[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2003 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

                    29


          Part 1927 to End

                         Revised as of July 1, 2003

Labor





          Containing a codification of documents of general 
          applicability and future effect
          As of July 1, 2003
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



  For sale by the Superintendent of Documents, U.S. Government Printing 
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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 (Continued)            5
          Chapter XX--Occupational Safety and Health Review 
          Commission                                               247
          Chapter XXV--Employee Benefits Security 
          Administration, Department of Labor                      315
          Chapter XXVII--Federal Mine Safety and Health Review 
          Commission                                               675
          Chapter XL--Pension Benefit Guaranty Corporation         719
  Finding Aids:
      Material Approved for Incorporation by Reference........     977
      Table of CFR Titles and Chapters........................     979
      Alphabetical List of Agencies Appearing in the CFR......     997
      List of CFR Sections Affected...........................    1007



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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  29 CFR 1928.1 
                       refers to title 29, part 
                       1928, section 1.

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

[[Page v]]



                               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 agencies 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 subdivided 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 determine 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, 2003), 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 
Register 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 usually 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

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

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 regulations in the Federal Register by referring 
to materials already published elsewhere. 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 material 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 published 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.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, 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 Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    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 Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


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, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
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    The Office of the Federal Register also offers a free service on the 
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register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2003.



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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, 
parts 1911-1925, part 1926, and part 1927 to end. The contents of these 
volumes represent all current regulations codified under this title as 
of July 1, 2003.

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

    Subject indexes appear following the occupational safety and health 
standards (part 1910), and following the safety and health regulations 
for: Longshoring (part 1918), Gear Certification (part 1919), and 
Construction (part 1926).

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                             TITLE 29--LABOR




                  (This book contains part 1927 to End)

  --------------------------------------------------------------------
                                                                    Part

          SUBTITLE B--Regulations Relating to Labor (Continued)

chapter xvii--Occupational Safety and Health Administration, 
  Department of Labor (Continued)...........................        1928

chapter xx--Occupational Safety and Health Review Commission        2200

chapter xxv--Employee Benefits Security Administration, 
  Department of Labor.......................................        2509

chapter xxvii--Federal Mine Safety and Health Review 
  Commission................................................        2700

chapter xl--Pension Benefit Guaranty Corporation............        4000

Cross References: Railroad Retirement Board: See Employees' Benefits, 20 
  CFR chapter II.

  Social Security Administration, Department of Health and Human 
Services: See Employees' Benefits, 20 CFR chapter III.

  Other regulations issued by the Department of Labor appear in 20 CFR 
chapters I, IV, V, VI and VII; 41 CFR chapters 50, 60, and 61; and 48 
CFR chapter 29. For ``Standards for a Merit System of Personnel 
Administration'': See 5 CFR part 900, subpart F.

[[Page 3]]

          Subtitle B--Regulations Relating to Labor (Continued)

[[Page 5]]



CHAPTER XVII--OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT 
                          OF LABOR (CONTINUED)




  --------------------------------------------------------------------
Part                                                                Page
1927

[Reserved]

1928            Occupational safety and health standards for 
                    agriculture.............................           7
1949            Office of Training and Education, 
                    Occupational Safety and Health 
                    Administration..........................          15
1952            Approved State plans for enforcement of 
                    State standards.........................          16
1953            Changes to State plans......................         123
1954            Procedures for the evaluation and monitoring 
                    of approved State plans.................         129
1955            Procedures for withdrawal of approval of 
                    State plans.............................         135
1956            State plans for the development and 
                    enforcement of State standards 
                    applicable to State and local government 
                    employees in States without approved 
                    private employee plans..................         146
1960            Basic program elements for Federal employee 
                    occupational safety and health programs 
                    and related matters.....................         162
1975            Coverage of employers under the Williams-
                    Steiger Occupational Safety and Health 
                    Act of 1970.............................         189
1977            Discrimination against employees exercising 
                    rights under the Williams-Steiger 
                    Occupational Safety and Health Act of 
                    1970....................................         193
1978            Rules for implementing section 405 of the 
                    Surface Transportation Assistance Act of 
                    1982 (STAA).............................         199
1979            Procedures for the handling of 
                    discrimination complaints under section 
                    519 of the Wendell H. Ford Aviation 
                    Investment and Reform Act for the 21st 
                    Century.................................         205

[[Page 6]]

1980            Procedures for the handling of 
                    discrimination complaints under section 
                    806 of the Corporate and Criminal Fraud 
                    Accountability Act of 2002, Title VIII 
                    of the Sarbanes-Oxley Act of 2002.......         213
1990            Identification, classification, and 
                    regulation of potential occupational 
                    carcinogens.............................         220

[[Page 7]]

                          PART 1927 [RESERVED]



PART 1928--OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE--Table of Contents




                           Subpart A--General

Sec.
1928.1  Purpose and scope.

                  Subpart B--Applicability of Standards

1928.21  Applicable standards in 29 CFR part 1910.

               Subpart C--Roll-Over Protective Structures

1928.51  Roll-over protective structures (ROPS) for tractors, used in 
          agricultural operations.

Appendix A to Subpart C--Employee Operating Instructions

              Subpart D--Safety for Agricultural Equipment

1928.57  Guarding of farm field equipment, farmstead equipment, and 
          cotton gins.

Subparts E-H [Reserved]

                Subpart I--General Environmental Controls

1928.110  Field sanitation.

Subparts J-L [Reserved]

                     Subpart M--Occupational Health

1928.1027  Cadmium.

    Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 
(29 U.S.C. 653, 655, 657); Secretary of Labor's Order Nos. 12-71 (36 FR 
8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as 
applicable; 29 CFR part 1911.
    Section 1928.21 also issued under Sec. 29, Hazardous Materials 
Transportation Uniform Safety Act of 1990 (Public Law 101-615, 104 Stat. 
3244 (49 U.S.C. 1801-1819 and 5 U.S.C. 553).

    Source: 40 FR 18257, Apr. 25, 1975, unless otherwise noted.



                           Subpart A--General



Sec. 1928.1  Purpose and scope.

    This part contains occupational safety and health standards 
applicable to agricultural operations.



                  Subpart B--Applicability of Standards



Sec. 1928.21  Applicable standards in 29 CFR part 1910.

    (a) The following standards in part 1910 of this chapter shall apply 
to agricultural operations:
    (1) Temporary labor camps--Sec. 1910.142;
    (2) Storage and handling of anhydrous ammonia--Sec. 1910.111 (a) and 
(b);
    (3) Logging operations--Sec. 1910.266;
    (4) Slow-moving vehicles--Sec. 1910.145;
    (5) Hazard communication--Sec. 1910.1200;
    (6) Cadmium--Sec. 1910.1027.
    (7) Retention of DOT markings, placards and labels --Sec. 1910.1201.
    (b) Except to the extent specified in paragraph (a) of this section, 
the standards contained in subparts B through T and subpart Z of part 
1910 of this title do not apply to agricultural operations.

(Section 1928.21 contains a collection of information which has been 
approved by the Office of Management and Budget under OMB control number 
1218-0072)

[40 FR 18257, Apr. 25, 1975, as amended at 42 FR 38569, July 29, 1977; 
52 FR 31886, Aug. 24, 1987; 59 FR 36700, July 19, 1994; 59 FR 51748, 
Oct. 12, 1994; 61 FR 5510, Feb. 13, 1996; 61 FR 9255, Mar. 7, 1996]



               Subpart C--Roll-Over Protective Structures



Sec. 1928.51  Roll-over protective structures (ROPS) for tractors used in agricultural operations.

    (a) Definitions. As used in this subpart--
    Agricultural tractor means a two-or four-wheel drive type vehicle, 
or track vehicle, of more than 20 engine horsepower, designed to furnish 
the power to pull, carry, propel, or drive implements that are designed 
for agriculture. All self-propelled implements are excluded.
    Low profile tractor means a wheeled tractor possessing the following 
characteristics:
    (1) The front wheel spacing is equal to the rear wheel spacing, as 
measured from the centerline of each right wheel to the centerline of 
the corresponding left wheel.

[[Page 8]]

    (2) The clearance from the bottom of the tractor chassis to the 
ground does not exceed 18 inches.
    (3) The highest point of the hood does not exceed 60 inches, and
    (4) The tractor is designed so that the operator straddles the 
transmission when seated.
    Tractor weight includes the protective frame or enclosure, all 
fuels, and other components required for normal use of the tractor. 
Ballast shall be added as necessary to achieve a minimum total weight of 
110 lb. (50.0 kg.) per maximum power take-off horsepower at the rated 
engine speed or the maximum gross vehicle weight specified by the 
manufacturer, whichever is the greatest. Front end weight shall be at 
least 25 percent of the tractor test weight. In case power take-off 
horsepower is not available, 95 percent of net engine flywheel 
horsepower shall be used.
    (b) General requirements. Agricultural tractors manufactured after 
October 25, 1976, shall meet the following requirements:
    (1) Roll-over protective structures (ROPS). A roll-over protective 
structures (ROPS) shall be provided by the employer for each tractor 
operated by an employee. Except as provided in paragraph (b)(5) of this 
section, ROPS used on wheel-type tractors shall meet the test and 
performance requirements of the American Society of Agricultural 
Engineers Standard (ASAE) Standard S306.3-1974 entitled ``Protective 
Frame for Agricultural Tractors--Test Procedures and Performance 
Requirements'' and Society of Automotive Engineers (SAE) Standard J334-
1970, entitled ``Protective Frame Test Procedures and Performance 
Requirements'' (formerly codified in 29 CFR 1928.52); or ASAE Standard 
S336.1-1974, entitled ``Protective Enclosures for Agricultural Tractors-
-Test Procedures and Performance Requirements'' and SAE J168-1970, 
entitled ``Protective Enclosures--Test Procedures and Performance 
Requirements'' (formerly codified in 29 CFR 1928.53) 1; or 
Sec. 1926.1002 of OSHA's construction standards. These ASAE and SAE 
standards are incorporated by reference and have been approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. Copies may be obtained from either the American Society 
of Agricultural Engineers Standard, 2950 Niles Road, Post Office Box 
229, St. Joseph, MI 49085, or the Society of Automotive Engineers, 485 
Lexington Avenue, New York, NY 10017. Copies may be inspected at the 
OSHA Docket Office, U.S. Department of Labor, 200 Constitution Ave., 
NW., Room N2634, or at the Office of the Federal Register, 800 North 
Capitol St., NW., Suite 700, Washington, D.C. ROPS used on track-type 
tractors shall meet the test and performance requirements of 
Sec. 1926.1001 of this title.
---------------------------------------------------------------------------

    \1\ In March 1977, the American Society of Agricultural Engineers 
merged S306 and S336, along with Standard 305, entitled ``Operator 
Protection for Wheel Type Agricultural Tractors,'' into ASAE S383, which 
addresses ROPS for wheeled agricultural tractors.
---------------------------------------------------------------------------

    (2) Seatbelts. (i) Where ROPS are required by this section, the 
employer shall:
    (A) Provide each tractor with a seatbelt which meets the 
requirements of this paragraph;
    (B) Ensure that each employee uses such seatbelt while the tractor 
is moving; and
    (C) Ensure that each employee tightens the seatbelt sufficiently to 
confine the employee to the protected area provided by the ROPS.
    (ii) Each seatbelt shall meet the requirements set forth in Society 
of Automotive Engineers Standard SAE J4C, 1965 Motor Vehicle Seat Belt 
Assemblies, \2\ except as noted hereafter:
---------------------------------------------------------------------------

    \2\ Copies may be obtained from the Society of Automotive Engineers, 
400 Commonwealth Drive, Warrendale, PA 15096.
---------------------------------------------------------------------------

    (A) Where a suspended seat is used, the seatbelt shall be fastened 
to the movable portion of the seat to accommodate a ride motion of the 
operator.
    (B) The seatbelt anchorage shall be capable of withstanding a static 
tensile load of 1,000 pounds (453.6 kg) at 45 degrees to the horizontal 
equally divided between the anchorages. The seat mounting shall be 
capable of withstanding this load plus a load equal to four times the 
weight of all applicable seat components applied at 45 degrees to the 
horizontal in a forward and upward direction. In addition, the seat

[[Page 9]]

mounting shall be capable of withstanding a 500 pound (226.8 kg) belt 
load plus two times the weight of all applicable seat components both 
applied at 45 degrees to the horizontal in and upward and rearward 
direction. Floor and seat deformation is acceptable provided there is 
not structural failure or release of the seat adjusted mechanism or 
other locking device.
    (C) The seatbelt webbing material shall have a resistance to acids, 
alkalies, mildew, aging, moisture, and sunlight equal to or better than 
that of untreated polyester fiber.
    (3) Protection from spillage. Batteries, fuel tanks, oil reservoirs, 
and coolant systems shall be constructed and located or sealed to assure 
that spillage will not occur which may come in contact with the operator 
in the event of an upset.
    (4) Protection from sharp surfaces. All sharp edges and corners at 
the operator's station shall be designed to minimize operator injury in 
the event of an upset.
    (5) Exempted uses. Paragraphs (b)(1) and (b)(2) of this section do 
not apply to the following uses:
    (i) Low profile tractors while they are used in orchards, vineyards 
or hop yards where the vertical clearance requirements would 
substantially interfere with normal operations, and while their use is 
incidental to the work performed therein.
    (ii) Low profile tractors while used inside a farm building or 
greenhouse in which the vertical clearance is insufficient to allow a 
ROPS equipped tractor to operate, and while their use is incidental to 
the work performed therein.
    (iii) Tractors while used with mounted equipment which is 
incompatible with ROPS (e.g. cornpickers, cotton strippers, vegetable 
pickers and fruit harvesters).
    (6) Remounting. Where ROPS are removed for any reason, they shall be 
remounted so as to meet the requirements of this paragraph.
    (c) Labeling. Each ROPS shall have a label, permanently affixed to 
the structure, which states:
    (1) Manufacturer's or fabricator's name and address;
    (2) ROPS model number, if any;
    (3) Tractor makes, models, or series numbers that the structure is 
designed to fit; and
    (4) That the ROPS model was tested in accordance with the 
requirements of this subpart.
    (d) Operating instructions. Every employee who operates an 
agricultural tractor shall be informed of the operating practices 
contained in appendix A of this part and of any other practices dictated 
by the work environment. Such information shall be provided at the time 
of initial assignment and at least annually thereafter.

[40 FR 18257, Apr. 25, 1975, as amended at 61 FR 9255, Mar. 7, 1996]

  Appendix A to Subpart C of Part 1928--Employee Operating Instructions

1. Securely fasten your seat belt if the tractor has a ROPS.
2. Where possible, avoid operating the tractor near ditches, 
          embankments, and holes.
3. Reduce speed when turning, crossing slopes, and on rough, slick, or 
          muddy surfaces.
4. Stay off slopes too steep for safe operation.
5. Watch where you are going, especially at row ends, on roads, and 
          around trees.
6. Do not permit others to ride.
7. Operate the tractor smoothly--no jerky turns, starts, or stops.
8. Hitch only to the drawbar and hitch points recommended by tractor 
          manufacturers.
9. When tractor is stopped, set brakes securely and use park lock if 
          available.



              Subpart D--Safety for Agricultural Equipment



Sec. 1928.57  Guarding of farm field equipment, farmstead equipment, and cotton gins.

