act
for the purpose of inspection or monitoring. Where such entry is
refused, the State agency or agencies shall have the authority through
appropriate legal process to compel such entry.
(f) Prohibition against advance notice. The State plan shall contain
a prohibition against advance notice of inspections. Any exceptions must
be expressly authorized by the head of the designated agency or agencies
or his representative and such exceptions may be no broader than those
authorized under the Act and the rules published in part 1903 of this
chapter relating to advance notice.
(g) Personnel. The plan shall provide assurances that the designated
agency or agencies and all government agencies to which authority has
been delegated, have, or will have, a sufficient number of adequately
trained and qualified personnel necessary for the enforcement of
standards. For this purpose, qualified personnel means persons employed
on a merit basis, including all persons engaged in the development of
standards and the administration of the plan. Subject to the results of
evaluations, conformity with the Standards for a Merit System of
Personnel Administration, 45 CFR part 70, issued by the Secretary of
Labor, including any amendments thereto, and any standards prescribed by
the U.S. Civil Service Commission, pursuant to section 208 of the
Intergovernmental Personnel Act of 1970, modifying or superseding such
standards, and guidelines on ``at least as effective as'' staffing
derived from the Federal private employee program will be deemed to meet
this requirement.
(h) Resources. The plan shall contain satisfactory assurances
through the use of budget, organizational description, and any other
appropriate means, that the State will devote adequate funds to the
administration and enforcement of the public employee program. The
Assistant Secretary will make the periodic evaluations of the adequacy
of the resources the State has devoted to the plan.
(i) Employer records and reports. The plan shall provide assurances
that public employers covered by the plan will maintain records and make
reports on occupational injuries and illnesses in a
[[Page 73]]
manner similar to that required of private employers under the Act.
(j) State agency reports to the Assistant Secretary. The plan shall
provide assurances that the designated agency or agencies shall make
such reasonable reports to the Assistant Secretary in such form and
containing such information as he may from time to time require. The
agency or agencies shall establish specific goals consistent with the
goals of the Act, including measures of performance, output, and results
which will determine the efficiency and effectiveness of the State
program for public employees, and shall make periodic reports to the
Assistant Secretary on the extent to which the State, in implementation
of its plan, has attained these goals. Reports will also include data
and information on the implementation of the specific inspection and
voluntary compliance activities included within the plan. Further, these
reports shall contain such statistical information pertaining to work-
related deaths, injuries and illnesses in employments and places of
employment covered by the plan as the Assistant Secretary may from time
to time require.
Sec. 1956.11 Indices of effectiveness.
(a) General. In order to satisfy the requirements of effectiveness
under Sec. 1956.10 (c)(1) and (d)(1), the State plan for public
employees shall:
(1) Establish the same standards, procedures, criteria, and rules as
have been established by the Assistant Secretary under the act; or
(2) Establish alternative standards, procedures, criteria, and rules
which will be measured against each of the indices of effectiveness in
paragraphs (b) and (c) of this section to determine whether the
alternatives are at least as effective as the Federal program for
private employees, where applicable, with respect to the subject of each
index. For each index the State must demonstrate by the presentation of
factual or other appropriate information that its plan for public
employees will, to the extent practicable, be at least as effective as
the Federal program for private employees.
(b) Standards. (1) The indices for measurement of a State plan for
public employees with regard to standards follow in paragraph (b)(2) of
this section. The Assistant Secretary will determine whether the State
plan for public employees satisfies the requirements of effectiveness
with regard to each index as provided in paragraph (a) of this section.
(2) The Assistant Secretary will determine whether the State plan
for public employees:
(i) Provides for State standards which are or will be at least as
effective as the standards promulgated under section 6 of the Act. In
the case of any State standards dealing with toxic materials or harmful
physical agents, they should adequately assure, to the extent feasible,
that no employee will suffer material impairment of health or functional
capacity, even if such employee has regular exposure to the hazard dealt
with by such standard for the period of his working life, by such means
as, in the development and promulgation of standards, obtaining the best
available evidence through research, demonstration, experiments, and
experience under this and any other safety and health laws.
(ii) Provides an adequate method to assure that its standards will
continue to be at least as effective as Federal standards, including
Federal standards which become effective subsequent to any approval of
the plan.
(iii) Provides a procedure for the development and promulgation of
standards which allows for the consideration of pertinent factual
information and affords interested persons, including employees,
employers and the public, an opportunity to participate in such
processes, by such means as establishing procedures for consideration of
expert technical knowledge, and providing interested persons, including
employers, employees, recognized standards-producing organizations, and
the public, an opportunity to submit information requesting the
development or promulgation of new standards or the modification or
revocation of existing standards and to participate in any hearings.
This index may also be satisfied by such means as the adoption of
Federal standards, in which case the procedures at the Federal level
before adoption of a standard under section 6
[[Page 74]]
may be considered to meet the conditions of this index.
(iv) Provides authority for the granting of variances from State
standards upon application of a public employer or employers which
correspond to variances authorized under the Act, and for consideration
of the views of interested parties, by such means as giving affected
employees notice of each application and an opportunity to request and
participate in hearings or other appropriate proceedings relating to
applications for variances.
(v) Provides for prompt and effective standards setting actions for
the protection of employees against new and unforeseen hazards, by such
means as the authority to promulgate emergency temporary standards. Such
authority is particularly appropriate for those situations where public
employees are exposed to unique hazards for which existing standards do
not provide adequate protection.
(vi) Provides that State standards contain appropriate provision for
the furnishing to employees of information regarding hazards in the
workplace, including information about suitable precautions, relevant
symptoms, and emergency treatment in case of exposure; by such means as
labelling, posting, and, where appropriate, results of medical
examinations, being furnished only to appropriate State officials and,
if the employee so requests, to his physician.
(vii) Provides that State standards where appropriate, contain
specific provision for the protection of employees from exposure to
hazards, by such means as containing appropriate provision for the use
of suitable protective equipment and for control or technological
procedures with respect to such hazards, including monitoring or
measuring such exposure.
(c) Enforcement. (1) The indices for measurement of a State plan for
public employees with regard to enforcement follow in paragraph (c)(2)
of this section. The Assistant Secretary will determine whether the plan
satisfies the requirements of effectiveness with regard to each index as
provided in paragraph (a) of this section.
(2) The Assistant Secretary will determine whether the State plan
for public employees:
(i) Provides for inspection of covered workplaces in the State by
the designated agency or agencies or any other agency which is duly
delegated authority, including inspections in response to complaints
where there are reasonable grounds to believe a hazard exists, in order
to assure, so far as possible, safe and healthful working conditions for
covered employees by such means as providing for inspections under
conditions such as those provided in section 8 of the Act.
(ii) Provides an opportunity for employees and their representative,
before, during, and after inspections, to bring possible violations to
the attention of the State or local agency with enforcement
responsibility in order to aid inspections, by such means as affording a
representative of the employer, and a representative authorized by
employees, an opportunity to accompany the inspector during the physical
inspection of the workplace, or where there is no authorized
representative, provide for consultation by the inspector with a
reasonable number of employees.
(iii) Provides for notification of employees, or their
representatives, when the State decides not to take compliance action as
a result of violations alleged by such employees or their
representative, and further provides for informal review of such
decisions, by such means as written notification of decisions not to
take compliance action and the reasons therefor, and procedures for
informal review of such decisions and written statements of the
disposition of such review.
(iv) Provides that public employees be informed of their protections
and obligations under the Act, including the provisions of applicable
standards, by such means as the posting of notices or other appropriate
sources of information.
(v) Provides necessary and appropriate protection to an employee
against discharge or discrimination in terms and conditions of
employment because he has filed a complaint, testified, or otherwise
acted to exercise rights under the State program for
[[Page 75]]
public employees for himself or others, by such means as providing for
appropriate sanctions against the State or local agency for such
actions, and by providing for the withholding, upon request, of the
names of complainants from the employer.
(vi) Provides that public employees have access to information on
their exposure to toxic materials or harmful physical agents and receive
prompt information when they have been or are being exposed to such
materials or agents in concentrations or at levels in excess of those
prescribed by the applicable safety and health standards, by such means
as the observation by employees of the monitoring or measuring of such
materials or agents, employee access to the records of such monitoring
or measuring, prompt notification by a public employer to any employee
who has been or is being exposed to such agents or materials in excess
of the applicable standards, and information to such employee of
corrective action being taken.
(vii) Provides procedures for the prompt restraint or elimination of
any conditions or practices in covered places of employment which could
reasonably be expected to cause death or serious physical harm
immediately or before the imminence of such danger can be eliminated
through the enforcement procedures otherwise provided for in the plan,
by such means as immediately informing employees and employers of such
hazards, taking steps to obtain immediate abatement of the hazard by the
employer, and, where appropriate, authority to initiate necessary legal
proceedings to require such abatement.
(viii) Provides that the designated agency (or agencies) and any
agency to which it has duly delegated authority, will have the necessary
legal authority for the enforcement of standards by such means as
provisions for appropriate compulsory process to obtain necessary
evidence or testimony in connection with inspection and enforcement
proceedings.
(ix) Provides for prompt notice to public employers and employees
when an alleged violation of standards has occurred, including the
proposed abatement requirements, by such means as the issuance of a
written citation to the public employer and posting of the citation at
or near the site of the violation; further provides for advising the
public employer of any proposed sanctions, wherever appropriate, by such
means as a notice to the employer by certified mail within a reasonable
time of any proposed sanctions.
(x) Provides effective sanctions against public employers who
violate State standards and orders, or applicable public agency
standards, such as those prescribed in the Act. In lieu of monetary
penalties a complex of enforcement tools and rights, such as various
forms of equitable remedies available to the designee including
administrative orders; availability of employee rights such as right to
contest citations, and provisions for strengthened employee
participation in enforcement may be demonstrated to be as effective as
monetary penalties in achieving complianace in public employment. In
evaluating the effectiveness of an alternate system for compelling
compliance, elements of the enforcement educational program such as a
system of agency self inspection procedures, and in-house training
programs, and employee complaint procedures may be taken into
consideration.
(xi) Provides for an employer to have the right of review of
violations alleged by the State or any agency to which it has duly
delegated authority, abatement periods and proposed penalties, where
appropriate, for employees or their representatives to challenge the
reasonableness of the period of time fixed in the citation for the
abatement of the hazard, and for employees or their representatives to
have an opportunity to participate in review, proceedings, by such means
as providing for admininistrative review, with an opportunity for a full
hearing on the issues.
(xii) Provides that the State will undertake programs to encourage
voluntary compliance by public employers and employees by such means as
conducting training and consultation with such employers and employees,
and encouraging agency self-inspection programs.
(d) Additional indices. Upon his own motion, or after consideration
of data,
[[Page 76]]
views, and arguments received in any proceedings held under subpart C of
this part, the Assistant Secretary may prescribe additional indices for
any State plan for public employees which shall be in furtherance of the
purpose of this section.
Subpart C_Approval, Change, Evaluation and Withdrawal of Approval
Procedures
Sec. 1956.20 Procedures for submission, approval and rejection.
The procedures contained in subpart C of part 1902 of this chapter
shall be applicable to submission, approval, and rejection of State
plans submitted under this part, except that the information required in
Sec. 1902.20(b)(1)(iii) would not be included in decisions of approval.
Sec. 1956.21 Procedures for submitting changes.
The procedures contained in part 1953 of this chapter shall be
applicable to submission and consideration of developmental, Federal
program, evaluation, and State-initiated change supplements to plans
approved under this part.
Sec. 1956.22 Procedures for evaluation and monitoring.
The procedures contained in part 1954 of this chapter shall be
applicable to evaluation and monitoring of State plans approved under
this part, except that the decision to relinquish Federal enforcement
authority under section 18(e) of the Act is not relevant to Phase II and
III monitoring under Sec. 1954.2 and the guidelines of exercise of
Federal discretionary enforcement authority provided in Sec. 1954.3 are
not applicable to plans approved under this part. The factors listed in
Sec. 1902.37(b) of this chapter, except those specified in Sec.
1902.37(b)(11) and (12), which would be adapted to the State compliance
program, provide the basis for monitoring.
Sec. 1956.23 Procedures for certification of completion of development
and determination on application of criteria.
The procedures contained in Sec. Sec. 1902.33 and 1902.34 of this
chapter shall be applicable to certification of completion of
developmental steps under plans approved in accordance with this part.
Such certification shall initiate intensive monitoring of actual
operations of the developed plan, which shall continue for at least a
year after certification, at which time a determination shall be made
under the procedures and criteria of Sec. Sec. 1902.38, 1902.39,
1902.40 and 1902.41, that on the basis of actual operations, the
criteria set forth in Sec. Sec. 1956.10 and 1956.11 of this part are
being applied under the plan. The factors listed in Sec. 1902.37(b) of
this chapter, except those specified in Sec. 1902.37(b)(11) and (12)
which would be adapted to the State's compliance program provide the
basis for making the determination of operational effectiveness.
Sec. 1956.24 Procedures for withdrawal of approval.
The procedures and standards contained in part 1955 of this chapter
shall be applicable to the withdrawal of approval of plans approved
under this part 1956, except that (because these plans, as do public
employee programs aproved and financed in connection with a State plan
covering private employees, must cover all employees of State and local
agencies in a State whenever a State is constitutionally able to do so,
at least developmentally), no industrial or occupational issues may be
considered a separable portion of a plan under Sec. 1955.2(a)(10); and,
as Federal standards and enforcement do not apply to State and local
government employers, withdrawal of approval of a plan approved under
this part 1956 could not bring about application of the provisions of
the Federal Act to such employers as set out in Sec. 1955.4 of this
chapter.
Subpart D--General Provisions and Conditions [Reserved]
[[Page 77]]
PART 1960_BASIC PROGRAM ELEMENTS FOR FEDERAL EMPLOYEE OCCUPATIONAL SAFETY
AND HEALTH PROGRAMS AND RELATED MATTERS--Table of Contents
Subpart A_General
Sec.
1960.1 Purpose and scope.
1960.2 Definitions.
Subpart B_Administration
1960.6 Designation of agency safety and health officials.
1960.7 Financial management.
1960.8 Agency responsibilities.
1960.9 Supervisory responsibilities.
1960.10 Employee responsibilities and rights.
1960.11 Evaluation of occupational safety and health performance.
1960.12 Dissemination of occupational safety and health program
information.
Subpart C_Standards
1960.16 Compliance with OSHA standards.
1960.17 Alternate standards.
1960.18 Supplementary standards.
1960.19 Other Federal agency standards affecting occupational safety and
health.
Subpart D_Inspection and Abatement
1960.25 Qualifications of safety and health inspectors and agency
inspections.
1960.26 Conduct of inspections.
1960.27 Representatives of officials in charge and representatives of
employees.
1960.28 Employee reports of unsafe or unhealthful working conditions.
1960.29 Accident investigation.
1960.30 Abatement of unsafe or unhealthful working conditions.
1960.31 Inspections by OSHA.
Subpart E_General Services Administration and Other Federal Agencies
1960.34 General provisions.
1960.35 National Institute for Occupational Safety and Health.
Subpart F_Occupational Safety and Health Committees
1960.36 General provisions.
1960.37 Committee organization.
1960.38 Committee formation.
1960.39 Agency responsibilities.
1960.40 Establishment committee duties.
1960.41 National committee duties.
Subpart G_Allegations of Reprisal
1960.46 Agency responsibility.
1960.47 Results of investigations.
Subpart H_Training
1960.54 Training of top management officials.
1960.55 Training of supervisors.
1960.56 Training of safety and health specialists.
1960.57 Training of safety and health inspectors.
1960.58 Training of collateral duty safety and health personnel and
committee members.
1960.59 Training of employees and employee representatives.
1960.60 Training assistance.
Subpart I_Recordkeeping and Reporting Requirements
1960.66 Purpose, scope, and general provisions.
1960.67 Federal agency certification of the injury and illness annual
summary (OSHA 300-A or equivalent).
1960.68 Prohibition against discrimination.
1960.69 Retention and updating of old forms.
1960.70 Reporting of serious accidents.
1960.71 Agency annual reports.
1960.72 Reporting Federal Agency Injury and Illness Information.
1960.73 Federal agency injury and illness recordkeeping forms.
1960.74 [Reserved]
Subpart J_Evaluation of Federal Occupational Safety and Health Programs
1960.78 Purpose and scope.
1960.79 Self-evaluations of occupational safety and health programs.
1960.80 Secretary's evaluations of agency occupational safety and health
programs.
Subpart K_Field Federal Safety and Health Councils
1960.84 Purpose.
1960.85 Role of the Secretary.
1960.86 Establishing councils.
1960.87 Objectives.
1960.88 Membership and participation.
1960.89 Organization.
1960.90 Operating procedures.
Authority: Sections 19 and 24 of the Occupational Safety and Health
Act of 1970 (84 Stat. 1609, 1614; 29 U.S.C. 668, 673), 5 U.S.C. 553,
Secretary of Labor's Order No. 1-90 (55 FR 9033), and Executive Order
12196.
