[Federal Register Volume 62, Number 61 (Monday, March 31, 1997)]
[Rules and Regulations]
[Pages 15324-15340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7959]



[[Page 15323]]

_______________________________________________________________________

Part V





Department of Labor





_______________________________________________________________________



Occupational Safety and Health Administration



_______________________________________________________________________



29 CFR Part 1903



Abatement Verifcation; Final Rule

  Federal Register / Vol. 62, No. 61 / Monday, March 31, 1997 / Rules 
and Regulations  

[[Page 15324]]



DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1903

[Docket No. C-03]
RIN 1218-AB40


Abatement Verification

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

ACTION: Final rule.

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

SUMMARY: OSHA is issuing a final regulation requiring those employers 
who have received a citation(s) for violation(s) of the Occupational 
Safety and Health Act (OSH Act or Act) to certify that they have abated 
the hazardous condition for which they were cited and to inform 
affected employees of their abatement actions. The abatement procedures 
a specific employer must follow depend on the nature of the 
violation(s) identified and the employer's abatement actions. If 
abatement occurs during or immediately after the inspection that 
identified the violation(s), the employer is not required to submit an 
abatement certification letter to OSHA. If the violation(s) is an 
other-than-serious violation, or a serious violation that does not 
require additional documentation, the employer is required to certify 
abatement using a simple one-page form or equivalent. In cases 
involving the most serious violations, additional documentation is 
required. The final regulation being published today codifies, 
simplifies, and streamlines the abatement certification procedures that 
OSHA has previously enforced administratively. OSHA has determined that 
this abatement verification regulation will reduce employers' 
paperwork, enhance employee participation in the abatement process, 
increase the number of cited hazards that are quickly abated, and 
streamline and standardize OSHA's abatement procedures.

DATES: This final rule is effective on May 30, 1997.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Office of Information 
and Consumer Affairs, OSHA, Room N-3647, U.S. Department of Labor, 200 
Constitution Ave., N.W., Washington, D.C. 20210; telephone: (202) 219-
8148.

SUPPLEMENTARY INFORMATION: A Table of Contents identifying the various 
portions of this regulatory package follows.

Table of Contents

I. Background
II. Summary and Explanation of the Regulation
    Paragraph (a). Scope and application
    Paragraph (b). Definitions
    Paragraph (c). Abatement certification
    Paragraph (d). Abatement documentation
    Paragraph (e). Abatement plans
    Paragraph (f). Progress reports
    Paragraph (g). Employee notification
    Paragraph (h). Transmitting abatement documents
    Paragraph (i). Movable equipment
III. References
IV. Pertinent Legal Authority
V. Paperwork Reduction Act of 1995
VI. Summary of the Final Economic Analysis
VII. Regulatory Flexibility Certification
VIII. Environmental Impact Assessment
IX. Federalism
X. State Plans

I. Background

    Under the OSH Act, 29 U.S.C. 651 et seq., OSHA inspects workplaces 
to determine whether employers are complying with OSHA standards and 
other statutory and regulatory requirements. The purpose of OSHA 
inspections is to identify violative conditions that pose safety and 
health hazards to employees and to ensure that these conditions are 
abated. If OSHA determines that a given employer has committed a 
violation, a citation is issued. The citation references the alleged 
violation, notes the proposed penalties, and indicates the date by 
which the violation is to be corrected, i.e., the abatement date (see 
Section 9(a) of the OSH Act and 29 U.S.C. 658(a)). For each inspection, 
OSHA opens an employer-specific case file; this case file remains open 
throughout the inspection process and is not closed until the Agency is 
satisfied that abatement has occurred.
    OSHA has followed a variety of administrative procedures in the 
past to ensure that employers abate cited hazards, and has modified 
these procedures a number of times in the years since the Agency was 
established. Currently, the cover letter to the employer that 
accompanies all OSHA citations states that the cited employer must 
notify the Area Director promptly by letter of completed abatements, as 
well as provide documentation, such as a photograph or description of 
the method of abatement, that abatement has occurred. OSHA also 
frequently conducts follow-up-inspections to verify that abatement has 
in fact occurred.
    In May 1991, the General Accounting Office (GAO) issued a report 
(GAO/HRD-91-35) to Congress in which the GAO assessed the adequacy of 
OSHA's policies and procedures for ensuring the abatement of cited 
hazards. This report found that OSHA's abatement policies and 
procedures had limitations that interfered with the Agency's ability to 
identify those employers who have failed to abate the safety and health 
hazards for which they had been cited. The GAO also was concerned about 
hazard abatement problems in the construction industry (e.g., that some 
construction employers, to avoid abatement, moved cited hazardous 
equipment to another location, where the uncorrected hazard could 
continue to pose a risk to unsuspecting employees). The GAO report 
concluded that OSHA should correct these deficiencies by issuing a 
regulation that requires employers to provide specific documentation 
that they have abated cited hazards, including detailed evidence of the 
corrective actions they have taken to abate such hazards, and prevents 
employers from circumventing abatement by removing cited movable 
equipment from the worksite and using it at another worksite.
    Prior to the GAO report, the Agency had made several efforts to 
strengthen OSHA's abatement verification policies by revising the OSHA 
Field Operations Manual (FOM) (superseded by the Agency's Field 
Inspection Reference Manual); the most recent of these revisions was 
made in 1989. These revisions strengthened OSHA's abatement 
verification procedures but did little to ensure that these procedures 
were being applied uniformly across the regulated community.
    The regulation being issued today will address the GAO's concerns 
while at the same time streamlining and codifying OSHA's procedures for 
abatement verification. Once this regulation is effective, these 
procedures will be enforced in a consistent way by all OSHA Area 
Offices, eliminating inconsistencies and reducing the amount of 
paperwork employers who receive citations must complete to notify OSHA 
of their abatement actions. In cases where abatement action can be 
taken immediately or be completed within 24 hours of the time the 
Compliance Officer has identified the violation, employers will not be 
required to certify abatement. In other cases, i.e., those involving 
other-than-serious and some serious violations, employers are required 
only to provide OSHA with the information shown in Appendix A or its 
equivalent. Additional documentation is required only for the most 
serious violations (e.g., serious violations that the Agency has 
specifically identified in the citation as requiring documentation and 
repeat or willful violations.

[[Page 15325]]

    Many employers have not been aware that the abatement verification 
procedures employed by OSHA in the past have been administrative, 
rather than regulatory, in nature. For example, several commenters in 
this rulemaking (Exs. 4-22, 4-23, 4-28, and 4-61) were of the opinion 
that no abatement verification regulation was required because OSHA 
already has the legal means to verify abatement. These commenters were 
apparently unaware that, because the Agency's procedures had not been 
codified, they did not have the force of law.
    OSHA finds that establishing effective abatement verification 
procedures by regulation will have a number of benefits for employers, 
employees, and OSHA. This abatement verification regulation will 
strengthen employee protection by increasing the number of cited 
hazards abated by employers, reduce employers' paperwork and associated 
costs, increase employee involvement in the abatement process, 
streamline the process, and increase the consistency of OSHA's 
abatement procedures in all areas of the country.

II. Summary and Explanation of the Regulation

    This section of the preamble discusses the requirements of the 
final regulation, describes changes made to the regulation in response 
to comments received on the proposal, and summarizes the comments 
received.

Purpose

    A paragraph clearly stating the purpose of this regulation has been 
added to the final rule. This new paragraph describes the intent of 
OSHA's inspection process and stresses that abatement of violative 
conditions identified during an OSHA inspection is the overriding goal 
of that process. The abatement verification regulation establishes the 
procedures OSHA will follow to ensure that individual employers who 
have been cited for workplace-specific hazards have abated those 
hazards. The actions cited employers are required to take to verify 
abatement, which are set forth in this regulation, are tailored 
specifically to the nature of the hazard cited and to the employer's 
abatement actions. That is, the extent of the abatement verification 
required by OSHA is commensurate with the seriousness of the violation 
and the actions the employer takes to abate the cited hazard.

Paragraph (a). Scope and Application

    The scope of the final regulation has been revised since the 
proposal to make clear that this section applies only to those 
individual employers who have received an OSHA citation for a 
workplace-specific violation of the Occupational Safety and Health Act. 
Employers who have not been cited are not subject to this regulation. 
Thus, only those employers for whom OSHA has opened a specific case 
file are covered by this regulation.

Paragraph (b). Definitions

    Paragraph (b) includes definitions for terms used in the final 
rule. Two proposed definitions have been modified minimally in the 
final rule to enhance clarity and are not further discussed here. These 
terms are ``Abatement date'' and ``Final order date.'' In addition, 
several terms that were defined in the proposal have been deleted from 
the Definitions paragraph of the final rule because OSHA believes they 
are self-explanatory. These terms include ``Area Director,'' 
``Assistant Secretary,'' and ``Citation item.'' Further, OSHA believes 
that the meaning of several terms that were defined in the proposal is 
now clear from the context in which they are used in the regulatory 
text. These terms include ``Abatement plan,'' ``Commission,'' 
``Petition for modification of abatement date (PMA),'' ``PMA final 
order,'' and ``Progress report.'' However, in response to comments, 
OSHA has altered some definitions from those proposed and has added 
others. These changes are discussed further in the following 
paragraphs.
Abatement
    OSHA has added ``Abatement'' to the list of definitions included in 
the final regulation. Abatement is defined as ``action by an employer 
to comply with a cited standard or regulation or to eliminate a 
recognized hazard identified by OSHA during an inspection.'' This 
definition makes clear that OSHA issues citations both for violations 
of particular standards and for violations of the General Duty Clause 
(Sec. 5(a)(1) of the Act, 29 USC 654(a)(1)), which requires employers 
to provide their employees with ``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,'' and that the abatement 
procedures prescribed by this regulation apply to both types of 
violations. This definition of abatement is consistent with that used 
in Chapter IV of OSHA's compliance instruction, CPL 2.103, the Field 
Inspection Reference Manual (FIRM). Examples of methods commonly used 
to abate cited hazards include the use of engineering controls (such as 
local exhaust ventilation) to reduce the exposure of employees to a 
toxic substance to the levels prescribed by an OSHA standard; 
correction of a deficiency in a program, such as the respiratory 
protection program required by 29 CFR 1910.134; or the use of 
permissible electrical equipment to eliminate a fire hazard.
Abatement Date
    The final rule defines the abatement date for an uncontested 
citation as the later of the following dates: the abatement date 
identified in the citation; the date approved by OSHA or established in 
litigation as a result of a PMA; or the date established in a citation 
by an informal settlement agreement. For contested citation items for 
which the Occupational Safety and Health Review Commission has issued a 
final order, the abatement date is the later of the following dates: 
the date identified in the final order for abatement; the date computed 
by adding the period allowed in the citation for abatement to the final 
order date; or the date established by a formal settlement agreement. 
OSHA has added this definition to the final rule to provide cited 
employers with specific information on the meaning of this term as it 
is used in the final regulation.
Affected Employees
    ``Affected employees'' is defined to mean ``those employees who are 
exposed to the hazard(s) identified as violation(s) in a citation.'' 
This definition has been added to clarify that the term, as used in 
this regulation, applies specifically to those employees who are put at 
risk by the safety or health hazard cited by the OSHA Compliance 
Officer.
    OSHA received one comment (Ex. 4-31) asking that the word 
``worksite'' be defined because, according to this commenter, it was 
used ambiguously in the proposal. Instead of defining this term, 
however, OSHA has responded to this comment by ensuring that the word 
``worksite'' is used unambiguously in the final rule.
Final Order Date
    The final regulation defines the final order date for uncontested 
citation items as the 15th working day after the employer receives an 
OSHA citation. For a contested citation item, the final order date is 
(A) the 30th day after the date on which a decision or order of a 
Commission (OSHRC) administrative law judge has been docketed with the 
Commission unless a member has directed review; or (B) if review has 
been directed, the 30th day after the

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date on which the Commission decided or issued an order on all or the 
pertinent part(s) of the case; or (C) the date on which a Federal 
appeals court issues a decision in a case in which a final order of 
OSHRC has been stayed. OSHA has added a definition of this term to the 
final regulation to provide employers with specific information on the 
meaning of this term in the context of the final rule.
Movable Equipment
    The final rule defines movable equipment as any hand-held or non-
hand-held machine or device, whether powered or unpowered, that is used 
to do work and is moved within or between worksites. This definition 
has been added to the final rule to clarify the types of equipment to 
which the requirements of paragraph (i) of the final rule apply.