    (a) General--(1) Purpose. The purpose of this section is to provide 
for the protection of employees from the hazards associated with moving 
machinery parts of farm field equipment, farmstead equipment, and cotton 
gins used in any agricultural operation.
    (2) Scope. Paragraph (a) of this section contains general 
requirements which apply to all covered equipment. In addition, 
paragraph (b) of this section applies to farm field equipment, paragraph 
(c) of this section applies to

[[Page 10]]

farmstead equipment, and paragraph (d) of this section applies to cotton 
gins.
    (3) Application. This section applies to all farm field equipment, 
farmstead equipment, and cotton gins, except that paragraphs (b)(2), 
(b)(3), and (b)(4)(ii)(A), and (c)(2), (c)(3), and (c)(4)(ii)(A) do not 
apply to equipment manufactured before October 25, 1976.
    (4) Effective date. This section takes effect on October 25, 1976, 
except that paragraph (d) of this section is effective on June 30, 1977.
    (5) Definitions--Cotton gins are systems of machines which condition 
seed cotton, separate lint from seed, convey materials, and package lint 
cotton.
    Farm field equipment means tractors or implements, including self-
propelled implements, or any combination thereof used in agricultural 
operations.
    Farmstead equipment means agricultural equipment normally used in a 
stationary manner. This includes, but is not limited to, materials 
handling equipment and accessories for such equipment whether or not the 
equipment is an integral part of a building.
    Ground driven components are components which are powered by the 
turning motion of a wheel as the equipment travels over the ground.
    A guard or shield is a barrier designed to protect against employee 
contact with a hazard created by a moving machinery part.
    Power take-off shafts are the shafts and knuckles between the 
tractor, or other power source, and the first gear set, pulley, 
sprocket, or other components on power take-off shaft driven equipment.
    (6) Operating instructions. At the time of initial assignment and at 
least annually thereafter, the employer shall instruct every employee in 
the safe operation and servicing of all covered equipment with which he 
is or will be involved, including at least the following safe operating 
practices:
    (i) Keep all guards in place when the machine is in operation;
    (ii) Permit no riders on farm field equipment other than persons 
required for instruction or assistance in machine operation;
    (iii) Stop engine, disconnect the power source, and wait for all 
machine movement to stop before servicing, adjusting, cleaning, or 
unclogging the equipment, except where the machine must be running to be 
properly serviced or maintained, in which case the employer shall 
instruct employees as to all steps and procedures which are necessary to 
safely service or maintain the equipment;
    (iv) Make sure everyone is clear of machinery before starting the 
engine, engaging power, or operating the machine;
    (v) Lock out electrical power before performing maintenance or 
service on farmstead equipment.
    (7) Methods of guarding. Except as otherwise provided in this 
subpart, each employer shall protect employees from coming into contact 
with hazards created by moving machinery parts as follows:
    (i) Through the installation and use of a guard or shield or 
guarding by location;
    (ii) Whenever a guard or shield or guarding by location is 
infeasible, by using a guardrail or fence.
    (8) Strength and design of guards. (i) Where guards are used to 
provide the protection required by this section, they shall be designed 
and located to protect against inadvertent contact with the hazard being 
guarded.
    (ii) Unless otherwise specified, each guard and its supports shall 
be capable of withstanding the force that a 250 pound individual, 
leaning on or falling against the guard, would exert upon that guard.
    (iii) Guards shall be free from burrs, sharp edges, and sharp 
corners, and shall be securely fastened to the equipment or building.
    (9) Guarding by location. A component is guarded by location during 
operation, maintenance, or servicing when, because of its location, no 
employee can inadvertently come in contact with the hazard during such 
operation, maintenance, or servicing. Where the employer can show that 
any exposure to hazards results from employee conduct which constitutes 
an isolated and unforeseeable event, the component shall also be 
considered guarded by location.
    (10) Guarding by railings. Guardrails or fences shall be capable of 
protecting

[[Page 11]]

against employees inadvertently entering the hazardous area.
    (11) Servicing and maintenance. Whenever a moving machinery part 
presents a hazard during servicing or maintenance, the engine shall be 
stopped, the power source disconnected, and all machine movement stopped 
before servicing or maintenance is performed, except where the employer 
can establish that:
    (i) The equipment must be running to be properly serviced or 
maintained;
    (ii) The equipment cannot be serviced or maintained while a guard or 
guards otherwise required by this standard are in place; and
    (iii) The servicing or maintenance can be safely performed.
    (b) Farm field equipment--(1) Power take-off guarding. (i) All power 
take-off shafts, including rear, mid- or side-mounted shafts, shall be 
guarded either by a master shield, as provided in paragraph (b)(1)(ii) 
of this section, or by other protective guarding.
    (ii) All tractors shall be equipped with an agricultural tractor 
master shield on the rear power take-off except where removal of the 
tractor master shield is permitted by paragraph (b)(1)(iii) of this 
section. The master shield shall have sufficient strength to prevent 
permanent deformation of the shield when a 250 pound operator mounts or 
dismounts the tractor using the shield as a step.
    (iii) Power take-off driven equipment shall be guarded to protect 
against employee contact with positively driven rotating members of the 
power drive system. Where power take-off driven equipment is of a design 
requiring removal of the tractor master shield, the equipment shall also 
include protection from that portion of the tractor power take-off shaft 
which protrudes from the tractor.
    (iv) Signs shall be placed at prominent locations on tractors and 
power take-off driven equipment specifying that power drive system 
safety shields must be kept in place.
    (2) Other power transmission components. (i) The mesh or nip-points 
of all power driven gears, belts, chains, sheaves, pulleys, sprockets, 
and idlers shall be guarded.
    (ii) All revolving shafts, including projections such as bolts, 
keys, or set screws, shall be guarded, except smooth shaft ends 
protruding less than one-half the outside diameter of the shaft and its 
locking means.
    (iii) Ground driven components shall be guarded in accordance with 
paragraphs (b)(2)(i) and (b)(2)(ii) of this section if any employee may 
be exposed to them while the drives are in motion.
    (3) Functional components. Functional components, such as snapping 
or husking rolls, straw spreaders and choppers, cutterbars, flail 
rotors, rotary beaters, mixing augers, feed rolls, conveying augers, 
rotary tillers, and similar units, which must be exposed for proper 
function, shall be guarded to the fullest extent which will not 
substantially interfere with normal functioning of the component.
    (4) Access to moving parts. (i) Guards, shields, and access doors 
shall be in place when the equipment is in operation.
    (ii) Where removal of a guard or access door will expose an employee 
to any component which continues to rotate after the power is 
disengaged, the employer shall provide, in the immediate area, the 
following:
    (A) A readily visible or audible warning of rotation; and
    (B) A safety sign warning the employee to:
    (1) Look and listen for evidence of rotation; and
    (2) Not remove the guard or access door until all components have 
stopped.
    (c) Farmstead equipment--(1) Power take-off guarding. (i) All power 
take-off shafts, including rear, mid-, or side-mounted shafts, shall be 
guarded either by a master shield as provided in paragraph (b)(1)(ii) of 
this section or other protective guarding.
    (ii) Power take-off driven equipment shall be guarded to protect 
against employee contact with positively driven rotating members of the 
power drive system. Where power take-off driven equipment is of a design 
requiring removal of the tractor master shield, the equipment shall also 
include protection from that portion of the tractor power take-off shaft 
which protrudes from the tractor.

[[Page 12]]

    (iii) Signs shall be placed at prominent locations on power take-off 
driven equipment specifying that power drive system safety shields must 
be kept in place.
    (2) Other power transmission components. (i) The mesh or nip-points 
of all power driven gears, belts, chains, sheaves, pulleys, sprockets, 
and idlers shall be guarded.
    (ii) All revolving shafts, including projections such as bolts, 
keys, or set screws, shall be guarded, with the exception of:
    (A) Smooth shafts and shaft ends (without any projecting bolts, 
keys, or set screws), revolving at less than 10 rpm, on feed handling 
equipment used on the top surface of materials in bulk storage 
facilities; and
    (B) Smooth shaft ends protruding less than one-half the outside 
diameter of the shaft and its locking means.
    (3) Functional components. (i) Functional components, such as 
choppers, rotary beaters, mixing augers, feed rolls, conveying augers, 
grain spreaders, stirring augers, sweep augers, and feed augers, which 
must be exposed for proper function, shall be guarded to the fullest 
extent which will not substantially interfere with the normal 
functioning of the component.
    (ii) Sweep arm material gathering mechanisms used on the top surface 
of materials within silo structures shall be guarded. The lower or 
leading edge of the guard shall be located no more than 12 inches above 
the material surface and no less than 6 inches in front of the leading 
edge of the rotating member of the gathering mechanism. The guard shall 
be parallel to, and extend the fullest practical length of, the material 
gathering mechanism.
    (iii) Exposed auger flighting on portable grain augers shall be 
guarded with either grating type guards or solid baffle style covers as 
follows:
    (A) The largest dimensions or openings in grating type guards 
through which materials are required to flow shall be 4\3/4\ inches. The 
area of each opening shall be no larger than 10 square inches. The 
opening shall be located no closer to the rotating flighting than 2\1/2\ 
inches.
    (B) Slotted openings in solid baffle style covers shall be no wider 
than 1\1/2\ inches, or closer than 3\1/2\ inches to the exposed 
flighting.
    (4) Access to moving parts. (i) Guards, shields, and access doors 
shall be in place when the equipment is in operation.
    (ii) Where removal of a guard or access door will expose an employee 
to any component which continues to rotate after the power is 
disengaged, the employer shall provide, in the immediate area, the 
following:
    (A) A readily visible or audible warning of rotation; and
    (B) A safety sign warning the employee to:
    (1) Look and listen for evidence of rotation; and
    (2) Not remove the guard or access door until all components have 
stopped.
    (5) Electrical disconnect means. (i) Application of electrical power 
from a location not under the immediate and exclusive control of the 
employee or employees maintaining or servicing equipment shall be 
prevented by:
    (A) Providing an exclusive, positive locking means on the main 
switch which can be operated only by the employee or employees 
performing the maintenance or servicing; or
    (B) In the case of material handling equipment located in a bulk 
storage structure, by physically locating on the equipment an electrical 
or mechanical means to disconnect the power.
    (ii) All circuit protection devices, including those which are an 
integral part of a motor, shall be of the manual reset type, except 
where:
    (A) The employer can establish that because of the nature of the 
operation, distances involved, and the amount of time normally spent by 
employees in the area of the affected equipment, use of the manual reset 
device would be infeasible;
    (B) There is an electrical disconnect switch available to the 
employee within 15 feet of the equipment upon which maintenance or 
service is being performed; and
    (C) A sign is prominently posted near each hazardous component which 
warns the employee that, unless the electrical disconnect switch is 
utilized, the motor could automatically reset

[[Page 13]]

while the employee is working on the hazardous component.
    (d) Cotton ginning equipment--(1) Power transmission components. (i) 
The main drive and miscellaneous drives of gin stands shall be 
completely enclosed, guarded by location, or guarded by railings 
(consistent with the requirements of paragraph (a)(7) of this section). 
Drives between gin stands shall be guarded so as to prevent access to 
the area between machines.
    (ii) When guarded by railings, any hazardous component within 15 
horizontal inches of the rail shall be completely enclosed. Railing 
height shall be approximately 42 inches off the floor, platform, or 
other working surface, with a midrail between the toprail and the 
working surface. Panels made of materials conforming to the requirements 
in Table D-1, or equivalent, may be substituted for midrails. Guardrails 
shall be strong enough to withstand at least 200 pounds force on the 
toprail.
    (iii) Belts guarded by railings shall be inspected for defects at 
least daily. The machinery shall not be operated until all defective 
belts are replaced.

  Table D-1--Examples of Minimum Requirements for Guard Panel Materials
------------------------------------------------------------------------
                                                    Largest
                                 Clearance from     mesh or     Minimum
                                 moving part at     opening   gage (U.S.
           Material              all points (in    allowable   standard)
                                     inches)          (in         or
                                                    inches)    thickness
------------------------------------------------------------------------
Woven wire....................  Under 2.........       \3/8\          16
                                2 to 4..........       \1/2\          16
                                4 to 15.........           2          12
Expanded metal................  Under 4.........       \1/2\          18
                                4 to 15.........           2          13
Perforated metal..............  Under 4.........       \1/2\          20
                                4 to 15.........           2          14
Sheet metal...................  Under 4.........  ..........          22
                                4 to 15.........  ..........          22
Plastic.......................  Under 4.........  ..........       (\1\)
                                4 to 15.........  ..........       (\1\)
------------------------------------------------------------------------
\1\ Tensile strength of 10,000 lb/in[hairsp][hairsp]\2\

    (iv) Pulleys of V-belt drives shall be completely enclosed or 
guarded by location whether or not railings are present. The open end of 
the pulley guard shall be not less than 4 inches from the periphery of 
the pulleys.
    (v) Chains and sprockets shall be completely enclosed, except that 
they may be guarded by location if the bearings are packed or if 
accessible extension lubrication fittings are used.
    (vi) Where complete enclosure of a component is likely to cause a 
fire hazard due to excessive deposits of lint, only the face section of 
nip-point and pulley guards is required. The guard shall extend at least 
6 inches beyond the rim of the pulley on the in-running and off-running 
sides of the belt, and at least 2 inches from the rim and face of the 
pulley in all other directions.
    (vii) Projecting shaft ends not guarded by location shall present a 
smooth edge and end, shall be guarded by non-rotating caps or safety 
sleeves, and may not protrude more than one-half the outside diameter of 
the shaft.
    (viii) In power plants and power development rooms where access is 
limited to authorized personnel, guard railings may be used in place of 
guards or guarding by location. Authorized employees having access to 
power plants and power development rooms shall be instructed in the safe 
operation and maintenance of the equipment in accordance with paragraph 
(a)(6) of this section.
    (2) Functional components. (i) Gin stands shall be provided with a 
permanently installed guard designed to preclude contact with the gin 
saws while in motion. The saw blades in the roll box shall be considered 
guarded by location if they do not extend through the ginning ribs into 
the roll box when the breast is in the out position.
    (ii) Moving saws on lint cleaners which have doors giving access to 
the saws shall be guarded by fixed barrier guards or their equivalent 
which prevent direct finger or hand contact with the saws while the saws 
are in motion.
    (iii) An interlock shall be installed on all balers so that the 
upper gates cannot be opened while the tramper is operating.
    (iv) Top panels of burr extractors shall be hinged and equipped with 
a sturdy positive latch.
    (v) All accessible screw conveyors shall be guarded by substantial 
covers or gratings, or with an inverted horizontally slotted guard of 
the trough type, which will prevent employees from coming into contact 
with the screw conveyor. Such guards may consist of horizontal bars 
spaced so as to allow material to be fed into the conveyor, and 
supported by arches which

[[Page 14]]

are not more than 8 feet apart. Screw conveyors under gin stands shall 
be considered guarded by location.
    (3) Warning device. A warning device shall be installed in all gins 
to provide an audible signal which will indicate to employees that any 
or all of the machines comprising the gin are about to be started. The 
signal shall be of sufficient volume to be heard by employees, and shall 
be sounded each time before starting the gin.

[41 FR 10195, Mar. 9, 1976; 41 FR 11022, Mar. 16, 1976; 41 FR 22268, 
June 2, 1976, as amended at 41 FR 46598, Oct. 22, 1976]

Subparts E-H [Reserved]



                Subpart I--General Environmental Controls



Sec. 1928.110  Field sanitation.