Source: 45 FR 69798, Oct. 21, 1980, unless otherwise noted.
[[Page 78]]
Subpart A_General
Sec. 1960.1 Purpose and scope.
(a) Section 19 of the Occupational Safety and Health Act (the Act)
contains special provisions to assure safe and healthful working
conditions for Federal employees. Under that section, it is the
responsibility of the head of each Federal agency to establish and
maintain an effective and comprehensive occupational safety and health
program which is consistent with the standards promulgated under section
6 of the Act. The Secretary of Labor (the Secretary), under section 19,
is to report to the President certain evaluations and recommendations
with respect to the programs of the various agencies, and the duties
which section 24 of the Act imposes on the Secretary of Labor
necessarily extend to the collection, compilation and analysis of
occupational safety and health statistics from the Federal Government.
The role of the General Services Administration in this area stems from
its duties as the Government's principal landlord and from its specific
safety and health responsibilities under 41 CFR part 101, subchapter D,
Federal Property Management Regulations.
(b) Executive Order 12196, Occupational Safety and Health Programs
for Federal Employees, issued February 26, 1980, prescribes additional
responsibilities for the heads of agencies, the Secretary, and the
General Services Administrator. Among other duties, the Secretary is
required to issue basic program elements in accordance with which the
heads of agencies shall operate their safety and health programs. The
purpose of this part is to issue these basic program elements. Although
agency heads are required to operate a program in accordance with the
basic program elements, those elements contain numerous provisions
which, by their terms, permit agency heads the flexibility necessary to
implement their programs in a manner consistent with their respective
missions, sizes, and organizations. Moreover, an agency head, after
consultation with agency employees or their representatives and with
appropriate safety and health committees may request the Secretary to
consider approval of alternate program elements; the Secretary, after
consultation with the Federal Advisory Council on Occupational Safety
and Health, may approve such alternate program elements.
(c) Under Executive Order 12196, the Secretary is required to
perform various services for the agencies, including consultation,
training, recordkeeping, inspections, and evaluations. Agencies are
encouraged to seek such assistance from the Secretary as well as advice
on how to comply with the basic program elements and operate effective
occupational safety and health programs. Upon the request of an Agency,
the Office of Federal Agency Safety and Health Programs will review
proposed agency plans for the implementation of program elements.
(d) Section 19 of the Act and the Executive Order require specific
opportunities for employee participation in the operation of agency
safety and health programs. The manner of fulfilling these requirements
is set forth in part in these program elements. These requirements are
separate from but consistent with the Federal Service Labor Management
Relations Statute (5 U.S.C. 71) and regulations dealing with labor-
management relations within the Federal Government.
(e) Executive Order 12196 and these basic program elements apply to
all agencies of the Executive Branch. They apply to all Federal
employees. They apply to all working conditions of Federal employees
except those involving uniquely military equipment, systems, and
operations.
(f) No provision of the Executive Order or this part shall be
construed in any manner to relieve any private employer, including
Federal contractors, or their employees of any rights or
responsibilities under the provisions of the Act, including compliance
activities conducted by the Department of Labor or other appropriate
authority.
(g) Federal employees who work in establishments of private
employers are covered by their agencies' occupational safety and health
programs. Although an agency may not have the authority to require
abatement of hazardous conditions in a private sector
[[Page 79]]
workplace, the agency head must assure safe and healthful working
conditions for his/her employees. This shall be accomplished by
administrative controls, personal protective equipment, or withdrawal of
Federal employees from the private sector facility to the extent
necessary to assure that the employees are protected.
[45 FR 69798, Oct. 21, 1980, as amended at 60 FR 34852, July 5, 1995]
Sec. 1960.2 Definitions.
(a) The term Act means the Occupational Safety and Health Act of
1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.).
(b) The term agency for the purposes of this part means an Executive
Department, as defined in 5 U.S.C. 101, or any employing unit of
authority of the Executive Branch of the Government. For the purposes of
this part to the extent it implements section 19 of the Act, the term
agency does not include the United States Postal Service. By agreement
between the Secretary of Labor and the head of an agency of the
Legislative or Judicial Branches of the Government, these regulations
may be applicable to such agencies.
(c) The term agency liaison means an agency person appointed with
full authority and reponsibility to represent the occupant agency
management with the official in charge of a facility or installation
such as a GSA Building Manager.
(d) The term building manager means the person who manages one or
several buildings under the authority of a Federal agency. For example,
a building manager may be the GSA person who manages building(s) for
GSA.
(e) As used in Executive Order 12196, the term consultation with
representatives of the employees thereof shall include such
consultation, conference, or negotiation with representatives of agency
employees as is consistent with the Federal Service Labor Management
Relations Statute (5 U.S.C. 71), or collective bargaining or other
labor-management arrangements. As used in this part, the term
representative of employees shall be interpreted with due regard for any
obligation imposed by the aforementioned statute and any other labor-
management arrangement that may cover the employees involved.
(f) The term Designated Agency Safety and Health Official means the
individual who is responsible for the management of the safety and
health program within an agency, and is so designated or appointed by
the head of the agency pursuant to Sec. 1960.6 and the provisions of
Executive Order 12196.
(g) The term employee as used in this part means any person, other
than members of the Armed Forces, employed or otherwise suffered,
permitted, or required to work by an agency as the latter term is
defined in paragraph (b) of this section.
(h) The term establishment means a single physical location where
business is conducted or where services or operations are performed.
Where distinctly separate activities are performed at a single physical
location, each activity shall be treated as a separate establishment.
Typically, an establishment as used in this part refers to a field
activity, regional office, area office, installation, or facility.
(i) The term uniquely military equipment, systems, and operations
excludes from the scope of the order the design of Department of Defense
equipment and systems that are unique to the national defense mission,
such as military aircraft, ships, submarines, missiles, and missile
sites, early warning systems, military space systems, artillery, tanks,
and tactical vehicles; and excludes operations that are uniquely
military such as field maneuvers, naval operations, military flight
operations, associated research test and development activities, and
actions required under emergency conditions. The term includes within
the scope of the Order Department of Defense workplaces and operations
comparable to those of industry in the private sector such as: Vessel,
aircraft, and vehicle repair, overhaul, and modification (except for
equipment trials); construction; supply services; civil engineering or
public works; medical services; and office work.
(j) The term incidence rates means the number of injuries and
illnesses, or lost workdays, per 100 full-time workers. Rates are
calculated as
N x 200,000 / EH
[[Page 80]]
N = number of injuries and illnesses, or number of lost workdays.
EH = total hours worked by all employees during a month, a quarter, or
fiscal year.
200,000 = base for 100 full-time equivalent workers (working 40 hours
per week, 50 weeks per year).
(k) The term inspection means a comprehensive survey of all or part
of a workplace in order to detect safety and health hazards. Inspections
are normally performed during the regular work hours of the agency,
except as special circumstances may require. Inspections do not include
routine, day-to-day visits by agency occupational safety and health
personnel, or routine workplace surveillance of occupational health
conditions.
(l) Injury or illness. An injury or illness is an abnormal condition
or disorder. Injuries include cases such as, but not limited to, a cut,
fracture, sprain, or amputation. Illness includes both acute and chronic
illnesses, such as, but not limited to, a skin disease, respiratory
disorder, or poisoning.
(m) The term representative of management means a supervisor or
management official as defined in the applicable labor-management
relations program covering the affected employees.
(n)-(p) [Reserved]
(q) The term Safety and Health Inspector means a safety and/or
occupational health specialist or other person authorized pursuant to
Executive Order 12196, section 1-201(g), to carry out inspections for
the purpose of subpart D of this part, a person having equipment and
competence to recognize safety and/or health hazards in the workplace.
(r) The term Safety and Health Official means an individual who
manages the occupational safety and/or occupational health program at
organizational levels below the Designated Agency Safety and Health
Official.
(s) The term Safety and Health Specialist means a person or persons
meeting the Office of Personnel Management standards for such
occupations, which include but are not limited to:
Safety and Occupational Health Manager/Specialist GS-018
Safety Engineer GS-803
Fire Prevention Engineer GS-804
Industrial Hygienist GS-690
Fire Protection and Prevention Specialist/Marshal GS-081
Health Physicist GS-1306
Occupational Medicine Physician GS-602
Occupational Health Nurse GS-610
Safety Technician GS-019
Physical Science Technician GS-1311
Environmental Health Technician GS-699
Air Safety Investigation Officer GS-1815
Aviation Safety Specialist GS-1825
Chemist GS-1320
Health Technician GS-645
Highway Safety Manager GS-2125
or equally qualified military, agency, or nongovernment personnel. The
agency head shall be responsible for determination and certification of
equally qualified personnel.
(t) The term workplace means a physical location where the agency's
work or operations are performed.
(u) The term imminent danger means any conditions or practices in
any workplace which are such that a danger exists which could reasonably
be expected to cause death or serious physical harm immediately or
before the imminence of such danger can be eliminated through normal
procedures.
(v) The word serious as used in serious hazard, serious violation or
serious condition means a hazard, violation or condition such that there
is a substantial probability that death or serious physical harm could
result.
(w) The term certified safety and health committee means an agency
safety and health committee that meets the provisions of section 1-3 of
Executive Order 12196 and of this part, as listed and attested to by the
head of each agency in writing to the Secretary.
(x) The term reprisal as used in this part means any act of
restraint, interference, coercion or discrimination against an employee
for exercising his or her rights under Executive Order 12196 and this
part, or for participating in the agency's safety and health program.
[45 FR 69798, Oct. 21, 1980, as amended at 49 FR 3078, Jan. 25, 1984; 50
FR 40269, Oct. 2, 1985; 51 FR 28378, Aug. 7, 1986; 69 FR 68804, Nov. 26,
2004; 78 FR 47190, Aug. 5, 2013]
Subpart B_Administration
Sec. 1960.6 Designation of agency safety and health officials.
(a) The head of each agency shall designate an official with
sufficient authority and responsibility to represent
[[Page 81]]
effectively the interest and support of the agency head in the
management and administration of the agency occupational safety and
health program. This Designated Agency Safety and Health Official should
be of the rank of Assistant Secretary, or of equivalent rank, or
equivalent degree of responsibility, and shall have sufficient
headquarters staff with the necessary training and experience. The
headquarters staff should report directly to, or have appropriate access
to, the Designated Agency Safety and Health Official, in order to carry
out the responsibilities under this part.
(b) The Designated Agency Safety and Health Official shall assist
the agency head in establishing:
(1) An agency occupational safety and health policy and program to
carry out the provisions of section 19 of the Act, Executive Order
12196, and this part;
(2) An organization, including provision for the designation of
safety and health officials at appropriate levels, with adequate budgets
and staffs to implement the occupational safety and health program at
all operational levels;
(3) A set of procedures that ensures effective implementation of the
agency policy and program as required by section 19 of the Act,
Executive Order 12196, and the program elements of this part,
considering the mission, size, and organization of the agency;
(4) Goals and objectives for reducing and eliminating occupational
accidents, injuries, and illnesses;
(5) Plans and procedures for evaluating the agency's occupational
safety and health program effectiveness at all operational levels; and
(6) Priorities with respect to the factors which cause occupational
accidents, injuries, and illnesses in the agency's workplaces so that
appropriate corrective actions can be taken.
(c) The agency head shall assure that safety and health officials
are designated at each appropriate level with sufficient authority and
responsibility to plan for and assure funds for necessary safety and
health staff, equipment, materials, and training required to ensure
implementation of an effective occupational safety and health program.
Sec. 1960.7 Financial management.
(a) The head of each agency shall ensure that the agency budget
submission includes appropriate financial and other resources to
effectively implement and administer the agency's occupational safety
and health program.
(b) The Designated Agency Safety and Health Official, management
officials in charge of each establishment, safety and health officials
at all appropriate levels, and other management officials shall be
responsible for planning, requesting resources, implementing, and
evaluating the occupational safety and health program budget in
accordance with all relevant Office of Management and Budget regulations
and documents.
(c) Appropriate resources for an agency's occupational safety and
health program shall include, but not be limited to:
(1) Sufficient personnel to implement and administer the program at
all levels, including necessary administrative costs such as training,
travel, and personal protective equipment;
(2) Abatement of unsafe or unhealthful working conditions related to
agency operations or facilities;
(3) Safety and health sampling, testing, and diagnostic and
analytical tools and equipment, including laboratory analyses;
(4) Any necessary contracts to identify, analyze, or evaluate unsafe
or unhealthful working conditions and operations;
(5) Program promotional costs such as publications, posters, or
films;
(6) Technical information, documents, books, standards, codes,
periodicals, and publications; and
(7) Medical surveillance programs for employees.
[45 FR 69798, Oct. 21, 1980, as amended at 78 FR 47190, Aug. 5, 2013]
Sec. 1960.8 Agency responsibilities.
(a) The head of each agency shall furnish to each employee
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.
[[Page 82]]
(b) The head of each agency shall comply with the Occupational
Safety and Health Administration standards applicable to the agency.
(c) The head of each agency shall develop, implement, and evaluate
an occupational safety and health program in accordance with the
requirements of section 19 of the Act, Executive Order 12196, and the
basic program elements prescribed in this part, or approved alternate
program elements.
(d) The head of each agency shall acquire, maintain, and require the
use of approved personal protective equipment, approved safety
equipment, and other devices necessary to protect employees.
(e) In order to provide essential specialized expertise, agency
heads shall authorize safety and health personnel to utilize such
expertise from whatever source available, including but not limited to
other agencies, professional groups, consultants, universities, labor
organizations, and safety and health committees.
Sec. 1960.9 Supervisory responsibilities.
Employees who exercise supervisory functions shall, to the extent of
their authority, furnish employees 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. They shall also comply with the
occupational safety and health standards applicable to their agency and
with all rules, regulations, and orders issued by the head of the agency
with respect to the agency occupational safety and health program.
Sec. 1960.10 Employee responsibilities and rights.
(a) Each employee shall comply with the standards, rules,
regulations, and orders issued by his/her agency in accordance with
section 19 of the Act, Executive Order 12196, and this part which are
applicable to his/her own actions and conduct.
(b) Employees shall use safety equipment, personal protective
equipment, and other devices and procedures provided or directed by the
agency and necessary for their protection.
(c) Employees shall have the right to report unsafe and unhealthful
working conditions to appropriate officials.
(d) Employees shall be authorized official time to participate in
the activities provided for in section 19 of the Act, Executive Order
12196, this part, and the agency occupational safety and health program.
Sec. 1960.11 Evaluation of occupational safety and health performance.
Each agency head shall ensure that any performance evaluation of any
management official in charge of an establishment, any supervisory
employee, or other appropriate management official, measures that
employee's performance in meeting requirements of the agency
occupational safety and health program, consistent with the employee's
assigned responsibilities and authority, and taking into consideration
any applicable regulations of the Office of Personnel Management or
other appropriate authority. The recognition of superior performance in
discharging safety and health responsibilities by an individual or group
should be encouraged and noted.
Sec. 1960.12 Dissemination of occupational safety
and health program information.
(a) Copies of the Act, Executive Order 12196, program elements
published in this part, details of the agency's occupational safety and
health program, and applicable safety and health standards shall be made
available upon request to employees or employee representatives for
review.
(b) A copy of the agency's written occupational safety and health
program applicable to the establishment shall be made available to each
supervisor, each occupational safety and health committee member, and to
employee representatives.
(c) Each agency shall post conspicuously in each establishment, and
keep posted, a poster informing employees of the provisions of the Act,
Executive Order 12196, and the agency occupational safety and health
program under this part. The Department of Labor will furnish the core
text of a poster to
[[Page 83]]
agencies. Each agency shall add the following items:
(1) Details of the agency's procedures for responding to reports by
employees of unsafe or unhealthful working conditions, and to
allegations of discrimination or reprisal due to participation in safety
and/or health activities;
(2) The location where employees may obtain information about the
agency's occupational safety and health program, including the full text
of agency occupational safety and health standards, and
(3) Relevant information about any agency safety and health
committees.
Such posters and additions shall not be altered, defaced, or covered by
other material.
(d) A copy of the agency's poster shall be provided to the
Secretary. If the agency needs assistance and advice on the content and
development of the poster, such shall be requested of the Secretary
prior to printing and distribution.
(e) Agency heads shall promote employee awareness of occupational
safety and health matters through their ordinary information channels,
such as newsletters, bulletins and handbooks.
Subpart C_Standards
Sec. 1960.16 Compliance with OSHA standards.
Each agency head shall comply with all occupational safety and
health standards issued under section 6 of the Act, or with alternate
standards issued pursuant to this subpart. In complying with section 6
standards, an agency may, upon prior notification to the Secretary,
prescribe and enforce more stringent permissible exposure levels or
threshold limit values and may require more frequent monitoring of
exposures without recourse to the approval procedures for alternate
standards described in Sec. 1960.17. In addition, after consultation
with employees and safety and health committees and prior notification
to the Secretary, an agency may utilize the latest edition of a
reference standard if it is more stringent than the section 6 standard.
After notification, the Secretary may require the use of the approval
procedures for alternate standards for any of the situations described
in this paragraph.
