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Title 29

Labor
Parts 1900 to § 1910.999

Revised as of July 1, 2018

Containing a codification of documents


of general applicability and future effect

As of July 1, 2018

Published by the Office of the Federal Register


National Archives and Records Administration
as a Special Edition of the Federal Register
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U.S. GOVERNMENT OFFICIAL EDITION NOTICE

Legal Status and Use of Seals and Logos


The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established under
the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the
contents of the CFR, a special edition of the Federal Register, shall
be judicially noticed. The CFR is prima facie evidence of the origi-
nal documents published in the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA’s official seal and the stylized Code
of Federal Regulations logo on any republication of this material
without the express, written permission of the Archivist of the
United States or the Archivist’s designee. Any person using
NARA’s official seals and logos in a manner inconsistent with the
provisions of 36 CFR part 1200 is subject to the penalties specified
in 18 U.S.C. 506, 701, and 1017.

Use of ISBN Prefix


This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of the 0–16
ISBN prefix is for U.S. Government Publishing Office Official Edi-
tions only. The Superintendent of Documents of the U.S. Govern-
ment Publishing Office requests that any reprinted edition clearly
be labeled as a copy of the authentic work with a new ISBN.

U.S. GOVERNMENT PUBLISHING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001


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http://bookstore.gpo.gov
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Phone: toll-free (866) 512-1800; DC area (202) 512-1800


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Table of Contents
Page
Explanation ................................................................................................ v

Title 29:

SUBTITLE B—REGULATIONS RELATING TO LABOR (CONTINUED)

Chapter XVII—Occupational Safety and Health Administration,


Department of Labor ................................................................... 5

Finding Aids:

Table of CFR Titles and Chapters ....................................................... 985

Alphabetical List of Agencies Appearing in the CFR ......................... 1005

List of CFR Sections Affected ............................................................. 1015


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Cite this Code: CFR

To cite the regulations in


this volume use title,
part and section num-
ber. Thus, 29 CFR
1902.1 refers to title 29,
part 1902, section 1.
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Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
of the Federal Register. These two publications must be used together to deter-
mine the latest version of any given rule.
To determine whether a Code volume has been amended since its revision date
(in this case, July 1, 2018), consult the ‘‘List of CFR Sections Affected (LSA),’’
which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which
appears in the Reader Aids section of the daily Federal Register. These two lists
will identify the Federal Register page number of the latest amendment of any
given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal Reg-
ister since the last revision of that volume of the Code. Source citations for
the regulations are referred to by volume number and page number of the Federal
Register and date of publication. Publication dates and effective dates are usu-
ally not the same and care must be exercised by the user in determining the
actual effective date. In instances where the effective date is beyond the cut-
off date for the Code a note has been inserted to reflect the future effective
date. In those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be inserted following
the text.
OMB CONTROL NUMBERS
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The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies
to display an OMB control number with their information collection request.

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Many agencies have begun publishing numerous OMB control numbers as amend-
ments to existing regulations in the CFR. These OMB numbers are placed as
close as possible to the applicable recordkeeping or reporting requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of the revision
date stated on the cover of each volume are not carried. Code users may find
the text of provisions in effect on any given date in the past by using the appro-
priate List of CFR Sections Affected (LSA). For the convenience of the reader,
a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume.
For changes to the Code prior to the LSA listings at the end of the volume,
consult previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published for 1949-
1963, 1964-1972, 1973-1985, and 1986-2000.
‘‘[RESERVED]’’ TERMINOLOGY
The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal
Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ loca-
tion at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that
a portion of the CFR was left vacant and not accidentally dropped due to a print-
ing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was established
by statute and allows Federal agencies to meet the requirement to publish regu-
lations in the Federal Register by referring to materials already published else-
where. For an incorporation to be valid, the Director of the Federal Register
must approve it. The legal effect of incorporation by reference is that the mate-
rial is treated as if it were published in full in the Federal Register (5 U.S.C.
552(a)). This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the Federal Register
will approve an incorporation by reference only when the requirements of 1 CFR
part 51 are met. Some of the elements on which approval is based are:
(a) The incorporation will substantially reduce the volume of material pub-
lished in the Federal Register.
(b) The matter incorporated is in fact available to the extent necessary to
afford fairness and uniformity in the administrative process.
(c) The incorporating document is drafted and submitted for publication in
accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If you have any
problem locating or obtaining a copy of material listed as an approved incorpora-
tion by reference, please contact the agency that issued the regulation containing
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available, please notify the Director of the Federal Register, National Archives
and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or
call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a separate
volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
This volume contains the Parallel Table of Authorities and Rules. A list of CFR
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titles, chapters, subchapters, and parts and an alphabetical list of agencies pub-
lishing in the CFR are also included in this volume.

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An index to the text of ‘‘Title 3—The President’’ is carried within that volume.
The Federal Register Index is issued monthly in cumulative form. This index
is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-
ister.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing in the
Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this volume,
contact the issuing agency. The issuing agency’s name appears at the top of
odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202–741–6000 or write
to the Director, Office of the Federal Register, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail
fedreg.info@nara.gov.
SALES
The Government Publishing Office (GPO) processes all sales and distribution
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of CFR Sections
Affected), The United States Government Manual, the Federal Register, Public
Laws, Public Papers of the Presidents of the United States, Compilation of Presi-
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512-1800 (toll-free). E-mail, ContactCenter@gpo.gov.
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Archives and Records Administration’s (NARA) World Wide Web site for public
law numbers, Federal Register finding aids, and related information. Connect
to NARA’s web site at www.archives.gov/federal-register.
The e-CFR is a regularly updated, unofficial editorial compilation of CFR ma-
terial and Federal Register amendments, produced by the Office of the Federal
Register and the Government Publishing Office. It is available at www.ecfr.gov.

OLIVER A. POTTS,
Director,
Office of the Federal Register.
July 1, 2018.
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THIS TITLE

Title 29—LABOR is composed of nine volumes. The parts in these volumes are
arranged in the following order: Parts 0–99, parts 100–499, parts 500–899, parts 900–
1899, parts 1900–§ 1910.999, part 1910.1000–end of part 1910, parts 1911–1925, part 1926,
and part 1927 to end. The contents of these volumes represent all current regula-
tions codified under this title as of July 1, 2018.

The OMB control numbers for title 29 CFR part 1910 appear in § 1910.8. For
the convenience of the user, § 1910.8 appears in the Finding Aids section of the
volume containing § 1910.1000 to the end.

Subject indexes appear following the occupational safety and health standards
(part 1910).

For this volume, Ann Worley was Chief Editor. The Code of Federal Regula-
tions publication program is under the direction of John Hyrum Martinez, as-
sisted by Stephen J. Frattini.
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Title 29—Labor
(This book contains parts 1900 to § 1910.999)

SUBTITLE B—REGULATIONS RELATING TO LABOR (CONTINUED)


Part

CHAPTER XVII—Occupational Safety and Health Administra-


tion, Department of Labor ................................................. 1902
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Subtitle B—Regulations
Relating to Labor
(Continued)
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CHAPTER XVII—OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION, DEPARTMENT OF
LABOR

Part Page
1900–1901 [Reserved]
1902 State plans for the development and enforcement
of State standards ................................................ 7
1903 Inspections, citations and proposed penalties ......... 30
1904 Recording and reporting occupational injuries and
illnesses ................................................................ 47
1905 Rules of practice for variances, limitations, vari-
ations, tolerances, and exemptions under the
Williams-Steiger Occupational Safety and
Health Act of 1970 ................................................. 73
1906 Administration witnesses and documents in pri-
vate litigation [Reserved]
1908 Consultation agreements ........................................ 84
1910 Occupational safety and health standards .............. 95
Subject Index for 29 CFR Part 1910—Occupational
Safety and Health Standards ............................... 938
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PARTS 1900–1901 [RESERVED] COMPLETION OF DEVELOPMENTAL STEPS—
CERTIFICATION

PART 1902—STATE PLANS FOR THE 1902.33 Developmental period.


1902.34 Certification of completion of devel-
DEVELOPMENT AND ENFORCE- opmental steps.
MENT OF STATE STANDARDS 1902.35 Effect of certification.

Subpart A—General BASIS FOR 18(e) DETERMINATIONS


1902.36 General provisions.
Sec. 1902.37 Factors for determination.
1902.1 Purpose and scope.
1902.2 General policies. PROCEDURES FOR 18(e) DETERMINATION

Subpart B—Criteria for State Plans 1902.38 Evaluation of plan following certifi-
cation.
1902.3 Specific criteria. 1902.39 Completion of evaluation.
1902.4 Indices of effectiveness. 1902.40 Informal hearing.
1902.5 Intergovernmental Cooperation Act 1902.41 Decision.
of 1968. 1902.42 Effect of affirmative 18(e) deter-
1902.6 Consultation with the National Insti- mination.
tute for Occupational Safety and Health. 1902.43 Affirmative 18(e) decision.
1902.7 Injury and illness recording and re- 1902.44 Requirements applicable to State
porting requirements. plans granted affirmative 18(e) deter-
1902.8 Variations and variances. minations.
1902.9 Requirements for approval of State 1902.45 [Reserved]
posters. 1902.46 Negative 18(e) determination.
PROCEDURE FOR RECONSIDERATION AND REV-
Subpart C—Procedures for Submission,
OCATION OF AN AFFIRMATIVE 18(e) DETER-
Approval and Rejection of State Plans MINATION
1902.10 Submission. 1902.47 Reconsideration of an affirmative
18(e) determination.
PROCEDURE FOR PROPOSED OR POSSIBLE 1902.48 The proceeding.
APPROVAL OF PLAN 1902.49 General notice.
1902.11 General notice. 1902.50 Informal hearing.
1902.12 Opportunity for modifications and 1902.51 Certification of the records of a
clarifications. hearing.
1902.13 Informal hearing. 1902.52 Decision.
1902.14 Formal hearing. 1902.53 Publication of decisions.
1902.15 Certification of the record of a hear-
AUTHORITY: Sec. 18, 84 Stat. 1608 (29 U.S.C.
ing.
667); Secretary of Labor’s Order No. 1–2012 (77
1902.16 Partial approval of State plans.
FR 3912, Jan. 25, 2012).
PROCEDURE FOR PROPOSED OR POSSIBLE SOURCE: 36 FR 20751, Oct. 29, 1971, unless
REJECTION OF PLAN otherwise noted.
1902.17 The proceeding.
1902.18 Previous hearing or other oppor- Subpart A—General
tunity for comment on plan.
1902.19 Notice of hearing. § 1902.1 Purpose and scope.
DECISIONS (a) This part applies the provisions of
1902.20 Decision following informal pro- section 18 of the Williams-Steiger Oc-
ceeding. cupational Safety and Health Act of
1902.21 Tentative decision following formal 1970 (hereinafter referred to as the Act)
proceeding. relating to State plans for the develop-
1902.22 Final decision following formal pro- ment and enforcement of State occupa-
ceeding. tional safety and health standards. The
1902.23 Publication of decisions. provisions of the part set forth the pro-
Subpart D—Procedures for Determinations cedures by which the Assistant Sec-
Under Section 18(e) of the Act retary for Occupational Safety and
Health (hereinafter referred to as the
GENERAL Assistant Secretary) under a delega-
tion of authority from the Secretary of
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1902.30 Purpose and scope.


1902.31 Definitions. Labor (Secretary’s Order No. 12–71, 36
1902.32 General policies. FR 8754, May 12, 1971) will approve or

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§ 1902.1 29 CFR Ch. XVII (7–1–18 Edition)

reject State plans submitted to the § 1902.2(b), until the State has com-
Secretary. In the Act, Congress de- pleted all the steps specified in its plan
clared it to be its purpose and policy which are designed to make it at least
‘‘* * * to assure so far as possible every as effective as the Federal program and
working man and woman in the Nation the Assistant Secretary has had at
safe and healthful working conditions least 1 year in which to evaluate the
and to preserve our human resources’’ program on the basis of actual oper-
by, among other actions and programs, ations. After the determination that
‘‘* * * encouraging the State to assume the State is applying the criteria of
the fullest responsibility for the ad- section 18(c) of the Act, the Assistant
ministration and enforcement of their Secretary’s enforcement authority
occupational safety and health laws. shall not apply with respect to any oc-
Section 18(a) of the Act is read as pre- cupational safety or health issue cov-
venting any State agency or court ered by the plan. Notwithstanding plan
from asserting jurisdiction under State approval and a determination under
law over any occupational safety or section 18(e) that the section 18(c) cri-
health issue with respect to which a teria are being followed, the Assistant
Federal standard has been issued under Secretary shall make a continuing
section 6 of the Act. However, section evaluation, as provided in section 18(f)
18(b) provides that any State that de- of the Act, of the manner in which the
sires to assume responsibility for the State is carrying out the plan.
development and enforcement therein (2) Federal enforcement authority
of occupational safety and health which must be retained by the Assist-
standards relating to issues covered by ant Secretary until actual operations
corresponding standards promulgated prove the State plan to be at least as
under section 6 of the Act shall submit effective as the Federal program, will
a plan for doing so to the Assistant be exercised to the degree necessary to
Secretary. assure occupational safety and health.
(b) Section 18(c) of the Act sets out Factors to be considered in deter-
certain criteria that a plan which is mining the level of Federal effort dur-
submitted under section 18(b) of the ing this period include:
Act must meet, either initially or upon (i) Whether the plan is developmental
modification, if it is to be approved. (i.e., approved under § 1902.2(b)) or com-
Foremost among these criteria is the plete (i.e., approved under § 1902.2 (a)).
requirement that the plan must pro- (ii) Results of evaluations conducted
vide for the development of State by the Assistant Secretary.
standards and the enforcement of such (3) Whenever the Assistant Secretary
standards which are or will be at least determines, after giving notice and af-
as effective in providing safe and fording the State an opportunity for a
healthful employment and places of hearing, that in the administration of
employment as the standards promul- the State plan there is a failure to
gated under section 6 of the Act which comply substantially with any provi-
relate to the same issues. sion of the plan or any assurance con-
(c)(1) If the Assistant Secretary ap- tained therein, he shall withdraw ap-
proves a State plan submitted under proval of such plan in whole or in part,
section 18(b), he may, but is not re- and upon notice the State shall cease
quired to, exercise his enforcement au- operations under any disapproved plan
thority with respect to Federal stand- or part thereof, except that it will be
ards corresponding to standards ap- permitted to retain jurisdiction as to
proved under the plan until he deter- any case commenced before withdrawal
mines, in accordance with section 18(e) of approval whenever the issues in-
of the Act, on the basis of actual oper- volved do not relate to the reasons for
ations under the plan, that the State is the withdrawal of the plan.
applying the criteria of section 18(c) of (4) A determination of approval of a
the Act. The Assistant Secretary shall State plan under section 18(e) does not
not make this determination (i) for at affect the authority and responsibility
least 3 years after initial approval of of the Assistant Secretary to enforce
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the plan, and (ii) in the case of a devel- Federal standards covering issues not
opmental plan approved under included under the State plan.

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Occupational Safety and Health Admin., Labor § 1902.2

(d) The policy of the Act is to encour- conformity with these criteria within
age the assumption by the States of the 3-year period immediately fol-
the fullest responsibility for the devel- lowing the commencement of the
opment and enforcement of their own plan’s operation. In such case, the
occupational safety and health stand- State plan shall include the specific ac-
ards. This assumption of responsibility tions it proposes to take and a time
is considered to include State develop- schedule for their accomplishment not
ment and enforcement of standards on to exceed 3 years, at the end of which
as many occupational safety and the State plan will meet the criteria in
health issues as possible. To these § 1902.3. A developmental plan shall in-
ends, the Assistant Secretary intends clude the date or dates within which
to cooperate with the States so that intermediate and final action will be
they can obtain approval of plans for accomplished. If necessary program
the development and enforcement of changes require legislative action by a
State standards which are or will be at State, a copy of a bill or a draft of leg-
least as effective as the Federal stand- islation that will be or has been pro-
ards and enforcement. posed for enactment shall be sub-
(e) After the Assistant Secretary has mitted, accompanied by (1) a state-
approved a plan, he may approve one or ment of the Governor’s support of the
more grants under section 23(g) of the legislation and (2) a statement of legal
Act to assist the State in admin- opinion that the proposed legislation
istering and enforcing its program for will meet the requirements of the Act
occupational safety and health in ac- and this part in a manner consistent
cordance with appropriate instructions with the State’s constitution and laws.
or procedures to be promulgated by the On the basis of the State’s submission
Assistant Secretary. the Assistant Secretary will approve
[36 FR 20751, Oct. 29, 1971, as amended at 61 the plan if he finds that there is a rea-
FR 9230, Mar. 7, 1996] sonable expectation that the State
plan will meet the criteria in § 1902.3
§ 1902.2 General policies. within the indicated 3-year period. In
(a) Policy. The Assistant Secretary such case, the Assistant Secretary
will approve a State plan which pro- shall not make a determination under
vides for an occupational safety and section 18(e) of the Act that a State is
health program with respect to covered fully applying the criteria in § 1902.3
issues that in his judgment meets or until the State has completed all the
will meet the criteria set forth in developmental steps specified in its
§ 1902.3. Included among these criteria plan which are designed to make it at
is the requirement that the State plan least as effective as the Federal pro-
provide for the development and en- gram, and the Assistant Secretary has
forcement of standards relating to had at least 1 year to evaluate the plan
issues covered by the plan which are or on the basis of actual operations. If at
will be at least as effective in providing the end of 3 years from the date of
safe and healthful employment and commencement of the plan’s develop-
places of employment as standards pro- ment, the State is found by the Assist-
mulgated and enforced under section 6 ant Secretary, after affording the State
of the Act on the same issues. In deter- notice and opportunity for a hearing,
mining whether a State plan satisfies not to have substantially completed
the requirement of effectiveness, the the developmental steps of the plan,
Assistant Secretary will measure the the Assistant Secretary shall withdraw
plan against the indices of effective- the approval of the plan.
ness set forth in § 1902.4. (c) Scope of State plan. (1) A State
(b) Developmental plan. A State plan plan may cover any occupational safe-
for an occupational safety and health ty and health issue with respect to
program may be approved although, which a Federal standard has been pro-
upon submission it does not fully meet mulgated under section 6 of the Act.
the criteria set forth in § 1902.3, if it in- An ‘‘issue’’ is considered to be an in-
cludes satisfactory assurances by the dustrial, occupational or hazard group-
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State that it will take the necessary ing which is at least as comprehensive
steps to bring the State program into as a corresponding grouping contained

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§ 1902.3 29 CFR Ch. XVII (7–1–18 Edition)

in (i) one or more sections in subpart B the responsibility and authority for the
or R of part 1910 of this chapter, or (ii) development and enforcement of stand-
one or more of the remaining subparts ards, provided that the State agency or
of part 1910. However, for cause shown agencies are given adequate authority
the Assistant Secretary may approve a by statute, regulation, or agreement,
plan relating to other industrial, occu- to insure that the commitments of the
pational or hazard groupings if he de- State under the plan will be fulfilled.
termines that the plan is administra- (c) Standards. (1) The State plan shall
tively practicable and that such include or provide for the development
groupings would not conflict with the or adoption of, and contain assurances
purposes of the Act. that the State will continue to develop
(2) Each State plan shall describe the or adopt, standards which are or will be
occupational safety and health issue or at least as effective as those promul-
issues and the State standard or stand- gated under section 6 of the Act. Indi-
ards applicable to each such issue or ces of the effectiveness of standards
issues over which it desires to assume and procedures for the development or
enforcement responsibility in terms of adoption of standards against which
the corresponding Federal industrial, the Assistant Secretary will measure
occupational or hazard groupings and the State plan in determining whether
set forth the reasons, supported with it is approvable are set forth in
appropriate data, for any variations § 1902.4(b).
the State proposes from the coverage (2) The State plan shall not include
of Federal standards. standards for products distributed or
(3) The State plan shall apply to all used in interstate commerce which are
employers and employees within the different from Federal standards for
affected industry, occupational or haz- such products unless such standards
ard grouping unless the Assistant Sec- are required by compelling local condi-
retary finds that the State has shown tions and do not unduly burden inter-
good cause why any group or groups of state commerce. This provision, re-
employers or employees should be ex- flecting section 18(c)(2) of the Act, is
cluded. Any employers or employees so interpreted as not being applicable to
excluded shall be covered by applicable customized products or parts not nor-
Federal standards and enforcement mally available on the open market, or
provisions in the Act. to the optional parts or additions to
products which are ordinarily available
Subpart B—Criteria for State Plans with such optional parts or additions.
In situations where section 18(c)(2) is
§ 1902.3 Specific criteria. considered applicable, and provision is
(a) General. A State plan must meet made for the adoption of product
the specific criteria set forth in this standards, the requirements of section
section. 18(c)(2), as they relate to undue burden
(b) Designation of State agency. (1) The on interstate commerce, shall be treat-
State plan shall designate a State ed as a condition subsequent in light of
agency or agencies as the agency or the facts and circumstances which may
agencies responsible for administering be involved.
the plan throughout the State. (d) Enforcement. (1) The State plan
(2) The plan shall also describe the shall provide a program for the en-
authority and responsibilities vested in forcement of the State standards which
such agency or agencies. The plan shall is, or will be, at least as effective as
contain assurances that any other re- that provided in the Act, and provide
sponsibilities of the designated agency assurances that the State’s enforce-
shall not detract significantly from the ment program will continue to be at
resources and priorities assigned to ad- least as effective as the Federal pro-
ministration of the plan. gram. Indices of the effectiveness of a
(3) A State agency or agencies must State’s enforcement plan against which
be designated with overall responsi- the Assistant Secretary will measure
bility for administering the plan the State plan in determining whether
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throughout the State. However, polit- it is approvable are set forth in


ical subdivisions of the State may have § 1902.4(c).

10

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Occupational Safety and Health Admin., Labor § 1902.4

(2) The State plan shall require em- (i) Resources. The State plan shall
ployers to comply with all applicable contain satisfactory assurances
State occupational safety and health through the use of budget, organiza-
standards covered by the plan and all tional description, and any other ap-
applicable rules issued thereunder, and propriate means that the State will de-
employees to comply with all stand- vote adequate funds to the administra-
ards, rules, and orders applicable to tion and enforcement of the program.
their conduct. The Assistant Secretary will make
(e) Right of entry and inspection. The periodic evaluations of the adequacy of
State plan shall contain adequate as- the State resources devoted to the
surance that inspectors will have a plan.
right to enter and inspect covered (j) Employer records and reports. The
workplaces which is, or will be, at least State plan shall provide assurances
as effective as that provided in section that employers covered by the plan
8 of the Act. Where such entry or in- will maintain records and make reports
spection is refused, the State agency or to the Assistant Secretary in the same
agencies shall have the authority, manner and to the same extent as if
through appropriate legal process, to the plan were not in effect.
compel such entry and inspection. (k) State agency reports to the Assistant
(f) Prohibition against advance notice. Secretary. The State plan shall provide
The State plan shall contain a prohibi- assurances that the designated agency
tion against advance notice of inspec- or agencies shall make such reasonable
tions. Any exceptions must be ex- reports to the Assistant Secretary in
pressly authorized by the head of the such form and containing such infor-
designated agency or agencies or his mation as he may from time to time
representative and such exceptions require. The agency or agencies shall
may be no broader than those author- establish specific goals, consistent with
ized under the Act and the rules pub- the goals of the Act, including meas-
lished in part 1903 of this chapter relat- ures of performance, output and results
ing to advance notice. which will determine the efficiency and
(g) Legal authority. The State plan effectiveness of the State program, and
shall contain satisfactory assurances shall make periodic reports to the As-
that the designated agency or agencies sistant Secretary on the extent to
have, or will have, the legal authority which the State, in implementation of
necessary for the enforcement of its its plan, has attained these goals. Re-
standards. ports will also include data and infor-
(h) Personnel. The State plan shall mation on the implementation of the
provide assurance that the designated specific inspection and voluntary com-
pliance activities included within the
agency or agencies have, or will have, a
State plan. Further, these reports shall
sufficient number of adequately
contain such statistical information
trained and qualified personnel nec-
pertaining to work-related deaths, in-
essary for the enforcement of the
juries, and illnesses in employments
standards. For this purpose qualified
and places of employment covered by
personnel means persons employed on a
the plan as the Assistant Secretary
merit basis, including all persons en-
may from time to time require.
gaged in the development of standards
and the administration of the State (Approved by the Office of Management and
plan. Conformity with the Standards Budget under control number 1218–0004)
for a Merit System of Personnel Ad- [36 FR 20751, Oct. 29, 1971, as amended at 54
ministration, 45 CFR part 70, issued by FR 24333, June 7, 1989; 80 FR 49901, Aug. 18,
the Secretary of Labor, including any 2015]
amendments thereto, and any stand-
ards prescribed by the U.S. Civil Serv- § 1902.4 Indices of effectiveness.
ice Commission pursuant to section 208 (a) General. In order to satisfy the re-
of the Intergovernmental Personnel quirements of effectiveness under
Act of 1970 (Pub. L. 91–648; 84 Stat. 1915) § 1902.3 (c)(1) and (d)(1), the State plan
modifying or superseding such stand- shall:
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ards, will be deemed to meet this re- (1) Establish the same standards, pro-
quirement. cedures, criteria and rules as have been

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§ 1902.4 29 CFR Ch. XVII (7–1–18 Edition)

established by the Assistant Secretary employees, employers and the public,


under the Act, or; an opportunity to participate in such
(2) Establish alternative standards, processes, by such means as estab-
procedures, criteria, and rules which lishing procedures for consideration of
will be measured against each of the expert technical knowledge, and pro-
indices of effectiveness in paragraphs viding interested persons, including
(b) and (c) of this section to determine employers, employees, recognized
whether the alternatives are at least as standards-producing organizations, and
effective as the Federal program with the public an opportunity to submit in-
respect to the subject of each index. formation requesting the development
For each index the State must dem- or promulgation of new standards or
onstrate by the presentation of factual the modification or revocation of exist-
or other appropriate information that ing standards and to participate in any
its plan is or will be at least as effec- hearings. This index may also be satis-
tive as the Federal program. fied by such means as the adoption of
(b) Standards. (1) The indices for Federal standards, in which case the
measurement of a State plan with re- procedures at the Federal level before
gard to standards follow in paragraph adoption of a standard under section 6
(b)(2) of this section. The Assistant may be considered to meet the condi-
Secretary will determine whether the tions of this index.
State plan satisfies the requirements of (iv) Provides authority for the grant-
effectiveness with regard to each index ing of variances from State standards,
as provided in paragraph (a) of this sec- upon application of an employer or em-
tion. ployers which correspond to variances
(2) The Assistant Secretary will de- authorized under the Act, and for con-
termine whether the State plan: sideration of the views of interested
(i) Provides for State standards with parties, by such means as giving af-
respect to specific issues which are or fected employees notice of each appli-
will be at least as effective as the cation and an opportunity to request
standards promulgated under section 6
and participate in hearings or other ap-
of the Act relating to the same issues.
propriate proceedings relating to appli-
In the case of any State standards deal-
cations for variances.
ing with toxic materials or harmful
physical agents, they should ade- (v) Provides for prompt and effective
quately assure, to the extent feasible, standards setting actions for the pro-
that no employee will suffer material tection of employees against new and
impairment of health or functional ca- unforseen hazards, by such means as
pacity even if such employee has reg- the authority to promulgate emer-
ular exposure to the hazard dealt with gency temporary standards.
by such standard for the period of his (vi) Provides that State standards
working life, by such means as, in the contain appropriate provision for the
development and promulgation of furnishing to employees of information
standards, obtaining the best available regarding hazards in the workplace, in-
evidence through research, demonstra- cluding information about suitable pre-
tions, experiments, and experience cautions, relevant symptoms, and
under this and other safety and health emergency treatment in case of expo-
laws. sure, by such means as labeling, post-
(ii) Provides an adequate method to ing, and, where appropriate, medical
assure that its standards will continue examination at no cost to employees,
to be at least as effective as Federal with the results of such examinations
standards, including Federal standards being furnished only to appropriate
relating to issues covered by the plan, State officials and, if the employee so
which become effective subsequent to requests, to his physician.
any approval of the plan. (vii) Provides that State standards,
(iii) Provides a procedure for the de- where appropriate, contain specific
velopment and promulgation of stand- provision for the protection of employ-
ards which allows for the consideration ees from exposure to hazards, by such
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of pertinent factual information and means as containing appropriate provi-


affords interested persons, including sion for use of suitable protective

12

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Occupational Safety and Health Admin., Labor § 1902.4

equipment and for control or techno- other appropriate sources of informa-


logical procedures with respect to such tion.
hazards, including monitoring or meas- (v) Provides necessary and appro-
uring such exposure. priate protection to an employee
(c) Enforcement. (1) The indices for against discharge or discrimination in
measurement of a State plan with re- terms and conditions of employment
gard to enforcement follow in para- because he has filed a complaint, testi-
graph (c)(2) of this section. The Assist- fied, or otherwise acted to exercise
ant Secretary will determine whether rights under the Act for himself or oth-
the State plan satisfies the require- ers, by such means as providing for ap-
ments of effectiveness with regard to propriate sanctions against the em-
each index as provided in paragraph (a) ployer for such actions and by pro-
of this section.
viding for the withholding, upon re-
(2) The Assistant Secretary will de-
quest, of the names of complainants
termine whether the State plan:
from the employer.
(i) Provides for inspection of covered
workplaces in the State, including in- (vi) Provides that employees have ac-
spections in response to complaints, cess to information on their exposure
where there are reasonable grounds to to toxic materials or harmful physical
believe a hazard exists, in order to as- agents and receive prompt information
sure, so far as possible, safe and health- when they have been or are being ex-
ful working conditions for covered em- posed to such materials or agents in
ployees, by such means as providing for concentrations or at levels in excess of
inspections under conditions such as those prescribed by the applicable safe-
those provided in section 8 of the Act. ty and health standards, by such means
(ii) Provides an opportunity for em- as the observation by employees of the
ployees and their representatives, be- monitoring or measuring of such mate-
fore, during, and after inspections, to rials or agents, employee access to the
bring possible violations to the atten- records of such monitoring or meas-
tion of the State agency with enforce- uring, prompt notification by an em-
ment responsibility in order to aid in- ployer to any employee who has been
spections, by such means as affording a or is being exposed to such agents or
representative of the employer and a materials in excess of the applicable
representative authorized by employ- standards, and information to such em-
ees an opportunity to accompany the ployee of corrective action being
State representative during the phys- taken.
ical inspection of the workplace, or (vii) Provides procedures for the
where there is no authorized represent- prompt restraint or elimination of any
ative, by providing for consultation by conditions or practices in covered
the State representative with a reason- places of employment which could rea-
able number of employees.
sonably be expected to cause death or
(iii) Provides for the notification of
serious physical harm immediately or
employees, or their representatives,
before the imminence of such danger
when the State decides not to take
compliance action as a result of viola- can be eliminated through the enforce-
tions alleged by such employees or ment procedures otherwise provided for
their representatives and further pro- in the plan, by such means as imme-
vides for informal review of such deci- diately informing employees and em-
sions, by such means as written notifi- ployers of such hazards, taking steps to
cation of decisions not to take compli- obtain immediate abatement of the
ance action and the reasons therefor, hazard by the employer, and where ap-
and procedures for informal review of propriate, authority to initiate nec-
such decisions and written statements essary legal proceedings to require
of the disposition of such review. such abatement.
(iv) Provides that employees be in- (viii) Provides adequate safeguards to
formed of their protections and obliga- protect trade secrets, by such means as
tions under the Act, including the pro- limiting access to such trade secrets to
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visions of applicable standards, by such authorized State officers or employees


means as the posting of notices or concerned with carrying out the plan

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§ 1902.4 29 CFR Ch. XVII (7–1–18 Edition)

and by providing for the issuance of ap- lowing elements with regard to cov-
propriate orders to protect the con- erage, standards, and enforcement:
fidentiality of trade secrets. (i) Coverage. The program must cover
(ix) Provides that the State agency all public employees over which the
(or agencies) will have the necessary State has legislative authority under
legal authority for the enforcement of its constitution. The language in sec-
standards, by such means as provisions tion 18(c)(6) which only requires such
for appropriate compulsory process to coverage to the extent permitted by
obtain necessary evidence or testimony the State’s law specifically recognizes
in connection with inspection and en- the situation where local governments
forcement proceedings. exclusively control their own employ-
(x) Provides for prompt notice to em- ees, such as under certain home rule
ployers and employees when an alleged charters.
violation of standards has occurred, in- (ii) Standards. The program must be
cluding the proposed abatement re- as effective as the standards contained
quirements, by such means as the in the approved plan applicable to pri-
issuance of a written citation to the vate employers. Thus, the same cri-
employer and posting of the citation at teria and indices of standards effective-
or near the site of the violation; fur- ness contained in §§ 1902.3(c) and
ther provides for advising the employer 1902.4(a) and (b) would apply to the
of any proposed sanctions, by such public employee program. Where haz-
means as a notice to the employer by ards are unique to public employment,
certified mail within a reasonable time all appropriate indices of effectiveness,
of any proposed sanctions. such as those dealing with temporary
(xi) Provides effective sanctions emergency standards, development of
against employers who violate State standards, employee information,
standards and orders, such as those set variances, and protective equipment,
forth in the Act, and in 29 CFR would be applicable to standards for
1903.15(d). such hazards.
(xii) Provides for an employer to (iii) Enforcement. Although section
have the right of review of violations 18(c)(6) of the Act requires State public
alleged by the State, abatement peri- employee programs to be as effective
ods, and proposed penalties and for em- as standards contained in the State
ployees or their representatives to plan, minimum enforcement elements
have an opportunity to participate in are required to ensure an effective and
review proceedings, by such means as comprehensive public employee pro-
providing for administrative or judicial gram as follows:
review, with an opportunity for a full (A) Regular inspections of work-
hearing on the issues. places, including inspections in re-
(xiii) Provides that the State will un- sponse to valid employee complaints;
dertake programs to encourage vol- (B) A means for employees to bring
untary compliance by employers and possible violations to the attention of
employees by such means as con- inspectors;
ducting training and consultation with (C) Notification to employees, or
employers and employees. their representatives, of decisions that
(d) State and local government employee no violations are found as a result of
programs. (1) Each approved State plan complaints by such employees or their
must contain satisfactory assurances representatives, and informal review of
that the State will, to the extent per- such decisions;
mitted by its law, establish and main- (D) A means of informing employees
tain an effective and comprehensive oc- of their protections and obligations
cupational safety and health program under the Act;
applicable to all employees of public (E) Protection for employees against
agencies of the State and its political discharge of discrimination because of
subdivisions which program is as effec- the exercise of rights under the Act;
tive as the standards contained in an (F) Employee access to information
approved plan. on their exposure to toxic materials or
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(2) This criterion for approved State harmful physical agents and prompt
plans is interpreted to require the fol- notification to employees when they

