Abatement Verification

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1903

[Docket No. C-03]

Abatement Verification

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: OSHA is developing a regulation requiring employers to certify

abatement and submit abatement plans and progress reports as a result

of OSHA citations. In addition, OSHA is proposing the placement of a

tag on cited equipment to alert affected employees that a hazardous

condition exists while abatement is being accomplished. Violation of

the regulation would result in civil penalties as prescribed by section

17 of the Occupational Safety and Health Act of 1970. This notice

invites interested parties to submit comments and recommendations on

the issues detailed in this document, as well as other pertinent

issues. All the information received in response to this notice will be

carefully reviewed. The comments received will assist OSHA in

developing the final regulation.

DATES: Written comments on the notice of proposed rulemaking must be

postmarked no later than July 18, 1994.

ADDRESSES: Comments and information should be submitted in

quadruplicate to the Docket Officer, Docket No. C-03, Occupational

Safety and Health Administration, room N-2625, U.S. Department of

Labor, 200 Constitution Ave. NW., Washington, DC 20210; telephone:

(202) 219-7894.

FOR FURTHER INFORMATION CONTACT:

Mr. James Foster, Occupational Safety and Health Administration, Office

of Public Affairs, room N-3647, U.S. Department of Labor, 200

Constitution Ave. NW., Washington, DC 20210; telephone: (202) 219-8151.

SUPPLEMENTARY INFORMATION: The purpose of this proposed rule is to

require employers to inform OSHA and their employees about measures

they will take or have taken in response to OSHA citations, as well as

to inform employees about OSHA citations and the alleged safety or

health hazards described therein.

I. Background

Under the Occupational Safety and Health Act of 1970 (i.e., ``the

Act'' or ``the OSH Act''), 29 U.S.C. 651 et. seq., OSHA inspects

workplaces to determine whether employers are complying with OSHA

standards and other statutory or regulatory requirements. If OSHA

believes that an employer has committed a violation, a citation is

issued. The citation will reference the requirement allegedly violated,

the alleged violation, and note the proposed penalty and a date by

which the violation is to be corrected, i.e., the abatement date.

Section 9(a), 29 U.S.C. 658(a).

Currently, the cover letter to the employer which accompanies an

OSHA citation states that the employer must notify the Area Director

promptly by letter of abatement of violations. (OSHA Instruction ADM 1-

1.12A CH-7, August 3, 1987. ``IMIS FORMS Manual'', Appendix C, page C-

22). No specific regulation, however, authorizes this notification

action. When, therefore, an employer does not provide written

verification of abatement, OSHA may, depending on the circumstances,

seek to verify abatement by making further efforts to communicate with

the employer (e.g., by telephone), or by conducting an on-site follow-

up inspection.

On May 1991, the General Accounting Office (GAO) issued a report to

Congress in which it assessed the adequacy of OSHA's policies and

procedures for determining whether hazards have been abated. The report

(GAO/HRD-91-35) (Ex. 1)\1\ found that these policies and procedures

have limitations that impede the Agency's ability to detect employers

who have failed to abate the safety and health hazards for which they

have been cited. GAO found that OSHA's policies: (1) Do not require,

but merely request, employers to provide evidence of abatement, and (2)

inadequately address confirmation of hazard abatements found at

construction worksites.

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\1\``Ex.,'' followed by a number, designate the exhibit in the

docket containing the referenced document.

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The GAO report concluded that OSHA would obtain improved evidence

of abatement if its regulations required employers to provide specific

documentation that they have abated hazards. The report further

concluded that such a requirement would enhance OSHA's ability to

detect noncomplying employers and determine where to conduct follow-up

inspections. Employers also would be more likely to abate hazards

because they would have to provide specific evidence of abatement.

Accordingly, GAO recommended that OSHA promulgate a regulation

requiring employers to submit detailed evidence of what corrective

actions have been taken to abate hazards.

GAO was also concerned about hazard abatement problems in the

construction industry due to the mobility of hazardous equipment. The

report's conclusion stated:

OSHA needs to confirm abatement of construction hazards in such

a way that they will not be repeated at subsequent worksites. OSHA's

practice of accepting worksite closing as a form of abatement allows

the continuation of procedures and practices that perpetuate

hazardous conditions. Consequently, contractors can continue to use

a defective piece of equipment, untrained employees, or inadequate

procedures and processes at subsequent worksites. OSHA should

require contractors to take abatement actions that will correct what

caused the hazard rather than just eliminate the hazard at the

inspection site. (emphasis added) (GAO/HRD-91-35)

The second GAO recommendation was for OSHA to revise its polices so

that (1) citations to employers at construction worksites require

correcting the condition, equipment, or procedure that create the

hazard, and (2) employers will not be able to ``abate'' hazards solely

by moving to another location.

Although not referenced in the GAO report, unsuspecting employees

may be exposed to similar hazards under conditions in which the place

of employment and equipment are permanent, but there is a frequent

turnover of employees in temporary jobs or employees are rotated

frequently through different job assignments. Also, workers in mobile

crews who visit different job sites should have available hazard

warning information regarding defective equipment which they must

operate.

Current OSHA policy is that written, detailed plans of abatement

shall be submitted to the Area Director when citations are issued

alleging (i.e. noise or air contaminant) violations and OSHA orders

that engineering or administrative controls be implemented. In these

cases, employers are also asked to submit progress reports, generally

every ninety days, detailing steps taken to achieve complete abatement

(e.g., procurement of engineering controls). Field Operations Manual,

chapter V (appendix), E.4.a. and c., E.5.a. and c. (Ex. 2) OSHA's

policy, therefore is to have employers verify that the violation cited

has been corrected. Despite this policy, there is no existing

regulation, enforceable by citations and civil penalties, which

mandates employers to submit abatement plans, progress reports, or

abatement verification letters. Thus, OSHA proposes that employers

should be required by regulation to submit such documents.

Currently, 29 CFR 1903.16 requires the posting of a citation at or

near the place of the alleged violation. This regulation is inadequate

in many instances to notify employees that OSHA has required the

abatement of hazardous conditions because citations are often posted on

company bulletin boards that employees may not see or read. Employees

are more likely, therefore, to be informed about hazardous equipment

they are operating via a required tag affixed to that equipment than by

a posted citation. OSHA already requires that employers in general

industry and construction affix accident-prevention tags informing

employees about hazardous conditions. 29 CFR 1910.145(f) and

1926.200(h). However, these standards do not require employers to state

that a condition has been cited. Further, the General Industry standard

does not apply to construction, maritime, or agricultural employers. 29

CFR 1910.145 (f)(1)(ii). Therefore, OSHA also proposes that all

employers covered by the OSH Act be required to affix tags to cited

equipment informing employees about an OSHA citation regarding that

equipment.

Legal Considerations

Introduction

For purposes of the proposed rule, there are two key terms, i.e.,

``abatement date'' and ``final order.'' The following discussion is

provided in order to relate these terms to the statutory framework

created by the OSH Act. The discussion, however, is general in nature

and is not intended to address every situation that may arise in the

course of litigation.

