[Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31625]


[[Page Unknown]]

[Federal Register: December 27, 1994]


_______________________________________________________________________

Part III





Department of Labor





_______________________________________________________________________



Occupational Safety and Health Administration



_______________________________________________________________________



29 CFR Part 1903




Policy on Employee Rescue Efforts; Interpretive Rule
DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1903

 
Policy on Employee Rescue Efforts

ACTION: Issuance of interpretive rule.

-----------------------------------------------------------------------

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

EFFECTIVE DATE: December 27, 1994.

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

SUPPLEMENTARY INFORMATION: In carrying out its enforcement 
responsibilities under the Occupational Safety and Health Act, OSHA 
from time to time investigates workplace incidents which involve not 
only injuries to workers directly exposed to hazards, but injuries and 
potential injuries to employees who voluntarily attempt to rescue or 
assist their fellow workers. OSHA is aware of many instances in which 
employees have voluntarily rescued coworkers or rendered emergency 
assistance in the aftermath of workplace accidents, sometimes at 
considerable risk to themselves. Until recently, there has been no 
written instruction by OSHA to its field offices providing guidance in 
such situations. Accordingly, the agency has decided to issue an 
interpretive rule clarifying its citation policy regarding employers 
whose employees perform or attempt to perform rescues of individuals in 
life-threatening danger.
    It is not OSHA's policy to interfere with or to regulate every 
decision by a worker to place himself at risk to save another 
individual. Nor is it OSHA's policy to issue citations to employers 
whose employees voluntarily undertake acts of heroism to save another 
individual from imminent harm, where rescue operations are not part of 
the employee's job responsibilities and the likelihood that a rescue 
may become necessary is not reasonably foreseeable.
    At the same time, employers who have employees working in 
environments where the possibility of life-threatening accidents is 
reasonably foreseeable are required by various OSHA standards and the 
general duty clause to take appropriate precautions to assure that the 
rescuers themselves do not become victims. See, e.g., Pride Oil Well 
Service, 15 BNA-OSHC 1808 (Rev. Comm.1992); ARO. Inc., 1 BNA-OSHC 1453 
(Rev. Com. 1973). Accidents requiring rescue efforts are reasonably 
foreseeable in certain working environments such as, for example, 
trenches and excavations, hazardous waste operations and emergency 
response work, or construction work over water. Confined spaces are 
another occupational setting where rescuers, without proper equipment 
and precautions, often are killed or injured. ``Worker Deaths in 
Confined Spaces: A Summary of Surveillance Findings and Investigative 
Case Reports'', National Institute for Occupational Safety and Health, 
No. 94-103 (1994).
    Because the occurrence of accidents which invite rescue attempts is 
foreseeable in various industrial processes and environments, a variety 
of OSHA standards include precautions and safeguards for rescue-related 
operations, including, e.g., the emergency planning and response 
provisions of the process safety management standard, 29 CFR 
1910.119(n), and hazardous waste operations standard, 29 CFR 
1910.120(1), (p) and (q); and the standards on confined spaces in 
general industry, 29 CFR 1910.146, and in grain handling, 1910.272(d), 
(e), and (g). In construction, specific rescue precautions are 
prescribed, e.g., for work performed near or over water, and for 
excavation work, 29 CFR 1926.106, 1926.651(g). See also 29 CFR 1910.38 
(employee emergency plans in general industry) and 1926.20, .21, and 
.35 (training and emergency action plans in construction).
    Under the interpretive rule set forth below, these and other 
requirements under the Occupational Safety and Health Act will be 
applied in situations involving employee rescue efforts only when the 
employer has specifically designated an employee with responsibility to 
perform or assist in a rescue operation, or when employees have duties 
directly related to workplace processes or operations where the 
possibility of life-threatening accidents is foreseeable.

Effect of the Interpretive Rule

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

Regulatory Impact Analysis

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

Administrative Procedure

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

List of Subjects in 29 CFR Part 1903

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

Authority

    This document was prepared under the direction of Joseph A. Dear, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution Ave. N.W., Washington, D.C. 
20210.
    Accordingly, pursuant to section 8 of the Occupational Safety and 
Heath Act, 29 U.S.C. 657; Section 553 of the Administrative Procedure 
Act, 5 U.S.C. 553; and Secretary of Labor's Order 1-90 (55 FR 9033), 29 
CFR Part 1903 is amended as set forth below.

    Signed in Washington, D.C. this 20th day of December, 1994.
Joseph A. Dear,
Assistant Secretary of Labor.

PART 1903--INSPECTIONS, CITATIONS AND PROPOSED PENALTIES

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

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

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

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


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

* * * * *
    (f) No citation may be issued to an employer because of a rescue 
activity undertaken by an employee of that employer with respect to an 
individual in imminent danger unless:
    (1) (i) Such employee is designated or assigned by the employer to 
have responsibility to perform or assist in rescue operations, and
    (ii) the employer fails to provide protection of the safety and 
health of such employee, including failing to provide appropriate 
training and rescue equipment; or
    (2) (i) such employee is directed by the employer to perform rescue 
activities in the course of carrying out the employee's job duties, and
    (ii) the employer fails to provide protection of the safety and 
health of such employee, including failing to provide appropriate 
training and rescue equipment; or
    (3) (i) such employee is employed in a workplace that requires the 
employee to carry out duties that are directly related to a workplace 
operation where the likelihood of life-threatening accidents is 
foreseeable, such as a workplace operation where employees are located 
in confined spaces or trenches, handle hazardous waste, respond to 
emergency situations, perform excavations, or perform construction over 
water; and
    (ii) such employee has not been designated or assigned to perform 
or assist in rescue operations and voluntarily elects to rescue such an 
individual; and
    (iii) the employer has failed to instruct employees not designated 
or assigned to perform or assist in rescue operations of the 
arrangements for rescue, not to attempt rescue, and of the hazards of 
attempting rescue without adequate training or equipment.
    (4) For purposes of this policy, the term ``imminent danger'' means 
the existence of any condition or practice that could reasonably be 
expected to cause death or serious physical harm before such condition 
or practice can be abated.

[FR Doc. 94-31625 Filed 12-23-94; 8:45 am]
BILLING CODE 4510-26-M