14

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Occupational Safety and Health Admin., Labor § 1902.7

have been or are being exposed to such National Institute for Occupational
materials or agents at concentrations Safety and Health with regard to plans
or levels above those specified by the submitted by the States under this
applicable standards; part.
(G) Procedures for the prompt re-
straint or elimination of imminent § 1902.7 Injury and illness recording
danger situations; and reporting requirements.
(H) A means of promptly notifying (a) Injury and illness recording and
employers and employees when an al- reporting requirements promulgated by
leged violation has occurred, including State-Plan States must be substan-
the proposed abatement requirements; tially identical to those in 29 CFR part
(I) A means of establishing time- 1904 on recording and reporting occupa-
tables for the correction of violations; tional injuries and illnesses. State-
(J) A program for encouraging vol- Plan States must promulgate recording
untary compliance; and and reporting requirements that are
(K) Such other additional enforce- the same as the Federal requirements
ment provisions under State law as for determining which injuries and ill-
may have been included in the State nesses will be entered into the records
plan. and how they are entered. All other in-
(3) In accordance with § 1902.3(b)(3), jury and illness recording and report-
the State agency or agencies des- ing requirements that are promulgated
ignated to administer the plan
by State-Plan States may be more
throughout the State must retain over-
stringent than, or supplemental to, the
all responsibility for the entire plan.
Federal requirements, but, because of
Political subdivisions may have the re-
the unique nature of the national rec-
sponsibility and authority for the de-
ordkeeping program, States must con-
velopment and enforcement of stand-
sult with OSHA and obtain approval of
ards: Provided, that the designated
such additional or more stringent re-
State agency or agencies have ade-
porting and recording requirements to
quate authority by statute, regulation,
ensure that they will not interfere with
or agreement to insure that the com-
uniform reporting objectives. State-
mitments of the State under the plan
will be fulfilled. Plan States must extend the scope of
(e) Additional indices. Upon his own their regulation to State and local gov-
motion or after consideration of data, ernment employers.
views and arguments received in any (b) A State may not grant a variance
proceeding held under subpart C of this to the injury and illness recording and
part, the Assistant Secretary may pre- reporting requirements for private sec-
scribe additional indices for any State tor employers. Such variances may
plan which shall be in furtherance of only be granted by Federal OSHA to
the purpose of this part, as expressed in assure nationally consistent workplace
§ 1902.1. injury and illness statistics. A State
may only grant a variance to the in-
[36 FR 20751, Oct. 29, 1971, as amended at 80 jury and illness recording and report-
FR 49901, Aug. 18, 2015; 81 FR 43452, July 1,
2016]
ing requirements for State or local
government entities in that State after
§ 1902.5 Intergovernmental Coopera- obtaining approval from Federal
tion Act of 1968. OSHA.
This part shall be construed in a (c) A State must recognize any vari-
manner consistent with the Intergov- ance issued by Federal OSHA.
ernmental Cooperation Act of 1968 (42 (d) As provided in section 18(c)(7) of
U.S.C. 4201–4233), and any regulations the Act, State Plan States must adopt
pursuant thereto. requirements identical to those in 29
CFR 1904.41 in their recordkeeping and
§ 1902.6 Consultation with the Na- reporting regulations as enforceable
tional Institute for Occupational State requirements. The data collected
Safety and Health. by OSHA as authorized by § 1904.41 will
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The Assistant Secretary will consult, be made available to the State Plan
as appropriate, with the Director of the States. Nothing in any State plan shall

15

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§ 1902.8 29 CFR Ch. XVII (7–1–18 Edition)

affect the duties of employers to com- consideration of such application on


ply with § 1904.41. the same material facts for the same
[80 FR 49902, Aug. 18, 2015, as amended at 81
employment or place of employment
FR 29694, May 12, 2016] by the other authority.
(f) Nothing herein shall affect either
§ 1902.8 Variations and variances. Federal or State authority and obliga-
(a) The power of the Secretary of tions to cite for noncompliance with
Labor under section 16 of the Act to standards in employment or places of
provide reasonable limitations and employment where no interim order,
variations, tolerances, and exemptions variance, or modification or extension
to and from any or all provisions of the thereof, granted under State or Federal
Act as he may find necessary and prop- law applies, or to cite for noncompli-
er to avoid serious impairment of the ance with such Federal or State vari-
national defense is reserved. ance action.
(b) No action by a State under a plan [80 FR 49902, Aug. 18, 2015]
shall be inconsistent with action by
the Secretary under this section of the § 1902.9 Requirements for approval of
Act. State posters.
(c) Where a State standard is iden- (a)(1) In order to inform employees of
tical to a Federal standard addressed their protections and obligations under
to the same hazard, an employer or applicable State law, of the issues not
group of employers seeking a tem- covered by State law, and of the con-
porary or permanent variance from tinuing availability of Federal moni-
such standard, or portion thereof, to be toring under section 18(f) of the Act,
applicable to employment or places of States with approved plans shall de-
employment in more than one State, velop and require employers to post a
including at least one State with an State poster meeting the requirements
approved plan, may elect to apply to set out in paragraph (a)(5) of this sec-
the Assistant Secretary for such vari- tion.
ance under the provisions of 29 CFR (2) Such poster shall be substituted
part 1905. for the Federal poster under section
(d) Actions taken by the Assistant 8(c)(1) of the Act and § 1903.2 of this
Secretary with respect to such applica- chapter where the State attains oper-
tion for a variance, such as interim or- ational status for the enforcement of
ders, with respect thereto, the grant- State standards as defined in § 1954.3(b)
ing, denying, or issuing any modifica- of this chapter.
tion or extension thereof, will be (3) Where a State has distributed its
deemed prospectively an authoritative poster and has enabling legislation as
interpretation of the employer or em- defined in § 1954.3(b)(1) of this chapter
ployers’ compliance obligations with but becomes nonoperational under the
regard to the State standard, or por- provisions of § 1954.3(f)(1) of this chap-
tion thereof, identical to the Federal ter because of failure to be at least as
standard, or portion thereof, affected effective as the Federal program, the
by the action in the employment or approved State poster may, at the dis-
places of employment covered by the cretion of the Assistant Secretary, con-
application. tinue to be substituted for the Federal
(e) Nothing herein shall affect the op- poster in accordance with paragraph
tion of an employer or employers seek- (a)(2) of this section.
ing a temporary or permanent variance (4) A State may, for good cause
with applicability to employment or shown, request, under 29 CFR part 1953,
places of employment in more than one approval of an alternative to a State
State to apply for such variance either poster for informing employees of their
to the Assistant Secretary or the indi- protections and obligations under the
vidual State agencies involved. How- State plans, provided such alternative
ever, the filing with, as well as grant- is consistent with the Act,
ing, denial, modification, or revocation § 1902.4(c)(2)(iv) and applicable State
of a variance request or interim order law. In order to qualify as a substitute
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by, either authority (Federal or State) for the Federal poster under this para-
shall preclude any further substantive graph (a), such alternative must be

16

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Occupational Safety and Health Admin., Labor § 1902.10

shown to be at least as effective as the Subpart C—Procedures for Sub-


Federal poster requirements in inform- mission, Approval and Rejec-
ing employees of their protections and tion of State Plans
obligations and address the items list-
ed in paragraph (a)(5) of this section. § 1902.10 Submission.
(5) In developing the poster, the
(a) An authorized representative of
State shall address but not be limited
the State agency or agencies respon-
to the following items:
sible for administering the plan shall
(i) Responsibilities of the State, em- submit one copy of the plan to the ap-
ployers and employees; propriate Assistant Regional Director
(ii) The right of employees or their of the Occupational Safety and Health
representatives to request workplace Administration, U.S. Department of
inspections; Labor. The State plan shall include
(iii) The right of employees making supporting papers conforming to the
such requests to remain anonymous; requirements specified in the subpart B
(iv) The right of employees to par- of this part, and the State occupational
ticipate in inspections; safety and health standards to be in-
(v) Provisions for prompt notice to cluded in the plan, including a copy of
employers and employees when alleged any specific or enabling State laws and
violations occur; regulations relating to such standards.
(vi) Protection for employees against If any of the representations con-
discharge or discrimination for the ex- cerning the requirements of subpart B
ercise of their rights under Federal and of this part are dependent upon any ju-
State law; dicial or administrative interpreta-
(vii) Sanctions; tions of the State standards or enforce-
(viii) A means of obtaining further ment provisions, the State shall fur-
nish citations to any pertinent judicial
information on State law and stand-
decisions and the text of any pertinent
ards and the address of the State agen-
administrative decisions.
cy;
(b) Upon receipt of the State plan the
(ix) The right to file complaints with
Assistant Regional Director shall make
the Occupational Safety and Health
a preliminary examination of the plan.
Administration about State program If his examination reveals any defect
administration; in the plan, the Assistant Regional Di-
(x) A list of the issues as defined in rector shall offer assistance to the
§ 1902.2(c) which will not be covered by State agency and shall provide the
State plan; agency an opportunity to cure such de-
(xi) The address of the Regional Of- fect. After his preliminary examina-
fice of the Occupational Safety and tion, and after affording the State
Health Administration; and agency such opportunity to cure de-
(xii) Such additional employee pro- fects, the Assistant Regional Director
tection provisions and obligations shall submit the plan to the Assistant
under State law as may have been in- Secretary.
cluded in the approved State plan. (c) Upon receipt of the plan from the
(b) Posting of the State poster shall Assistant Regional Director, the As-
be recognized as compliance with the sistant Secretary shall examine the
posting requirements in section 8(c)(1) plan and supporting materials. If the
of the Act and § 1903.2 of this chapter, examination discloses no cause for re-
provided that the poster has been ap- jecting the plan, the Assistant Sec-
proved in accordance with subpart B of retary shall follow the procedure pre-
part 1953 of this chapter. Continued scribed in § 1902.11. If the examination
Federal recognition of the State poster discloses cause for rejection of the
is also subject to pertinent findings of plan, the Assistant Secretary shall fol-
effectiveness with regard to the State low the procedure prescribed in
program under 29 CFR part 1954. § 1902.17.
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[36 FR 20751, Oct. 29, 1971, as amended at 80


[80 FR 49902, Aug. 18, 2015]
FR 49903, Aug. 18, 2015]

17

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§ 1902.11 29 CFR Ch. XVII (7–1–18 Edition)

PROCEDURE FOR PROPOSED OR POSSIBLE mal hearing concerning the proposed


APPROVAL OF PLAN plan, or any part thereof, whenever
particularized written objections
§ 1902.11 General notice. thereto are filed within 30 days fol-
(a) Upon receipt of a State plan sub- lowing publication of the notice in the
mitted by an Assistant Regional Direc- FEDERAL REGISTER. If the Assistant
tor under § 1902.10 whenever the Assist- Secretary finds that substantial objec-
ant Secretary proposes to approve the tions have been filed, he shall afford a
plan, or to give notice that such ap- formal or informal hearing on the sub-
proval is an issue before him, he shall jects and issues involved under § 1902.13
publish in the FEDERAL REGISTER a no- or § 1902.14, or shall commence a pro-
tice meeting the requirements of the ceeding under § 1902.17.
remaining paragraphs of this section. [36 FR 20751, Oct. 29, 1971, as amended at 80
No later than 5 days following the pub- FR 49903, Aug. 18, 2015]
lication of the notice in the FEDERAL
REGISTER, the applying State agency § 1902.12 Opportunity for modifica-
shall publish, or cause to be published, tions and clarifications.
within the State reasonable notice con- The Assistant Secretary may afford
taining the same information. the State an opportunity to modify or
(b) The notice shall indicate the sub- clarify its plan on the basis of any
mission of the plan and its contents, comments received under § 1902.11 or
and any proposals, subjects, or issues § 1902.13, before commencing a pro-
involved. ceeding to reject the plan. In this con-
(c) The notice shall provide that the nection, the State may informally dis-
plan, or copies thereof, shall be avail- cuss any issues raised by such com-
able for inspection and copying at the ments with the staff of the Office of
office of the Director, Office of State Federal and State Operations. The As-
Programs, Occupational Safety and sistant Secretary may afford an addi-
Health Administration, office of the tional opportunity for public comment,
Assistant Regional Director in whose particularly when such an opportunity
region the State is located, and an of- would not unduly delay final action on
fice of the State which shall be des- the plan and when the comments could
ignated by the State for this purpose. be expected to elicit new relevant mat-
(d) The notice shall afford interested ter.
persons an opportunity to submit in
writing, data, views, and arguments on [38 FR 12605, May 14, 1973]
the proposal, subjects, or issues in-
§ 1902.13 Informal hearing.
volved within 30 days after publication
of the notice in the FEDERAL REGISTER. Any informal hearing shall be legis-
Thereafter the written comments re- lative in type. The procedures for infor-
ceived or copies thereof shall be avail- mal hearings may take a variety of
able for public inspection and copying forms. The appropriateness of any par-
at the office of the Director, Office of ticular form will turn largely upon the
State Programs, Occupational Safety proposals, subjects, or issues involved.
and Health Administration, office of The rules of procedure for each hearing
the Assistant Regional Director in shall be published with the notice
whose region the State is located, and thereof.
an office of the State which shall be
designated by the State for this pur- § 1902.14 Formal hearing.
pose. Any formal hearing provided for
(e) Upon his own initiative, the As- under § 1902.11 (e) and (f) shall be com-
sistant Secretary may give notice of an menced upon the publication of reason-
informal or formal hearing affording able notice in the FEDERAL REGISTER
an opportunity for oral comments con- and similar notice by the State. The
cerning the plan. hearing shall conform with the require-
(f) In the event no notice of hearing ments of 5 U.S.C. 556 and 557. The terms
is provided under paragraph (e) of this for filing proposed findings and conclu-
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section it shall be provided that any in- sions and exceptions to any tentative
terested person may request an infor- decision, or objections to a tentative

18

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Occupational Safety and Health Admin., Labor § 1902.20

decision, shall be set forth in the no- party will be prejudiced thereby be-
tice. cause
(1) Of a lack of an opportunity for
§ 1902.15 Certification of the record of cross-examination afforded in the in-
a hearing. formal hearing on the issues involved,
Upon completion of any formal or in- or
formal hearing, the transcript thereof, (2) The veracity and demeanor of wit-
together with written submissions, ex- nesses are not important with respect
hibits filed during the hearing, and any to the type of evidence involved (e.g.,
post-hearing presentations shall be cer- extensive technical or statistical data),
tified by the officer presiding at the or
hearing to the Assistant Secretary. (3) For any other reason.
(b) Any written comments received
§ 1902.16 Partial approval of State in response to a notice issued under
plans.
§ 1902.11 shall be a part of the record of
(a) The Assistant Secretary may par- the proceeding.
tially approve a plan under this part (c) Whenever a formal hearing has
whenever: been held under § 1902.14 the Assistant
(1) The portion to be approved meets Secretary shall hold no additional
the requirements of this part; hearing, and shall proceed to issue a
(2) The plan covers more than one oc- tentative decision under § 1902.21.
cupational safety and health issue; and
(3) Portions of the plan to be ap- § 1902.19 Notice of hearing.
proved are reasonably separable from (a) Whenever the Assistant Secretary
the remainder of the plan. has issued no previous notice con-
(b) Whenever the Assistant Secretary cerning the plan, or only informal rule
approves only a portion of a State plan, making proceedings have been con-
he may give notice to the State of an ducted concerning the plan, the Assist-
opportunity to show cause why a pro- ant Secretary shall publish in the FED-
ceeding should not be commenced for ERAL REGISTER an appropriate notice
disapproval of the remainder of the concerning the plan and provide an op-
plan under subpart C of this part before portunity for formal hearing and deci-
commencing such a proceeding. sion on the possible rejection of the
[80 FR 49903, Aug. 18, 2015] plan and on any subsidiary issues. The
notice also shall set forth such rules as
PROCEDURE FOR PROPOSED OR POSSIBLE may be necessary so as to assure com-
REJECTION OF PLAN pliance with 5 U.S.C. 556 and 557 in the
conduct of the proceeding. The time for
§ 1902.17 The proceeding.
filing proposed findings and conclu-
Whenever as a result of (a) an initial sions and exceptions to any tentative
examination of a plan, or (b) written or decision shall be set forth in the no-
oral comments concerning a plan sub- tice.
mitted in an informal rulemaking pro- (b) Not later than 5 days following
ceeding concerning a proposed approval the publication of the notice in the
of a plan or any subject or issue con- FEDERAL REGISTER, required by para-
cerning the plan, the Assistant Sec- graph (a) of this section, the applying
retary proposes to reject a plan or re- State agency shall publish, or cause to
jection remains in issue for any reason, be published, within the State reason-
he shall follow the procedures pre- able notice containing the same infor-
scribed in the remaining sections of mation.
this subpart.
DECISIONS
§ 1902.18 Previous hearing or other op-
portunity for comment on plan. § 1902.20 Decision following informal
(a) Whenever an informal hearing has proceeding.
been held under §§ 1902.11 and 1902.13, (a) This section deals with a situa-
any evidence submitted in such a hear- tion where the Assistant Secretary has
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ing shall be considered and may be re- (1) Afforded interested persons an op-
lied upon whenever it is found that no portunity to submit written data,

19

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§ 1902.21 29 CFR Ch. XVII (7–1–18 Edition)

views, or arguments concerning a pro- ing may waive the tentative decision.
posal, subject, or issue concerning a In such event the Assistant Secretary
plan; or shall issue a final decision under
(2) Has in addition provided an infor- § 1902.22.
mal hearing concerning a proposal,
subject, or issue concerning a plan. § 1902.22 Final decision following for-
(b)(1)(i) After consideration of all rel- mal proceeding.
evant information which has been pre- (a) Except when interested persons
sented, if the Assistant Secretary ap- participating in the hearing have
proves a plan he shall issue a decision waived the tentative decision under
to that effect. § 1902.21(b) interested persons partici-
(ii) In the event the plan is approved pating in the hearing shall have an op-
under § 1902.2(b), the decision shall portunity to file exceptions to a ten-
state that the plan does not fully meet tative decision and objections to such
the criteria set forth in § 1902.3, and exceptions within periods of time to be
shall summarize the schedule and any specified in the tentative decision. An
other measures for bringing the plan original and four copies of any excep-
up to the level of such criteria. tion or objections shall be filed.
(iii) The decision shall also reflect (b)(1) Thereafter the Assistant Sec-
the Assistant Secretary’s intention as retary shall issue a final decision rul-
to continued Federal enforcement of ing upon each exception and objection
Federal standards in areas covered by filed. The final decision shall be pub-
the plan. Provisions for continued Fed- lished in the FEDERAL REGISTER.
eral enforcement shall take into con- (2) Any final decision approving a
sideration: plan shall contain the provisions pre-
(a) Whether the plan is approved scribed in § 1902.20(b)(1)(iii) concerning
under § 1902.2(a) or § 1902.2(b); Federal enforcement in areas covered
(b) The schedule for coming up to by the plan.
Federal standards in any § 1902.2(b)
plan; and § 1902.23 Publication of decisions.
(c) Any other relevant matters. All decisions approving or dis-
(2) After consideration of all relevant approving a plan shall be published in
information contained in any written the FEDERAL REGISTER.
or oral comments received in any in-
formal proceeding, if the Assistant
Secretary proposes to disapprove a Subpart D—Procedures for Deter-
plan, or the disposition of a subject or minations Under section 18(e)
issue permits the possible disapproval of the Act
of a plan, he shall publish a notice to
that effect, and commence a pro- SOURCE: 40 FR 54782, Nov. 26, 1975, unless
ceeding meeting the requirements of otherwise noted.
§ 1902.19.
GENERAL
§ 1902.21 Tentative decision following
formal proceeding. § 1902.30 Purpose and scope.
(a) On the basis of the whole record This subpart contains procedures and
of any hearing held under § 1902.14 or criteria under which the Assistant Sec-
§ 1902.19, the Assistant Secretary shall retary of Labor for Occupational Safe-
issue a tentative decision either ap- ty and Health (hereinafter referred to
proving or disapproving the plan. The as the Assistant Secretary) under a
tentative decision shall include a delegation of authority from the Sec-
statement of the findings and conclu- retary of Labor (Secretary’s Order 12–
sions and reasons or bases therefor on 71, 36 FR 8754) will make his determina-
all material issues of fact, law, or dis- tion on whether to grant final approval
cretion which have been presented. The to State plans in accordance with the
tentative decision shall be published in provisions of section 18(e) of the Occu-
the FEDERAL REGISTER. pational Safety and Health Act of 1970
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(b) The State agency and other inter- (29 U.S.C. 667) (hereinafter referred to
ested persons participating in the hear- as the Act).

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Occupational Safety and Health Admin., Labor § 1902.32

§ 1902.31 Definitions. of, under section 18(c) of the Act and


subpart C of this part.
As used in this subpart, unless the
Person means any individual, part-
context clearly indicates otherwise: nership, association, corporation, busi-
Act means the Occupational Safety ness trust, legal representative, orga-
and Health Act of 1970 (29 U.S.C. 651 et nized group of individuals, or any agen-
seq.) cy, authority or instrumentality of the
Affirmative 18(e) determination means United States or of a State.
an affirmative determination under Separable portion of a plan for pur-
section 18(e) of the Act that the State poses of an 18(e) determination gen-
plan or any modification thereof, is in erally means more than one industrial,
actual operation meeting the criteria occupational or hazard grouping as de-
and indices of section 18(c) of the Act fined in § 1902.2(c)(1) which is adminis-
and subpart B of this part so as to war- tratively practicable and reasonably
rant the withdrawal of the application separable from the remainder of the
of discretionary Federal enforcement plan. (See 29 CFR 1952.6(a).)
and standards authority from issues
[40 FR 54782, Nov. 26, 1975, as amended at 67
covered by the plan, or by any modi-
FR 60128, Sept. 25, 2002; 80 FR 49903, Aug. 18,
fication thereof. 2015]
Assistant Regional Director means the
Assistant Regional Director for Occu- § 1902.32 General policies.
pational Safety and Health for the re- (a) Sections 18 (e) and (f) of the Act
gion in which a State is located. provide for the continuing evaluation
Assistant Secretary means the Assist- and monitoring of State plans approved
ant Secretary of Labor for Occupa- under section 18(c) of the Act. The As-
tional Safety and Health. sistant Secretary’s decision whether to
Commencement of a case under section grant an affirmative 18(e) determina-
18(e) of the Act means, for the purpose tion will be based, in part, on the re-
of retaining Federal jurisdiction de- sults of these evaluations. Section 18(e)
spite an affirmative 18(e) determina- provides that a period of not less than
tion, the issuance of a citation, and in 3 years shall have passed before the As-
the case of an imminent danger, the sistant Secretary may make a deter-
initiation of enforcement proceedings mination that the State program in ac-
under section 13 of the Act. tual operations is applying the criteria
Commencement of plan operations of section 18(c) of the Act. In the case
means the beginning of operations of a developmental plan, § 1902.2(b) of
under a plan following the approval of this part requires that the Assistant
the plan by the Assistant Secretary Secretary must have at least one year
and in no case may be later than the in which to evaluate the plan’s actual
effective date of the initial funding operations following the completion of
grant provided under section 23(g) of all developmental steps specified in the
the Act. plan. Thus, to be considered for an 18(e)
Development step includes, but is not determination, at least three years
limited to, those items listed in the shall have passed following commence-
published developmental schedule, or ment of operations after the initial ap-
any revisions thereof, for each plan. A proval of a State’s occupational safety
developmental step also includes those and health plan by the Assistant Sec-
items specified in the plan as approved retary. In the case of a developmental
under section 18(c) of the Act for com- plan, at least one year shall have
pletion by the State, as well as those passed following the completion of all
items which under the approval deci- developmental steps, but, in any event,
sion were subject to evaluations and at least three years must have passed
changes deemed necessary as a result following initial approval of the plan
thereof to make the State program at before discretionary Federal enforce-
least as effective as the Federal pro- ment authority and standards may be
gram within the 3 years developmental withdrawn from issues covered by an
period. (See 29 CFR 1953.4(a)). approved plan.
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Initial approval means approval of a (b) In making an 18(e) determination,


State plan, or any modification there- the Assistant Secretary will determine

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§ 1902.33 29 CFR Ch. XVII (7–1–18 Edition)

if actual operations under a State’s comes more effective, the State is cor-
plan, or under a separable portion of respondingly required to adjust its pro-
the plan, indicate that the State is ap- gram at a level which would provide a
plying the criteria of section 18(c) of program for workplace safety and
the Act and the indices of effectiveness health which would be ‘‘at least as ef-
of subpart B of this part in a manner fective as’’ the improvements in the
which renders operations under the Federal program. A failure to comply
plan ‘‘at least as effective as’’ oper- with this requirement may result in
ations under the Federal program in the revocation of the affirmative 18(e)
providing safe and healthful employ- determination and the resumption of
ment and places of employment within Federal enforcement and standards au-
the State. In making this determina-
thority and/or in the commencement of
tion, the Assistant Secretary may con-
proceedings for the withdrawal of ap-
sider such information which he deems
proval of the plan, or any portion
appropriate for an informed decision.
thereof, pursuant to 29 CFR part 1955.
(c) If the Assistant Secretary makes
an affirmative 18(e) determination, the (f) The Assistant Secretary may re-
Federal enforcement provisions of sec- consider and, if necessary, rescind or
tions 5(a) (2), 8 (except for the purposes revoke all or a separable portion of an
of continuing evaluations under sec- affirmative 18(e) determination and re-
tion 18(f) of the Act), 9, 10, 13 and 17 and instate concurrent Federal enforce-
standards promulgated under section 6 ment authority if he finds that a State
of the Act shall not apply with respect does not maintain its commitment to
to those occupational safety and health provide a program for employee safety
issues covered under the plan which and health protection meeting the re-
have been given an affirmative 18(e) de- quirements of section 18(c) of the Act.
termination. However, the Assistant This authority is designed to be used in
Secretary may retain jurisdiction over instances where operations under a
proceedings commenced under sections State program are found to be less ef-
9, 10 and 13 of the Act before the date fective than under the Federal program
of his determination. In addition, the because of unusual circumstances
Assistant Secretary shall retain his ju- which are temporary in nature. The
risdiction under the anti-discrimina- Assistant Secretary may also use this
tion provisions of section 11(c) of the procedure to reinstate Federal enforce-
Act. ment authority in conjunction with
(d) If the Assistant Secretary deter- plan withdrawal proceedings in order
mines that a State plan, or any portion to ensure that there is no serious gap
thereof, has not met the criteria for an in his commitment to assure safe and
18(e) determination, he shall retain his healthful working conditions so far as
authority under the enforcement provi- possible for every employee.
sions of sections 5(a) (2), 8, 9, 10, 13, and
17 and his standards authority under COMPLETION OF DEVELOPMENTAL
section 6 of the Act in the issues found STEPS—CERTIFICATION
ineligible for an 18(e) determination. In
addition, his decision may result in the § 1902.33 Developmental period.
commencement of proceedings for
withdrawal of approval of the plan, or Upon the commencement of plan op-
any separable portion thereof, under 29 erations after the initial approval of a
CFR part 1955. State’s plan by the Assistant Sec-
(e) Once a State’s plan, or any modi- retary, a State has three years in
fication thereof, has been given an af- which to complete all of the develop-
firmative 18(e) determination, the mental steps specified in the plan as
State is required to maintain a pro- approved. Section 1953.4 of this chapter
gram which will meet the requirements sets forth the procedures for the sub-
of section 18 (c) and will continue to be mission and consideration of develop-
‘‘at least as effective as’’ the Federal mental changes by OSHA. Generally,
program operations in the issues cov- whenever a State completes a develop-
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ered by the determination. As the Fed- mental step, it must submit the result-
eral program changes and thereby be- ing plan change as a supplement to its

22

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Occupational Safety and Health Admin., Labor § 1902.36

plan to OSHA for approval. OSHA’s ap- which were not certified by the Assist-
proval of such changes is then pub- ant Regional Director.
lished in the FEDERAL REGISTER. (c) After a review of the certification
and the State’s plan, if the Assistant
[80 FR 49904, Aug. 18, 2015]
Secretary finds that the State has
§ 1902.34 Certification of completion of completed all the developmental steps
developmental steps. specified in the plan, he shall publish
(a) Upon the completion of all of the the certification in the FEDERAL REG-
ISTER.
developmental steps in a State’s plan,
which is to be accomplished not later [40 FR 54782, Nov. 26, 1975, as amended at 80
than three years following commence- FR 49904, Aug. 18, 2015]
ment of plan operations after approval
of the plan by the Assistant Secretary § 1902.35 Effect of certification.
under section 18(c), the Assistant Re- Publication of the certification ac-
gional Director shall certify, as pro- knowledging the completion of all of
vided in paragraph (b) of this section, the developmental steps in a State’s
that all developmental steps in the plan will automatically initiate the
plan have been met and that the evaluation of a State’s plan for the
State’s program is to be evaluated on purposes of an 18(e) determination.
the basis of its eligibility for an 18(e) Evaluation for the purposes of an 18(e)
determination after at least one year determination will continue for at
of evaluations of the plan. least one year after the publication of
(b) Upon determining that a State the certification in the FEDERAL REG-
has completed all of its developmental ISTER. Federal enforcement authority
steps, the Assistant Regional Director under sections 5(a)(2), 8, 9, 10, 11(c), 13,
shall prepare a certification which he and 17 of the Act and Federal standards
shall promptly forward to the Assist- authority under section 6 of the Act
ant Secretary. The certification shall will not be relinquished during the
include, but shall not be limited to, the evaluation period. Evaluation con-
following; ducted for 18(e) determination purposes
(1) A list of all developmental steps will be based on the criteria set forth
or revisions thereof, plan amendments in §§ 1902.37 and 1902.38.
or changes which result in the comple-
tion of the steps or revisions thereof, BASIS FOR 18(e) DETERMINATIONS
and the dates the Assistant Secretary’s
or the Assistant Regional Director’s § 1902.36 General provisions.
approval of each change was published (a) In making his evaluation of the
in the FEDERAL REGISTER; actual operations of a State’s plan for
(2) Substantive changes, if any, in the purposes of an 18(e) determination,
the State program which were ap- the Assistant Secretary shall consider
proved by the Assistant Secretary and all relevant data which will aid him in
their dates of publication in the FED- making an effective determination. In
ERAL REGISTER; his evaluation he shall consider wheth-
(3) Documentation that the legal er the requirements of section 18(c) of
basis for the applicable State merit the Act and the criteria for State plans
system has been approved by the U.S. outlined in subpart B of this part as
Civil Service Commission and that the well as those in § 1902.37 are being ap-
actual operations of the State merit plied in actual operations for a reason-
system has been found acceptable by able period of time in a manner which
the Occupational Safety and Health warrants the termination of concur-
Administration with the advice of the rent Federal enforcement authority
U.S. Civil Service Commission; and and standards in issues covered under
(4) A description of the issues which the plan.
are covered by the State plan. Where (b) The Assistant Secretary’s evalua-
applicable, the certification shall in- tion for an 18(e) determination will be
clude a description of those separable addressed to consideration of whether
portions of the plan which have been the criteria and indices in § 1902.37(a)
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certified for 18(e) evaluation purposes are being applied by the State in such
as well as those portions of the plan a manner as to render its program in

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§ 1902.37 29 CFR Ch. XVII (7–1–18 Edition)

operation at least as effective as oper- approved by the Assistant Regional Di-


ations under the Federal program. In rector, but emphasizes the requirement
considering the question of such appli- that the standards are to be at least as
cation, the Assistant Secretary shall effective as the comparable Federal
also consider the factors provided standards in actual operations.
under § 1902.37(b). The Assistant Sec- (5) If any State standard, whether it
retary’s evaluation may include such is an adopted Federal standard or a
other information on the application of standard developed by a State, has
the criteria and indices in § 1902.37 such been subject to administrative or judi-
as information developed from com- cial challenge, the State has taken the
ments received from the public and the necessary administrative, judicial or
results of any hearings which may have legislative action to correct any defi-
been held under § 1902.40 concerning the ciencies in its program resulting from
proposed 18(e) determination. such challenge.
(6) In granting permanent variances
§ 1902.37 Factors for determination. from a standard the State has assured
(a) The Assistant Secretary shall de- that the employer provides conditions
termine if the State has applied and of employment which are as safe and
implemented all the specific criteria healthful as those which would prevail
and indices of effectiveness of §§ 1902.3 if he complied with the standard.
and 1902.4 of this part. (7) In granting temporary variances
(b) In determining whether a State from a standard, the State has ensured
has applied the criteria and indices of that the recipient of the variance has
effectiveness in paragraph (a) of this come into compliance with the stand-
section in actual operations, the As- ard as early as possible.
sistant Secretary will, among other (8) The State inspection program is
things related to the application of the being implemented in a manner which
criteria and indices, consider whether: allows a sufficient allocation of re-
(1) The State has a sufficient number sources to be directed toward target in-
of adequately trained and competent dustries and target health hazards as
personnel to discharge its responsibil- designated by the State while pro-
ities under the plan. viding adequate attention to all other
(2) The State has adhered to the pro- workplaces covered under the plan, or
cedures which it has adopted and which any modification thereof.
have been approved either under the (9) The State exercises the authority
State plan or in State plan changes or through appropriate means, to enforce
under any other procedures for ap- its right of entry and inspection wher-
proval authorized by the Assistant Sec- ever such right of entry or inspection
retary. is refused.
(3) The State has timely adopted all (10) Inspections of workplaces are
Federal standards, and amendments conducted by State inspectors in a
thereto, for issues covered under the competent manner, following approved
plan or has timely developed and pro- enforcement procedures. This includes
mulgated standards which are at least a requirement that the inspectors ob-
as effective as the comparable Federal tain adequate information to support
standards and amendments thereto. any citations which may be issued.
(4) If the State has adopted Federal (11) The State issues citations, pro-
standards, the State’s interpretation posed penalties and notices for failure
and application of such standards have to abate in a timely manner.
been consistent with the applicable (12) The State proposes penalties in a
Federal interpretation and application. manner at least as effective as under
Where the State has developed and pro- the Federal program, including the
mulgated its own standards, such proposing of penalties for first instance
standards have been interpreted and violations and the consideration of fac-
applied in a manner which is at least as tors comparable to those required to be
effective as the interpretation and ap- considered under the Federal program.
plication of comparable Federal stand- (13) The State ensures the abatement
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ards. This requirement acknowledges of hazards for which a citation has


that State standards may have been been issued, including the issuance of

24

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Occupational Safety and Health Admin., Labor § 1902.39

notices of failure to abate and appro- be afforded an opportunity to respond


priate penalties. to each evaluation report.
(14) Wherever appropriate, the State
[40 FR 54782, Nov. 26, 1975, as amended at 42
agency has sought administrative and FR 58746, Nov. 11, 1977]
judicial review of adverse adjudica-
tions. This factor also addresses wheth- § 1902.39 Completion of evaluation.
er the State has taken the appropriate
and necessary administrative, legisla- (a) After evaluating the actual oper-
tive or judicial action to correct any ations of the State plan, or any portion
deficiencies in its enforcement pro- thereof, for at least 1 year following
gram resulting from an adverse admin- publication of the certification in the
istrative or judicial determination. FEDERAL REGISTER under § 1902.34, the
(15) Insofar as it is available, analysis Assistant Secretary shall notify the
of the annual occupational safety and State whenever he determines that the
health survey by the Bureau of Labor State will be eligible for an 18(e) deter-
Statistics, as well as of other available mination. In addition, a State may re-
Federal and State measurements of quest an 18(e) determination following
program impact on worker safety and the evaluation period noted above. In
health, which analysis also takes into no case shall this determination of eli-
consideration various local factors, in- gibility be later than 2 years following
dicates that trends in worker safety the publication of the certification of
and health injury and illness rates the completion of developmental steps
under the State program compare fa- in the FEDERAL REGISTER under
vorably to those under the Federal pro- § 1902.34. In the case of a plan which was
gram. not developmental, the determination
of eligibility shall not be sooner than 3
[40 FR 54782, Nov. 26, 1975; 40 FR 58143, Dec. years following the date of commence-
15, 1975] ment of operations under the plan.
PROCEDURES FOR 18(e) DETERMINATION (b) After it has been determined that
a State will be eligible for an 18(e) de-
§ 1902.38 Evaluation of plan following termination, the Assistant Regional
certification. Director shall prepare a final report of
his evaluation of the actual operations
(a) Following the publication in the
under a State’s plan or portion thereof
FEDERAL REGISTER under § 1902.34 of the
which may be subject to the 18(e) de-
certification acknowledging the com-
termination. The Assistant Regional
pletion of all developmental steps spec-
Director’s report shall be transmitted
ified in the plan, or any portion there-
of, the Assistant Secretary will evalu- to the Assistant Secretary. The Assist-
ate and monitor the actual operations ant Secretary shall transmit such re-
under the State plan for at least 1 year port to the State and the State shall
before determining whether the State have an opportunity to respond to the
is eligible for an 18(e) determination. report.
The evaluation will assess the actual (c) Whenever it has been determined
operation of the State’s fully imple- that a State’s plan, or separable por-
mented program in accordance with tion thereof, is eligible for an 18(e) de-
the criteria in § 1902.37 and take into termination, the Assistant Secretary
account any information available to shall publish a notice in the FEDERAL
the Assistant Secretary affecting the REGISTER. The notice shall meet the re-
State’s program. quirements of the remaining para-
(b) The Assistant Regional Director graphs of this section. No later than 10
shall prepare a semi-annual report of days following the publication of the
his evaluation of the actual operations notice in the FEDERAL REGISTER, the
under the State plan or any portion affected State agency shall publish, or
thereof in narrative form. The Assist- cause to be published, within the State,
ant Regional Director’s evaluation re- reasonable notice containing the same
port will be transmitted to the Assist- information.
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ant Secretary who will then transmit (d) The notice shall indicate that the
the report to the State. The State shall plan, or any separable portion thereof,