Sec. 1960.17 Alternate standards.
An agency head may apply an alternate standard where deemed
necessary, and shall, after consultation with employees or their
representatives, including appropriate occupational safety and health
committees, notify the Secretary and request approval of such alternate
standards.
(a) Any request by the head of the agency for an alternate standard
shall be transmitted to the Secretary.
(b) Any such request for an alternate standard shall not be approved
by the Secretary unless it provides equivalent or greater protection for
affected employees. Any such request shall include:
(1) A statement of why the agency cannot comply with the OSHA
standard or wants to adopt an alternate standard;
(2) A description of the alternate standard;
(3) An explanation of how the alternate standard provides equivalent
or greater protection for the affected employees;
(4) A description of interim protective measures afforded employees
until a decision is rendered by the Secretary of Labor; and
(5) A summary of written comments, if any, from interested
employees, employee representatives, and occupational safety and health
committees.
Sec. 1960.18 Supplementary standards.
(a) In addition to complying with emergency temporary standards
issued under section 6 of the Act, an agency head shall adopt such
emergency temporary and permanent supplementary standards as necessary
and appropriate for application to working conditions of agency
employees for which there exists no appropriate OSHA standards. In order
to avoid any possible duplication of effort, the agency head should
notify the Secretary of the subject matter of such standard when the
development of the standard begins.
(b) The agency head shall send a copy of the final draft of the
permanent supplementary standard to the Secretary
[[Page 84]]
prior to official adoption by the agency, along with any written
comments on the standard from interested employees, employee
representatives, and occupational safety and health committees. If the
Secretary finds the permanent supplementary standard to be adopted
inconsistent with OSHA standards, or inconsistent with OSHA enforcement
practices under section 5(a)(1) of the Act, the Secretary shall have 15
working days in which to notify the head of the agency of this finding.
In such a case, the supplementary standard shall not be adopted, but the
agency will be afforded an opportunity to resubmit a revised standard
that is designed to provide adequate protection and is consistent with
OSHA standards. Upon request of the agency head, the Secretary shall
offer to the agency technical assistance in the development of the
supplemental standard.
Sec. 1960.19 Other Federal agency standards affecting occupational
safety and health.
(a) Where employees of different agencies engage in joint
operations, and/or primarily report to work or carry out operations in
the same establishment, the standards adopted under Sec. 1960.17 or
Sec. 1960.18 of the host agency shall govern.
(b) There are situations in which the head of an agency is required
to comply with standards affecting occupational safety and health issued
by a Federal agency other than OSHA. For example, standards issued by
the Federal Aviation Administration, the Department of Energy, or the
General Services Administration may be applicable to certain Federal
workplaces. Nothing in this subpart affects the duty of any agency head
to comply with such standards. In addition, agency heads should comply
with other standards issued by Federal agencies which deal with
hazardous working conditions, but for which OSHA has no standards.
(c) Although it is not anticipated that standards of other Federal
agencies will conflict with OSHA standards, should such conflict occur,
the head of the agency shall inform the other Federal agency and the
Secretary so that joint efforts to resolve the issues may be undertaken.
However, until conflicts are resolved, agencies shall comply with the
more protective of the conflicting standards.
Subpart D_Inspection and Abatement
Sec. 1960.25 Qualifications of safety and health inspectors
and agency inspections.
(a) Executive Order 12196 requires that each agency utilize as
inspectors ``personnel with equipment and competence to recognize
hazards.'' Inspections shall be conducted by inspectors qualified to
recognize and evaluate hazards of the working environment and to suggest
general abatement procedures. Safety and health specialists as defined
in Sec. 1960.2(s), with experience and/or up-to-date training in
occupational safety and health hazard recognition and evaluation are
considered as meeting the qualifications of safety and health
inspectors. For those working environments where there are less complex
hazards, such safety and health specializations as cited above may not
be required, but inspectors in such environments shall have sufficient
documented training and/or experience in the safety and health hazards
of the workplace involved to recognize and evaluate those particular
hazards and to suggest general abatement procedures. All inspection
personnel must be provided the equipment necessary to conduct a thorough
inspection of the workplace involved.
(b) Each agency which has workplaces containing information
classified in the interest of national security shall provide access to
safety and health inspectors who have obtained the appropriate security
clearance.
(c) All areas and operations of each workplace, including office
operations, shall be inspected at least annually. More frequent
inspections shall be conducted in all workplaces where there is an
increased risk of accident, injury, or illness due to the nature of the
work performed. Sufficient unannounced inspections and unannounced
follow-up inspections should be conducted by the agency to ensure the
identification and abatement of hazardous conditions.
[[Page 85]]
(d) When situations arise involving multiple agencies'
responsibilities for conditions affecting employee safety and health,
coordination of inspection functions is encouraged.
Sec. 1960.26 Conduct of inspections.
(a) Preparation. (1) Prior to commencement of the inspection, the
Safety and Health Inspector shall be provided all available relevant
information which pertains to the occupational safety and health of the
workplace to be inspected, including safety and health hazard reports,
injury and illness records, previous inspection reports, and reports of
unsafe and unhealthful working conditions.
(2) The Safety and Health Inspector shall determine in advance,
where possible, the actual work procedures and conditions to be
inspected, in order to have the proper equipment available to conduct an
effective inspection.
(b) Inspection. (1) For the purpose of assuring safe and healthful
working conditions for employees of agencies, the head of the agency
shall authorize safety and/or health inspectors: To enter without delay,
and at reasonable times, any building, installation, facility,
construction site, or other area, workplace, or environment where work
is performed by employees of the agency; to inspect and investigate
during regular working hours and at other reasonable times, and within
reasonable limits and in a reasonable manner, any such place of
employment and all pertinent conditions, structures, machines,
apparatus, devices, equipment, and materials therein, and to question
privately any agency employee, and/or any agency supervisory employee,
and/or any official in charge of an establishment.
(2) If there are no authorized representatives of employees, the
inspector shall consult with a reasonable number of employees during the
walkaround.
(3) When, in the opinion of the inspector, it is necessary to
conduct personal monitoring (sampling) of employee's work environments,
the inspector may request employees to wear reasonable and necessary
personal monitoring devices, e.g., noise dosimeters and air sampling
pumps, for periods determined by the inspector to be necessary for
complete and effective sampling of the environment.
(4) Upon request of the inspector, the employer shall encourage
employees to wear the personal environmental monitoring devices during
an inspection.
(5) Whenever and as soon as it is concluded on the basis of an
inspection that a danger exists which could reasonably be expected to
cause death or serious physical harm immediately, the inspector shall
inform the affected employees and official in charge of the workplace of
the danger. The official in charge of the workplace, or a person
empowered to act for that official, shall undertake immediate abatement
and the withdrawal of employees who are not necessary for abatement of
the dangerous conditions. In the event the official in charge of the
workplace needs assistance to undertake full abatement, that official
shall promptly contact the Designated Agency Safety and Health Official
and other responsible agency officials, who shall assist the abatement
effort. Safety and health committees shall be informed of all relevant
actions and representatives of the employees shall be so informed.
(6) At the conclusion of an inspection, the Safety and Health
Inspector shall confer with the official in charge of the workplace or
that official's representative, and with an appropriate representative
of the employees of the establishment, and informally advise them of any
apparent unsafe or unhealthful working conditions disclosed by the
inspection. During any such conference, the official in charge of the
workplace and the employee representative shall be afforded an
opportunity to bring to the attention of the Safety and Health Inspector
any pertinent information regarding conditions in the workplace.
(c) Written reports and notices of unsafe or unhealthful working
conditions. (1) The inspector shall, in writing, describe with
particularity the procedures followed in the inspection and the findings
which form the basis for the issuance of any Notice of Unsafe or
Unhealthful Working Conditions.
[[Page 86]]
(2) Each agency shall establish a procedure for the prompt issuance
of a Notice of Unsafe or Unhealthful Working Conditions. Such notices
shall be issued not later than 15 days after completion of the
inspection for safety violations or not later than 30 days for health
violations. If there are compelling reasons why such notice cannot be
issued within the 15 days or 30 days indicated, the persons described in
paragraph (c)(2)(iii) of this section shall be informed of the reasons
for the delay. Such procedure shall include the following:
(i) Notices shall be in writing and shall describe with
particularity the nature and degree of seriousness of the unsafe or
unhealthful working condition, including a reference to the standard or
other requirement involved;
(ii) The notice shall fix a reasonable time for the abatement of the
unsafe or unhealthful working condition; and
(iii) A copy of the notice shall be sent to the official in charge
of the workplace, the employee representative who participated in the
closing conference, and/or the safety and health committee of the
workplace, if any.
(3) Upon receipt of any notice of an unsafe or unhealthful working
condition, the official in charge of a workplace shall immediately post
such notice, or copy thereof, unedited, except for reason of national
security, at or near each place an unsafe or unhealthful working
condition referred to in the notice exists or existed. In addition, a
notice shall be posted if any special procedures are in effect. Where,
because of the nature of the workplace operations, it is not practicable
to post the notice at or near each such place, such notice shall be
posted, unedited, except for reason of national security, in a prominent
place where it will be readily observable by all affected employees. For
example, where workplace activities are physically dispersed, the notice
may be posted at the location to which employees report each day. Where
employees do not primarily work at or report to a single location, the
notice may be posted at the location from which the employees operate to
carry out their activities.
(4) Each notice of an unsafe or unhealthful working condition, or a
copy thereof, shall remain posted until the unsafe or unhealthful
working condition has been abated or for 3 working days whichever is
later. A copy of the notice will be filed and maintained for a period of
five years after abatement at the establishment and made available to
the Secretary upon request.
[45 FR 69798, Oct. 21, 1980; 45 FR 77003, Nov. 21, 1980]
Sec. 1960.27 Representatives of officials in charge
and representatives of employees.
(a) Safety and health inspectors shall be in charge of inspections
and may interview any employee in private if the inspector deems it
necessary. A representative of the official in charge of a workplace and
a representative of employees shall be given an opportunity to accompany
Safety and Health Inspectors during the physical inspection of any
workplace, both to aid the inspection and to provide such
representatives with more detailed knowledge of any existing or
potential unsafe or unhealthful working conditions. The representative
of employees shall be selected by the employees. Additional
representatives of the official in charge and additional representatives
of employees may accompany the Safety and Health Inspectors if it is
determined by the inspector that such additional representatives will
further aid the inspection. Different representatives of the employer
and employees may be allowed to accompany the Inspector during each
different phase of an inspection.
(b) Safety and health inspectors shall be authorized to deny the
right of accompaniment under this section to any person whose
participation interferes with a fair and orderly inspection.
(c) With regard to facilities classified in the interest of national
security, only persons authorized to have access to such facilities
shall be allowed to accompany a Safety and Health Inspector in such
areas.
(d) Safety and health inspectors shall consult with employees
concerning matters of occupational safety and health to the extent
deemed necessary for the conduct of an effective and
[[Page 87]]
thorough inspection. During the course of an inspection, any employee
shall be afforded an opportunity to bring to the attention of the Safety
and Health Inspector any unsafe or unhealthful working condition which
the employee has reason to believe exists in the workplace.
Sec. 1960.28 Employee reports of unsafe or unhealthful working conditions.
(a) The purpose of employee reports is to inform agencies of the
existence of, or potential for, unsafe or unhealthful working
conditions. A report under this part is not a grievance.
(b) This section provides guidance in establishing a channel of
communication between agency employees and those with responsibilities
for safety and health matters, e.g., their supervisor, the agency safety
and health officials, safety and health committees, safety and health
inspectors, the head of the agency, or the Secretary. These channels of
communication are intended to assure prompt analysis and response to
reports of unsafe or unhealthful working conditions in accordance with
the requirements of Executive Order 12196. Since many safety and health
problems can be eliminated as soon as they are identified, the existence
of a formal channel of communication shall not preclude immediate
corrective action by an employee's supervisor in response to oral
reports of unsafe or unhealthful working conditions where such action is
possible. Nor should an employee be required to await the outcome of
such an oral report before filing a written report pursuant to the
provisions of this section.
(c) Any employee or representative of employees, who believes that
an unsafe or unhealthful working condition exists in any workplace where
such employee is employed, shall have the right and is encouraged to
make a report of the unsafe or unhealthful working condition to an
appropriate agency safety and health official and request an inspection
of such workplace for this purpose. The report shall be reduced to
writing either by the individual submitting the report or, in the case
of an oral notification, by the above official or other person
designated to receive the reports in the workplace. Any such report
shall set forth the grounds for the report and shall contain the name of
the employee or representative of employees. Upon the request of the
individual making such report, no person shall disclose the name of the
individual making the report or the names of individual employees
referred to in the report, to anyone other than authorized
representatives of the Secretary. In the case of imminent danger
situations, employees shall make reports by the most expeditious means
available.
(d) Reports received by the agency. (1) Each report of an existing
or potential unsafe or unhealthful working condition should be recorded
on a log maintained at the establishment. If an agency finds it
inappropriate to maintain a log of written reports at the establishment
level, it may avail itself of procedures set forth in Sec. 1960.71. A
copy of each report received shall be sent to the appropriate
establishment safety and health committee.
(2) A sequentially numbered case file, coded for identification,
should be assigned for purposes of maintaining an accurate record of the
report and the response thereto. As a minimum, each establishment's log
should contain the following information: date, time, code/reference/
file number, location of condition, brief description of the condition,
classification (imminent danger, serious or other), and date and nature
of action taken.
(3) Executive Order 12196 requires that agency inspections be
conducted within 24 hours for employee reports of imminent danger
conditions, within three working days for potentially serious
conditions, and within 20 working days for other than serious safety and
health conditions. However, an inspection may not be necessary if,
through normal management action and with prompt notification to
employees and safety and health committees, the hazardous condition(s)
identified can be abated immediately.
(4) An employee submitting a report of unsafe or unhealthful
conditions shall be notified in writing within 15 days if the official
receiving the report determines there are not reasonable grounds to
believe such a hazard exists
[[Page 88]]
and does not plan to make an inspection based on such report. A copy of
each such notification shall be provided by the agency to the
appropriate certified safety and health committee, where established
under Executive Order 12196. An agency's inspection or investigation
report, if any, shall be made available to the employee making the
report within 15 days after completion of the inspection, for safety
violations or within 30 days for health violations, unless there are
compelling reasons, and shall be made available to the Secretary or the
Secretary's authorized representative on request.
(e) Reports received by the Secretary of Labor. (1) Agency safety
and health programs must have provisions for responding to employees'
reports of unsafe or unhealthful working conditions and the Secretary
encourages employees to use agency procedures as the most expeditious
means of achieving abatement of hazardous conditions. It is recognized,
however, that employee reports may be received directly by the
Secretary.
(2) When such reports are received directly from an employee or
employee representative, the Secretary shall, where a certified safety
and health committee exists, forward the report to the agency for
handling in accordance with procedures outlined in Sec. 1960.28(d). A
copy of the response to the originator shall be sent to the Secretary.
(3) Where there is no certified safety and health committee, or when
requested by half the members of a committee, the Secretary may initiate
an inspection or other appropriate action. When the Secretary determines
that an inspection is warranted, the Secretary shall observe the same
response times as required of the agencies under the Executive Order and
Sec. 1960.28(d)(3). When the Secretary determines not to make an
inspection, the report shall be forwarded to the agency for handling in
accordance with procedures outlined in Sec. 1960.28(d). A copy of the
response to the originator shall be sent to the Secretary.
Sec. 1960.29 Accident investigation.
(a) While all accidents should be investigated, including accidents
involving property damage only, the extent of such investigation shall
be reflective of the seriousness of the accident.
(b) In any case, each accident which results in a fatality or the
hospitalization of three or more employees shall be investigated to
determine the causal factors involved. Except to the extent necessary to
protect employees and the public, evidence at the scene of an accident
shall be left untouched until inspectors have an opportunity to examine
it.
(c) Any information or evidence uncovered during accident
investigations which would be of benefit in developing a new OSHA
standard or in modifying or revoking an existing standard should be
promptly transmitted to the Secretary.
(d) The investigative report of the accident shall include
appropriate documentation on date, time, location, description of
operations, description of accident, photographs, interviews of
employees and witnesses, measurements, and other pertinent information.
A copy of the investigative report required by this section shall be
forwarded to the official in charge of the workplace, the appropriate
safety and health committee, and the exclusive employee representative,
if any. The investigative report shall be made available to the
Secretary or his authorized representative on request.
[45 FR 69798, Oct. 21, 1980, as amended at 69 FR 68804, Nov. 26, 2004]
Sec. 1960.30 Abatement of unsafe or unhealthful working conditions.
(a) The agency shall ensure the prompt abatement of unsafe and
unhealthful conditions. Where a Notice of an Unsafe or Unhealthful
Working Condition has been issued, abatement shall be within the time
set forth in the notice, or in accordance with the established abatement
plan.