Contesting a Citation

As noted above, an employer has the right, under the OSH Act, to

contest a citation or a prescribed abatement date. (employers may also

contest only the amount of the penalty proposed for a violation, but

this action does not delay the abatement period prescribed for that

violation). An abatement date can also be contested by an affected

employee or a representative of affected employees. If neither the

employer nor employees contest the citation, the date set forth in the

citation for the correction of the violation is the abatement date.\2\

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\2\The Act provides that an employer may file a notice of

contest within fifteen working days of receiving the notification of

proposed penalty. Section 10, 29 U.S.C. 659. (Under current OSHA

practice, the notification of proposed penalty is attached to the

citation.) Appellate courts have held that OSHA may set an abatement

date which falls within the fifteen-day period, in which case the

period allowed for contest is shortened accordingly. See Dunlop v.

Haybuster Mfg. Co., 524 F.2d 222 (8th Cir. 1975); Brennan v. OSHRC

and Kesler & Sons Construction Company, 513 F.2d 553, 557-58 (10th

Cir. 1975).

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The Act also provides that, in the event of a contest, the

employer's obligation to abate a cited violation is suspended, provided

that the employer's contest has been made ``* * * in good faith and not

solely for purposes of delay or avoidance of penalties.'' Section

10(b), 29 U.S.C. 659(b). Once a citation is contested, an employer's

abatement obligation generally does not start to run until a ``final

order'' has been issued ending the administrative phase of the

litigation.

When a citation or a prescribed abatement period has been

contested, the matter is adjudicated by the Occupational Safety and

Health Review Commission (i.e., ``the Commission''), an independent

agency headed by three Presidential appointees (i.e., ``Members'').

Initially, a contested case is usually heard by an administrative law

judge (ALJ) of the Commission. The ALJ issues a decision and order,

which are then docketed with the Commission. This decision and order

may subsequently be reviewed by the full Commission. Section 12(j), 29

U.S.C. 659(j). Under this review procedure, any Member of the

Commission may direct review of the ALJ's decision and order within

thirty days of the docketing date. If there is no direction for review,

the ALJ's decision and order becomes the final order of the Commission.

Id. Any abatement requirement affirmed or modified by an ALJ's decision

and order will start to run on the date that the ALJ's decision and

order become a final order. The new abatement date is determined by

adding to the final order date either: (1) The number of days allowed

originally for abatement in the citation (in cases where the ALJ

affirms the abatement requirement) or (2) the newly specified period

for abatement (in cases where the ALJ modifies the abatement

requirement). If, However, the Commission reviews an ALJ's decision and

order, the employer's abatement obligation remains suspended during the

review process. Following its review, the Commission will generally

issue its own decision, which becomes a final order thirty days after

its decision is issued. Section 10(c), 29 U.S.C. 659(c).\3\ Again, any

abatement period affirmed or modified as a result of the Commission's

decision will start to run from the date its decision becomes a final

order.\4\

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\3\Prior to issuing its decision, the Commission may sever one

or more citation items from the case if it determines that it will

not review the ALJ's affirmance of those items. See Hamilton Die

Cast Inc., 12 BNA OSRC 1797 (No. 83-308, 1986). The order severing

citation items will become a final order as to those items.

\4\It is possible that the Commission (or an ALJ) could, in

modifying an abatement requirement, state an actual date by which

abatement must be accomplished. In that situation, the abatement

date would be the date as specified.

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An ALJ's decision and order that have not been directed for

Commission review, or a decision of the Commission following such

review, also may be challenged in the appropriate federal appellate

court. Sections 11(a) and (b), 29 U.S.C. 660(a) and (b). Filing a

petition for appellate court review does not automatically stay the

employer's abatement requirements. Id. In extraordinary cases, however,

either the Commission or the court of appeals may stay the final order

at the employer's request. If stayed, the abatement requirement does

not begin to run until the appellate court upholds the earlier decision

of the Commission or the ALJ (i.e., to affirms or revise the abatement

requirement) by issuing a mandate or an equivalent order giving legal

effect to the appellate court's decision. Where a citation was vacated

by the Commission or the ALJ, and the appellate court subsequently

reverses that decision, the appellate court will generally remand the

case to the Commission for entry of an order to affirm the citation.

The abatement requirement then will begin to run thirty days after the

date of the appellate court's order. Should the appellate court, in

such cases, not remand the case for entry of a Commission order, the

abatement obligation begins to run from the court's own entry of

mandate or equivalent order.

Settlement or withdrawal of a contest. At any stage of an ongoing

contest proceeding, there may be a settlement of the case, in whole or

in part, or the employer may unilaterally withdraw the notice of

contest, in whole or in part. Under these conditions, the ALJ or the

Commission will enter an order based on the settlement or withdrawal of

the notice of contest. It is OSHA's legal position that, in some

circumstances, withdrawal or settlement actions by employers become

final orders by operation of law upon execution, without approval by

the Commission. (See Cuyahoga Valley Ry. Co. v. United Transportation

Union, 474 U.S. 3 (1985)). However, for purposes of determining the

timing of an employer's abatement obligations under the proposed

regulation, OSHA has elected to treat orders based on settlement or

withdrawal in the same manner as other ALJ and Commission orders, i.e.,

the abatement obligation begins to run thirty days after the docketing

of the ALJ order by the Commission or after the issuance of the

Commission order, as the case may be. Should the parties phrase the

settlement agreement such that abatement is called for by a date

certain, or that the abatement period will run from a certain event

(e.g., the date of execution of the agreement), the abatement date will

be determined in accordance with the terms of the agreement provided no

employee or employee representative contests the abatement period

specified in the agreement.

The existence of a Commission final order has a number of

consequences for enforcement. If OSHA determines that an employer has

failed to correct a violation on or before the expiration of the

abatement date, OSHA may issue a notification of failure to abate.

Section 10(b), 29 U.S.C. 659(b). A penalty of up to $7000 may be

assessed for each day the failure to abate continues. Section 17(d), 29

U.S.C. 666(d). If, after a final order, the employer commits a

substantially similar violation in a different location, or with a

different piece of equipment, or with the same piece of equipment after

a period of temporary abatement, the violation is classified as

repeated and a penalty of up to $70,000 may be assessed. Section 17

(a), 29 U.S.C. 666(a). Further, the Secretary may file a petition for

enforcement of a Commission order which has became final after a notice

of contest, or after a failure to contest within fifteen working days.

This petition is filed in the court of appeals and the court issues a

decree enforcing the Commission final order. If the employer violates

this decree, the employer may be subject to penalties for contempt of

court. Section 11(b), 29 U.S.C. 660(b).