25

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§ 1902.40 29 CFR Ch. XVII (7–1–18 Edition)

is in issue before the Assistant Sec- notice containing the same informa-
retary for a determination as to wheth- tion.
er the criteria in section 18(c) of the EFFECTIVE DATE NOTE: At 43 FR 11196, Mar.
Act are being applied in actual oper- 17, 1978, § 1902.39(a) was suspended indefi-
ation, and indicate the particular sub- nitely, effective Jan. 20, 1978.
stantive issues, if any, for consider-
ation in making such determination. § 1902.40 Informal hearing.
Where a portion of a plan is in issue for (a) Any hearing conducted under this
such a determination, the notice shall section shall be legislative in type.
specify such portions of the plan as However, fairness may require an op-
well as those portions of the plan portunity for cross-examination on
which are not in issue for the deter- pertinent issues. The presiding officer
mination. is empowered to permit cross-examina-
(e) The notice shall afford interested tion under such circumstances. The es-
persons an opportunity to submit in sential intent is to provide an oppor-
writing, data, views, and arguments on tunity for participation and comment
the proposed 18(e) determination, and by interested persons which can be car-
the affected State an opportunity to ried out expeditiously and without
respond to such submissions. rigid procedures which might unduly
(f) The notice shall also state that impede or protract the 18(e) determina-
any interested person or the affected tion process.
State may request an informal hearing (b) Although the hearing shall be in-
concerning the proposed 18(e) deter- formal and legislative in type, this sec-
mination whenever particularized writ- tion is intended to provide more than
ten objections thereto are filed within the bare essentials of informal pro-
35 days following publication of the no- ceedings under 5 U.S.C. 553. The addi-
tice in the FEDERAL REGISTER. tional requirements are the following:
(g) If the Assistant Secretary finds (1) The presiding officer shall be a
that substantial objections are filed hearing examiner appointed under 5
which relate to the proposed 18(e) de- U.S.C. 3105.
termination, the Assistant Secretary (2) The presiding officer shall provide
shall, and in any other case may, pub- an opportunity for cross-examination
lish a notice of informal hearing in the on pertinent issues.
FEDERAL REGISTER not later than 30 (3) The hearing shall be reported ver-
days after the last day for filing writ- batim, and a transcript shall be avail-
ten views or comments. The notice able to any interested person on such
shall include: terms as the presiding officer may pro-
(1) A statement of the time, place vide.
and nature of the proceeding; (c) The officer presiding at a hearing
(2) A specification of the substantial shall have all the power necessary or
issues which have been raised and on appropriate to conduct a fair and full
which an informal hearing has been re- hearing, including the powers:
quested; (1) To regulate the course of the pro-
(3) The requirement for the filing of ceedings;
an intention to appear at the hearing, (2) To dispose of procedural requests,
together with a statement of the posi- objections, and comparable matters;
tion to be taken with regard to the (3) To confine the presentation to the
issues specified, and of the evidence to issues specified in the notice of hear-
be adduced in support of the position; ing, or, where appropriate, to matters
(4) The designation of a presiding of- pertinent to the issue before the As-
ficer to conduct the hearing; and sistant Secretary;
(5) Any other appropriate provisions (4) To regulate the conduct of those
with regard to the proceeding. present at the hearing by appropriate
(h) Not later than 10 days following means;
the publication of the notice in the (5) To take official notice of material
FEDERAL REGISTER, required by para- facts not appearing in the evidence in
graph (g) of this section, the affected the record, as long as the parties are
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agency shall publish, or cause to be afforded an opportunity to show evi-


published, within the State reasonable dence to the contrary;

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Occupational Safety and Health Admin., Labor § 1902.43

(6) In his discretion, to keep the determines that a State has applied the
record open for a reasonable and speci- provisions of its plan, or any modifica-
fied time to receive additional written tion thereof, in accordance with the
recommendations with supporting rea- criteria of section 18(c) of the Act and
sons and any additional data, views, that the State has applied the provi-
and arguments from any person who sions of this part in a manner which
has participated in the oral proceeding. renders the actual operations of the
(d) Upon the completion of the oral State program ‘‘at least as effective
presentations, the transcripts thereof, as’’ operations under the Federal pro-
together with written submissions on gram.
the proceedings, exhibits filed during (b) In the case of an affirmative 18(e)
the hearing, and all posthearing com- determination of a separable portion(s)
ments, recommendations, and sup- of a plan, the Assistant Secretary de-
porting reasons shall be certified by termines that the State has applied the
the officer presiding at the hearing to separable portion(s) of the plan in ac-
the Assistant Secretary. cordance with the criteria of section
18(c) of the Act in a manner com-
§ 1902.41 Decision. parable to Federal operations covering
(a) Within a reasonable time gen- such portions and that the criteria of
erally within 120 days after the expira- this part are being applied in a manner
tion of the period provided for the sub- which renders the actual operations of
mission of written data, views, and ar- such separable portion(s) of the State
guments on the issues on which no program ‘‘at least as effective as’’ oper-
hearing is held, or within a reasonable ations of such portions under the Fed-
time, generally not to exceed 120 days eral program.
after the certification of the record of (c) Upon making an affirmative 18(e)
a hearing, the Assistant Secretary determination, the standards promul-
shall publish his decision in the FED- gated under section 6 of the Act and
ERAL REGISTER. His decision shall state the enforcement provisions of section
whether or not an affirmative 18(e) de- 5(a)(2), 8 (except for the purpose of con-
termination has been made for the tinuing evaluations under section 18(f)
State plan or any separable portion of the Act), 9, 10, 13 and 17 of the Act
thereof, or whether he intends to with- shall not apply with respect to those
draw approval of the plan or any por- occupational safety and health issues
tion thereof pursuant to part 1955 of covered under the plan for which an af-
this chapter. The action of the Assist- firmative 18(e) determination has been
ant Secretary shall be taken after con- granted. The Assistant Secretary shall
sideration of all information, including retain his authority under the above
his evaluations of the actual oper- sections for those issues covered in the
ations of the plan, and information pre- plan which have not been granted an
sented in written submissions and in affirmative 18(e) determination.
any hearings held under this subpart. (d) The Assistant Secretary will re-
(b) Any decision under this section tain jurisdiction under the citation and
shall incorporate a concise statement contest provisions of sections 9 and 10
of its grounds and purpose and shall re- of the Act and the imminent-danger
spond to any substantial issues which provisions of section 13 where such pro-
may have been raised in written sub- ceedings have been commenced prior to
missions or at the hearing. the date of his determination.
(c) All decisions concerning the As-
sistant Secretary’s determination § 1902.43 Affirmative 18(e) decision.
under section 18(e) of the Act shall be (a) In publishing his affirmative 18(e)
published in the FEDERAL REGISTER. decision in the FEDERAL REGISTER the
[40 FR 54782, Nov. 26, 1975, as amended at 80 Assistant Secretary’s notice shall in-
FR 49904, Aug. 18, 2015] clude, but shall not be limited to the
following:
§ 1902.42 Effect of affirmative 18(e) de- (1) Those issues under the plan over
termination. which the Assistant Secretary is with-
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(a) In making an affirmative 18(e) de- drawing his standards and enforcement
termination, the Assistant Secretary authority;

27

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§ 1902.44 29 CFR Ch. XVII (7–1–18 Edition)

(2) A statement that the Assistant firmative 18(e) determination and the
Secretary retains his authority under resumption of Federal enforcement au-
section 11(c) of the Act with regard to thority, and may also result in pro-
complaints alleging discrimination ceedings for the withdrawal of approval
against employees because of the exer- of the plan or any portion thereof pur-
cise of any right afforded to the em- suant to part 1955 of this chapter.
ployee by the Act;
(3) An amendment to the appropriate § 1902.45 [Reserved]
section of part 1952 of this chapter;
(4) A statement that the Assistant § 1902.46 Negative 18(e) determination.
Secretary is not precluded from revok- (a) This section sets out the proce-
ing his determination and reinstating dures which shall be followed whenever
his standards and enforcement author- the Assistant Secretary determines
ity under § 1902.47 et seq., if his con- that a State’s plan, or any separate
tinuing evaluations under section 18(f) portion thereof, has not met the cri-
of the Act show that the State has sub- teria for an affirmative 18(e) deter-
stantially failed to maintain a program mination.
which is at least as effective as oper- (b) If the Assistant Secretary deter-
ations under the Federal program, or if mines that a State plan, or a separable
the State does not submit program portion thereof, has not met the cri-
change supplements to its plan to the teria of section 18(c) of the Act and
Assistant Secretary as required by 29 that actual operations under the plan,
CFR part 1953. or portion thereof, have not met the
[40 FR 54782, Nov. 26, 1975, as amended at 80 criteria for an affirmative determina-
FR 49904, Aug. 18, 2015] tion set forth in § 1902.37, he shall re-
tain his standards authority under sec-
§ 1902.44 Requirements applicable to tion 6 of the Act and his enforcement
State plans granted affirmative authority under sections 5(a)(2), 8, 9, 10,
18(e) determinations. 13, and 17 of the Act for those issues
(a) A State whose plan, or modifica- covered under the plan or such portions
tion thereof, has been granted an af- of the plan which were subject to his
firmative 18(e) determination will be negative determination.
required to maintain a program within (c) A decision under this section may
the scope of such determination which result in the commencement of pro-
will be ‘‘at least as effective as’’ oper- ceedings for withdrawal of approval of
ations under the Federal program in the plan or any separable portion
providing employee safety and health thereof pursuant to part 1955 of this
protection at covered workplaces with- chapter.
in the comparable scope of the Federal (d) Where the Assistant Secretary de-
program. This requirement includes termines that operations under a State
submitting all required reports to the plan or any separable portion thereof
Assistant Secretary, as well as submit- have not met the criteria for an affirm-
ting supplements to the Assistant Sec- ative 18(e) determination, but are not
retary for his approval whenever there of such a nature as to warrant the ini-
is a change in the State’s program, tiation of withdrawal proceedings, the
whenever the results of evaluations Assistant Secretary may, at his discre-
conducted under section 18(f) show that tion, afford the State a reasonable time
some portion of a State plan has an ad- to meet the criteria for an affirmative
verse impact on the operations of the 18(e) determination after which time
State plan or whenever the Assistant he may initiate proceedings for with-
Secretary determines that any alter- drawal of plan approval. This discre-
ation in the Federal program could tionary authority will be applied in the
have an adverse impact on the ‘‘at following manner:
least as effective as’’ status of the (1) Upon determining that a State
State program. See part 1953 of this shall be subject to a final 18(e) deter-
chapter. mination, the Assistant Secretary
(b) A substantial failure to comply shall notify the agency designated by
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with the requirements of this section the State to administer its program,
may result in the revocation of the af- within the State of his decision that

28

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Occupational Safety and Health Admin., Labor § 1902.52

the State’s program, or a separable § 1902.49 General notice.


portion thereof, shall be subject to a (a) Whenever the Assistant Secretary
final 18(e) determination. The Assist- proposes to revoke an affirmative 18(e)
ant Secretary shall give the State a determination, he shall publish a no-
reasonable time, generally not less tice in the FEDERAL REGISTER meeting
than 1 year, in which to meet the cri- the requirements of the remaining
teria for an affirmative 18(e) deter- paragraphs of this section. No later
mination. than 10 days following the publication
(2) The Assistant Secretary shall also of the notice in the FEDERAL REGISTER,
publish a notice in the FEDERAL REG- the affected State agency shall publish,
ISTER outlining his reasons for not or cause to be published, reasonable no-
making an affirmative 18(e) determina- tice within the State containing the
tion at the time. The notice will also same information.
set forth the reasonable time the State (b) The notice shall indicate the rea-
was granted to meet the criteria for an sons for the proposed action.
affirmative 18(e) determination and set (c) The notice shall afford interested
forth such conditions as the Assistant persons including the affected State,
Secretary deems proper for the con- an opportunity to submit in writing,
tinuation of the State’s plan or such data, views, and arguments on the pro-
portions subject to this action. posal within 35 days after publication
(3) The State shall be afforded an op- of the notice in the FEDERAL REGISTER.
portunity to agree to the conditions of The notice shall also provide that any
the Assistant Secretary’s decision. interested person may request an infor-
(4) Upon the expiration of the time mal hearing concerning the proposed
granted to a State to meet the criteria revocation whenever particularized
for an affirmative 18(e) determination written objections thereto are filed
under paragraph (d)(2) of this section, within 35 days following publication of
the Assistant Secretary may initiate the notice in the FEDERAL REGISTER. If
proceedings to determine whether a the Assistant Secretary finds that sub-
State shall be granted an affirmative stantial objections have been filed, he
18(e) determination. The procedures shall afford an informal hearing on the
outlined in this subpart shall be appli- proposed revocation under § 1902.50.
cable to any proceedings initiated (d) The Assistant Secretary may,
under this paragraph. upon his own initiative, give notice of
an informal hearing affording an oppor-
PROCEDURE FOR RECONSIDERATION AND tunity for oral comments concerning
REVOCATION OF AN AFFIRMATIVE 18(e) the proposed revocation.
DETERMINATION
§ 1902.50 Informal hearing.
§ 1902.47 Reconsideration of an affirm- Any informal hearing shall be legis-
ative 18(e) determination.
lative in type. The rules of procedure
(a) The Assistant Secretary may at for each hearing shall be those con-
any time reconsider on his own initia- tained in § 1902.40 and will be published
tive or on petition of an interested per- with the notice thereof.
son his decision granting an affirma-
tive 18(e) determination. § 1902.51 Certification of the records
(b) Such reconsideration shall be of a hearing.
based on results of his continuing eval- Upon completion of an informal hear-
uation of a State plan after it has been ing, the transcript thereof, together
granted an affirmative 18(e) determina- with written submissions, exhibits filed
tion. during the hearing, and any post-hear-
ing presentations shall be certified by
§ 1902.48 The proceeding. the officer presiding at the hearing to
Whenever, as a result of his reconsid- the Assistant Secretary.
eration, the Assistant Secretary pro-
poses to revoke his affirmative 18(e) de- § 1902.52 Decision.
termination, he shall follow the proce- (a) After consideration of all relevant
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dures in the remaining sections of this information which has been presented,
subpart. the Assistant Secretary shall issue a

29

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§ 1902.53 29 CFR Ch. XVII (7–1–18 Edition)

decision on the continuation or revoca- U.S.C. 657, 658); 5 U.S.C. 553; 28 U.S.C. 2461
tion of the affirmative 18(e) determina- note (Federal Civil Penalties Inflation Ad-
tion. justment Act of 1990), as amended by Section
(b) The decision revoking the deter- 701, Pub. L. 114–74; Secretary of Labor’s
mination shall also reflect the Assist- Order No. 1–2012 (77 FR 3912, Jan. 25, 2012).
ant Secretary’s determination that SOURCE: 36 FR 17850, Sept. 4, 1971, unless
concurrent Federal enforcement and otherwise noted.
standards authority will be reinstated
within the State for a reasonable time § 1903.1 Purpose and scope.
until he has withdrawn his approval of The Williams-Steiger Occupational
the plan, or any separable portion Safety and Health Act of 1970 (84 Stat.
thereof, pursuant to part 1955 of this 1590 et seq., 29 U.S.C. 651 et seq.) re-
chapter or he has determined that the quires, in part, that every employer
State has met the criteria for an 18(e)
covered under the Act furnish to his
determination pursuant to the applica-
employees employment and a place of
ble procedures of this subpart.
employment which are free from recog-
§ 1902.53 Publication of decisions. nized hazards that are causing or are
likely to cause death or serious phys-
All decisions on the reconsideration
of an affirmative 18(e) determination ical harm to his employees. The Act
shall be published in the FEDERAL REG- also requires that employers comply
ISTER. with occupational safety and health
standards promulgated under the Act,
and that employees comply with stand-
PART 1903—INSPECTIONS, CITA-
ards, rules, regulations and orders
TIONS AND PROPOSED PEN- issued under the Act which are applica-
ALTIES ble to their own actions and conduct.
The Act authorizes the Department of
Sec.
1903.1 Purpose and scope. Labor to conduct inspections, and to
1903.2 Posting of notice; availability of the issue citations and proposed penalties
Act, regulations and applicable stand- for alleged violations. The Act, under
ards. section 20(b), also authorizes the Sec-
1903.3 Authority for inspection. retary of Health, Education, and Wel-
1903.4 Objection to inspection.
1903.5 Entry not a waiver. fare to conduct inspections and to
1903.6 Advance notice of inspections. question employers and employees in
1903.7 Conduct of inspections. connection with research and other re-
1903.8 Representatives of employers and em- lated activities. The Act contains pro-
ployees. visions for adjudication of violations,
1903.9 Trade secrets.
1903.10 Consultation with employees.
periods prescribed for the abatement of
1903.11 Complaints by employees. violations, and proposed penalties by
1903.12 Inspection not warranted; informal the Occupational Safety and Health
review. Review Commission, if contested by an
1903.13 Imminent danger. employer or by an employee or author-
1903.14 Citations; notices of de minimis vio- ized representative of employees, and
lations; policy regarding employee res-
cue activities. for judicial review. The purpose of this
1903.14a Petitions for modification of abate- part 1903 is to prescribe rules and to set
ment date. forth general policies for enforcement
1903.15 Proposed penalties. of the inspection, citation, and pro-
1903.16 Posting of citations. posed penalty provisions of the Act. In
1903.17 Employer and employee contests be-
situations where this part 1903 sets
fore the Review Commission.
1903.18 Failure to correct a violation for forth general enforcement policies
which a citation has been issued. rather than substantive or procedural
1903.19 Abatement verification. rules, such policies may be modified in
1903.20 Informal conferences. specific circumstances where the Sec-
1903.21 State administration. retary or his designee determines that
1903.22 Definitions.
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an alternative course of action would


AUTHORITY: Secs. 8 and 9 of the Occupa- better serve the objectives of the Act.
tional Safety and Health Act of 1970 (29

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Occupational Safety and Health Admin., Labor § 1903.3

§ 1903.2 Posting of notice; availability ties from the same physical location as
of the Act, regulations and applica- a lumber yard), each activity shall be
ble standards. treated as a separate physical estab-
(a)(1) Each employer shall post and lishment, and a separate notice or no-
keep posted a notice or notices, to be tices shall be posted in each such es-
furnished by the Occupational Safety tablishment, to the extent that such
and Health Administration, U.S. De- notices have been furnished by the Oc-
partment of Labor, informing employ- cupational Safety and Health Adminis-
ees of the protections and obligations tration, U.S. Department of Labor.
provided for in the Act, and that for as- Where employers are engaged in activi-
sistance and information, including ties which are physically dispersed,
copies of the Act and of specific safety such as agriculture, construction,
and health standards, employees transportation, communications, and
should contact the employer or the electric, gas and sanitary services, the
nearest office of the Department of notice or notices required by this sec-
Labor. Such notice or notices shall be tion shall be posted at the location to
posted by the employer in each estab- which employees report each day.
lishment in a conspicuous place or Where employees do not usually work
places where notices to employees are at, or report to, a single establishment,
customarily posted. Each employer such as longshoremen, traveling sales-
shall take steps to insure that such no- men, technicians, engineers, etc., such
tices are not altered, defaced, or cov- notice or notices shall be posted at the
ered by other material. location from which the employees op-
(2) Where a State has an approved erate to carry out their activities. In
poster informing employees of their all cases, such notice or notices shall
protections and obligations as defined be posted in accordance with the re-
in § 1902.9 of this chapter, such poster, quirements of paragraph (a) of this sec-
when posted by employers covered by tion.
the State plan, shall constitute compli- (c) Copies of the Act, all regulations
ance with the posting requirements of published in this chapter and all appli-
section 8(c)(1) of the Act. Employers cable standards will be available at all
whose operations are not within the Area Offices of the Occupational Safety
issues covered by the State plan must and Health Administration, U.S. De-
comply with paragraph (a)(1) of this partment of Labor. If an employer has
section. obtained copies of these materials, he
(3) Reproductions or facsimiles of shall make them available upon re-
such Federal or State posters shall quest to any employee or his author-
constitute compliance with the posting ized representative for review in the es-
requirements of section 8(c)(1) of the tablishment where the employee is em-
Act where such reproductions or fac- ployed on the same day the request is
similes are at least 81⁄2 inches by 14 made or at the earliest time mutually
inches, and the printing size is at least convenient to the employee or his au-
10 pt. Whenever the size of the poster thorized representative and the em-
increases, the size of the print shall ployer.
also increase accordingly. The caption (d) Any employer failing to comply
or heading on the poster shall be in with the provisions of this section shall
large type, generally not less than 36 be subject to citation and penalty in
pt. accordance with the provisions of
(b) Establishment means a single phys- § 1903.15(d).
ical location where business is con- [36 FR 17850, Sept. 4, 1971, as amended at 39
ducted or where services or industrial FR 39036, Nov. 5, 1974; 80 FR 49904, Aug. 18,
operations are performed. (For exam- 2015; 81 FR 43452, July 1, 2016]
ple: A factory, mill, store, hotel, res-
taurant, movie theatre, farm, ranch, § 1903.3 Authority for inspection.
bank, sales office, warehouse, or cen- (a) Compliance Safety and Health Of-
tral administrative office.) Where dis- ficers of the Department of Labor are
tinctly separate activities are per- authorized to enter without delay and
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formed at a single physical location at reasonable times any factory, plant,


(such as contract construction activi- establishment, construction site, or

31

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§ 1903.4 29 CFR Ch. XVII (7–1–18 Edition)

other area, workplace or environment chines, apparatus, devices, equipment,


where work is performed by an em- materials, records, or interviews con-
ployee of an employer; to inspect and cerning which no objection is raised.
investigate during regular working The Compliance Safety and Health Of-
hours and at other reasonable times, ficer shall endeavor to ascertain the
and within reasonable limits and in a reason for such refusal, and shall im-
reasonable manner, any such place of mediately report the refusal and the
employment, and all pertinent condi- reason therefor to the Area Director.
tions, structures, machines, apparatus, The Area Director shall consult with
devices, equipment and materials the Regional Solicitor, who shall take
therein; to question privately any em- appropriate action, including compul-
ployer, owner, operator, agent or em- sory process, if necessary.
ployee; and to review records required (b) Compulsory process shall be
by the Act and regulations published in sought in advance of an attempted in-
this chapter, and other records which spection or investigation if, in the
are directly related to the purpose of judgment of the Area Director and the
the inspection. Representatives of the Regional Solicitor, circumstances exist
Secretary of Health, Education, and which make such preinspection process
Welfare are authorized to make inspec- desirable or necessary. Some examples
tions and to question employers and of circumstances in which it may be
employees in order to carry out the desirable or necessary to seek compul-
functions of the Secretary of Health, sory process in advance of an attempt
Education, and Welfare under the Act. to inspect or investigate include (but
Inspections conducted by Department are not limited to):
of Labor Compliance Safety and Health (1) When the employer’s past practice
Officers and representatives of the Sec- either implicitly or explicitly puts the
retary of Health, Education, and Wel- Secretary on notice that a warrantless
fare under section 8 of the Act and pur- inspection will not be allowed;
suant to this part 1903 shall not affect (2) When an inspection is scheduled
the authority of any State to conduct far from the local office and procuring
inspections in accordance with agree- a warrant prior to leaving to conduct
ments and plans under section 18 of the the inspection would avoid, in case of
Act. refusal of entry, the expenditure of sig-
(b) Prior to inspecting areas con- nificant time and resources to return
taining information which is classified to the office, obtain a warrant and re-
by an agency of the United States Gov- turn to the worksite;
ernment in the interest of national se- (3) When an inspection includes the
curity, Compliance Safety and Health use of special equipment or when the
Officers shall have obtained the appro- presence of an expert or experts is
priate security clearance. needed in order to properly conduct the
inspection, and procuring a warrant
§ 1903.4 Objection to inspection. prior to an attempt to inspect would
(a) Upon a refusal to permit the Com- alleviate the difficulties or costs en-
pliance Safety and Health Officer, in countered in coordinating the avail-
exercise of his official duties, to enter ability of such equipment or expert.
without delay and at reasonable times (c) With the approval of the Regional
any place of employment or any place Administrator and the Regional Solic-
therein, to inspect, to review records, itor, compulsory process may also be
or to question any employer, owner, obtained by the Area Director or his
operator, agent, or employee, in ac- designee.
cordance with § 1903.3 or to permit a (d) For purposes of this section, the
representative of employees to accom- term compulsory process shall mean
pany the Compliance Safety and the institution of any appropriate ac-
Health Officer during the physical in- tion, including ex parte application for
spection of any workplace in accord- an inspection warrant or its equiva-
ance with § 1903.8, the Safety and lent. Ex parte inspection warrants shall
Health Officer shall terminate the in- be the preferred form of compulsory
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spection or confine the inspection to process in all circumstances where


other areas, conditions, structures, ma- compulsory process is relied upon to

32

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Occupational Safety and Health Admin., Labor § 1903.7

seek entry to a workplace under this identity of such representative and


section. with such other information as is nec-
[45 FR 65923, Oct. 3, 1980]
essary to enable him promptly to in-
form such representative of the inspec-
§ 1903.5 Entry not a waiver. tion. An employer who fails to comply
with his obligation under this para-
Any permission to enter, inspect, re-
graph promptly to inform the author-
view records, or question any person,
ized representative of employees of the
shal not imply or be conditioned upon
inspection or to furnish such informa-
a waiver of any cause of action, cita-
tion as is necessary to enable the Com-
tion, or penalty under the Act. Compli-
pliance Safety and Health Officer
ance Safety and Health Officers are not
promptly to inform such representative
authorized to grant any such waiver.
of the inspection, may be subject to ci-
§ 1903.6 Advance notice of inspections. tation and penalty in accordance with
§ 1903.15(d)(4). Advance notice in any of
(a) Advance notice of inspections the situations described in paragraph
may not be given, except in the fol- (a) of this section shall not be given
lowing situations: more than 24 hours before the inspec-
(1) In cases of apparent imminent tion is scheduled to be conducted, ex-
danger, to enable the employer to cept in apparent imminent danger situ-
abate the danger as quickly as possible; ations and in other unusual cir-
(2) In circumstances where the in- cumstances.
spection can most effectively be con- (c) The Act provides in section 17(f)
ducted after regular business hours or that any person who gives advance no-
where special preparations are nec- tice of any inspection to be conducted
essary for an inspection; under the Act, without authority from
(3) Where necessary to assure the the Secretary or his designees, shall,
presence of representatives of the em- upon conviction, be punished by fine of
ployer and employees or the appro- not more than $1,000 or by imprison-
priate personnel needed to aid in the ment for not more than 6 months, or by
inspection; and both.
(4) In other circumstances where the
Area Director determines that the giv- [36 FR 17850, Sept. 4, 1971, as amended at 81
ing of advance notice would enhance FR 43452, July 1, 2016]
the probability of an effective and
§ 1903.7 Conduct of inspections.
thorough inspection.
(b) In the situations described in (a) Subject to the provisions of
paragraph (a) of this section, advance § 1903.3, inspections shall take place at
notice of inspections may be given only such times and in such places of em-
if authorized by the Area Director, ex- ployment as the Area Director or the
cept that in cases of apparent immi- Compliance Safety and Health Officer
nent danger, advance notice may be may direct. At the beginning of an in-
given by the Compliance Safety and spection, Compliance Safety and
Health Officer without such authoriza- Health Officers shall present their cre-
tion if the Area Director is not imme- dentials to the owner, operator, or
diately available. When advance notice agent in charge at the establishment;
is given, it shall be the employer’s re- explain the nature and purpose of the
sponsibility promptly to notify the au- inspection; and indicate generally the
thorized representative of employees of scope of the inspection and the records
the inspection, if the identity of such specified in § 1903.3 which they wish to
representative is known to the em- review. However, such designation of
ployer. (See § 1903.8(b) as to situations records shall not preclude access to ad-
where there is no authorized represent- ditional records specified in § 1903.3.
ative of employees.) Upon the request (b) Compliance Safety and Health Of-
of the employer, the Compliance Safe- ficers shall have authority to take en-
ty and Health Officer will inform the vironmental samples and to take or ob-
authorized representative of employees tain photographs related to the pur-
of the inspection, provided that the pose of the inspection, employ other
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employer furnishes the Compliance reasonable investigative techniques,


Safety and Health Officer with the and question privately any employer,

33

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§ 1903.8 29 CFR Ch. XVII (7–1–18 Edition)

owner, operator, agent or employee of permit additional employer representa-


an establishment. (See § 1903.9 on trade tives and additional representatives
secrets.) As used herein, the term em- authorized by employees to accompany
ploy other reasonable investigative tech- him where he determines that such ad-
niques includes, but is not limited to, ditional representatives will further
the use of devices to measure employee aid the inspection. A different em-
exposures and the attachment of per- ployer and employee representative
sonal sampling equipment such as may accompany the Compliance Safety
dosimeters, pumps, badges and other and Health Officer during each dif-
similar devices to employees in order
ferent phase of an inspection if this
to monitor their exposures.
will not interfere with the conduct of
(c) In taking photographs and sam-
ples, Compliance Safety and Health Of- the inspection.
ficers shall take reasonable pre- (b) Compliance Safety and Health Of-
cautions to insure that such actions ficers shall have authority to resolve
with flash, spark-producing, or other all disputes as to who is the represent-
equipment would not be hazardous. ative authorized by the employer and
Compliance Safety and Health Officers employees for the purpose of this sec-
shall comply with all employer safety tion. If there is no authorized rep-
and health rules and practices at the resentative of employees, or if the
establishment being inspected, and Compliance Safety and Health Officer
they shall wear and use appropriate is unable to determine with reasonable
protective clothing and equipment. certainty who is such representative,
(d) The conduct of inspections shall he shall consult with a reasonable
be such as to preclude unreasonable number of employees concerning mat-
disruption of the operations of the em- ters of safety and health in the work-
ployer’s establishment. place.
(e) At the conclusion of an inspec- (c) The representative(s) authorized
tion, the Compliance Safety and Health by employees shall be an employee(s)
Officer shall confer with the employer
of the employer. However, if in the
or his representative and informally
judgment of the Compliance Safety and
advise him of any apparent safety or
Health Officer, good cause has been
health violations disclosed by the in-
spection. During such conference, the shown why accompaniment by a third
employer shall be afforded an oppor- party who is not an employee of the
tunity to bring to the attention of the employer (such as an industrial hygien-
Compliance Safety and Health Officer ist or a safety engineer) is reasonably
any pertinent information regarding necessary to the conduct of an effective
conditions in the workplace. and thorough physical inspection of
(f) Inspections shall be conducted in the workplace, such third party may
accordance with the requirements of accompany the Compliance Safety and
this part. Health Officer during the inspection.
[36 FR 17850, Sept. 14, 1971, as amended at 47 (d) Compliance Safety and Health Of-
FR 6533, Feb. 12, 1982; 47 FR 55481, Dec. 10, ficers are authorized to deny the right
1982] of accompaniment under this section
to any person whose conduct interferes
§ 1903.8 Representatives of employers with a fair and orderly inspection. The
and employees. right of accompaniment in areas con-
(a) Compliance Safety and Health Of- taining trade secrets shall be subject to
ficers shall be in charge of inspections the provisions of § 1903.9(d). With regard
and questioning of persons. A rep- to information classified by an agency
resentative of the employer and a rep- of the U.S. Government in the interest
resentative authorized by his employ- of national security, only persons au-
ees shall be given an opportunity to ac- thorized to have access to such infor-
company the Compliance Safety and mation may accompany a Compliance
Health Officer during the physical in-
Safety and Health Officer in areas con-
spection of any workplace for the pur-
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taining such information.


pose of aiding such inspection. A Com-
pliance Safety and Health Officer may

34

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Occupational Safety and Health Admin., Labor § 1903.11

§ 1903.9 Trade secrets. cret. If the Compliance Safety and


(a) Section 15 of the Act provides: Health Officer has no clear reason to
‘‘All information reported to or other- question such identification, informa-
wise obtained by the Secretary or his tion obtained in such areas, including
representative in connection with any all negatives and prints of photo-
inspection or proceeding under this Act graphs, and environmental samples,
which contains or which might reveal a shall be labeled ‘‘confidential—trade
trade secret referred to in section 1905 secret’’ and shall not be disclosed ex-
of title 18 of the United States Code cept in accordance with the provisions
shall be considered confidential for the of section 15 of the Act.
(d) Upon the request of an employer,
purpose of that section, except that
any authorized representative of em-
such information may be disclosed to
other officers or employees concerned ployees under § 1903.8 in an area con-
with carrying out this Act or when rel- taining trade secrets shall be an em-
evant in any proceeding under this Act. ployee in that area or an employee au-
In any such proceeding the Secretary, thorized by the employer to enter that
the Commission, or the court shall area. Where there is no such represent-
issue such orders as may be appro- ative or employee, the Compliance
priate to protect the confidentiality of Safety and Health Officer shall consult
trade secrets.’’ Section 15 of the Act is with a reasonable number of employees
considered a statute within the mean- who work in that area concerning mat-
ing of section 552(b)(3) of title 5 of the ters of safety and health.
United States Code, which exempts § 1903.10 Consultation with employees.
from the disclosure requirements mat-
ters that are ‘‘specifically exempted Compliance Safety and Health Offi-
from disclosure by statute.’’ cers may consult with employees con-
(b) Section 1905 of title 18 of the cerning matters of occupational safety
United States Code provides: ‘‘Who- and health to the extent they deem
ever, being an officer or employee of necessary for the conduct of an effec-
the United States or of any department tive and thorough inspection. During
or agency thereof, publishes, divulges, the course of an inspection, any em-
discloses, or makes known in any man- ployee shall be afforded an opportunity
ner or to any extent not authorized by to bring any violation of the Act which
law any information coming to him in he has reason to believe exists in the
the course of his employment or offi- workplace to the attention of the Com-
cial duties or by reason of any exam- pliance Safety and Health Officer.
ination or investigation made by, or re-
turn, report or record made to or filed § 1903.11 Complaints by employees.
with, such department or agency or of- (a) Any employee or representative of
ficer or employee thereof, which infor- employees who believe that a violation
mation concerns or relates to the trade of the Act exists in any workplace
secrets, processes, operations, style of where such employee is employed may
work, or apparatus, or to the identity, request an inspection of such work-
confidential statistical data, amount place by giving notice of the alleged
or source of any income, profits, losses, violation to the Area Director or to a
or expenditures of any person, firm, Compliance Safety and Health Officer.
partnership, corporation, or associa- Any such notice shall be reduced to
tion; or permits any income return or writing, shall set forth with reasonable
copy thereof or any book containing particularity the grounds for the no-
any abstract or particulars thereof to tice, and shall be signed by the em-
be seen or examined by any person ex- ployee or representative of employees.
cept as provided by law; shall be fined A copy shall be provided the employer
not more than $1,000, or imprisoned not or his agent by the Area Director or
more than 1 year, or both; and shall be Compliance Safety and Health Officer
removed from office or employment.’’ no later than at the time of inspection,
(c) At the commencement of an in- except that, upon the request of the
spection, the employer may identify person giving such notice, his name
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areas in the establishment which con- and the names of individual employees
tain or which might reveal a trade se- referred to therein shall not appear in

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§ 1903.12 29 CFR Ch. XVII (7–1–18 Edition)

such copy or on any record published, ment of position with the Assistant Re-
released, or made available by the De- gional Director and, at the same time,
partment of Labor. provide the complaining party with a
(b) If upon receipt of such notifica- copy of such statement by certified
tion the Area Director determines that mail. Upon the request of the com-
the complaint meets the requirements plaining party or the employer, the As-
set forth in paragraph (a) of this sec- sistant Regional Director, at his dis-
tion, and that there are reasonable cretion, may hold an informal con-
grounds to believe that the alleged vio- ference in which the complaining party
lation exists, he shall cause an inspec- and the employer may orally present
tion to be made as soon as practicable,
their views. After considering all writ-
to determine if such alleged violation
ten and oral views presented, the As-
exists. Inspections under this section
sistant Regional Director shall affirm,
shall not be limited to matters referred
to in the complaint. modify, or reverse the determination of
(c) Prior to or during any inspection the Area Director and furnish the com-
of a workplace, any employee or rep- plaining party and the employer and
resentative of employees employed in written notification of this decision
such workplace may notify the Compli- and the reasons therefor. The decision
ance Safety and Health Officer, in writ- of the Assistant Regional Director
ing, of any violation of the Act which shall be final and not subject to further
they have reason to believe exists in review.
such workplace. Any such notice shall (b) If the Area Director determines
comply with the requirements of para- that an inspection is not warranted be-
graph (a) of this section. cause the requirements of § 1903.11(a)
(d) Section 11(c)(1) of the Act pro- have not been met, he shall notify the
vides: ‘‘No person shall discharge or in complaining party in writing of such
any manner discriminate against any determination. Such determination
employee because such employee has shall be without prejudice to the filing
filed any complaint or instituted or of a new complaint meeting the re-
caused to be instituted any proceeding quirements of § 1903.11(a).
under or related to this Act or has tes-
tified or is about to testify in any such § 1903.13 Imminent danger.
proceeding or because of the exercise
by such employee on behalf of himself Whenever and as soon as a Compli-
or others of any right afforded by this ance Safety and Health Officer con-
Act.’’ cludes on the basis of an inspection
that conditions or practices exist in
(Approved by the Office of Management and
Budget under control number 1218–0064)
any place of employment which could
reasonably be expected to cause death
[36 FR 17850, Sept. 4, 1973, as amended at 54 or serious physical harm immediately
FR 24333, June 7, 1989]
or before the imminence of such danger
§ 1903.12 Inspection not warranted; in- can be eliminated through the enforce-
formal review. ment procedures otherwise provided by
(a) If the Area Director determines the Act, he shall inform the affected
that an inspection is not warranted be- employees and employers of the danger
cause there are no reasonable grounds and that he is recommending a civil ac-
to believe that a violation or danger tion to restrain such conditions or
exists with respect to a complaint practices and for other appropriate re-
under § 1903.11, he shall notify the com- lief in accordance with the provisions
plaining party in writing of such deter- of section 13(a) of the Act. Appropriate
mination. The complaining party may citations and notices of proposed pen-
obtain review of such determination by alties may be issued with respect to an
submitting a written statement of po- imminent danger even though, after
sition with the Assistant Regional Di- being informed of such danger by the
rector and, at the same time, providing Compliance Safety and Health Officer,
the employer with a copy of such state- the employer immediately eliminates
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ment by certified mail. The employer the imminence of the danger and initi-
may submit an opposing written state- ates steps to abate such danger.