Paragraph (c). Abatement Certification

    Paragraph (c) of the final rule sets forth the requirements 
employers must follow to certify that they have abated a workplace-
specific safety or health hazard cited by OSHA. The title of paragraph 
(c) has been revised from that used in the proposed rule, ``abatement 
certificate,'' to ``abatement certification'' to emphasize that the 
requirements of this paragraph relate to the process of abatement 
certification, rather than to a particular document.
    Many commenters favored changing the Agency's current 
administratively imposed abatement verification procedures or suggested 
modifications to the abatement certification paragraph of the proposed 
rule (Exs. 4-18, 4-32, 4-53, 4-55, and 4-57). These participants 
recommended that OSHA adopt a ``tiered'' approach to abatement, i.e., 
one that tailors the extent of the abatement verification required to 
the seriousness of the hazardous condition cited and the employer's 
abatement response. The final regulation reflects this approach, and 
the following paragraphs describe the comments received on the various 
provisions of paragraph (c) and OSHA's reasoning for including the 
requirements that appear in the final regulation.
    Paragraph (c)(1) of the final regulation states the obligation of 
employers who have received a citation to certify to OSHA that they 
have abated the cited hazardous condition. Certification of abatement 
must occur within 10 calendar days of the completion of the abatement 
action, except in those situations addressed by paragraph (c)(2) of the 
final regulation. The proposed regulation would have allowed employers 
30 calendar days between the time they abated a cited violation and the 
time they submitted an abatement certificate to this effect to OSHA. 
Several commenters (Exs. 4-26, 4-30, 4-50, and 4-72) stated that 30 
days was too long an interval between completion of abatement and 
certification of abatement to OSHA. Some of these commenters argued 
that this interval would delay the OSHA abatement certification review 
process, while others stated that allowing such a lengthy period of 
time would mean that exposed employees would not receive timely 
notification that the hazardous condition to which they had been 
exposed had been abated. One commenter (Ex. 4-50) stated:

    The employer should be required to submit the abatement 
certificate on, or within a few days after, the abatement date. In 
this way, employees, who by virtue of the nature of the hazard may 
not otherwise be privy to knowledge regarding the employer's 
abatement action, will not be forced to wait thirty days beyond the 
abatement date to know whether the hazard has been removed and their 
workplace is safe.

Other commenters (Exs. 4-28 and 4-42), however, argued that 30 days was 
insufficient time for employers to process certification documents 
through multiple levels of legal and administrative review.
    In the final regulation, the period between the abatement date and 
submission of the required abatement information is 10 calendar days, 
which will ensure that abatement verification is completed in an 
expeditious manner. OSHA believes that a 10 calendar day period is 
adequate because the Agency has simplified the abatement process by 
providing an example of a non-mandatory abatement certification letter 
in Appendix A. Use of this simplified form, or an equivalent form 
chosen by the employer that contains the same information, will also 
facilitate corporate review of the required abatement information.
    Paragraph (c)(2) specifies that employers who abate a hazard 
identified by an OSHA Compliance Officer immediately, i.e., either 
during the inspection or within 24 hours of the time the hazard was 
identified, are not required to certify abatement to OSHA in a separate 
certification letter. In such cases, however, the Compliance Officer 
must note in the citation that such immediate abatement has occurred. 
Paragraph (c)(2) has been added to the final rule in response to 
comments from rulemaking participants who urged the Agency to eliminate 
unnecessary paperwork and streamline the process for those employers 
who choose to abate a cited hazard immediately (defined as during the 
on-site portion of the inspection, within 24 hours after the violation 
was identified).
    In the preamble to the proposal, OSHA raised a number of questions, 
including one (Question 8) that asked for comment on the need for 
written abatement certification procedures in cases where employers 
abate hazards immediately. This question elicited more comments than 
any other. Commenters (Exs. 4-7, 4-9 to 4-23, 4-28, 4-31 to 4-35, 4-39, 
4-42, 4-47, 4-48, 4-54 to 4-57, 4-59, 4-61, 4-62, 4-64, 4-65, 4-67, 4-
69, 4-75, 4-77, 4-79, 4-83, 4-84, and 4-85) were unanimous in the 
opinion that abatement certification and documentation should not be 
required if immediate abatement of the violation is observed by the 
OSHA Compliance Officer or occurs shortly thereafter. These 
participants also stated that the proposed certification requirements, 
which contained no such exception for immediate abatement, would impose 
a substantial and unnecessary regulatory burden on employers choosing 
the immediate abatement approach.
    At the time of the proposal, it was OSHA's practice to require and 
maintain an extensive abatement ``paper trail'' to ensure that cited 
violations had been abated. In the meantime, however, in keeping with 
OSHA's efforts to reduce paperwork, encourage compliance, enhance 
employee protections, and streamline the process both for OSHA and 
employers, the Agency has developed a software program to print 
citations that allows Compliance Officers to record their observation 
of immediate abatement directly on the citation form. This means that 
citations now provide a means for OSHA to audit immediate abatements, 
which makes employer certification of such abatement unnecessary. To 
ensure that immediate abatements are properly documented, which will 
also avoid unnecessary follow-up inspections, the Compliance Officer 
will simply record the immediate abatement on Form OSHA-1B (i.e., will 
enter the specific citation item and the phrase ``corrected during 
inspection'' on this form) or its equivalent.
    Paragraph (c)(3) identifies the minimum abatement-related 
information that employers must include in the abatement certification 
they submit to the OSHA Area Director. (Additional information, such as 
the employer's name and address, that must be included is specified in 
paragraph (h) of this section, along with other details pertaining to 
the transmittal of abatement information.) The

[[Page 15327]]

information required by paragraph (c)(3) includes, for each cited 
violation, the date and method of abatement used, and a statement that 
affected employees and their representatives have been informed of the 
abatement.
    The abatement certification information required by OSHA is similar 
to that contained in the corresponding paragraph of the proposal, 
although the language has been simplified in the final rule. OSHA 
believes that, in most cases, a brief one-sentence statement describing 
the action taken to abate a violation (e.g., ``replaced guard on saw'') 
will be all that is needed in the certification letter.
    The proposal would have required the employer to specify in the 
abatement certification letter those instances where an abatement had 
not been completed as planned. The proposal would also have required 
the employer to submit a subsequent abatement certification letter to 
OSHA when such a delayed abatement had actually been completed. These 
requirements do not appear in the final regulation, however, because 
existing OSHA regulations provide for the employer to file a petition 
for modification of abatement (PMA) date in cases of delayed abatement. 
In other words, for cases in which an employer has not abated a 
violation as planned, the employer's filing of a PMA under 29 CFR 
1903.14(a) reinitiates the abatement certification process.
    The proposed requirement to include the date on which the employer 
signed the abatement certification letter is also not included in the 
final regulation, in response to a recommendation made by a commenter 
(Ex. 4-61). OSHA determined that this requirement served no useful 
purpose because the abatement date is already provided in the abatement 
certification letter, which is signed by the employer.
    One of the questions raised in the preamble to the proposed rule 
(Question 9) asked whether an Agency-developed sample abatement 
certification form for employers to use would be useful and 
specifically asked about the information such a form should contain. 
Several commenters (Exs. 4-28, 4-39, 4-42, and 4-67) stated that such a 
form would reduce the compliance burden on employers. The sample 
abatement certification letter, which is included as non-mandatory 
Appendix A to the final regulation, was developed in response to these 
comments. Appendix A is a sample abatement certification letter that is 
appropriate for certifying both individual or multiple citation items 
(in the latter case, employers can simply add lines as required). OSHA 
has developed this abatement certification form, which is non-
mandatory, specifically to reduce the time and resource burdens for 
cited employers, which were of concern to several commenters (Exs. 4-9, 
4-18, 4-19, and 4-48).

Paragraph (d), Abatement Documentation

    Paragraph (d), Abatement documentation, specifies the requirements 
employers must follow to document the completion of abatement for 
willful or repeat violations and for any serious violation for which 
the citation indicates that such documentation is required.
    Requiring additional abatement documentation for these more serious 
violations reflects the tailored approach that many commenters (Exs. 4-
18, 4-20, 4-24, 4-32, 4-40, 4-43, 4-44, 4-53, 4-55, and 4-57) urged the 
Agency to take. Such a tiered approach would require only a simple 
letter certifying abatement for other-than-serious violations and for 
many serious violations but would require both a certification letter 
and more extensive documentation for the most serious violations, i.e., 
willful or repeat violations and those serious violations determined by 
OSHA on the citation to warrant such documentation.
    Some commenters (Exs. 4-49 and 4-50) recommended that certification 
and documentation be required for all violations, including other-than-
serious violations, as has been OSHA's practice in the past. These 
commenters argued that full certification and documentation were needed 
in every case to ensure protection to employees exposed to the cited 
hazards. In contrast, one commenter (Ex. 4-61) stated that abatement 
documentation should not be required for any violation because 
requiring employers merely to certify abatement was sufficient.
    In the final regulation, OSHA has adopted a tiered abatement 
certification approach that is based on the type of violation for which 
the citation was issued and the employer's abatement actions in 
response to the citation. The abatement certification process for 
other-than-serious violations has been streamlined in the final rule as 
much as possible, while the process for ensuring the abatement of more 
serious violations is more extensive, as befits the greater complexity 
and degree of hazard posed to workers by such violations. OSHA's 
reasoning is discussed below.
    Other-than-serious violations do not expose employees to life 
threatening or permanently injurious conditions, because they are 
defined by OSHA as violations that ``cannot reasonably be predicted to 
cause death or serious physical harm to exposed employees, but [that 
do] have a direct and immediate relationship to their health and 
safety.'' (See OSHA Instruction CPL 2.103, Chapter III, p. III-6, 
September 26, 1994.)
    Although other-than-serious violations are of concern to OSHA, 
abatement of these violations warrants a lesser commitment of Agency 
resources than does the abatement of more serious violations. This is 
particularly the case since other provisions of the final regulation 
will act to provide additional protections for employees throughout the 
abatement process. For example, paragraph (g) requires that employers 
inform affected employees (i.e., those directly affected by the cited 
hazard) and their representatives of the employer's abatement 
activities; employees and their representatives must also be given the 
opportunity to examine and copy all abatement materials prepared by the 
employer in response to this regulation. These notification 
requirements will ensure that affected employees are aware of the 
employer's abatement activities and will also increase the incentives 
for employers to provide accurate and timely information about their 
abatement activities. Thus, in adopting a tiered approach to abatement 
verification, OSHA is making effective use of both Agency and employer 
resources by placing an appropriate emphasis on the more serious 
violations. This approach also is consistent with the GAO's 
recommendations regarding abatement verification for such violations.
    As required by paragraphs (c) and (d), those employers who have 
received citations for willful or repeat violations, or for 
specifically identified serious violations, must certify and provide 
documentary evidence of their abatement actions. Although OSHA retains 
the discretion to identify any serious cited hazard as one requiring 
abatement documentation as well as certification, OSHA will generally 
require such documentation only for ``high-gravity'' serious 
violations. High-gravity serious violations are those violations that 
relate to hazards that have a higher level of severity and a higher 
probability of resulting in employee injury, illness, or death than 
other serious violations. Examples of high-gravity serious violations 
are: (1) A storage loft located 10 feet above the work floor is 
accessed and worked in by employees daily, and the open side of the 
loft does not have a guard rail. A fall would result in a severe 
employee injury, and the probability of a fall occurring is great 
because of the