    (a) Scope. This section shall apply to any agricultural 
establishment where eleven (11) or more employees are engaged on any 
given day in hand-labor operations in the field.
    (b) Definitions. Agricultural employer means any person, 
corporation, association, or other legal entity that:
    (i) Owns or operates an agricultural establishment;
    (ii) Contracts with the owner or operator of an agricultural 
establishment in advance of production for the purchase of a crop and 
exercises substantial control over production; or
    (iii) Recruits and supervises employees or is responsible for the 
management and condition of an agricultural establishment.
    Agricultural establishment is a business operation that uses paid 
employees in the production of food, fiber, or other materials such as 
seed, seedlings, plants, or parts of plants.
    Hand-labor operations means agricultural activities or agricultural 
operations performed by hand or with hand tools. Except for purposes of 
paragraph (c)(2)(iii) of this section, hand-labor operations also 
include other activities or operations performed in conjunction with 
hand labor in the field. Some examples of hand-labor operations are the 
hand-cultivation, hand-weeding, hand-planting and hand-harvesting of 
vegetables, nuts, fruits, seedlings or other crops, including mushrooms, 
and the hand packing of produce into containers, whether done on the 
ground, on a moving machine or in a temporary packing shed located in 
the field. Hand-labor does not include such activities as logging 
operations, the care or feeding of livestock, or hand-labor operations 
in permanent structures (e.g., canning facilities or packing houses).
    Handwashing facility means a facility providing either a basin, 
container, or outlet with an adequate supply of potable water, soap and 
single-use towels.
    Potable water means water that meets the standards for drinking 
purposes of the state or local authority having jurisdiction or water 
that meets the quality standards prescribed by the U.S. Environmental 
Protection Agency's National Interim Primary Drinking Water Regulations, 
published in 40 CFR part 141.
    Toilet facility means a fixed or portable facility designed for the 
purpose of adequate collection and containment of the products of both 
defecation and urination which is supplied with toilet paper adequate to 
employee needs. Toilet facility includes biological, chemical, flush and 
combustion toilets and sanitary privies.
    (c) Requirements. Agricultural employers shall provide the following 
for employees engaged in hand-labor operations in the field, without 
cost to the employee:
    (1) Potable drinking water. (i) Potable water shall be provided and 
placed in locations readily accessible to all employees.
    (ii) The water shall be suitably cool and in sufficient amounts, 
taking into account the air temperature, humidity and the nature of the 
work performed, to meet the needs of all employees.
    (iii) The water shall be dispensed in single-use drinking cups or by 
fountains. The use of common drinking cups or dippers is prohibited.
    (2) Toilet and handwashing facilities. (i) One toilet facility and 
one handwashing facility shall be provided for each twenty (20) 
employees or fraction thereof, except as stated in paragraph (c)(2)(v) 
of this section.
    (ii) Toilet facilities shall be adequately ventilated, appropriately

[[Page 15]]

screened, have self-closing doors that can be closed and latched from 
the inside and shall be constructed to insure privacy.
    (iii) Toilet and handwashing facilities shall be accessibly located 
and in close proximity to each other. The facilities shall be located 
within a one-quarter-mile walk of each hand laborer's place of work in 
the field.
    (iv) Where due to terrain it is not feasible to locate facilities as 
required above, the facilities shall be located at the point of closest 
vehicular access.
    (v) Toilet and handwashing facilities are not required for employees 
who perform field work for a period of three (3) hours or less 
(including transportation time to and from the field) during the day.
    (3) Maintenance. Potable drinking water and toilet and handwashing 
facilities shall be maintained in accordance with appropriate public 
health sanitation practices, including the following:
    (i) Drinking water containers shall be constructed of materials that 
maintain water quality, shall be refilled daily or more often as 
necessary, shall be kept covered and shall be regularly cleaned.
    (ii) Toilet facilities shall be operational and maintained in clean 
and sanitary condition.
    (iii) Handwashing facilities shall be refilled with potable water as 
necessary to ensure an adequate supply and shall be maintained in a 
clean and sanitary condition; and
    (iv) Disposal of wastes from facilities shall not cause unsanitary 
conditions.
    (4) Reasonable use. The employer shall notify each employee of the 
location of the sanitation facilities and water and shall allow each 
employee reasonable opportunities during the workday to use them. The 
employer also shall inform each employee of the importance of each of 
the following good hygiene practices to minimize exposure to the hazards 
in the field of heat, communicable diseases, retention of urine and 
agrichemical residues:
    (i) Use the water and facilities provided for drinking, handwashing 
and elimination;
    (ii) Drink water frequently and especially on hot days;
    (iii) Urinate as frequently as necessary;
    (iv) Wash hands both before and after using the toilet; and
    (v) Wash hands before eating and smoking.
    (d) Dates--(1) Effective date. This standard shall take effect on 
May 30, 1987.
    (2) Startup dates. Employers must comply with the requirements of 
paragraphs:
    (i) Paragraph (c)(1), to provide potable drinking water, by May 30, 
1987;
    (ii) Paragraph (c)(2), to provide handwashing and toilet facilities, 
by July 30, 1987;
    (iii) Paragraph (c)(3), to provide maintenance for toilet and 
handwashing facilities, by July 30, 1987; and
    (iv) Paragraph (c)(4), to assure reasonable use, by July 30, 1987.

[52 FR 16095, May 1, 1987]

Subparts J-L [Reserved]



                     Subpart M--Occupational Health



Sec. 1928.1027  Cadmium.

    See Sec. 1910.1027, Cadmium.

[61 FR 9255, Mar. 7, 1996]



PART 1949--OFFICE OF TRAINING AND EDUCATION, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION--Table of Contents




                   Subpart A--OSHA Training Institute

Sec.
1949.1  Policy regarding tuition fees.
1949.2  Definitions.
1949.3  Schedule of fees.
1949.4  Procedure for payment.
1949.5  Refunds.

    Authority: Secs. 8, 26, Occupational Safety and Health Act of 1970 
(29 U.S.C. 657, 670); 31 U.S.C. 9701; Secretary of Labor's Order No. 9-
83 (48 FR 35736).

    Source: 49 FR 32066, Aug. 10, 1984, unless otherwise noted.



                   Subpart A--OSHA Training Institute



Sec. 1949.1  Policy regarding tuition fees.

    (a) The OSHA Training Institute shall charge tuition fees for all 
private

[[Page 16]]

sector students attending Institute courses.
    (b) The following private sector students shall be exempt from the 
payment of tuition fees.
    (1) Associate members of Field Federal Safety and Health Councils.
    (2) Students who are representatives of foreign governments.
    (3) Students attending courses which are required by OSHA for the 
student to maintain an existing designation of OSHA certified outreach 
trainer.
    (c) Additional exemptions may be made by the Director of the OSHA 
Training Institute on a case by case basis if it is determined that the 
students exempted are employed by a nonprofit organization and the 
granting of an exemption from tuition would be in the best interest of 
the occupational safety and health program. Individuals or organizations 
wishing to be considered for this exemption shall make application to 
the Director of the OSHA Training Institute in writing stating the 
reasons for an exemption from payment of tuition.

[56 FR 28076, June 19, 1991]



Sec. 1949.2  Definitions.

    Any term not defined herein shall have the same meaning as given it 
in the Act. As used in this subpart:
    Private sector students means those students attending the Institute 
who are not employees of Federal, State, or local governments.



Sec. 1949.3  Schedule of fees.

    (a) Tuition fees will be computed on the basis of the cost to the 
Government for the Institute conduct of the course, as determined by the 
Director of the Institute.
    (b) Total tuition charges for each course will be set forth in the 
course announcement.



Sec. 1949.4  Procedure for payment.

    (a) Applications for Institute courses shall be submitted to the 
Institute Registrar's office in accordance with instructions issued by 
the Institute.
    (b) Private sector personnel shall, upon notification of their 
acceptance by the Institute, submit a check payable to ``U.S. Department 
of Labor'' in the amount indicated by the course announcement prior to 
the commencement of the course.



Sec. 1949.5  Refunds.

    An applicant may withdraw an application and receive full 
reimbursement of the fee provided that written notification to the 
Institute Registrar is mailed no later than 14 days before the 
commencement of the course for which registration has been submitted.



PART 1952--APPROVED STATE PLANS FOR ENFORCEMENT OF STATE STANDARDS--Table of Contents




              Subpart A--General Provisions and Conditions

Sec.
1952.1  Purpose and scope.
1952.2  Definitions.
1952.3  Developmental plans.
1952.4  Injury and illness recording and reporting requirements.
1952.5  Availability of the plans.
1952.6  Partial approval of State plans.
1952.7  Product standards.
1952.8  Variations, tolerances, and exemptions affecting the national 
          defense.
1952.9  Variances affecting multi-state employers.
1952.10  Requirements for approval of State posters.
1952.11  State and local government employee programs.

Subpart B [Reserved]

                        Subpart C--South Carolina

1952.90  Description of the plan as initially approved.
1952.91  Developmental schedule.
1952.92  Completion of developmental steps and certification.
1952.93  Compliance staffing benchmarks.
1952.94  Final approval determination.
1952.95  Level of Federal enforcement.
1952.96  Where the plan may be inspected.
1952.97  Changes to approved plan.

                            Subpart D--Oregon

1952.100  Description of the plan as initially approved.
1952.101  Developmental schedule.
1952.102  Completion of developmental steps and certification.
1952.103  Compliance staffing benchmarks.
1952.104  [Reserved]
1952.105  Level of Federal enforcement.
1952.106  Where the plan may be inspected.
1952.107  Changes to approved plans.

[[Page 17]]

                             Subpart E--Utah

1952.110  Description of the plan as initially approved.
1952.111  Developmental schedule.
1952.112  Completion of developmental steps and certification.
1952.113  Compliance staffing benchmarks.
1952.114  Final approval determination.
1952.115  Level of Federal enforcement.
1952.116  Where the plan may be inspected.
1952.117  Changes to approved plans.

                          Subpart F--Washington

1952.120  Description of the plan.
1952.121  Where the plan may be inspected.
1952.122  Level of Federal enforcement.
1952.123  Developmental schedule.
1952.124  Completion of developmental steps and certification.
1952.125  Changes to approved plans.

Subparts G-H [Reserved]

                        Subpart I--North Carolina

1952.150  Description of the plan as initially approved.
1952.151  Developmental schedule.
1952.152  Completion of developmental steps and certification.
1952.153  Compliance staffing benchmarks.
1952.154  Final approval determination.
1952.155  Level of Federal enforcement.
1952.156  Where the plan may be inspected.
1952.157  Changes to approved plan.

                             Subpart J--Iowa

1952.160  Description of the plan as initially approved.
1952.161  Developmental schedule.
1952.162  Completion of developmental steps and certification.
1952.163  Compliance staffing benchmarks.
1952.164  Final approval determination.
1952.165  Level of Federal enforcement.
1952.166  Where the plan may be inspected.
1952.167  Changes to approved plans.

                          Subpart K--California

1952.170  Description of the plan.
1952.171  Where the plan may be inspected.
1952.172  Level of Federal enforcement.
1952.173  Developmental schedule.
1952.174  Completion of developmental steps and certification.
1952.175  Changes to approved plans.

Subparts L-M [Reserved]

                          Subpart N--Minnesota

1952.200  Description of the plan as initially approved.
1952.201  Developmental schedule.
1952.202  Completion of developmental steps and certification.
1952.203  Compliance staffing benchmarks.
1952.204  Final approval determination.
1952.205  Level of Federal enforcement.
1952.206  Where the plan may be inspected.
1952.207  Changes to approved plans.

                           Subpart O--Maryland

1952.210  Description of the plan as initially approved.
1952.211  Developmental schedule.
1952.212  Completion of developmental steps and certification.
1952.213  Compliance staffing benchmarks.
1952.214  Final approval determination.
1952.215  Level of Federal enforcement.
1952.216  Where the plan may be inspected.
1952.217  Changes to approved plans.

                          Subpart P--Tennessee

1952.220  Description of the plan as initially approved.
1952.221  Developmental schedule.
1952.222  Completed developmental steps.
1952.223  Compliance staffing benchmarks.
1952.224  Final approval determination.
1952.225  Level of Federal enforcement.
1952.226  Where the plan may be inspected.
1952.227  Changes to approved plans.

                           Subpart Q--Kentucky

1952.230  Description of the plan as initially approved.
1952.231  Developmental schedule.
1952.232  Completion of developmental steps and certification.
1952.233  Compliance staffing benchmarks.
1952.234  Final approval determination.
1952.235  Level of Federal enforcement.
1952.236  Where the plan may be inspected.
1952.237  Changes to approved plans.

                            Subpart R--Alaska

1952.240  Description of the plan as initially approved.
1952.241  Developmental schedule.
1952.242  Completed developmental steps.
1952.243  Final approval determination.
1952.244  Level of Federal enforcement.
1952.245  Where the plan may be inspected.
1952.246  Changes to approved plans.

                      Subpart S--The Virgin Islands

1952.250  Description of the plan as initially approved.
1952.251  Developmental schedule.
1952.252  Completion of developmental steps and certification.
1952.253  Final approval determination.
1952.254  Level of Federal enforcement.
1952.255  Where the plan may be inspected.
1952.256  Changes to approved plans.

[[Page 18]]

                           Subpart T--Michigan

1952.260  Description of the plan as initially approved.
1952.261  Developmental schedule.
1952.262  Completion of developmental steps and certification.
1952.263  Compliance staffing benchmarks.
1952.264  [Reserved]
1952.265  Level of Federal enforcement.
1952.266  Where the plan may be inspected.
1952.267  Changes to approved plans.

                           Subpart U--Vermont

1952.270  Description of the plan.
1952.271  Where the plan may be inspected.
1952.272  Level of Federal enforcement.
1952.273  Developmental schedule.
1952.274  Completion of developmental steps and certification.
1952.275  Changes to approved plans.

Subpart V [Reserved]

                            Subpart W--Nevada

1952.290  Description of the plan as initially approved.
1952.291  Developmental schedule.
1952.292  Completion of developmental steps and certification.
1952.293  Compliance staffing benchmarks.
1952.294  Final approval determination.
1952.295  Level of Federal enforcement.
1952.296  Where the plan may be inspected.
1952.297  Changes to approved plans.

Subpart X [Reserved]

                            Subpart Y--Hawaii

1952.310  Description of the plan as initially approved.
1952.311  Developmental schedule.
1952.312  Completion of developmental steps and certification.
1952.313  Final approval determination.
1952.314  Level of Federal enforcement.
1952.315  Where the plan may be inspected.
1952.316  Changes to approved plans.

                           Subpart Z--Indiana

1952.320  Description of the plan as initially approved.
1952.321  Developmental schedule.
1952.322  Completion of developmental steps and certification.
1952.323  Compliance staffing benchmarks.
1952.324  Final approval determination.
1952.325  Level of Federal enforcement.
1952.326  Where the plan may be inspected.
1952.327  Changes to approved plans.

Subpart AA [Reserved]

                           Subpart BB--Wyoming

1952.340  Description of the plan as initially approved.
1952.341  Developmental schedule.
1952.342  Completion of developmental steps and certification.
1952.343  Compliance staffing benchmarks.
1952.344  Final approval determination.
1952.345  Level of Federal enforcement.
1952.346  Where the plan may be inspected.
1952.347  Changes to approved plans.

                           Subpart CC--Arizona

1952.350  Description of the plan as initially approved.
1952.351  Developmental schedule.
1952.352  Completion of developmental steps and certification.
1952.353  Compliance staffing benchmarks.
1952.354  Final approval determination.
1952.355  Level of Federal enforcement.
1952.356  Where the plan may be inspected.
1952.357  Changes to approved plans.

                         Subpart DD--New Mexico

1952.360  Description of the plan as initially approved.
1952.361  Developmental schedule.
1952.362  Completion of developmental steps and certification.
1952.363  Compliance staffing benchmarks.
1952.364  [Reserved]
1952.365  Level of Federal enforcement.
1952.366  Where the plan may be inspected.
1952.367  Changes to approved plans.

                          Subpart EE--Virginia

1952.370  Description of the plan as initially approved.
1952.371  Developmental schedule.
1952.372  Completion of developmental steps and certification.
1952.373  Compliance staffing benchmarks.
1952.374  Final approval determination.
1952.375  Level of Federal enforcement.
1952.376  Where the plan may be inspected.
1952.377  Changes to approved plans.

                         Subpart FF--Puerto Rico

1952.380  Description of the plan.
1952.381  Where the plan may be inspected.
1952.382  Level of Federal enforcement.
1952.383  Completion of developmental steps and certification.
1952.384  Completed developmental steps.
1952.385  Changes to approved plans.

    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of 
Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).

[[Page 19]]



              Subpart A--General Provisions and Conditions

    Source: 37 FR 25931, Dec. 6, 1972, unless otherwise noted.



Sec. 1952.1  Purpose and scope.