(b) The procedures for correcting unsafe or unhealthful working
conditions shall include a follow-up, to the extent necessary, to
determine whether the correction was made. If, upon the follow-up, it
appears that the correction was not made, or was not carried out in
accordance with an abatement plan prepared pursuant to paragraph (c) of
this section, the official in charge of the establishment and the
appropriate
[[Page 89]]
safety and health committee shall be notified of the failure to abate.
(c) The official in charge of the establishment shall promptly
prepare an abatement plan with the appropriate participation of the
establishment's Safety and Health Official or a designee, if in the
judgment of the establishment official the abatement of an unsafe or
unhealthful working condition will not be possible within 30 calendar
days. Such plan shall contain an explanation of the circumstances of the
delay in abatement, a proposed timetable for the abatement, and a
summary of steps being taken in the interim to protect employees from
being injured as a result of the unsafe or unhealthful working
condition. A copy of the plan shall be sent to the safety and health
committee, and, if no committee exists, to the representative of the
employees. Any changes in an abatement plan will require the preparation
of a new plan in accordance with the provisions of this section.
(d) When a hazard cannot be abated within the authority and
resources of the official in charge of the establishment, that official
shall request assistance from appropriate higher authority. The local
safety and health official, any established committee and/or employee
representatives, and all personnel subject to the hazard shall be
advised of this action and of interim protective measures in effect, and
shall be kept informed of subsequent progress on the abatement plan.
(e) When a hazard cannot be abated without assistance of the General
Services Administration or other Federal lessor agency, the occupant
agency shall act with the lessor agency to secure abatement. Procedures
for coordination with the General Services Administration are contained
in subpart E of this part.
(f) The procedures OSHA will use to verify Federal agency abatement
are included in the private sector guidelines at 29 CFR 1903.19.
[45 FR 69798, Oct. 21, 1980, as amended at 78 FR 47190, Aug. 5, 2013]
Sec. 1960.31 Inspections by OSHA.
(a) The Secretary or the Secretary's representatives are authorized
to conduct, when the Secretary deems necessary, announced or unannounced
inspections in the following situations:
(1) Where an agency has not established occupational safety and
health committees or where committees no longer operate in conformance
to the requirements of subpart F of this part;
(2) In response to a request from half the membership of record of
any certified safety and health committee; and
(3) In response to an employee's report of an imminent danger
situation, where there is a certified committee, but where the Secretary
determines that neither the agency nor the committee has responded to
the employee.
(b) The Secretary's inspectors or evaluators are authorized: to
enter without delay, and at reasonable times, any building,
installation, facility, construction site, or other area, workplace, or
environment where work is performed by employees of the agency; to
inspect and investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a reasonable
manner, any such place of employment, and all pertinent conditions,
structures, machines, apparatus, devices, equipment, and materials
therein, and to question privately any employee, any supervisory
employee, and/or any official in charge of an establishment.
(c) The Secretary may also make scheduled inspections as an integral
part of OSHA's evaluation of an agency's safety and health program in
accordance with subpart J of this part.
(d) OSHA inspections shall follow the general format set forth for
agency inspections in other applicable parts of this subpart.
Subpart E_General Services Administration and Other Federal Agencies
Sec. 1960.34 General provisions.
Within six months of the effective date of this part, the Secretary
of Labor and the Administrator of the General Services Administration
(GSA) shall initiate a study of conflicts that may exist in their
standards concerning Federal buildings, leased space, products purchased
or supplied, and other requirements affecting Federal
[[Page 90]]
employee safety and health. Both agencies shall establish and publish a
joint procedure for resolving conflicting standards. All other Federal
agencies that have authority for purchasing equipment, supplies, and
materials, and for controlling Government space, as well as the leasing
of space, shall also be subject to the requirements of this subpart,
including publication of a procedure for resolving conflicting
standards.
(a) In order to assist agencies in carrying out their duties under
section 19 of the Act, Executive Order 12196, and this part, the
Administrator or the Administrator's designee shall:
(1) Upon an agency's request, furnish for any owned or leased space
offered to a Federal agency for occupancy:
(i) A report of a recent pre-occupancy inspection to identify
serious hazards or serious violations of OSHA standards or approved
alternate standards, and
(ii) A plan for abatement of the hazards and violations discovered;
(2) Provide space which:
(i) Meets any special safety and health requirements submitted by
the requesting agency, and
(ii) Does not contain either serious hazards or serious violations
of OSHA standards or approved alternate standards which cannot be
abated;
(3) Repair, renovate, or alter, upon an agency's request, owned or
leased space in a planned and controlled manner to reduce or eliminate,
whenever possible, any hazardous exposure to the occupant agency's
employees;
(4) Accompany, upon request, the Secretary or the Secretary's
designee on any inspection or investigation of a facility subject to the
authority of the General Services Administration. Requests made for this
purpose shall, whenever possible, be made at the GSA regional level in
order to facilitate prompt assistance;
(5) Investigate, upon an official agency request, reports of unsafe
or unhealthful conditions within the scope of GSA's responsibility. Such
investigation, when requiring an on-site inspection, shall be completed
within 24 hours for imminent danger situations, within three working
days for potentially serious conditions, and within 20 working days for
other safety and health risk conditions;
(6) Abate unsafe or unhealthful conditions disclosed by reports,
investigation or inspection within 30 calendar days or submit to the
occupant agency's designated liaison official an abatement plan. Such
abatement plan shall give priority to the allocation of resources to
bring about prompt abatement of the conditions. (GSA shall publish
procedures for abatement of hazards in the Federal Property Management
Regulations--41 CFR part 101);
(7) Establish an occupancy permit program which will regulate the
types of activities and occupancies in facilities in order to avoid
incompatible groupings, e.g., chemical or biological laboratories in
office space. GSA shall seek to consolidate Federal laboratory
operations in facilities designed for such purposes;
(8) Ensure, insofar as possible, that agency safety and health
problems still outstanding are resolved, or otherwise answered by
acceptable alternatives prior to renegotiation of leases; and
(9) Ensure that GSA or other Federal lessor agencies' building
managers maintain a log of reports of unsafe or unhealthful conditions
submitted by tenants to include: date of receipt of report, action
taken, and final resolution.
(b) Product safety. Agencies such as GSA, DOD, and others which
procure and provide supplies, equipment, devices, and material for their
own use or use by other agencies, except for the design of uniquely
military products as set forth in Sec. 1960.2(i), shall establish and
maintain a product safety program which:
(1) Ensures that items procured will allow user agencies to use such
products safely for their designed purpose and will facilitate user
compliance with all applicable standards.
(2) Requires that products meet the applicable safety and health
requirements of Federal law and regulations issued thereunder;
(3) Ensures that hazardous material will be labelled in accordance
with current law or regulation to alert users, shippers, occupational
safety and
[[Page 91]]
health, and emergency action personnel, and others, to basic information
concerning flammability, toxicity, compatibility, first aid procedures,
and normal as well as emergency handling and disposal procedures;
(4) Ensures availability of appropriate safety rescue and personal
protective equipment to supply user agencies. The writing of Federal
procurement specifications will be coordinated by GSA with OSHA/NIOSH as
needed to assure purchase of approved products;
(5) Ensures that products recalled by the manufacturer, either
voluntarily or by order from a regulatory authority, are removed from
inventory. Each recall notice or order shall be forwarded to all
agencies which have ordered such product from or through the procuring/
supplying Federal agency, e.g., GSA, DOD, etc.;
(6) Includes preparation of FEDSTD 313, Material Safety Data Sheets
(MSDS), involving all interested agencies in review to keep the standard
current. MSDS provided by agencies or contractors shall meet the
requirements of FEDSTD 313 and be furnished to DOD for filing and
distribution.
(c) In order to assist agencies in carrying out their duties under
section 19 of the Act, Executive Order 12196, and this part, the DOD
operates and maintains an automated system to receive, file, reproduce,
and make available MSDS data to other Federal agencies through the
Government Printing Office or the National Technical Information
Services.
(d) All Federal agencies shall use MSDS either provided by DOD, or
acquired directly from suppliers, when purchasing hazardous materials
(as defined in FEDSTD 313) for local use. These data will be used to
develop detailed procedures to advise employees in the workplace of the
hazards involved with the materials and to protect them therefrom.
(e) Safety and health services. GSA will operate and maintain for
user agencies the following services:
(1) Listings in the ``Federal Supply Schedule'' of safety and health
services and equipment which are approved for use by agencies when
needed. Examples of such services are: Workplace inspections, training,
industrial hygiene surveys, asbestos bulk sampling, and mobile health
testing; examples of such equipment are: personal protective equipment
and apparel, safety devices, and environmental monitoring equipment;
(2) Rules for assistance in the preparation of agency ``Occupant
Emergency Plans'' (formerly called ``Facility Self-Protection Plans''),
to be published by GSA at 41 CFR part 101;
(3) An effective maintenance program in the Interagency Motorpool
System which will ensure the safety and health of Federal employees
utilizing the vehicles. Critical items to be included are: Exhaust
systems, brakes, tires, lights, steering, and passenger restraint or
other crash protection systems; and
(4) A rapid response system whereby agencies can alert GSA to unsafe
or unhealthful items purchased or contracted for by GSA, which in turn
will evaluate the reports, initiate corrective action, as appropriate,
and advise use agencies of interim protective measures.
Sec. 1960.35 National Institute for Occupational Safety and Health.
(a) The Director of the National Institute for Occupational Safety
and Health (NIOSH) shall, upon request by the Secretary, assist in:
(1) Evaluations of Federal agency safety and health programs;
(2) Investigations of possible safety and health hazards and
(3) Inspections resulting from employee or committee reports of
unsafe or unhealthful working conditions.
(b) The Director of NIOSH shall provide a Hazard Evaluation (HE)
program for Federal agencies. This program shall be designed to respond
to requests for assistance in determining whether or not safety or
health hazards are present in a Federal workplace. Requests for such
Hazard Evaluations may be submitted to the Director by:
(1) The Secretary of Labor;
(2) The Head of a Federal agency;
(3) An agency safety and health committee if half the committee
requests such service; and
(4) Employees who are not covered by a certified safety and health
committee.
[[Page 92]]
(c) The Director of NIOSH may assist agencies by providing hazard
alerts, technical services, training materials and conducting training
programs upon request by an agency and with reimbursement.
Subpart F_Occupational Safety and Health Committees
Sec. 1960.36 General provisions.
(a) The occupational safety and health committees described in this
subpart are organized and maintained basically to monitor and assist an
agency's safety and health program. These committees assist agencies to
maintain an open channel of communication between employees and
management concerning safety and health matters in agency workplaces.
The committees provide a method by which employees can utilize their
knowledge of workplace operations to assist agency management to improve
policies, conditions, and practices.
(b) Agencies may elect to establish safety and health committees
meeting the minimum requirements contained in this subpart. Where such
committees are not established or fail to meet the minimum requirements
established by the Secretary, the Secretary is authorized by section 1-
401(i) of Executive Order 12196 to conduct unannounced inspections of
agency workplaces when the Secretary determines them necessary.
Sec. 1960.37 Committee organization.
(a) For agencies which elect to utilize the committee concept,
safety and health committees shall be formed at both the national level
and, for agencies with field or regional offices, at appropriate levels
within the agency. To realize exemption from unannounced OSHA
inspections, an agency must form a committee at the national level and
at any establishment or grouping of establishments that is to be exempt,
keeping the Secretary advised of the locations and activities where such
committees are functioning.
(1) The principal function of the national level committee shall be
to consult and provide policy advice on, and monitor the performance of,
the agency-wide safety and health program.
(2) Committees at other appropriate levels shall be established at
agency establishments or groupings of establishments consistent with the
mission, size and organization of the agency and its collective
bargaining configuration. The agency shall form committees at the lowest
practicable local level. The principal function of the establishment (or
local) committees is to monitor and assist in the execution of the
agency's safety and health policies and program at the workplaces within
their jurisdiction. Any dispute over the meaning of the term
``appropriate levels'' shall be resolved by the Secretary.
(b) Committees shall have equal representation of management and
nonmanagement employees, who shall be members of record.
(1) Management members of both national level and establishment
level committees shall be appointed in writing by the person empowered
to make such appointments.
(2) Nonmanagement members of establishment level committees shall
represent all employees of the establishment and shall be determined
according to the following rules:
(i) Where employees are represented under collective bargaining
arrangements, members shall be appointed from among those recommended by
the exclusive bargaining representative;
(ii) Where employees are not represented under collective bargaining
arrangements, members shall be determined through procedures devised by
the agency which provide for effective representation of all employees;
and
(iii) Where some employees of an establishment are covered under
collective bargaining arrangements and others are not, members shall be
representative of both groups.
(3) Nonmanagement members of national level committees shall be
determined according to the following rules:
(i) Where employees are represented by organizations having
exclusive recognition on an agency basis or by organizations having
national consultation rights, some members shall be determined in
accordance with the terms of collective bargaining agreements and some
members shall be selected from
[[Page 93]]
those organizations having consultation rights, and
(ii) Where employees are not represented by organizations meeting
the criteria of paragraph (b)(3)(i) of this section, members shall be
determined through procedures devised by the agency which provide for
effective representation of all employees.
(c) Committee members should serve overlapping terms. Such terms
should be of at least two years duration, except when the committee is
initially organized.
(d) The committee chairperson shall be nominated from among the
committee's members and shall be elected by the committee members.
Management and nonmanagement members should alternate in this position.
Maximum service time as chairperson should be two consecutive years.
(e) Committees shall establish a regular schedule of meetings and
special meetings shall be held as necessary; establishment level
committees shall meet at least quarterly and national committees shall
meet at least annually.
(f) Adequate advance notice of committee meetings shall be furnished
to employees and each meeting shall be conducted pursuant to a prepared
agenda.
(g) Written minutes of each committee meeting shall be maintained
and distributed to each committee member, and upon request, shall be
made available to employees and to the Secretary.
Sec. 1960.38 Committee formation.
(a) Upon forming such committees, heads of agencies shall submit
information to the Secretary concerning the existence, location, and
coverage, in terms of establishments and population, of such committees,
certifying to the Secretary that such committees meet the requirements
of this subpart. The information submitted should include the name and
telephone numbers of the chairperson of each committee, and should be
updated annually as part of the annual report required by Sec. 1960.74
to reflect any changes that may have occurred.
(b) If, upon evaluation, the Secretary determines that the
operations of a committee do not meet the requirements of this subpart,
the Secretary shall notify the agency and identify the deficiencies to
be remedied. If the agency does not satisfy the Secretary within 90 days
that the committee meets the requirements of this subpart, the committee
shall not be deemed a committee under Executive Order 12196 and this
part.
[45 FR 69798, Oct. 21, 1980; 45 FR 77003, Nov. 21, 1980, as amended at
49 FR 3080, Jan. 24, 1984]
Sec. 1960.39 Agency responsibilities.
(a) Agencies shall make available to committees all agency
information relevant and necessary to their duties, except where
prohibited by law. Examples of such information include, but are not
limited to: The agency's safety and health policies and program; human
and financial resources available to implement the program; accident,
injury, and illness data; epidemiological data; employee exposure
monitoring data; Material Safety Data Sheets; inspection reports;
reprisal investigation reports; abatement plans; NIOSH hazard evaluation
reports; and internal and external evaluation reports.
(b) Agencies shall provide all committee members appropriate
training as required by subpart H of this part.
Sec. 1960.40 Establishment committee duties.
(a) The safety and health committee is an integral part of the
safety and health program, and helps ensure effective implementation of
the program at the establishment level.
(b) An establishment committee formed under this subpart shall,
except where prohibited by law:
(1) Monitor and assist the safety and health program at
establishments under its jurisdiction and make recommendations to the
official in charge on the operation of the program;
(2) Monitor findings and reports of workplace inspections to confirm
that appropriate corrective measures are implemented;
(3) When requested by the agency Safety and Health Official, or when
the
[[Page 94]]
committee deems it necessary for effective monitoring of agency
establishment inspection procedures, participate in inspections of the
establishment;
(4) Review internal and external evaluation reports and make
recommendations concerning the establishment safety and health program;
(5) Review, and recommend changes, as appropriate, to procedures for
handling safety and health suggestions and recommendations from
employees;
(6) When requested by the Designated Agency Safety and Health
Official, or when the committee deems it necessary, comment on standards
proposed pursuant to the provisions of subpart C of this part;
(7) Monitor and recommend changes, as required, in the level of
resources allocated and spent on the establishment safety and health
program;
(8) Review agency responses to reports of hazardous conditions,
safety and health program deficiencies, and allegations of reprisal;
(9) Report their dissatisfaction to the Secretary if half a
committee determines there are deficiencies in the establishment's
safety and health program or is not satisfied with the agency's reports
of reprisal investigations; and
(10) Request the Secretary to conduct an evaluation or inspection if
half the members of record are not satisfied with an agency's response
to a report of hazardous working conditions.
Sec. 1960.41 National committee duties.