[[Page 15328]]

frequency of exposure. (2) An electrically powered miter saw is being 
used daily with the lower blade guard secured in the retracted 
position. The probability of injury is great due to the frequency of 
use and the proximity of the employee's hand to the rotating blade. The 
severity of the resulting injury would undoubtedly be high.
    After a careful review both of the comments received and OSHA's own 
enforcement experience, OSHA has determined that it is appropriate to 
require abatement certification for all cited hazardous conditions but 
to reserve submission of full documentary evidence of abatement for the 
most serious violations only. Comments (Exs. 4-12 through 4-16, 4-23, 
4-55) submitted to the record also suggest that a number of other 
Federal agencies have adopted abatement documentation procedures 
similar to those being promulgated by OSHA, which increases the 
Agency's confidence in adopting this approach.
    OSHA retains the discretion, under paragraph (d)(1), to require 
documentation of abatement for any serious violation that warrants this 
extra measure of assurance. OSHA must specifically identify in the 
citation those citation items for which such documentation is required. 
However, OSHA generally intends to require abatement documentation in 
low-or medium-gravity serious violation situations only where, in the 
past 10 years, an employer has received a citation either for a willful 
or failure-to-abate violation or has a history of compliance violations 
that resulted in a fatality or in serious physical harm to an employee. 
OSHA believes that the abatement activities of these employers deserve 
closer scrutiny and more careful documentation, to ensure that cited 
hazardous conditions are appropriately abated and to prevent similar 
occurrences in the future. Before the effective date of this 
regulation, OSHA will issue a directive to the field specifying the 
conditions under which the Agency will exercise its discretionary 
authority to require abatement documentation for serious violations 
that are not classified as high-gravity.
    Paragraph (d)(2) of the final regulation specifies the types of 
documentary evidence needed to fulfill the abatement documentation 
requirements set forth in paragraph (d)(1). Examples of acceptable 
documentation may include invoices for the purchase of control 
equipment, bills from repair services, photographs or video evidence of 
the abated hazard, or other written records. Additional examples of 
documentary evidence are discussed below.
    In the preamble to the proposal, OSHA asked for comment on the 
type, sufficiency, and quality of abatement document-ation that should 
be required. One commenter, the United Steelworkers of America (Ex. 4-
72), stated that pre-and post-abatement photographs, in addition to 
other forms of abatement documentation, should be provided by employers 
to assist the Agency in evaluating abatement. Other commenters (Exs. 4-
26, 4-47, and 4-53) recommended that the text of the final rule include 
examples of the types of abatement documentation that would be 
acceptable.
    In response to these comments, OSHA has included some examples of 
appropriate abatement documentation in the final regulatory text and 
has expanded this section of the preamble to provide additional detail. 
Examples of acceptable documentation could include: photographs of the 
abated condition (e.g., a machine's point of operation guard in place); 
an invoice or sales receipt from a manufacturer or supplier of the 
equipment used to achieve abatement; reports or evaluations by safety 
and health professionals describing the actions taken to abate the 
hazard or a report of results of analytical testing; documentation from 
the manufacturer that the article repaired is within the manufacturer's 
specifications; a copy of a signed contract for goods and services 
(e.g., for needed protective equipment, an evaluation by a safety 
engineer, etc.); records of training completed by employees (if the 
citation is related to inadequate employee training); a photograph or 
videotape of the abated condition that identifies the citation number 
and item number; or a copy of program documents (if the citation 
relates to a missing or inadequate program, such as a deficiency in the 
employer's respirator program or hazard communication program).
    As these examples demonstrate, abatement documentation must be 
objective and describe or portray the abated condition adequately. 
However, the final regulation does not mandate a particular type of 
documentary evidence for any specific cited condition; this 
determination remains the responsibility of the employer, who OSHA 
believes is in the best position to make this judgment. The 
acceptability of the abatement documentation will be assessed by OSHA, 
either during abatement negotiations with the employer or after receipt 
of the abatement documentation as part of the employer's abatement 
certification submission. For example, although photographs are listed 
in the final regulation as an example of abatement documentation, OSHA 
will not require that photographs, including photographs of pre-and 
post-abatement conditions, always be used to satisfy this requirement. 
Whether photographs are appropriate, and the best kinds of photographs, 
is best determined through discussions between the employer and OSHA, 
using the information available in the citation and the Agency's 
knowledge of the employer's workplace and history.
    In summary, OSHA finds that the abatement verification procedures 
being put in place by this final regulation have several components 
that will interact to ensure employees a high level of protection from 
exposure to cited hazards while simultaneously minimizing the amount of 
paperwork and resources employers (and OSHA) will be required to 
expend. These components include a tiered system of abatement 
verification that requires increasing levels of documentation as the 
seriousness of the violation increases; meaningful employee involvement 
in all aspects of the abatement process, which will increase the 
reliability of employer reporting and provide employees with the 
information they need to protect themselves and their co-workers from 
exposure to cited hazards; and a simplified and standardized reporting 
process that allows employers to use various means of submitting 
abatement information to OSHA.

Paragraph (e). Abatement Plans

    Paragraph (e)(1) of the final regulation specifies that OSHA may 
require employers to submit abatement plans for abatements having dates 
of 90 days or greater (except for other-than-serious violations). OSHA 
may require such plans for each cited violation falling in this 
category and must indicate in the citation which citation items require 
such plans. These provisions have been changed somewhat since the 
proposal. For example, the proposed rule would have permitted OSHA to 
require in the citation that an employer submit a formal plan for the 
abatement of any safety and health violation for which ``multiple-
step'' or ``long-term'' abatement was necessary. In the final 
regulation, the abatement plan requirement applies only to the more 
serious violations (serious, willful, or repeat violations), and then 
only to those abatements that have been assigned dates of 90 days or 
more.
    Paragraph (e)(2) stipulates that employers must submit any 
abatement

[[Page 15329]]

plan required by OSHA within 25 calendar days of the final order date. 
Abatement plans must identify the violations and the steps the employer 
is taking to abate the violation, a schedule for achieving abatement, 
and, where required by OSHA, the interim measures the employer is 
taking to protect employees from the hazard represented by the 
violation until abatement is complete. The requirement to provide 
interim protections if directed by OSHA to do so has been added to the 
final rule to be consistent with current Agency practice and to provide 
employees with appropriate protection in those situations warranting 
it.
    Several commenters (Exs. 4-28, 4-53, 4-68, 4-77, and 4-79) 
acknowledged OSHA's need for information on the employer's abatement 
program in complex and lengthy abatements but were concerned about the 
administrative burden and cost of formal plans. For example, the 
Chemical Manufacturers Association (Ex. 4-28) stated:

    OSHA accomplishes nothing by requiring detailed abatement plans. 
The only information OSHA needs in this situation is the actions the 
employer will take and the dates the actions will be completed. This 
provides OSHA with the ability to measure whether abatement is being 
achieved and by the date specified.

Another commenter, United Technologies (Ex. 4-53), interpreted the term 
``formal,'' as used in the proposed regulation, to mean ``detailed,'' 
and recommended that this ``formal/detailed'' requirement be deleted 
and replaced with a ``written plan outlining the schedule for the 
implementation of measures to achieve abatement.'' Noting that an 
abbreviated abatement plan would reduce the paperwork burden on 
employers, United Technologies stated that ``[t]he 2 hour preparation 
time in the Proposed Rule's economic modeling [to develop an abatement 
plan] may underestimate the amount of time necessary to prepare a 
detailed plan. * * *'' The American Society of Safety Engineers 
(ASSE)(Ex. 4-68) recommended that an abatement plan consist simply of 
``a written outline setting forth an implementation schedule for 
measures to achieve abatement.'' ASSE stated further that ``[t]he plan 
need not be `detailed' as long as a schedule exists against which 
abatement can be measured.''
    Several commenters (Exs. 4-8, 4-22, and 4-79) interpreted the 
proposed requirement for abatement plans as applying to all violations 
and indicated their concern with the scope of this requirement. Two 
commenters (Exs. 4-42 and 4-43) argued that this proposed requirement 
allowed OSHA too much discretion and would therefore result in 
inconsistent application of the abatement plan requirement.
    In response to these comments, OSHA has made two important 
revisions that are reflected in paragraph (e)(1) of the final 
regulation. First, the requirement now limits the applicability of this 
provision to abatements of more serious violations that require longer 
than 90 days to complete. In contrast, the proposed regulation limited 
abatement plans to multiple-step or long-term abatement situations but 
did not specify what ``long-term'' meant. In place of the proposed 
terms ``multi-step'' and ``long-term,'' the final regulation specifies 
that abatement plans are not required unless the abatement period is 
longer than 90 calendar days, and then only if required by OSHA.
    OSHA chose 90 days as the appropriate trigger for abatement plans 
because the Agency's analysis of recent inspection data demonstrated 
that more than 90 percent of abatements were completed within a 90-day 
period. After that period, the rate at which abatements were completed 
slowed significantly, indicating that the types of activities necessary 
for abatements taking longer than 90 calendar days differed 
substantially from those needed for abatements of shorter duration 
(i.e., abatements taking more than 90 calendar days appear to be 
extremely complex, and may require complicated funding arrangements as 
well as detailed design and fabrication efforts).
    Even for abatement periods that exceed 90 calendar days, the final 
regulation provides OSHA with the discretion to decide whether an 
abatement plan is or is not needed. The Agency believes that Area 
Directors are in the best position to determine whether such plans are 
needed because they are most familiar with the employer and the 
violations described in a citation. The flexibility granted by this 
requirement will substantially reduce the regulatory burden that would 
be imposed both on OSHA and employers by a blanket provision requiring 
plans for all lengthy abatements. At the same time, allowing OSHA 
discretion to require an abatement plan will ensure that employees are 
protected in those complex and lengthy abatements where additional 
information is necessary to ensure satisfactory abatement progress and, 
if deemed necessary by OSHA, interim employee protection.
    The requirement for abatement plans for complex abatements is 
consistent with the way OSHA has done business for several years. For 
example, these plans often are developed jointly by OSHA and the 
employer, either during an inspection or prior to the time the employer 
receives a citation; the resulting plans are then incorporated into the 
citation narrative. Thus, the 90-day requirement will not in any way 
affect the current negotiation process that occurs between employers 
and OSHA with regard to abatement plans. This final regulation only 
specifies the conditions under which abatement plans may be required by 
OSHA.
    The second important revision made to paragraph (e)(1) since the 
proposal is the elimination of other-than-serious violations from the 
requirement for abatement plans. OSHA's analysis of recent inspection 
data showed that only a few other-than-serious violations required more 
than 90 calendar days to abate. In view of the small number of other-
than-serious violations that would be subject to this 90-day 
requirement and to be consistent with the ``new OSHA'' philosophy of 
focusing on the more serious hazards, the final regulation applies the 
abatement plan requirements only to violations classified as serious or 
above. (See the discussion under ``Abatement certification'' in this 
preamble.)
    Paragraph (e)(1) also explicitly states that OSHA is responsible 
for identifying and communicating to the employer which citation items 
need abatement plans. This provision has been revised only minimally 
from the parallel requirement in the proposal. Appendix B, which is 
non-mandatory, is a sample abatement plan that employers may use to 
report their abatement plans to OSHA. This form also allows several 
citation items to be combined into a single abatement plan. Employers 
are free to use any other form to report their abatement progress, 
providing that the form used contains the same information as that 
shown in Appendix B.
    Final rule paragraph (e)(2) retains the proposed requirement that 
any required abatement plan be submitted to OSHA within 25 calendar 
days after the date of the final order. Several commenters (Exs. 4-10, 
4-42, and 4-67) stated that the 25-day period was too brief for 
employers to devise, compile, and obtain managerial approval of 
abatement plans, especially if they have many violations to correct. On 
the other hand, one commenter (Ex. 4-72) found the 25-day submission 
period to be excessive and recommended a 10-day submission period 
instead.
    OSHA believes that a 10-day submission period would not allow 
sufficient time for employers to

[[Page 15330]]

investigate abatement methods, develop abatement plan(s), and transmit 
them (often through corporate channels) to OSHA. However, OSHA believes 
that the abbreviated format specified for abatement plans in the final 
regulation makes the 25-day submission period reasonable.
    In the proposal, abatement plans were required to be signed and 
dated by the employer. However, in the final regulation, OSHA has 
decided to allow abatement plans to be signed by the employer or the 
employer's representative and not to require that abatement plans be 
dated. These revisions make the signature and dating requirements for 
abatement plans consistent with those for all of the abatement 
documents required by this regulation (see paragraph (h)).