    (a) This part sets forth the Assistant Secretary's approval of State 
plans submitted under section 18 of the Act and part 1902 of this 
chapter. Each approval of a State plan is based on a determination by 
the Assistant Secretary that the plan meets the requirements of section 
18(c) of the Act and the criteria and indices of effectiveness specified 
in part 1902.
    (b) This subpart contains general provisions and conditions which 
are applicable to all State plans, regardless of the time of their 
approval. Separate subparts are used for the identification of specific 
State plans, indication of locations where the full plan may be 
inspected and copied, and setting forth any special conditions and 
special policies which may be applicable to a particular plan.



Sec. 1952.2  Definitions.

    (a) Act means the Occupational Safety and Health Act of 1970 (29 
U.S.C. 651 et seq.).
    (b) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health.



Sec. 1952.3  Developmental plans.

    Any developmental plan; that is, a plan not fully meeting the 
criteria set forth in Sec. 1902.3 of this chapter at the time of 
approval, must meet the requirements of Sec. 1902.2(b) of this chapter.



Sec. 1952.4  Injury and illness recording and reporting requirements.

    (a) Injury and illness recording and reporting requirements 
promulgated by State-Plan States must be substantially identical to 
those in 29 CFR part 1904 ``Recording and Reporting Occupational 
Injuries and Illnesses.'' State-Plan States must promulgate recording 
and reporting requirements that are the same as the Federal requirements 
for determining which injuries and illnesses will be entered into the 
records and how they are entered. All other injury and illness recording 
and reporting requirements that are promulgated by State-Plan States may 
be more stringent than, or supplemental to, the Federal requirements, 
but, because of the unique nature of the national recordkeeping program, 
States must consult with OSHA and obtain approval of such additional or 
more stringent reporting and recording requirements to ensure that they 
will not interfere with uniform reporting objectives. State-Plan States 
must extend the scope of their regulation to State and local government 
employers.
    (b) A State may not grant a variance to the injury and illness 
recording and reporting requirements for private sector employers. Such 
variances may only be granted by Federal OSHA to assure nationally 
consistent workplace injury and illness statistics. A State may only 
grant a variance to the injury and illness recording and reporting 
requirements for State or local government entities in that State after 
obtaining approval from Federal OSHA.
    (c) A State must recognize any variance issued by Federal OSHA.
    (d) A State may, but is not required, to participate in the Annual 
OSHA Injury/Illness Survey as authorized by 29 CFR 1904.41. A 
participating State may either adopt requirements identical to 1904.41 
in its recording and reporting regulation as an enforceable State 
requirement, or may defer to the Federal regulation for enforcement. 
Nothing in any State plan shall affect the duties of employers to comply 
with 1904.41, when surveyed, as provided by section 18(c)(7) of the Act.

[66 FR 6135, Jan. 19, 2001]



Sec. 1952.5  Availability of the plans.

    (a) A complete copy of each State plan including any supplements 
thereto, shall be kept at:
    (1) Office of Federal and State Operations, OSHA, Room 305, Railway 
Labor Building, 400 First Street, NW., U.S. Department of Labor, 
Washington, DC 20210; and
    (2) The office of the nearest Regional Administrator, Occupational 
Safety and Health Administration. The addresses of the Regional 
Administrators

[[Page 20]]

are listed in the ``United States Government Organization Manual,'' 
1972/73, p. 310. The copy shall be available for public inspection and 
copying.
    (b) A complete copy of the State plan of a particular State, 
including any supplements thereto, shall be kept at the office of the 
State office listed in the appropriate subpart of this part 1952.



Sec. 1952.6  Partial approval of State   plans.

    (a) The Assistant Secretary may partially approve a plan under part 
1902 of this chapter whenever:
    (1) The portion to be approved meets the requirements of part 1902;
    (2) The plan covers more than one occupational safety and health 
issue; and
    (3) Portions of the plan to be approved are reasonably separable 
from the remainder of the plan.
    (b) Whenever the Assistant Secretary approves only a portion of a 
State plan, he may give notice to the State of an opportunity to show 
cause why a proceeding should not be commenced for disapproval of the 
remainder of the plan under subpart C of part 1902 before commencing 
such a proceeding.



Sec. 1952.7  Product standards.

    (a) Under section 18(c)(2) of the Act, a State plan must not include 
standards for products which are distributed or used in interstate 
commerce which are different from Federal standards for such products 
unless such standards are required by compelling local conditions and do 
not unduly burden interstate commerce. In Sec. 1902.3(c)(2) of this 
chapter this is interpreted as not being applicable to customized 
products, or parts not normally available on the open market, or to the 
optional parts, or additions to products which are ordinarily available 
with such optional parts, or additions.
    (b) In situations where section 18(c)(2) is considered applicable, 
and provision is made for the adoption of product standards, the 
requirements of section 18(c)(2), as they relate to undue burden on 
interstate commerce, shall be treated as a condition subsequent in light 
of the facts and circumstances which may be involved.



Sec. 1952.8  Variations, tolerances, and exemptions affecting the national defense.

    (a) The power of the Secretary of Labor under section 16 of the Act 
to provide reasonable limitations and variations, tolerances, and 
exemptions to and from any or all provisions of the Act as he may find 
necessary and proper to avoid serious impairment of the national defense 
is reserved.
    (b) No action by a State under a plan shall be inconsistent with 
action by the Secretary under this section of the Act.



Sec. 1952.9  Variances affecting multi-state employers.

    (a) Where a State standard is identical to a Federal standard 
addressed to the same hazard, an employer or group of employers seeking 
a temporary or permanent variance from such standard, or portion 
thereof, to be applicable to employment or places of employment in more 
than one State, including at least one State with an approved plan, may 
elect to apply to the Assistant Secretary for such variance under the 
provisions of 29 CFR part 1905, as amended.
    (b) Actions taken by the Assistant Secretary with respect to such 
application for a variance, such as interim orders, with respect 
thereto, the granting, denying, or issuing any modification or extension 
thereof, will be deemed prospectively an authoritative interpretation of 
the employer or employers' compliance obligations with regard to the 
State standard, or portion thereof, identical to the Federal standard, 
or portion thereof, affected by the action in the employment or places 
of employment covered by the application.
    (c) Nothing herein shall affect the option of an employer or 
employers seeking a temporary or permanent variance with applicability 
to employment or places of employment in more than one State to apply 
for such variance either to the Assistant Secretary or the individual 
State agencies involved. However, the filing with, as well as granting, 
denial, modification, or revocation of a variance request or interim 
order by, either authority (Federal or State) shall preclude any further 
substantive

[[Page 21]]

consideration of such application on the same material facts for the 
same employment or place of employment by the other authority.
    (d) Nothing herein shall affect either Federal or State authority 
and obligations to cite for noncompliance with standards in employment 
or places of employment where no interim order, variance, or 
modification or extension thereof, granted under State or Federal law 
applies, or to cite for noncompliance with such Federal or State 
variance action.

[40 FR 25450, June 16, 1975]



Sec. 1952.10  Requirements for approval of State posters.

    (a)(1) In order to inform employees of their protections and 
obligations under applicable State law, of the issues not covered by 
State law, and of the continuing availability of Federal monitoring 
under section 18(f) of the Act, States with approved plans shall develop 
and require employers to post a State poster meeting the requirements 
set out in paragraph (a)(5) of this section.
    (2) Such poster shall be substituted for the Federal poster under 
section 8(c)(1) of the Act and Sec. 1903.2 of this chapter where the 
State attains operational status for the enforcement of State standards 
as defined in Sec. 1954.3(b) of this chapter.
    (3) Where a State has distributed its poster and has enabling 
legislation as defined in Sec. 1954.3(b)(1) of this chapter but becomes 
nonoperational under the provisions of Sec. 1954.3(f)(1) of this chapter 
because of failure to be at least as effective as the Federal program, 
the approved State poster may, at the discretion of the Assistant 
Secretary, continue to be substituted for the Federal poster in 
accordance with paragraph (a)(2) of this section.
    (4) A State may, for good cause shown, request, under 29 CFR part 
1953, approval of an alternative to a State poster for informing 
employees of their protections and obligations under the State plans, 
provided such alternative is consistent with the Act, 29 CFR 
1902.4(c)(2)(iv) and applicable State law. In order to qualify as a 
substitute for the Federal poster under this paragraph, such alternative 
must be shown to be at least as effective as the Federal poster 
requirements in informing employees of their protections and obligations 
and address the items listed in paragraph (a)(5) of this section.
    (5) In developing the poster, the State shall address but not be 
limited to the following items:
    (i) Responsibilities of the State, employers and employees;
    (ii) The right of employees or their representatives to request 
workplace inspections;
    (iii) The right of employees making such requests to remain 
anonymous;
    (iv) The right of employees to participate in inspections;
    (v) Provisions for prompt notice to employers and employees when 
alleged violations occur;
    (vi) Protection for employees against discharge or discrimination 
for the exercise of their rights under Federal and State law;
    (vii) Sanctions;
    (viii) A means of obtaining further information on State law and 
standards and the address of the State agency;
    (ix) The right to file complaints with the Occupational Safety and 
Health Administration about State program administration;
    (x) A list of the issues as defined in Sec. 1902.2(c) of this 
chapter which will not be covered by State plan;
    (xi) The address of the Regional Office of the Occupational Safety 
and Health Administration; and
    (xii) Such additional employee protection provisions and obligations 
under State law as may have been included in the approved State plan.
    (b) Posting of the State poster shall be recognized as compliance 
with the posting requirements in section 8(c)(1) of the Act and 
Sec. 1903.2 of this chapter, provided that the poster has been approved 
in accordance with subpart B of part 1953. Continued Federal recognition 
of the State poster is also subject to pertinent findings of 
effectiveness with regard to the State program under 29 CFR part 1954.

[39 FR 39036, Nov. 5, 1974]

[[Page 22]]



Sec. 1952.11  State and local government employee programs.

    (a) Each approved State plan must contain satisfactory assurances 
that the State will, to the extent permitted by its law, establish and 
maintain an effective and comprehensive occupational safety and health 
program applicable to all employees of public agencies of the State and 
its political subdivisions which program is as effective as the 
standards contained in an approved plan.
    (b) This criteria for approved State plans is interpreted to require 
the following elements with regard to coverage, standards, and 
enforcement:
    (1) Coverage. The program must cover all public employees over which 
the State has legislative authority under its constitution. ``To the 
extent permitted by its law,'' specifically recognizes the situation 
where local governments exclusively control their own employees, such as 
under certain ``home rule'' charters.
    (2) Standards. The program must be as effective as the standards 
contained in the approved plan applicable to private employers. Thus, 
the same criteria and indices of standards effectiveness contained in 
Secs. 1902.3(c) and 1902.4 (a) and (b) of this chapter would apply to 
the public employee program. Where hazards are unique to public 
employment, all appropriate indices of effectiveness, such as those 
dealing with temporary emergency standards, development of standards, 
employee information, variances, and protective equipment, would be 
applicable to standards for such hazards.
    (3) Enforcement. Although section 18(c)(6) of the Act requires State 
public employee programs to be ``as effective as standards'' contained 
in the State plan, minimum enforcement elements are required to ensure 
an ``effective and comprehensive'' public employee program as follows: 
(See notice of approval of the North Carolina Plan, 38 FR 3041).
    (i) Regular inspections of workplaces, including inspections in 
response to valid employee complaints;
    (ii) A means for employees to bring possible violations to the 
attention of inspectors;
    (iii) Notification to employees, or their representatives, of 
decisions that no violations are found as a result of complaints by such 
employees or their representatives, and informal review of such 
decisions;
    (iv) A means of informing employees of their protections and 
obligations under the Act;
    (v) Protection for employees against discharge of discrimination 
because of the exercise of rights under the Act;
    (vi) Employee access to information on their exposure to toxic 
materials or harmful physical agents and prompt notification to 
employees when they have been or are being exposed to such materials or 
agents at concentrations or levels above those specified by the 
applicable standards;
    (vii) Procedures for the prompt restraint or elimination of imminent 
danger situations;
    (viii) A means of promptly notifying employers and employees when an 
alleged violation has occurred, including the proposed abatement 
requirements;
    (ix) A means of establishing timetables for the correction of 
violations;
    (x) A program for encouraging voluntary compliance; and
    (xi) Such other additional enforcement provisions under State law as 
may have been included in the State plan.
    (c) In accordance with Sec. 1902.3(b)(3), the State agency or 
agencies designated to administer the plan throughout the State must 
retain overall responsibility for the entire plan. Political 
subdivisions may have the responsibility and authority for the 
development and enforcement of standards: Provided, That the designated 
State agency or agencies have adequate authority by statute, regulation, 
or agreement to insure that the commitments of the State under the plan 
will be fulfilled.

These commitments supersede and control any delegation of authority to 
State or local agencies. (See Notice of Approval of Colorado Plan, 38 FR 
25172.)

[40 FR 58451, Dec. 17, 1975]

Subpart B [Reserved]

[[Page 23]]



                        Subpart C--South Carolina

    Source: 51 FR 8820, Mar. 14, 1986, unless otherwise noted.



Sec. 1952.90  Description of the plan as initially approved.

    (a) The plan identifies the South Carolina Department of Labor as 
the State agency designated to administer the plan. It adopts the 
definition of occupational safety and health issues expressed in 
Sec. 1902.2(c)(1) of this chapter. The plan states that the Department 
of Labor has been promulgating safety and health standards. The South 
Carolina Commissioner of Labor is promulgating all standards and 
amendments thereto which have been promulgated by the Secretary of 
Labor, except those found in Secs. 1910.13; 1910.14; 1910.15; and 
1910.16 of this chapter (ship repairing, shipbuilding, shipbreaking, and 
longshoring). The plan describes procedures for the development and 
promulgation of additional standards, enforcement of such standards, and 
the prompt restraint or elimination of imminent danger situations. The 
South Carolina Legislature passed enabling legislation in 1971, a copy 
of which was submitted with the original plan. Section 40-261 through 
40-274 South Carolina Code of Laws, 1962. The amendments to the plan 
include proposed amendments to this legislation to more fully bring the 
plan into conformity with the requirements of part 1902. Under the 
amended legislation, the South Carolina Department of Labor will have 
full authority to administer and enforce all laws, rules, and orders 
protecting employee safety and health in all places of employment in the 
State.
    (b) The plan includes a statement of the Governor's support for the 
legislative amendments and a legal opinion that the amended act will 
meet the requirements of the Occupational Safety and Health Act of 1970 
and is consistent with the constitution and laws of South Carolina. The 
plan sets out goals and provides a timetable for bringing it into full 
conformity with part 1902 upon enactment of the proposed legislative 
amendments.



Sec. 1952.91  Developmental schedule.

    The South Carolina plan is developmental. The following is the 
schedule of the developmental steps provided by the plan:
    (a) Introduction of the above-mentioned legislative amendments in 
the legislative session following approval of the plan.
    (b) Public hearings and adoption of Federal standards to be 
completed by December 1972.
    (c) A management information system to be completed by no later than 
June 30, 1974.
    (d) A voluntary compliance program to be completed by no later than 
June 30, 1974.
    (e) An occupational safety and health program for public employees 
to be completed by no later than June 30, 1974.
    (f) A program for the coverage of agriculture workers to be 
completed no later than June 30, 1973.
    (g) An approved merit system covering employees implementing the 
plan to be effective 90 days following approval of the plan.
    (h) A revised compliance manual to be completed within 6 months 
following approval of the plan.



Sec. 1952.92  Completion of developmental steps and certification.