The discussion above details the regular procedures for obtaining

and enforcing final Commission orders with their concomitant abatement

dates. In addition, there are procedures for modifying the abatement

requirements of a citation due to employer hardship. Upon a showing by

an employer of inability to complete abatement within the prescribed

period because of factors beyond the employer's reasonable control, the

employer may obtain a modification of the abatement date. Section

10(c), 29 U.S.C. 659(c). A petition for modification of abatement date

(PMA) must be filed no later than the close of the next working day

following the date on which abatement is required. If neither OSHA nor

affected employees object to the employer's request, OSHA may approve

the PMA and it then becomes a final order pursuant to section 10(a) and

(c) of the Act. If either OSHA or employees object to the PMA, the case

is forwarded to the Commission for adjudication. See 29 CFR 2200.37.

The Commission may either accept, reject, or modify the employer's

request for additional time and issue an appropriate order.

II. Summary and Explanation of the Regulation

Under the proposed regulation, an employer who has received an OSHA

citation must submit to the OSHA Area Director an abatement

certificate, which states whether or not the violation has been abated,

as documentation of abatement. The proposed regulation would also

require an employer who has received an OSHA citation to submit an

abatement plan, where the Area Director requests one by such means as a

note on the citation, which sets forth a schedule for the

implementation of abatement measures. Under the proposal the employer

would also submit progress reports, which explain what measures have

been taken, if any, in the process of achieving abatement, when the

Area Director requires them. The proposed rule would also require

employers to affix tags on equipment noting that a citation has been

issued.

Paragraph (a), Scope and Application

This regulation applies to all industries covered by the OSH Act,

including general industry, construction, maritime, and agricultural

employers. The specific identification of the major industrial groups,

in this section, is intended to make this fact clear.

Paragraph (b), Definitions

Only those terms of the definitions paragraph which were felt to

need further clarification are included in this section.

Abatement date. The date by which the employer must abate a

violation depends on the stage to which a case has progressed. This

definition sets forth the various ways an abatement date is determined.

Circumstance (1) refers to the date actually set forth in the citation,

where the citation item has not been contested. As explained in Section

I, this date applies even if it is with the fifteen-working-day period

normally available for the filing of a notice of contest.

Circumstance (2) is self-explanatory, as it refers simply to adding

to the final order date either the amount of time in days initially

specified for abatement on the citation or, if that period was modified

by the Commission or its judge, the amount of time so modified.

Circumstance (3) refers to a date for abatement ``expressly set

forth'' by the Commission, or a Commission administrative law judge.

The phrase ``expressly set forth'' refers to a date certain or to a set

number of days from the final order date specified date.

Circumstance (4) refers to a date set in a PMA final order. The

term (PMA) refers to a petition for modification of the abatement date

described in Section 10(c) of the OSH Act, 29 U.S.C. 659(c). A PMA

final order results either from OSHA's approval of an uncontested PMA

or the Commission's approval, modification or rejection of the

employer's request for additional time in order to complete abatement.

Circumstance (5) refers to settlement agreements signed by OSHA and

the employer, and, in some cases, employees or their authorized

representatives. As in circumstance(3) the phrase ``expressly set

forth'' refers to a date certain or to a set number of days from the

final order date or other specified date.

Abatement plan. As the definition implies with its reference to

``outlining a schedule for the implementation of measures to achieve

abatement'', an abatement plan required by a citation will specify the

requirement for and the frequency of ``progress reports.'' Generally,

abatement plans and progress reports will be associated with multi-step

or long-term abatement.

Citation item. A citation item is a single instance of a violation.

For example, a citation may contain ``Item 1'', alleging that the

employer has one machine in violation of 29 CFR 1910.212(a)(1) because

it was not guarded. A citation may also list several violations of the

same standard under the same citation item, for example ``Item 1,

instance a'', and ``Item 1, instance b''. ``Item 1, Instance a'', and

``Item 1, Instance b'', etc. are all separate ``citation items'' within

the meaning of the proposed regulation. Final order date: The date a

citation becomes a final order is the date on which a citation becomes

effective. The major ways a citation can become a final order are

detailed in the definition.

The first category is that of an uncontested citation. If there is

no contest by either the employer or the employees, the citation

becomes a final order automatically, fifteen (15) working days after

the date the employer receives the citation and proposed penalty,

pursuant to Section 10 of the OSH Act, 29 U.S.C. 659.

The second category refers to situations in which there has been a

contest either by the employer or by employees, resulting in the

issuance of a decision or order by an ALJ. Under Section 12(j) of the

OSH Act, 29 U.S.C. Sec. 661(j), a decision of an ALJ becomes a final

order of the Commission thirty days ``after such report'' if no member

of the Commission directs review of the case. Section 12(j) has been

construed by the Commission to mean that the thirty-day period runs

from the date on which the decision of the ALJ is docketed by the

Commission. (See 29 CFR 2200.90(b)(2); Robert W. Setterlin & Sons Co.,

4 BNA OSHC 1214 (No. 7377, 1976)).

The third category refers to decisions issued by the Members of the

Commission, including orders severing items from a case. Pursuant to

Section 10(c) of the OSH Act, 29 U.S.C. Sec. 659(c), such decisions

become final orders thirty days after their issuance, and the filing of

petitions for review of these decisions in a court of appeals does not

stay the employer's abatement obligation unless a stay has been

expressly ordered.

The fourth category addresses the two situations in which the start

of an employer's abatement obligation depends on action by a court. In

those cases in which a court of appeals stays an abatement requirement,

the abatement requirement starts when the court issues its mandate or

an equivalent order following a decision of the court upholding the

Commission's affirmance of the citation. In those cases where the

Commission did not affirm a citation but the court reverses that

decision, the abatement obligation starts upon the court's issuance of

its mandate or equivalent order unless the court remands the case to

the Commission for the issuance of an appropriate Commission order. In

that situation, the abatement period starts when the Commission's order

becomes final thirty days after its issuance.

PMA final order. This is the order approving, modifying or

rejecting the employer's request for additional time to complete the

abatement requirements of the citation.

Paragraph (c), Abatement Certificate

Paragraph (c)(1) specifies the minimum content of the abatement

certificate; (c)(2) provides special procedures for reissuing an

abatement certificate for those situations where abatement was not

initially completed; and (c)(3) allows an employer to combine the

individual certifications of hazard abatement into one certificate.

Paragraph (c)(4) of the proposed regulation requires the abatement

certificate to be accompanied by ``documentary evidence.'' OSH

envisions ``documentary evidence'' to be any type of document which

provides evidence that a violative condition which was cited has, in

fact, been abated. The examples of documentary evidence which follow

are provided in order to clarify OSHA's intent and are not to be

considered as the only methods which would be acceptable to the Agency,

nor are they automatically accepted in all cases: (1) An invoice or

receipt for purchase or disposal of goods and services; (2) analyses or

reports from industrial hygienists, engineers, or other experts

indicating the methods by which the extent to which the hazardous

condition has been abated; (3) a manufacturer's recertification for

repaired equipment; (4) contracts and specifications for services; (5)

training records, programs, and attendance sheets; (6) in-house

certification; (7) photographic prints depicting the abated condition

which have been labeled appropriately with the citation and item

references as they appeared on the citation; and (8) videotape with

concise audio and/or visual identification for the citation reference.