Paragraph (f). Progress Reports

    Paragraph (f) of the final regulation states that employers are 
required to submit periodic progress reports, in addition to abatement 
plans, for those more serious hazards requiring long-term abatement 
(i.e., greater than 90 days) and that OSHA has identified as requiring 
such a report in the citation. The corresponding provision of the 
proposal would have allowed OSHA to require progress reports for all 
``multi-step'' abatements. This term has been defined in the final 
regulation to mean abatements requiring 90 calendar days or more to 
abate. Progress reports are required only for certain abatement plans, 
and paragraph (f)(1) has been revised to be consistent with paragraph 
(e)(1), which addresses those plans.
    Paragraph (f)(1) of the final regulation indicates that OSHA must 
specify in the citation each of the citation items for which a progress 
report is required and the dates for submission of the initial progress 
report, which may not be sooner than 30 calendar days after the 
submission of an abatement plan. These requirements are unchanged from 
the proposal except that the requirement for OSHA to specify which 
abatement measures are to be reported has been removed from the final 
regulation as unnecessary.
    Final rule paragraph (f)(2) requires employers who submit progress 
reports to include in such reports a brief description (generally only 
a single-sentence summary) of the action being taken to abate each 
cited violation and the date the abatement activity was conducted.
    One commenter (Ex. 4-3) stated that OSHA should not require 
progress reports if an employer abates a cited violation in fewer than 
30 calendar days after the date of the final order or the date of the 
PMA final order. This interpretation reflects confusion over the 
meaning of the requirement for progress reports, and OSHA has responded 
by clarifying paragraph (f)(1) of the final regulation. The submission 
date for the first progress report is clearly specified in paragraph 
(f)(1) in the final regulation as a minimum of 30 or more calendar days 
after the date on which an abatement plan was submitted to OSHA. If a 
violation requiring a progress report (or an abatement plan) is abated 
prior to the submission date, the employer would be required only to 
submit the abatement certification and abatement documentation 
information required by the final regulation.
    Citation items may be combined within a single progress report if 
the citation items being combined have the same abatement actions, 
proposed completion dates, and actual completion dates, as permitted by 
the sample progress report form provided in Appendix B to the final 
regulation. This form, which is non-mandatory, can be used either for 
individual citation items or for multiple citation items meeting the 
limitations of the form.
    Like all abatement documents (see paragraph (h) of this section), 
progress reports must be signed by the employer or his/her authorized 
representative and include the company name and address, the OSHA 
inspection number, the citation and citation item numbers, and a 
statement that the information provided is accurate. The citation and 
item numbers are needed by OSHA to efficiently collate progress reports 
with other abatement information sent to OSHA by the employer.

Paragraph (g). Employee Notification

    In the proposal, this paragraph was titled ``Posting 
requirements.'' In the final regulation, it has been designated 
paragraph (g), ``Employee notification,'' to clarify its purpose, which 
is to strengthen the abatement verification process by involving 
employees in all stages of that process. Paragraph (g)(1) requires 
employers to provide those employees affected by the cited hazardous 
condition, and their representatives, with information about abatement 
activities by posting a copy or summary of each document submitted to 
OSHA near the place where the violation occurred.
    Paragraph (g)(2) specifically recognizes that posting abatement 
documents or summaries of these documents may not always be an 
effective way to inform affected employees and their representatives of 
the employer's abatement activities due to the characteristics of the 
workplace or the nature of particular jobs. For example, it may be 
difficult for an employer whose employees work out of their trucks or 
do not routinely assemble at a central location to communicate the 
necessary abatement information to these employees by posting. OSHA 
believes that employers who employ such mobile workers, e.g., 
arborists, telephone repair personnel, landscape company personnel, 
salespeople, are in the best position to determine how most effectively 
to communicate with these employees and their representatives about 
those abatement activities that affect them. For example, such 
employers may choose to convey this information in the employee's pay 
envelope, inside the lid of the work crew's tool box, or in a visible 
location inside the compartment that contains the cited equipment. 
Other possible ways of providing employees and their representatives 
with the required information include discussing the abatement 
documents with these individuals at a training or tool box session or 
publishing the information in an employee newsletter or other general 
communication medium that reaches affected employees and their 
representatives.
    Affected employees and their representatives also may request 
copies of all abatement documents for examination and copying. 
Employers are required by paragraph (g)(3) to inform such employees of 
this right.
    Paragraph (g)(3)(i) indicates that employees and employee 
representatives must submit requests to examine and copy abatement 
documents to the employer within three working days of the time they 
are notified by the employer that such documents have been submitted to 
OSHA. The time period permitted for requesting abatement documents is 
consistent with the citation posting period required in 29 CFR 1903.16. 
OSHA believes that, since affected employees and their representatives 
are aware of the cited condition because it directly affects them, 3 
working days will provide sufficient time for such employees to request 
abatement documents.
    Paragraph (g)(3)(ii) requires employers to respond to such requests 
for abatement materials within 5 working days of the receipt of such 
requests. One commenter (Ex. 4-39) recommended that the regulation be 
revised to specify the period during which employers must make 
abatement documents available for examination and copying by employees 
and their representatives, and the final rule is responsive to this 
comment. The posting requirement of

[[Page 15331]]

paragraph (g)(1) is also responsive to comments (Exs. 4-19 and 4-21) 
stating that the proposed requirement, which would have required 
documents to remain posted until the violation was corrected or for 6 
days, whichever was later, was too burdensome. As these commenters 
noted, during extended abatement periods, the documents are likely to 
deteriorate or to be removed. This would place employers in violation 
of this paragraph of the final regulation, which requires them to 
ensure that posted documents will not be altered, defaced, or 
obstructed.
    Paragraph (g)(4) requires employers to ensure that notice of the 
availability of abatement documents is provided to employees and their 
representatives at the same time or before the required abatement 
information is transmitted to OSHA; that the posted documents are not 
defaced, covered, or altered so as to be illegible; and that the 
documents remain posted for three working days after being submitted to 
OSHA.
    This paragraph of the final rule has been revised in response to 
comments received on the parallel provisions of the proposal. These 
changes include revising the language of this requirement to conform as 
closely as possible with OSHA's existing posting requirements, which 
are codified at 29 CFR 1903.16, to respond to a comment (Ex. 4-33) 
about the need to ensure consistency between the requirements of 
paragraph (g) and those of 29 CFR 1903.16.
    OSHA received one comment on the mobile work operation issue 
addressed by paragraph (g)(2) of the final regulation. The National 
Arborist Association (Ex. 4-8) asked OSHA to include examples of 
alternative posting locations that would satisfy the posting 
requirement for employers with highly mobile work operations. As the 
discussion above indicates, OSHA intends to provide employers with a 
mobile work force with the flexibility to use a wide range of methods 
to inform employees about abatement activities. Whatever method is 
chosen, however, must be effective in communicating the required 
information to employees and their representatives.
    One proposed requirement has not been carried forward in the final 
regulation. Paragraph (i)(2) of the proposal would have permitted 
employers to post a notice describing the location at which abatement 
plans and progress reports could be reviewed if posting these documents 
was made impractical by their size or magnitude. OSHA believes that 
this requirement is unnecessary, because the proposed provision would 
only have referred employees to the location of the required 
information instead of providing them with the information directly. 
Additionally, the abatement certification, abatement plan, and progress 
report provisions of the final regulation have substantially reduced 
the size and magnitude of these documents, which will make employee 
notification easier.
    OSHA received two comments (Exs. 4-49 and 4-50) urging the Agency 
to require employers to distribute abatement documents directly to 
employee representatives as a means of enhancing the completeness and 
accuracy of these documents. OSHA is concerned that the voluminous 
nature of some abatement documentation, e.g., documentary proof of 
abatement, would make such a requirement unnecessarily burdensome for 
employers. The approach adopted in the final rule affords the same 
access, examination, and copying rights to employee representatives as 
to the affected employees themselves. OSHA believes that requiring 
employers to post copies of all abatement documents in a readily 
accessible place, coupled with the final rule's requirement that 
employers provide employees and their representatives with notice of 
their right to examine and copy all abatement-related documents, will 
provide both employees and their representatives with the information 
they need to keep them fully informed of the employer's abatement 
activities, as requested by these commenters.
    The proposal specifically identified the Assistant Secretary as a 
person authorized to examine and copy abatement documents. However, 
this provision does not appear in the final regulation because, under 
Section 8 of the OSH Act, the Assistant Secretary already has the 
authority to review these materials.