    (a) In accordance with Sec. 1952.91(a) legislative amendments were 
introduced into the 1973 South Carolina General Assembly and were 
enacted effective June 12, 1973. The amendments have been supplemented 
by State commitments to:
    (1) Take action on all employee discrimination complaints within 90 
days, and
    (2) Limit the duration of temporary variances to a maximum of two 
years, inclusive of any renewals.
    (b) In accordance with Sec. 1952.91(b) the South Carolina 
occupational safety and health standards, identical to Federal standards 
(through December 3, 1974), have been promulgated and were approved by 
the Assistant Regional Director for Occupational Safety and Health 
effective April 10, 1975 (40 FR 16257).
    (c) In accordance with Sec. 1952.91(d) a voluntary compliance 
program, to be

[[Page 24]]

known as the Taxpayers' Assistant Program, has been developed.
    (d) In accordance with Sec. 1952.91(f) coverage of agricultural 
workers began on July 1, 1973, and was initiated directly by the South 
Carolina Department of Labor. (The State plan has been amended to delete 
the proposal to delegate such responsibility to the State Department of 
Agriculture.)
    (e) In accordance with Sec. 1952.91(g) the State plan has been 
amended to show extensions of merit system coverage to the South 
Carolina Department of Labor, Division of Occupational Safety and 
Health. Agreement with the Department of Health and Environmental 
Control requires that all health personnel cooperating in the State 
occupational safety and health program be likewise covered by the State 
merit system.
    (f) In accordance with the requirements of Sec. 1952.10 the South 
Carolina Safety and Health Poster for private and public employees was 
approved by the Assistant Secretary on February 19, 1976.
    (g) In accordance with Sec. 1952.91(c) development of a management 
information system designed to provide the data required by the 
Assistant Secretary and information necessary for internal management of 
resources and evaluation of State program performance has been 
completed.
    (h) The State plan has been amended to include the details of a 
public employee program. State and local government employees will be 
afforded protection identical to that of employees in the private 
sector.
    (i) The South Carolina plan has been amended to include an expanded 
radiation health effort. The Division of Radiological Health, South 
Carolina Department of Health and Environmental Control, under contract 
to the South Carolina Department of Labor will make inspections to 
provide coverage of radiation hazards not subject to regulation under 
the Atomic Energy Act of 1954.
    (j) In accordance with plan commitments, South Carolina regulations 
for enforcement of standards and review of contested cases, Article IV, 
were revised and repromulgated on June 5, 1975. Further amendment to 
section 4.00K (September 26, 1975) and a January 15, 1976, letter of 
supplemental assurances from Commissioner Edgar L. McGowan are 
considered integral parts of the approved South Carolina review 
procedures. On March 11, 1976, the State of South Carolina promulgated 
the necessary changes to Article IV to fulfill the commitments contained 
in their January 15, 1976, letter of supplemental assurances.
    (k) The State plan has been amended to include an Affirmative Action 
Plan in which the State outlines its policy of equal employment 
opportunity.
    (l) In accordance with Sec. 1952.91(h) the State has developed and 
amended a Compliance Manual which defines the procedures and guidelines 
to be used by the South Carolina compliance and consultation staff in 
carrying out the goals of the program.
    (m) In accordance with Sec. 1902.34 of this chapter, the South 
Carolina occupational safety and health plan was certified, effective 
August 3, 1976, as having completed all developmental steps specified in 
the plan as approved on November 30, 1972, on or before December 31, 
1975.



Sec. 1952.93  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 South 
Carolina, in conjunction with OSHA, completed a reassessment of the 
levels initially established in 1980 and proposed revised compliance 
staffing benchmarks of 17 safety and 12 health compliance officers. 
After opportunity for public comment and service on the AFL-CIO, the 
Assistant Secretary approved these revised staffing requirements on 
January 17, 1986.



Sec. 1952.94  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in

[[Page 25]]

AFL-CIO v. Marshall (CA 74-406), and was satisfactorily providing 
reports to OSHA through participation in the Federal-State Integrated 
Management Information System, the Assistant Secretary evaluated actual 
operations under the South Carolina State plan for a period of at least 
one year following certification of completion of developmental steps 
(41 FR 32424). Based on the 18(e) Evaluation Report for the period of 
December 1, 1985, through January 31, 1987, and after opportunity for 
public comment, the Assistant Secretary determined that in operation the 
State of South Carolina's occupational safety and health program is at 
least as effective as the Federal program in providing safe and 
healthful employment and places of employment and meets the criteria for 
final State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the South Carolina plan 
was granted final approval and concurrent Federal enforcement authority 
was relinquished under section 18(e) of the Act effective December 15, 
1987.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in South Carolina. The plan does not cover private sector maritime 
employment; military bases; Federal government employers and employees; 
the U.S. Postal Service (USPS), including USPS employees, and contract 
employees and contractor-operated facilities engaged in USPS mail 
operations; private sector employment at Area D of the Savannah River 
Site (power generation and transmission facilities operated by South 
Carolina Electric and Gas) and at the Three Rivers Solid Waste 
Authority; the enforcement of the field sanitation standard, 29 CFR 
1928.110, and the temporary labor camps standard, 29 CFR 1910.142, with 
respect to any agricultural establishment where employees are engaged in 
``agricultural employment'' within the meaning of the Migrant and 
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3), 
regardless of the number of employees, including employees engaged in 
hand packing of produce into containers, whether done on the ground, on 
a moving machine, or in a temporary packing shed, except that South 
Carolina retains enforcement responsibility over agricultural temporary 
labor camps for employees engaged in egg, poultry, or red meat 
production, or the post-harvest processing of agricultural or 
horticultural commodities.
    (c) South Carolina is required to maintain a State program which is 
at least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[52 FR 48111, Dec. 18, 1987, as amended at 62 FR 2560, Jan. 17, 1997; 65 
FR 36619, June 9, 2000]



Sec. 1952.95  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the South Carolina plan under section 18(e) of the 
Act, effective December 15, 1987, occupational safety and health 
standards which have been promulgated under section 6 of the Act do not 
apply with respect to issues covered under the South Carolina plan. This 
determination also relinquishes concurrent Federal OSHA authority to 
issue citations for violations of such standards under sections 5(a)(2) 
and 9 of the Act; to conduct inspections and investigations under 
section 8 (except those necessary to conduct evaluation of the plan 
under section 18(f) and other inspections, investigations, or 
proceedings necessary to carry out Federal responsibilities not 
specifically preempted by section 18(e)); to conduct enforcement 
proceedings in contested cases under section 10; to institute 
proceedings to correct imminent dangers under section 13; and to propose 
civil penalties or initiate criminal proceedings for violations of the 
Federal Act under section 17. The Assistant Secretary retains 
jurisdiction under the above provisions in any proceeding commenced 
under section 9 or 10 before

[[Page 26]]

the effective date of the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the South Carolina plan. OSHA retains full 
authority over issues which are not subject to State enforcement under 
the plan. Thus, Federal OSHA retains its authority relative to safety 
and health in private sector maritime activities, and will continue to 
enforce all provisions of the Act, rules or orders, and all Federal 
standards, current or future, specifically directed to maritime 
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine 
terminals; Part 1918, longshoring; Part 1919, gear certification), as 
well as provisions of general industry and construction standards (29 
CFR Parts 1910 and 1926) appropriate to hazards found in these 
employments; employment on military bases; and private sector employment 
at Area D of the Savannah River Site (power generation and transmission 
facilities operated by South Carolina Electric and Gas) and at the Three 
Rivers Solid Waste Authority. Federal jurisdiction is retained and 
exercised by the Employment Standards Administration, U.S. Department of 
Labor, (Secretary's Order 5-96, dated December 27, 1996) with respect to 
the field sanitation standard, 29 CFR 1928.110, and the enforcement of 
the temporary labor camps standard, 29 CFR 1910.142, in agriculture, as 
described in Sec. 1952.94(b). Federal jurisdiction is also retained with 
respect to Federal government employers and employees; and the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by plan 
which has received final approval, and shall be subject to Federal 
enforcement. Where enforcement jurisdiction is shared between Federal 
and State authorities for a particular area, project, or facility, in 
the interest of administrative practicability Federal jurisdiction may 
be assumed over the entire project or facility. In either of the two 
aforementioned circumstances, Federal enforcement may be exercised 
immediately upon agreement between Federal OSHA and the State designated 
agency.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such standards may 
not be federally applied. In the event that the State's 18(e) status is 
subsequently withdrawn and Federal authority reinstated, all Federal 
standards, including any standards promulgated or modified during the 
18(e) period, would be federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the South Carolina State program to assure 
that the provisions of the State plan are substantially complied with 
and that the program remains at least as effective as the Federal 
program. Failure by the State to comply with its obligations may result 
in the revocation of the final determination under section 18(e), 
resumption of Federal enforcement, and/or proceedings for withdrawal of 
plan approval.

[52 FR 48111, Dec. 18, 1987, as amended at 62 FR 2560, Jan. 17, 1997; 65 
FR 36619, June 9, 2000]



Sec. 1952.96  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected

[[Page 27]]

and copied during normal business hours at the following locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Atlanta Federal Center, 61 
Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303; and
Office of the Director, South Carolina Department of Labor, Licensing 
and Regulation, Koger Office Park, Kingstree Building, 110 Centerview 
Drive, P.O. Box 11329, Columbia, South Carolina 29210.

[65 FR 36619, June 9, 2000]



Sec. 1952.97  Changes to approved plan.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved South Carolina's revised statutory penalty levels which are the 
same as the revised Federal penalty levels contained in section 17 of 
the Act as amended on November 5, 1990.
    (2) [Reserved]
    (b) The Voluntary Protection Program. On June 24, 1994, the 
Assistant Secretary approved South Carolina's plan supplement, which is 
generally identical to the Federal STAR Voluntary Protection Program. 
South Carolina's ``Palmetto'' VPP is limited to the STAR Program in 
general industry, excludes the MERIT AND DEMONSTRATION Programs and 
excludes the construction industry. Also, injury rates must be at or 
below 50 percent of the State industry average rather than the National 
industry average.
    (c) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved South Carolina's plan amendment, 
dated August 1, 1996, relinquishing coverage for the issues of field 
sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) 
in agriculture (except for agricultural temporary labor camps associated 
with egg, poultry or red meat production, or the post-harvest processing 
of agricultural or horticultural commodities.) The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in South 
Carolina pursuant to Secretary of Labor's Order 5-96, dated December 27, 
1996.

[59 FR 39257, Aug. 2, 1994, as amended at 62 FR 2560, Jan. 17, 1997]



                            Subpart D--Oregon



Sec. 1952.100  Description of the plan as initially approved.

    (a)(1) The plan identifies the Oregon Workmen's Compensation Board 
as the State agency designated to administer the plan. It adopts the 
definition of occupational safety and health issues expressed in 
Sec. 1902.2(c)(1) of this chapter. The plan contains a standards 
comparison of existing and proposed State standards with Federal 
standards. All proposed standards except those found in Secs. 1910.13, 
1910.14, 1910.15, and 1910.16 (ship repairing, shipbuilding, ship 
breaking and longshoring) will be adopted and enforced after public 
hearings within 1 year following approval of the plan.
    (2) The plan provides a description of personnel employed under a 
merit system; the coverage of employees of political subdivisions; 
procedures for the development and promulgation of standards; procedures 
for prompt and effective standards setting action for the protection of 
employees against new and unforeseen hazards; and procedures for the 
prompt restraint of imminent danger situations.
    (b)(1) The plan includes proposed draft legislation to be considered 
by the Oregon Legislature during its 1973 session amending chapter 654 
of Oregon Revised Statutes to bring it into conformity with the 
requirements of part 1902 of this chapter. Under the proposed 
legislation, the workmen's compensation board will have full authority 
to enforce and administer all laws and rules protecting employee health 
and safety in all places of employment in the State. The legislation 
further proposes to bring the State into conformity in areas such as 
variances and protection of employees from hazards.
    (2) The legislation is also intended to insure inspections in 
response to complaints; employer and employee representatives' 
opportunity to accompany inspectors and to call attention to possible 
violations before, during and after inspections; notification of

[[Page 28]]

employees or their representatives when no compliance action is taken as 
a result of alleged violations, including informal review; notification 
of employees of their protections; protection of employees against 
discharge or discrimination in terms and conditions of employment; 
adequate safeguards to protect trade secrets; provision for prompt 
notice to employers and employees of alleged violations of standards and 
abatement requirements; effective sanctions against employers for 
violations of standards and orders; employer right of review of alleged 
violations, abatement periods and proposed penalties to the workmen's 
compensation board and employee participation in review proceedings. The 
plan also proposes to develop a program to encourage voluntary 
compliance by employers and employees.
    (c) The plan includes a statement of the Governor's support for the 
legislative amendments and legal opinion that the draft legislation will 
meet the requirements of the Occupational Safety and Health Act of 1970 
and is consistent with the constitution and laws of Oregon. The plan 
sets out goals and provides a timetable for bringing it into full 
conformity with part 1902 upon enactment of the proposed legislation.
    (d) The Oregon plan includes the following documents as of the date 
of approval:
    (1) The plan description document with appendices.
    (2) Appendix G, the standards comparison.
    (3) Letter from M. Keith Wilson, Chairman, Workmen's Compensation 
Board to the Assistant Secretary, June 30, 1972, on product standards.
    (4) Letter from M. Keith Wilson to James Lake, Regional 
Administrator, June 30, 1972, clarifying employee sanction provisions.
    (5) Letter with attachments from M. Keith Wilson to the Assistant 
Secretary, September 5, 1972, clarifying several issues raised during 
the review process.
    (6) Letter from the commissioners of the workmen's compensation 
board to the Assistant Secretary, December 4, 1972, clarifying the 
remaining issues raised during the review process.
    (e) Also available for inspection and copying with the plan 
documents will be the public comments received and a transcript of the 
public hearing held September 27, 1972.

[37 FR 28630, Dec. 28, 1972. Redesignated at 52 FR 9162, Mar. 23, 1987, 
as amended at 59 FR 42495, Aug. 18, 1994]



Sec. 1952.101  Developmental schedule.

    The Oregon plan is developmental. The schedule of developmental 
steps as described in the plan is revised in a letter dated November 27, 
1973, from M. Keith Wilson, Chairman, Workman's Compensation Board to 
James Lake, Assistant Regional Director for OSHA and includes:
    (a) Introduction of the legislative amendments in the legislative 
session following approval of the plan. The legislation was passed and 
became effective July 1, 1973.
    (b) Complete revision of all occupational safety and health codes as 
proposed within one year after the proposed standards are found to be at 
least as effective by the Secretary of Labor.
    (c) Development of administrative rules and procedures, including 
rights and responsibilities of employers, employees and the Workmen's 
Compensation Board including regulations on variances, exposure to 
hazards and access to information on exposure to hazards by July 1, 
1974.
    (d) Training of present inspection personnel of the accident 
prevention division and the occupational health section by July 1, 1973. 
Selection and training of additional inspectors within one year of the 
effective date of the 1973-1975 budget.
    (e) Establishment of specific occupational safety and health goals 
by July 1, 1974. These goals will be reviewed and revised biannually.
    (f) Development and implementation of an affirmative action program 
by July 1, 1973.
    (g) Development and implementation of administrative rules relative 
to an on-site voluntary compliance consultation program by July 1, 1974.

[39 FR 11881, Apr. 1, 1974. Redesignated at 52 FR 9162, Mar. 23, 1987, 
and further redesignated at 59 FR 42495, Aug. 18, 1994]

[[Page 29]]



Sec. 1952.102  Completion of developmental steps and certification.