National committees established under this subpart shall, except
where prohibited by law:
(a) Monitor performance of the agency safety and health program and
make policy recommendations to the head of the agency on the operation
of the program;
(b) Monitor and assist in the development and operation of the
agency's establishment committees. As the committee deems appropriate,
monitor and review: Reports of inspections; internal and external
evaluation reports; agency safety and health training programs; proposed
agency standards; agency plans for abating hazards; and responses to
reports of hazardous conditions; safety and health program deficiencies;
and allegations of reprisal;
(c) Monitor and recommend changes in the resources allocated to the
entire agency safety and health program;
(d) Report their dissatisfaction to the Secretary if half a
committee determines there are deficiencies in the agency's safety and
health program or is not satisfied with the agency's reports of reprisal
investigations; and
(e) Request the Secretary to conduct an evaluation or inspection if
half the members of record are not satisfied with an agency's response
to a report of hazardous working conditions.
Subpart G_Allegations of Reprisal
Sec. 1960.46 Agency responsibility.
(a) The head of each agency shall establish procedures to assure
that no employee is subject to restraint, interference, coercion,
discrimination or reprisal for filing a report of an unsafe or
unhealthful working condition, or other participation in agency
occupational safety and health program activities, or because of the
exercise by such employee on behalf of himself or herself or others of
any right afforded by section 19 of the Act, Executive Order 12196, or
this part. These rights include, among other, the right of an employee
to decline to perform his or her assigned task because of a reasonable
belief that, under the circumstances the task poses an imminent risk of
death or serious bodily harm coupled with a reasonable belief that there
is insufficient time to seek effective redress through normal hazard
reporting and abatement procedures established in accordance with this
part.
(b) Based on the Secretary's evaluation of agencies' procedures for
protecting employees from reprisal, the Secretary shall report to the
President by September 30, 1982 his findings and recommendations for
improvements in procedures for the investigation and resolution of
allegations of reprisal.
Sec. 1960.47 Results of investigations.
Each agency shall keep occupational safety and health committees
advised
[[Page 95]]
of agency activity regarding allegations of reprisal and any agency
determinations thereof. Agency officials shall provide copies of
reprisal investigation findings, if any, to the Secretary and to the
appropriate safety and health committee.
Subpart H_Training
Sec. 1960.54 Training of top management officials.
Each agency shall provide top management officials with orientation
and other learning experiences which will enable them to manage the
occupational safety and health programs of their agencies. Such
orientation should include coverage of section 19 of the Act, Executive
Order 12196, the requirements of this part, and the agency safety and
health program.
Sec. 1960.55 Training of supervisors.
(a) Each agency shall provide occupational safety and health
training for supervisory employees that includes: supervisory
responsibility for providing and maintaining safe and healthful working
conditions for employees, the agency occupational safety and health
program, section 19 of the Act, Executive Order 12196, this part,
occupational safety and health standards applicable to the assigned
workplaces, agency procedures for reporting hazards, agency procedures
for reporting and investigating allegations of reprisal, and agency
procedures for the abatement of hazards, as well as other appropriate
rules and regulations.
(b) This supervisory training should include introductory and
specialized courses and materials which will enable supervisors to
recognize and eliminate, or reduce, occupational safety and health
hazards in their working units. Such training shall also include the
development of requisite skills in managing the agency's safety and
health program within the work unit, including the training and
motivation of subordinates toward assuring safe and healthful work
practices.
Sec. 1960.56 Training of safety and health specialists.
(a) Each agency shall provide occupational safety and health
training for safety and health specialists through courses, laboratory
experiences, field study, and other formal learning experiences to
prepare them to perform the necessary technical monitoring, consulting,
testing, inspecting, designing, and other tasks related to program
development and implementation, as well as hazard recognition,
evaluation and control, equipment and facility design, standards,
analysis of accident, injury, and illness data, and other related tasks.
(b) Each agency shall implement career development programs for
their occupational safety and health specialists to enable the staff to
meet present and future program needs of the agency.
Sec. 1960.57 Training of safety and health inspectors.
Each agency shall provide training for safety and health inspectors
with respect to appropriate standards, and the use of appropriate
equipment and testing procedures necessary to identify and evaluate
hazards and suggest general abatement procedures during or following
their assigned inspections, as well as preparation of reports and other
documentation to support the inspection findings.
Sec. 1960.58 Training of collateral duty safety and health personnel
and committee members.
Within six months after October 1, 1980, or on appointment of an
employee to a collateral duty position or to a committee, each agency
shall provide training for collateral duty safety and health personnel
and all members of certified occupational safety and health committees
commensurate with the scope of their assigned responsibilities. Such
training shall include: The agency occupational safety and health
program; section 19 of the Act; Executive Order 12196; this part; agency
procedures for the reporting, evaluation and abatement of hazards;
agency procedures for reporting and investigating allegations of
reprisal, the recognition of hazardous conditions and environments;
identification and use of occupational safety and health standards, and
other appropriate rules and regulations.
[[Page 96]]
Sec. 1960.59 Training of employees and employee representatives.
(a) Each agency shall provide appropriate safety and health training
for employees including specialized job safety and health training
appropriate to the work performed by the employee, for example:
Clerical; printing; welding; crane operation; chemical analysis, and
computer operations. Such training also shall inform employees of the
agency occupational safety and health program, with emphasis on their
rights and responsibilities.
(b) Occupational safety and health training for employees of the
agency who are representatives of employee groups, such as labor
organizations which are recognized by the agency, shall include both
introductory and specialized courses and materials that will enable such
groups to function appropriately in ensuring safe and healthful working
conditions and practices in the workplace and enable them to effectively
assist in conducting workplace safety and health inspections. Nothing in
this paragraph shall be construed to alter training provisions provided
by law, Executive Order, or collective bargaining arrangements.
Sec. 1960.60 Training assistance.
(a) Agency heads may seek training assistance from the Secretary of
Labor, the National Institute for Occupational Safety and Health and
other appropriate sources.
(b) After the effective date of Executive Order 12196, the Secretary
shall, upon request and with reimbursement, conduct orientation for
Designated Agency Safety and Health Officials and/or their designees
which will enable them to manage the occupational safety and health
programs of their agencies. Such orientation shall include coverage of
section 19 of the Act, Executive Order 12196, and the requirements of
this part.
(c) Upon request and with reimbursement, the Department of Labor
shall provide each agency with training materials to assist in
fulfilling the training needs of this subpart, including resident and
field training courses designed to meet selected training needs of
agency safety and health specialists, safety and health inspectors, and
collateral duty safety and health personnel. These materials and courses
in no way reduce each agency's responsibility to provide whatever
specialized training is required by the unique characteristics of its
work.
(d) In cooperation with OPM, the Secretary will develop guidelines
and/or provide materials for the safety and health training programs for
high-level managers, supervisors, members of committees, and employee
representatives.
Subpart I_Recordkeeping and Reporting Requirements
Source: 69 FR 68804, Nov. 26, 2004, unless otherwise noted.
Sec. 1960.66 Purpose, scope and general provisions.
(a) The purpose of this subpart is to establish uniform requirements
for collecting and compiling by agencies of occupational safety and
health data, for proper evaluation and necessary corrective action, and
to assist the Secretary in meeting the requirement to develop and
maintain an effective program of collection, compilation, and analysis
of occupational safety and health statistics.
(b) Except as modified by this subpart, Federal agency injury and
illness recording and reporting requirements shall comply with the
requirements under 29 CFR part 1904, subparts C, D, E, and G, except
that the definition of ``establishment'' found in 29 CFR 1960.2(h) will
remain applicable to Federal agencies.
(c) Each agency shall utilize the information collected through its
management information system to identify unsafe and unhealthful working
conditions, and to establish program priorities.
(d) The provisions of this subpart are not intended to discourage
agencies from utilizing recordkeeping and reporting forms which contain
a more detailed breakdown of information than the recordkeeping and
reporting forms provided by the Department of Labor. Because of the
unique nature of the national recordkeeping program, Federal
[[Page 97]]
agencies must have recording and reporting requirements that are the
same as 29 CFR part 1904 for determining which injuries and illnesses
will be entered into the records and how they are entered. All other
injury and illness recording and reporting requirements used by any
Federal agency may be more stringent than, or supplemental to, the
requirements of 29 CFR part 1904, but must not interfere with the
agency's ability to provide the injury and illness information required
by 29 CFR part 1904.
(e) Information concerning occupational injuries and illnesses or
accidents which, pursuant to statute or Executive Order, must be kept
secret in the interest of national defense or foreign policy shall be
recorded on separate forms. Such records shall not be submitted to the
Department of Labor but may be used by the appropriate Federal agency in
evaluating the agency's program to reduce occupational injuries,
illnesses and accidents.
Note to Sec. 1960.66: The recording or reporting of a work-related
injury, illness or fatality does not constitute an admission that the
Federal agency, or other individual was at fault or otherwise
responsible for purposes of liability. Such recording or reporting does
not constitute an admission of the existence of an employer/employee
relationship between the individual recording the injury and the injured
individual. The recording or reporting of any such injury, illness or
fatality does not mean that an OSHA rule has been violated or that the
individual in question is eligible for workers' compensation or any
other benefits. The requirements of this part do not diminish or modify
in any way a Federal agency's responsibilities to report or record
injuries and illnesses as required by the Office of Workers'
Compensation Programs under the Federal Employees' Compensation Act
(FECA), 5 U.S.C. 8101 et seq.
(f) Retention and access of employee exposure and medical records
shall be in accordance with 29 CFR 1910.1020.
[69 FR 68804, Nov. 26, 2004, as amended at 78 FR 47190, Aug. 5, 2013]
Sec. 1960.67 Federal agency certification of the injury
and illness annual summary (OSHA 300-A or equivalent).
As required by 29 CFR 1904.32, a company executive must certify that
he or she has examined the OSHA 300 Log and that he or she believes,
based on his or her knowledge of the process by which the information
was recorded, that the annual summary is correct and complete. For
Federal establishments, the person who performs the certification shall
be one of the following:
(a) The senior establishment management official,
(b) The head of the Agency for which the senior establishment
management official works, or
(c) Any management official who is in the direct chain of command
between the senior establishment management official and the head of the
Agency.
Note to Sec. 1960.67: The requirement for certification of Federal
agency injury and illness records in this section is necessary because
the private sector position titles contained in 29 CFR part 1904 do not
fit the Federal agency position titles for agency executives. The
Federal officials listed in this section are intended to be the
equivalent of the private sector officials who are required to certify
records under Sec. 1904.32(b)(4).
Sec. 1960.68 Prohibition against discrimination.
Section 1904.36 of this chapter refers to Section 11(c) of the
Occupational Safety and Health Act. For Federal agencies, the words
``Section 11(c)'' shall be read as ``Executive Order 12196 Section 1-
201(f).''
Note to Sec. 1960.68: Section 11(c) of the Occupational Safety and
Health Act only applies to private sector employers and the U.S. Postal
Service. The corresponding prohibitions against discrimination
applicable to Federal employers are contained in Section 1-201(f) of
Executive Order 12196, 45 FR 12769, 3 CFR, 1980 Comp. p. 145.
Sec. 1960.69 Retention and updating of old forms.
Federal agencies must retain copies of the recordkeeping records
utilized under the system in effect prior to January 1, 2005 for five
years following the year to which they relate and continue to provide
access to the data as though these forms were the OSHA Form 300 Log and
Form 301 Incident Report. Agencies are not required to update the old
forms.
[[Page 98]]
Sec. 1960.70 Reporting of serious accidents.
Agencies must provide the Office of Federal Agency Programs with a
summary report of each fatal and catastrophic accident investigation.
The summaries shall address the date/time of accident, agency/
establishment named and location, and consequences, description of
operation and the accident, causal factors, applicable standards and
their effectiveness, and agency corrective/preventive actions.
Note to Sec. 1960.70: The requirements of this section are in
addition to the requirements for reporting fatalities and multiple
hospitalization incidents to OSHA under 29 CFR 1904.39.
Sec. 1960.71 Agency annual reports.
(a) The Act and E.O. 12196 require all Federal agency heads to
submit to the Secretary an annual report on their agency's occupational
safety and health program, containing such information as the Secretary
prescribes.
(1) Each agency must submit to the Secretary by May 1 of each year a
report describing the agency's occupational safety and health program of
the previous calendar year and objectives for the current fiscal year.
The report shall include a summary of the agency's self-evaluation
finding as required by Sec. 1960.78(b).
(2) The Secretary must provide the agencies with the guidelines and
format for the reports at the time they are requested.
(3) The agency reports will be used in preparing the Secretary's
report to the President.
(b) The Secretary will submit to the President by January 1 of each
year a summary report of the status of the occupational safety and
health of Federal employees based on agency reports, evaluations of
individual agency progress and problems in correcting unsafe or
unhealthful working conditions, and recommendations for improving their
performance.
[69 FR 68804, Nov. 26, 2004, as amended at 78 FR 47190, Aug. 5, 2013]
Sec. 1960.72 Reporting Federal Agency Injury and Illness Information.
(a) Each agency must submit to the Secretary by May 1 of each year
all information included on the agency's previous calendar year's
occupational injury and illness recordkeeping forms. The information
submitted must include all data entered on the OSHA Form 300, Log of
Work-Related Injuries and Illnesses (or equivalent); OSHA Form 301,
Injury and Illness Incident Report (or equivalent); and OSHA Form 300A,
Summary of Work-Related Injuries and Illnesses (or equivalent).
(b) The Secretary must provide each agency by January 15 of each
year with the format and guidelines for electronically submitting the
agency's occupational injury and illness recordkeeping information.
(c) Each agency must submit to the Secretary by May 1, 2014, a list
of all establishments. The list must include information about the
department/agency affiliation, NAICS code, a street address, city, state
and zip code. Federal agencies are also responsible for updating their
list of establishments by May 1 of each year when they submit the annual
report to the Secretary required by Sec. 1960.71(a)(1).
[78 FR 47190, Aug. 5, 2013]
Sec. 1960.73 Federal agency injury and illness recordkeeping forms.
(a) When filling out the OSHA Form 300 or equivalent, each agency
must enter the employee's OPM job series number and job title in Column
(c).
(b) When recording the injuries and illnesses of uncompensated
volunteers, each agency must enter a ``V'' before the OPM job series
number in Column (c) of the OSH Form 300 log or equivalent.
(c) Each agency must calculate the total number of hours worked by
uncompensated volunteers.
[78 FR 47191, Aug. 5, 2013]
[[Page 99]]
Sec. Sec. 1960.74 [Reserved]
Subpart J_Evaluation of Federal Occupational Safety and Health Programs
Sec. 1960.78 Purpose and scope.
(a) The purpose of this subpart is to establish a comprehensive
program for the evaluation of Federal employee occupational safety and
health programs. This subpart includes the responsibilities of agency
heads in conducting self-evaluations of the effectiveness of their
occupational safety and health programs, and the responsibilities of the
Secretary in evaluating the extent to which each agency head has
developed and implemented agency programs in accordance with the
requirements of Executive Order 12196 and this part.
(b) Agency heads shall develop and implement a program for
evaluating the effectiveness of their agency's occupational safety and
health program. An annual summary report shall be submitted to the
Secretary covering self-evaluations conducted during the previous year.
(c) The Secretary shall conduct a comprehensive evaluation of each
Federal agency's occupational safety and health program. Evaluations
shall be conducted on a regular schedule to determine the performance
levels of each agency's program. The Secretary shall submit to the
President each year: A summary report of the status of the occupational
safety and health of Federal employees; Department of Labor evaluations,
together with agency responses, of individual agency progress and
problems in correcting unsafe and unhealthful working conditions, and
recommendations for improving agency's performance.
Sec. 1960.79 Self-evaluations of occupational safety and health programs.
Agency heads shall develop and implement a program of self-
evaluations to determine the effectiveness of their occupational safety
and health programs. The self-evaluations are to include qualitative
assessments of the extent to which their agency safety and health
programs are:
(a) Developed in accordance with the requirements set forth in
Executive Order 12196 and this part and,
(b) Implemented effectively in all agency field activities.
Agencies needing assistance in developing a self-evaluation program
should contact the Secretary.
Sec. 1960.80 Secretary's evaluations of agency occupational safety
and health programs.
(a) In accordance with section 1-401(h), the Secretary shall develop
a comprehensive program for evaluating an agency's occupational safety
and health program. To accomplish this, the Secretary shall conduct:
(1) A complete and extensive evaluation of all elements of an
agency's occupational safety and health program on a regular basis;
(2) Special studies of limited areas of an agency's occupational
safety and health program as deemed necessary by the Secretary; and
(3) Field reviews and scheduled inspections of agency workplaces as
deemed necessary by the Secretary.
(b) The Secretary shall develop and distribute to Federal agencies
detailed information on the Department of Labor's evaluation program.
The information shall include, but is not limited to:
(1) The major program elements included in a complete and extensive
evaluation of an agency's occupational safety and health program;
(2) The methods and factors used to determine the effectiveness of
each element of an agency's program;
(3) The factors used to define ``large'' or ``more hazardous''
Federal agencies, establishments, or operations;
(4) The procedures for conducting evaluations including field visits
and scheduled inspections; and
(5) The reporting format for agency heads in submitting annual
summaries of their self-evaluation programs.