Paragraph (h). Transmitting Abatement Documents

    Paragraph (g) in the proposal, which specified requirements for 
transmitting abatement information to OSHA, has been moved to paragraph 
(h) in the final regulation. This paragraph contains requirements that 
employers include the following information in all abatement materials 
submitted to OSHA: The employer's name and address; the inspection 
number; the citation number and citation item number(s); a statement to 
the effect that the information provided by the employer is accurate; 
and the employer's signature or that of his/her authorized 
representative. These requirements apply to abatement certification 
letters, abatement documentation, abatement plans, and progress 
reports, i.e., to all of the abatement verification materials addressed 
by this regulation. Paragraph (h)(2) specifies that the date of 
postmark is the date of submission for mailed abatement verification 
documents. OSHA expects that other means of transmission, such as 
facsimile transmission, will also be used, if approved by the Area 
Director in a given case. One commenter (Ex. 4-84) urged OSHA to 
specifically identify electronic transmission as an approved method in 
the regulatory text. However, although many methods of transmission are 
routinely used to provide the Agency with abatement materials, e.g., 
overnight courier, hand delivery, OSHA does not believe it necessary to 
specifically list these methods in the regulatory text.
    The proposed rule contained a note to the effect that Agency 
receipt of documents should not be interpreted as compliance with the 
regulation's transmittal requirements. Two commenters (Exs. 4-10 and 4-
69) stated that this note was unnecessary because it merely reminded 
employers to retain proof that they had submitted abatement 
certifications and/or documentation, especially in the case of 
facsimile transmissions. According to these commenters, this is already 
industry practice. OSHA agrees that the provisions of the final 
regulation are adequate to notify employers that they are responsible 
for ensuring that OSHA has received the required abatement information. 
This note therefore does not appear in the final regulation.
    The proposal contained a paragraph entitled Accuracy of 
documentation. In the final regulation, OSHA has eliminated this 
paragraph and simply requires that employers attest to the accuracy of 
any abatement-related information they submit to OSHA at the time of 
transmittal. Accurate information is essential to the working of the 
streamlined abatement process OSHA is putting into place with this 
final regulation. Based on the Agency's past experience, OSHA believes 
that the overwhelming majority of employers recognize the importance of 
accurate abatement information, and that the incentives provided under 
this final regulation (streamlined process, availability of easy-to-use 
abatement forms, employee involvement) will encourage full compliance 
with the regulation's provisions.
    Paragraph (h)(1) of the final regulation requires employers to 
provide some information that was not specified in the proposal. This 
information includes the inspection, citation, and citation item 
numbers. OSHA currently assigns

[[Page 15332]]

each violation a citation and item number that serves as a unique 
identifier for that inspection. This additional information will 
benefit both the Agency and employers because it will enable OSHA to 
distinguish readily between abated and unabated violations, enhance 
OSHA's ability to retrieve and review abatement materials, and expedite 
approval of abatement activities. This information will also allow OSHA 
to determine the appropriateness and completeness of the materials 
submitted by employers and to identify those needing additional 
attention.
    In the proposal, abatement certificates were required to be signed 
by the employer or the employer's duly authorized representative. In 
the preamble to the proposal, OSHA asked for comments on the 
appropriate level of management needed to serve as an employer's duly 
authorized representative in abatement matters. Commenters responding 
to this question had a wide range of opinions on this issue. Some 
argued that employers should have complete discretion in this matter 
(e.g., ``OSHA should leave to each employer's discretion the decision 
regarding what is the appropriate level of personnel authorized to bind 
the company by signing the abatement certification'' (Ex. 4-83)), while 
others recommended that specific personnel be designated for this 
function (e.g., a corporate officer (Ex. 4-28) or the owner or general 
manager (Ex. 4-48)). Many commenters recommended that signatory 
authority be limited to managers who have knowledge of the employer's 
abatement activities and the authority to commit the employer's 
resources to these activities (Exs. 4-6, 4-7, 4-23, 4-33, 4-34, 4-54, 
4-55, 4-56, 4-64, and 4-77). Two commenters supported the language of 
the proposed requirement, which allowed employers flexibility in 
designating their representatives (Exs. 4-47 and 4-67).
    The Agency has decided that it would be inappropriate to identify 
particular management positions or job titles in this requirement 
because positions and titles vary widely among organizations. 
Accordingly, the final regulation has made only minor revisions to the 
proposed language. For example, the word ``duly'' has been removed from 
the phrase ``authorized representative'' to remove any suggestion that 
a formal process of designating an authorized representative is 
required. The language of this provision in the final regulation thus 
allows employers additional discretion and flexibility in assigning 
signatory authority for the purpose of abatement certification, which 
will further expedite the process.

Paragraph (i). Movable Equipment

    Paragraph (i) of the final regulation requires employers to alert 
employees to the presence of cited movable equipment on the worksite 
either by tagging the equipment's operating controls or the equipment's 
hazardous components, or affixing a copy of the citation itself to the 
controls or hazardous components of the cited equipment. In the 
proposal, this paragraph was designated as paragraph (f), ``Tagging 
cited equipment.'' This title has been revised in the final regulation 
to better indicate that this paragraph applies only to movable 
equipment, as defined in paragraph (b) of this regulation.
    OSHA has included this requirement in the final regulation at least 
partly in response to the GAO's findings (discussed further in the 
Background section of this preamble) that, in the past, employers may 
have been able to circumvent abatement by removing hazardous equipment 
from the site after it had been cited and then subsequently returning 
this equipment--without repair--to the site or moving it to another 
site. Two commenters (Exs. 4-9 and 4-57) stated that the tagging 
requirements specified in the proposal were unnecessary because these 
requirements duplicated the provisions of 29 CFR 1910.147 (i.e., OSHA's 
``lockout-tagout'' standard). OSHA believes that these commenters have 
misconstrued the intent of 29 CFR 1910.147's lockout/tagout 
requirements. The tags of the lockout/tagout standard are intended to 
alert employees that measures have been taken to control hazardous 
energy before service or maintenance is performed on the equipment. In 
contrast, the warning tags required by this regulation are intended to 
provide warning to employees that a piece of equipment needs to be 
repaired and poses a serious risk to employees, and to provide such 
warning even in cases where that equipment is moved to another 
location, either on or off the worksite where it was first cited.
    The preamble of the proposal asked for comment on the proposed 
tagging provision. These comments, and OSHA's responses to them, are 
discussed below. The proposal would have required employers to affix a 
warning tag to cited equipment on receipt of the citation. OSHA 
received a number of comments regarding this paragraph. One commenter, 
the American Feed Industry Association (Ex. 4-19), was concerned about 
the proposed requirement's lack of specificity. This commenter stated:

    The use of warning tags would be inconsistent and confusing. For 
example, a violation could be cited for not having wheel chocks in 
place under a parked semi trailer at a loading dock. What should be 
tagged, the chocks or the trailer? Would the employer keep the 
chocks tagged until another trailer was parked at the dock? Would an 
employee not use the chocks on that trailer assuming the chocks 
themselves may be defective?

    Another commenter, the Synthetic Organic Chemical Manufacturers 
Association, Inc. (Ex. 4-22), argued that the proposed provision was 
duplicative of OSHA's existing citation posting requirement:

    [T]his requirement is superfluous and a paperwork burden. In 
most cases posting of the citation would alert affected employees 
that a hazard exists. An additional punitive piece of paper, such as 
tagging, would not increase employee safety, it would only add to 
the requirements for abatement.

    Two other commenters (Exs. 4-25 and 4-72) expressed support for the 
provision. The Food & Allied Service Trades (Ex. 4-25) commented, ``To 
strengthen the intent of this provision, we believe the cited equipment 
should be incapacitated until the hazard has been abated.'' The United 
Steelworkers of America (Ex. 4-72) strongly endorsed the tagging 
provision, noting that:

    This [requirement] will help to ensure that workers are fully 
informed as to [the] hazard[s] they may be exposed to. The posting 
requirements related to posting the citations at or near where the 
violations exist have been diluted over the years. It is the 
exception rather than the rule when citations are posted at or near 
the violation. Posting these types [of] tags on cited equipment will 
finally achieve what the drafters of the OSH Act intended, namely to 
advise workers of unsafe conditions in their work area. (Emphasis in 
original.)

    One commenter, the National Arborist Association (Ex. 4-8), argued 
that tagging a single piece of equipment that allegedly violates an 
OSHA safety standard would send a very negative message to users of 
similar equipment in a firm even if the similar equipment is not cited 
and is indeed safe to operate. However, OSHA believes that the 
information presented on the tag (e.g., hazard cited) is sufficient to 
identify why a given piece of equipment has been cited and to keep 
employees from generalizing to other equipment.
    In response to these comments, the Agency has made three major 
revisions to the proposed posting requirements to reduce the regulatory 
burden associated with compliance, while preserving the protection 
afforded to employees by these provisions. The first major

[[Page 15333]]

revision made to this paragraph in the final regulation is to state 
more specifically when the tagging actions by the employer are to occur 
and to limit the requirement for immediate tagging to hand-held 
equipment only. A tag must be affixed to other (i.e., non-hand-held) 
cited movable equipment only if the equipment is actually moved within 
the worksite at which the equipment was cited, or is moved from that 
worksite to another worksite before the cited hazards are abated.
    Employers must ensure, in accordance with paragraph (i)(5), that 
the tag or copy of the citation is not covered by other material and is 
not altered or defaced so as to be illegible. Paragraph (i)(6) 
indicates when the warning tag or copy of the citation may be removed; 
the conditions under which removal may occur include: when abatement 
has taken place and any abatement documents required by this regulation 
have been submitted to OSHA, when the cited equipment has been removed 
permanently from the worksite or is no longer in the employer's 
control, or when the Commission has vacated the citation.
    The second of these revisions is to except other-than-serious 
violations from the tagging requirements of the final regulation. As 
noted above in the discussion of paragraph (c), Abatement 
certification, violations are characterized as other-than-serious if 
they do not expose employees to the risk of life-threatening or 
permanently injurious conditions. Other-than-serious violations also 
usually require only simple, straightforward corrections that can be 
accomplished on-site or during short abatement periods. Limiting the 
applicability of the tagging provision to serious, willful, and repeat 
violations, and to violative conditions for which the employer has 
received a failure-to-abate notice, is consistent both with paragraph 
(c) of the final regulation, which requires abatement documentation 
only for this group of more serious violations, and with OSHA's 
emphasis on the most serious hazards.
    OSHA believes that hand-held equipment that has been cited must be 
tagged promptly because this equipment is easily moved within and 
between worksites and is frequently used by employees who may not have 
notice of the cited hazard. In addition, the record did not indicate 
that there was another reliable and practical method that would meet 
the employee notification requirement of this provision under these 
workplace conditions.
    Other equipment (i.e., equipment that is not hand-held) is less 
readily moved than hand-held equipment and thus is more likely than 
hand-held equipment to remain at the location described and/or 
documented in the citation. OSHA believes that, under these conditions 
(i.e., as long as the cited equipment remains at the location described 
and/or documented in the citation), the posting requirements of 29 CFR 
1903.16 will provide employees with adequate notification of the cited 
hazard. If this equipment is moved within or between worksites, 
however, employees who have not seen the posted citation in the old 
location could unknowingly be exposed to the cited hazard in the new 
location. Affixing a warning tag to the operating controls or the 
hazardous component(s) of this equipment will ensure that such 
employees in the new location are properly notified of the violation. 
Paragraph (i)(3)(ii) of the final regulation requires employers to 
affix a warning tag to this equipment before it is moved.
    OSHA will be providing non-mandatory warning tags for employers to 
use to meet the requirements of this paragraph. The Agency believes 
that doing so will encourage compliance with the tagging requirement 
and reduce the regulatory burden of this requirement on employers. A 
note to paragraph (i)(2) of the final regulation specifies that 
employers may use tags supplied by OSHA for this purpose (see Appendix 
C). This provision also permits employers to use their own tags to meet 
this requirement, provided that these tags conform to the design and 
information specifications of the sample tag displayed in Appendix C; 
this provision ensures employees that employer-designed tags will 
protect them at least as effectively as the warning tags supplied by 
OSHA.
    The last major revision to proposed paragraph (i) permits employers 
the choice of either posting a copy of the citation or affixing a 
warning tag directly on the operating controls or the hazardous 
component of the cited equipment. This change will allow employers 
additional flexibility and will also satisfy the requirements of 29 CFR 
1903.16, OSHA's existing posting requirement. The proposal would have 
required employers both to affix a warning tag to the operating 
controls or the hazardous component of the cited equipment and to post 
a copy of the citation ``at or near each place an alleged violation 
referred to in the citation occurred,'' as required by 29 CFR 1903.16. 
There are situations, however, where affixing a copy of the citation to 
hand-held equipment may be difficult or impractical, and in such cases 
tagging is the only feasible method of providing employees with notice 
of the violation.
    OSHA received one comment indicating concern about the 
applicability of the tagging requirements to the construction industry. 
This commenter (Ex. 4-38) stated that ``[t]he construction industry 
should not be forced to comply with 29 CFR 1910.145(f)(4) which is not 
applicable to the construction industry.'' The concerns of this 
commenter are addressed in paragraph (i)(4) of the final regulation, 
which states that employers in the construction industry who comply 
with the design and use requirements for tags specified in paragraphs 
29 CFR 1926.20(b)(3) and 29 CFR 1926.200(h) of the construction 
industry standards will be deemed to be in compliance with paragraph 
(i) of this section if the tag used contains the information required 
by paragraph (i)(2) of the final regulation. OSHA believes that the 
addition of paragraph (i)(4) to the final regulation will improve 
compliance with the requirement among employers in the construction 
industry because they have extensive experience and familiarity with 
the design and use requirements for tags that were developed for their 
industry.
    Paragraph (i)(2) of the final regulation requires tags that are 
used to comply with the abatement verification regulation's tagging 
requirements to warn employees about the nature of the violation and 
identify where the citation has been posted for affected employees to 
review.
    OSHA received several comments on this provision of the proposal. 
These commenters (Exs. 4-12, 4-13, 4-14, 4-15, and 4-16) stated that 
including any information on the warning tag was too burdensome, would 
endanger employees who read the tag by bringing them within the ambit 
of the cited hazard, or would discourage employees from operating cited 
equipment that could be used safely under specific conditions. For 
example, one commenter (Ex. 4-12) made the following observation:

    If OSHA develops a tag (i.e., a ``red'' danger tag) that 
complies with 29 CFR Sec. 1910.145, which employees understand to 
mean that equipment to which it was attached is the subject of a 
violation, the tag need only be recognized for that purpose. The tag 
should not contain any information, it should merely be identifiable 
by employees, who can then read the citation on the bulletin board, 
where citations are generally posted. If employees have to read a 
tag, which may be attached to moving equipment or equipment being 
used, employees could be endangered.