    (a)(1) In accordance with Sec. 1952.108(a), the Oregon Safe 
Employment Act, Senate Bill 44, amending Oregon Revised Statutes 654 and 
446 and other miscellaneous provisions, was signed by the Governor on 
July 22, 1973, and carried an effective date of July 1, 1973.
    (2) The following differences between the program described in 
Sec. 1952.105(b)(1) and the program authorized by the State law are 
approved:
    (i) By promulgation of the appropriate regulatory provision, Rule 
46-331, and by including a mandatory consultation requirement in its 
Field Compliance Manual, Oregon provides for employee participation, 
when there is no employee representative, by requiring the inspector to 
consult with employees.
    (ii) In accordance with ORS, 654.062(3), an additional written 
request from an employee is required in order to obtain a statement of 
the reasons why no citation was issued as a result of an employee 
complaint of unsafe work conditions, which will be subject to evaluation 
in its administration.
    (iii) Section 18 of Oregon's legislation authorizes a stay of the 
abatement date by operation of law pending a final order of the Board 
for nonserious violations and for serious violations when the abatement 
date of the serious violation is specifically contested. An expedited 
hearing will be requested for serious violations when the abatement date 
is contested.
    (3) The Oregon Safe Employment Act as last amended in the 1981 
legislative session included changes renaming the designated enforcement 
agency, establishment of a director for that agency, authority for 
requiring certain employers to establish safety and health committees, 
and limiting penalties for other-than-serious violations in temporary 
labor camps. The Assistant Secretary approved the amended legislation on 
September 15, 1982.
    (b) In accordance with the requirements of 29 CFR 1952.10 the Oregon 
State Poster with assurance submitted on September 2, 1975, was approved 
by the Assistant Secretary on November 5, 1975. The State's revised 
poster which implemented the assurance was approved by the Assistant 
Secretary on September 15, 1982.
    (c) In accordance with Sec. 1952.108(d) Oregon has completed the 
training as described.
    (d) Oregon has developed and implemented a computerized Management 
Information System.
    (e) In accordance with Sec. 1952.108(f) Oregon has developed and 
implemented an Affirmative Action Plan.
    (f) In accordance with Sec. 1952.108(e) a Statement of Goals and 
Objectives has been developed by the State and was approved by the 
Assistant Secretary on June 24, 1977.
    (g) The Oregon State Compliance Manual which is modeled after the 
Federal Field Operations Manual has been developed by the State, and was 
approved by the Assistant Secretary on June 24, 1977.
    (h) In accordance with the requirements of Sec. 1952.4, Oregon State 
recordkeeping and reporting regulations adopted on June 4, 1974, and 
subsequently revised, were approved by the Assistant Secretary on August 
28, 1980.
    (i) In accordance with Sec. 1952.108 (c) and (g), the Oregon 
Workers' Compensation Department adopted administrative regulations 
providing procedures for conduct and scheduling of inspections, 
extension of abatement dates, variances, employee complaints, posting of 
citations and notices, and voluntary compliance consultation in the 
public sector, effective July 1, 1974, with revisions incorporated in 
rules effective August 1, 1982 and August 13, 1982. These regulations 
with supplemental assurances were approved by the Assistant Secretary on 
September 15, 1982.
    (j) In accordance with Sec. 1952.108(c) the Oregon Workers' 
Compensation Board adopted rules effective December 20, 1973, governing 
practice and procedures for contested cases with revisions incorporated 
in rules effective August 2, 1982. These rules were approved by the 
Assistant Secretary on September 15, 1982.
    (k) The Oregon Workers' Compensation Department submitted rules of 
the Oregon Bureau of Labor and Industries, the agency assigned 
responsibility for

[[Page 30]]

investigation of complaints of discrimination under the Oregon Safe 
Employment Act. These regulations and rule effective June 21, 1982, and 
March 12, 1982 with supplemental assurance were approved by the 
Assistant Secretary on September 15, 1982.
    (l) In accordance with Sec. 1902.34 of this chapter, the Oregon 
occupational safety and health plan was certified effective September 
15, 1982, as having completed all developmental steps specified in the 
plan as approved on December 28, 1972, on or before December 28, 1975. 
This certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[40 FR 24523, June 9, 1975, as amended at 41 FR 8955, Mar. 2, 1976; 41 
FR 23671, June 11, 1976; 42 FR 34281, July 29, 1977; 45 FR 60430, Sept. 
12, 1980; 47 FR 42104, 42106, Sept. 24, 1982. Redesignated at 52 FR 
9162, Mar. 23, 1987, and further redesignated at 59 FR 42495, Aug. 18, 
1994]



Sec. 1952.103  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (``benchmarks'') necessary for a ``fully 
effective'' enforcement program were required for each State operating 
an approved State plan. In October 1992, Oregon completed, in 
conjunction with OSHA, a reassessment of the health staffing level 
initially established in 1980 and proposed a revised health benchmark of 
28 health compliance officers. Oregon elected to retain the safety 
benchmark level established in the 1980 Report to the Court of the U.S. 
District Court for the District of Columbia in 1980 of 47 safety 
compliance officers. After opportunity for public comment and service on 
the AFL-CIO, the Assistant Secretary approved these revised staffing 
requirements on August 11, 1994.

[59 FR 42495, Aug. 18, 1994]



Sec. 1952.104  [Reserved]



Sec. 1952.105  Level of Federal enforcement.

    (a) Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this chapter 
under which an operational status agreement has been entered into with 
Oregon, effective January 23, 1975, and as amended, effective December 
12, 1983 and November 27, 1991; and based on a determination that Oregon 
is operational in the issues covered by the Oregon occupational safety 
and health plan, discretionary Federal enforcement authority under 
section 18(e) of the Act, 29 U.S.C. 667(c), will not be initiated with 
regard to Federal occupational safety and health standards in issues 
covered under 29 CFR parts 1910, 1926 and 1928 except as provided in 
this section. The U.S. Department of Labor will continue to exercise 
authority among other things with regard to:
    (1) Complaints filed with the U.S. Department of Labor alleging 
discrimination under section 11(c) of the Act (29 U.S.C. 660(c));
    (2) Standards in the maritime issues covered by 29 CFR Parts 1915, 
1917, 1918, and 1919 (shipyards, marine terminals, longshoring, and gear 
certification), and enforcement of general industry and construction 
standards (29 CFR Parts 1910 and 1926) appropriate to hazards found in 
these employments, which have been specifically excluded from coverage 
under the plan. This includes: employment on the navigable waters of the 
U.S.; shipyard and boatyard employment on or immediately adjacent to the 
navigable waters--including floating vessels, dry docks, graving docks 
and marine railways--from the front gate of the work site to the U.S. 
statutory limits; longshoring, marine terminal and marine grain terminal 
operations, except production or manufacturing areas and their storage 
facilities; construction activities emanating from or on floating 
vessels on the navigable waters of the U.S.; commercial diving 
originating from an object afloat a navigable waterway; and all other 
private sector places of employment on or adjacent to navigable waters 
whenever the activity occurs on or from the water;
    (3) Enforcement of new Federal standards until the State adopts a 
comparable standard;
    (4) Enforcement in situations where the State is refused entry and 
is unable to obtain a warrant or enforce its right of entry;
    (5) Enforcement of unique and complex standards as determined by the 
Assistant Secretary;

[[Page 31]]

    (6) Enforcement in situations when the State is unable to exercise 
its enforcement authority fully or effectively;
    (7) Enforcement of occupational safety and health standards at all 
private sector establishments, including tribal and Indian-owned 
enterprises, on all Indian and non-Indian lands within the currently 
established boundaries of all Indian reservations, including the Warm 
Springs and Umatilla reservations, and on lands outside these 
reservations that are held in trust by the Federal government for these 
tribes. (Businesses owned by Indians or Indian tribes that conduct work 
activities outside the tribal reservation or trust lands are subject to 
the same jurisdiction as non-Indian owned businesses.);
    (8) Enforcement of occupational safety and health standards at 
worksites located within Federal military reservations, except private 
contractors working on U.S. Army Corps of Engineers dam construction 
projects, including reconstruction of docks or other appurtenances;
    (9) Investigations and inspections for the purpose of the evaluation 
of the plan under sections 18(e) and (f) of the Act (29 U.S.C. 667(e) 
and (f)); and
    (10) Enforcement of occupational safety and health standards with 
regard to all Federal government employers and employees; and the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations.
    (b) The Regional Administrator for Occupational Safety and Health 
will make a prompt recommendation for resumption of exercise of Federal 
enforcement authority under section 18(e) of the Act (29 U.S.C. 667(e)) 
whenever, and to the degree, necessary to assure occupational safety and 
health protection to employees in the State of Oregon.

[51 FR 27024, July 29, 1986. Redesignated at 52 FR 9162, Mar. 23, 1987, 
and further redesignated at 59 FR 42495, Aug. 18, 1994; 62 FR 49909, 
Sept. 24, 1997; 65 FR 36619, June 9, 2000]



Sec. 1952.106  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, Room N3700, 200 Constitution Avenue, N.W., 
Washington, D.C. 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Suite 715, 1111 Third Avenue, 
Seattle, Washington 98101-3212; and
Oregon Occupational Safety and Health Division, Department of Consumer 
and Business Services, Room 430, Labor and Industries Building, 350 
Winter Street NE, Salem, Oregon 97310.

[59 FR 42495, Aug. 18, 1994]



Sec. 1952.107  Changes to approved plans.

    In accordance with part 1953 of this chapter, the following Oregon 
plan changes were approved by the Assistant Secretary:
    (a) The State submitted a revised field operations manual patterned 
after the Federal field operations manual, including modifications, in 
effect February 11, 1985, which superseded the State's previously 
approved manual. The Assistant Secretary approved the manual on July 29, 
1986.
    (b) The State submitted an industrial hygiene technical manual 
patterned after the Federal manual, including modifications, in effect 
March 30, 1984. The Assistant Secretary approved the manual on July 29, 
1986.
    (c) The State submitted an inspection scheduling system which 
schedules inspections based on lists of employers with a high incidence 
of workers compensation claims, whose operations are within industries 
with high injury rates, or which have a high potential for health 
problems. The Assistant Secretary approved the supplement on July 29, 
1986.
    (d) The State submitted several changes to its administrative 
regulations concerning personal sampling, petition to modify abatement 
dates, penalties for repeat violations, and recordkeeping exemptions. 
The Assistant Secretary approved these changes on July 29, 1986.

[[Page 32]]

    (e) Legislation. (1) On March 29, 1994, the Acting Assistant 
Secretary approved Oregon's revised statutory penalty levels as enacted 
subject to further action by the State in 1995 to correct the State's 
omission of revisions of the penalty for posting violations. Aside from 
posting penalties, Oregon's revised penalty levels are the same as the 
revised Federal penalty levels contained in section 17 of the Act as 
amended on November 5, 1990.
    (2) [Reserved]
    (f) Oregon's State plan changes excluding coverage under the plan of 
all private sector employment (including tribal and Indian-owned 
enterprises) on Umatilla Indian reservation or trust lands, by letters 
of April 29 and July 14, 1997 (see Secs. 1952.105); extending coverage 
under the plan to Superfund sites and private contractors working on 
U.S. Army Corps of Engineers dam construction projects, as noted in a 
1992 Memorandum of Understanding; and specifying four (4) unusual 
circumstances where Federal enforcement authority may be exercised, as 
described in a 1991 addendum to the State's operational status 
agreement, were approved by the Acting Assistant Secretary on September 
24, 1997.
    (g) Oregon's State plan changes extending Federal enforcement 
jurisdiction to shore side shipyard and boatyard employment, as 
described in a 1998 Memorandum of Understanding and addendum to the 
State's operational status agreement; and to all private sector 
employment, including tribal and Indian-owned enterprises, on all Indian 
reservations, including establishments on trust lands outside of 
reservations, as described in a separate 1998 addendum, were approved by 
the Assistant Secretary on January 6, 1999.

[51 FR 27025, July 29, 1986. Redesignated at 52 FR 9162, Mar. 23, 1987, 
as amended at 59 FR 14555, Mar. 29, 1994. Further redesignated at 59 FR 
42495, Aug. 18, 1994; 62 FR 49910, Sept. 24, 1997; 65 FR 36620, June 9, 
2000]



                             Subpart E--Utah



Sec. 1952.110  Description of the plan as initially approved.

    (a) The plan identifies the Utah State Industrial Commission as the 
State agency designated to administer the plan throughout the State. It 
defines the covered occupational safety and health issues as defined by 
the Secretary of Labor in 29 CFR 1902.2(c)(1). The plan states that the 
Utah Industrial Commission currently is exercising statewide inspection 
authority to enforce many State standards. It describes procedures for 
the development and promulgation of additional safety standards, rule 
making power for enforcement of standards, laws, and orders in all 
places of employment in the State; the procedures for prompt restraint 
or elimination of imminent danger conditions; and procedures for 
inspection in response to complaints. The plan includes proposed draft 
legislation to be considered by the Utah Legislature during its 1973 
session amending title 35, chapter 1 of the Utah State Code and related 
provisions, to bring them into conformity with the requirements of part 
1902. Under this legislation all occupational safety and health 
standards and amendments thereto which have been promulgated by the 
Secretary of Labor, except those found in 29 CFR 1910.13, 1910.14, 
1910.15, and 1910.16 (ship repairing, shipbuilding, shipbreaking, and 
longshoring) will, after public hearing by the Utah agency be adopted 
and enforced by that agency. The plan sets forth a timetable for the 
proposed adoption of standards. The legislation will give the Utah 
Industrial Commission full authority to administer and enforce all laws, 
rules, and orders protecting employee safety and health in all places of 
employment in the State. It also proposes to bring the plan into 
conformity in procedures for providing prompt and effective standards 
for the protection of employees against new and unforeseen hazards and 
for furnishing information to employees on hazards, precautions, 
symptoms, and emergency treatment; and procedures for variances and the 
protection of employees from hazards. The proposed legislation will 
ensure employer and employee representatives an opportunity to accompany 
inspectors and call attention to possible violations before, during, and 
after inspections; protection of employees against discharge

[[Page 33]]

or discrimination in terms and conditions of employment; notice to 
employees of their protections and obligations; adequate safeguards to 
protect trade secrets; prompt notice to employers and employees of 
alleged violations of standards and abatement requirements; effective 
sanctions against employers; and employer's right to review alleged 
violations, abatement periods, and proposed penalties with opportunity 
for employee participation in the review proceedings.
    (b) Included in the plan is a statement of the Governor's support 
for the proposed legislation and a statement of legal opinion that it 
will meet the requirements of the Occupational Safety and Health Act of 
1970, and is consistent with the Constitution and laws of Utah. The plan 
sets out goals and provides a timetable for bringing it into full 
conformity with part 1902 of this chapter upon enactment of the proposed 
legislation by the State legislature.
    (c) The plan includes the following documents as of the date of 
approval:
    (1) The plan with appendixes.
    (2) A letter from Carlyle F. Gronning, Chairman of the Utah 
Industrial Commission to the Office of State Programs with an attached 
memo sheet of clarifications dated October 27, 1972.
    (3) A letter from Carlyle F. Gronning to the Office of State 
Programs dated December 3, 1972, clarifying issues raised in the plan 
review.
    (4) A letter from Carlyle F. Gronning to the Office of Federal and 
State Operations dated December 11, 1972, clarifying the remaining 
issues raised in the review process.

[38 FR 1179, Jan. 10, 1973, as amended at 50 FR 28780, July 16, 1985]



Sec. 1952.111  Developmental schedule.

    The Utah plan is developmental. The following is the schedule of 
developmental steps provided by the plan:
    (a) Introduction of resulting legislation in State Legislature 
during January 1973.
    (b) Expected enactment of the enabling legislation by March 1973.
    (c) Formal adoption of Federal standards and revocation of existing 
Utah State standards by September 1, 1973.
    (d) Adoption of safety standards for agriculture by September 1, 
1974.
    (e) Formal adoption of parts 1903, 1904, and 1905 of this chapter as 
rules and regulations of Utah by July 1974.
    (f) Effective date of new standards, commencement of State 
enforcement by September 1973.
    (g) A management information system by July 1, 1974.

[38 FR 1179, Jan. 10, 1973. Redesignated at 50 FR 28780, July 16, 1985]



Sec. 1952.112  Completion of developmental steps and certification.