Paragraph (d), Abatement Plan

Paragraph (d) of the proposed regulation refers to written

abatement plans. OSHA currently requests employers to submit abatement

plans when the Area Director finds them appropriate in connection with

safety or health violations. The proposed regulation would give the

Area Director discretion to require abatement plans with respect to

either safety or health violations.

Paragraph (e), Progress Reports

Paragraph (e) of the proposal refers to written progress reports.

OSHA policy currently provides for progress reports whenever the Area

Director requests them in connection with safety or health violations

requiring multi-step or long term abatement. The proposed regulation

would make such progress reports mandatory when required by the Area

Director and indicated on the citation.

Paragraph (f), Tagging of Cited Equipment

Paragraph (f) of the proposed regulation requires the placement of

a tag on cited equipment in order to alert employees who might be

exposed to the hazards of that equipment. The tag will state that this

equipment has been cited. This procedure will address the situation,

common to the construction industry, in which cited equipment is

removed from one worksite to another where employees are not aware of

the hazardous condition. The tag requirements found in this proposed

regulation are intended to provide such employees with knowledge of the

violative condition of the equipment. The proposal provides that these

warning tags shall comply with the current OSHA requirements for

accident prevention tags (i.e. use, signal word, and general tag

criteria) found in Sec. 1910.145(f).

The proposed regulation would require the tag to remain in place on

the equipment until the defect has been remedied. If the equipment is

removed from the workplace, sold, or otherwise transferred, it is

OSHA's intent that the tag remain on the equipment. Mere lack of

employee exposure to the equipment will not allow the employer to

remove the tag.

The reference to ``tagging equipment'' does not require the tagging

of supplies, furnishings, policies, procedures or building service

distribution systems such as for water. However, individual component

parts within a distribution system may be subject to tagging. For

example, an unguarded drive shaft on a circulating pump in a water

distribution system found in violation of the machine guarding standard

would be considered equipment within the meaning of the regulation and

thus require tagging.

Paragraph (g), Transmittal of Documents

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

Note: Receipt of an employer's documents by the Agency under

this regulation does not constitute an agreement that the employer

is in compliance.

There are three reasons for this provision. First, although the

Agency will try to evaluate submitted material in a timely fashion,

other agency priorities may delay such action. Second, in some cases,

the submitted materials may not accurately or completely describe the

abatement. Third, changing working conditions may make the abatement

action described in the materials submitted inaccurate or inadequate.

Paragraph (i), Posting Requirements

Paragraph (i)(5) of the proposed regulation states that the final

abatement certificate must remain posted until abatement has been

completed or for six calendar days, whichever is later. Thus, if

abatement has been completed, the certificate shall remain posted for

at least six days after completion. If abatement has not been

completed, the abatement certificate initially submitted shall remain

posted until the violation has been abated. When abatement has been

accomplished, the new final abatement certificate shall remain posted

for six days. If a final abatement certificate deals with a number of

citation items, it shall remain posted for as long as it takes to

comply with the posting requirements for all of the items. OSHA

believes that the posting of the abatement certificate will inform

employees whether or not the hazard has been abated and also help to

assure the accuracy of the certificate.

III. Pertinent Legal Authority

This proposed regulation is authorized by Sections 8(c)(1),

8(g)(2), and 9(b) of the Occupational Safety and Health Act of 1970

(the Act), 29 U.S.C. 657 and 658. Under Section 8(c)(1) ``[e]ach

employer shall make, keep and preserve, and make available to the

Secretary or the Secretary of Health [and Human Services] * * *, such

records regarding his activities relating to this Act as the Secretary,

in cooperation with the Secretary of Health [and Human Services] * * *,

may prescribe by regulation as necessary or appropriate for the

enforcement of this Act or for developing information regarding the

causes and prevention of occupational accidents and illnesses.''

Section 8(g)(2) empowers the Secretary of labor to ``prescribe such

rules and regulations as he may deem necessary to carry out [his]

responsibilities under this Act.'' Moreover, pursuant to Section

8(c)(1), the Secretary has authority to issue regulations requiring

employers to keep their employees informed of the employers'

responsibilities under the Act. Section 9(b) authorizes the Secretary

to promulgate regulations associated with the posting of citations.

In addition, the Secretary's responsibilities under the Act are

defined largely by its enumerated purposes, which include: Providing

for appropriate reporting procedures that will help achieve the

objectives of this Act and accurately describe the nature of the

occupational safety and health problem [29 U.S.C. 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 Secretary asserts

that the proposed regulation is necessary and appropriate to conduct

enforcement responsibilities under the Act, to develop information

about the prevention of occupational accidents and illnesses, and to

inform employees of their protections and obligations under the Act.

IV. Comments and Information Requested

Comment is requested on all issues involving the proposed

regulation. In particular, OSHA requests comment on the following

questions:

1. What type of documentary evidence should OSHA require employers

to submit as proof of final abatement? Should the type of documentation

required to be submitted as proof of final abatement vary according to

what is required for abatement, the type of hazard, or the

classification of violation (i.e., willful, repeat, serious, other-

than-serious, regulatory)? What criteria should OSHA apply in judging

either the sufficiency or quality of the documentation?

2. What are the costs (time and money) of complying with this new

regulation and the basis for estimating these costs?

3. What will be the effects of the requirement that employers post

their abatement documents?

4. How do the proposed abatement verification procedures differ

from current or previous practices of informing OSHA that abatement has

been accomplished?

5. How much time does each employer currently spend on abatement

verification?

6. What is the appropriate level of management to sign the

abatement verification?

7. What are employer experiences with verifying abatement of cited

conditions for other Federal and State agencies, especially State

occupational safety and health agencies?

8. Given the need for evidence of abatement, should an employer be

required to submit abatement certification if the employer has actually

abated the condition during the OSHA inspection?

9. Should OSHA develop an abatement certification form? If so, what

information should the form contain?

10. OSHA is proposing in paragraph (f) the use of a tag to be

placed on cited equipment to alert affected employees that a hazardous

condition exists with the equipment. Specific comment is requested on

this particular issue. What information should the tag contain?

V. References

OSHA Policy Changes Needed to Confirm That Employers Abate Serious

Hazards (GAO/HRD-91-35, Report to Congressional Requesters, May

1991).

OSHA Instruction CPL 2.45B--Field Operations Manual (FOM).

VI. Preliminary Regulatory Impact Analysis for Abatement

Verification

A. Introductory

Executive Order 12866 (58 FR 51735) requires regulatory agencies to

assess the costs and benefits of intended regulations, to consider the

possible alternatives, and to select the most cost-effective form of

regulation. The Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

requires the Occupational Safety and Health Administration (OSHA) to

consider the impact of the regulation on small entities.