    However, OSHA does not share this view, because for employees to 
have the

[[Page 15334]]

information they need to protect themselves and their co-workers from 
cited equipment hazards, the warning tag must identify the specific 
equipment cited, state that a citation has been issued by OSHA, and 
specify where the citation is posted for employee review. This minimal 
amount of information will alert employees to the hazard and allow them 
to confirm which equipment (or component) has been cited. Identifying 
the location of the posted citation will permit employees to find and 
review the citation for more specific and detailed information about 
the violation. The Agency does believe, however, that a brief 
description of the violation is all that is needed on the tag (e.g., 
``no guard for blade'').
    The proposed rule contained a paragraph stating that employers who 
fail to comply with the requirements of this abatement verification 
regulation will be subject to citation and penalties under the OSH Act. 
This provision has not been included in the final regulation, in 
response to comments on this issue (Exs. 4-6, 4-25, 4-29, 4-33, 4-63). 
For example, the American Forest & Paper Association (Ex. 4-29) 
recommended that this paragraph not be included in the final regulation 
because this information was communicated adequately in the preamble. 
Another commenter (Ex. 4-33) stated that this paragraph should not be 
included in the final regulation because the regulated community 
already understands that OSHA has statutory authority to impose 
penalties on employers who violate OSHA standards and regulations and 
thus that describing this authority was unnecessary. OSHA agrees with 
these commenters, and this provision is not included in the final 
regulation.
    As previously described, OSHA has included in the final regulation 
three non-mandatory appendices (A, B, and C) to assist employers in 
complying with this regulation. These appendices were the direct result 
of numerous favorable comments received to a question raised in the 
proposal asking whether or not OSHA should develop sample abatement 
certification forms. By supplying employers with samples of most of the 
documents this regulation requires, OSHA is reducing burdens on 
employers, facilitating compliance, and, in turn, enhancing employee 
protection.

III. References

    Government Accounting Office (1991). OSHA Policy Changes Needed to 
Confirm That Employers Abate Serious Hazards. GAO/HRD-91-35, Report to 
Congressional Requesters, May 1991.
    OSHA Instruction CPL 2.45B, June 15, 1989, and associated revisions 
(CH-1 through CH-5 dated March 3, 1995), Field Operations Manual (FOM).
    OSHA Instruction CPL 2.103, September 26, 1994, Field Inspection 
Reference Manual (FIRM).

IV. Pertinent Legal Authority

    This final regulation is authorized by Sections 8(c)(1), 8(g)(2), 
and 9(b) of the Occupational Safety and Health Act of 1970 (the Act), 
29 U.S.C. 657 and 658. Under Section 8(c)(1) ``[e]ach employer shall 
make, keep and preserve, and make available to the Secretary or the 
Secretary of Health [and Human Services] * * *, such records regarding 
his activities relating to this Act as the Secretary, in cooperation 
with the Secretary of Health [and Human Services] * * *, may prescribe 
by regulation as necessary or appropriate for the enforcement of this 
Act or for developing information regarding the causes and prevention 
of occupational accidents and illnesses.'' Additionally, pursuant to 
Section 8(c)(1), the Secretary has authority to issue regulations 
requiring employers to keep their employees informed of the employers' 
responsibilities under the Act. Section 8(g)(2) empowers the Secretary 
of Labor to ``prescribe such rules and regulations as he may deem 
necessary to carry out [his] responsibilities under this Act.'' Section 
9(b) authorizes the Secretary to promulgate regulations associated with 
the posting of citations.
    The Agency's responsibilities under the Act are defined largely by 
the enumerated purposes, including: Providing for appropriate reporting 
procedures that will help achieve the objectives of this Act and 
accurately describe the nature of the occupational safety and health 
problem (29 U.S.C. 651(b)(12)); developing innovative methods, 
techniques, and approaches for dealing with occupational safety and 
health problems (29 U.S.C. 651(b)(5)); and providing an effective 
enforcement program (29 U.S.C. 651(b)(10)).
    For the reasons set forth in the preamble, the Assistant Secretary 
asserts that this final regulation is necessary and appropriate to 
conduct enforcement responsibilities under the Act, to develop 
information about the prevention of occupational accidents and 
illnesses, and to inform employees of their protections and obligations 
under the Act.

V. Paperwork Reduction Act of 1995

    The final rule does not contain a collection of information within 
the meaning of the Paperwork Reduction Act (``PRA''). The PRA applies 
to collections of information that establish ``identical'' 
recordkeeping or reporting requirements applicable to ten or more 
persons. The Act exempts information obtained ``during the conduct of * 
* * an administrative action or investigation involving an agency 
against specific individuals or entities * * *'' 44 U.S.C. 
3518(c)(1)(B)(ii). In addition, ``information'' does not include simple 
certifications.
    The final rule addresses OSHA's investigation procedures for 
assuring abatement in specific cases, i.e., those where a case file is 
open for the conduct of an inspection of safety and health conditions 
in the particular employer's workplace and where specific violations 
are found. The purpose of an OSHA inspection or administrative action 
is to protect employees by achieving abatement of the hazards 
identified at the workplace. This purpose is not fulfilled, and the 
case file is not closed, until OSHA is satisfied that abatement has in 
fact occurred. The hazards cited and the abatement measures undertaken 
are specific to the equipment, workplace configuration, and other 
characteristics of a given workplace and the work operations conducted 
at that site.
    OSHA has tailored the requirements of the final rule to the 
seriousness of the particular cited hazard, the time that will be 
needed for abatement, and the response the employer has taken toward 
abating the hazard. If the employer abates the hazard during inspection 
or within 24 hours thereafter, no abatement certification is required. 
Further, if the cited condition involves an other-than-serious 
violation or where the circumstances otherwise make it appropriate, 
only a certification of abatement is required. Only in individual cases 
where more serious hazards are encountered (e.g., violative conditions 
resulting in a willful or repeat citation or in a serious citation 
which the Agency specifically identifies as requiring additional 
evidence) does the final rule require a cited employer to submit 
additional proof of abatement. The documentation submitted will vary 
with the individual circumstances of the case.
    The determination that this final rule is not within the coverage 
of the Paperwork Reduction Act has been made by OSHA after careful 
review of the Act, its legislative history, the implementing 
regulations (5 CFR Part 1320), and OMB's 1989 ``Information Collection 
Handbook.'' This determination is consistent with OSHA's traditional 
practice. As discussed above, OSHA's field offices have traditionally 
collected from employers evidence that cited violations have been 
abated, and these

[[Page 15335]]

submissions have not been treated as subject to the Paperwork Reduction 
Act. OSHA notes, however, that at the time the proposed rule was 
published in 1994, the Agency submitted a request for clearance of the 
rule under the PRA to OMB and invited public comment on the request. 
OSHA has now determined that the final rule does not contain a 
collection of information within the meaning and scope of the Paperwork 
Reduction Act of 1995.

VI. Summary of the Economic Analysis of the Final Abatement 
Verification Rule

    Under Executive Order (EO) 12866, OSHA is required to conduct an 
economic analysis of the costs, benefits, and economic impacts of major 
rules promulgated by the Agency. There are several criteria for 
determining which rules are major, as defined by the EO. The final 
abatement verification rule does not meet any of the criteria for a 
major rule. However, to provide employers, employees, and other 
interested parties with information on the data and reasoning relied on 
by the Agency, OSHA has analyzed the economic impacts of this rule. The 
complete Final Economic Analysis is available in the docket for this 
rulemaking [Docket C-03].
    The final abatement verification regulation requires employers who 
have been cited for violations of the Occupational Safety and Health 
Act to certify that they have abated the hazardous condition for which 
they were cited, to document the methods they have used to abate the 
hazard, and to notify those employees who were exposed to the hazard of 
the abatement actions they have taken. In most cases, employers will be 
able to certify abatement using a simple one-page form letter supplied 
by OSHA. In cases involving more serious violations, additional 
abatement documentation is required.
    OSHA has required employers to provide evidence of abatement for 
cited hazardous conditions for more than 20 years, following the 
procedures for abatement verification set forth in the Field Operations 
Manual and its successor publication, the Field Inspection Reference 
Manual. When employers did not provide the requested information, or 
provided insufficient information, the Agency wrote or phoned employers 
to prompt them to supply the requested information. If necessary, the 
Agency contacted employers repeatedly or made follow-up inspections to 
ensure that the cited violations had been abated. These dunning efforts 
are unnecessarily resource-intensive for both the Agency and cited 
employers. Employers who have in the past ignored Federal and State-
plan agency requests for verification that abatement has taken place 
will now be required to provide these materials or risk being cited by 
OSHA.
    The final regulation reduces the burden on cited employers by 
generally requiring less abatement information than before and by 
providing simple forms to assist employers to comply. (Employers may 
also use forms of their own design that contain the same information.)
    Several significant revisions made to the regulation since the 
proposal have reduced the costs employers will incur to comply. For 
example, under the final regulation:
     Violations that are immediately abated require no 
abatement certification.
     For other-than-serious violations, and for most serious 
violations, only a simple abatement letter is required to verify 
abatement (a sample format for this letter is provided by OSHA). 
Overall, OSHA estimates that 90 percent of all violations will require 
only a simple letter certifying that abatement has occurred.
     Employers are required to provide additional documentation 
(proof) of abatement only for the more serious violations. The Agency 
estimates that no more than sixteen percent of all serious violations 
will require such additional documentation.
     Abatement plans, when required, will generally be simple, 
one-page documents (see Appendix B).
     Progress reports, when required, have been simplified to 
require only a single-sentence description of the interim actions 
taken. OSHA is also providing a sample form for abatement plans and 
progress reports.
     For employers who have movable equipment that has been 
cited as a serious hazard by OSHA, the final regulation allows 
employers either to post a copy of the citation on the cited equipment 
or to attach a warning tag, supplied by OSHA or devised by the 
employer, to this equipment to alert affected employees to the presence 
of the hazard.