    (a) In accordance with the requirements of 29 CFR 1952.110, the Utah 
State poster was approved by the Assistant Secretary on January 7, 1976.
    (b) In accordance with Sec. 1952.113(g), the State has developed and 
implemented a Management Information System.
    (c) In accordance with the requirements of 29 CFR 1952.110(b), the 
Utah Occupational Safety and Health Act, (chapter 9 of title 35 of the 
Utah State Code) effective July 1, 1973, was approved July 30, 1974.
    (d) In accordance with the requirements of 29 CFR 1952.113(e), State 
regulations substantially identical to 29 CFR parts 1903, 1904, and 
1905, have been adopted by the State and approved by the Assistant 
Secretary on March 3, 1976.
    (e) The State has developed and implemented rules of procedure for 
its review commission, consistent with present law.
    (f) The State plan has been amended to include an Affirmative Action 
Plan outlining the State's policy of equal employment opportunity.
    (g) In accordance with 29 CFR 1952.113 Utah has promulgated 
standards at least as effective as comparable Federal standards as set 
out in 41 FR 11635, regarding all issues covered by the plan.
    (h) In accordance with Sec. 1902.34 of this chapter, the Utah 
occupational safety and health plan was certified, effective as of the 
date of publication on November 19, 1976, as having completed all 
developmental steps specified in the plan

[[Page 34]]

as approved on January 4, 1973 on or before January 3, 1976.

[41 FR 1904, Jan. 13, 1976, as amended at 41 FR 10064, Mar. 9, 1976; 41 
FR 15005, Apr. 9, 1976; 41 FR 46599, Oct. 22, 1976; 41 FR 51016, Nov. 
19, 1976. Redesignated and amended at 50 FR 28780, July 16, 1985]



Sec. 1952.113  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984, Utah, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 10 safety and 9 health compliance officers. After opportunity for 
public comments and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements effective July 16, 1985.

[50 FR 28780, July 16, 1985]



Sec. 1952.114  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the Utah State plan for a 
period of at least one year following certification of completion of 
developmental steps (41 FR 51014). Based on the 18(e) Evaluation Report 
for the period of October 1, 1982 through March 31, 1984, and after 
opportunity for public comment, the Assistant Secretary determined that 
in operation the State of Utah's occupational safety health program is 
at least as effective as the Federal program in providing safe and 
healthful employment and places of employment and meets the criteria for 
final State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Utah plan was granted 
final approval and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective July 16, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Utah. The plan does not cover private sector maritime employment; 
employment on Hill Air Force Base; Federal government employers and 
employees; the U.S. Postal Service (USPS), including USPS employees, and 
contract employees and contractor-operated facilities engaged in USPS 
mail operations; the enforcement of the field sanitation standard, 29 
CFR 1928.110, and the enforcement of the temporary labor camps standard, 
29 CFR 1910.142, with respect to any agricultural establishment where 
employees are engaged in ``agricultural employment'' within the meaning 
of the Migrant and Seasonal Agricultural Worker Protection Act, 29 
U.S.C. 1802(3), regardless of the number of employees, including 
employees engaged in hand packing of produce into containers, whether 
done on the ground, on a moving machine, or in a temporary packing shed, 
except that Utah retains enforcement responsibility over agricultural 
temporary labor camps for employees engaged in egg, poultry, or red meat 
production, or the post-harvest processing of agricultural or 
horticultural commodities.
    (c) Utah is required to maintain a State program which is at least 
as effective as operations under the Federal program; to submit plan 
supplements in accordance with 29 CFR part 1953; to allocate sufficient 
safety and health enforcement staff to meet the benchmarks for State 
staffing established by the U.S. Department of Labor, or any revisions 
to those benchmarks; and, to furnish such reports in such form as the 
Assistant Secretary may from time to time require.

[50 FR 28780, July 16, 1985, as amended at 62 FR 2560, Jan. 17, 1997; 65 
FR 36620, June 9, 2000]

[[Page 35]]



Sec. 1952.115  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval of the Utah plan under section 18(e) of the Act, 
effective July 16, 1985, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Utah plan. This determination also 
relinquishes concurrent Federal OSHA authority to issue citations for 
violations of such standards under sections 5(a)(2) and (9) of the Act; 
to conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(f) and 
other inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal Act under section 17. The Assistant Secretary 
retains jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Utah plan. OSHA retains full authority over 
issues which are not subject to State enforcement under the plan. Thus, 
Federal OSHA retains its authority relative to safety and health 
enforcement in private sector maritime activities and will continue to 
enforce all provisions of the Act, rules or orders, and all Federal 
standards, current or future, specifically directed to maritime 
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine 
terminals; Part 1918, longshoring; Part 1919, gear certification), as 
well as provisions of general industry and construction standards (29 
CFR Parts 1910 and 1926) appropriate to hazards found in these 
employments. Federal jurisdiction is retained and exercised by the 
Employment Standards Administration, U.S. Department of Labor, 
(Secretary's Order 5-96, dated December 27, 1996) with respect to the 
field sanitation standard, 29 CFR 1928.110, and the enforcement of the 
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as 
described in Sec. 1952.114(b). Federal jurisdiction is also retained 
with regard to: all employment on the Hill Air Force Base; Federal 
government employers and employees; and the U.S. Postal Service (USPS), 
including USPS employees, and contract employees and contractor-operated 
facilities engaged in USPS mail operations. In addition, any hazard, 
industry, geographical area, operation or facility over which the State 
is unable to effectively exercise jurisdiction for reasons not related 
to the required performance or structure of the plan shall be deemed to 
be an issue not covered by the finally approved plan, and shall be 
subject to Federal enforcement. Where enforcement jurisdiction is shared 
between Federal and State authorities for a particular area, project, or 
facility, in the interest of administrative practicability, Federal 
jurisdiction may be assumed over the entire project or facility. In 
either of the two aforementioned circumstances, Federal enforcement may 
be exercised immediately upon agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such standards may 
not be Federally applied. In the event that the State's 18(e) status is 
subsequently withdrawn and Federal authority reinstated, all

[[Page 36]]

Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Utah State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement and/or proceedings for withdrawal of plan approval.

[50 FR 28780, July 16, 1985, as amended at 62 FR 2560, Jan. 17, 1997; 65 
FR 36620, June 9, 2000]



Sec. 1952.116  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW., Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 1999 Broadway Suite 1690, 
Denver, Colorado 80202-5716; and
Office of the Commissioner, Labor Commission of Utah, 160 East 300 
South, 3rd Floor, P.O. Box 146650, Salt Lake City, Utah 84114-6650.

[65 FR 36620, June 9, 2000]



Sec. 1952.117  Changes to approved plans.

    In accordance with part 1953 of this chapter, the following Utah 
plan changes were approved by the Assistant Secretary:
    (a) Legislation. (1) The State submitted an amendment to the Utah 
Administrative Rulemaking Act (chapter 46a, title 63, Utah Code 
Annotated 1953), which became effective on April 29, 1985, which 
provides for rulemaking procedures similar to those of Federal OSHA in 
sections pertaining to expansion of definitions; availability of 
proposed rule to the public; a set time period allowed for public 
comment; the time period provided for a requested hearing to be held; 
and, provisions for determining the validity or applicability of a rule 
in an action for declaratory judgment. The Assistant Secretary approved 
the amendment on October 24, 1988.
    (2) The State submitted amendments to its Occupational Safety and 
Health Act (chapter 69, Utah Code Annotated 1953), which became 
effective on April 29, 1985, which provide for seeking administrative 
warrants, clarify review procedures for the hearing examiner, provide 
for issuing a permanent standard no later than 120 days after 
publication of an emergency standard, and remove inconsistent 
requirements for adopting rules and regulations. The Assistant Secretary 
approved the amendments on October 24, 1988.
    (3) On March 29, 1994, the Assistant Secretary approved Utah's 
revised statutory penalty levels which are the same as the revised 
Federal penalty levels contained in section 17 of the Act as amended on 
November 5, 1990.
    (b) The Voluntary Protection Program. On December 30, 1993, the 
Assistant Secretary approved Utah's plan supplement, which is generally 
identical to the Federal Voluntary Protection Program.
    (c) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved Utah's plan amendment, dated July 
31, 1996, relinquishing coverage for the issues of field sanitation (29 
CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in agriculture 
(except for agricultural temporary labor camps associated with egg, 
poultry or red meat production, or the post-harvest processing of 
agricultural or horticultural commodities.) The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in Utah 
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.

[53 FR 43689, Oct. 28, 1988, as amended at 59 FR 2295, Jan. 14, 1994; 59 
FR 14555, Mar. 29, 1994; 62 FR 2561, Jan. 17, 1997]

[[Page 37]]



                          Subpart F--Washington

    Source: 38 FR 2422, Jan. 26, 1973, unless otherwise noted.



Sec. 1952.120  Description of the plan.

    (a)(1) The plan identifies the Department of Labor and Industries as 
the State agency designated to administer the plan throughout the State. 
It adopts the definition of occupational safety and health issues 
expressed in Sec. 1902.2(c)(1) of this chapter. The plan contains a 
standards comparison of existing and proposed State standards with 
Federal standards. All standards, except those found in 29 CFR parts 
1915, 1916, 1917, and 1918 (ship repairing, shipbuilding, shipbreaking 
and longshoring) will be adopted and enforced after public hearings 
within 1 year after the standards are found to be at least as effective 
by the Secretary of Labor.
    (2) The plan provides a description of personnel employed under a 
merit system; the coverage of employees of political subdivisions, 
procedures for the development and promulgation of standards, including 
standards for protection of employees against new and unforeseen 
hazards; and procedures for prompt restraint or elimination of imminent 
danger situations.
    (b)(1) The plan includes proposed draft legislation to be considered 
by the Washington Legislature during its 1973 legislative session 
creating a new chapter in title 49, Revised Code of Washington and 
repealing existing provisions, to bring it into conformity with the 
requirements of part 1902. Under the proposed legislation the Department 
of Labor and Industries will have full authority to enforce and 
administer laws respecting safety and health of employees in all 
workplaces of the State. The legislation further proposes to bring the 
State into conformity in areas such as variances and protection of 
employees from hazards.
    (2) The legislation is also intended to insure inspections in 
response to complaints; give employer and employee representatives an 
opportunity to accompany inspectors in order to aid inspections; 
notification of employees or their representatives when no compliance 
action is taken as a result of alleged violations, including informal 
review; notification of employees of their protections and obligations; 
protection of employees against discharge or discrimination in terms and 
conditions of employment; adequate safeguards to protect trade secrets; 
provision for prompt notice to employers and employees of alleged 
violations of standards and abatement requirements; effective sanctions 
against employers for violations of standards and orders; employer right 
of review to the Board of Industrial Insurance Appeals and then to the 
courts, and employee participation in review proceedings. The plan also 
proposes to develop a program to encourage voluntary compliance by 
employers and employees, including provision for on-site consultations.
    (c) The plan includes a statement of the Governor's support for the 
legislation and a legal opinion from the State attorney general that the 
legislation will meet the requirements of the Occupational Safety and 
Health Act of 1970 and is consistent with the Constitution and laws of 
Washington. The plan sets out goals and provides a timetable for 
bringing it into full conformity with part 1902 upon enactment of the 
proposed legislation.
    (d) The Washington plan includes the following documents as of the 
date of approval:
    (1) The plan description documents including draft legislation and 
appendices in two volumes;
    (2) Appendix 18, Standards Comparison;
    (3) Letter from William C. Jacobs, Director, Department of Labor and 
Industries to James W. Lake, Assistant Regional Director, OSHA, August 
11, 1972, submitting justifications for discretionary sanctions for 
serious violations and changing section 18(5) of WISHA to conform to the 
mandatory civil penalty for posting violations under OSHA;
    (4) Letter from John E. Hillier, Supervisor of Safety, Department of 
Labor and Industries to Thomas C. Brown, Director, Office of Federal and 
State Operations, August 19, 1972, submitting justifications on the 
sanction system and the review procedure in the Washington plan;
    (5) Letter from William C. Jacobs to Thomas C. Brown, September 19, 
1972,

[[Page 38]]

justifying the sanction system as proposed by Washington;
    (6) Letter from John E. Hillier to Thomas C. Brown, October 2, 1972, 
providing a detailed explanation of the procedure for review of 
citations proposed by Washington;
    (7) Letter from Stephen C. Way, Assistant Attorney General to Thomas 
C. Brown, October 19, 1972, clarifying several issues raised during the 
review process including revision in the draft legislation;
    (8) Letter from Stephen C. Way to the Assistant Secretary, January 
5, 1973, clarifying most of the remaining issues raised during the 
review process;
    (9) Letter from William C. Jacobs to the Assistant Secretary, 
January 12, 1973, revising the penalty structure in the draft 
legislation.
    (e) The public comments will also be available for inspection and 
copying with the plan documents.



Sec. 1952.121  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW., Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Suite 715, 1111 Third Avenue, 
Seattle, Washington, 98101-3212;
Office of the Director, Washington Department of Labor and Industries, 
General Administration Building, P.O. Box 44001, Olympia, Washington 
98504-4001; and
Office of the Director, Washington Department of Labor and Industries, 
General Administration Building, 7273 Linderson Way, SW., Tumwater, 
Washington, 98502.

[65 FR 36620, June 9, 2000]



Sec. 1952.122  Level of Federal enforcement.

    (a) Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this chapter 
under which an agreement has been entered into with Washington, 
effective May 30, 1975, and amended several times effective October 2, 
1979, May 29, 1981, April 3, 1987, and October 27, 1989; and based on a 
determination that Washington is operational in the issues covered by 
the Washington occupational safety and health plan, discretionary 
Federal enforcement authority under section 18(e) of the Act (29 U.S.C. 
667(e)) will not be initiated with regard to Federal occupational safety 
and health standards in issues covered under 29 CFR Parts 1910 and 1926, 
except as provided in this section. The U.S. Department of Labor will 
continue to exercise authority, among other things, with regard to:
    (1) Enforcement of new Federal standards until the State adopts a 
comparable standard;
    (2) Enforcement of all Federal standards, current and future, in the 
maritime issues covered by 29 CFR Parts 1915, 1917, 1918, and 1919 
(shipyards, marine terminals, longshoring, and gear certification), and 
enforcement of general industry and construction standards (29 CFR Parts 
1910 and 1926) appropriate to hazards found in these employments, as 
they relate to employment under the exclusive jurisdiction of the 
Federal government on the navigable waters of the United States, 
including but not limited to dry docks or graving docks, marine railways 
or similar conveyances (e.g., syncrolifts and elevator lifts), fuel 
operations, drilling platforms or rigs, dredging and pile driving, and 
diving;
    (3) Complaints and violations of the discrimination provisions of 
section 11(c) of the Act (29 U.S.C. 660(c));
    (4) Enforcement in situations where the State is refused entry and 
is unable to obtain a warrant or enforce its right of entry;
    (5) Enforcement of unique and complex standards as determined by the 
Assistant Secretary;
    (6) Enforcement in situations when the State is unable to exercise 
its enforcement authority fully or effectively;
    (7) Enforcement of occupational safety and health standards within 
the borders of all military reservations;
    (8) Enforcement at establishments of employers who are enrolled 
members of the Yakima Indian Nation, where such employers' 
establishments are located within the Yakima reservation;
    (9) Enforcement at Tribally-owned establishments or at 
establishments

[[Page 39]]

owned by enrolled members of the Colville Confederated Tribes, where 
such establishments are located within the Colville reservation;
    (10) Investigations and inspections for the purpose of evaluation of 
the Washington plan under sections 18(e) and (f) of the Act (29 U.S.C. 
667(e) and (f)); and
    (11) Enforcement of occupational safety and health standards with 
regard to all Federal government employers and employees; and the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations.
    (b) The OSHA Regional Administrator will make a prompt 
recommendation for the resumption of the exercise of Federal enforcement 
authority under section 18(e) of the Act (29 U.S.C. 667(e)) whenever, 
and to the degree, necessary to assure occupational safety and health 
protection to employees in Washington.

[65 FR 36621, June 9, 2000]



Sec. 1952.123  Developmental schedule.