36

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Occupational Safety and Health Admin., Labor § 1903.14

§ 1903.14 Citations; notices of de mini- presented, the Assistant Regional Di-


mis violations; policy regarding em- rector shall affirm the determination
ployee rescue activities. of the Area Director, order a reinspec-
(a) The Area Director shall review tion, or issue a citation if he believes
the inspection report of the Compli- that the inspection disclosed a viola-
ance Safety and Health Officer. If, on tion. The Assistant Regional Director
the basis of the report the Area Direc- shall furnish the complaining party
tor believes that the employer has vio- and the employer with written notifi-
lated a requirement of section 5 of the cation of his determination and the
Act, of any standard, rule or order pro- reasons therefor. The determination of
mulgated pursuant to section 6 of the the Assistant Regional Director shall
Act, or of any substantive rule pub- be final and not subject to review.
lished in this chapter, he shall, if ap- (e) Every citation shall state that the
propriate, consult with the Regional issuance of a citation does not con-
Solicitor, and he shall issue to the em- stitute a finding that a violation of the
ployer either a citation or a notice of Act has occurred unless there is a fail-
de minimis violations which have no ure to contest as provided for in the
direct or immediate relationship to Act or, if contested, unless the citation
safety or health. An appropriate cita- is affirmed by the Review Commission.
tion or notice of de minimis violations (f) No citation may be issued to an
shall be issued even though after being employer because of a rescue activity
informed of an alleged violation by the undertaken by an employee of that em-
Compliance Safety and Health Officer, ployer with respect to an individual in
the employer immediately abates, or imminent danger unless:
initiates steps to abate, such alleged (1)(i) Such employee is designated or
violation. Any citation or notice of de assigned by the employer to have re-
minimis violations shall be issued with
sponsibility to perform or assist in res-
reasonable promptness after termi-
cue operations, and
nation of the inspection. No citation
(ii) The employer fails to provide pro-
may be issued under this section after
the expiration of 6 months following tection of the safety and health of such
the occurrence of any alleged viola- employee, including failing to provide
tion. appropriate training and rescue equip-
(b) Any citation shall describe with ment; or
particularity the nature of the alleged (2)(i) Such employee is directed by
violation, including a reference to the the employer to perform rescue activi-
provision(s) of the Act, standard, rule, ties in the course of carrying out the
regulation, or order alleged to have employee’s job duties, and
been violated. Any citation shall also (ii) The employer fails to provide pro-
fix a reasonable time or times for the tection of the safety and health of such
abatement of the alleged violation. employee, including failing to provide
(c) If a citation or notice of de mini- appropriate training and rescue equip-
mis violations is issued for a violation ment; or
alleged in a request for inspection (3)(i) Such employee is employed in a
under § 1903.11(a) or a notification of workplace that requires the employee
violation under § 1903.11(c), a copy of to carry out duties that are directly re-
the citation or notice of de minimis lated to a workplace operation where
violations shall also be sent to the em- the likelihood of life-threatening acci-
ployee or representative of employees dents is foreseeable, such as a work-
who made such request or notification. place operation where employees are
(d) After an inspection, if the Area located in confined spaces or trenches,
Director determines that a citation is handle hazardous waste, respond to
not warranted with respect to a danger emergency situations, perform exca-
or violation alleged to exist in a re- vations, or perform construction over
quest for inspection under § 1903.11(a) or water; and
a notification of violation under (ii) Such employee has not been des-
§ 1903.11(c), the informal review proce- ignated or assigned to perform or assist
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dures prescribed in § 1903.12(a) shall be in rescue operations and voluntarily


applicable. After considering all views elects to rescue such an individual; and

37

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§ 1903.14a 29 CFR Ch. XVII (7–1–18 Edition)

(iii) The employer has failed to in- Area Director of the United States De-
struct employees not designated or as- partment of Labor who issued the cita-
signed to perform or assist in rescue tion no later than the close of the next
operations of the arrangements for res- working day following the date on
cue, not to attempt rescue, and of the which abatement was originally re-
hazards of attempting rescue without quired. A later-filed petition shall be
adequate training or equipment. accompanied by the employer’s state-
(4) For purposes of this policy, the ment of exceptional circumstances ex-
term ‘‘imminent danger’’ means the ex- plaining the delay.
istence of any condition or practice (1) A copy of such petition shall be
that could reasonably be expected to posted in a conspicuous place where all
cause death or serious physical harm affected employees will have notice
before such condition or practice can thereof or near such location where the
be abated. violation occurred. The petition shall
remain posted for a period of ten (10)
[36 FR 17850, Sept. 4, 1971, as amended at 59
FR 66613, Dec. 27, 1994] working days. Where affected employ-
ees are represented by an authorized
§ 1903.14a Petitions for modification of representative, said representative
abatement date. shall be served with a copy of such pe-
(a) An employer may file a petition tition.
for modification of abatement date (2) Affected employees or their rep-
when he has made a good faith effort to resentatives may file an objection in
comply with the abatement require- writing to such petition with the afore-
ments of a citation, but such abate- said Area Director. Failure to file such
ment has not been completed because objection within ten (10) working days
of the date of posting of such petition
of factors beyond his reasonable con-
or of service upon an authorized rep-
trol.
(b) A petition for modification of resentative shall constitute a waiver of
abatement date shall be in writing and any further right to object to said peti-
shall include the following informa- tion.
(3) The Secretary or his duly author-
tion:
(1) All steps taken by the employer, ized agent shall have the authority to
and the dates of such action, in an ef- approve any petition for modification
fort to achieve compliance during the of abatement date filed pursuant to
prescribed abatement period. paragraphs (b) and (c) of this section.
(2) The specific additional abatement Such uncontested petitions shall be-
time necessary in order to achieve come final orders pursuant to sections
compliance. 10 (a) and (c) of the Act.
(3) The reasons such additional time (4) The Secretary or his authorized
is necessary, including the unavail- representative shall not exercise his
ability of professional or technical per- approval power until the expiration of
sonnel or of materials and equipment, fifteen (15) working days from the date
or because necessary construction or the petition was posted or served pur-
alteration of facilities cannot be com- suant to paragraphs (c) (1) and (2) of
pleted by the original abatement date. this section by the employer.
(4) All available interim steps being (d) Where any petition is objected to
taken to safeguard the employees by the Secretary or affected employ-
against the cited hazard during the ees, the petition, citation, and any ob-
abatement period. jections shall be forwarded to the Com-
(5) A certification that a copy of the mission within three (3) working days
petition has been posted and, if appro- after the expiration of the fifteen (15)
priate, served on the authorized rep- day period set out in paragraph (c)(4) of
resentative of affected employees, in this section.
accordance with paragraph (c)(1) of this [40 FR 6334, Feb. 11, 1975; 40 FR 11351, Mar. 11,
section and a certification of the date 1975]
upon which such posting and service
was made. § 1903.15 Proposed penalties.
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(c) A petition for modification of (a) After, or concurrent with, the


abatement date shall be filed with the issuance of a citation, and within a

38

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Occupational Safety and Health Admin., Labor § 1903.16

reasonable time after the termination (4) Other-than-serious violation. The


of the inspection, the Area Director penalty for an other-than-serious viola-
shall notify the employer by certified tion under section 17(c) of the Act, 29
mail or by personal service by the U.S.C. 666(c), shall not exceed $12,934.
Compliance Safety and Health Officer (5) Failure to correct violation. The
of the proposed penalty in accordance penalty for a failure to correct a viola-
with paragraph (d) of this section, or tion under section 17(d) of the Act, 29
that no penalty is being proposed. Any U.S.C. 666(d), shall not exceed $12,934
notice of proposed penalty shall state per day.
that the proposed penalty shall be (6) Posting requirement violation. The
deemed to be the final order of the Re- penalty for a posting requirement vio-
view Commission and not subject to re- lation under section 17(i) of the Act, 29
view by any court or agency unless, U.S.C. 666(i), shall not exceed $12,934.
within 15 working days from the date [36 FR 17850, Sept. 4, 1971, as amended at 81
of receipt of such notice, the employer FR 43453, July 1, 2016; 82 FR 5382, Jan. 18,
notifies the Area Director in writing 2017; 83 FR 14, Jan. 2, 2018]
that he intends to contest the citation
or the notification of proposed penalty § 1903.16 Posting of citations.
before the Review Commission. (a) Upon receipt of any citation
(b) The Area Director shall determine under the Act, the employer shall im-
the amount of any proposed penalty, mediately post such citation, or a copy
giving due consideration to the appro- thereof, unedited, at or near each place
priateness of the penalty with respect an alleged violation referred to in the
to the size of the business of the em- citation occurred, except as provided
ployer being charged, the gravity of below. Where, because of the nature of
the violation, the good faith of the em- the employer’s operations, it is not
ployer, and the history of previous vio- practicable to post the citation at or
lations, in accordance with the provi- near each place of alleged violation,
sions of section 17 of the Act and para- such citation shall be posted, unedited,
graph (d) of this section. in a prominent place where it will be
readily observable by all affected em-
(c) Appropriate penalties may be pro-
ployees. For example, where employers
posed with respect to an alleged viola-
are engaged in activities which are
tion even though after being informed
physically dispersed (see § 1903.2(b)), the
of such alleged violation by the Com-
citation may be posted at the location
pliance Safety and Health Officer, the
to which employees report each day.
employer immediately abates, or initi-
Where employees do not primarily
ates steps to abate, such alleged viola-
work at or report to a single location
tion. Penalties shall not be proposed
(see § 1903.2(b)), the citation may be
for de minimis violations which have
posted at the location from which the
no direct or immediate relationship to
employees operate to carry out their
safety or health. activities. The employer shall take
(d) Adjusted civil monetary penalties. steps to ensure that the citation is not
The adjusted civil penalties for pen- altered, defaced, or covered by other
alties proposed after January 2, 2018 material. Notices of de minimis viola-
are as follows: tions need not be posted.
(1) Willful violation. The penalty per (b) Each citation, or a copy thereof,
willful violation under section 17(a) of shall remain posted until the violation
the Act, 29 U.S.C. 666(a), shall not be has been abated, or for 3 working days,
less than $9,239 and shall not exceed whichever is later. The filing by the
$129,336. employer of a notice of intention to
(2) Repeated violation. The penalty per contest under § 1903.17 shall not affect
repeated violation under section 17(a) his posting responsibility under this
of the Act, 29 U.S.C. 666(a), shall not section unless and until the Review
exceed $129,336. Commission issues a final order
(3) Serious violation. The penalty for a vacating the citation.
serious violation under section 17(b) of (c) An employer to whom a citation
kpayne on VMOFRWIN702 with $$_JOB

the Act, 29 U.S.C. 666(b), shall not ex- has been issued may post a notice in
ceed $12,934. the same location where such citation

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§ 1903.17 29 CFR Ch. XVII (7–1–18 Edition)

is posted indicating that the citation is leged violation for which a citation has
being contested before the Review been issued within the period per-
Commission, and such notice may ex- mitted for its correction, the Area Di-
plain the reasons for such contest. The rector shall, if appropriate, consult
employer may also indicate that speci- with the Regional Solicitor, and he
fied steps have been taken to abate the shall notify the employer by certified
violation. mail or by personal service by the
(d) Any employer failing to comply Compliance Safety and Health Officer
with the provisions of paragraphs (a) of such failure and of the additional
and (b) of this section shall be subject penalty proposed under § 1903.15(d)(5) by
to citation and penalty in accordance reason of such failure. The period for
with § 1903.15(d). the correction of a violation for which
a citation has been issued shall not
[36 FR 17850, Sept. 4, 1971, as amended at 81
FR 43453, July 1, 2016]
begin to run until the entry of a final
order of the Review Commission in the
§ 1903.17 Employer and employee con- case of any review proceedings initi-
tests before the Review Commis- ated by the employer in good faith and
sion. not solely for delay or avoidance of
(a) Any employer to whom a citation penalties.
or notice of proposed penalty has been (b) Any employer receiving a notifi-
issued may, under section 10(a) of the cation of failure to correct a violation
Act, notify the Area Director in writ- and of proposed additional penalty
ing that he intends to contest such ci- may, under section 10(b) of the Act, no-
tation or proposed penalty before the tify the Area Director in writing that
Review Commission. Such notice of in- he intends to contest such notification
tention to contest shall be postmarked or proposed additional penalty before
within 15 working days of the receipt the Review Commission. Such notice of
intention to contest shall be post-
by the employer of the notice of pro-
marked within 15 working days of the
posed penalty. Every notice of inten-
receipt by the employer of the notifica-
tion to contest shall specify whether it
tion of failure to correct a violation
is directed to the citation or to the
and of proposed additional penalty. The
proposed penalty, or both. The Area Di-
Area Director shall immediately trans-
rector shall immediately transmit such
mit such notice to the Review Commis-
notice to the Review Commission in ac-
sion in accordance with the rules of
cordance with the rules of procedure
procedure prescribed by the Commis-
prescribed by the Commission.
sion.
(b) Any employee or representative of
(c) Each notification of failure to
employees of an employer to whom a
correct a violation and of proposed ad-
citation has been issued may, under
ditional penalty shall state that it
section 10(c) of the Act, file a written
shall be deemed to be the final order of
notice with the Area Director alleging
the Review Commission and not sub-
that the period of time fixed in the ci-
ject to review by any court or agency
tation for the abatement of the viola-
unless, within 15 working days from
tion is unreasonable. Such notice shall
the date of receipt of such notification,
be postmarked within 15 working days
the employer notifies the Area Direc-
of the receipt by the employer of the
tor in writing that he intends to con-
notice of proposed penalty or notice
test the notification or the proposed
that no penalty is being proposed. The
additional penalty before the Review
Area Director shall immediately trans-
Commission.
mit such notice to the Review Commis-
sion in accordance with the rules of [36 FR 17850, Sept. 4, 1971, as amended at 81
procedure prescribed by the Commis- FR 43453, July 1, 2016]
sion.
§ 1903.19 Abatement verification.
§ 1903.18 Failure to correct a violation Purpose. OSHA’s inspections are in-
for which a citation has been tended to result in the abatement of
issued. violations of the Occupational Safety
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(a) If an inspection discloses that an and Health Act of 1970 (the OSH Act).
employer has failed to correct an al- This section sets forth the procedures

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Occupational Safety and Health Admin., Labor § 1903.19

OSHA will use to ensure abatement. the violation in a case in which a final
These procedures are tailored to the order of OSHRC has been stayed.
nature of the violation and the employ- (5) Movable equipment means a hand-
er’s abatement actions. held or non-hand-held machine or de-
(a) Scope and application. This section vice, powered or unpowered, that is
applies to employers who receive a ci- used to do work and is moved within or
tation for a violation of the Occupa- between worksites.
tional Safety and Health Act. (c) Abatement certification. (1) Within
(b) Definitions—(1) Abatement means 10 calendar days after the abatement
action by an employer to comply with date, the employer must certify to
a cited standard or regulation or to OSHA (the Agency) that each cited vio-
eliminate a recognized hazard identi- lation has been abated, except as pro-
fied by OSHA during an inspection. vided in paragraph (c)(2) of this sec-
(2) Abatement date means: tion.
(i) For an uncontested citation item, (2) The employer is not required to
the later of: certify abatement if the OSHA Compli-
(A) The date in the citation for ance Officer, during the on-site portion
abatement of the violation; of the inspection:
(B) The date approved by OSHA or es- (i) Observes, within 24 hours after a
tablished in litigation as a result of a violation is identified, that abatement
petition for modification of the abate- has occurred; and
ment date (PMA); or (ii) Notes in the citation that abate-
(C) The date established in a citation ment has occurred.
by an informal settlement agreement. (3) The employer’s certification that
(ii) For a contested citation item for abatement is complete must include,
which the Occupational Safety and for each cited violation, in addition to
Health Review Commission (OSHRC) the information required by paragraph
has issued a final order affirming the (h) of this section, the date and method
violation, the later of: of abatement and a statement that af-
(A) The date identified in the final fected employees and their representa-
order for abatement; or tives have been informed of the abate-
(B) The date computed by adding the ment.
period allowed in the citation for NOTE TO PARAGRAPH (c): Appendix A con-
abatement to the final order date; tains a sample Abatement Certification Let-
(C) The date established by a formal ter.
settlement agreement. (d) Abatement documentation. (1) The
(3) Affected employees means those employer must submit to the Agency,
employees who are exposed to the haz- along with the information on abate-
ard(s) identified as violation(s) in a ci- ment certification required by para-
tation. graph (c)(3) of this section, documents
(4) Final order date means: demonstrating that abatement is com-
(i) For an uncontested citation item, plete for each willful or repeat viola-
the fifteenth working day after the em- tion and for any serious violation for
ployer’s receipt of the citation; which the Agency indicates in the cita-
(ii) For a contested citation item: tion that such abatement documenta-
(A) The thirtieth day after the date tion is required.
on which a decision or order of a com- (2) Documents demonstrating that
mission administrative law judge has abatement is complete may include,
been docketed with the commission, but are not limited to, evidence of the
unless a member of the commission has purchase or repair of equipment, photo-
directed review; or graphic or video evidence of abate-
(B) Where review has been directed, ment, or other written records.
the thirtieth day after the date on (e) Abatement plans. (1) The Agency
which the Commission issues its deci- may require an employer to submit an
sion or order disposing of all or perti- abatement plan for each cited violation
nent part of a case; or (except an other-than-serious viola-
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(C) The date on which a federal ap- tion) when the time permitted for
peals court issues a decision affirming abatement is more than 90 calendar

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§ 1903.19 29 CFR Ch. XVII (7–1–18 Edition)

days. If an abatement plan is required, will be readily observable by affected


the citation must so indicate. employees and their representatives; or
(2) The employer must submit an (ii) Take other steps to communicate
abatement plan for each cited violation fully to affected employees and their
within 25 calendar days from the final representatives about abatement ac-
order date when the citation indicates tivities.
that such a plan is required. The abate- (3) The employer must inform em-
ment plan must identify the violation ployees and their representatives of
and the steps to be taken to achieve their right to examine and copy all
abatement, including a schedule for abatement documents submitted to the
completing abatement and, where nec- Agency.
essary, how employees will be pro- (i) An employee or an employee rep-
tected from exposure to the violative resentative must submit a request to
condition in the interim until abate- examine and copy abatement docu-
ment is complete. ments within 3 working days of receiv-
NOTE TO PARAGRAPH (e): Appendix B con- ing notice that the documents have
tains a Sample Abatement Plan form. been submitted.
(f) Progress reports. (1) An employer (ii) The employer must comply with
who is required to submit an abate- an employee’s or employee representa-
ment plan may also be required to sub- tive’s request to examine and copy
mit periodic progress reports for each abatement documents within 5 working
cited violation. The citation must indi- days of receiving the request.
cate: (4) The employer must ensure that
(i) That periodic progress reports are notice to employees and employee rep-
required and the citation items for resentatives is provided at the same
which they are required; time or before the information is pro-
(ii) The date on which an initial vided to the Agency and that abate-
progress report must be submitted, ment documents are:
which may be no sooner than 30 cal- (i) Not altered, defaced, or covered by
endar days after submission of an other material; and
abatement plan; (ii) Remain posted for three working
(iii) Whether additional progress re- days after submission to the Agency.
ports are required; and (h) Transmitting abatement documents.
(iv) The date(s) on which additional (1) The employer must include, in each
progress reports must be submitted. submission required by this section,
(2) For each violation, the progress the following information:
report must identify, in a single sen- (i) The employer’s name and address;
tence if possible, the action taken to (ii) The inspection number to which
achieve abatement and the date the ac- the submission relates;
tion was taken. (iii) The citation and item numbers
NOTE TO PARAGRAPH (f): Appendix B con- to which the submission relates;
tains a Sample Progress Report form. (iv) A statement that the informa-
(g) Employee notification. (1) The em- tion submitted is accurate; and
ployer must inform affected employees (v) The signature of the employer or
and their representative(s) about the employer’s authorized representa-
abatement activities covered by this tive.
section by posting a copy of each docu- (2) The date of postmark is the date
ment submitted to the Agency or a of submission for mailed documents.
summary of the document near the For documents transmitted by other
place where the violation occurred. means, the date the Agency receives
(2) Where such posting does not effec- the document is the date of submis-
tively inform employees and their rep- sion.
resentatives about abatement activi- (i) Movable equipment. (1) For serious,
ties (for example, for employers who repeat, and willful violations involving
have mobile work operations), the em- movable equipment, the employer
ployer must: must attach a warning tag or a copy of
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(i) Post each document or a summary the citation to the operating controls
of the document in a location where it or to the cited component of equipment

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Occupational Safety and Health Admin., Labor § 1903.19

that is moved within the worksite or APPENDIX A TO SECTION 1903.19—SAMPLE


between worksites. ABATEMENT-CERTIFICATION LETTER (NON-
MANDATORY)
NOTE TO PARAGRAPH (i)(1): Attaching a
copy of the citation to the equipment is (Name), Area Director
deemed by OSHA to meet the tagging re- U. S. Department of Labor—OSHA
quirement of paragraph (i)(1) of this section Address of the Area Office (on the citation)
as well as the posting requirement of 29 CFR [Company’s Name]
1903.16. [Company’s Address]
(2) The employer must use a warning The hazard referenced in Inspection Num-
tag that properly warns employees ber [insert 9-digit #] for violation identified
about the nature of the violation in- as:
volving the equipment and identifies Citation [insert #] and item [insert #] was
the location of the citation issued. corrected on [insert date] by:
llllllllllllllllllllllll
NOTE TO PARAGRAPH (i)(2): Non-Mandatory
Appendix C contains a sample tag that em- Citation [insert #] and item [insert #] was
ployers may use to meet this requirement. corrected on [insert date] by:
llllllllllllllllllllllll
(3) If the violation has not already
been abated, a warning tag or copy of Citation [insert #] and item [insert #] was
the citation must be attached to the corrected on [insert date] by:
equipment: llllllllllllllllllllllll
(i) For hand-held equipment, imme- Citation [insert #] and item [insert #] was
diately after the employer receives the corrected on [insert date] by:
citation; or llllllllllllllllllllllll
(ii) For non-hand-held equipment,
Citation [insert #] and item [insert #] was
prior to moving the equipment within corrected on [insert date] by:
or between worksites.
llllllllllllllllllllllll
(4) For the construction industry, a
tag that is designed and used in accord- Citation [insert #] and item [insert #] was
corrected on [insert date] by:
ance with 29 CFR 1926.20(b)(3) and 29
CFR 1926.200(h) is deemed by OSHA to llllllllllllllllllllllll
meet the requirements of this section Citation [insert #] and item [insert #] was
when the information required by para- corrected on insert date by:
graph (i)(2) is included on the tag. llllllllllllllllllllllll
(5) The employer must assure that Citation [insert #] and item [insert #] was
the tag or copy of the citation attached corrected on [insert date] by:
to movable equipment is not altered, llllllllllllllllllllllll
defaced, or covered by other material. I attest that the information contained in
(6) The employer must assure that this document is accurate.
the tag or copy of the citation attached llllllllllllllllllllllll
to movable equipment remains at- Signature
tached until:
llllllllllllllllllllllll
(i) The violation has been abated and
Typed or Printed Name
all abatement verification documents
required by this regulation have been APPENDIX B TO SECTION 1903.19—SAMPLE
submitted to the Agency; ABATEMENT PLAN OR PROGRESS REPORT
(ii) The cited equipment has been (NONMANDATORY)
permanently removed from service or (Name), Area Director
is no longer within the employer’s con- U. S. Department of Labor—OSHA
trol; or Address of Area Office (on the citation)
(iii) The Commission issues a final [Company’s Name]
order vacating the citation. [Company’s Address]
APPENDICES TO § 1903.19—ABATEMENT Check one:
VERIFICATION Abatement Plan [ ]
Progress Report [ ]
NOTE: Appendices A through C provide in-
formation and nonmandatory guidelines to Inspection Number lllllllllllll
Page ll of llll
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assist employers and employees in com-


plying with the appropriate requirements of Citation Number(s)* llllllllllll
this section. Item Number(s)* llllllllllllll

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§ 1903.19 29 CFR Ch. XVII (7–1–18 Edition)
Proposed Date required for final abatement: lllll
Comple- Comple- I attest that the information contained in
tion Date tion Date
(for (for this document is accurate.
Action abate- progress
ment reports llllllllllllllllllllllll
plans only) Signature
only)
llllllllllllllllllllllll
1. ........................................... ............... ............... Typed or Printed Name
...............................................
............................................... Name of primary point of contact for ques-
2. ........................................... ............... ............... tions: [optional]
............................................... Telephone number: lllllllllllll
...............................................
3. ........................................... ............... ............... *Abatement plans or progress reports for
............................................... more than one citation item may be com-
............................................... bined in a single abatement plan or progress
4. ........................................... ............... ............... report if the abatement actions, proposed
...............................................
completion dates, and actual completion
............................................... ............... ...............
5. ........................................... ............... ............... dates (for progress reports only) are the
............................................... same for each of the citation items.
............................................... ............... ...............
6. ........................................... ............... ...............
...............................................
............................................... ............... ...............
7. ........................................... ............... ...............
...............................................
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Occupational Safety and Health Admin., Labor § 1903.20

APPENDIX C TO SECTION 1903.19—SAMPLE WARNING TAG (NONMANDATORY)

[62 FR 15337, Mar. 31, 1997]

§ 1903.20 Informal conferences. ference for the purpose of discussing


any issues raised by an inspection, ci-
At the request of an affected em-
tation, notice of proposed penalty, or
ployer, employee, or representative of
notice of intention to contest. The set-
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employees, the Assistant Regional Di-


tlement of any issue at such conference
rector may hold an informal con-

45
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§ 1903.21 29 CFR Ch. XVII (7–1–18 Edition)

shall be subject to the rules of proce- (e) Area Director means the employee
dure prescribed by the Review Commis- or officer regularly or temporarily in
sion. If the conference is requested by charge of an Area Office of the Occupa-
the employer, an affected employee or tional Safety and Health Administra-
his representative shall be afforded an tion, U.S. Department of Labor, or any
opportunity to participate, at the dis- other person or persons who are au-
cretion of the Assistant Regional Di- thorized to act for such employee or of-
rector. If the conference is requested ficer. The latter authorizations may in-
by an employee or representative of clude general delegations of the au-
employees, the employer shall be af- thority of an Area Director under this
forded an opportunity to participate, part to a Compliance Safety and
at the discretion of the Assistant Re- Health Officer or delegations to such
gional Director. Any party may be rep- an officer for more limited purposes,
resented by counsel at such conference. such as the exercise of the Area Direc-
No such conference or request for such tor’s duties under § 1903.14(a). The term
conference shall operate as a stay of also includes any employee or officer
any 15-working-day period for filing a exercising supervisory responsibilities
notice of intention to contest as pre- over an Area Director. A supervisory
scribed in § 1903.17. employee or officer is considered to ex-
ercise concurrent authority with the
[36 FR 17850, Sept. 4, 1971. Redesignated at 62 Area Director.
FR 15337, Mar. 31, 1997] (f) Assistant Regional Director means
the employee or officer regularly or
§ 1903.21 State administration. temporarily in charge of a Region of
Nothing in this part 1903 shall pre- the Occupational Safety and Health
empt the authority of any State to Administration, U.S. Department of
conduct inspections, to initiate en- Labor, or any other person or persons
forcement proceedings or otherwise to who are specifically designated to act
implement the applicable provisions of for such employee or officer in his ab-
State law with respect to State occupa- sence. The term also includes any em-
tional safety and health standards in ployee or officer in the Occupational
accordance with agreements and plans Safety and Health Administration ex-
under section 18 of the Act and parts ercising supervisory responsibilities
1901 and 1902 of this chapter. over the Assistant Regional Director.
Such supervisory employee or officer is
[36 FR 17850, Sept. 4, 1971. Redesignated at 62 considered to exercise concurrent au-
FR 15337, Mar. 31, 1997]
thority with the Assistant Regional Di-
rector. No delegation of authority
§ 1903.22 Definitions.
under this paragraph shall adversely
(a) Act means the Williams-Steiger affect the procedures for independent
Occupational Safety and Health Act of informal review of investigative deter-
1970. (84 Stat. 1590 et seq., 29 U.S.C. 651 minations prescribed under § 1903.12 of
et seq.) this part.
(b) The definitions and interpreta- (g) Inspection means any inspection of
tions contained in section 3 of the Act an employer’s factory, plant, establish-
shall be applicable to such terms when ment, construction site, or other area,
used in this part 1903. workplace or environment where work
(c) Working days means Mondays is performed by an employee of an em-
through Fridays but shall not include ployer, and includes any inspection
Saturdays, Sundays, or Federal holi- conducted pursuant to a complaint
days. In computing 15 working days, filed under § 1903.11 (a) and (c), any re-
the day of receipt of any notice shall inspection, followup inspection, acci-
not be included, and the last day of the dent investigation or other inspection
15 working days shall be included. conducted under section 8(a) of the
(d) Compliance Safety and Health Offi- Act.
cer means a person authorized by the [36 FR 17850, Sept. 4, 1971, as amended at 38
Occupational Safety and Health Ad-
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FR 22624, Aug. 23, 1973. Redesignated at 62 FR


ministration, U.S. Department of 15337, Mar. 31, 1997]
Labor, to conduct inspections.

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Occupational Safety and Health Admin., Labor § 1904.0

PART 1904—RECORDING AND RE- APPENDIX A TO SUBPART E TO PART 1904—


DESIGNATED INDUSTRIES FOR § 1904.41(a)(2)
PORTING OCCUPATIONAL INJU- ANNUAL ELECTRONIC SUBMISSION OF OSHA
RIES AND ILLNESSES FORM 300A SUMMARY OF WORK-RELATED
INJURIES AND ILLNESSES BY ESTABLISH-
Subpart A—Purpose MENTS WITH 20 OR MORE EMPLOYEES BUT
FEWER THAN 250 EMPLOYEES IN DES-
Sec. IGNATED INDUSTRIES
1904.0 Purpose.
Subpart F—Transition From the Former Rule
Subpart B—Scope
1904.43 Summary and posting of year 2000
1904.1 Partial exemption for employers with data.
10 or fewer employees.
1904.44 Retention and updating of old forms.
1904.2 Partial exemption for establishments
1904.45 OMB control numbers under the Pa-
in certain industries.
1904.3 Keeping records for more than one perwork Reduction Act.
agency.
Subpart G—Definitions
NON-MANDATORY APPENDIX A TO SUBPART B
OF PART 1904—PARTIALLY EXEMPT INDUS- 1904.46 Definitions.
TRIES.
AUTHORITY: 29 U.S.C. 657, 658, 660, 666, 669,
Subpart C—Recordkeeping Forms and 673, Secretary of Labor’s Order No. 1–2012 (77
Recording Criteria FR 3912, Jan. 25, 2012).

1904.4 Recording criteria. SOURCE: 66 FR 6122, Jan. 19, 2001, unless


1904.5 Determination of work-relatedness. otherwise noted.
1904.6 Determination of new cases. EDITORIAL NOTE: At 82 FR 20548, May 3,
1904.7 General recording criteria. 2017, as required by the Congressional Re-
1904.8 Recording criteria for needlestick and view Act and Public Law 115-21, the Occupa-
sharps injuries. tional Safety and Health Administration re-
1904.9 Recording criteria for cases involving moved all amendments to part 1904 published
medical removal under OSHA standards. at 81 FR 91792, Dec. 19, 2016.
1904.10 Recording criteria for cases involv-
ing occupational hearing loss.
1904.11 Recording criteria for work-related Subpart A—Purpose
tuberculosis cases.
1904.13–1904.28 [Reserved] § 1904.0 Purpose.
1904.29 Forms. The purpose of this rule (part 1904) is
Subpart D—Other OSHA Injury and Illness to require employers to record and re-
Recordkeeping Requirements port work-related fatalities, injuries,
and illnesses.
1904.30 Multiple business establishments.
1904.31 Covered employees. NOTE TO § 1904.0: Recording or reporting a
1904.32 Annual summary. work-related injury, illness, or fatality does
1904.33 Retention and updating. not mean that the employer or employee was
1904.34 Change in business ownership. at fault, that an OSHA rule has been vio-
1904.35 Employee involvement. lated, or that the employee is eligible for
1904.36 Prohibition against discrimination. workers’ compensation or other benefits.
1904.37 State recordkeeping regulations. [82 FR 20548, May 3, 2017]
1904.38 Variances from the recordkeeping
rule.
Subpart B—Scope
Subpart E—Reporting Fatality, Injury and
Illness Information to the Government NOTE TO SUBPART B: All employers covered
by the Occupational Safety and Health Act
1904.39 Reporting fatalities, hospitaliza- (OSH Act) are covered by these part 1904 reg-
tions, amputations, and losses of an eye ulations. However, most employers do not
as a result of work-related incidents to have to keep OSHA injury and illness records
OSHA. unless OSHA or the Bureau of Labor Statis-
1904.40 Providing records to government tics (BLS) informs them in writing that they
representatives. must keep records. For example, employers
1904.41 Electronic submission of injury and with 10 or fewer employees and business es-
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illness records to OSHA. tablishments in certain industry classifica-


1904.42 Requests from the Bureau of Labor tions are partially exempt from keeping
Statistics for data. OSHA injury and illness records.