(c) Prior to the initiation of an agency evaluation, the Department
of Labor will review the annual agency self-evaluation summary report.
The Secretary will then develop a program evaluation plan before the
initiation of an agency evaluation. A copy of the plan shall be
furnished to the agency to
[[Page 100]]
be evaluated at the time of the notification of the evaluation.
(d) To facilitate the evaluation process and to insure full
understanding of the procedures to be followed and the support required
from the agency, the Secretary, or the Secretary's representative, shall
conduct an opening conference with the agency head or designee. At the
opening conference, the Secretary's authority and evaluation plan will
be explained.
(e) The agency evaluation should be completed within 90 calendar
days of the date of the opening conference.
(f) A report of the evaluation shall be submitted to the agency head
by the Secretary within 90 calendar days from the date of the closing
conference.
(g) Agency heads shall respond to the evaluation report within 60
calendar days of receipt of the report.
[45 FR 69798, Oct. 21, 1980; 45 FR 77003, Nov. 21, 1980]
Subpart K_Field Federal Safety and Health Councils
Sec. 1960.84 Purpose.
(a) Executive Order 12196 provides that the Secretary shall
``facilitate the exchange of ideas and information throughout the
Government about occupational safety and health.''
(b) Consistent with this objective, the Secretary will continue to
sponsor and/or provide guidance for those Field Federal Safety and
Health Councils now established and in operation, and establish new
field councils as necessary. The field councils will consist primarily
of qualified representatives of local area Federal field activities
whose duties pertain to occupational safety and health, and also of
representatives of recognized local labor organizations, or other
civilian employee organizations, at local area Federal field activities.
For the purpose of this subpart the definition of field activity will be
provided by each agency.
Sec. 1960.85 Role of the Secretary.
(a) The Secretary shall maintain liaison with agency heads to ensure
that they encourage their field activities to participate actively in
field council programs. To ensure maximum participation, the field
councils' annual reports to the Secretary shall provide descriptions of
the degree of management and employee participation by the defined
Federal field activities. The Secretary shall annually furnish each
agency head with a report consolidating the information received as to
the participation of the agency's several field installations in field
council activities.
(b) The Secretary shall provide leadership and guidance and make
available necessary equipment, supplies, and staff services to the Field
Federal Safety and Health Councils to assist them in carrying out their
responsibilities. The Secretary shall also provide consultative and
technical services to field councils. These services shall involve aid
in any phase of developing and planning programs; and in sponsoring,
conducting or supporting safety and health training courses.
Sec. 1960.86 Establishing councils.
(a) Those field councils established and in operation prior to the
effective date of this subpart will continue to function without
interruption provided they are operating in accordance with the
provision of their charter and this subpart.
(b) The Secretary may establish a council in any area where ten or
more Federal establishments totaling 300 or more employees are located
within an area having a radius of 50 miles, and there is substantial
agreement among the agencies that such a council would be useful. In any
such area where there is no council already established, a field
representative of the Secretary may, upon his own initiative or at the
request of any establishment within the area, contact representatives of
all establishments within the area and encourage the organization of a
field council.
(c) After a new council has been organized, officers elected, and
articles of organization drafted and accepted by the council membership,
a formal request for recognition as a field council shall be sent to the
Secretary. Upon approval of the Articles of Organization, a charter will
be issued.
[[Page 101]]
(d) At the first general meeting of the council, committees should
be appointed and the cooperation of all participants should be solicited
to aid the functioning of committees and the successful accomplishment
of the council's objectives.
Sec. 1960.87 Objectives.
The basic objective of field councils is to facilitate the exchange
of ideas and information to assist agencies to reduce the incidence,
severity and cost of occupational accidents, injuries, and illnesses.
Field councils shall act on behalf of the Secretary or his designees on
occupational safety and health activities in carrying out within their
respective geographic areas the following functions:
(a) To act as a clearinghouse on information and data on
occupational accidents, injuries, and illnesses and their prevention.
(b) To plan, organize and conduct field council meetings or programs
which will give technical advice and information on occupational safety
and health to representatives of participating agencies and employee
organizations.
(c) To promote improvement of safety and health programs and
organizations in each Federal agency represented or participating in
council activities.
(d) To promote coordination, cooperation, and sharing of resources
and expertise to aid agencies with inadequate or limited resources.
These objectives can be accomplished in a variety of ways. For example,
field councils could organize and conduct training programs for employee
representatives, collateral duty and professional safety and health
personnel, coordinate or promote programs for inspections, or, on
request, conduct inspections and evaluations of the agencies' safety and
health programs.
(e) To provide Federal Executive Boards, Federal Executive
Associations, labor union organizations and other employee
representatives with information on the administrative and technical
aspects of safety and health programs.
(f) To evaluate the safety and health problems peculiar to local
conditions and facilitate solutions to these problems through council
activities.
(g) To develop a cooperative relationship with local community
leaders by informing them of the existing functions and objectives of
the council and by calling on them for support and participation in
council meetings and activities.
Sec. 1960.88 Membership and participation.
(a) Each field council shall consist of the designated
representatives of local Federal activities appointed by their
respective activity heads, after consultation with appropriate employee
representatives and appropriate certified safety and health committees.
(b) Federal agency heads should encourage each field activity having
responsibility for the safety and health of agency employees to
participate in the programs of these councils.
(c) Each activity head shall appoint an equal number of officially
designated representatives (with designated alternates), from management
and from nonmanagement employees, consistent with applicable collective
bargaining arrangements.
(d) Representatives shall be selected from individuals in the
following categories:
(1) Federal occupational safety and health professionals.
(2) Related Federal professionals, or collateral duty personnel.
This includes persons employed in professions or occupations related to
or concerned with safety and health of employees.
(3) Line management officials.
(4) Representatives of recognized Federal labor or other employee
organizations.
(i) Where certified occupational safety and health committees exist,
nonmanagement members of the committees shall be given the opportunity
to select one individual for official appointment to field councils by
the activity head.
(ii) Where employees are represented by collective bargaining
arrangements, but no committee exists, nonmanagement members of field
councils shall be selected from among those recommended by the exclusive
bargaining
[[Page 102]]
representatives for official appointment to field councils by the
activity head.
(iii) Where some employees in an activity are represented by
collective bargaining arrangements and others are not, the agency head
should solicit nominations for the agency's designated nonmanagement
representative and alternate both from lawful labor organization(s) with
collective bargaining status and from employees not represented through
collective bargaining and should select from the nominees for official
appointment as designated employee representatives on the field council.
(e) Representatives from non-Federal organizations. Associate
membership may be granted to any non-Federally employed person who
demonstrated interest in occupational safety and health. An associate
member has no voting rights and may not hold any office.
(f) No maximum limitation shall be imposed by a council on itself,
in regard to the numbers of personnel in any of the above categories
that may attend meetings and/or participate in field council activities.
An agency is free to have any number of individuals, in addition to the
officially designated representatives participate in council activities.
(g) Only officially designated agency representatives or their
alternates shall have voting privileges. All representatives and
participants shall serve without additional compensation.
(h) Travel funds shall be made available equally to management and
nonmanagement employee representatives.
Sec. 1960.89 Organization.
(a) Field council officers shall include, as a minimum, a
chairperson, vice chairperson, and secretary. Officers shall be elected
for a one or two-year term on a calendar year basis by a majority vote
of the designated representatives. Election of officers shall be held at
least 60 days before the beginning of a calendar year. The election may
be conducted at a regularly scheduled meeting or by letter ballot.
(b) Each council shall notify the appropriate OSHA Regional Office
and the Office of Federal Agency Safety and Health Programs of the name,
agency address, and telephone number of each newly elected official.
(c) Each council shall have an Executive Committee consisting of all
elected officers, chairpersons of appointed committees and the immediate
past chairperson of the field council.
(d) In addition to the Executive Committee, each council shall have
either a membership committee, a program committee and a finance
committee, or a council official designated responsibility in these
areas. Additional committees may be appointed by the chairperson for
specific purposes as warranted.
Sec. 1960.90 Operating procedures.
(a) The Executive Committee of each council shall meet at least 45
days before the beginning of each calendar year to approve an annual
program for the council designed to accomplish the objectives and
functions stated in Sec. 1960.87. In addition, the Executive Committee
shall meet periodically to ensure that the meetings and other activities
of the council are being conducted as outlined in the council schedule.
(b) The council program shall include at least four meetings or
activities per year dealing with occupational safety and health issues.
(c) Each field council shall submit to the Secretary or his designee
by March 15 of each year a report describing the activities and programs
of the previous calendar year and plans for the current year. In
addition, the report shall address the participation and attendance of
designated representatives of the council. The Office of Federal Agency
Safety and Health Programs, OSHA, shall furnish guidelines to field
councils concerning the preparation of this report.
(d) Upon determination that a council is not operating in accordance
with its charter and the provisions of this subpart, and after
consultation with appropriate OSHA regional officials, the Secretary
shall revoke the council's charter. Upon revocation of a charter, the
council shall surrender all its government property to the appropriate
OSHA regional official. Any continuing or future organization in the
[[Page 103]]
same geographical area shall not use the title Field Federal Safety and
Health Council, or any derivation thereof, unless formally rechartered
by the Secretary. Notification of revocation of a council's charter
shall be sent to the chairperson, where identifiable, and to the
appropriate OSHA Regional Office.
PART 1975_COVERAGE OF EMPLOYERS UNDER THE WILLIAMS-STEIGER OCCUPATIONAL SAFETY
AND HEALTH ACT OF 1970--Table of Contents
Sec.
1975.1 Purpose and scope.
1975.2 Basis of authority.
1975.3 Extent of coverage.
1975.4 Coverage.
1975.5 States and political subdivisions thereof.
1975.6 Policy as to domestic household employment activities in private
residences.
Authority: Secs. 2, 3, 4, 8, Occupational Safety and Health Act of
1970 (29 U.S.C. 651, 652, 653, 657); Secretary of Labor's Order No. 12-
71 (36 FR 8754).
Source: 37 FR 929, Jan. 21, 1972, unless otherwise noted.
Sec. 1975.1 Purpose and scope.
(a) Among other things, the Williams-Steiger Act poses certain
duties on employers. This part has the limited purpose and scope of
clarifying which persons are considered to be employers either as a
matter of interpretation of the intent and terms of the Act or as a
matter of policy appropriate to administering and enforcing the Act. In
short, the purpose and scope of this part is to indicate which persons
are covered by the Act as employers and, as such, subject to the
requirements of the Act.
(b) It is not the purpose of this part to indicate the legal effect
of the Act, once coverage is determined. Section 4(b)(1) of the Act
provides that the statute shall be inapplicable to working conditions to
the extent they are subject to another Federal agency's exercise of
different statutory authority affecting the occupational safety and
health aspects of those conditions. Therefore, a person may be
considered an employer covered by the Act, and yet standards issued
under the Act respecting certain working conditions would not be
applicable to the extent those conditions were subject to another
agency's authority.
Sec. 1975.2 Basis of authority.
The power of Congress to regulate employment conditions under the
Williams-Steiger Occupational Safety and Health Act of 1970, is derived
mainly from the Commerce Clause of the Constitution. (section 2(b), Pub.
L. 91-596; U.S. Constitution, Art. I, Sec. 8, Cl. 3; ``United States v.
Darby,'' 312 U.S. 100.) The reach of the Commerce Clause extends beyond
Federal regulation of the channels and instrumentalities of interstate
commerce so as to empower Congress to regulate conditions or activities
which affect commerce even though the activity or condition may itself
not be commerce and may be purely intrastate in character. (``Gibbons v.
Ogden,'' 9 Wheat. 1, 195; ``United States v. Darby,'' supra; ``Wickard
v. Filburn,'' 317 U.S. 111, 117; and ``Perez v. United States,'' 91 S.
Ct. 1357 (1971).) And it is not necessary to prove that any particular
intrastate activity affects commerce, if the activity is included in a
class of activities which Congress intended to regulate because the
class affects commerce. (``Heart of Atlanta Motel, Inc. v. United
States,'' 379 U.S. 241; ``Katzenbach v. McClung,'' 379 U.S. 294; and
``Perez v. United States,'' supra.) Generally speaking, the class of
activities which Congress may regulate under the commerce power may be
as broad and as inclusive as Congress intends, since the commerce power
is plenary and has no restrictions placed on it except specific
constitutional prohibitions and those restrictions Congress, itself,
places on it. (``United States v. Wrightwood Dairy Co.,'' 315 U.S. 110;
and ``United States v. Darby,'' supra.) Since there are no specific
constitutional prohibitions involved, the issue is reduced to the
question: How inclusive did Congress intend the class of activities to
be under the Williams-Steiger Act?
Sec. 1975.3 Extent of coverage.
(a) Section 2(b) of the Williams-Steiger Occupational Safety and
Health Act (Public Law 91-596) sets
[[Page 104]]
forth the purpose and policy of Congress in enacting this legislation.
In pertinent part, that section reads as follows:
(b) Congress declares it to be its purpose and policy, through the
exercise of its powers to regulate commerce among the several States and
with foreign nations and to provide for the general welfare, to assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources * * *
Congressman William Steiger described the scope of the Act's coverage in
the following words during a discussion of the legislation on the floor
of the House of Representatives:
The coverage of this bill is as broad, generally speaking, as the
authority vested in the Federal Government by the commerce clause of the
Constitution (Cong. Rec., vol. 116, p. H-11899, Dec. 17, 1970)
The legislative history, as a whole, clearly shows that every amendment
or other proposal which would have resulted in any employee's being left
outside the protections afforded by the Act was rejected. The reason for
excluding no employee, either by exemption or limitation on coverage,
lies in the most fundamental of social purposes of this legislation
which is to protect the lives and health of human beings in the context
of their employment.
(b) The Williams-Steiger Act includes special provisions (sections
19 and 18(c)(6)) for the protection of Federal and State employees to
whom the Act's other provisions are made inapplicable under section
3(5), which excludes from the definition of the term ``employer'' both
the United States and any State or political subdivision of a State.
(c) In the case of section 4(b)(1) of the Act, which makes the Act
inapplicable to working conditions to the extent they are protected
under laws administered by other Federal agencies, Congress did not
intend to grant any general exemptions under the Act; its sole purpose
was to avoid duplication of effort by Federal agencies in establishing a
national policy of occupational safety and health protection.
(d) Interpretation of the provisions and terms of the Williams-
Steiger Act must of necessity be consistent with the express intent of
Congress to exercise its commerce power to the extent that, ``so far as
possible, every working man and woman in the Nation'' would be protected
as provided for in the Act. The words ``so far as possible'' refer to
the practical extent to which governmental regulation and expended
resources are capable of achieving safe and healthful working
conditions; the words are not ones of limitation on coverage. The
controlling definition for the purpose of coverage under the Act is that
of ``employer'' contained in section 3(5). This term is defined as
follows:
(5) The term ``employer'' means any person engaged in a business
affecting commerce who has employees, but does not include the United
States or any State or political subdivision of a State.
In carrying out the broad coverage mandate of Congress, we interpret the
term ``business'' in the above definition as including any commercial or
noncommercial activity affecting commerce and involving the employment
of one or more employees; the term ``commerce'' is defined in the Act
itself, in section 3(3). Since the legislative history and the words of
the statute, itself, indicate that Congress intended the full exercise
of its commerce power in order to reduce employment-related hazards
which, as a whole impose a substantial burden on commerce, it follows
that all employments where such hazards exist or could exist (that is,
those involving the employment of one or more employees) were intended
to be regulated as a class of activities which affects commerce.
Sec. 1975.4 Coverage.
(a) General. Any employer employing one or more employees would be
an ``employer engaged in a business affecting commerce who has
employees'' and, therefore, he is covered by the Act as such.
(b) Clarification as to certain employers--(1) The professions, such
as physicians, attorneys, etc. Where a member of a profession, such as
an attorney or physician, employs one or more employees such member
comes within the definition of an employer as defined in
[[Page 105]]
the Act and interpreted thereunder and, therefore, such member is
covered as an employer under the Act and required to comply with its
provisions and with the regulations issued thereunder to the extent
applicable.
(2) Agricultural employers. Any person engaged in an agricultural
activity employing one or more employees comes within the definition of
an employer under the Act, and therefore, is covered by its provisions.
However, members of the immediate family of the farm employer are not
regarded as employees for the purposes of this definition.
(3) Indians. The Williams-Steiger Act contains no special provisions
with respect to different treatment in the case of Indians. It is well
settled that under statutes of general application, such as the
Williams-Steiger Act, Indians are treated as any other person, unless
Congress expressly provided for special treatment. ``FPC v. Tuscarora
Indian Nation,'' 362 U.S. 99, 115-118 (1960); ``Navajo Tribe v.
N.L.R.B.,'' 288 F.2d 162, 164-165 (D.C. Cir. 1961), cert. den. 366 U.S.
928 (1961). Therefore, provided they otherwise come within the
definition of the term ``employer'' as interpreted in this part, Indians
and Indian tribes, whether on or off reservations, and non-Indians on
reservations, will be treated as employers subject to the requirements
of the Act.