This regulatory impact analysis presents the costs, benefits (cost

savings), and economic impact of the proposed regulation requiring

certification of abatement. The impact on small businesses is also

presented.

The Agency has preliminarily concluded that this regulation is not

a ``significant regulatory action'' as defined in Executive Order

12866, Section 3, Paragraph (f).

The proposed regulation for abatement verification would require

employers to notify OSHA Area Directors whether or not cited violations

have been abated. It would require employer to notify OSHA Area

Directors whether or not cited violations have been abated. It would

also require employers to offer documentation of abatement plans and

progress reports for multi-step abatement efforts. Based on a survey of

OSHA regional offices, OSHA estimates that as many as 70 percent of

cited employers eventually certify and document their abatement actions

to some degree at the present time. This regulatory action will

potentially affect all employers covered by the OSH Act.

This regulatory action can impose penalties for non-reporting of

conditions even if they have been abated and can also lead to an

increase in the penalties that employers face from unabated, violative

conditions. Failure to verify abatement on a timely basis is an

additional violation. When abatement is verified by the employer but

not actually performed, criminal penalties for false statement may

apply. Increased penalties give employers an incentive both to abate

and to verify abatement, and to do so in a timely manner. Abatement

reduces the risk of injury, illness, and death for employees. The

Agency has not estimated the extent of injuries, illnesses, and deaths

averted by this regulatory action, because abatement itself is already

required by the OSH Act.

B. Costs of Compliances

Certifying Abatement

Federal OSHA and State-plan agencies performed about 127,000

workplace inspections in 1991, issuing about 413,000 separate

(upgrouped) violations (Table 1). Less than 1 percent of the violations

were for failure to abate. About 10 percent of all citations were

contested.

There were about 9,000 follow-up inspections by OSHA and State-plan

agencies in 1991 that resulted in about 4,300 violations, of which 71

were for failure to abate (Table 2). About 18 percent of all follow-up

violations were contested.

The Agency estimates that it will take firms, on average, 15

minutes to prepare and mail documentation to certify abatement,

independent of firm size. The Agency estimates that the managers or

proprietors who prepare the certification of abatement earn a total

wage of $25 per hour, based on data in the Bureau of Labor Statistics

news, June 18, 1993.

A ceiling, or maximum estimate, of the cost to employers for

verifying abatement, including preparation of abatement certificates

and submission of documentation, can be calculated by multiplying the

number of violations with the estimated average time to verify

abatement (not the time and cost to comply with the OSHA standard

cited) and with the supervisory wage rate (annual, including benefits),

or

412,707 violations x .25 hours per citation x $25/hour=

=$2.6 million annually.

Since a large fraction of employers cited for violations now inform

OSHA that abatement was performed and sometimes offer documentation,

the new additional cost to employers from this regulation is probably

much less than the ceiling estimate of $2.6 million annually. Other

costs, such as for photocopying, photography, or other documenting

activity, are believed to be minimal. The cost of tags for cited

equipment is also minor as both the general industry and construction

standards already contain accident prevention tagging requirements (See

1910.145 and 1926.200).

Abatement Plans and Progress Reports

The proposed regulation allows the Agency's Area Director ``at his

or her discretion'' to require an abatement plan and progress reports

when multi-step abatement is ``deemed appropriate.'' At the current

time, when the Area Director issues a citation to an employer (usually

involving air contaminants, noise, or ergonomics) which will require a

long, or multi-step, abatement effort, the citation letter lists both

the steps to be taken and a schedule for completion. The Agency in its

citation letter informs the employer that it must send progress reports

to the Area Director.

Since the employer will have in hand OSHA's proposed plan for

multi-step abatement to use as a guide, the Agency estimates that it

will take an employer two hours to write the plan as required by the

proposed regulation. The Agency estimates that, on average, there are

three steps in a multi-step abatement and that it will take the

employer 30 minutes to prepare each progress report. The Agency

estimates that the total wage rate of a supervisor, manager, or

proprietor who would perform this work is $25 per hour (Bureau of Labor

Statistics News, June 18, 1993).

Currently, citations requiring multi-stage abatement efforts are a

small percentage of all citations. Virtually all of the multi-stage

abatements for Federal violations are for three causes: Ergonomics,

noise, and permissible air limits. In 1991 there were 749 Federal OSHA

inspections that resulted in citations for ergonomics, air

contaminants, noise, or single-substance OSHA standards, resulting in

1,934 violations (all of which would have required multiple step

abatement). Based on this number of multi-stage abatements required in

Fiscal year 1991, and assuming that State-plan agencies had an equal

number, the Agency estimates that the cost of proposing multi-step

abatement plans and providing progress reports is:

Cost = (1934 x 2) x $25/hr x [2 hours + (3 x \1/2\ hours)] =

$338,450.

C. Benefits (Cost Savings)

Verification Efforts

This regulatory action will reduce time-consuming efforts required

of OSHA's enforcement officers to verify and document abatement in

order to close files, thereby increasing the time available for

inspection activities. OSHA's Directorate of Compliance Programs

estimates that these efforts consume approximately 5 percent of

compliance staff time, or the equivalent of 50 full-time compliance

officers for Federal enforcement. The Agency estimates that an equal

number of full-time equivalents perform this task for State-plan

agencies, or a total of 100 full-time-equivalents. With an average

estimated salary of $50,000 including benefits, the dollar value of

this time is approximately $5 million annually. The Agency estimates

that the increased work of collecting and analyzing abatement

certificates and accompanying documentation for enforcement agencies

will be minor--OSHA is currently receiving abatement information for

approximately 70 percent of its citations. The Agency estimates that

affected employers should also save approximately the same amount of

time and money ($5 million annually) spent in responding to OSHA's

letters and calls seeking verification of abatement.

Follow-Up Inspections

In FY 1991, Federal OSHA performed about 2,000 follow-up

inspections, and State-plan agencies about 7,000 (Table 2), for a total

of about 9,000 annually. Combined, these efforts represented 100,700

staff hours,\5\ or approximately 50 full-time compliance officers. One

of the Agency's goals in promulgating this regulation is to reduce the

resources employed in follow-up inspections as well as other

unproductive efforts associated with abatement verification. The

Agency's Directorate of Compliance estimates that under this

regulation, the Agency will decrease its follow-up inspections by half,

and OSHA estimates that State-plan agencies will do the same. With an

estimated average salary and benefits of $50,000, cutting follow-up

inspections by half will save enforcement agencies $1.25 million in

resources annually.

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

\5\Estimated follow-up inspection staff hours:

1,477 (Fed) safety x 14 Avg. Hrs./follow-up = 20,678 Hrs.

562 (Fed) health x 46 Avg. Hrs./follow-up = 25,852 Hrs.

5,610 (State) safety x 6 Avg. Hrs./follow-up = 33,660 Hrs.

1,465 (State) health x 14 Avg. Hrs./follow-up = 20,510 Hrs.

Total = 100,700 Hrs.