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§ 1904.1 29 CFR Ch. XVII (7–1–18 Edition)

§ 1904.1 Partial exemption for employ- such establishments unless your com-
ers with 10 or fewer employees. pany is partially exempted because of
(a) Basic requirement. (1) If your com- size under § 1904.1.
pany had ten (10) or fewer employees at (b) Implementation—(1) Is the partial
all times during the last calendar year, industry classification exemption based on
you do not need to keep OSHA injury the industry classification of my entire
and illness records unless OSHA or the company or on the classification of indi-
BLS informs you in writing that you vidual business establishments operated
must keep records under § 1904.41 or by my company? The partial industry
§ 1904.42. However, as required by classification exemption applies to in-
§ 1904.39, all employers covered by the dividual business establishments. If a
OSH Act must report to OSHA any company has several business estab-
workplace incident that results in a fa- lishments engaged in different classes
tality or the hospitalization of three or of business activities, some of the com-
more employees. pany’s establishments may be required
(2) If your company had more than to keep records, while others may be
ten (10) employees at any time during partially exempt.
the last calendar year, you must keep (2) How do I determine the correct
OSHA injury and illness records unless NAICS code for my company or for indi-
your establishment is classified as a vidual establishments? You can deter-
partially exempt industry under mine your NAICS code by using one of
§ 1904.2. three methods, or you may contact
(b) Implementation—(1) Is the partial your nearest OSHA office or State
exemption for size based on the size of my agency for help in determining your
entire company or on the size of an indi- NAICS code:
vidual business establishment? The par- (i) You can use the search feature at
tial exemption for size is based on the the U.S. Census Bureau NAICS main
number of employees in the entire Web page: http://www.census.gov/eos/
company.
www/naics/. In the search box for the
(2) How do I determine the size of my
most recent NAICS, enter a keyword
company to find out if I qualify for the
that describes your kind of business. A
partial exemption for size? To determine
list of primary business activities con-
if you are exempt because of size, you
taining that keyword and the cor-
need to determine your company’s
responding NAICS codes will appear.
peak employment during the last cal-
Choose the one that most closely cor-
endar year. If you had no more than 10
employees at any time in the last cal- responds to your primary business ac-
endar year, your company qualifies for tivity, or refine your search to obtain
the partial exemption for size. other choices.
(ii) Rather than searching through a
§ 1904.2 Partial exemption for estab- list of primary business activities, you
lishments in certain industries. may also view the most recent com-
(a) Basic requirement. (1) If your busi- plete NAICS structure with codes and
ness establishment is classified in a titles by clicking on the link for the
specific industry group listed in appen- most recent NAICS on the U.S. Census
dix A to this subpart, you do not need Bureau NAICS main Web page: http://
to keep OSHA injury and illness www.census.gov/eos/www/naics/. Then
records unless the government asks click on the two-digit Sector code to
you to keep the records under § 1904.41 see all the NAICS codes under that
or § 1904.42. However, all employers Sector. Then choose the six-digit code
must report to OSHA any workplace of your interest to see the cor-
incident that results in an employee’s responding definition, as well as cross-
fatality, in-patient hospitalization, references and index items, when avail-
amputation, or loss of an eye (see able.
§ 1904.39). (iii) If you know your old SIC code,
(2) If one or more of your company’s you can also find the appropriate 2002
establishments are classified in a non- NAICS code by using the detailed con-
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exempt industry, you must keep OSHA version (concordance) between the 1987
injury and illness records for all of SIC and 2002 NAICS available in Excel

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Occupational Safety and Health Admin., Labor Pt. 1904, Subpt. B, App. A

format for download at the ‘‘Concord- NAICS Code Industry


ances’’ link at the U.S. Census Bureau
5122 ............ Sound Recording Industries.
NAICS main Web page: http:// 5151 ............ Radio and Television Broadcasting.
www.census.gov/eos/www/naics/. 5172 ............ Wireless Telecommunications Carriers (ex-
cept Satellite).
[66 FR 6122, Jan. 19, 2001, as amended at 79 5173 ............ Telecommunications Resellers.
FR 56186, Sept. 18, 2014] 5179 ............ Other Telecommunications.
5181 ............ Internet Service Providers and Web Search
§ 1904.3 Keeping records for more than Portals.
one agency. 5182 ............ Data Processing, Hosting, and Related Serv-
ices.
If you create records to comply with 5191 ............ Other Information Services.
another government agency’s injury 5211 ............ Monetary Authorities—Central Bank.
5221 ............ Depository Credit Intermediation.
and illness recordkeeping require- 5222 ............ Nondepository Credit Intermediation.
ments, OSHA will consider those 5223 ............ Activities Related to Credit Intermediation.
records as meeting OSHA’s part 1904 5231 ............ Securities and Commodity Contracts Inter-
mediation and Brokerage.
recordkeeping requirements if OSHA 5232 ............ Securities and Commodity Exchanges.
accepts the other agency’s records 5239 ............ Other Financial Investment Activities.
under a memorandum of understanding 5241 ............ Insurance Carriers.
with that agency, or if the other agen- 5242 ............ Agencies, Brokerages, and Other Insurance
Related Activities.
cy’s records contain the same informa- 5251 ............ Insurance and Employee Benefit Funds.
tion as this part 1904 requires you to 5259 ............ Other Investment Pools and Funds.
record. You may contact your nearest 5312 ............ Offices of Real Estate Agents and Brokers.
5331 ............ Lessors of Nonfinancial Intangible Assets (ex-
OSHA office or State agency for help in cept Copyrighted Works).
determining whether your records 5411 ............ Legal Services.
meet OSHA’s requirements. 5412 ............ Accounting, Tax Preparation, Bookkeeping,
and Payroll Services.
NON-MANDATORY APPENDIX A TO SUB- 5413 ............ Architectural, Engineering, and Related Serv-
ices.
PART B OF PART 1904—PARTIALLY 5414 ............ Specialized Design Services.
EXEMPT INDUSTRIES 5415 ............ Computer Systems Design and Related Serv-
ices.
Employers are not required to keep OSHA 5416 ............ Management, Scientific, and Technical Con-
injury and illness records for any establish- sulting Services.
ment classified in the following North Amer- 5417 ............ Scientific Research and Development Serv-
ican Industry Classification System (NAICS) ices.
5418 ............ Advertising and Related Services.
codes, unless they are asked in writing to do 5511 ............ Management of Companies and Enterprises.
so by OSHA, the Bureau of Labor Statistics 5611 ............ Office Administrative Services.
(BLS), or a state agency operating under the 5614 ............ Business Support Services.
authority of OSHA or the BLS. All employ- 5615 ............ Travel Arrangement and Reservation Serv-
ers, including those partially exempted by ices.
reason of company size or industry classi- 5616 ............ Investigation and Security Services.
fication, must report to OSHA any employ- 6111 ............ Elementary and Secondary Schools.
6112 ............ Junior Colleges.
ee’s fatality, in-patient hospitalization, am- 6113 ............ Colleges, Universities, and Professional
putation, or loss of an eye (see § 1904.39). Schools.
6114 ............ Business Schools and Computer and Man-
NAICS Code Industry agement Training.
6115 ............ Technical and Trade Schools.
4412 ............ Other Motor Vehicle Dealers.
6116 ............ Other Schools and Instruction.
4431 ............ Electronics and Appliance Stores.
6117 ............ Educational Support Services.
4461 ............ Health and Personal Care Stores.
6211 ............ Offices of Physicians.
4471 ............ Gasoline Stations.
4481 ............ Clothing Stores. 6212 ............ Offices of Dentists.
4482 ............ Shoe Stores. 6213 ............ Offices of Other Health Practitioners.
4483 ............ Jewelry, Luggage, and Leather Goods Stores. 6214 ............ Outpatient Care Centers.
4511 ............ Sporting Goods, Hobby, and Musical Instru- 6215 ............ Medical and Diagnostic Laboratories.
ment Stores. 6244 ............ Child Day Care Services.
4512 ............ Book, Periodical, and Music Stores. 7114 ............ Agents and Managers for Artists, Athletes,
4531 ............ Florists. Entertainers, and Other Public Figures.
4532 ............ Office Supplies, Stationery, and Gift Stores. 7115 ............ Independent Artists, Writers, and Performers.
4812 ............ Nonscheduled Air Transportation. 7213 ............ Rooming and Boarding Houses.
4861 ............ Pipeline Transportation of Crude Oil. 7221 ............ Full-Service Restaurants.
4862 ............ Pipeline Transportation of Natural Gas. 7222 ............ Limited-Service Eating Places.
4869 ............ Other Pipeline Transportation. 7224 ............ Drinking Places (Alcoholic Beverages).
4879 ............ Scenic and Sightseeing Transportation, Other. 8112 ............ Electronic and Precision Equipment Repair
4885 ............ Freight Transportation Arrangement. and Maintenance.
5111 ............ Newspaper, Periodical, Book, and Directory 8114 ............ Personal and Household Goods Repair and
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Publishers. Maintenance.
5112 ............ Software Publishers. 8121 ............ Personal Care Services.
5121 ............ Motion Picture and Video Industries. 8122 ............ Death Care Services.

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§ 1904.4 29 CFR Ch. XVII (7–1–18 Edition)

NAICS Code Industry (3) Meets one or more of the general


recording criteria of § 1904.7 or the ap-
8131 ............ Religious Organizations.
8132 ............ Grantmaking and Giving Services. plication to specific cases of §§ 1904.8
8133 ............ Social Advocacy Organizations. through 1904.12.
8134 ............ Civic and Social Organizations.
8139 ............ Business, Professional, Labor, Political, and
(b) Implementation—(1) What sections
Similar Organizations. of this rule describe recording criteria for
recording work-related injuries and ill-
[79 FR 56186, Sept. 18, 2014]
nesses? The table below indicates which
sections of the rule address each topic.
(i) Determination of work-related-
Subpart C—Recordkeeping Forms ness. See § 1904.5.
and Recording Criteria (ii) Determination of a new case. See
§ 1904.6.
NOTE TO SUBPART C: This subpart describes
the work-related injuries and illnesses that (iii) General recording criteria. See
an employer must enter into the OSHA § 1904.7.
records and explains the OSHA forms that (iv) Additional criteria. (Needlestick
employers must use to record work-related and sharps injury cases, tuberculosis
fatalities, injuries, and illnesses. cases, hearing loss cases, medical re-
moval cases, and musculoskeletal dis-
§ 1904.4 Recording criteria. order cases). See §§ 1904.8 through
(a) Basic requirement. Each employer 1904.12.
required by this part to keep records of (2) How do I decide whether a par-
fatalities, injuries, and illnesses must ticular injury or illness is recordable? The
record each fatality, injury and illness decision tree for recording work-re-
that: lated injuries and illnesses below shows
(1) Is work-related; and the steps involved in making this de-
(2) Is a new case; and termination.
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Occupational Safety and Health Admin., Labor § 1904.5

[66 FR 6122, Jan. 19, 2001, as amended at 81 less an exception in § 1904.5(b)(2) spe-
FR 91809, Dec. 19, 2016; 82 FR 20548, May 3, cifically applies.
2017] (b) Implementation. (1) What is the
‘‘work environment’’? OSHA defines
§ 1904.5 Determination of work-relat- the work environment as ‘‘the estab-
edness. lishment and other locations where one
(a) Basic requirement. You must con- or more employees are working or are
sider an injury or illness to be work-re- present as a condition of their employ-
lated if an event or exposure in the ment. The work environment includes
work environment either caused or not only physical locations, but also
contributed to the resulting condition the equipment or materials used by the
or significantly aggravated a pre-exist- employee during the course of his or
ing injury or illness. Work-relatedness her work.’’
is presumed for injuries and illnesses (2) Are there situations where an injury
or illness occurs in the work environment
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resulting from events or exposures oc-


and is not considered work-related? Yes,
curring in the work environment, un-
an injury or illness occurring in the

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§ 1904.5 29 CFR Ch. XVII (7–1–18 Edition)

work environment that falls under one related, and therefore is not record-
of the following exceptions is not work- able.
1904.5(b)(2) You are not required to record injuries and illnesses if . . .

(i) ................. At the time of the injury or illness, the employee was present in the work environment as a member of the gen-
eral public rather than as an employee.
(ii) ................ The injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related
event or exposure that occurs outside the work environment.
(iii) ................ The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or
recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or
baseball.
(iv) ............... The injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal
consumption (whether bought on the employer’s premises or brought in). For example, if the employee is in-
jured by choking on a sandwich while in the employer’s establishment, the case would not be considered
work-related.
Note: If the employee is made ill by ingesting food contaminated by workplace contaminants (such as lead), or
gets food poisoning from food supplied by the employer, the case would be considered work-related.
(v) ................ The injury or illness is solely the result of an employee doing personal tasks (unrelated to their employment) at
the establishment outside of the employee’s assigned working hours.
(vi) ............... The injury or illness is solely the result of personal grooming, self medication for a non-work-related condition, or
is intentionally self-inflicted.
(vii) ............... The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company ac-
cess road while the employee is commuting to or from work.
(viii) .............. The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or
plague are considered work-related if the employee is infected at work).
(ix) ............... The illness is a mental illness. Mental illness will not be considered work-related unless the employee voluntarily
provides the employer with an opinion from a physician or other licensed health care professional with appro-
priate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the
employee has a mental illness that is work-related.

(3) How do I handle a case if it is not would not have occurred but for the oc-
obvious whether the precipitating event or cupational event or exposure.
exposure occurred in the work environ- (iv) Medical treatment in a case
ment or occurred away from work? In where no medical treatment was need-
these situations, you must evaluate ed for the injury or illness before the
the employee’s work duties and envi- workplace event or exposure, or a
ronment to decide whether or not one change in medical treatment was ne-
or more events or exposures in the cessitated by the workplace event or
work environment either caused or exposure.
contributed to the resulting condition (5) Which injuries and illnesses are con-
or significantly aggravated a pre-exist- sidered pre-existing conditions? An injury
ing condition. or illness is a preexisting condition if it
(4) How do I know if an event or expo-
resulted solely from a non-work-re-
sure in the work environment ‘‘signifi-
lated event or exposure that occured
cantly aggravated’’ a preexisting injury or
outside the work environment.
illness? A preexisting injury or illness
has been significantly aggravated, for (6) How do I decide whether an injury
purposes of OSHA injury and illness or illness is work-related if the employee is
recordkeeping, when an event or expo- on travel status at the time the injury or
sure in the work environment results illness occurs? Injuries and illnesses
in any of the following: that occur while an employee is on
(i) Death, provided that the pre- travel status are work-related if, at the
existing injury or illness would likely time of the injury or illness, the em-
not have resulted in death but for the ployee was engaged in work activities
occupational event or exposure. ‘‘in the interest of the employer.’’ Ex-
(ii) Loss of consciousness, provided amples of such activities include travel
that the preexisting injury or illness to and from customer contacts, con-
would likely not have resulted in loss ducting job tasks, and entertaining or
of consciousness but for the occupa- being entertained to transact, discuss,
tional event or exposure. or promote business (work-related en-
(iii) One or more days away from tertainment includes only entertain-
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work, or days of restricted work, or ment activities being engaged in at the


days of job transfer that otherwise direction of the employer).

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Occupational Safety and Health Admin., Labor § 1904.6

Injuries or illnesses that occur when have to be recorded if they meet one of
the employee is on travel status do not the exceptions listed below.
You may use the following to determine if an injury or illness is
1904.5 (b)(6) If the employee has . . . work-related

(i) .................. checked into a hotel or motel for one or When a traveling employee checks into a hotel, motel, or into an
more days. other temporary residence, he or she establishes a ‘‘home
away from home.’’ You must evaluate the employee’s activities
after he or she checks into the hotel, motel, or other temporary
residence for their work-relatedness in the same manner as
you evaluate the activities of a non-traveling employee. When
the employee checks into the temporary residence, he or she
is considered to have left the work environment. When the em-
ployee begins work each day, he or she re-enters the work en-
vironment. If the employee has established a ‘‘home away
from home’’ and is reporting to a fixed worksite each day, you
also do not consider injuries or illnesses work-related if they
occur while the employee is commuting between the temporary
residence and the job location.
(ii) ................. taken a detour for personal reasons ............. Injuries or illnesses are not considered work-related if they occur
while the employee is on a personal detour from a reasonably
direct route of travel (e.g., has taken a side trip for personal
reasons).

(7) How do I decide if a case is work-re- (2) The employee previously experi-
lated when the employee is working at enced a recorded injury or illness of the
home? Injuries and illnesses that occur same type that affected the same part
while an employee is working at home, of the body but had recovered com-
including work in a home office, will be pletely (all signs and symptoms had
considered work-related if the injury or disappeared) from the previous injury
illness occurs while the employee is or illness and an event or exposure in
performing work for pay or compensa- the work environment caused the signs
tion in the home, and the injury or ill- or symptoms to reappear.
ness is directly related to the perform- (b) Implementation—(1) When an em-
ance of work rather than to the general ployee experiences the signs or symptoms
home environment or setting. For ex- of a chronic work-related illness, do I
ample, if an employee drops a box of need to consider each recurrence of signs
work documents and injures his or her or symptoms to be a new case? No, for oc-
foot, the case is considered work-re- cupational illnesses where the signs or
lated. If an employee’s fingernail is symptoms may recur or continue in
punctured by a needle from a sewing the absence of an exposure in the work-
machine used to perform garment work place, the case must only be recorded
at home, becomes infected and requires once. Examples may include occupa-
medical treatment, the injury is con- tional cancer, asbestosis, byssinosis
and silicosis.
sidered work-related. If an employee is
(2) When an employee experiences the
injured because he or she trips on the
signs or symptoms of an injury or illness
family dog while rushing to answer a
as a result of an event or exposure in the
work phone call, the case is not consid-
workplace, such as an episode of occupa-
ered work-related. If an employee tional asthma, must I treat the episode as
working at home is electrocuted be- a new case? Yes, because the episode or
cause of faulty home wiring, the injury recurrence was caused by an event or
is not considered work-related. exposure in the workplace, the incident
must be treated as a new case.
§ 1904.6 Determination of new cases.
(3) May I rely on a physician or other
(a) Basic requirement. You must con- licensed health care professional to deter-
sider an injury or illness to be a ‘‘new mine whether a case is a new case or a re-
case’’ if: currence of an old case? You are not re-
(1) The employee has not previously quired to seek the advice of a physician
experienced a recorded injury or illness or other licensed health care profes-
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of the same type that affects the same sional. However, if you do seek such
part of the body, or advice, you must follow the physician

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§ 1904.7 29 CFR Ch. XVII (7–1–18 Edition)

or other licensed health care profes- from work? When an injury or illness in-
sional’s recommendation about wheth- volves one or more days away from
er the case is a new case or a recur- work, you must record the injury or
rence. If you receive recommendations illness on the OSHA 300 Log with a
from two or more physicians or other check mark in the space for cases in-
licensed health care professionals, you volving days away and an entry of the
must make a decision as to which rec- number of calendar days away from
ommendation is the most authoritative work in the number of days column. If
(best documented, best reasoned, or the employee is out for an extended pe-
most authoritative), and record the riod of time, you must enter an esti-
case based upon that recommendation. mate of the days that the employee
will be away, and update the day count
§ 1904.7 General recording criteria. when the actual number of days is
(a) Basic requirement. You must con- known.
sider an injury or illness to meet the (i) Do I count the day on which the in-
general recording criteria, and there- jury occurred or the illness began? No,
fore to be recordable, if it results in you begin counting days away on the
any of the following: death, days away day after the injury occurred or the ill-
from work, restricted work or transfer ness began.
to another job, medical treatment be- (ii) How do I record an injury or illness
yond first aid, or loss of consciousness. when a physician or other licensed health
You must also consider a case to meet care professional recommends that the
the general recording criteria if it in- worker stay at home but the employee
volves a significant injury or illness di- comes to work anyway? You must record
agnosed by a physician or other li- these injuries and illnesses on the
censed health care professional, even if OSHA 300 Log using the check box for
it does not result in death, days away cases with days away from work and
from work, restricted work or job enter the number of calendar days
transfer, medical treatment beyond away recommended by the physician or
first aid, or loss of consciousness. other licensed health care professional.
(b) Implementation—(1) How do I decide
If a physician or other licensed health
if a case meets one or more of the general
care professional recommends days
recording criteria? A work-related injury
away, you should encourage your em-
or illness must be recorded if it results
ployee to follow that recommendation.
in one or more of the following:
However, the days away must be re-
(i) Death. See § 1904.7(b)(2).
corded whether the injured or ill em-
(ii) Days away from work. See
ployee follows the physician or li-
§ 1904.7(b)(3).
(iii) Restricted work or transfer to censed health care professional’s rec-
another job. See § 1904.7(b)(4). ommendation or not. If you receive
(iv) Medical treatment beyond first recommendations from two or more
aid. See § 1904.7(b)(5). physicians or other licensed health
(v) Loss of consciousness. See care professionals, you may make a de-
§ 1904.7(b)(6). cision as to which recommendation is
(vi) A significant injury or illness di- the most authoritative, and record the
agnosed by a physician or other li- case based upon that recommendation.
censed health care professional. See (iii) How do I handle a case when a
§ 1904.7(b)(7). physician or other licensed health care
(2) How do I record a work-related in- professional recommends that the worker
jury or illness that results in the employ- return to work but the employee stays at
ee’s death? You must record an injury home anyway? In this situation, you
or illness that results in death by en- must end the count of days away from
tering a check mark on the OSHA 300 work on the date the physician or
Log in the space for cases resulting in other licensed health care professional
death. You must also report any work- recommends that the employee return
related fatality to OSHA within eight to work.
(8) hours, as required by § 1904.39. (iv) How do I count weekends, holidays,
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(3) How do I record a work-related in- or other days the employee would not
jury or illness that results in days away have worked anyway? You must count

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Occupational Safety and Health Admin., Labor § 1904.7

the number of calendar days the em- lated to the injury or illness, such as
ployee was unable to work as a result retirement, a plant closing, or to take
of the injury or illness, regardless of another job, you may stop counting
whether or not the employee was days away from work or days of re-
scheduled to work on those day(s). striction/job transfer. If the employee
Weekend days, holidays, vacation days leaves your company because of the in-
or other days off are included in the jury or illness, you must estimate the
total number of days recorded if the total number of days away or days of
employee would not have been able to restriction/job transfer and enter the
work on those days because of a work- day count on the 300 Log.
related injury or illness. (ix) If a case occurs in one year but re-
(v) How do I record a case in which a sults in days away during the next cal-
worker is injured or becomes ill on a Fri- endar year, do I record the case in both
day and reports to work on a Monday, years? No, you only record the injury or
and was not scheduled to work on the illness once. You must enter the num-
weekend? You need to record this case ber of calendar days away for the in-
only if you receive information from a jury or illness on the OSHA 300 Log for
physician or other licensed health care the year in which the injury or illness
professional indicating that the em- occurred. If the employee is still away
ployee should not have worked, or from work because of the injury or ill-
should have performed only restricted ness when you prepare the annual sum-
work, during the weekend. If so, you mary, estimate the total number of
must record the injury or illness as a calendar days you expect the employee
case with days away from work or re- to be away from work, use this number
stricted work, and enter the day to calculate the total for the annual
counts, as appropriate. summary, and then update the initial
(vi) How do I record a case in which a log entry later when the day count is
worker is injured or becomes ill on the day known or reaches the 180-day cap.
before scheduled time off such as a holi- (4) How do I record a work-related in-
day, a planned vacation, or a temporary jury or illness that results in restricted
plant closing? You need to record a case work or job transfer? When an injury or
of this type only if you receive infor- illness involves restricted work or job
mation from a physician or other li- transfer but does not involve death or
censed health care professional indi- days away from work, you must record
cating that the employee should not the injury or illness on the OSHA 300
have worked, or should have performed Log by placing a check mark in the
only restricted work, during the sched- space for job transfer or restriction and
uled time off. If so, you must record an entry of the number of restricted or
the injury or illness as a case with days transferred days in the restricted
away from work or restricted work, workdays column.
and enter the day counts, as appro- (i) How do I decide if the injury or ill-
priate. ness resulted in restricted work? Re-
(vii) Is there a limit to the number of stricted work occurs when, as the re-
days away from work I must count? Yes, sult of a work-related injury or illness:
you may ‘‘cap’’ the total days away at (A) You keep the employee from per-
180 calendar days. You are not required forming one or more of the routine
to keep track of the number of cal- functions of his or her job, or from
endar days away from work if the in- working the full workday that he or
jury or illness resulted in more than she would otherwise have been sched-
180 calendar days away from work and/ uled to work; or
or days of job transfer or restriction. In (B) A physician or other licensed
such a case, entering 180 in the total health care professional recommends
days away column will be considered that the employee not perform one or
adequate. more of the routine functions of his or
(viii) May I stop counting days if an her job, or not work the full workday
employee who is away from work because that he or she would otherwise have
of an injury or illness retires or leaves my been scheduled to work.
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company? Yes, if the employee leaves (ii) What is meant by ‘‘routine func-
your company for some reason unre- tions’’? For recordkeeping purposes, an

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§ 1904.7 29 CFR Ch. XVII (7–1–18 Edition)

employee’s routine functions are those clear about the physician or other li-
work activities the employee regularly censed health care professional’s rec-
performs at least once per week. ommendation, you may ask that per-
(iii) Do I have to record restricted work son whether the employee can do all of
or job transfer if it applies only to the day his or her routine job functions and
on which the injury occurred or the ill- work all of his or her normally as-
ness began? No, you do not have to signed work shift. If the answer to both
record restricted work or job transfers of these questions is ‘‘Yes,’’ then the
if you, or the physician or other li- case does not involve a work restric-
censed health care professional, impose tion and does not have to be recorded
the restriction or transfer only for the as such. If the answer to one or both of
day on which the injury occurred or these questions is ‘‘No,’’ the case in-
the illness began. volves restricted work and must be re-
(iv) If you or a physician or other li- corded as a restricted work case. If you
censed health care professional rec- are unable to obtain this additional in-
ommends a work restriction, is the injury formation from the physician or other
or illness automatically recordable as a licensed health care professional who
‘‘restricted work’’ case? No, a rec- recommended the restriction, record
ommended work restriction is record- the injury or illness as a case involving
able only if it affects one or more of restricted work.
the employee’s routine job functions. (viii) What do I do if a physician or
To determine whether this is the case, other licensed health care professional
you must evaluate the restriction in recommends a job restriction meeting
light of the routine functions of the in- OSHA’s definition, but the employee does
jured or ill employee’s job. If the re- all of his or her routine job functions any-
striction from you or the physician or way? You must record the injury or ill-
other licensed health care professional ness on the OSHA 300 Log as a re-
keeps the employee from performing stricted work case. If a physician or
one or more of his or her routine job other licensed health care professional
functions, or from working the full recommends a job restriction, you
workday the injured or ill employee should ensure that the employee com-
would otherwise have worked, the em- plies with that restriction. If you re-
ployee’s work has been restricted and ceive recommendations from two or
you must record the case. more physicians or other licensed
(v) How do I record a case where the health care professionals, you may
worker works only for a partial work shift make a decision as to which rec-
because of a work-related injury or ill- ommendation is the most authori-
ness? A partial day of work is recorded tative, and record the case based upon
as a day of job transfer or restriction that recommendation.
for recordkeeping purposes, except for (ix) How do I decide if an injury or ill-
the day on which the injury occurred ness involved a transfer to another job? If
or the illness began. you assign an injured or ill employee
(vi) If the injured or ill worker produces to a job other than his or her regular
fewer goods or services than he or she job for part of the day, the case in-
would have produced prior to the injury volves transfer to another job. Note:
or illness but otherwise performs all of the This does not include the day on which
routine functions of his or her work, is the injury or illness occurred.
the case considered a restricted work case? (x) Are transfers to another job recorded
No, the case is considered restricted in the same way as restricted work cases?
work only if the worker does not per- Yes, both job transfer and restricted
form all of the routine functions of his work cases are recorded in the same
or her job or does not work the full box on the OSHA 300 Log. For example,
shift that he or she would otherwise if you assign, or a physician or other li-
have worked. censed health care professional rec-
(vii) How do I handle vague restrictions ommends that you assign, an injured
from a physician or other licensed health or ill worker to his or her routine job
care professional, such as that the em- duties for part of the day and to an-
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ployee engage only in ‘‘light duty’’ or other job for the rest of the day, the in-
‘‘take it easy for a week’’? If you are not jury or illness involves a job transfer.

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Occupational Safety and Health Admin., Labor § 1904.7

You must record an injury or illness a non-prescription medication at pre-


that involves a job transfer by placing scription strength is considered med-
a check in the box for job transfer. ical treatment for recordkeeping pur-
(xi) How do I count days of job transfer poses);
or restriction? You count days of job (B) Administering tetanus immuniza-
transfer or restriction in the same way tions (other immunizations, such as
you count days away from work, using Hepatitis B vaccine or rabies vaccine,
§ 1904.7(b)(3)(i) to (viii), above. The only are considered medical treatment);
difference is that, if you permanently (C) Cleaning, flushing or soaking
assign the injured or ill employee to a wounds on the surface of the skin;
job that has been modified or perma- (D) Using wound coverings such as
nently changed in a manner that elimi- bandages, Band-Aids TM, gauze pads,
nates the routine functions the em- etc.; or using butterfly bandages or
ployee was restricted from performing, Steri-Strips TM (other wound closing
you may stop the day count when the devices such as sutures, staples, etc.,
modification or change is made perma- are considered medical treatment);
nent. You must count at least one day (E) Using hot or cold therapy;
of restricted work or job transfer for (F) Using any non-rigid means of sup-
such cases. port, such as elastic bandages, wraps,
(5) How do I record an injury or illness non-rigid back belts, etc. (devices with
that involves medical treatment beyond rigid stays or other systems designed
first aid? If a work-related injury or ill- to immobilize parts of the body are
ness results in medical treatment be- considered medical treatment for rec-
yond first aid, you must record it on ordkeeping purposes);
the OSHA 300 Log. If the injury or ill- (G) Using temporary immobilization
ness did not involve death, one or more devices while transporting an accident
days away from work, one or more victim (e.g., splints, slings, neck col-
days of restricted work, or one or more lars, back boards, etc.).
days of job transfer, you enter a check (H) Drilling of a fingernail or toenail
mark in the box for cases where the to relieve pressure, or draining fluid
employee received medical treatment from a blister;
but remained at work and was not (I) Using eye patches;
transferred or restricted. (J) Removing foreign bodies from the
(i) What is the definition of medical eye using only irrigation or a cotton
treatment? ‘‘Medical treatment’’ means swab;
the management and care of a patient (K) Removing splinters or foreign
to combat disease or disorder. For the material from areas other than the eye
purposes of part 1904, medical treat- by irrigation, tweezers, cotton swabs or
ment does not include: other simple means;
(A) Visits to a physician or other li- (L) Using finger guards;
censed health care professional solely (M) Using massages (physical therapy
for observation or counseling; or chiropractic treatment are consid-
(B) The conduct of diagnostic proce- ered medical treatment for record-
dures, such as x-rays and blood tests, keeping purposes); or
including the administration of pre- (N) Drinking fluids for relief of heat
scription medications used solely for stress.
diagnostic purposes (e.g., eye drops to (iii) Are any other procedures included
dilate pupils); or in first aid? No, this is a complete list of
(C) ‘‘First aid’’ as defined in para- all treatments considered first aid for
graph (b)(5)(ii) of this section. part 1904 purposes.
(ii) What is ‘‘first aid’’? For the pur- (iv) Does the professional status of the
poses of part 1904, ‘‘first aid’’ means person providing the treatment have any
the following: effect on what is considered first aid or
(A) Using a non-prescription medica- medical treatment? No, OSHA considers
tion at nonprescription strength (for the treatments listed in § 1904.7(b)(5)(ii)
medications available in both prescrip- of this part to be first aid regardless of
tion and non-prescription form, a rec- the professional status of the person
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ommendation by a physician or other providing the treatment. Even when


licensed health care professional to use these treatments are provided by a

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§ 1904.8 29 CFR Ch. XVII (7–1–18 Edition)

physician or other licensed health care illnesses, and must be recorded at the initial
professional, they are considered first diagnosis even if medical treatment or work
aid for the purposes of part 1904. Simi- restrictions are not recommended, or are
postponed, in a particular case.
larly, OSHA considers treatment be-
yond first aid to be medical treatment § 1904.8 Recording criteria for
even when it is provided by someone needlestick and sharps injuries.
other than a physician or other li-
censed health care professional. (a) Basic requirement. You must
(v) What if a physician or other li- record all work-related needlestick in-
censed health care professional rec- juries and cuts from sharp objects that
ommends medical treatment but the em- are contaminated with another per-
ployee does not follow the recommenda- son’s blood or other potentially infec-
tion? If a physician or other licensed tious material (as defined by 29 CFR
health care professional recommends 1910.1030). You must enter the case on
medical treatment, you should encour- the OSHA 300 Log as an injury. To pro-
age the injured or ill employee to fol- tect the employee’s privacy, you may
low that recommendation. However, not enter the employee’s name on the
you must record the case even if the in- OSHA 300 Log (see the requirements for
jured or ill employee does not follow privacy cases in paragraphs 1904.29(b)(6)
the physician or other licensed health through 1904.29(b)(9)).
care professional’s recommendation. (b) Implementation—(1) What does
(6) Is every work-related injury or ill- ‘‘other potentially infectious material’’
ness case involving a loss of consciousness mean? The term ‘‘other potentially in-
recordable? Yes, you must record a fectious materials’’ is defined in the
work-related injury or illness if the OSHA Bloodborne Pathogens standard
worker becomes unconscious, regard- at § 1910.1030(b). These materials in-
less of the length of time the employee clude:
remains unconscious. (i) Human bodily fluids, tissues and
(7) What is a ‘‘significant’’ diagnosed organs, and
injury or illness that is recordable under (ii) Other materials infected with the
the general criteria even if it does not re- HIV or hepatitis B (HBV) virus such as
sult in death, days away from work, re- laboratory cultures or tissues from ex-
stricted work or job transfer, medical perimental animals.
treatment beyond first aid, or loss of con- (2) Does this mean that I must record all
sciousness? Work-related cases involv- cuts, lacerations, punctures, and scratch-
ing cancer, chronic irreversible disease, es? No, you need to record cuts, lacera-
a fractured or cracked bone, or a punc- tions, punctures, and scratches only if
tured eardrum must always be recorded they are work-related and involve con-
under the general criteria at the time tamination with another person’s blood
of diagnosis by a physician or other li- or other potentially infectious mate-
censed health care professional. rial. If the cut, laceration, or scratch
NOTE TO § 1904.7: OSHA believes that most involves a clean object, or a contami-
significant injuries and illnesses will result nant other than blood or other poten-
in one of the criteria listed in § 1904.7(a): tially infectious material, you need to
death, days away from work, restricted work record the case only if it meets one or
or job transfer, medical treatment beyond more of the recording criteria in
first aid, or loss of consciousness. However, § 1904.7.
there are some significant injuries, such as a
punctured eardrum or a fractured toe or rib, (3) If I record an injury and the em-
for which neither medical treatment nor ployee is later diagnosed with an infec-
work restrictions may be recommended. In tious bloodborne disease, do I need to up-
addition, there are some significant progres- date the OSHA 300 Log? Yes, you must
sive diseases, such as byssinosis, silicosis, update the classification of the case on
and some types of cancer, for which medical the OSHA 300 Log if the case results in
treatment or work restrictions may not be death, days away from work, restricted
recommended at the time of diagnosis but
work, or job transfer. You must also
are likely to be recommended as the disease
progresses. OSHA believes that cancer, update the description to identify the
infectious disease and change the clas-
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chronic irreversible diseases, fractured or


cracked bones, and punctured eardrums are sification of the case from an injury to
generally considered significant injuries and an illness.