(4) Nonprofit and charitable organizations. The basic purpose of the
Williams-Steiger Act is to improve working environments in the sense
that they impair, or could impair, the lives and health of employees.
Therefore, certain economic tests such as whether the employer's
business is operated for the purpose of making a profit or has other
economic ends, may not properly be used as tests for coverage of an
employer's activity under the Williams-Steiger Act. To permit such
economic tests to serve as criteria for excluding certain employers,
such as nonprofit and charitable organizations which employ one or more
employees, would result in thousands of employees being left outside the
protections of the Williams-Steiger Act in disregard of the clear
mandate of Congress to assure ``every working man and woman in the
Nation safe and healthful working conditions * * *''. Therefore, any
charitable or non-profit organization which employs one or more
employees is covered under the Williams-Steiger Act and is required to
comply with its provisions and the regulations issued thereunder. (Some
examples of covered charitable or non-profit organizations would be
disaster relief organizations, philanthropic organizations, trade
associations, private educational institutions, labor organizations, and
private hospitals.)
(c) Coverage of churches and special policy as to certain church
activities--(1) Churches. Churches or religious organizations, like
charitable and nonprofit organizations, are considered employers under
the Act where they employ one or more persons in secular activities. As
a matter of enforcement policy, the performance of, or participation in,
religious services (as distinguished from secular or proprietary
activities whether for charitable or religion-related purposes) will be
regarded as not constituting employment under the Act. Any person, while
performing religious services or participating in them in any degree is
not regarded as an employer or employee under the Act, notwithstanding
the fact that such person may be regarded as an employer or employee for
other purposes--for example, giving or receiving remuneration in
connection with the performance of religious services.
(2) Examples. Some examples of coverage of religious organizations
as employers would be: A private hospital owned or operated by a
religious organization; a private school or orphanage owned or operated
by a religious organization; commercial establishments of religious
organizations engaged in producing or selling products such as alcoholic
beverages, bakery goods, religious goods, etc.; and administrative,
executive, and other office personnel employed by religious
organizations. Some examples of noncoverage in the case of religious
organizations would be: Clergymen while performing or participating in
religious services; and other participants in religious services;
namely, choir masters, organists, other musicians, choir members,
ushers, and the like.
[[Page 106]]
Sec. 1975.5 States and political subdivisions thereof.
(a) General. The definition of the term ``employer'' in section 3(5)
of the Act excludes the United States and States and political
subdivisions of a State:
(5) The term ``employer'' means a person engaged in a business
affecting commerce who has employees, but does not include the United
States or any State or political subdivision of a State.
The term ``State'' is defined as follows in section 3(7) of the Act:
(7) The term ``State'' includes a State of the United States, the
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa,
Guam, and the Trust Territory of the Pacific Islands.
Since States, as defined in section 3(7) of the Act, and political
subdivisions thereof are not regarded as employers under section 3(5) of
the Act, they would not be covered as employers under the Act, except to
the extent that section 18(c)(6), and the pertinent regulations
thereunder, require as a condition of approval by the Secretary of Labor
of a State plan that such plan:
(6) Contain[s] satisfactory assurances that such State will, to the
extent permitted by its law, establish and maintain an effective and
comprehensive occupational safety and health program applicable to all
employees of public agencies of the State and its political
subdivisions, which program is as effective as the standards contained
in an approved plan.
(b) Tests. Any entity which has been (1) created directly by the
State, so as to constitute a department or administrative arm of the
government, or (2) administered by individuals who are controlled by
public officials and responsible to such officials or to the general
electorate, shall be deemed to be a ``State or political subdivision
thereof'' under section 3(5) of the Act and, therefore, not within the
definition of employer, and, consequently, not subject to the Act as an
employer.
(c) Factors for meeting the tests. Various factors will be taken
into consideration in determining whether an entity meets the test
discussed above. Some examples of these factors are:
Are the individuals who administer the entity appointed by a public
official or elected by the general electorate?
What are the terms and conditions of the appointment?
Who may dismiss such individuals and under what procedures?
What is the financial source of the salary of these individuals?
Does the entity earn a profit? Are such profits treated as revenue?
How are the entity's functions financed? What are the powers of the
entity and are they usually characteristic of a government rather than a
private instrumentality like the power of eminent domain?
How is the entity regarded under State and local law as well as
under other Federal laws?
Is the entity exempted from State and local tax laws?
Are the entity's bonds, if any, tax-exempt? As to the entity's
employees, are they regarded like employees of other State and political
subdivisions?
What is the financial source of the employee-payroll?
How do employee fringe benefits, rights, obligations, and
restrictions of the entity's employees compare to those of the employees
of other State and local departments and agencies?
In evaluating these factors, due regard will be given to whether any
occupational safety and health program exists to protect the entity's
employees.
(d) Weight of the factors. The above list of factors is not
exhaustive and no factor, isolated from the particular facts of a case,
is assigned any particular weight for the purpose of a determination by
the Secretary of Labor as to whether a given entity is a ``State or
political subdivision of a State'' and, as such, not subject to the Act
as an ``employer''. Each case must be viewed on its merits; and whether
a single factor will be decisive, or whether the factors must be viewed
in their relationship to each other as part of a sum total, also depends
on the merits of each case.
(e) Examples. (1) The following types of entities would normally be
regarded as not being employers under section 3(5) of the Act: the State
Department of Labor and Industry; the State Highway and Motor Vehicle
Department; State, county, and municipal law enforcement agencies as
well as penal institutions; State, county, and municipal judicial
bodies; State University
[[Page 107]]
Boards of Trustees; State, county, and municipal public school boards
and commissions; and public libraries.
(2) Depending on the facts in the particular situation, the
following types of entities would probably be excluded as employers
under section 3(5) of the Act: harbor districts, irrigation districts,
port authorities, bi-State authorities over bridges, highways, rivers,
harbors, etc.; municipal transit entities; and State, county, and local
hospitals and related institutions.
(3) The following examples are of entities which would normally not
be regarded as a ``State or political subdivision of a State'', but
unusual factors to the contrary in a particular case may indicate
otherwise: Public utility companies, merely regulated by State or local
bodies; businesses, such as alcoholic beverage distributors, licensed
under State or local law; other business entities which under agreement
perform certain functions for the State, such as gasoline stations
conducting automobile inspections for State and county governments.
Sec. 1975.6 Policy as to domestic household employment activities
in private residences.
As a matter of policy, individuals who, in their own residences,
privately employ persons for the purpose of performing for the benefit
of such individuals what are commonly regarded as ordinary domestic
household tasks, such as house cleaning, cooking, and caring for
children, shall not be subject to the requirements of the Act with
respect to such employment.
PART 1977_DISCRIMINATION AGAINST EMPLOYEES EXERCISING RIGHTS
UNDER THE WILLIAMS-STEIGER OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970--
Table of Contents
General
Sec.
1977.1 Introductory statement.
1977.2 Purpose of this part.
1977.3 General requirements of section 11(c) of the Act.
1977.4 Persons prohibited from discriminating.
1977.5 Persons protected by section 11(c).
1977.6 Unprotected activities distinguished.
Specific Protections
1977.9 Complaints under or related to the Act.
1977.10 Proceedings under or related to the Act.
1977.11 Testimony.
1977.12 Exercise of any right afforded by the Act.
Procedures
1977.15 Filing of complaint for discrimination.
1977.16 Notification of Secretary of Labor's determination.
1977.17 Withdrawal of complaint.
1977.18 Arbitration or other agency proceedings.
Some Specific Subjects
1977.22 Employee refusal to comply with safety rules.
1977.23 State plans.
Authority: Secs. 8, 11, Occupational Safety and Health Act of 1970
(29 U.S.C. 657, 660); Secretary of Labor's Order No. 12-71 (36 FR 8754).
Source: 38 FR 2681, Jan. 29, 1973, unless otherwise noted.
General
Sec. 1977.1 Introductory statement.
(a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 651,
et seq.), hereinafter referred to as the Act, is a Federal statute of
general application designed to regulate employment conditions relating
to occupational safety and health and to achieve safer and healthier
workplaces throughout the Nation. By terms of the Act, every person
engaged in a business affecting commerce who has employees is required
to furnish each of his employees employment and a place of employment
free from recognized hazards that are causing or likely to cause death
or serious physical harm, and, further, to comply with occupational
safety and health standards promulgated under the Act. See part 1975 of
this chapter concerning coverage of the Act.
[[Page 108]]
(b) The Act provides, among other things, for the adoption of
occupational safety and health standards, research and development
activities, inspections and investigations of workplaces, and
recordkeeping requirements. Enforcement procedures initiated by the
Department of Labor, review proceedings before an independent quasi-
judicial agency (the Occupational Safety and Health Review Commission),
and express judicial review are provided by the Act. In addition, States
which desire to assume responsibility for development and enforcement of
standards which are at least as effective as the Federal standards
published in this chapter may submit plans for such development and
enforcement of the Secretary of Labor.
(c) Employees and representatives of employees are afforded a wide
range of substantive and procedural rights under the Act. Moreover,
effective implementation of the Act and achievement of its goals depend
in large part upon the active but orderly participation of employees,
individually and through their representatives, at every level of safety
and health activity.
(d) This part deals essentially with the rights of employees
afforded under section 11(c) of the Act. Section 11(c) of the Act
prohibits reprisals, in any form, against employees who exercise rights
under the Act.
Sec. 1977.2 Purpose of this part.
The purpose of this part is to make available in one place
interpretations of the various provisions of section 11(c) of the Act
which will guide the Secretary of Labor in the performance of his duties
thereunder unless and until otherwise directed by authoritative
decisions of the courts, or concluding, upon reexamination of an
interpretation, that it is incorrect.
Sec. 1977.3 General requirements of section 11(c) of the Act.
Section 11(c) provides in general that no person shall discharge or
in any manner discriminate against any employee because the employee
has:
(a) Filed any complaint under or related to the Act;
(b) Instituted or caused to be instituted any proceeding under or
related to the Act;
(c) Testified or is about to testify in any proceeding under the Act
or related to the Act; or
(d) Exercised on his own behalf or on behalf of others any right
afforded by the Act.
Any employee who believes that he has been discriminated against in
violation of section 11(c) of the Act may, within 30 days after such
violation occurs, lodge a complaint with the Secretary of Labor alleging
such violation. The Secretary shall then cause appropriate investigation
to be made. If, as a result of such investigation, the Secretary
determines that the provisions of section 11(c) have been violated civil
action may be instituted in any appropriate United States district
court, to restrain violations of section 11(c)(1) and to obtain other
appropriate relief, including rehiring or reinstatement of the employee
to his former position with back pay. Section 11(c) further provides for
notification of complainants by the Secretary of determinations made
pursuant to their complaints.
Sec. 1977.4 Persons prohibited from discriminating.
Section 11(c) specifically states that ``no person shall discharge
or in any manner discriminate against any employee'' because the
employee has exercised rights under the Act. Section 3(4) of the Act
defines ``person'' as ``one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives, or
any group of persons.'' Consequently, the prohibitions of section 11(c)
are not limited to actions taken by employers against their own
employees. A person may be chargeable with discriminatory action against
an employee of another person. Section 11(c) would extend to such
entities as organizations representing employees for collective
bargaining purposes, employment agencies, or any other person in a
position to discriminate against an employee. See, Meek v. United
States, 136 F. 2d 679 (6th Cir., 1943); Bowe v. Judson C. Burns, 137 F.
2d 37 (3rd Cir., 1943).
[[Page 109]]
Sec. 1977.5 Persons protected by section 11(c).
(a) All employees are afforded the full protection of section 11(c).
For purposes of the Act, an employee is defined as ``an employee of an
employer who is employed in a business of his employer which affects
commerce.'' The Act does not define the term ``employ.'' However, the
broad remedial nature of this legislation demonstrates a clear
congressional intent that the existence of an employment relationship,
for purposes of section 11(c), is to be based upon economic realities
rather than upon common law doctrines and concepts. See, U.S. v. Silk,
331 U.S. 704 (1947); Rutherford Food Corporation v. McComb, 331 U.S. 722
(1947).
(b) For purposes of section 11(c), even an applicant for employment
could be considered an employee. See, NLRB v. Lamar Creamery, 246 F. 2d
8 (5th Cir., 1957). Further, because section 11(c) speaks in terms of
any employee, it is also clear that the employee need not be an employee
of the discriminator. The principal consideration would be whether the
person alleging discrimination was an ``employee'' at the time of
engaging in protected activity.
(c) In view of the definitions of ``employer'' and ``employee''
contained in the Act, employees of a State or political subdivision
thereof would not ordinarily be within the contemplated coverage of
section 11(c).
Sec. 1977.6 Unprotected activities distinguished.
(a) Actions taken by an employer, or others, which adversely affect
an employee may be predicated upon nondiscriminatory grounds. The
proscriptions of section 11(c) apply when the adverse action occurs
because the employee has engaged in protected activities. An employee's
engagement in activities protected by the Act does not automatically
render him immune from discharge or discipline for legitimate reasons,
or from adverse action dictated by non-prohibited considerations. See,
NLRB v. Dixie Motor Coach Corp., 128 F. 2d 201 (5th Cir., 1942).
(b) At the same time, to establish a violation of section 11(c), the
employee's engagement in protected activity need not be the sole
consideration behind discharge or other adverse action. If protected
activity was a substantial reason for the action, or if the discharge or
other adverse action would not have taken place ``but for'' engagement
in protected activity, section 11(c) has been violated. See, Mitchell v.
Goodyear Tire & Rubber Co., 278 F. 2d 562 (8th Cir., 1960); Goldberg v.
Bama Manufacturing, 302 F. 2d 152 (5th Cir., 1962). Ultimately, the
issue as to whether a discharge was because of protected activity will
have to be determined on the basis of the facts in the particular case.
Specific Protections
Sec. 1977.9 Complaints under or related to the Act.
(a) Discharge of, or discrimination against, an employee because the
employee has filed ``any complaint * * * under or related to this Act *
* *'' is prohibited by section 11(c). An example of a complaint made
``under'' the Act would be an employee request for inspection pursuant
to section 8(f). However, this would not be the only type of complaint
protected by section 11(c). The range of complaints ``related to'' the
Act is commensurate with the broad remedial purposes of this legislation
and the sweeping scope of its application, which entails the full extent
of the commerce power. (See Cong. Rec., vol. 116 p. P. 42206 Dec. 17,
1970).
(b) Complaints registered with other Federal agencies which have the
authority to regulate or investigate occupational safety and health
conditions are complaints ``related to'' this Act. Likewise, complaints
made to State or local agencies regarding occupational safety and health
conditions would be ``related to'' the Act. Such complaints, however,
must relate to conditions at the workplace, as distinguished from
complaints touching only upon general public safety and health.
(c) Further, the salutary principles of the Act would be seriously
undermined if employees were discouraged from lodging complaints about
occupational safety and health matters with their employers. (Section
2(1), (2), and (3)). Such complaints to employers, if made in good
faith, therefore would be related to the Act, and an employee
[[Page 110]]
would be protected against discharge or discrimination caused by a
complaint to the employer.
Sec. 1977.10 Proceedings under or related to the Act.
(a) Discharge of, or discrimination against, any employee because
the employee has ``instituted or caused to be instituted any proceeding
under or related to this Act'' is also prohibited by section 11(c).
Examples of proceedings which could arise specifically under the Act
would be inspections of worksites under section 8 of the Act, employee
contest of abatement date under section 10(c) of the Act, employee
initiation of proceedings for promulgation of an occupational safety and
health standard under section 6(b) of the Act and part 1911 of this
chapter, employee application for modification of revocation of a
variance under section 6(d) of the Act and part 1905 of this chapter,
employee judicial challenge to a standard under section 6(f) of the Act
and employee appeal of an Occupational Safety and Health Review
Commission order under section 11(a) of the Act. In determining whether
a ``proceeding'' is ``related to'' the Act, the considerations discussed
in Sec. 1977.9 would also be applicable.
(b) An employee need not himself directly institute the proceedings.
It is sufficient if he sets into motion activities of others which
result in proceedings under or related to the Act.
Sec. 1977.11 Testimony.
Discharge of, or discrimination against, any employee because the
employee ``has testified or is about to testify'' in proceedings under
or related to the Act is also prohibited by section 11(c). This
protection would of course not be limited to testimony in proceedings
instituted or caused to be instituted by the employee, but would extend
to any statements given in the course of judicial, quasi-judicial, and
administrative proceedings, including inspections, investigations, and
administrative rule making or adjudicative functions. If the employee is
giving or is about to give testimony in any proceeding under or related
to the Act, he would be protected against discrimination resulting from
such testimony.
Sec. 1977.12 Exercise of any right afforded by the Act.
(a) In addition to protecting employees who file complaints,
institute proceedings, or testify in proceedings under or related to the
Act, section 11(c) also protects employees from discrimination occurring
because of the exercise ``of any right afforded by this Act.'' Certain
rights are explicitly provided in the Act; for example, there is a right
to participate as a party in enforcement proceedings (section 10).
