Abatement Verification

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.

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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

[[Page 15326]]

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

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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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