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Occupational Safety and Health Admin., Labor § 1904.10

(4) What if one of my employees is the employee has experienced a work-


splashed or exposed to blood or other po- related Standard Threshold Shift (STS)
tentially infectious material without being in hearing in one or both ears, and the
cut or scratched? Do I need to record this employee’s total hearing level is 25
incident? You need to record such an in- decibels (dB) or more above
cident on the OSHA 300 Log as an ill- audiometric zero (averaged at 2000,
ness if: 3000, and 4000 Hz) in the same ear(s) as
(i) It results in the diagnosis of a the STS, you must record the case on
bloodborne illness, such as HIV, hepa- the OSHA 300 Log.
titis B, or hepatitis C; or (b) Implementation—(1) What is a
(ii) It meets one or more of the re- Standard Threshold Shift? A Standard
cording criteria in § 1904.7. Threshold Shift, or STS, is defined in
the occupational noise exposure stand-
§ 1904.9 Recording criteria for cases ard at 29 CFR 1910.95(g)(10)(i) as a
involving medical removal under change in hearing threshold, relative
OSHA standards. to the baseline audiogram for that em-
(a) Basic requirement. If an employee ployee, of an average of 10 decibels (dB)
is medically removed under the med- or more at 2000, 3000, and 4000 hertz (Hz)
ical surveillance requirements of an in one or both ears.
OSHA standard, you must record the (2) How do I evaluate the current
case on the OSHA 300 Log. audiogram to determine whether an em-
(b) Implementation—(1) How do I clas- ployee has an STS and a 25–dB hearing
sify medical removal cases on the OSHA level?—(i) STS. If the employee has
300 Log? You must enter each medical never previously experienced a record-
removal case on the OSHA 300 Log as able hearing loss, you must compare
either a case involving days away from the employee’s current audiogram with
work or a case involving restricted that employee’s baseline audiogram. If
work activity, depending on how you the employee has previously experi-
decide to comply with the medical re- enced a recordable hearing loss, you
moval requirement. If the medical re- must compare the employee’s current
moval is the result of a chemical expo- audiogram with the employee’s revised
sure, you must enter the case on the baseline audiogram (the audiogram re-
OSHA 300 Log by checking the ‘‘poi- flecting the employee’s previous re-
soning’’ column. cordable hearing loss case).
(2) Do all of OSHA’s standards have (ii) 25–dB loss. Audiometric test re-
medical removal provisions? No, some sults reflect the employee’s overall
OSHA standards, such as the standards hearing ability in comparison to
covering bloodborne pathogens and audiometric zero. Therefore, using the
noise, do not have medical removal employee’s current audiogram, you
provisions. Many OSHA standards that must use the average hearing level at
cover specific chemical substances 2000, 3000, and 4000 Hz to determine
have medical removal provisions. whether or not the employee’s total
These standards include, but are not hearing level is 25 dB or more.
limited to, lead, cadmium, methylene (3) May I adjust the current audiogram
chloride, formaldehyde, and benzene. to reflect the effects of aging on hearing?
(3) Do I have to record a case where I Yes. When you are determining wheth-
voluntarily removed the employee from ex- er an STS has occurred, you may age
posure before the medical removal criteria adjust the employee’s current audio-
in an OSHA standard are met? No, if the gram results by using Tables F–1 or F–
case involves voluntary medical re- 2, as appropriate, in appendix F of 29
moval before the medical removal lev- CFR 1910.95. You may not use an age
els required by an OSHA standard, you adjustment when determining whether
do not need to record the case on the the employee’s total hearing level is 25
OSHA 300 Log. dB or more above audiometric zero.
(4) Do I have to record the hearing loss
§ 1904.10 Recording criteria for cases if I am going to retest the employee’s
involving occupational hearing loss. hearing? No, if you retest the employ-
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(a) Basic requirement. If an employee’s ee’s hearing within 30 days of the first
hearing test (audiogram) reveals that test, and the retest does not confirm

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§ 1904.11 29 CFR Ch. XVII (7–1–18 Edition)

the recordable STS, you are not re- ical? No, you do not have to record it
quired to record the hearing loss case because the employee was not occupa-
on the OSHA 300 Log. If the retest con- tionally exposed to a known case of ac-
firms the recordable STS, you must tive tuberculosis in your workplace.
record the hearing loss illness within (2) May I line-out or erase a recorded
seven (7) calendar days of the retest. If TB case if I obtain evidence that the case
subsequent audiometric testing per- was not caused by occupational exposure?
formed under the testing requirements Yes, you may line-out or erase the case
of the § 1910.95 noise standard indicates from the Log under the following cir-
that an STS is not persistent, you may cumstances:
erase or line-out the recorded entry. (i) The worker is living in a house-
(5) Are there any special rules for deter- hold with a person who has been diag-
mining whether a hearing loss case is nosed with active TB;
work-related? No. You must use the (ii) The Public Health Department
rules in § 1904.5 to determine if the has identified the worker as a contact
hearing loss is work-related. If an of an individual with a case of active
event or exposure in the work environ- TB unrelated to the workplace; or
ment either caused or contributed to (iii) A medical investigation shows
the hearing loss, or significantly aggra- that the employee’s infection was
vated a pre-existing hearing loss, you caused by exposure to TB away from
must consider the case to be work re- work, or proves that the case was not
lated. related to the workplace TB exposure.
(6) If a physician or other licensed
health care professional determines the §§ 1904.13–1904.28 [Reserved]
hearing loss is not work-related, do I still
need to record the case?If a physician or § 1904.29 Forms.
other licensed health care professional (a) Basic requirement. You must use
determines that the hearing loss is not OSHA 300, 300–A, and 301 forms, or
work-related or has not been signifi- equivalent forms, for recordable inju-
cantly aggravated by occupational ries and illnesses. The OSHA 300 form
noise exposure, you are not required to is called the Log of Work-Related Inju-
consider the case work-related or to ries and Illnesses, the 300–A is the
record the case on the OSHA 300 Log. Summary of Work-Related Injuries and
(7) How do I complete the 300 Log for a Illnesses, and the OSHA 301 form is
hearing loss case? When you enter a re- called the Injury and Illness Incident
cordable hearing loss case on the OSHA Report.
300 Log, you must check the 300 Log (b) Implementation—(1) What do I need
column for hearing loss. to do to complete the OSHA 300 Log? You
(NOTE: § 1904.10(b)(7) is effective beginning must enter information about your
January 1, 2004.) business at the top of the OSHA 300
[67 FR 44047, July 1, 2002, as amended at 67 Log, enter a one or two line description
FR 77170, Dec. 17, 2002] for each recordable injury or illness,
and summarize this information on the
§ 1904.11 Recording criteria for work- OSHA 300–A at the end of the year.
related tuberculosis cases. (2) What do I need to do to complete the
(a) Basic requirement. If any of your OSHA 301 Incident Report? You must
employees has been occupationally ex- complete an OSHA 301 Incident Report
posed to anyone with a known case of form, or an equivalent form, for each
active tuberculosis (TB), and that em- recordable injury or illness entered on
ployee subsequently develops a tuber- the OSHA 300 Log.
culosis infection, as evidenced by a (3) How quickly must each injury or ill-
positive skin test or diagnosis by a ness be recorded? You must enter each
physician or other licensed health care recordable injury or illness on the
professional, you must record the case OSHA 300 Log and 301 Incident Report
on the OSHA 300 Log by checking the within seven (7) calendar days of re-
‘‘respiratory condition’’ column. ceiving information that a recordable
(b) Implementation—(1) Do I have to injury or illness has occurred.
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record, on the Log, a positive TB skin test (4) What is an equivalent form? An
result obtained at a pre-employment phys- equivalent form is one that has the

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Occupational Safety and Health Admin., Labor § 1904.29

same information, is as readable and (9) If I have removed the employee’s


understandable, and is completed using name, but still believe that the employee
the same instructions as the OSHA may be identified from the information on
form it replaces. Many employers use the forms, is there anything else that I
an insurance form instead of the OSHA can do to further protect the employee’s
301 Incident Report, or supplement an privacy? Yes, if you have a reasonable
insurance form by adding any addi- basis to believe that information de-
tional information required by OSHA. scribing the privacy concern case may
(5) May I keep my records on a com- be personally identifiable even though
puter? Yes, if the computer can produce the employee’s name has been omitted,
equivalent forms when they are needed, you may use discretion in describing
as described under §§ 1904.35 and 1904.40, the injury or illness on both the OSHA
you may keep your records using the 300 and 301 forms. You must enter
computer system. enough information to identify the
(6) Are there situations where I do not cause of the incident and the general
put the employee’s name on the forms for severity of the injury or illness, but
privacy reasons? Yes, if you have a you do not need to include details of an
‘‘privacy concern case,’’ you may not intimate or private nature. For exam-
enter the employee’s name on the ple, a sexual assault case could be de-
OSHA 300 Log. Instead, enter ‘‘privacy scribed as ‘‘injury from assault,’’ or an
case’’ in the space normally used for injury to a reproductive organ could be
the employee’s name. This will protect described as ‘‘lower abdominal injury.’’
the privacy of the injured or ill em-
(10) What must I do to protect employee
ployee when another employee, a
privacy if I wish to provide access to the
former employee, or an authorized em-
ployee representative is provided ac- OSHA Forms 300 and 301 to persons other
cess to the OSHA 300 Log under than government representatives, employ-
§ 1904.35(b)(2). You must keep a sepa- ees, former employees or authorized rep-
rate, confidential list of the case num- resentatives? If you decide to volun-
bers and employee names for your pri- tarily disclose the Forms to persons
vacy concern cases so you can update other than government representa-
the cases and provide the information tives, employees, former employees or
to the government if asked to do so. authorized representatives (as required
(7) How do I determine if an injury or by §§ 1904.35 and 1904.40), you must re-
illness is a privacy concern case? You move or hide the employees’ names and
must consider the following injuries or other personally identifying informa-
illnesses to be privacy concern cases: tion, except for the following cases.
(i) An injury or illness to an intimate You may disclose the Forms with per-
body part or the reproductive system; sonally identifying information only:
(ii) An injury or illness resulting (i) to an auditor or consultant hired
from a sexual assault; by the employer to evaluate the safety
(iii) Mental illnesses; and health program;
(iv) HIV infection, hepatitis, or tu- (ii) to the extent necessary for proc-
berculosis; essing a claim for workers’ compensa-
(v) Needlestick injuries and cuts tion or other insurance benefits; or
from sharp objects that are contami- (iii) to a public health authority or
nated with another person’s blood or law enforcement agency for uses and
other potentially infectious material disclosures for which consent, an au-
(see § 1904.8 for definitions); and thorization, or opportunity to agree or
(vi) Other illnesses, if the employee object is not required under Depart-
voluntarily requests that his or her ment of Health and Human Services
name not be entered on the log. Standards for Privacy of Individually
(8) May I classify any other types of in- Identifiable Health Information, 45
juries and illnesses as privacy concern CFR 164.512.
cases? No, this is a complete list of all [66 FR 6122, Jan. 19, 2001, as amended at 66
injuries and illnesses considered pri-
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FR 52034, Oct. 12, 2001; 67 FR 77170, Dec. 17,


vacy concern cases for part 1904 pur- 2002; 68 FR 38607, June 30, 2003; 81 FR 91809,
poses. Dec. 19, 2016; 82 FR 20548, May 3, 2017]

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§ 1904.30 29 CFR Ch. XVII (7–1–18 Edition)

Subpart D—Other OSHA Injury and ments is injured or becomes ill while vis-
Illness Recordkeeping Re- iting or working at another of my estab-
quirements lishments, or while working away from
any of my establishments? If the injury
§ 1904.30 Multiple business establish- or illness occurs at one of your estab-
ments. lishments, you must record the injury
(a) Basic requirement. You must keep or illness on the OSHA 300 Log of the
a separate OSHA 300 Log for each es- establishment at which the injury or
tablishment that is expected to be in illness occurred. If the employee is in-
operation for one year or longer. jured or becomes ill and is not at one of
(b) Implementation—(1) Do I need to your establishments, you must record
keep OSHA injury and illness records for the case on the OSHA 300 Log at the es-
short-term establishments (i.e., establish- tablishment at which the employee
ments that will exist for less than a year)? normally works.
Yes, however, you do not have to keep
§ 1904.31 Covered employees.
a separate OSHA 300 Log for each such
establishment. You may keep one (a) Basic requirement. You must
OSHA 300 Log that covers all of your record on the OSHA 300 Log the record-
short-term establishments. You may able injuries and illnesses of all em-
also include the short-term establish- ployees on your payroll, whether they
ments’ recordable injuries and illnesses are labor, executive, hourly, salary,
on an OSHA 300 Log that covers short- part-time, seasonal, or migrant work-
term establishments for individual ers. You also must record the record-
company divisions or geographic re- able injuries and illnesses that occur to
gions. employees who are not on your payroll
(2) May I keep the records for all of my if you supervise these employees on a
establishments at my headquarters loca- day-to-day basis. If your business is or-
tion or at some other central location? ganized as a sole proprietorship or
Yes, you may keep the records for an partnership, the owner or partners are
establishment at your headquarters or not considered employees for record-
other central location if you can: keeping purposes.
(i) Transmit information about the (b) Implementation—(1) If a self-em-
injuries and illnesses from the estab- ployed person is injured or becomes ill
lishment to the central location within while doing work at my business, do I
seven (7) calendar days of receiving in- need to record the injury or illness? No,
formation that a recordable injury or self-employed individuals are not cov-
illness has occurred; and ered by the OSH Act or this regulation.
(ii) Produce and send the records (2) If I obtain employees from a tem-
from the central location to the estab- porary help service, employee leasing serv-
lishment within the time frames re- ice, or personnel supply service, do I have
quired by §§ 1904.35 and 1904.40 when you to record an injury or illness occurring to
are required to provide records to a one of those employees? You must record
government representative, employees, these injuries and illnesses if you su-
former employees or employee rep- pervise these employees on a day-to-
resentatives. day basis.
(3) Some of my employees work at sev- (3) If an employee in my establishment
eral different locations or do not work at is a contractor’s employee, must I record
any of my establishments at all. How do I an injury or illness occurring to that em-
record cases for these employees? You ployee? If the contractor’s employee is
must link each of your employees with under the day-to-day supervision of the
one of your establishments, for record- contractor, the contractor is respon-
keeping purposes. You must record the sible for recording the injury or illness.
injury and illness on the OSHA 300 Log If you supervise the contractor employ-
of the injured or ill employee’s estab- ee’s work on a day-to-day basis, you
lishment, or on an OSHA 300 Log that must record the injury or illness.
covers that employee’s short-term es- (4) Must the personnel supply service,
tablishment. temporary help service, employee leasing
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(4) How do I record an injury or illness service, or contractor also record the inju-
when an employee of one of my establish- ries or illnesses occurring to temporary,

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Occupational Safety and Health Admin., Labor § 1904.33

leased or contract employees that I super- (4) Who is considered a company execu-
vise on a day-to-day basis? No, you and tive? The company executive who cer-
the temporary help service, employee tifies the log must be one of the fol-
leasing service, personnel supply serv- lowing persons:
ice, or contractor should coordinate (i) An owner of the company (only if
your efforts to make sure that each in- the company is a sole proprietorship or
jury and illness is recorded only once: partnership);
either on your OSHA 300 Log (if you (ii) An officer of the corporation;
provide day-to-day supervision) or on
(iii) The highest ranking company of-
the other employer’s OSHA 300 Log (if
ficial working at the establishment; or
that company provides day-to-day su-
pervision). (iv) The immediate supervisor of the
highest ranking company official
§ 1904.32 Annual summary. working at the establishment.
(a) Basic requirement. At the end of (5) How do I post the annual summary?
each calendar year, you must: You must post a copy of the annual
(1) Review the OSHA 300 Log to summary in each establishment in a
verify that the entries are complete conspicuous place or places where no-
and accurate, and correct any defi- tices to employees are customarily
ciencies identified; posted. You must ensure that the post-
(2) Create an annual summary of in- ed annual summary is not altered, de-
juries and illnesses recorded on the faced or covered by other material.
OSHA 300 Log; (6) When do I have to post the annual
(3) Certify the summary; and summary? You must post the summary
(4) Post the annual summary. no later than February 1 of the year
(b) Implementation—(1) How exten- following the year covered by the
sively do I have to review the OSHA 300 records and keep the posting in place
Log entries at the end of the year? You until April 30.
must review the entries as extensively
as necessary to make sure that they [66 FR 6122, Jan. 19, 2001, as amended at 81
are complete and correct. FR 91810, Dec. 19, 2016; 82 FR 20548, May 3,
(2) How do I complete the annual sum- 2017]
mary? You must:
(i) Total the columns on the OSHA § 1904.33 Retention and updating.
300 Log (if you had no recordable cases, (a) Basic requirement. You must save
enter zeros for each column total); and the OSHA 300 Log, the privacy case list
(ii) Enter the calendar year covered, (if one exists), the annual summary,
the company’s name, establishment and the OSHA 301 Incident Report
name, establishment address, annual forms for five (5) years following the
average number of employees covered end of the calendar year that these
by the OSHA 300 Log, and the total records cover.
hours worked by all employees covered (b) Implementation—(1) Do I have to
by the OSHA 300 Log. update the OSHA 300 Log during the five-
(iii) If you are using an equivalent
year storage period? Yes, during the
form other than the OSHA 300-A sum-
storage period, you must update your
mary form, as permitted under
stored OSHA 300 Logs to include newly
§ 1904.6(b)(4), the summary you use
must also include the employee access discovered recordable injuries or ill-
and employer penalty statements nesses and to show any changes that
found on the OSHA 300-A Summary have occurred in the classification of
form. previously recorded injuries and ill-
(3) How do I certify the annual sum- nesses. If the description or outcome of
mary? A company executive must cer- a case changes, you must remove or
tify that he or she has examined the line out the original entry and enter
OSHA 300 Log and that he or she rea- the new information.
sonably believes, based on his or her (2) Do I have to update the annual sum-
knowledge of the process by which the mary? No, you are not required to up-
kpayne on VMOFRWIN702 with $$_JOB

information was recorded, that the an- date the annual summary, but you may
nual summary is correct and complete. do so if you wish.

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§ 1904.34 29 CFR Ch. XVII (7–1–18 Edition)

(3) Do I have to update the OSHA 301 (B) Employers are prohibited from
Incident Reports? No, you are not re- discharging or in any manner discrimi-
quired to update the OSHA 301 Incident nating against employees for reporting
Reports, but you may do so if you wish. work-related injuries or illnesses; and
(iv) You must not discharge or in any
[66 FR 6122, Jan. 19, 2001, as amended at 81
FR 91810, Dec. 19, 2016; 82 FR 20548, May 3, manner discriminate against any em-
2017] ployee for reporting a work-related in-
jury or illness.
§ 1904.34 Change in business owner- (2) Do I have to give my employees and
ship. their representatives access to the OSHA
If your business changes ownership, injury and illness records? Yes, your em-
you are responsible for recording and ployees, former employees, their per-
reporting work-related injuries and ill- sonal representatives, and their au-
nesses only for that period of the year thorized employee representatives have
during which you owned the establish- the right to access the OSHA injury
ment. You must transfer the part 1904 and illness records, with some limita-
records to the new owner. The new tions, as discussed below.
owner must save all records of the es- (i) Who is an authorized employee rep-
tablishment kept by the prior owner, resentative? An authorized employee
as required by § 1904.33 of this part, but representative is an authorized collec-
need not update or correct the records tive bargaining agent of employees.
of the prior owner. (ii) Who is a ‘‘personal representative’’
of an employee or former employee? A
[82 FR 20549, May 3, 2017] personal representative is:
(A) Any person that the employee or
§ 1904.35 Employee involvement. former employee designates as such, in
(a) Basic requirement. Your employees writing; or
and their representatives must be in- (B) The legal representative of a de-
volved in the recordkeeping system in ceased or legally incapacitated em-
several ways. ployee or former employee.
(1) You must inform each employee (iii) If an employee or representative
of how he or she is to report a work-re- asks for access to the OSHA 300 Log,
lated injury or illness to you. when do I have to provide it? When an
(2) You must provide employees with employee, former employee, personal
the information described in paragraph representative, or authorized employee
(b)(1)(iii) of this section. representative asks for copies of your
(3) You must provide access to your current or stored OSHA 300 Log(s) for
injury and illness records for your em- an establishment the employee or
ployees and their representatives as de- former employee has worked in, you
scribed in paragraph (b)(2) of this sec- must give the requester a copy of the
tion. relevant OSHA 300 Log(s) by the end of
(b) Implementation—(1) What must I do the next business day.
to make sure that employees report work- (iv) May I remove the names of the em-
related injuries and illnesses to me? (i) ployees or any other information from the
You must establish a reasonable proce- OSHA 300 Log before I give copies to an
dure for employees to report work-re- employee, former employee, or employee
lated injuries and illnesses promptly representative? No, you must leave the
and accurately. A procedure is not rea- names on the 300 Log. However, to pro-
sonable if it would deter or discourage tect the privacy of injured and ill em-
a reasonable employee from accurately ployees, you may not record the em-
reporting a workplace injury or illness; ployee’s name on the OSHA 300 Log for
(ii) You must inform each employee certain ‘‘privacy concern cases,’’ as
of your procedure for reporting work- specified in § 1904.29(b)(6) through (9).
related injuries and illnesses; (v) If an employee or representative
(iii) You must inform each employee asks for access to the OSHA 301 Incident
that: Report, when do I have to provide it? (A)
(A) Employees have the right to re- When an employee, former employee,
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port work-related injuries and ill- or personal representative asks for a


nesses; and copy of the OSHA 301 Incident Report

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Occupational Safety and Health Admin., Labor § 1904.38

describing an injury or illness to that quirements in this part (see 29 CFR


employee or former employee, you 1902.3(j), 29 CFR 1902.7, and 29 CFR
must give the requester a copy of the 1956.10(i)).
OSHA 301 Incident Report containing (b) Implementation. (1) State-Plan
that information by the end of the next States must have the same require-
business day. ments as Federal OSHA for deter-
(B) When an authorized employee mining which injuries and illnesses are
representative asks for copies of the recordable and how they are recorded.
OSHA 301 Incident Reports for an es- (2) For other part 1904 provisions (for
tablishment where the agent rep- example, industry exemptions, report-
resents employees under a collective ing of fatalities and hospitalizations,
bargaining agreement, you must give record retention, or employee involve-
copies of those forms to the authorized ment), State-Plan State requirements
employee representative within 7 cal- may be more stringent than or supple-
endar days. You are only required to mental to the Federal requirements,
give the authorized employee rep- but because of the unique nature of the
resentative information from the national recordkeeping program,
OSHA 301 Incident Report section ti- States must consult with and obtain
tled ‘‘Tell us about the case.’’ You approval of any such requirements.
must remove all other information (3) Although State and local govern-
from the copy of the OSHA 301 Incident ment employees are not covered Feder-
Report or the equivalent substitute ally, all State-Plan States must pro-
form that you give to the authorized vide coverage, and must develop injury
employee representative. and illness statistics, for these work-
(vi) May I charge for the copies? No, ers. State Plan recording and reporting
you may not charge for these copies requirements for State and local gov-
the first time they are provided. How- ernment entities may differ from those
ever, if one of the designated persons for the private sector but must meet
asks for additional copies, you may as- the requirements of paragraphs
sess a reasonable charge for retrieving 1904.37(b)(1) and (b)(2).
and copying the records. (4) A State-Plan State may not issue
[81 FR 29691, May 12, 2016; 81 FR 31854, May a variance to a private sector employer
20, 2016, as amended at 81 FR 91810, Dec. 19, and must recognize all variances issued
2016; 82 FR 20549, May 3, 2017] by Federal OSHA.
(5) A State Plan State may only
§ 1904.36 Prohibition against discrimi- grant an injury and illness recording
nation. and reporting variance to a State or
In addition to § 1904.35, section 11(c) local government employer within the
of the OSH Act also prohibits you from State after obtaining approval to grant
discriminating against an employee for the variance from Federal OSHA.
reporting a work-related fatality, in-
[66 FR 6122, Jan. 19, 2001, as amended at 80
jury, or illness. That provision of the FR 49904, Aug. 18, 2015]
Act also protects the employee who
files a safety and health complaint, § 1904.38 Variances from the record-
asks for access to the part 1904 records, keeping rule.
or otherwise exercises any rights af- (a) Basic requirement. If you wish to
forded by the OSH Act. keep records in a different manner
[81 FR 29692, May 12, 2016] from the manner prescribed by the part
1904 regulations, you may submit a
§ 1904.37 State recordkeeping regula- variance petition to the Assistant Sec-
tions. retary of Labor for Occupational Safe-
(a) Basic requirement. Some States op- ty and Health, U.S. Department of
erate their own OSHA programs, under Labor, Washington, DC 20210. You can
the authority of a State plan as ap- obtain a variance only if you can show
proved by OSHA. States operating that your alternative recordkeeping
OSHA-approved State plans must have system:
occupational injury and illness record- (1) Collects the same information as
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ing and reporting requirements that this part requires;


are substantially identical to the re- (2) Meets the purposes of the Act; and

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§ 1904.38 29 CFR Ch. XVII (7–1–18 Edition)

(3) Does not interfere with the ad- (iv) If the Assistant Secretary grants
ministration of the Act. your variance petition, OSHA will pub-
(b) Implementation—(1) What do I need lish a notice in the FEDERAL REGISTER
to include in my variance petition? You to announce the variance. The notice
must include the following items in will include the practices the variance
your petition: allows you to use, any conditions that
(i) Your name and address; apply, and the reasons for allowing the
(ii) A list of the State(s) where the variance.
variance would be used; (3) If I apply for a variance, may I use
(iii) The address(es) of the business my proposed recordkeeping procedures
establishment(s) involved; while the Assistant Secretary is processing
(iv) A description of why you are the variance petition? No, alternative
seeking a variance; recordkeeping practices are only al-
(v) A description of the different rec- lowed after the variance is approved.
ordkeeping procedures you propose to You must comply with the part 1904
use; regulations while the Assistant Sec-
(vi) A description of how your pro- retary is reviewing your variance peti-
posed procedures will collect the same tion.
information as would be collected by (4) If I have already been cited by
this part and achieve the purpose of OSHA for not following the part 1904 reg-
the Act; and ulations, will my variance petition have
(vii) A statement that you have in- any effect on the citation and penalty?
formed your employees of the petition No, in addition, the Assistant Sec-
by giving them or their authorized rep- retary may elect not to review your
resentative a copy of the petition and
variance petition if it includes an ele-
by posting a statement summarizing
ment for which you have been cited
the petition in the same way as notices
are posted under § 1903.2(a). and the citation is still under review
by a court, an Administrative Law
(2) How will the Assistant Secretary
handle my variance petition? The Assist- Judge (ALJ), or the OSH Review Com-
ant Secretary will take the following mission.
steps to process your variance petition. (5) If I receive a variance, may the As-
(i) The Assistant Secretary will offer sistant Secretary revoke the variance at a
your employees and their authorized later date? Yes, the Assistant Secretary
representatives an opportunity to sub- may revoke your variance if he or she
mit written data, views, and arguments has good cause. The procedures revok-
about your variance petition. ing a variance will follow the same
(ii) The Assistant Secretary may process as OSHA uses for reviewing
allow the public to comment on your variance petitions, as outlined in para-
variance petition by publishing the pe- graph 1904.38(b)(2). Except in cases of
tition in the FEDERAL REGISTER. If the willfulness or where necessary for pub-
petition is published, the notice will es- lic safety, the Assistant Secretary will:
tablish a public comment period and (i) Notify you in writing of the facts
may include a schedule for a public or conduct that may warrant revoca-
meeting on the petition. tion of your variance; and
(iii) After reviewing your variance (ii) Provide you, your employees, and
petition and any comments from your authorized employee representatives
employees and the public, the Assist- with an opportunity to participate in
ant Secretary will decide whether or the revocation procedures.
not your proposed recordkeeping proce-
dures will meet the purposes of the
Act, will not otherwise interfere with Subpart E—Reporting Fatality, In-
the Act, and will provide the same in- jury and Illness Information to
formation as the part 1904 regulations the Government
provide. If your procedures meet these
criteria, the Assistant Secretary may
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AUTHORITY: 29 U.S.C. 657, 673, 5 U.S.C. 553,


grant the variance subject to such con- and Secretary of Labor’s Order 1–2012 (77 FR
ditions as he or she finds appropriate. 3912, Jan. 25, 2012).

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Occupational Safety and Health Admin., Labor § 1904.39

§ 1904.39 Reporting fatalities, hos- (iv) The type of reportable event (i.e.,
pitalizations, amputations, and fatality, in-patient hospitalization,
losses of an eye as a result of work- amputation, or loss of an eye);
related incidents to OSHA. (v) The number of employees who suf-
(a) Basic requirement. (1) Within eight fered a fatality, in-patient hospitaliza-
(8) hours after the death of any em- tion, amputation, or loss of an eye;
ployee as a result of a work-related in- (vi) The names of the employees who
cident, you must report the fatality to suffered a fatality, in-patient hos-
the Occupational Safety and Health pitalization, amputation, or loss of an
Administration (OSHA), U.S. Depart- eye;
ment of Labor. (vii) Your contact person and his or
(2) Within twenty-four (24) hours her phone number; and
after the in-patient hospitalization of (viii) A brief description of the work-
one or more employees or an employ- related incident.
ee’s amputation or an employee’s loss (3) Do I have to report the fatality, in-
of an eye, as a result of a work-related patient hospitalization, amputation, or
incident, you must report the in-pa- loss of an eye if it resulted from a motor
tient hospitalization, amputation, or vehicle accident on a public street or
loss of an eye to OSHA. highway? If the motor vehicle accident
(3) You must report the fatality, in- occurred in a construction work zone,
patient hospitalization, amputation, or you must report the fatality, in-pa-
loss of an eye using one of the fol- tient hospitalization, amputation, or
lowing methods: loss of an eye. If the motor vehicle ac-
(i) By telephone or in person to the cident occurred on a public street or
OSHA Area Office that is nearest to highway, but not in a construction
the site of the incident. work zone, you do not have to report
(ii) By telephone to the OSHA toll- the fatality, in-patient hospitalization,
free central telephone number, 1–800– amputation, or loss of an eye to OSHA.
321–OSHA (1–800–321–6742). However, the fatality, in-patient hos-
(iii) By electronic submission using pitalization, amputation, or loss of an
the reporting application located on eye must be recorded on your OSHA in-
OSHA’s public Web site at jury and illness records, if you are re-
www.osha.gov. quired to keep such records.
(b) Implementation—(1) If the Area Of- (4) Do I have to report the fatality, in-
fice is closed, may I report the fatality, in- patient hospitalization, amputation, or
patient hospitalization, amputation, or loss of an eye if it occurred on a commer-
loss of an eye by leaving a message on cial or public transportation system? No,
OSHA’s answering machine, faxing the you do not have to report the fatality,
Area Office, or sending an email? No, if in-patient hospitalization, amputation,
the Area Office is closed, you must re- or loss of an eye to OSHA if it occurred
port the fatality, in-patient hos- on a commercial or public transpor-
pitalization, amputation, or loss of an tation system (e.g., airplane, train,
eye using either the 800 number or the subway, or bus). However, the fatality,
reporting application located on in-patient hospitalization, amputation,
OSHA’s public Web site at or loss of an eye must be recorded on
www.osha.gov. your OSHA injury and illness records,
(2) What information do I need to give if you are required to keep such
to OSHA about the in-patient hospitaliza- records.
tion, amputation, or loss of an eye? You (5) Do I have to report a work-related
must give OSHA the following informa- fatality or in-patient hospitalization
tion for each fatality, in-patient hos- caused by a heart attack? Yes, your local
pitalization, amputation, or loss of an OSHA Area Office director will decide
eye: whether to investigate the event, de-
(i) The establishment name; pending on the circumstances of the
(ii) The location of the work-related heart attack.
incident; (6) What if the fatality, in-patient hos-
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(iii) The time of the work-related in- pitalization, amputation, or loss of an eye
cident; does not occur during or right after the

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§ 1904.40 29 CFR Ch. XVII (7–1–18 Edition)

work-related incident? You must only re- hospitalization that involves care or
port a fatality to OSHA if the fatality treatment.
occurs within thirty (30) days of the (11) How does OSHA define ‘‘amputa-
work-related incident. For an in-pa- tion’’? An amputation is the traumatic
tient hospitalization, amputation, or loss of a limb or other external body
loss of an eye, you must only report part. Amputations include a part, such
the event to OSHA if it occurs within as a limb or appendage, that has been
twenty-four (24) hours of the work-re- severed, cut off, amputated (either
lated incident. However, the fatality, completely or partially); fingertip am-
in-patient hospitalization, amputation, putations with or without bone loss;
or loss of an eye must be recorded on
medical amputations resulting from ir-
your OSHA injury and illness records,
reparable damage; amputations of body
if you are required to keep such
records. parts that have since been reattached.
(7) What if I don’t learn about a report- Amputations do not include avulsions,
able fatality, in-patient hospitalization, enucleations, deglovings, scalpings,
amputation, or loss of an eye right away? severed ears, or broken or chipped
If you do not learn about a reportable teeth.
fatality, in-patient hospitalization, [79 FR 56187, Sept. 18, 2014]
amputation, or loss of an eye at the
time it takes place, you must make the § 1904.40 Providing records to govern-
report to OSHA within the following ment representatives.
time period after the fatality, in-pa-
(a) Basic requirement. When an au-
tient hospitalization, amputation, or
thorized government representative
loss of an eye is reported to you or to
any of your agent(s): Eight (8) hours asks for the records you keep under
for a fatality, and twenty-four (24) part 1904, you must provide copies of
hours for an in-patient hospitalization, the records within four (4) business
an amputation, or a loss of an eye. hours.
(8) What if I don’t learn right away (b) Implementation—(1) What govern-
that the reportable fatality, in-patient ment representatives have the right to get
hospitalization, amputation, or loss of an copies of my part 1904 records? The gov-
eye was the result of a work-related inci- ernment representatives authorized to
dent? If you do not learn right away receive the records are:
that the reportable fatality, in-patient (i) A representative of the Secretary
hospitalization, amputation, or loss of of Labor conducting an inspection or
an eye was the result of a work-related investigation under the Act;
incident, you must make the report to (ii) A representative of the Secretary
OSHA within the following time period of Health and Human Services (includ-
after you or any of your agent(s) learn ing the National Institute for Occupa-
that the reportable fatality, in-patient tional Safety and Health—NIOSH) con-
hospitalization, amputation, or loss of ducting an investigation under section
an eye was the result of a work-related
20(b) of the Act, or
incident: Eight (8) hours for a fatality,
and twenty-four (24) hours for an in-pa- (iii) A representative of a State agen-
tient hospitalization, an amputation, cy responsible for administering a
or a loss of an eye. State plan approved under section 18 of
(9) How does OSHA define ‘‘in-patient the Act.
hospitalization’’? OSHA defines in-pa- (2) Do I have to produce the records
tient hospitalization as a formal ad- within four (4) hours if my records are
mission to the in-patient service of a kept at a location in a different time zone?
hospital or clinic for care or treatment. OSHA will consider your response to be
(10) Do I have to report an in-patient timely if you give the records to the
hospitalization that involves only obser- government representative within four
vation or diagnostic testing? No, you do (4) business hours of the request. If you
not have to report an in-patient hos- maintain the records at a location in a
pitalization that involves only observa- different time zone, you may use the
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tion or diagnostic testing. You must business hours of the establishment at


only report to OSHA each in-patient

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Occupational Safety and Health Admin., Labor § 1904.41

which the records are located when cal- mation from their injury and illness
culating the deadline. records. First, if your establishment
[66 FR 6122, Jan. 19, 2001, as amended at 81
had 250 or more employees at any time
FR 91810, Dec. 19, 2016; 82 FR 20549, May 3, during the previous calendar year, and
2017] this part requires your establishment
to keep records, then you must submit
§ 1904.41 Electronic submission of in- the required Form 300A, 300, and 301 in-
jury and illness records to OSHA. formation to OSHA once a year. Sec-
(a) Basic requirements—(1) Annual elec- ond, if your establishment had 20 or
tronic submission of part 1904 records by more employees but fewer than 250 em-
establishments with 250 or more employ- ployees at any time during the pre-
ees. If your establishment had 250 or vious calendar year, and your estab-
more employees at any time during the lishment is classified in an industry
previous calendar year, and this part listed in appendix A to subpart E of
requires your establishment to keep this part, then you must submit the re-
records, then you must electronically quired Form 300A information to OSHA
submit information from the three rec- once a year. Employers in these two
ordkeeping forms that you keep under categories must submit the required
this part (OSHA Form 300A Summary information by the date listed in para-
of Work-Related Injuries and Illnesses, graph (c) of this section of the year
OSHA Form 300 Log of Work-Related after the calendar year covered by the
Injuries and Illnesses, and OSHA Form form or forms (for example, 2017 for the
301 Injury and Illness Incident Report) 2016 forms). If you are not in either of
to OSHA or OSHA’s designee. You must these two categories, then you must
submit the information once a year, no submit information from the injury
later than the date listed in paragraph and illness records to OSHA only if
(c) of this section of the year after the OSHA notifies you to do so for an indi-
calendar year covered by the forms. vidual data collection.
(2) Annual electronic submission of (2) If I have to submit information
OSHA Form 300A Summary of Work-Re- under paragraph (a)(1) of this section, do
lated Injuries and Illnesses by establish- I have to submit all of the information
ments with 20 or more employees but fewer from the recordkeeping form? No, you are
than 250 employees in designated indus- required to submit all of the informa-
tries. If your establishment had 20 or tion from the form except the following:
more employees but fewer than 250 em- (i) Log of Work-Related Injuries and
ployees at any time during the pre- Illnesses (OSHA Form 300): Employee
vious calendar year, and your estab- name (column B).
lishment is classified in an industry (ii) Injury and Illness Incident Report
listed in appendix A to subpart E of (OSHA Form 301): Employee name
this part, then you must electronically (field 1), employee address (field 2),
submit information from OSHA Form name of physician or other health care
300A Summary of Work-Related Inju- professional (field 6), facility name and
ries and Illnesses to OSHA or OSHA’s address if treatment was given away
designee. You must submit the infor- from the worksite (field 7).
mation once a year, no later than the (3) Do part-time, seasonal, or temporary
date listed in paragraph (c) of this sec- workers count as employees in the criteria
tion of the year after the calendar year for number of employees in paragraph (a)
covered by the form. of this section? Yes, each individual em-
(3) Electronic submission of part 1904 ployed in the establishment at any
records upon notification. Upon notifica- time during the calendar year counts
tion, you must electronically submit as one employee, including full-time,
the requested information from your part-time, seasonal, and temporary
part 1904 records to OSHA or OSHA’s workers.
designee. (4) How will OSHA notify me that I
(b) Implementation—(1) Does every em- must submit information from the injury
ployer have to routinely submit informa- and illness records as part of an indi-
tion from the injury and illness records to vidual data collection under paragraph
kpayne on VMOFRWIN702 with $$_JOB

OSHA? No, only two categories of em- (a)(3) of this section? OSHA will notify
ployers must routinely submit infor- you by mail if you will have to submit

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§ 1904.42 29 CFR Ch. XVII (7–1–18 Edition)

information as part of an individual keeping OSHA injury and illness records?


data collection under paragraph (a)(3). If you are partially exempt from keep-
OSHA will also announce individual ing injury and illness records under
data collections through publication in §§ 1904.1 and/or 1904.2, then you do not
the FEDERAL REGISTER and the OSHA have to routinely submit part 1904 in-
newsletter, and announcements on the formation under paragraphs (a)(1) and
OSHA Web site. If you are an employer (2) of this section. You will have to
who must routinely submit the infor- submit information under paragraph
mation, then OSHA will not notify you (a)(3) of this section if OSHA informs
about your routine submittal. you in writing that it will collect in-
(5) How often do I have to submit the jury and illness information from you.
information from the injury and illness If you receive such a notification, then
records? If you are required to submit you must keep the injury and illness
information under paragraph (a)(1) or records required by this part and sub-
(2) of this section, then you must sub- mit information as directed.
mit the information once a year, by (8) Do I have to submit information if I
the date listed in paragraph (c) of this am located in a State Plan State? Yes,
section of the year after the calendar
the requirements apply to employers
year covered by the form or forms. If
located in State Plan States.
you are submitting information be-
cause OSHA notified you to submit in- (9) May an enterprise or corporate office
formation as part of an individual data electronically submit part 1904 records for
collection under paragraph (a)(3) of its establishment(s)? Yes, if your enter-
this section, then you must submit the prise or corporate office had ownership
information as often as specified in the of or control over one or more estab-
notification. lishments required to submit informa-
(6) How do I submit the information? tion under paragraph (a)(1) or (2) of
You must submit the information elec- this section, then the enterprise or cor-
tronically. OSHA will provide a secure porate office may collect and electroni-
Web site for the electronic submission cally submit the information for the
of information. For individual data col- establishment(s).
lections under paragraph (a)(3) of this (c) Reporting dates. (1) In 2017 and
section, OSHA will include the Web 2018, establishments required to submit
site’s location in the notification for under paragraph (a)(1) or (2) of this sec-
the data collection. tion must submit the required informa-
(7) Do I have to submit information if tion according to the table in this
my establishment is partially exempt from paragraph (c)(1):
Establishments submitting under para- Establishments submitting under para-
graph (a)(1) of this section must submit Submission dead-
Submission year graph (a)(2) of this section must submit
the required information from this form/ line
the required information from this form:
these forms:

2017 .................... 300A ........................................................... 300A ........................................................... December 15,


2017.
2018 .................... 300A, 300, 301 ........................................... 300A ........................................................... July 1, 2018.