Certain other rights exist by necessary implication. For example,
employees may request information from the Occupational Safety and
Health Administration; such requests would constitute the exercise of a
right afforded by the Act. Likewise, employees interviewed by agents of
the Secretary in the course of inspections or investigations could not
subsequently be discriminated against because of their cooperation.
(b)(1) On the other hand, review of the Act and examination of the
legislative history discloses that, as a general matter, there is no
right afforded by the Act which would entitle employees to walk off the
job because of potential unsafe conditions at the workplace. Hazardous
conditions which may be violative of the Act will ordinarily be
corrected by the employer, once brought to his attention. If corrections
are not accomplished, or if there is dispute about the existence of a
hazard, the employee will normally have opportunity to request
inspection of the workplace pursuant to section 8(f) of the Act, or to
seek the assistance of other public agencies which have responsibility
in the field of safety and health. Under such circumstances, therefore,
an employer would not ordinarily be in violation of section 11(c) by
taking action to discipline an employee for refusing to perform normal
job activities because of alleged safety or health hazards.
(2) However, occasions might arise when an employee is confronted
with a choice between not performing assigned tasks or subjecting
himself to serious injury or death arising from a hazardous condition at
the workplace.
[[Page 111]]
If the employee, with no reasonable alternative, refuses in good faith
to expose himself to the dangerous condition, he would be protected
against subsequent discrimination. The condition causing the employee's
apprehension of death or injury must be of such a nature that a
reasonable person, under the circumstances then confronting the
employee, would conclude that there is a real danger of death or serious
injury and that there is insufficient time, due to the urgency of the
situation, to eliminate the danger through resort to regular statutory
enforcement channels. In addition, in such circumstances, the employee,
where possible, must also have sought from his employer, and been unable
to obtain, a correction of the dangerous condition.
[38 FR 2681, Jan. 29, 1973, as amended at 38 FR 4577, Feb. 16, 1973]
Procedures
Sec. 1977.15 Filing of complaint for discrimination.
(a) Who may file. A complaint of section 11(c) discrimination may be
filed by the employee himself, or by a representative authorized to do
so on his behalf.
(b) Nature of filing. No particular form of complaint is required.
(c) Place of filing. Complaint should be filed with the Area
Director (Occupational Safety and Health Administration) responsible for
enforcement activities in the geographical area where the employee
resides or was employed.
(d) Time for filing. (1) Section 11(c)(2) provides that an employee
who believes that he has been discriminated against in violation of
section 11(c)(1) ``may, within 30 days after such violation occurs,''
file a complaint with the Secretary of Labor.
(2) A major purpose of the 30-day period in this provision is to
allow the Secretary to decline to entertain complaints which have become
stale. Accordingly, complaints not filed within 30 days of an alleged
violation will ordinarily be presumed to be untimely.
(3) However, there may be circumstances which would justify tolling
of the 30-day period on recognized equitable principles or because of
strongly extenuating circumstances, e.g., where the employer has
concealed, or misled the employee regarding the grounds for discharge or
other adverse action; or where the discrimination is in the nature of a
continuing violation. The pendency of grievance-arbitration proceedings
or filing with another agency, among others, are circumstances which do
not justify tolling the 30-day period. In the absence of circumstances
justifying a tolling of the 30-day period, untimely complaints will not
be processed.
[38 FR 2681, Jan. 29, 1973, as amended at 50 FR 32846, Aug. 15, 1985]
Sec. 1977.16 Notification of Secretary of Labor's determination.
Section 11(c)(3) provides that the Secretary is to notify a
complainant within 90 days of the complaint of his determination whether
prohibited discrimination has occurred. This 90-day provision is
considered directory in nature. While every effort will be made to
notify complainants of the Secretary's determination within 90 days,
there may be instances when it is not possible to meet the directory
period set forth in section 11(c)(3).
Sec. 1977.17 Withdrawal of complaint.
Enforcement of the provisions of section 11(c) is not only a matter
of protecting rights of individual employees, but also of public
interest. Attempts by an employee to withdraw a previously filed
complaint will not necessarily result in termination of the Secretary's
investigation. The Secretary's jurisdiction cannot be foreclosed as a
matter of law by unilateral action of the employee. However, a voluntary
and uncoerced request from a complainant to withdraw his complaint will
be given careful consideration and substantial weight as a matter of
policy and sound enforcement procedure.
Sec. 1977.18 Arbitration or other agency proceedings.
(a) General. (1) An employee who files a complaint under section
11(c) of the Act may also pursue remedies under grievance arbitration
proceedings in collective bargaining agreements. In
[[Page 112]]
addition, the complainant may concurrently resort to other agencies for
relief, such as the National Labor Relations Board. The Secretary's
jurisdiction to entertain section 11(c) complaints, to investigate, and
to determine whether discrimination has occurred, is independent of the
jurisdiction of other agencies or bodies. The Secretary may file action
in U.S. district court regardless of the pendency of other proceedings.
(2) However, the Secretary also recognizes the national policy
favoring voluntary resolution of disputes under procedures in collective
bargaining agreements. See, e.g., Boy's Markets, Inc. v. Retail Clerks,
398 U.S. 235 (1970); Republic Steel Corp. v. Maddox, 379 U.S. 650
(1965); Carey v. Westinghouse Electric Co., 375 U.S. 261 (1964); Collier
Insulated Wire, 192 NLRB No. 150 (1971). By the same token, due
deference should be paid to the jurisdiction of other forums established
to resolve disputes which may also be related to section 11(c)
complaints.
(3) Where a complainant is in fact pursuing remedies other than
those provided by section 11(c), postponement of the Secretary's
determination and deferral to the results of such proceedings may be in
order. See, Burlington Truck Lines, Inc., v. U.S., 371 U.S. 156 (1962).
(b) Postponement of determination. Postponement of determination
would be justified where the rights asserted in other proceedings are
substantially the same as rights under section 11(c) and those
proceedings are not likely to violate the rights guaranteed by section
11(c). The factual issues in such proceedings must be substantially the
same as those raised by section 11(c) complaint, and the forum hearing
the matter must have the power to determine the ultimate issue of
discrimination. See Rios v. Reynolds Metals Co., F.2d (5th Cir., 1972),
41 U.S.L.W. 1049 (Oct. 10, 1972); Newman v. Avco Corp., 451 F.2d 743
(6th Cir., 1971).
(c) Deferral to outcome of other proceedings. A determination to
defer to the outcome of other proceedings initiated by a complainant
must necessarily be made on a case-to-case basis, after careful scrutiny
of all available information. Before deferring to the results of other
proceedings, it must be clear that those proceedings dealt adequately
with all factual issues, that the proceedings were fair, regular, and
free of procedural infirmities, and that the outcome of the proceedings
was not repugnant to the purpose and policy of the Act. In this regard,
if such other actions initiated by a complainant are dismissed without
adjudicatory hearing thereof, such dismissal will not ordinarily be
regarded as determinative of the section 11(c) complaint.
Some Specific Subjects
Sec. 1977.22 Employee refusal to comply with safety rules.
Employees who refuse to comply with occupational safety and health
standards or valid safety rules implemented by the employer in
furtherance of the Act are not exercising any rights afforded by the
Act. Disciplinary measures taken by employers solely in response to
employee refusal to comply with appropriate safety rules and
regulations, will not ordinarily be regarded as discriminatory action
prohibited by section 11(c). This situation should be distinguished from
refusals to work, as discussed in Sec. 1977.12.
Sec. 1977.23 State plans.
A State which is implementing its own occupational safety and health
enforcement program pursuant to section 18 of the Act and parts 1902 and
1952 of this chapter must have provisions as effective as those of
section 11(c) to protect employees from discharge or discrimination.
Such provisions do not divest either the Secretary of Labor or Federal
district courts of jurisdiction over employee complaints of
discrimination. However, the Secretary of Labor may refer complaints of
employees adequately protected by State Plans' provisions to the
appropriate state agency. The basic principles outlined in Sec.
1977.18, supra will be observed as to deferrals to findings of state
agencies.
[[Page 113]]
PART 1978_PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SURFACE TRANSPORTATION
ASSISTANCE ACT OF 1982 (STAA), AS AMENDED--Table of Contents
Subpart A_Complaints, Investigations, Findings, and Preliminary Orders
Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Obligations and prohibited acts.
1978.103 Filing of retaliation complaints.
1978.104 Investigation.
1978.105 Issuance of findings and preliminary orders.
Subpart B_Litigation
1978.106 Objections to the findings and the preliminary order and
request for a hearing.
1978.107 Hearings.
1978.108 Role of Federal agencies.
1978.109 Decisions and orders of the administrative law judge.
1978.110 Decisions and orders of the Administrative Review Board.
Subpart C_Miscellaneous Provisions
1978.111 Withdrawal of STAA complaints, findings, objections, and
petitions for review; settlement.
1978.112 Judicial review.
1978.113 Judicial enforcement.
1978.114 District court jurisdiction of retaliation complaints under
STAA.
1978.115 Special circumstances; waiver of rules.
Authority: 49 U.S.C. 31101 and 31105; Secretary's Order 1-2012 (Jan.
18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 1-2010 (Jan.
15, 2010), 75 FR 3924 (Jan. 25, 2010).
Source: 77 FR 44134, July 27, 2012, unless otherwise noted.
Subpart A_Complaints, Investigations, Findings, and Preliminary Orders
Sec. 1978.100 Purpose and scope.
(a) This part sets forth, the procedures for, and interpretations
of, the employee protection (whistleblower) provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, as
amended, which protects employees from retaliation because the employee
has engaged in, or is perceived to have engaged in, protected activity
pertaining to commercial motor vehicle safety, health, or security
matters.
(b) This part establishes procedures under STAA for the expeditious
handling of retaliation complaints filed by employees, or by persons
acting on their behalf. These rules, together with those rules codified
at 29 CFR part 18, set forth the procedures for submission of
complaints, investigations, issuance of findings and preliminary orders,
objections to findings and orders, litigation before administrative law
judges (ALJs), post-hearing administrative review, and withdrawals and
settlements. This part also sets forth interpretations of STAA.
Sec. 1978.101 Definitions.
(a) Act means the Surface Transportation Assistance Act of 1982
(STAA), as amended.
(b) Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or the person or persons to whom he or
she delegates authority under the Act.
(c) Business days means days other than Saturdays, Sundays, and
Federal holidays.
(d) Commercial motor carrier means any person engaged in a business
affecting commerce between States or between a State and a place outside
thereof who owns or leases a commercial motor vehicle in connection with
that business, or assigns employees to operate such a vehicle.
(e) Commercial motor vehicle means a vehicle as defined by 49 U.S.C.
31101(1).
(f) Complainant means the employee who filed a STAA complaint or on
whose behalf a complaint was filed.
(g) Complaint, for purposes of Sec. 1978.102(b)(1) and (e)(1),
includes both written and oral complaints to employers, government
agencies, and others.
(h) Employee means a driver of a commercial motor vehicle (including
an independent contractor when personally operating a commercial motor
vehicle), a mechanic, a freight handler, or an individual not an
employer, who:
(1) Directly affects commercial motor vehicle safety or security in
the
[[Page 114]]
course of employment by a commercial motor carrier; and
(2) Is not an employee of the United States Government, a State, or
a political subdivision of a State acting in the course of employment.
(3) The term includes an individual formerly performing the work
described above or an applicant for such work.
(i) Employer means a person engaged in a business affecting commerce
that owns or leases a commercial motor vehicle in connection with that
business, or assigns an employee to operate the vehicle in commerce, but
does not include the Government, a State, or a political subdivision of
a State.
(j) OSHA means the Occupational Safety and Health Administration of
the United States Department of Labor.
(k) Person means one or more individuals, partnerships,
associations, corporations, business trusts, legal representatives, or
any other organized group of individuals.
(l) Respondent means the person alleged to have violated 49 U.S.C.
31105.
(m) Secretary means the Secretary of Labor or persons to whom
authority under the Act has been delegated.
(n) State means a State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the
Northern Mariana Islands.
(o) Any future statutory amendments that affect the definition of a
term or terms listed in this section will apply in lieu of the
definition stated herein.
Sec. 1978.102 Obligations and prohibited acts.
(a) No person may discharge or otherwise retaliate against any
employee with respect to the employee's compensation, terms, conditions,
or privileges of employment because the employee engaged in any of the
activities specified in paragraphs (b) or (c) of this section. In
addition, no person may discharge or otherwise retaliate against any
employee with respect to the employee's compensation, terms, conditions,
or privileges of employment because a person acting pursuant to the
employee's request engaged in any of the activities specified in
paragraph (b).
(b) It is a violation for any person to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, harass, suspend,
demote, or in any other manner retaliate against any employee because
the employee or a person acting pursuant to the employee's request has:
(1) Filed orally or in writing a complaint with an employer,
government agency, or others or begun a proceeding related to a
violation of a commercial motor vehicle safety or security regulation,
standard, or order; or
(2) Testified or will testify at any proceeding related to a
violation of a commercial motor vehicle safety or security regulation,
standard, or order.
(c) It is a violation for any person to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, harass, suspend,
demote, or in any other manner retaliate against any employee because
the employee:
(1) Refuses to operate a vehicle because:
(i) The operation violates a regulation, standard, or order of the
United States related to commercial motor vehicle safety, health, or
security; or
(ii) He or she has a reasonable apprehension of serious injury to
himself or herself or the public because of the vehicle's hazardous
safety or security condition;
(2) Accurately reports hours on duty pursuant to Chapter 315 of
Title 49 of the United States Code; or
(3) Cooperates with a safety or security investigation by the
Secretary of Transportation, the Secretary of Homeland Security, or the
National Transportation Safety Board; or
(4) Furnishes information to the Secretary of Transportation, the
Secretary of Homeland Security, the National Transportation Safety
Board, or any Federal, State, or local regulatory or law enforcement
agency as to the facts relating to any accident or incident resulting in
injury or death to an individual or damage to property occurring in
connection with commercial motor vehicle transportation.
(d) No person may discharge or otherwise retaliate against any
employee
[[Page 115]]
with respect to the employee's compensation, terms, conditions, or
privileges of employment because the person perceives that the employee
has engaged in any of the activities specified in paragraph (e) of this
section.
(e) It is a violation for any person to intimidate, threaten,
restrain, coerce, blacklist, discharge, discipline, harass, suspend,
demote, or in any other manner retaliate against any employee because
the employer perceives that:
(1) The employee has filed orally or in writing or is about to file
orally or in writing a complaint with an employer, government agency, or
others or has begun or is about to begin a proceeding related to a
violation of a commercial motor vehicle safety or security regulation,
standard or order;
(2) The employee is about to cooperate with a safety or security
investigation by the Secretary of Transportation, the Secretary of
Homeland Security, or the National Transportation Safety Board; or
(3) The employee has furnished or is about to furnish information to
the Secretary of Transportation, the Secretary of Homeland Security, the
National Transportation Safety Board, or any Federal, State, or local
regulatory or law enforcement agency as to the facts relating to any
accident or incident resulting in injury or death to an individual or
damage to property occurring in connection with commercial motor vehicle
transportation.
(f) For purposes of this section, an employee's apprehension of
serious injury is reasonable only if a reasonable individual in the
circumstances then confronting the employee would conclude that the
hazardous safety or security condition establishes a real danger of
accident, injury or serious impairment to health. To qualify for
protection, the employee must have sought from the employer, and been
unable to obtain, correction of the hazardous safety or security
condition.
Sec. 1978.103 Filing of retaliation complaints.
(a) Who may file. An employee who believes that he or she has been
retaliated against by an employer in violation of STAA may file, or have
filed by any person on the employee's behalf, a complaint alleging such
retaliation.
(b) Nature of filing. No particular form of complaint is required. A
complaint may be filed orally or in writing. Oral complaints will be
reduced to writing by OSHA. If the complainant is unable to file a
complaint in English, OSHA will accept the complaint in any other
language.
(c) Place of filing. The complaint should be filed with the OSHA
office responsible for enforcement activities in the geographical area
where the employee resides or was employed, but may be filed with any
OSHA officer or employee. Addresses and telephone numbers for these
officials are set forth in local directories and at the following
Internet address: http://www.osha.gov.
(d) Time for filing. Within 180 days after an alleged violation of
STAA occurs, any employee who believes that he or she has been
retaliated against in violation of STAA may file, or have filed by any
person on the employee's behalf, a complaint alleging such retaliation.
The date of the postmark, facsimile transmittal, electronic
communication transmittal, telephone call, hand-delivery, delivery to a
third-party commercial carrier, or in-person filing at an OSHA office
will be considered the date of filing. The time for filing a complaint
may be tolled for reasons warranted by applicable case law.
(e) Relationship to section 11(c) complaints. A complaint filed
under STAA alleging facts that would also constitute a violation of
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.
660(c), will be deemed to be a complaint under both STAA and section
11(c). Similarly, a complaint filed under section 11(c) that alleges
facts that would also constitute a violation of STAA will be deemed to
be a complaint filed under both STAA and section 11(c). Normal
procedures and timeliness requirements under the respective statutes and
regulations will be followed.