Summary of the Costs and Benefits of the Final Regulation

    In most cases, OSHA estimates that the final regulation will reduce 
the costs that cited employers currently incur to verify abatement. 
This conclusion is based primarily on the fact that the final 
regulation will only affect those employers who are actually cited for 
violations (i.e., about two-thirds of inspected employers currently) 
and on evidence that most of these cited employers already supply 
Federal and State-plan enforcement agencies with more information on 
abatement than will be required under the final regulation. Overall, 
the cost of compliance for employers to verify abatement is estimated 
to be $2 million less per year than employers are currently incurring 
(estimated to be $4.4 million) to comply with OSHA's administrative 
procedures for abatement verification.
    The Agency estimates that the final abatement verification 
regulation will save employers an additional $4 million annually 
because they will no longer expend their time and money to respond to 
dunning efforts to ensure that abatement has taken place. The final 
rule's net benefits, or cost savings, for employers are estimated to be 
$6 million annually: a $2 million savings in reduced paperwork to 
complete abatement verification forms and a $4 million savings in 
reduced personnel time and effort to respond to OSHA phone and mail 
inquiries about the status of abatement. In addition, the Agency 
estimates that Federal and State-plan agencies will experience resource 
savings of $4.5 million annually under the final regulation (i.e., will 
save this amount in personnel costs formerly expended in dunning 
activity and follow-up inspections). Other benefits of the final 
regulation include enhanced worker protection because hazards will be 
abated more quickly, and greater employee awareness of, and 
participation in, the employer's abatement activities.
    For a complete discussion of the methodology used to develop the 
costs of compliance, cost savings, and net benefits of the final 
abatement verification regulation, see the Final Economic Analysis in 
the docket for this rulemaking.

VII. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., OSHA has performed a screening analysis to identify any 
significant economic impacts of the final regulation on a substantial 
number of small businesses. At the time of the proposal, OSHA's 
Preliminary Regulatory Impact Assessment specifically stated that the 
regulation would not have such impacts. OSHA received no comments on 
this conclusion or the methodology used to reach that determination. 
Accordingly, the Agency certifies that the final regulation will not 
have a significant impact on a substantial

[[Page 15336]]

number of small businesses, defined for the purpose of this regulation 
as those with fewer than 20 employees.
    As discussed in Section VI of this preamble, the final regulation 
will reduce the costs small establishments currently incur to comply 
with OSHA's procedural requirements for abatement verification. The 
cost of the final regulation for employers in those small 
establishments that receive OSHA citations, including those for small 
governmental entities regulated under State-plan programs, is well 
below any measure of significant economic impact. The Agency therefore 
concludes that this regulation will not have a significant impact on a 
substantial number of small entities.

VIII. Environmental Impact Assessment

Finding of No Significant Impact

    This final regulation has been reviewed in accordance with the 
requirements of the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.), the regulations of the Council on 
Environmental Quality (CEQ) (40 CFR Part 1500), and the Department of 
Labor's NEPA procedures (29 CFR Part 11). Because the regulation 
exclusively addresses reporting requirements, it will not have an 
impact on the environment or result in the release of materials that 
contaminate natural resources or the environment.

IX. Federalism

    The final regulation has been reviewed in accordance with Executive 
Order 12612 (52 FR 41685), regarding Federalism. This Order requires 
that agencies, to the extent possible, refrain from limiting state 
policy options, consult with States prior to taking any actions that 
would restrict state policy options, and take such actions only if 
clear constitutional authority exists and the problem is of national 
scope. The Order provides for preemption of State law only if a clear 
Congressional intent has been expressed for the Agency to do so. Any 
such preemption is to be limited to the extent possible.
    With respect to states that do not have OSHA-approved occupational 
safety and health State plans, the final regulation conforms to the 
preemption provisions of Section 18 of the OSH Act (29 U.S.C. 667); 
this section preempts State promulgation and enforcement of 
requirements dealing with occupational safety and health issues covered 
by Federal OSHA standards unless the state has an OSHA-approved Sate 
plan. (See Gade v. National Solid Wastes Management Association, 112 
S.Ct. 2374 (1992).) Since states without State plans are prohibited 
already from issuing citations for violations of requirements covered 
by Federal OSHA standards, this final regulation does not expand this 
limitation.
    The Agency certifies that this final regulation has been assessed 
in accordance with the principles, criteria, and requirements set forth 
under Sections 2 through 5 of Executive Order 12612. Section 18(c)(2) 
of the OSH Act (29 U.S.C. 667(c)((2)) provides that an OSHA-approved 
State plan must provide for the development and enforcement of safety 
and health standards that are, or will be, at least as effective as the 
Federal program. In implementing this requirement, 29 CFR 1902.3(d)(1) 
requires a State plan to establish a program for the enforcement of 
state standards that is, or will be, at least as effective as the 
standard provided under the OSH Act, and provide assurances that the 
State plan enforcement program will continue to be at least as 
effective as the Federal program. Furthermore, 29 CFR 1902.4(a) 
requires state plans to establish the same procedures and rules that 
are established by Federal OSHA, or alternative procedures and rules as 
effective as the Federal procedures and rules. In particular, a State 
plan must provide that employees be informed of their protections and 
obligations under the Act. (See 29 CFR 1902.4(c)(2)(iv).) The plan also 
must provide for prompt notice to employers and employees when an 
alleged violation of standards has occurred, including the proposed 
abatement requirements, by such means as the issuance and posting of 
citations. (See 29 CFR 1902.4(c)(2)(x).) Since this final regulation 
will improve Federal OSHA's enforcement of the OSH Act and, in 
particular, will foster the abatement of violations and communication 
to employees about their protections under the Act, State plans will be 
required to adopt an identical regulation, or an equivalent regulation 
that is at least as effective as the Federal regulation, within six 
months of Federal promulgation. Thus, the final regulation complies 
with Executive Order 12612 with respect to State Plan States because 
(1) the final regulation deals with a problem of national scope, and 
(2) the OSH Act requires that State Plan States adopt the OSHA 
regulation or an equally-effective regulation. Since a number of State 
Plan States already have abatement-verification and employee-
notification procedures similar to the requirements specified under 
this regulation, they will only need to reissue the requirement as an 
enforceable regulation.
    State comments were invited on prepublication drafts of both the 
proposed and final regulation, and these comments were fully considered 
before a final regulation was promulgated. Two State Plan States, 
Michigan and Minnesota, commented (Exs. 4-86 and 4-87, respectively) on 
the draft proposed regulation. Michigan and Minnesota again submitted 
comments on the draft final regulation, along with Maryland (Exs. 4-89, 
4-90, and 4-91, respectively). These states expressed concern about the 
tagging and posting requirements, the paperwork burden these 
requirements impose on employers, and the use of additional state 
resources to implement the regulation. Minnesota also wanted a number 
of items clarified in the compliance guidance that OSHA will issue with 
this regulation (e.g., the application of the tagging and reporting 
requirements in contested cases). The final regulation has addressed 
the States' concerns regarding the tagging and posting requirements, 
and lessened the paperwork burden for both employers and the 
enforcement agencies (i.e., OSHA and State Plan States). This reduced 
paperwork burden, the compliance guidance that will accompany this 
final regulation, and the economic benefits that will accrue to 
enforcement agencies under the final regulation (see ``Economic 
Analysis'' above) will reduce the burden to, and enhance the economic 
resources of, the Federal and State agencies responsible for enforcing 
the final regulation.
    OSHA also sought information from the State Plan States that 
require abatement documents on their experience with employers 
providing false information on the documents. On average, these states 
reported a false-information rate of five per cent or less.

X. State Plans

    Currently, 25 states and other jurisdictions have OSHA-approved 
occupational safety and health plans. These 25 jurisdictions are: 
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, 
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto 
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin 
Islands, Washington, and Wyoming; Connecticut and New York have State 
Plan jurisdiction for state and local government employees only.
    The 25 jurisdictions with their own OSHA-approved occupational 
safety and health plans are required to adopt a regulation on abatement 
verification

[[Page 15337]]

and employee notification that is at least as effective as this Federal 
regulation within six months of the publication date of the final 
regulation.
    Current State abatement-verification and employee-notification 
procedures are described in State field operations manuals and/or 
directives. Although these state procedures may differ from the federal 
procedures, the State Plan States, like Federal OSHA, generally lack 
regulations or statutory provisions specifically addressing this issue, 
and thus do not by regulation compel employers to submit abatement-
certification letters or other documents to them; the exceptions are 
Wyoming and California, which have a regulation and legislation, 
respectively, that require employers to submit abatement-certification 
documents be submitted to the state occupational safety and health 
agencies.
    Existing State abatement-certification procedures are identical to 
the current Federal practices except as described below:
    (1) The following nine States have abatement-certification forms: 
Alaska, California, Kentucky, Michigan, North Carolina, Oregon, South 
Carolina, Washington, and Wyoming. On these forms, employers describe 
the specific actions taken to correct each alleged violation. Alaska, 
Oregon, Washington, Michigan, and Kentucky also ask for documentary 
evidence of abatement. Alaska requires employers to certify, under 
penalty of perjury, that the violations were abated by the dates 
specified.
    (2) For serious violations, California has adopted legislation that 
requires an abatement statement to be signed under penalty of perjury.
    (3) Minnesota requests a progress report for all serious, and most 
other, violations of the State's general industry and construction 
standards.
    (4) Washington schedules follow-up inspections every six months to 
assess progress made on lengthy or multi-step abatement plans.
    (5) Some states (e.g., South Carolina and California) send a 
reminder letter to employers just before the abatement-certification 
form is due. Washington reminds employers of this event by letter or 
telephone. Kentucky and California also send follow-up letters if the 
form is overdue.
    (6) Maryland tracks informal conference settlements to determine if 
the abatement documentation is adequate.
    (7) Wyoming has an enforcement regulation requiring submission of 
written documents stating the date abatement was accomplished. Failure 
to do so can result in a civil penalty. Wyoming also can take legal 
action to enforce submission of abatement letters.
    (8) New York, which covers only state and local government 
employees, conducts follow-up inspections to validate abatement of 
every violation; employers are not asked to send abatement-
certification information to the state agency.
    A number of states have ``red-tag'' authority, which allows them to 
issue a restraining order in an immediate-danger situation involving 
hazardous equipment (or other condition or practice). This red tag 
authority is different from the orange warning tag required by the 
abatement verification and employee notification regulation; use of 
orange warning tags does not prohibit operation of cited equipment, 
while use of red tags does prohibit such operation.

List of Subjects in 29 CFR Part 1903

    Abatement; Abatement certification; Abatement plan; Progress 
reports; Abatement verification; Employee notification; Movable 
equipment; Occupational safety and health; Posting; Tags.

 Authority

    This document was prepared under the direction of Gregory R. 
Watchman, Acting Assistant Secretary of Labor for Occupational Safety 
and Health, U.S. Department of Labor, 200 Constitution Ave., N.W., 
Washington, D.C. 20210. The final regulation is issued pursuant to 
Sections 8(c)(1), 8(g), and 9(b) of the Occupational Safety and Health 
Act of 1970 (29 U.S.C. 657, 658).

    Signed in Washington, D.C., this 19th day of March 1997.
Gregory R. Watchman,
Acting Assistant Secretary of Labor.

    Part 1903 of CFR 29 is hereby amended as set forth below.

 Regulatory Text

PART 1903--[AMENDED]

    1. The authority citation for Part 1903 of Title 29 of the Code of 
Federal Regulations is revised to read as follows:

    Authority: Sections 8 and 9 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 657, 658); 5 U.S.C. 553; Secretary of 
Labor's Order No. 1-90 (55 FR 9033) or 6-96 (62 FR 111), as 
applicable.