(2) Beginning in 2019, establishments § 1904.42 Requests from the Bureau of


that are required to submit under para- Labor Statistics for data.
graph (a)(1) or (2) of this section will (a) Basic requirement. If you receive a
have to submit all of the required in- Survey of Occupational Injuries and
formation by March 2 of the year after Illnesses Form from the Bureau of
the calendar year covered by the form Labor Statistics (BLS), or a BLS des-
or forms (for example, by March 2, 2019, ignee, you must promptly complete the
for the forms covering 2018). form and return it following the in-
structions contained on the survey
[81 FR 29692, May 12, 2016, as amended at 82
FR 55765, Nov. 24, 2017]
form.
(b) Implementation—(1) Does every em-
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ployer have to send data to the BLS? No,


each year, the BLS sends injury and

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Occupational Safety and Health Admin., Labor § 1904.43

illness survey forms to randomly se- NAICS Industry


lected employers and uses the informa-
4542 ... Vending machine operators.
tion to create the Nation’s occupa- 4543 ... Direct selling establishments.
tional injury and illness statistics. In 4811 ... Scheduled air transportation.
any year, some employers will receive 4841 ... General freight trucking.
4842 ... Specialized freight trucking.
a BLS survey form and others will not. 4851 ... Urban transit systems.
You do not have to send injury and ill- 4852 ... Interurban and rural bus transportation.
ness data to the BLS unless you re- 4853 ... Taxi and limousine service.
ceive a survey form. 4854 ... School and employee bus transportation.
4855 ... Charter bus industry.
(2) If I get a survey form from the BLS, 4859 ... Other transit and ground passenger transportation.
what do I have to do? If you receive a 4871 ... Scenic and sightseeing transportation, land.
Survey of Occupational Injuries and 4881 ... Support activities for air transportation.
4882 ... Support activities for rail transportation.
Illnesses Form from the Bureau of 4883 ... Support activities for water transportation.
Labor Statistics (BLS), or a BLS des- 4884 ... Support activities for road transportation.
ignee, you must promptly complete the 4889 ... Other support activities for transportation.
form and return it, following the in- 4911 ... Postal service.
4921 ... Couriers and express delivery services.
structions contained on the survey 4922 ... Local messengers and local delivery.
form. 4931 ... Warehousing and storage.
(3) Do I have to respond to a BLS sur- 5152 ... Cable and other subscription programming.
5311 ... Lessors of real estate.
vey form if I am normally exempt from 5321 ... Automotive equipment rental and leasing.
keeping OSHA injury and illness records? 5322 ... Consumer goods rental.
Yes, even if you are exempt from keep- 5323 ... General rental centers.
ing injury and illness records under 5617 ... Services to buildings and dwellings.
5621 ... Waste collection.
§ 1904.1 to § 1904.3, the BLS may inform 5622 ... Waste treatment and disposal.
you in writing that it will be collecting 5629 ... Remediation and other waste management serv-
injury and illness information from ices.
6219 ... Other ambulatory health care services.
you in the coming year. If you receive 6221 ... General medical and surgical hospitals.
such a letter, you must keep the injury 6222 ... Psychiatric and substance abuse hospitals.
and illness records required by § 1904.5 6223 ... Specialty (except psychiatric and substance abuse)
to § 1904.15 and make a survey report hospitals.
6231 ... Nursing care facilities.
for the year covered by the survey. 6232 ... Residential mental retardation, mental health and
(4) Do I have to answer the BLS survey substance abuse facilities.
form if I am located in a State-Plan State? 6233 ... Community care facilities for the elderly.
6239 ... Other residential care facilities.
Yes, all employers who receive a sur- 6242 ... Community food and housing, and emergency and
vey form must respond to the survey, other relief services.
even those in State-Plan States. 6243 ... Vocational rehabilitation services.
7111 ... Performing arts companies.
7112 ... Spectator sports.
APPENDIX A TO SUBPART E OF PART 7121 ... Museums, historical sites, and similar institutions.
1904—DESIGNATED INDUSTRIES FOR 7131 ... Amusement parks and arcades.
§ 1904.41(A)(2) ANNUAL ELECTRONIC 7132 ... Gambling industries.
SUBMISSION OF OSHA FORM 300A 7211 ... Traveler accommodation.
7212 ... RV (recreational vehicle) parks and recreational
SUMMARY OF WORK-RELATED INJU- camps.
RIES AND ILLNESSES BY ESTABLISH- 7213 ... Rooming and boarding houses.
MENTS WITH 20 OR MORE EMPLOYEES 7223 ... Special food services.
8113 ... Commercial and industrial machinery and equip-
BUT FEWER THAN 250 EMPLOYEES IN
ment (except automotive and electronic) repair
DESIGNATED INDUSTRIES and maintenance.
8123 ... Dry-cleaning and laundry services.
NAICS Industry

11 ....... Agriculture, forestry, fishing and hunting. [81 FR 29693, May 12, 2016]
22 ....... Utilities.
23 ....... Construction.
31–33
42 .......
Manufacturing.
Wholesale trade.
Subpart F—Transition From the
4413 ... Automotive parts, accessories, and tire stores. Former Rule
4421 ... Furniture stores.
4422 ... Home furnishings stores. § 1904.43 Summary and posting of the
4441 ... Building material and supplies dealers. 2001 data.
4442 ... Lawn and garden equipment and supplies stores.
4451 ... Grocery stores. (a) Basic requirement. If you were re-
4452 ... Specialty food stores. quired to keep OSHA 200 Logs in 2001,
kpayne on VMOFRWIN702 with $$_JOB

4521 ... Department stores.


4529 ... Other general merchandise stores. you must post a 2000 annual summary
4533 ... Used merchandise stores. from the OSHA 200 Log of occupational

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§ 1904.44 29 CFR Ch. XVII (7–1–18 Edition)

injuries and illnesses for each estab- Subpart G—Definitions


lishment.
(b) Implementation—(1) What do I have § 1904.46 Definitions.
to include in the summary? (i) You must The Act. The Act means the Occupa-
include a copy of the totals from the tional Safety and Health Act of 1970 (29
2001 OSHA 200 Log and the following U.S.C. 651 et seq.). The definitions con-
information from that form: tained in section 3 of the Act (29 U.S.C.
(A) The calendar year covered; 652) and related interpretations apply
(B) Your company name; to such terms when used in this part
(C) The name and address of the es- 1904.
tablishment; and Establishment. An establishment is a
(D) The certification signature, title single physical location where business
and date. is conducted or where services or in-
(ii) If no injuries or illnesses occurred dustrial operations are performed. For
at your establishment in 2001, you activities where employees do not work
must enter zeros on the totals line and at a single physical location, such as
post the 2001 summary. construction; transportation; commu-
nications, electric, gas and sanitary
(2) When am I required to summarize
services; and similar operations, the es-
and post the 2001 information? (i) You
tablishment is represented by main or
must complete the summary by Feb- branch offices, terminals, stations, etc.
ruary 1, 2002; and that either supervise such activities or
(ii) You must post a copy of the sum- are the base from which personnel
mary in each establishment in a con- carry out these activities.
spicuous place or places where notices (1) Can one business location include
to employees are customarily posted. two or more establishments? Normally,
You must ensure that the summary is one business location has only one es-
not altered, defaced or covered by tablishment. Under limited conditions,
other material. the employer may consider two or
(3) You must post the 2001 summary more separate businesses that share a
from February 1, 2002 to March 1, 2002. single location to be separate estab-
lishments. An employer may divide one
§ 1904.44 Retention and updating of location into two or more establish-
old forms. ments only when:
You must save your copies of the (i) Each of the establishments rep-
OSHA 200 and 101 forms for five years resents a distinctly separate business;
following the year to which they relate (ii) Each business is engaged in a dif-
and continue to provide access to the ferent economic activity;
data as though these forms were the (iii) No one industry description in
OSHA 300 and 301 forms. You are not the Standard Industrial Classification
required to update your old 200 and 101 Manual (1987) applies to the joint ac-
forms. tivities of the establishments; and
(iv) Separate reports are routinely
§ 1904.45 OMB control numbers under prepared for each establishment on the
the Paperwork Reduction Act number of employees, their wages and
salaries, sales or receipts, and other
The following sections each contain a
business information. For example, if
collection of information requirement
an employer operates a construction
which has been approved by the Office company at the same location as a
of Management and Budget under the lumber yard, the employer may con-
control number listed sider each business to be a separate es-
OMB Con-
tablishment.
29 CFR citation trol No. (2) Can an establishment include more
than one physical location? Yes, but only
1904.4–35 ............................................................ 1218–0176
1904.39–41 .......................................................... 1218–0176
under certain conditions. An employer
may combine two or more physical lo-
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1904.42 ................................................................ 1220–0045


1904.43–44 .......................................................... 1218–0176 cations into a single establishment
only when:

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Occupational Safety and Health Admin., Labor Pt. 1905

(i) The employer operates the loca- PART 1905—RULES OF PRACTICE


tions as a single business operation FOR VARIANCES, LIMITATIONS,
under common management; VARIATIONS, TOLERANCES, AND
(ii) The locations are all located in EXEMPTIONS UNDER THE WIL-
close proximity to each other; and LIAMS-STEIGER OCCUPATIONAL
(iii) The employer keeps one set of
SAFETY AND HEALTH ACT OF
business records for the locations, such
as records on the number of employees,
1970
their wages and salaries, sales or re- Subpart A—General
ceipts, and other kinds of business in-
formation. For example, one manufac- Sec.
turing establishment might include the 1905.1 Purpose and scope.
1905.2 Definitions.
main plant, a warehouse a few blocks 1905.3 Petitions for amendments to this
away, and an administrative services part.
building across the street. 1905.4 Amendments to this part.
(3) If an employee telecommutes from 1905.5 Effect of variances.
home, is his or her home considered a sep- 1905.6 Public notice of a granted variance,
limitation, variation, tolerance, or ex-
arate establishment? No, for employees emption.
who telecommute from home, the em- 1905.7 Form of documents; subscription;
ployee’s home is not a business estab- copies.
lishment and a separate 300 Log is not
required. Employees who telecommute Subpart B—Applications for Variances,
must be linked to one of your estab- Limitations, Variations, Tolerances, Ex-
lishments under § 1904.30(b)(3). emptions and Other Relief
Injury or illness. An injury or illness 1905.10 Variances and other relief under sec-
is an abnormal condition or disorder. tion 6(b)(6)(A).
Injuries include cases such as, but not 1905.11 Variances and other relief under sec-
tion 6(d).
limited to, a cut, fracture, sprain, or
1905.12 Limitations, variations, tolerances,
amputation. Illnesses include both or exemptions under section 16.
acute and chronic illnesses, such as, 1905.13 Modification, revocation, and re-
but not limited to, a skin disease, res- newal of rules or orders.
piratory disorder, or poisoning. (Note: 1905.14 Action on applications.
1905.15 Requests for hearings on applica-
Injuries and illnesses are recordable
tions.
only if they are new, work-related 1905.16 Consolidation of proceedings.
cases that meet one or more of the part
1904 recording criteria.) Subpart C—Hearings
Physician or Other Licensed Health 1905.20 Notice of hearing.
Care Professional. A physician or other 1905.21 Manner of service.
licensed health care professional is an 1905.22 Hearing examiners; powers and du-
individual whose legally permitted ties.
scope of practice (i.e., license, registra- 1905.23 Prehearing conferences.
1905.24 Consent findings and rules or orders.
tion, or certification) allows him or her 1905.25 Discovery.
to independently perform, or be dele- 1905.26 Hearings.
gated the responsibility to perform, the 1905.27 Decisions of hearing examiners.
activities described by this regulation. 1905.28 Exceptions.
You. ‘‘You’’ means an employer as 1905.29 Transmission of record.
1905.30 Decision of the Assistant Secretary.
defined in section 3 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. Subpart D—Summary Decisions
652).
1905.40 Motion for summary decision.
1905.41 Summary decision.

Subpart E—Effect of Initial Decisions


1905.50 Effect of appeal of a hearing exam-
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iner’s decision.
1905.51 Finality for purposes of judicial re-
view.

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§ 1905.1 29 CFR Ch. XVII (7–1–18 Edition)
AUTHORITY: Secs. 6, 8, 16, Occupational tion, variation, tolerance, or exemp-
Safety and Health Act of 1970 (29 U.S.C. 655, tion, or any one of his authorized rep-
657, 665), Secretary of Labor’s Order No. 12–71 resentatives, such as his collective bar-
(36 FR 8754), 8–76 (41 FR 25059), or 9–83 (48 FR
gaining agent.
35736) as applicable.
SOURCE: 36 FR 12290, June 30, 1971, unless § 1905.3 Petitions for amendments to
otherwise noted. this part.
Any person may at any time petition
Subpart A—General the Assistant Secretary in writing to
revise, amend, or revoke any provisions
§ 1905.1 Purpose and scope. of this part. The petition should set
(a) This part contains rules of prac- forth either the terms or the substance
tice for administrative proceedings of the rule desired, with a concise
(1) To grant variances and other re- statement of the reasons therefor and
lief under sections 6(b)(6)(A) and 6(d) of the effects thereof.
the Williams-Steiger Occupational
Safety and Health Act of 1970, and § 1905.4 Amendments to this part.
(2) To provide limitations, variations, The Assistant Secretary may at any
tolerances, and exemptions under sec- time revise, amend, or revoke any pro-
tion 16 of the Act. visions of this part, on his own motion
(b) These rules shall be construed to or upon the written petition of any per-
secure a prompt and just conclusion of son.
proceedings subject thereto.
(c) The rules of practice in this part § 1905.5 Effect of variances.
do not apply to the granting of All variances granted pursuant to
variances under section 6(b)(6)(C). this part shall have only future effect.
Whenever appropriate, the procedure In his discretion, the Assistant Sec-
for granting such a variance shall be retary may decline to entertain an ap-
published in the FEDERAL REGISTER. plication for a variance on a subject or
issue concerning which a citation has
§ 1905.2 Definitions. been issued to the employer involved
As used in this part, unless the con- and a proceeding on the citation or a
text clearly requires otherwise— related issue concerning a proposed
(a) Act means the Williams-Steiger penalty or period of abatement is pend-
Occupational Safety and Health Act of ing before the Occupational Safety and
1970. Health Review Commission or appro-
(b) Secretary means the Secretary of priate State review authority until the
Labor. completion of such proceeding.
(c) Assistant Secretary means the As- [36 FR 12290, June 30, 1971, as amended at 40
sistant Secretary of Labor for Occupa- FR 25449, June 16, 1975]
tional Safety and Health.
(d) Person means an individual, part- § 1905.6 Public notice of a granted
nership, association, corporation, busi- variance, limitation, variation, tol-
ness trust, legal representative, and or- erance, or exemption.
ganized group of individuals, or an Every final action granting a vari-
agency, authority, or instrumentality ance, limitation, variation, tolerance,
of the United States or of a State. or exemption under this part shall be
(e) Party means a person admitted to published in the FEDERAL REGISTER.
participate in a hearing conducted in Every such final action shall specify
accordance with subpart C of this part. the alternative to the standard in-
An applicant for relief and any affected volved which the particular variance
employee shall be entitled to be named permits.
parties. The Department of Labor, rep-
resented by the Office of the Solicitor, § 1905.7 Form of documents; subscrip-
shall be deemed to be a party without tion; copies.
the necessity of being named. (a) No particular form is prescribed
(f) Affected employee means an em- for applications and other papers which
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ployee who would be affected by the may be filed in proceedings under this
grant or denial of a variance, limita- part. However, any applications and

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Occupational Safety and Health Admin., Labor § 1905.10

other papers shall be clearly legible. (7) A statement of the facts the appli-
An original and six copies of any appli- cant would show to establish that
cation or other papers shall be filed. (i) The applicant is unable to comply
The original shall be typewritten. with a standard by its effective date
Clear carbon copies, or printed or proc- because of unavailability of profes-
essed copies are acceptable copies. sional or technical personnel or of ma-
(b) Each application or other paper terials and equipment needed to come
which is filed in proceedings under this into compliance with the standard or
part shall be subscribed by the person because necessary construction or al-
filing the same or by his attorney or teration of facilities cannot be com-
other authorized representative. pleted by the effective date;
(ii) He is taking all available steps to
Subpart B—Applications for safeguard his employees against the
Variances, Limitations, Vari- hazards covered by the standard; and
ations, Tolerances, Exemp- (iii) He has an effective program for
tions and Other Relief coming into compliance with the
standard as quickly as practicable;
§ 1905.10 Variances and other relief (8) Any request for a hearing, as pro-
under section 6(b)(6)(A). vided in this part;
(a) Application for variance. Any em- (9) A statement that the applicant
ployer, or class of employers, desiring a has informed his affected employees of
variance from a standard, or portion the application by giving a copy there-
thereof, authorized by section 6(b)(6)(A) of to their authorized representative,
of the Act may file a written applica- posting a statement, giving a summary
tion containing the information speci- of the application and specifying where
fied in paragraph (b) of this section a copy may be examined, at the place
with the Assistant Secretary for Occu- or places where notices to employees
pational Safety and Health, U.S. De- are normally posted, and by other ap-
partment of Labor, Washington, DC propriate means; and
20210. (10) A description of how affected em-
(b) Contents. An application filed pur- ployees have been informed of the ap-
suant to paragraph (a) of this section plication and of their right to petition
shall include: the Assistant Secretary for a hearing.
(1) The name and address of the ap- (11) Where the requested variance
plicant; would be applicable to employment or
(2) The address of the place or places places of employment in more than one
of employment involved; State, including at least one State
(3) A specification of the standard or with a State plan approved under sec-
portion thereof from which the appli- tion 18 of the Act, and involves a stand-
cant seeks a variance; ard, or portion thereof, identical to a
(4) A representation by the applicant, State standard effective under such
supported by representations from plan:
qualified persons having first-hand (i) A side-by-side comparison of the
knowledge of the facts represented, Federal standard, or portion thereof,
that he is unable to comply with the involved with the State standard, or
standard or portion thereof by its effec- portion thereof, identical in substance
tive date and a detailed statement of and requirements;
the reasons therefor; (ii) A certification that the employer
(5) A statement of the steps the ap- or employers have not filed for such
plicant has taken and will take, with variance on the same material facts for
specific dates where appropriate, to the same employment or place of em-
protect employees against the hazard ployment with any State authority
covered by the standard; having jurisdiction under an approval
(6) A statement of when the applicant plan over any employment or place of
expects to be able to comply with the employment covered in the applica-
standard and of what steps he has tion; and
taken and will take, with specific dates (iii) A statement as to whether, with
kpayne on VMOFRWIN702 with $$_JOB

where appropriate, to come into com- an identification of, any citations for
pliance with the standard; violations of the State standard, or

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§ 1905.11 29 CFR Ch. XVII (7–1–18 Edition)

portion thereof, involved have been (4) A statement showing how the con-
issued to the employer or employers by ditions, practices, means, methods, op-
any of the State authorities enforcing erations, or processes used or proposed
the standard under a plan, and are to be used would provide employment
pending. and places of employment to employ-
(c) Interim order—(1) Application. An ees which are as safe and healthful as
application may also be made for an in- those required by the standard from
terim order to be effective until a deci- which a variance is sought:
sion is rendered on the application for (5) A certification that the applicant
the variance filed previously or concur- has informed his employees of the ap-
rently. An application for an interim plication by
order may include statements of fact (i) Giving a copy thereof to their au-
and arguments as to why the order thorized representative;
should be granted. The Assistant Sec-
(ii) Posting a statement giving a
retary may rule ex parte upon the ap-
summary of the application and speci-
plication.
fying where a copy may be examined,
(2) Notice of denial of application. If an
at the place or places where notices to
application filed pursuant to paragraph
employees are normally posted (or in
(c)(1) of this section is denied, the ap-
lieu of such summary, the posting of
plicant shall be given prompt notice of
the application itself); and
the denial, which shall include, or be
accompanied by, a brief statement of (iii) By other appropriate means;
the grounds therefor. (6) Any request for a hearing, as pro-
(3) Notice of the grant of an interim vided in this part; and
order. If an interim order is granted, a (7) A description of how employees
copy of the order shall be served upon have been informed of the application
the applicant for the order and other and of their right to petition the As-
parties and the terms of the order shall sistant Secretary for a hearing.
be published in the FEDERAL REGISTER. (8) Where the requested variance
It shall be a condition of the order that would be applicable to employment or
the affected employer shall give notice places of employment in more than one
thereof to affected employees by the State, including at least one State
same means to be used to inform them with a State plan approved under sec-
of an application for a variance. tion 18 of the Act, and involves a stand-
ard, or portion thereof, identical to a
[36 FR 12290, June 30, 1971, as amended at 40
FR 25449, June 16, 1975]
State standard effective under such
plan:
§ 1905.11 Variances and other relief (i) A side-by-side comparison of the
under section 6(d). Federal standard, or portion thereof,
(a) Application for variance. Any em- involved with the State standard, or
ployer, or class of employers, desiring a portion thereof, identical in substance
variance authorized by section 6(d) of and requirements;
the Act may file a written application (ii) A certification that the employer
containing the information specified in or employers have not filed for such
paragraph (b) of this section, with the variance on the same material facts for
Assistant Secretary for Occupational the same employment or place of em-
Safety and Health, U.S. Department of ployment with any State authority
Labor, Washington, DC 20210. having jurisdiction under an approved
(b) Contents. An application filed pur- plan over any employment or place of
suant to paragraph (a) of this section employment covered in the applica-
shall include: tion; and
(1) The name and address of the ap- (iii) A statement as to whether, with
plicant; an identification of, any citations for
(2) The address of the place or places violations of the State standard, or
of employment involved; portion thereof, involved have been
(3) A description of the conditions, issued to the employer or employers by
practices, means, methods, operations, any of the State authorities enforcing
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or processes used or proposed to be the standard under a plan, and are


used by the applicant: pending.

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Occupational Safety and Health Admin., Labor § 1905.13

(c) Interim order—(1) Application. An emption sought is necessary and proper


application may also be made for an in- to avoid serious impairment of the na-
terim order to be effective until a deci- tional defense;
sion is rendered on the application for (5) Any request for a hearing, as pro-
the variance filed previously or concur- vided in this part; and
rently. An application for an interim (6) A description of how employees
order may include statements of fact have been informed of the application
and arguments as to why the order and of their right to petition the As-
should be granted. The Assistant Sec- sistant Secretary for a hearing.
retary may rule ex parte upon the ap- (c) Interim order—(1) Application. An
plication. application may also be made for an in-
(2) Notice of denial of application. If an terim order to be effective until a deci-
application filed pursuant to paragraph sion is rendered on the application for
(c)(1) of this section is denied, the ap- the limitation, variation, tolerance, or
plicant shall be given prompt notice of exemption filed previously or concur-
the denial, which shall include, or be rently. An application for an interim
accompanied by; a brief statement of order may include statements of fact
the grounds therefor. and arguments as to why the order
(3) Notice of the grant of an interim should be granted. The Assistant Sec-
order. If an interim order is granted, a retary may rule ex parte upon the ap-
copy of the order shall be served upon plication.
the applicant for the order and other
(2) Notice of denial of application. If an
parties, and the terms of the order
application filed pursuant to paragraph
shall be published in the FEDERAL REG-
(c)(1) of this section is denied, the ap-
ISTER. It shall be a condition of the
plicant shall be given prompt notice of
order that the affected employer shall
the denial, which shall include, or be
give notice thereof to affected employ-
accompanied, by a brief statement of
ees by the same means to be used to in-
the grounds therefor.
form them of an application for a vari-
ance. (3) Notice of the grant of an interim
order. If an interim order is granted, a
[36 FR 12290, June 30, 1971, as amended at 40 copy of the order shall be served upon
FR 25449, June 16, 1975] the applicant for the order and other
parties, and the terms of the order
§ 1905.12 Limitations, variations, toler-
ances, or exemptions under section shall be published in the FEDERAL REG-
16. ISTER. It shall be a condition of the
order that the affected employer shall
(a) Application. Any person, or class give notice thereof to affected employ-
of persons, desiring a limitation, vari- ees by the same means to be used to in-
ation, tolerance, or exemption author- form them of an application for a vari-
ized by section 16 of the Act may file ance.
an application containing the informa-
tion specified in paragraph (b) of this § 1905.13 Modification, revocation, and
section, with the Assistant Secretary renewal of rules or orders.
for Occupational Safety and Health,
U.S. Department of Labor, Washington, (a) Modification or revocation. (1) An
DC 20210. affected employer or an affected em-
(b) Contents. An application filed pur- ployee may apply in writing to the As-
suant to paragraph (a) of this section sistant Secretary of Labor for Occupa-
shall include: tional Safety and Health for a modi-
(1) The name and address of the ap- fication or revocation of a rule or order
plicant; issued under section 6(b) (6) (A), 6(d), or
(2) The address of the place or places 16 of the Act. The application shall
of employment involved; contain:
(3) A specification of the provision of (i) The name and address of the appli-
the Act to or from which the applicant cant;
seeks a limitation, variation, toler- (ii) A description of the relief which
ance, or exemption; is sought;
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(4) A representation showing that the (iii) A statement setting forth with
limitation, variation, tolerance, or ex- particularity the grounds for relief;

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§ 1905.14 29 CFR Ch. XVII (7–1–18 Edition)

(iv) If the applicant is an employer, a or § 1905.11(b)(8) of this chapter, such


certification that the applicant has in- variance shall likewise be deemed an
formed his affected employees of the authoritative interpretation of the em-
application by: ployer(s)’ compliance obligations with
(a) Giving a copy thereof to their au- regard to the State standard, or por-
thorized representative; tion thereof, upon filing the informa-
(b) Posting at the place or places tion required under § 1905.10(b)(11) or
where notices to employees are nor- § 1905.11(b)(8) of this chapter, provided
mally posted, a statement giving a no objections of substance are found to
summary of the application and speci- be interposed by the State authority
fying where a copy of the full applica- under § 1905.14 of this chapter.
tion may be examined (or, in lieu of the [36 FR 12290, June 30, 1971, as amended at 40
summary, posting the application FR 25449, June 16, 1975]
itself); and
(c) Other appropriate means. § 1905.14 Action on applications.
(v) If the applicant is an affected em- (a) Defective applications. (1) If an ap-
ployee, a certification that a copy of plication filed pursuant to § 1905.10(a),
the application has been furnished to § 1905.11(a), § 1905.12(a), or § 1905.13 does
the employer; and not conform to the applicable section,
(vi) Any request for a hearing, as pro- the Assistant Secretary may deny the
vided in this part. application.
(2) The Assistant Secretary may on (2) Prompt notice of the denial of an
his own motion proceed to modify or application shall be given to the appli-
revoke a rule or order issued under sec- cant.
tion 6(b) (6) (A), 6(d), or 16 of the Act. (3) A notice of denial shall include, or
In such event, the Assistant Secretary be accompanied by, a brief statement
shall cause to be published in the FED- of the grounds for the denial.
ERAL REGISTER a notice of his inten- (4) A denial of an application pursu-
tion, affording interested persons an ant to this paragraph shall be without
opportunity to submit written data, prejudice to the filing of another appli-
views, or arguments regarding the pro- cation.
posal and informing the affected em- (b) Adequate applications. (1) If an ap-
ployer and employees of their right to plication has not been denied pursuant
request a hearing, and shall take such to paragraph (a) of this section, the As-
other action as may be appropriate to sistant Secretary shall cause to be pub-
give actual notice to affected employ- lished in the FEDERAL REGISTER a no-
ees. Any request for a hearing shall in- tice of the filing of the application.
clude a short and plain statement of: (2) A notice of the filing of an appli-
(i) How the proposed modification or cation shall include:
revocation would affect the requesting (i) The terms, or an accurate sum-
party; and mary, of the application;
(ii) What the requesting party would (ii) A reference to the section of the
seek to show on the subjects or issues Act under which the application has
involved. been filed;
(b) Renewal. Any final rule or order (iii) An invitation to interested per-
issued under section 6(b) (6) (A) or 16 of sons to submit within a stated period
the Act may be renewed or extended as of time written data, views, or argu-
permitted by the applicable section ments regarding the application; and
and in the manner prescribed for its (iv) Information to affected employ-
issuance. ers, employees, and appropriate State
(c) Multi-state variances. Where a Fed- authority having jurisdiction over em-
eral variance has been granted with ployment or places of employment cov-
multi-state applicability, including ap- ered in the application of any right to
plicability in a State operating under a request a hearing on the application.
State plan approved under section 18 of (3) Where the requested variance, or
the Act, from a standard, or portion any proposed modification or extension
thereof, identical to a State standard, thereof, involves a Federal standard, or
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or portion thereof, without filing the any portion thereof, identical to a


information required in § 1905.10(b)(11) State standard, or any portion thereof,

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Occupational Safety and Health Admin., Labor § 1905.22

as provided in §§ 1905.10(b)(11) and Subpart C—Hearings


1905.11(b)(8) of this chapter, the Assist-
ant Secretary will promptly furnish a § 1905.20 Notice of hearing.
copy of the application to the appro-
(a) Service. Upon request for a hearing
priate State authority and provide an
as provided in this part, or upon his
opportunity for comment, including
own initiative, the Assistant Secretary
the opportunity to participate as a
shall serve, or cause to be served, a rea-
party, on the application by such au-
sonable notice of hearing.
thority, which shall be taken into con-
sideration in determining the merits of (b) Contents. A notice of hearing
the proposed action. served under paragraph (a) of this sec-
(4) A copy of each final decision of tion shall include:
the Assistant Secretary with respect to (1) The time, place, and nature of the
an application filed under § 1905.10, hearing;
§ 1905.11, or § 1905.13 shall be furnished, (2) The legal authority under which
within 10 days of issuance, the State the hearing is to be held;
authorities having jurisdiction over (3) A specification of issues of fact
the employment or place of employ- and law; and
ment covered in the application. (4) A designation of a hearing exam-
iner appointed under 5 U.S.C. 3105 to
[36 FR 12290, June 30, 1971, as amended at 40
FR 25449, June 16, 1975] preside over the hearing.
(c) Referral to hearing examiner. A
§ 1905.15 Requests for hearings on ap- copy of a notice of hearing served pur-
plications. suant to paragraph (a) of this section
(a) Request for hearing. Within the shall be referred to the hearing exam-
time allowed by a notice of the filing of iner designated therein, together with
an application, any affected employer, the original application and any writ-
employee, or appropriate State agency ten request for a hearing thereon filed
having jurisdiction over employment pursuant to this part.
or places of employment covered in an
§ 1905.21 Manner of service.
application may file with the Assistant
Secretary, in quadruplicate, a request Service of any document upon any
for a hearing on the application. party may be made by personal deliv-
(b) Contents of a request for a hearing. ery of, or by mailing, a copy of the doc-
A request for a hearing filed pursuant ument to the last known address of the
to paragraph (a) of this section shall party. The person serving the docu-
include: ment shall certify to the manner and
(1) A concise statement of facts show- the date of the service.
ing how the employer or employee
would be affected by the relief applied § 1905.22 Hearing examiners; powers
for; and duties.
(2) A specification of any statement (a) Powers. A hearing examiner des-
or representation in the application ignated to preside over a hearing shall
which is denied, and a concise sum- have all powers necessary or appro-
mary of the evidence that would be ad- priate to conduct a fair, full, and im-
duced in support of each denial; and partial hearing, including the fol-
(3) Any views or arguments on any lowing:
issue of fact or law presented. (1) To administer oaths and affirma-
[36 FR 12290, June 30, 1971, as amended at 40 tions;
FR 25450, June 16, 1975] (2) To rule upon offers of proof and
receive relevant evidence;
§ 1905.16 Consolidation of proceedings. (3) To provide for discovery and to
The Assistant Secretary on his own determine its scope;
motion or that of any party may con- (4) To regulate the course of the
solidate or contemporaneously con- hearing and the conduct of the parties
sider two or more proceedings which and their counsel therein;
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involve the same or closely related (5) To consider and rule upon proce-
issues. dural requests;

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§ 1905.23 29 CFR Ch. XVII (7–1–18 Edition)

(6) To hold conferences for the settle- extent practicable by any pertinent
ment or simplification of the issues by provisions of the Federal Rules of Civil
consent of the parties; Procedure.
(7) To make, or to cause to be made,
an inspection of the employment or § 1905.23 Prehearing conferences.
place of employment involved. (a) Convening a conference. Upon his
(8) To make decisions in accordance own motion or the motion of a party,
with the Act, this part, and the Admin- the hearing examiner may direct the
istrative Procedure Act (5 U.S.C. Ch. 5); parties or their counsel to meet with
and him for a conference to consider:
(9) To take any other appropriate ac- (1) Simplification of the issues;
tion authorized by the Act, this part,
(2) Necessity or desirability of
or the Administrative Procedure Act.
amendments to documents for purposes
(b) Private consultation. Except to the
of clarification, simplification, or limi-
extent required for the disposition of
tation;
ex parte matters, a hearing examiner
(3) Stipulations, admissions of fact,
may not consult a person or a party on
and of contents and authenticity of
any fact at issue, unless upon notice
documents;
and opportunity for all parties to par-
ticipate. (4) Limitation of the number of par-
(c) Disqualification. (1) When a hear- ties and of expert witnesses; and
ing examiner deems himself disquali- (5) Such other matters as may tend
fied to preside over a particular hear- to expedite the disposition of the pro-
ing, he shall withdraw therefrom by ceeding, and to assure a just conclusion
notice on the record directed to the thereof.
Chief Hearing Examiner. (b) Record of conference. The hearing
(2) Any party who deems a hearing examiner shall make an order which
examiner for any reason to be disquali- recites the action taken at the con-
fied to preside, or to continue to pre- ference, the amendments allowed to
side, over a particular hearing, may any documents which have been filed,
file with the Chief Hearing Examiner of and the agreements made between the
the Department of Labor a motion to parties as to any of the matters consid-
disqualify and remove the hearing ex- ered, and which limits the issues for
aminer, such motion to be supported hearing to those not disposed of by ad-
by affidavits setting forth the alleged missions or agreements; and such order
grounds for disqualification. The Chief when entered controls the subsequent
Hearing Examiner shall rule upon the course of the hearing, unless modified
motion. at the hearing, to prevent manifest in-
(d) Contumacious conduct; failure or re- justice.
fusal to appear or obey the rulings of a
presiding hearing examiner. (1) Contuma- § 1905.24 Consent findings and rules or
cious conduct at any hearing before the orders.
hearing examiner shall be grounds for (a) General. At any time before the
exclusion from the hearing. reception of evidence in any hearing, or
(2) If a witness or a party refuses to during any hearing a reasonable oppor-
answer a question after being directed tunity may be afforded to permit nego-
to do so, or refuses to obey an order to tiation by the parties of an agreement
provide or permit discovery, the hear- containing consent findings and a rule
ing examiner may make such orders or order disposing of the whole or any
with regard to the refusal as are just part of the proceeding. The allowance
and appropriate, including an order de- of such opportunity and the duration
nying the application of an applicant thereof shall be in the discretion of the
or regulating the contents of the presiding hearing examiner, after con-
record of the hearing. sideration of the nature of the pro-
(e) Referral to Federal Rules of Civil ceeding, the requirements of the public
Procedure. On any procedural question interest, the representations of the
not regulated by this part, the Act, or parties, and the probability of an
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the Administrative Procedure Act, a agreement which will result in a just


hearing examiner shall be guided to the disposition of the issues involved.