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

Although a significant portion of a Compliance Officer's time is

spent in preparation and travel to a worksite for these inspections, at

the worksite he or she is accompanied by one or more employer

representatives as well as an employees representative. The Agency

estimates that: The total hourly wage of the employer's representative

is $25; the total wage of the employee's representative is $15 (BLS

News, June 18, 1993); and that a follow-up inspection takes, on

average, three hours. The Agency estimates that reducing the number of

follow-up inspections by half will annually save employers $540,000

[4,500 inspections x 3 hrs x ($25 + $15)].

D. Economic Impact

The Agency estimates that the economic impact on individual

employers, industry profits, and product prices to be insignificant for

every affected industry, and therefore concludes that the regulation is

economically feasible. Only 15 minutes of a manager's time, on average,

should be needed to verify abatement and provide some documentation.

Since employers will avoid time spent responding to verification

requests from the Agency as well as follow-up inspections, the Agency

estimates that overall there is a net savings for employers. There is a

savings of resources for Federal OSHA and State-plan states. As a whole

this regulation should result in a saving of resources (Table 3).

Table 1.--OSHA Inspection Data 1991

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

State

Federal plan Total

OSHA States

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

Inspections:

Safety............................. 33,346 70,358 103,704

Health............................. 8,963 14,053 23,016

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

Total.......................... 42,309 84,411 126,720

Violations:

Willful............................ 2,437 950 3,387

Repeat............................. 3,525 6,948 10,473

Serious............................ 93,600 58,391 151,991

Unclassified....................... 30 0 30

Other-Than-Serious................. 50,845 167,983 218,828

Failure to Abate................... 1,333 2,278 3,611

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

Total grouped violations....... 151,770 - -

Total ungrouped violations..... 176,157 236,550 412,707

================================

Contested Citations............ 3,339 5,088 8,427

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

Source: OSHA's Office of Regulatory Analysis.

Table 2.--OSHA Follow-Up Inspection Data 1991

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

State

Federal plan Total

OSHA States

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

Inspections:

Safety............................. 1,477 5,610 7,087

Health............................. 562 1,465 2,027

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

Total.......................... 2,039 7,075 9,114

Average Case hrs./Inspection

Safety............................. 14 6 .........

Health............................. 46 14 .........

Violations:

Willful............................ 35 38 73

Repeat............................. 688 423 1,111

Serious............................ 991 303 1,294

Unclassified....................... 1 0 1

Other-Than-Serious................. 773 1,005 1,778

Failure to Abate................... 43 28 71

================================

Contested citations............ 119 116 235

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

Source: OSHA's Office of Regulatory Analysis.

Table 3.--Estimates of Costs and Cost Savings of Certification of Abatement

[In millions of dollars]

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

Firms Federal and State

---------------------- OSHA

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

Costs Savings Costs Savings

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

Compliance Cost:

Abatement verification......................................... 2.6 ......... 0 ..........

Abatement plans & progress reports............................. 0.3 ......... 0 ..........

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

Total costs................................................ 2.9 ......... 0 ..........

COST SAVINGS:

Verification cost savings...................................... ......... 5.0 ......... 5.0

Reduction in follow-up activities.............................. ......... .5 ......... 1.25

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

Total Savings.............................................. ......... 5.5 ......... 6.25

=========== ===========

Net Savings................................................ ......... 2.6 ......... 6.25

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

Source: OSHA's Office of Regulatory Analysis.

VII. Regulatory Flexibility Certification

Pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et

seq.), the Agency preliminarily certifies that the proposed regulation

would not have a significant impact on small businesses in any

industry. As shown in the earlier section on costs of compliance, the

cost to individual small establishments is estimated to be the same as

for larger establishments. The costs to establishments in every

industry are very low. In addition, OSHA inspects proportionately more

large establishments than small establishments, and the Agency as a

matter of policy does not perform some types of inspections on

establishments having ten or fewer employees. The Agency therefore

concludes that this regulation does not place any undue burden on small

businesses.

VIII. Environmental Impact Assessment

Finding of No Significant Impact

This regulation has been reviewed in accordance with the

requirements of the National Environmental Policy Act (NEPA) of 1969

(42 U.S.C. 4321, et seq.), the regulations of the Council on

Environmental Quality (CEQ) (40 CFR part 1500), and the Department of

Labor's NEPA procedures (29 CFR part 11). The Agency estimates that the

regulation and employers' compliance efforts will not have any impact

on the environment or result in the release of materials that

contaminate natural resources or the environment.

IX. Federalism

This proposed regulation has been reviewed in accordance with

Executive Order 12612 (52 FR 41685, October 30, 1987), regarding

Federalism. This Order requires that agencies, to the extent possible,

refrain from limiting State policy options, consult with States prior

to taking any actions which would restrict State policy options, and

take such actions only when there is clear constitutional authority and

the presence of a problem of national scope. The Order provides for

preemption of State law only if there is a clear congressional intent

for the Agency to do so. Any such preemption is to be limited to the

extent possible.

With respect to States that do not have State plans, the proposed

regulation conforms to the preemption provisions of section 18 of the

OSH Act (29 U.S.C. 667) which preempts State promulgation and

enforcement of requirements dealing with occupational safety and health

issues covered by Federal OSHA standards unless the State has an OSHA-

approved State plan. See Gade v. National Solid Wastes Management

Association, 112 S.Ct. 2374 (1992). Since States without State plans

are already prohibited from issuing citations for violations of

requirements covered by Federal OSHA standards, the proposed regulation

does not expand this limitation.

The Agency certifies that this proposed regulation has been

assessed in accordance with the principles, criteria, and requirements

set forth in sections 2 through 5 of Executive Order 12612. Section

18(c)(2) of the OSH Act [29 U.S.C. 667(c)(2)] provides that an OSHA-

approved State plan must provide for the development and enforcement of

safety and health standards which are, or will be, at least as

effective as the Federal program. In implementing this requirement, 29

CFR 1902.3(d)(1) requires a State plan to provide a program for the

enforcement of the State standards which is, or will be, at least as

effective as that provided under the OSH Act, and provide assurances

that the State-plan enforcement program will continue to be at least as

effective as the Federal program. Furthermore, 29 CFR 1902.4(a)

requires State plans to establish the same procedures and rules as

those established by Federal OSHA, or alternative procedures and rules

as effective as the Federal procedures and rules. In particular, a

State plan must provide that employees be informed of their protections

and obligations under the Act. 29 CFR 1902.4(c)(2)(iv). It must also

provide for prompt notice to employers and employees when an alleged

violation of standards has occurred, including the proposed abatement

requirements, by such means as the issuance and posting of citations.

29 CFR 1902.4(c)(2)(x). Since the proposed regulation will improve

Federal OSHA's effectiveness in enforcing the OSH Act and, in

particular, will foster the abatement of violations and communication

to employees about their protections under the Act, State plans will be

required to adopt an identical regulation, or an equivalent regulation

that is at least as effective as the Federal regulation, within six

months of Federal promulgation. Thus, the proposed regulation complies

with the Executive Order 12612 with respect to State plan states

because (1) it deals with a problem of national scope, and (2) the OSH

Act requires that State-plan states adopt OSHA regulations or equally

effective regulations.