    2. 29 CFR Part 1903 is amended by redesignating Secs. 1903.19, 
1903.20, and 1903.21 as Secs. 1903.20, 1903.21, and 1903.22, 
respectively, and by adding a new Sec. 1903.19, to read as follows:


Sec. 1903.19  Abatement verification.

    Purpose. OSHA's inspections are intended to result in the abatement 
of violations of the Occupational Safety and Health Act of 1970 (the 
OSH Act). This section sets forth the procedures OSHA will use to 
ensure abatement. These procedures are tailored to the nature of the 
violation and the employer's abatement actions.
    (a) Scope and application. This section applies to employers who 
receive a citation for a violation of the Occupational Safety and 
Health Act.
    (b) Definitions. (1) Abatement means action by an employer to 
comply with a cited standard or regulation or to eliminate a recognized 
hazard identified by OSHA during an inspection.
    (2) Abatement date means:
    (i) For an uncontested citation item, the later of:
    (A) The date in the citation for abatement of the violation;
    (B) The date approved by OSHA or established in litigation as a 
result of a petition for modification of the abatement date (PMA); or
    (C) The date established in a citation by an informal settlement 
agreement.
    (ii) For a contested citation item for which the Occupational 
Safety and Health Review Commission (OSHRC) has issued a final order 
affirming the violation, the later of:
    (A) The date identified in the final order for abatement; or
    (B) The date computed by adding the period allowed in the citation 
for abatement to the final order date;
    (C) The date established by a formal settlement agreement.
    (3) Affected employees means those employees who are exposed to the 
hazard(s) identified as violation(s) in a citation.
    (4) Final order date means:
    (i) For an uncontested citation item, the fifteenth working day 
after the employer's receipt of the citation;
    (ii) For a contested citation item:
    (A) The thirtieth day after the date on which a decision or order 
of a commission administrative law judge has been docketed with the 
commission, unless a member of the commission has directed review; or
    (B) Where review has been directed, the thirtieth day after the 
date on which the Commission issues its decision or order disposing of 
all or pertinent part of a case; or
    (C) The date on which a federal appeals court issues a decision 
affirming the violation in a case in which a final order of OSHRC has 
been stayed.
    (5) Movable equipment means a hand-held or non-hand-held machine or 
device, powered or unpowered, that is

[[Page 15338]]

used to do work and is moved within or between worksites.
    (c) Abatement certification. (1) Within 10 calendar days after the 
abatement date, the employer must certify to OSHA (the Agency) that 
each cited violation has been abated, except as provided in paragraph 
(c)(2) of this section.
    (2) The employer is not required to certify abatement if the OSHA 
Compliance Officer, during the on-site portion of the inspection:
    (i) Observes, within 24 hours after a violation is identified, that 
abatement has occurred; and
    (ii) Notes in the citation that abatement has occurred.
    (3) The employer's certification that abatement is complete must 
include, for each cited violation, in addition to the information 
required by paragraph (h) of this section, the date and method of 
abatement and a statement that affected employees and their 
representatives have been informed of the abatement.

    Note to paragraph (c): Appendix A contains a sample Abatement 
Certification Letter.

    (d) Abatement documentation. (1) The employer must submit to the 
Agency, along with the information on abatement certification required 
by paragraph (c)(3) of this section, documents demonstrating that 
abatement is complete for each willful or repeat violation and for any 
serious violation for which the Agency indicates in the citation that 
such abatement documentation is required.
    (2) Documents demonstrating that abatement is complete may include, 
but are not limited to, evidence of the purchase or repair of 
equipment, photographic or video evidence of abatement, or other 
written records.
    (e) Abatement plans. (1) The Agency may require an employer to 
submit an abatement plan for each cited violation (except an other-
than-serious violation) when the time permitted for abatement is more 
than 90 calendar days. If an abatement plan is required, the citation 
must so indicate.
    (2) The employer must submit an abatement plan for each cited 
violation within 25 calendar days from the final order date when the 
citation indicates that such a plan is required. The abatement plan 
must identify the violation and the steps to be taken to achieve 
abatement, including a schedule for completing abatement and, where 
necessary, how employees will be protected from exposure to the 
violative condition in the interim until abatement is complete.

    Note to paragraph (e): Appendix B contains a Sample Abatement 
Plan form.

    (f) Progress reports. (1) An employer who is required to submit an 
abatement plan may also be required to submit periodic progress reports 
for each cited violation. The citation must indicate:
    (i) That periodic progress reports are required and the citation 
items for which they are required;
    (ii) The date on which an initial progress report must be 
submitted, which may be no sooner than 30 calendar days after 
submission of an abatement plan;
    (iii) Whether additional progress reports are required; and
    (iv) The date(s) on which additional progress reports must be 
submitted.
    (2) For each violation, the progress report must identify, in a 
single sentence if possible, the action taken to achieve abatement and 
the date the action was taken.

    Note to paragraph (f): Appendix B contains a Sample Progress 
Report Form.

    (g) Employee notification. (1) The employer must inform affected 
employees and their representative(s) about abatement activities 
covered by this section by posting a copy of each document submitted to 
the Agency or a summary of the document near the place where the 
violation occurred.
    (2) Where such posting does not effectively inform employees and 
their representatives about abatement activities (for example, for 
employers who have mobile work operations), the employer must:
    (i) Post each document or a summary of the document in a location 
where it will be readily observable by affected employees and their 
representatives; or
    (ii) Take other steps to communicate fully to affected employees 
and their representatives about abatement activities.
    (3) The employer must inform employees and their representatives of 
their right to examine and copy all abatement documents submitted to 
the Agency.
    (i) An employee or an employee representative must submit a request 
to examine and copy abatement documents within 3 working days of 
receiving notice that the documents have been submitted.
    (ii) The employer must comply with an employee's or employee 
representative's request to examine and copy abatement documents within 
5 working days of receiving the request.
    (4) The employer must ensure that notice to employees and employee 
representatives is provided at the same time or before the information 
is provided to the Agency and that abatement documents are:
    (i) Not altered, defaced, or covered by other material; and
    (ii) Remain posted for three working days after submission to the 
Agency.
    (h) Transmitting abatement documents. (1) The employer must 
include, in each submission required by this section, the following 
information:
    (i) The employer's name and address;
    (ii) The inspection number to which the submission relates;
    (iii) The citation and item numbers to which the submission 
relates;
    (iv) A statement that the information submitted is accurate; and
    (v) The signature of the employer or the employer's authorized 
representative.
    (2) The date of postmark is the date of submission for mailed 
documents. For documents transmitted by other means, the date the 
Agency receives the document is the date of submission.
    (i) Movable equipment. (1) For serious, repeat, and willful 
violations involving movable equipment, the employer must attach a 
warning tag or a copy of the citation to the operating controls or to 
the cited component of equipment that is moved within the worksite or 
between worksites.

    Note to paragraph (i)(1): Attaching a copy of the citation to 
the equipment is deemed by OSHA to meet the tagging requirement of 
paragraph (i)(1) of this section as well as the posting requirement 
of 29 CFR 1903.16.

    (2) The employer must use a warning tag that properly warns 
employees about the nature of the violation involving the equipment and 
identifies the location of the citation issued.

    Note to paragraph (i)(2): Non-Mandatory Appendix C contains a 
sample tag that employers may use to meet this requirement.

    (3) If the violation has not already been abated, a warning tag or 
copy of the citation must be attached to the equipment:
    (i) For hand-held equipment, immediately after the employer 
receives the citation; or
    (ii) For non-hand-held equipment, prior to moving the equipment 
within or between worksites.
    (4) For the construction industry, a tag that is designed and used 
in accordance with 29 CFR 1926.20(b)(3) and 29 CFR 1926.200(h) is 
deemed by OSHA to meet the requirements of this section when the 
information required by paragraph (i)(2) is included on the tag.
    (5) The employer must assure that the tag or copy of the citation 
attached to movable equipment is not altered, defaced, or covered by 
other material.
    (6) The employer must assure that the tag or copy of the citation 
attached to

[[Page 15339]]

movable equipment remains attached until:
    (i) The violation has been abated and all abatement verification 
documents required by this regulation have been submitted to the 
Agency;
    (ii) The cited equipment has been permanently removed from service 
or is no longer within the employer's control; or
    (iii) The Commission issues a final order vacating the citation.

Appendices to Sec. 1903.19--Abatement Verification

    Note: Appendices A through C provide information and 
nonmandatory guidelines to assist employers and employees in 
complying with the appropriate requirements of this section.

Appendix A to Section 1903.19--Sample Abatement-Certification Letter 
(Nonmandatory)

(Name), Area Director
U. S. Department of Labor--OSHA
Address of the Area Office (on the citation)

[Company's Name]
[Company's Address]

    The hazard referenced in Inspection Number [insert 9-digit #] 
for violation identified as:

Citation [insert #] and item [insert #] was corrected on [insert 
date] by:

----------------------------------------------------------------------
____________________.

Citation [insert #] and item [insert #] was corrected on [insert 
date] by:

----------------------------------------------------------------------
____________________.

Citation [insert #] and item [insert #] was corrected on [insert 
date] by:

----------------------------------------------------------------------
____________________.

Citation [insert #] and item [insert #] was corrected on [insert 
date] by:

----------------------------------------------------------------------
____________________.

Citation [insert #] and item [insert #] was corrected on [insert 
date] by:

----------------------------------------------------------------------
____________________.

Citation [insert #] and item [insert #] was corrected on [insert 
date] by:

----------------------------------------------------------------------
____________________.

Citation [insert #] and item [insert #] was corrected on insert date 
by:

----------------------------------------------------------------------
____________________.

Citation [insert #] and item [insert #] was corrected on [insert 
date] by:

----------------------------------------------------------------------

____________________.

I attest that the information contained in this document is 
accurate.

----------------------------------------------------------------------
    Signature

----------------------------------------------------------------------
    Typed or Printed Name

Appendix B to Section 1903.19--Sample Abatement Plan or Progress Report 
(Nonmandatory)

(Name), Area Director
U. S. Department of Labor--OSHA
Address of Area Office (on the citation)

[Company's Name]
[Company's Address]

Check one:
    Abatement Plan  [  ]
    Progress Report  [  ]

Inspection Number------------------------------------------------------

Page ________ of ________
Citation Number(s)*----------------------------------------------------
Item Number(s)*--------------------------------------------------------

                                                                        
                                                  Proposed    Completion
                                                 Completion   Date (for 
                    Action                       Date (for     progress 
                                                 abatement     reports  
                                                plans only)     only)   
                                                                        
1.............................................  ...........  ...........
                                                                        
                                                                        
2.............................................  ...........  ...........
                                                                        
                                                                        
3.............................................  ...........  ...........
                                                                        
                                                                        
4.............................................  ...........  ...........
                                                                        
                                                ...........  ...........
5.............................................  ...........  ...........
                                                                        
                                                ...........  ...........
6.............................................  ...........  ...........
                                                                        
                                                ...........  ...........
7.............................................  ...........  ...........
                                                                        
                                                                        

Date required for final abatement:-------------------------------------
I attest that the information contained in this document is 
accurate.

----------------------------------------------------------------------
    Signature

----------------------------------------------------------------------
    Typed or Printed Name

Name of primary point of contact for questions: [optional]
Telephone number:------------------------------------------------------

    *Abatement plans or progress reports for more than one citation 
item may be combined in a single abatement plan or progress report 
if the abatement actions, proposed completion dates, and actual 
completion dates (for progress reports only) are the same for each 
of the citation items.

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[FR Doc. 97-7959 Filed 3-28-97; 8:45 am]
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