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Occupational Safety and Health Admin., Labor § 1905.26

(b) Contents. Any agreement con- (iv) The subject matter concerning
taining consent findings and rule or which each witness is expected to tes-
order disposing of a proceeding shall tify.
also provide: (3) Notice. Such notice as the pre-
(1) That the rule or order shall have siding hearings examiner may order
the same force and effect as if made shall be given by the party taking the
after a full hearing; deposition to every other party.
(2) That the entire record on which (4) Taking and receiving in evidence.
any rule or order may be based shall Each witness testifying upon deposi-
consist solely of the application and tion shall be sworn, and the parties not
the agreement; calling him shall have the right to
cross-examine him. The questions pro-
(3) A waiver of any further proce-
pounded and the answers thereto, to-
dural steps before the hearing exam-
gether with all objections made, shall
iner and the Assistant Secretary; and
be reduced to writing, read to the wit-
(4) A waiver of any right to challenge ness, subscribed by him, and certified
or contest the validity of the findings by the officer before whom the deposi-
and of the rule or order made in ac- tion is taken. Thereafter, the officer
cordance with the agreement. shall seal the deposition, with two cop-
(c) Submission. On or before the expi- ies thereof, in an envelope and mail the
ration of the time granted for negotia- same by registered mail to the pre-
tions, the parties or their counsel may: siding hearing examiner. Subject to
(1) Submit the proposed agreement to such objections to the questions and
the presiding hearing examiner for his answers as were noted at the time of
consideration; or taking the deposition and would be
(2) Inform the presiding hearing ex- valid were the witness personally
aminer that agreement cannot be present and testifying, such deposition
reached. may be read and offered in evidence by
(d) Disposition. In the event an agree- the party taking it as against any
ment containing consent findings and party who was present, represented at
rule or order is submitted within the the taking of the deposition, or who
time allowed therefor, the presiding had due notice thereof. No part of a
hearing examiner may accept such deposition shall be admitted in evi-
agreement by issuing his decision dence unless there is a showing that
based upon the agreed findings. the reasons for the taking of the depo-
sition in the first instance exist at the
§ 1905.25 Discovery. time of hearing.
(b) Other discovery. Whenever appro-
(a) Depositions. (1) For reasons of un-
priate to a just disposition of any issue
availability or for other good cause
in a hearing, the presiding hearing ex-
shown, the testimony of any witness
aminer may allow discovery by any
may be taken by deposition. Deposi- other appropriate procedure, such as by
tions may be taken orally or upon written interrogatories upon a party,
written interrogatories before any per- production of documents by a party, or
son designated by the presiding hearing by entry for inspection of the employ-
examiner and having power to admin- ment or place of employment involved.
ister oaths.
(2) Application. Any party desiring to § 1905.26 Hearings.
take the deposition of a witness may (a) Order of proceeding. Except as may
make application in writing to the pre- be ordered otherwise by the presiding
siding hearing examiner, setting forth: hearing examiner, the party applicant
(i) The reasons why such deposition for relief shall proceed first at a hear-
should be taken; ing.
(ii) The time when, the place where, (b) Burden of proof. The party appli-
and the name and post office address of cant shall have the burden of proof.
the person before whom the deposition (c) Evidence—(1) Admissibility. A party
is to be taken; shall be entitled to present his case or
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(iii) The name and address of each defense by oral or documentary evi-
witness; and dence, to submit rebuttal evidence, and

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§ 1905.27 29 CFR Ch. XVII (7–1–18 Edition)

to conduct such cross-examination as Such proposals and brief shall be


may be required for a full and true dis- served on all other parties, and shall
closure of the facts. Any oral or docu- refer to all portions of the record and
mentary evidence may be received, but to all authorities relied upon in sup-
a presiding hearing examiner shall ex- port of each proposal.
clude evidence which is irrelevant, im- (b) Decision of the hearing examiner.
material, or unduly repetitious. Within a reasonable time after the
(2) Testimony of witnesses. The testi- time allowed for the filing of proposed
mony of a witness shall be upon oath findings of fact, conclusions of law, and
or affirmation administered by the pre- rule or order, the presiding hearing ex-
siding hearing examiner. aminer shall make and serve upon each
(3) Objections. If a party objects to party his decision, which shall become
the admission or rejection of any evi-
final upon the 20th day after service
dence, or to the limitation of the scope
thereof, unless exceptions are filed
of any examination or cross-examina-
thereto, as provided in § 1905.28. The de-
tion, or to the failure to limit such
cision of the hearing examiner shall in-
scope, he shall state briefly the
grounds for such objection. Rulings on clude (1) a statement of findings and
all objections shall appear in the conclusions, with reasons and bases
record. Only objections made before therefor, upon each material issue of
the presiding hearing examiner may be fact, law, or discretion presented on
relied upon subsequently in a pro- the record, and (2) the appropriate rule,
ceeding. order, relief, or denial thereof. The de-
(4) Exceptions. Formal exception to an cision of the hearing examiner shall be
adverse ruling is not required. based upon a consideration of the
(d) Official notice. Official notice may whole record and shall state all facts
be taken of any material fact not ap- officially noticed and relied upon. It
pearing in evidence in the record, shall be made on the basis of a prepon-
which is among the traditional matters derance of reliable and probative evi-
of judicial notice or concerning which dence.
the Department of Labor by reason of
its functions is presumed to be expert: § 1905.28 Exceptions.
Provided, That the parties shall be Within 20 days after service of a deci-
given adequate notice, at the hearing sion of a presiding hearing examiner,
or by reference in the presiding hearing any party may file with the hearing ex-
examiner’s decision, of the matters so aminer written exceptions thereto with
noticed, and shall be given adequate supporting reasons. Such exceptions
opportunity to show the contrary. shall refer to the specific findings of
(e) Transcript. Hearings shall be fact, conclusions of law, or terms of the
stenographically reported. Copies of rule or order excepted to, the specific
the transcript may be obtained by the pages of transcript relevant to the sug-
parties upon written application filed gestions, and shall suggest corrected
with the reporter, and upon the pay- findings of fact, conclusions of law, or
ment of fees at the rate provided in the
terms of the rule or order. Upon receipt
agreement with the reporter.
of any exceptions, the hearing exam-
§ 1905.27 Decisions of hearing exam- iner shall fix a time for filing any ob-
iners. jections to the exceptions and any sup-
porting reasons.
(a) Proposed findings of fact, conclu-
sions, and rules or orders. Within 10 days § 1905.29 Transmission of record.
after receipt of notice that the tran-
script of the testimony has been filed If exceptions are filed, the hearing
or such additional time as the pre- examiner shall transmit the record of
siding hearing examiner may allow, the proceeding to the Assistant Sec-
each party may file with the hearing retary for review. The record shall in-
examiner proposed findings of fact, clude: The application, any request for
conclusions of law, and rule or order, hearing thereon, motions and requests
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together with a supporting brief ex- filed in written form, rulings thereon,
pressing the reasons for such proposals. the transcript of the testimony taken

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Occupational Safety and Health Admin., Labor § 1905.41

at the hearing, together with the ex- and that a party is entitled to sum-
hibits admitted in evidence, any docu- mary decision. The hearing examiner
ments or papers filed in connection may deny such motion whenever the
with prehearing conferences, such pro- moving party denies access to informa-
posed findings of fact, conclusions of tion by means of discovery to a party
law, rules or orders, and supporting opposing the motion.
reasons, as may have been filed, the (d) Affidavits shall set forth such
hearing examiner’s decision, and such facts as would be admissible in evi-
exceptions, statements of objections,
dence in a proceeding subject to 5
and briefs in support thereof, as may
U.S.C. 556 and 557 and shall show af-
have been filed in the proceeding.
firmatively that the affiant is com-
§ 1905.30 Decision of the Assistant Sec- petent to testify to the matters stated
retary. therein. When a motion for summary
If exceptions to a decision of a hear- decision is made and supported as pro-
ing examiner are taken pursuant to vided in this section, a party opposing
§ 1905.28, the Assistant Secretary shall the motion may not rest upon the mere
upon consideration thereof, together allegations or denials of his pleading;
with the record references and authori- his response must set forth specific
ties cited in support thereof, and any facts showing that there is a genuine
objections to exceptions and sup- issue of fact for the hearing.
porting reasons, make his decision. The (e) Should it appear from the affida-
decision may affirm, modify, or set vits of a party opposing the motion
aside, in whole or part, the findings, that he cannot for reasons stated
conclusions, and the rule or order con- present by affidavit facts essential to
tained in the decision of the presiding justify his opposition, the hearing ex-
hearing examiner, and shall include a aminer may deny the motion for sum-
statement of reasons or bases for the mary decision or may order a continu-
actions taken on each exception pre- ance to permit affidavits to be ob-
sented. tained or discovery to be had or may
make such other order as is just.
Subpart D—Summary Decisions (f) The denial of all or any part of a
§ 1905.40 Motion for summary deci- motion for summary decision by the
sion. hearing examiner shall not be subject
to interlocutory appeal to the Assist-
(a) Any party may, at least 20 days
before the date fixed for any hearing ant Secretary unless the hearing exam-
under subpart C of this part, move with iner certifies in writing (1) that the
or without supporting affidavits for a ruling involves an important question
summary decision in his favor on all or of law or policy as to which there is
any part of the proceeding. Any other substantial ground for difference of
party may, within 10 days after service opinion, and (2) that an immediate ap-
of the motion, serve opposing affidavits peal from the ruling may materially
or countermove for summary decision. advance the ultimate termination of
The presiding hearing examiner may, the proceeding. The allowance of such
in his discretion, set the matter for ar- an interlocutory appeal shall not stay
gument and call for the submission of the proceeding before the hearing ex-
briefs. aminer unless the Assistant Secretary
(b) The filing of any documents under shall so order.
paragraph (a) of this section shall be
with the hearing examiner, and copies § 1905.41 Summary decision.
of any such documents shall be served (a) No genuine issue of material fact. (1)
in accordance with § 1905.21.
Where no genuine issue of a material
(c) The hearing examiner may grant
such motion if the pleadings, affida- fact is found to have been raised, the
vits, material obtained by discovery or hearing examiner may issue an initial
otherwise obtained, or matters offi- decision to become final 20 days after
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cially noticed show that there is no service thereof, unless, within such pe-
genuine issue as to any material fact riod of time any party has filed written

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§ 1905.50 29 CFR Ch. XVII (7–1–18 Edition)

exceptions to the decision. If any time- 1908.2 Definitions.


ly exception is filed, the hearing exam- 1908.3 Eligibility and funding.
iner shall fix a time for filing any ob- 1908.4 Offsite consultation.
1908.5 Requests and scheduling for onsite
jections to the exception and any sup- consultation.
porting reasons. Thereafter, the Assist- 1908.6 Conduct of a visit.
ant Secretary, after consideration of 1908.7 Relationship to enforcement.
the exceptions and any supporting 1908.8 Consultant specifications.
briefs filed therewith and of any objec- 1908.9 Monitoring and evaluation.
tions to the exceptions and any sup- 1908.10 Cooperative Agreements.
porting reasons, may issue a final deci- 1908.11 Exclusions.
sion. AUTHORITY: Secs. 7(c), 8, 21(d), Occupa-
(2) An initial decision and a final de- tional Safety and Health Act of 1970 (29
cision made under this paragraph shall U.S.C. 656, 657, 670) and Secretary of Labor’s
include a statement of: Order No. 6–96 (62 FR 111, January 2, 1997).
(i) Findings and conclusions, and the SOURCE: 49 FR 25094, June 19, 1984, unless
reasons or bases therefor, on all issues otherwise noted.
presented; and
(ii) The terms and conditions of the § 1908.1 Purpose and scope.
rule or order made. (a) This part contains requirements
(3) A copy of an initial decision and a for Cooperative Agreements between
final decision under this paragraph states and the Federal Occupational
shall be served on each party. Safety and Health Administration
(b) Hearings on issues of fact. Where a (OSHA) under sections 21(c) of the Oc-
genuine material question of fact is cupational Safety and Health Act of
raised, the hearing examiner shall, and 1970 (29 U.S.C. 651 et seq.) and section
in any other case he may, set the case 21(d), the Occupational Safety and
for an evidentiary hearing in accord- Health Administration Compliance As-
ance with subpart C of this part. sistance Authorization Act of 1998
(which amends the Occupational Safe-
Subpart E—Effect of Initial ty and Health Act,) under which OSHA
Decisions will utilize state personnel to provide
consultative services to employers.
§ 1905.50 Effect of appeal of a hearing Priority in scheduling such consulta-
examiner’s decision. tion visits must be assigned to requests
A hearing examiner’s decision under received from small businesses which
this part shall not be operative pending are in higher hazard industries or have
a decision on appeal by the Assistant the most hazardous conditions at issue
Secretary. in the request. Consultation programs
operated under the authority of a state
§ 1905.51 Finality for purposes of judi- plan approved under section 18 of the
cial review. Act (and funded under section 23(g),
Only a decision by the Assistant Sec- rather than under a Cooperative Agree-
retary shall be deemed final agency ac- ment) which provide consultative serv-
tion for purposes of judicial review. A ices to private sector employers, must
decision by a hearing examiner which be ‘‘at least as effective as’’ the section
becomes final for lack of appeal is not 21(d) Cooperative Agreement programs
deemed final agency action for pur- established by this part. The service
poses of 5 U.S.C. 704. will be made available at no cost to
employers to assist them in estab-
lishing effective occupational safety
PART 1906—ADMINISTRATION WIT- and health programs for providing em-
NESSES AND DOCUMENTS IN PRI- ployment and places of employment
VATE LITIGATION [RESERVED] which are safe and healthful. The over-
all goal is to prevent the occurrence of
PART 1908—CONSULTATION injuries and illnesses which may result
AGREEMENTS from exposure to hazardous workplace
conditions and from hazardous work
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Sec. practices. The principal assistance will


1908.1 Purpose and scope. be provided at the employer’s worksite,

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Occupational Safety and Health Admin., Labor § 1908.2

but off-site assistance may also be pro- lished by this part, including a recogni-
vided by telephone and correspondence tion and exemption program.
and at locations other than the em- [49 FR 25094, June 19, 1984, as amended at 65
ployer’s worksite, such as the consulta- FR 64290, Oct. 26, 2000]
tion project offices. At the worksite,
the consultant will, within the scope of § 1908.2 Definitions.
the employer’s request, evaluate the As used in this part:
employer’s program for providing em- Act means the Federal Occupational
ployment and a place of employment Safety and Health Act of 1970.
which is safe and healthful, as well as Assistant Secretary means the Assist-
identify specific hazards in the work- ant Secretary of Labor for Occupa-
place, and will provide appropriate ad- tional Safety and Health.
vice and assistance in establishing or Compliance Officer means a Federal
improving the employer’s safety and compliance safety and health officer.
health program and in correcting any Consultant means an employee under
a Cooperative Agreement pursuant to
hazardous conditions identified.
this part who provides consultation.
(b) Assistance may include education Consultation means all activities re-
and training of the employer, the em- lated to the provision of consultative
ployer’s supervisors, and the employ- assistance under this part, including
er’s other employees as needed to make offsite consultation and onsite con-
the employer self-sufficient in ensuring sultation.
safe and healthful work and working Cooperative Agreement means the
conditions. Although onsite consulta- legal instrument which enables the
tion will be conducted independent of States to collaborate with OSHA to
any OSHA enforcement activity, and provide consultation in accord with
the discovery of hazards will not man- this part.
date citation or penalties, the em- Designee means the State official des-
ployer remains under a statutory obli- ignated by the Governor to be respon-
gation to protect employees, and in sible for entering into a Cooperative
certain instances will be required to Agreement in accord with this part.
take necessary protective action. Em- Education means planned and orga-
ployer correction of hazards identified nized activity by a consultant to im-
by the consultant during a comprehen- part information to employers and em-
sive workplace survey, and implemen- ployees to enable them to establish and
maintain employment and a place of
tation of certain core elements of an
employment which is safe and health-
effective safety and health program
ful.
and commitment to the completion of Employee means an employee of an
others may serve as the basis for em- employer who is employed in the busi-
ployer exemption from certain OSHA ness of that employer which affects
enforcement activities. States entering interstate commerce.
into Agreements under this part will Employee representative, as used in the
receive ninety percent Federal reim- OSHA consultation program under this
bursement for allowable costs, and will part, means the authorized representa-
provide consultation to employers re- tive of employees at a site where there
questing the service, subject to sched- is a recognized labor organization rep-
uling priorities, available resources, resenting employees.
and any other limitations established Employer means a person engaged in a
by the Assistant Secretary as part of business who has employees, but does
the Cooperative Agreement. not include the United States (not in-
(c) States operating approved Plans cluding the United States Postal Serv-
under section 18 of the Act shall, in ac- ice,) or any state or political subdivi-
cord with section 18(b), establish en- sion of a state.
forcement policies applicable to the Hazard correction means the elimi-
safety and health issues covered by the nation or control of a workplace hazard
in accord with the requirements of ap-
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State Plan which are at least as effec-


plicable Federal or State statutes, reg-
tive as the enforcement policies estab-
ulations or standards.

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§ 1908.3 29 CFR Ch. XVII (7–1–18 Edition)

Imminent danger means any condi- Programmed inspection means OSHA


tions or practices in a place of employ- worksite inspections which are sched-
ment which are such that a danger ex- uled based upon objective or neutral
ists which could reasonably be ex- criteria. These inspections do not in-
pected to cause death or serious phys- clude imminent danger, fatality/catas-
ical harm immediately or before the trophe, and formal complaints.
imminence of such danger can be elimi- Programmed inspection schedule means
nated through the procedures set forth OSHA inspections scheduled in accord-
in § 1908.6(e)(4), (f) (2) and (3), and (g). ance with criteria contained in the cur-
List of Hazards means a list of all se- rent OSHA field instructions or ap-
rious hazards that are identified by the proved State Plan counterpart.
consultant and the correction due RA means the Regional Adminis-
dates agreed upon by the employer and trator for Occupational Safety and
the consultant. Serious hazards include Health of the Region in which the
hazards addressed under section 5(a)(1) State concerned is located.
of the OSH Act and recordkeeping re- Recognition and exemption program
quirements classified as serious. The means an achievement recognition pro-
List of Hazards will accompany the gram of the OSHA consultation serv-
consultant’s written report but is sepa- ices which recognizes small employers
rate from the written report to the em- who operate, at a particular worksite,
ployer. an exemplary program that results in
Offsite consultation means the provi- the immediate and long term preven-
sion of consultative assistance on occu- tion of job related injuries and ill-
pational safety and health issues away nesses.
from an employer’s worksite by such Serious hazard means any condition
means as telephone and correspond- or practice which would be classified as
ence, and at locations other than the a serious violation of applicable federal
employer’s worksite, such as the con- or state statutes, regulations or stand-
sultation project offices. It may, under ards, based on criteria contained in the
limited conditions specified by the As- current OSHA field instructions or ap-
sistant Secretary, include training and proved State Plan counterpart, except
education. that the element of employer knowl-
Onsite consultation means the provi- edge shall not be considered.
sion of consultative assistance on an State includes a State of the United
employer’s occupational safety and States, the District of Columbia, Puer-
health program and on specific work- to Rico, the Virgin Islands, American
place hazards through a visit to an em- Samoa, Guam, and the Trust Territory
ployer’s worksite. It includes a written of the Pacific Islands.
report to the employer on the findings
Training means the planned and orga-
and recommendations resulting from
nized activity of a consultant to im-
the visit. It may include training and
part skills, techniques and methodolo-
education needed to address hazards, or
gies to employers and their employees
potential hazards, at the worksite.
to assist them in establishing and
OSHA means the Federal Occupa- maintaining employment and a place
tional Safety and Health Administra- of employment which is safe and
tion or the State agency responsible healthful.
under a Plan approved under section 18
of the Act for the enforcement of occu- [49 FR 25094, June 19, 1984, as amended at 65
pational safety and health standards in FR 64290, Oct. 26, 2000]
that State.
Other-than-serious hazard means any § 1908.3 Eligibility and funding.
condition or practice which would be (a) State eligibility. Any state may
classified as an other-than-serious vio- enter into an agreement with the As-
lation of applicable federal or state sistant Secretary to perform consulta-
statutes, regulations or standards, tion for private sector employers; ex-
based on criteria contained in the cur- cept that a state having a plan ap-
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rent OSHA field instructions or ap- proved under section 18 of the Act is el-
proved State Plan counterpart. igible to participate in the program

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Occupational Safety and Health Admin., Labor § 1908.5

only if that Plan does not include pro- activities to publicize and promote the
visions for federally funded consulta- program.
tion to private sector employers as a (2) Promotional methods. To inform
part of its plan. employers of the availability of its
(b) Reimbursement. (1) The Assistant consultative service and to encourage
Secretary will reimburse 90 percent of requests, the State may use methods
the costs incurred under a Cooperative such as the following:
Agreement entered into pursuant to (i) Paid newspaper advertisements;
this part. Approved training of State (ii) Newspaper, magazine, and trade
staff operating under a Cooperative publication articles;
Agreement and specified out-of-State (iii) Special direct mailings or tele-
travel by such staff will be fully reim- phone solicitations to establishments
bursed. based on workers’ compensation data
(2) Reimbursement to States under or other appropriate listings;
this part is limited to costs incurred in (iv) In-person visits to workplaces to
providing consultation to private sec- explain the availability of the service,
tor employers only. and participation at employer con-
(i) In all States with Plans approved ferences and seminars;
under section 18 of the Act, consulta- (v) Solicitation of support from State
tion provided to State and local gov- business and labor organizations and
ernments, as well as the remaining leaders, and public officials;
range of voluntary compliance activi- (vi) Solicitation of publicizing by em-
ties referred to in 29 CFR ployers and employees who have re-
1902.4(c)(2)(xiii), will not be affected by ceived consultative services;
the provisions of this part. Federal re- (vii) Preparation and dissemination
imbursement for these activities will of publications, descriptive materials,
be made in accordance with the provi- and other appropriate items on con-
sions of section 23(g) of the Act. sultative services;
(ii) In States without Plans approved (viii) Free public service announce-
under section 18, no Federal reimburse- ments on radio and television.
ment for consultation provided to (3) Scope of service. In its publicity for
State and local governments will be al- the program, in response to any in-
lowed, although this activity may be quiry, and before an employer’s request
conducted independently by a State for a consultative visit may be accept-
with 100 percent State funding. ed, the state shall clearly explain that
[49 FR 25094, June 19, 1984, as amended at 65 the service is provided at no cost to an
FR 64291, Oct. 26, 2000] employer with federal and state funds
for the purpose of assisting the em-
§ 1908.4 Offsite consultation. ployer in establishing and maintaining
The State may provide consultative effective programs for providing safe
services to employers on occupational and healthful places of employment for
safety and health issues by telephone employees, in accord with the require-
and correspondence, and at locations ments of the applicable state or federal
other than the employer’s worksite, laws and regulations. The state shall
such as the consultation project of- explain that while utilizing this serv-
fices. It may, under limited conditions ice, an employer remains under a stat-
specified by the Assistant Secretary, utory obligation to provide safe and
include training and education. healthful work and working conditions
for employees. In addition, while the
§ 1908.5 Requests and scheduling for identification of hazards by a consult-
onsite consultation. ant will not mandate the issuance of
(a) Encouraging requests—(1) State re- citations or penalties, the employer is
sponsibility. The State shall be respon- required to take necessary action to
sible for encouraging employers to re- eliminate employee exposure to a haz-
quest consultative assistance and shall ard which in the judgment of the con-
publicize the availability of its con- sultant represents an imminent danger
sultative service and the scope of the to employees, and to take action to
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service which will be provided. The As- correct within a reasonable time any
sistant Secretary will also engage in serious hazards that are identified. The

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§ 1908.6 29 CFR Ch. XVII (7–1–18 Edition)

state shall emphasize, however, that the most hazardous conditions at issue
the discovery of such a hazard will not in the request.
initiate any enforcement activity, and [49 FR 25094, June 19, 1984, as amended at 65
that referral will not take place, unless FR 64291, Oct. 26, 2000]
the employer fails to eliminate the
identified hazard within the estab- § 1908.6 Conduct of a visit.
lished time frame. The state shall also (a) Preparation. (1) An onsite consult-
explain the requirements for participa- ative visit shall be made only after ap-
tion in the recognition and exemption propriate preparation by the consult-
program as set forth in § 1908.7(b)(4), ant. Prior to the visit, the consultant
and shall ensure that the employer un- shall become familiar with as many
derstands his or her obligation to post factors concerning the establishment’s
the List of Hazards accompanying the operation as possible. The consultant
consultant’s written report. shall review all applicable codes and
(b) Employer requests. (1) An onsite standards. In addition, the consultant
consultative visit will be provided only shall assure that all necessary tech-
at the request of the employer, and nical and personal protective equip-
shall not result from the enforcement ment is available and functioning prop-
of any right of entry under state law. erly.
(2) When making a request, an em- (2) At the time of any promotional
ployer in a small, high hazard estab- visit conducted by a consultant to en-
lishment shall generally be encouraged courage the use of the onsite consult-
to include within the scope of such re- ative services, a consultation may be
quest all working conditions at the performed without delay if the em-
worksite and the employer’s entire ployer so requests and the consultant
safety and health program. However, a is otherwise prepared to conduct such
more limited scope may be encouraged consultation.
in larger and less hazardous establish- (b) Structured format. An initial onsite
ments. Moreover, any employer may consultative visit will consist of an
specify a more limited scope for the opening conference, an examination of
visit by indicating working conditions, those aspects of the employer’s safety
hazards, or situations on which onsite and health program which relate to the
consultation will be focused. When scope of the visit, a walkthrough of the
such limited requests are at issue, the workplace, and a closing conference.
consultant will limit review and pro- An initial visit may include training
vide assistance only with respect to and education for employers and em-
those working conditions, hazards, or ployees, if the need for such training
situations specified; except that if the and education is revealed by the
consultant observes, in the course of walkthrough of the workplace and the
the onsite visit, hazards which are out- examination of the employer’s safety
side the scope of the request, the con- and health program, and if the em-
sultant must treat such hazards as ployer so requests. The visit shall be
though they were within the scope of followed by a written report to the em-
the request. ployer. Additional visits may be con-
(3) Employers may request onsite ducted at the employer’s request to
consultation to assist in the abatement provide needed education and training,
of hazards cited during an OSHA en- assistance with the employer’s safety
forcement inspection. However, an on- and health program, technical assist-
site consultative visit may not take ance in the correction of hazards, or as
place after an inspection until the con- necessary to verify the correction of
ditions set forth in § 1908.7(b)(3) have serious hazards identified during pre-
been met. vious visits. A compliance inspection
(c) Scheduling priority. Priority shall may in some cases be the basis for a
be assigned to requests from businesses visit limited to education and training,
with the most hazardous operations, assistance with the employer’s safety
with primary attention to smaller and health program, or technical as-
businesses. Preference shall be given to sistance in the correction of hazards.
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the smaller businesses which are in (c) Employee participation. (1) The con-
higher hazard industries or which have sultant shall retain the right to confer

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Occupational Safety and Health Admin., Labor § 1908.6

with individual employees during the of Hazards accompanying the consult-


course of the visit in order to identify ant’s written report as described in
and judge the nature and extent of par- paragraph (e)(8) of this section.
ticular hazards within the scope of the (3) At the conclusion of the consulta-
employer’s request, and to evaluate the tion visit, the consultant will conduct
employer’s safety and health program. a closing conference with employer and
The consultant shall explain the neces- employee representatives, jointly or
sity for this contact to the employer separately. The consultant will de-
during the opening conference, and an scribe hazards identified during the
employer must agree to permit such visit and other pertinent issues related
contact before a visit can proceed. to employee safety and health.
(2)(i) In addition, an employee rep- (e) Onsite activity. (1) Activity during
resentative of affected employees must the onsite consultative visit will focus
be afforded an opportunity to accom- primarily on those areas, conditions, or
pany the consultant and the employ- hazards regarding which the employer
er’s representative during the physical has requested assistance. An employer
inspection of the workplace. The con- may expand or reduce the scope of the
sultant may permit additional employ- request at any time during the onsite
ees (such as representatives of a joint visit. The consultant shall, if prepared
safety and health committee, if one ex- and if scheduling priorities permit, ex-
ists at the worksite) to participate in pand the scope of the visit at the time
the walkaround, where the consultant of the request. If the employer’s re-
determines that such additional rep- quest for expansion necessitates fur-
resentatives will further aid the visit. ther preparation by the consultant or
(ii) If there is no employee represent- the expertise of another consultant, or
ative, or if the consultant is unable if other employer requests may merit
with reasonable certainty to determine higher priority, the consultant shall
who is such a representative, or if the refer the request to the consultation
employee representative declines the manager for scheduling. In all cases in
offer to participate, the consultant which the scope of the visit is reduced,
must confer with a reasonable number the consultant remains obligated to
of employees concerning matters of oc- work with the employer to ensure cor-
cupational safety and health. rection of those serious hazards which
(iii) The consultant is authorized to are identified during the visit.
deny the right to accompany under (2) The consultant shall advise the
this section to any person whose con- employer as to the employer’s obliga-
duct interferes with the orderly con- tions and responsibilities under appli-
duct of the visit. cable Federal or State law and imple-
(d) Opening and closing conferences. (1) menting regulations.
The consultant will encourage a joint (3) Within the scope of the employer’s
opening conference with employer and request, consultants shall review the
employee representatives. If there is an employer’s safety and health program
objection to a joint conference, the and provide advice on modifications or
consultant will conduct separate con- additions to make such programs more
ferences with employer and employee effective.
representatives. The consultant must (4) Consultants shall identify and
inform affected employees, with whom provide advice on correction of those
he confers, of the purpose of the con- hazards included in the employer’s re-
sultation visit. quest and any other safety or health
(2) In addition to the requirements of hazards observed in the workplace dur-
paragraph (c) of this section, the con- ing the course of the onsite consult-
sultant will, in the opening conference, ative visit. This advice shall include
explain to the employer the relation- basic information indicating the possi-
ship between onsite consultation and bility of a solution and describing the
OSHA enforcement activity, explain general form of the solution. The con-
the obligation to protect employees in sultant shall conduct sampling and
the event that certain hazardous condi- testing, with subsequent analyses. as
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tions are identified, and emphasize the may be necessary to confirm the exist-
employer’s obligation to post the List ence of safety and health hazards.

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§ 1908.6 29 CFR Ch. XVII (7–1–18 Edition)

(5) Advice and technical assistance this section, or fails to provide interim
on the correction of identified safety protection for exposed employees.
and health hazards may be provided to (f) Employer obligations. (1) An em-
employers during and after the onsite ployer must take immediate action to
consultative visit. Descriptive mate- eliminate employee exposure to a haz-
rials may be provided on approaches, ard which, in the judgment of the con-
means, techniques, and other appro- sultant, presents an imminent danger
priate items commonly utilized for the to employees. If the employer fails to
elimination or control of such hazards. take the necessary action, the consult-
The consultants shall also advise the ant must immediately notify the af-
employers of additional sources of as- fected employees and the appropriate
sistance, if known. OSHA enforcement authority and pro-
(6) When a hazard is identified in the vide the relevant information.
workplace, the consultant shall indi- (2) An employer must also take the
cate to the employer the consultant’s necessary action in accordance with
best judgment as to whether the situa- the plan developed under paragraph
tion would be classified as a ‘‘serious’’ (e)(7) of this section to eliminate or
or ‘‘other-than-serious’’ hazard. control employee exposure to any iden-
(7) At the time the consultant deter- tified serious hazard, and meet the
mines that a serious hazard exists, the posting requirements of paragraph
consultant will assist the employer to (e)(8) of this section. In order to dem-
develop a specific plan to correct the onstrate that the necessary action is
hazard, affording the employer a rea- being taken, an employer may be re-
sonable period of time to complete the quired to submit periodic reports, per-
necessary action. The state must pro- mit a follow-up visit, or take similar
vide, upon request from the employer action that achieves the same end.
within 15 working days of receipt of the
(3) An employer may request, and the
consultant’s report, a prompt oppor-
consultation manager may grant, an
tunity for an informal discussion with
extension of the time frame established
the consultation manager regarding
for correction of a serious hazard when
the period of time established for the
correction of a hazard or any other the employer demonstrates having
substantive finding of the consultant. made a good faith effort to correct the
(8) As a condition for receiving the hazard within the established time
consultation service, the employer frame; shows evidence that correction
must agree to post the List of Hazards has not been completed because of fac-
accompanying the consultant’s written tors beyond the employer’s reasonable
report, and to notify affected employ- control; and shows evidence that the
ees when hazards are corrected. When employer is taking all available in-