State comments are invited on this proposal and will be fully

considered before a final regulation is promulgated.

X. State Plans

There are currently 25 states and other jurisdictions with OSHA-

approved occupational safety and health plans. These 25 jurisdictions

are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky,

Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina,

Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont,

Virginia, Virgin Islands, Washington, and Wyoming; and Connecticut and

New York (for State and Local government employees only).

The 25 jurisdictions with their own OSHA-approved occupational

safety and health plans will be required to adopt a regulation on

abatement verification that is at least as effective as this Federal

regulation within six months of the publication date of this Federal

regulation (i.e. six months after the final rule is published).

Current State abatement verification-procedures are described in

State field operation manuals and/or directives. Although these State

procedures may differ from the Federal procedures, the State-plan

states, like OSHA, generally lack regulations or statutory provisions

specifically addressing this issue, with the exception of Wyoming which

does have a regulation requiring abatement verification. Current State

abatement verification procedures are identical to the Federal except

as described below:

(1) Nine States have abatement verification forms: Alaska,

California, Kentucky, Michigan, North Carolina, Oregon, South Carolina,

Washington, and Wyoming. On these forms, the employers describe the

specific measures taken to correct each alleged violation. Alaska,

Oregon, Washington, Michigan, and Kentucky also ask for documentary

evidence. Alaska requests employers to certify under penalty of perjury

that the violations were abated by the dates specified.

(2) California and Minnesota ask employers to submit progress

reports. California requests monthly progress reports for all long-term

abatements, while Minnesota requests a progress report for all serious

and most other violations of the State's general industry and

construction standards.

(3) For long-term abatements, California requests employers to

submit an abatement plan which outlines their procedures for abatement,

such as plans for controls to be installed, and schedules for

engineering, purchasing, and installation. Washington schedules follow-

up inspections every six months to check progress made on long-term or

multi-step abatement plans.

(4) Some States (e.g., South Carolina and California) send a

reminder letter to the employer just before the abatement verification

form is due. Washington reminds employers by letter or telephone.

Kentucky and California also send follow-up letters if the form is

overdue.

(5) Maryland tracks informal conference settlements to determine if

abatement documentation is adequate.

(6) Wyoming has an enforcement regulation requiring the submission

of written documents saying when abatement has been accomplished.

Failure to do so can result in a civil penalty. Wyoming can also take

legal action to enforce submission of a letter of abatement.

(7) New York, which covers only state and local government

employees, conducts follow-up inspections to verify abatement for every

violation; employers are not asked to send in any abatement

verification information.

XI. Public Participation

Interested persons are invited to submit written comments, data,

views, and arguments on any issue raised by this proposed regulation.

These comments must be postmarked by July 18, 1994, and submitted in

quadruplicate to the OSHA Docket Officer, Docket No. C-03, U.S.

Department of Labor, Occupational Safety and Health Administration,

room N2625, 200 Constitution Avenue NW., Washington, DC 20210. Written

submissions must clearly identify the issues or specific provisions of

the proposal which are being addressed, and the position taken with

respect to these issues or provisions. Comments will be available for

public inspection and copying at the above address between the hours of

8:15 a.m. and 4:45 p.m., Monday through Friday (except Federal

holidays). All timely submissions will additionally, be made part of

the public record for this regulation, and will be available for

inspection. The preliminary regulatory impact assessment and the

exhibits cited in this document will be available for public inspection

and copying at the above address. All comments will be carefully

evaluated and considered by OSHA in developing the final regulation.

XII. OMB Approval Under the Paperwork Reduction Act

5 CFR part 1320 sets forth procedures for agencies to follow in

obtaining OMB clearance for information collection requirements under

the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. This

proposed abatement verification regulation requires employers to submit

to OSHA (1) an abatement certificate and accompanying documentary

evidence, (2) abatement plans and progress reports when specifically

required on the citation, and (3) verification that the hazardous

conditions cited have been corrected. In accordance with the provisions

of the Paperwork Reduction Act and regulations issued pursuant thereto,

OSHA certifies that it has submitted the information collection

requirements for this proposal to OMB for review under section 3504(h)

of the Act.

The public reporting burden for this collection of information is

estimated to average fifteen minutes per citation item. Send any

comments regarding this burden estimate, or any other aspect of these

information-collection procedures, including suggestions for reducing

this burden, to the Office of Information Management, Department of

Labor, room N-1301, 200 Constitution Avenue, NW., Washington, DC 20210,

and to the Office of Information and Regulatory Affairs, Office of

Management and Budget, Washington, DC 20503.

XIII. Authority

This document was prepared under the direction of Joseph A. Dear,

Assistant Secretary of Labor for Occupational Safety and health, U.S.

Department of Labor, 200 Constitution Ave. NW., Washington, DC 20210.

It is issued pursuant to Sections 8(c)(1), 8(g) and 9(b) of the

Occupational Safety and Health Act of 1970, (29 U.S.C. 657, 658).

List of Subjects in 29 CFR Part 1903

Abatement, Law enforcement, Occupational safety and health,

Reporting and recordkeeping requirements.

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

Joseph A. Dear,

Assistant Secretary of Labor.

Part 1903 of title 29 of the Code of Federal Regulations is

proposed to be amended as follows:

PART 1903--INSPECTIONS, CITATION, AND PROPOSED PENALTIES

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

follows:

Authority: Secs. 8, 9, Occupational Safety and Health Act of

1970 (29 U.S.C. 657, 658); Secretary of Labor's Order No. 12-71 (36

FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR

9033), as applicable.

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

Secs. 1903.19, 1903.20, 1903.21 [Redesignated as Secs. 1903.20,

1903.21, 1903.22]

2. Part 1903 would be amended by redesignating Secs. 1903.19,

1903.20, and 1903.21 as Secs. 1903.20, 1903.21, and 1903.22, and by

adding new Sec. 1903.19, to read as follows:

Sec. 1903.19 Abatement verification.

(a) Scope and application. This regulation requires all employers

to verify the abatement of violative conditions set forth in citations,

as detailed below.

(b) Definitions.

Abatement date means (1) the date set forth in a citation for the

abatement of a violation when the citation item has not been contested;

(2) when a citation item has been contested and the Commission has

issued a final order, the date computed by adding to the final order

date either the amount of time allowed for abatement in the original

citation or, if the order modifies the abatement period, the newly

specified period; (3) the date for abatement expressly set forth in a

final order; (4) the date for abatement set forth in a PMA final order;

or (5) the date for abatement expressly set forth in a settlement

agreement.

Abatement plan is a written, detailed plan outlining a schedule for

the implementation of measures to achieve abatement.

Abatement verification includes a final abatement certificate, an

abatement plan and progress reports.

Area Director means the employee or officer regularly or

temporarily in charge of an Area Office of the Occupational Safety and

Health Administration, U.S. Department of Labor, or any other person or

persons who are authorized to act for such employee or officer.

Assistant Secretary means the Assistant Secretary of Labor for

Occupational Safety and Health, or designated representative.

Citation item is a separately designated portion of a citation

containing one or more instances of violation.

Commission is the Occupational Safety and Health Review Commission.

Equipment is a machine or device, powered or unpowered, used to do

work.

Final order date is (1) where the citation item has not been

contested, the fifteenth working day after the employer's receipt of

the notification of proposed penalty with respect to a citation item;

(2) the thirtieth day after the date on which a decision of a

Commission administrative law judge, including an order approving a

settlement or a withdrawal of a notice of contest, has been docketed

with the Commission, unless a member of the Commission has directed

review; (3) where review has been directed, the thirtieth day after the

date on which the Commission issues its decision, including but not

limited to, an order approving a settlement or a withdrawal of a notice

of contest, or an order severing citation items from a case; or (4) the

date on which a court of appeals issues a decision where the Commission

order has been previously stayed.

PMA is a petition for modification of the abatement date.

PMA final order is (1) OSHA's approval of an uncontested PMA; (2)

an order of a Commission administrative law judge granting a PMA, in

whole or in part, unless the judge's decision is directed for review

within thirty days of its docketing with the Commission; (3) an order

of Members of the Commission granting a PMA, in whole or in part, where

review has been directed; or (4) an order of a court of appeals

granting a PMA, in whole or in part.

Progress report is a written report explaining what measures have

been taken, if any, in the process of achieving abatement of a

violative condition in a citation item, other than measures ultimately

achieving abatement; and the dates on which those measures have been

taken.

(c) Abatement certificate. Each employer shall submit to the Area

Director issuing the citation an abatement certificate with respect to

each citation item, and do so within thirty calendar days after the

abatement date for the citation item.

(1) The abatement certificate shall contain the following

information:

(i) Each citation item;

(ii) A statement noting whether or not abatement has been

accomplished with respect to each citation item and instance listed in

the citation;

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

(iv) The date abatement was accomplished;

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

abating;

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

authorized representative;

(vii) The date of the signature.

(2) If the employer has initially stated in an abatement

certificate that a particular citation item has not been abated, and

later the employer abates the condition, the employer shall submit to

the Area Director issuing the citation a new abatement certificate

within five calendar days after abatement.

(3) Abatement certificates for more than one citation item may be

combined in a single document.

(4) Each abatement certificate with respect to a citation item

shall be accompanied by documentary evidence that is sufficient to

demonstrate clearly that the hazard has been corrected.

(d) Abatement plan. (1) An Area Director may require in a citation

that the employer submit a formal plan for the abatement of safety and

health violations in instances where multiple steps or long-term

abatement actions are necessary.

(2) When called for in a citation, the employer shall prepare a

written, signed, and dated abatement plan with respect to each citation

item for which the plan is required.

(3) Abatement plans for more than one citation item may be combined

within a single document.

(4) The abatement plan shall be submitted to the Area Director

issuing the citation within twenty-five calendar days after the date of

the final order or the date of the PMA final order.

(e) Progress reports. An Area Director, at his or her discretion,

may require progress reports in a citation where multi-step abatement

is deemed appropriate.

(1) The Area Director shall specify the citation item with respect

to which the progress reports are required, the measures which the Area

Director expects to be taken on or before the submission of each

progress report, and the date for the submission of each progress

report, expressed as the number of calendar days from the date of the

final order or the date of the PMA final order.

(2) The employer shall submit to the Area Director the requested

progress reports with respect to each citation item for which they are

required under the abatement plan.

(3) Progress reports for more than one citation item may be

combined within a single document.

(4) Progress reports shall be submitted at intervals specified by

the Area Director in the citation, but the first progress report shall

not be submitted earlier than thirty calendar days after the date of

the final order or the date of the PMA final order.

(f) Tagging cited equipment. (1) The employer shall affix a

``Warning'' tag on all cited equipment upon receipt of the citation.

(2) The design, application, and use of the tag required by this

section shall be in accordance with 29 CFR 1910.145(f)(4).

(3) In addition to the information set forth in 1910.145(f), the

tag shall identify the equipment, state that a citation has been

issued, and identify where the citation is posted.

(4) The employer shall ensure that the tag remains affixed to the

cited equipment in a conspicuous location at or near the controls of

such equipment and/or the hazardous portion of the equipment, until the

cited equipment is brought into compliance with OSHA requirements or

the equipment is permanently removed from service. The temporary

removal from service of cited equipment is not compliance with OSHA

requirements for the purpose of this section. The protection and

posting requirements of paragraph (i)(4) of this section are also

applicable to this paragraph.

(g) Document Transmittal. When this section requires submission of

a document to the Area Director, it may be submitted by first-class

mail, postage prepaid, facsimile transmission, or hand delivery. When

the document is mailed, the date of submission is the date of the

postmark. When the document is submitted by facsimile transmission or

hand delivery, the date of submission is the date when the document is

received by the Area Director.

Note: Receipt of an employer's documents by the Agency under this

regulation does not constitute an agreement that the employer is in

compliance.

(h) Accuracy of documentation. The employer shall assure that each

statement in a document or accompanying documentation required by this

section is accurate.

(i) Posting requirements. A copy of each document required to be

submitted to the Area Director shall be posted, at the time of

submission, at or near each place the violation(s) described in the

citation occurred.

(1) Where, because of an employer's operations, it is not

practicable to post a document at or near the location of the

violation(s), such document shall be posted, unedited, in a prominent

place where it will be readily observable by all affected employees.

(2) Where it is physically impracticable, because of a document's

size or magnitude, to post abatement plans and progress reports, a

notice to affected employees shall be posted indicating the location

where the document(s) can be reviewed.

(3) The abatement certificates, abatement plan(s) and progress

reports shall be provided, upon request for examination and copying, to

employees, to employee representatives, and to the Assistant Secretary.

Note: If employers are engaged in activities which are

geographically dispersed (see Sec. 1903.2(b)), the document may be

posted at the location where employees report each day. If employees

do not primarily work at, or report to, a single location (see

Sec. 1903.2(b)), the document may be posted at the location where

employees work.

(4) The employer shall assure that any document required to be

posted by this section is not altered, defaced, or covered by other

material.

(5) Any document required to be posted by this section shall remain

posted until the violation has been abated, or for six calendar days,

whichever is later.

(j) Penalties. Any employer failing to comply with the provisions

of this section shall be subject to citation and penalty in accordance

with the provisions of Section 9 and 17 of the Act.

(k) False statements. False statements knowingly made in any

document required by this section are subject to criminal penalties set

forth in section 17(g) of the Act. False statements knowingly and

willfully made in any document required by this section are subject to

the criminal penalties set forth in 18 U.S.C. 1001.

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

BILLING CODE 4510-26-P