    The Washington State plan is developmental. The following is the 
developmental schedule as provided by the plan:
    (a) Introduction of the legislation in the 1973 Legislative Session;
    (b) Public hearings and promulgation of occupational safety and 
health standards within 1 year after the proposed standards are found to 
be at least as effective by the Secretary of Labor;
    (c) Promulgation and adoption of rules and regulations concerning 
procedures for assuming all obligations and functions arising from the 
legislation within 1 year of its effective date;
    (d) Development and implementation of a data processing system 
(M.I.S.) 6 months after approval of the plan;
    (e) Achievement of training objectives by December 31, 1973;
    (f) Upgrading of the Division of Safety personnel following 
legislative action on recommendations submitted to the 1973 Legislature.



Sec. 1952.124  Completion of developmental steps and certification.

    (a) In accordance with the requirements of Sec. 1952.123(a) the 
Washington Industrial Safety and Health Act of 1973, hereinafter 
referred to as WISHA (S.B. 2386, RCW chapter 49.17), signed by the 
Governor on March 9, 1973, effective on June 7, 1973, was approved July 
3, 1974 (39 FR 25326).
    (b) In accordance with the requirements of Sec. 1952.10, the 
Washington State Poster submitted on October 6, 1975, was approved by 
the Assistant Secretary on December 17, 1975. In accordance with the 
State's formal assurance, the poster was revised, effective June 1, 
1982, to specify that public employees can only file discrimination 
complaints with the State because Federal jurisdiction under section 
11(c) of the Act does not apply to State public employees. This revised 
poster was approved by the Assistant Secretary on August 3, 1983.
    (c) The Washington State Compliance Operations Manual, modeled after 
the Federal Field Operations Manual, was developed by the State and was 
approved by the Assistant Secretary on March 19, 1976. The manual was 
subsequently revised on July 23, October 20, and December 1980, and was 
approved by the Assistant Secretary on January 26, 1982. A March 1, 
1983, revision to the manual which provided clarification of the 
difference between temporary and permanent variances in accordance with 
State formal assurances was approved by the Assistant Secretary on 
August 3, 1983.
    (d) In accordance with Sec. 1952.123(c), Washington regulations 
covering Reassumption of Jurisdiction were adopted by June 7, 1974, and 
were approved by the Assistant Secretary on March 19, 1976.
    (e) In accordance with Sec. 1952.123(e) Washington has completed the 
training as described in this section.
    (f) In accordance with Sec. 1952.123(d) Washington has developed and 
implemented a computerized Management Information System.
    (g) In accordance with Sec. 1952.123(f) Washington has completed the 
upgrading of salaries of safety personnel.
    (h) In accordance with Sec. 1952.123(c) Washington has adopted rules 
and regulations covering recordkeeping and reporting requirements.
    (i) An industrial hygiene operations manual, effective March 1, 
1980, with

[[Page 40]]

revisions effective July 1 and September 21, 1981, modeled after the 
Federal manual was approved by the Assistant Secretary on January 26, 
1982.
    (j) In accordance with Sec. 1952.123(c), the Washington Department 
of Labor and Industries adopted administrative regulations providing 
procedures for conduct and scheduling of inspections, extension of 
abatement dates, variances, employee complaints of hazards and 
discrimination, posting of citations and notices, effective May 14, 
1975, and revisions effective December 31, 1980, and July 22, 1981. 
Likewise, the Washington Board of Industrial Insurance Appeals adopted 
rules effective April 4, 1975, governing practice and procedure for 
contested cases with revision effective March 26, 1976. These 
regulations and rules were approved by the Assistant Secretary on 
January 26, 1982. In accordance with State formal assurances the State 
added provision to the regulations effective July 11, 1982, to require 
posting of redetermination notices, settlements, notices related to 
appeals; deleting an incorrect reference to administrative hearing 
procedures used in workers compensation cases; requiring settlement 
agreements to address abatement dates and penalty payments; and deleting 
a requirement to put discrimination complaints in writing. These changes 
were approved by the Assistant Secretary on August 3, 1983.
    (k) In accordance with Sec. 1902.34 of this chapter, the Washington 
occupational safety and health plan was certified effective January 26, 
1982, as having completed all developmental steps specified in the plan 
as approved on January 26, 1973 on or before January 26, 1976. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[40 FR 59345, Dec. 23, 1975, as amended at 41 FR 12655, Mar. 26, 1976; 
41 FR 17549, Apr. 27, 1976; 41 FR 23672, June 11, 1976; 41 FR 51016, 
Nov. 19, 1976; 47 FR 5889, 5891, Feb. 9, 1982; 48 FR 37025, Aug. 16, 
1983]



Sec. 1952.125  Changes to approved plans.

    (a) In accordance with part 1953 of this chapter, the following 
Washington plan changes were approved by the Assistant Secretary on 
August 4, 1980.
    (b) In accordance with subpart E of part 1953 of this chapter, the 
Assistant Secretary has approved the participation of the Washington 
Department of Labor and Industries in its November 17, 1989, agreement 
with the Colville Confederated Tribes, concerning an internal 
occupational safety and health program on the Colville reservation. 
Under this agreement, Washington exercises enforcement authority over 
non-Indian-owned workplaces under the legal authority set forth in its 
State plan. (Federal OSHA will exercise enforcement authority over 
Indian-owned or Tribal workplaces, as provided in 29 CFR 1952.122.)
    (c) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Washington's revised statutory penalty levels which are the 
same as the revised Federal penalty levels contained in section 17 of 
the Act as amended on November 5, 1990.

[45 FR 53459, Aug. 12, 1980, as amended at 55 FR 37467, Sept. 12, 1990; 
59 FR 14555, Mar. 29, 1994; 67 FR 60129, Sept. 25, 2002]

Subparts G-H [Reserved]



                        Subpart I--North Carolina



Sec. 1952.150  Description of the plan as initially approved.

    (a) The Department of Labor has been designated by the Governor of 
North Carolina to administer the plan throughout the State. The 
Department of Labor has entered into an agreement with the State Board 
of Health whereby the State Board of Health is to assist the Department 
of Labor in the administration and enforcement of occupational health 
standards. However, full authority for the promulgation and enforcement 
of occupational safety and health standards remains with the Department 
of Labor. The plan defines the covered occupational safety and health 
issues as defined by the Secretary of Labor in Sec. 1902.2(c)(1) of this 
chapter. Moreover, it is understood that the plan will cover all 
employers and employees in the State except those whose working 
conditions are not covered by the Federal act by virtue of section 
4(b)(1) thereof, dockside maritime and domestic workers. The

[[Page 41]]

Department of Labor is currently exercising statewide inspection 
authority to enforce many State standards. The plan describes procedures 
for the development and promulgation of additional laws, and orders in 
all places of employment in the State; the procedures for prompt 
restraint or elimination of imminent danger conditions; and procedures 
for inspections in response to complaints.
    (b) The plan includes proposed draft legislation to be considered by 
the North Carolina General Assembly during its 1973 session. Such 
legislation is designed to implement major portions of the plan and to 
bring it into conformity with the requirements of part 1902 of this 
chapter.
    (c) Under this legislation, all occupational safety and health 
standards and amendments thereto which have been promulgated by the 
Secretary of Labor, except those found in parts 1915, 1916, 1917, and 
1918 of this chapter (ship repairing, shipbuilding, shipbreaking, and 
longshoring) will be adopted upon ratification of the proposed 
legislation. Enforcement of such standards will take place 90 days 
thereafter.
    (d) The legislation will give the Department of Labor full authority 
to administer and enforce all laws, rules and orders protecting employee 
safety and health in all places of employment in the State. It also 
proposes to bring the plan into conformity in procedures for providing 
prompt and effective standards for the protection of employees against 
new and unforeseen hazards and for furnishing information to employees 
on hazards, precautions, symptoms, and emergency treatment; and 
procedures for variances.
    (e) The proposed legislation will insure employer and employee 
representatives an opportunity to accompany inspectors and to call 
attention to possible violations before, during, and after inspections; 
protection of employees against discharge or discrimination in terms and 
conditions of employment; notice to employees of their protections and 
obligations; adequate safeguards to protect trade secrets; prompt notice 
to employers and employees of alleged violations of standards and 
abatement requirements; effective sanctions against employers; and 
employer's right to review of alleged violations, abatement periods, and 
proposed penalties with opportunity for employee participation in the 
review proceedings.
    (f) The Plan also provides for the development of a program to 
encourage voluntary compliance by employers and employees.
    (g) The Plan includes a statement of the Governor's support for the 
proposed legislation and a statement of legal opinion that it will meet 
the requirements of the Occupational Safety and Health Act of 1970, and 
is consistent with the constitution and laws of North Carolina. The Plan 
sets out goals and provides a timetable for bringing it into full 
conformity with part 1902 upon enactment of the proposed legislation by 
the State legislature.
    (h) The North Carolina Plan includes the following documents as of 
the date of approval:
    (1) The Plan description document with appendixes.
    (2) Telegram from the Governor of North Carolina, James E. 
Holshouser, Jr., expressing his full support for the Occupational Safety 
and Health Act of North Carolina and his anticipation of its passage 
during the 1973 session of the North Carolina General Assembly.
    (3) Letter from W. C. Creel, Commissioner, North Carolina Department 
of Labor, to Mr. Thomas C. Brown, Director, Federal and State 
Operations, clarifying several issues raised during the review process.
    (4) Also available for inspection and copying with the Plan 
documents will be the public comments received during the review 
process.

[38 FR 3042, Feb. 1, 1973, as amended at 51 FR 2488, Jan. 17, 1986]



Sec. 1952.151  Developmental schedule.

    The North Carolina Plan is developmental. The following is the 
schedule of the developmental steps provided by the Plan:
    (a) It is estimated that the draft bill will be enacted by April 1, 
1973.
    (b) The Federal standards will be adopted on the date the bill is 
ratified.
    (c) A refresher course for inspectors will begin sixty (60) days 
after the enactment of the draft bill.

[[Page 42]]

    (d) Merit system examinations of current department of labor 
personnel will be completed within sixty (60) days after Federal 
acceptance of the State Plan.
    (e) The hiring of new personnel in both the department of labor and 
the State board of health will begin thirty (30) days after the 
department is assured that State and Federal funds are available. 
Tentative plans provide for both agencies to be fully staffed within six 
(6) months after the enactment of the bill.
    (f) All new personnel will receive official OSHA training in the 
National Institute of Training. Employment dates will generally 
correspond to dates established for the Institute schools.
    (g) Employers and employees will be notified of the availability of 
consultative services within ninety (90) days after ratification of the 
draft bill.
    (h) The Department of Labor will initiate a developmental plan for a 
``Management Information System'' on the date of Plan approval. This 
program is to be fully implemented in ninety (90) days after enactment 
of the proposed legislation.
    (i) The enforcement of standards will begin ninety (90) days after 
ratification of the draft bill.
    (j) A State Compliance Operations Manual is to be completed ninety 
(90) days after ratification of the draft bill.
    (k) The Commissioner will begin issuing administrative ``rules and 
regulations'' when necessary as stated in the draft bill ninety (90) 
days after ratification of the draft bill. Meanwhile, the Federal rules 
and regulations will be adopted and applied until the State rules and 
regulations are acceptable.
    (l) Safety programs for State employees will begin one (1) year and 
ninety (90) days after ratification of the draft bill, with full 
implementation scheduled a year later.
    (m) Safety programs for large counties and municipalities with over 
10,000 population will be initiated ninety (90) days after draft bill 
ratification. Full implementation will occur one (1) year later.
    (n) Safety programs for other counties and municipalities with 4,000 
to 10,000 population will be initiated within two (2) years and ninety 
(90) days after Plan grant is approved. Full implementation will occur 
three (3) years after grant award.
    (o) Safety programs for towns and other governing units having 
between 1,000 and 4,000 population will be initiated within two (2) 
years and ninety (90) days after Plan grant is approved, with full 
implementation within three years after grant award.
    (p) A State ``Safety and Health'' poster will be prepared within 
ninety (90) days after ratification of the draft bill.
    (q) The State of North Carolina will be fully operational with 
respect to agriculture 1 year and 90 days after enactment of the draft 
bill.

[38 FR 3042, Feb. 1, 1973. Redesignated at 51 FR 2488, Jan. 17, 1986]



Sec. 1952.152  Completion of developmental steps and certification.

    (a) In accordance with Sec. 1952.153(a) the Occupational Safety and 
Health Act of North Carolina (S.B. 342, Chapter 295) was enacted by the 
State legislature on May 1, 1973, and became effective on July 1, 1973.
    (b) In accordance with Sec. 1952.153(b), the North Carolina 
occupational safety and health standards identical to Federal standards 
(thru 12-3-74) have been promulgated and approved, as revised, by the 
Assistant Regional Director on March 11, 1975 (40 FR 11420).
    (c)(1) In accordance with Sec. 1952.153(p) and the requirements of 
29 CFR 1952.10, the North Carolina poster for private employers was 
approved by the Assistant Secretary on April 17, 1975.
    (2) In accordance with Sec. 1952.153(p) and the requirements of 29 
CFR 1952.10, the North Carolina poster for public employees was approved 
by the Assistant Secretary on April 20, 1976.
    (d) In accordance with Sec. 1952.153(q) full coverage of 
agricultural workers by the North Carolina Department of Labor began on 
April 1, 1974.
    (e) The State plan has been amended to include an Affirmative Action 
Plan in which the State outlines its policy of equal employment 
opportunity.
    (f) In accordance with Sec. 1952.153(c) all North Carolina 
compliance personnel have completed refresher training courses.

[[Page 43]]

    (g) In accordance with Sec. 1952.153(d) all occupational safety and 
health personnel in the North Carolina Department of Labor are covered 
by the State merit system which the U.S. Civil Service Commission (by 
letter dated January 22, 1976) has found to be in substantial conformity 
with the ``Standards for a Merit System of Personel Administration.'' 
Agreement with the North Carolina Department of Human Resources 
specifies that all health personnel cooperating in the State 
occupational safety and health program are likewise covered by the State 
merit system.
    (h) In accordance with Sec. 1952.153(f) all North Carolina 
compliance personnel have attended basic training courses at the OSHA 
Institute in Chicago.
    (i) In accordance with Sec. 1952.153(g) the North Carolina 
Department of Labor has publicly disseminated information on the 
availability of consultative services.
    (j) In accordance with Sec. 1952.153(h) a manual Management 
Information System which provides the quarterly statistical reports 
required by the Assistant Secretary as well as internal management data 
has been developed and is fully operational.
    (k) In accordance with Sec. 1952.153(i) State enforcement of 
standards began on July 1, 1973.
    (l) In accordance with Sec. 1952.153(k) the State has promulgated 
the following administrative ``rules and regulations'':
    (1) Regulation 7B.0100: Inspections, Citations and Proposed 
Penalties.
    (2) Regulation 7B.0300: Recording and Reporting of Occupational 
Injuries and Illnesses.
    (3) Regulation 7B.0400: Rules of Practice for Variances.
    (4) Regulation 7B.0500: Rules of Procedure for Promulgating, 
Modifying or Revoking Occupational Safety and Health Standards.
    (5) Regulation 7B.0700: State Advisory Council on Occupational 
Safety and Health.
    (m) The North Carolina Occupational Safety and Health Review Board 
has adopted Rules of Procedure governing its review of contested cases.
    (n) In accord with Sec. 1952.153(l), Safety programs for State 
employees were initiated and implemented.
    (o) In accord with Sec. 1952.153(m), Safety programs for large 
counties and municipalities with over 10,000 population were initiated 
and implemented.
    (p) In accord with Sec. 1952.153(n), Safety programs for other 
counties and municipalities with 4,000 to 10,000 population were 
initiated and implemented.
    (q) In accord with Sec. 1952.153(o), Safety programs for towns and 
other governing units having between 1,000 and 4,000 population were 
initiated and implemented.
    (r) In accord with Sec. 1952.153(e) and Sec. 1902.3(d) the North 
Carolina occupational safety and health program has been fully staffed.
    (s) In accordance with Sec. 1952.153(j) the State has developed and 
amended a Compliance Operations Manual which defines the procedures and 
guidelines to be used by the North Carolina compliance staff in carrying 
out the goals of the program.
    (t) In accordance with Sec. 1902.34 of this chapter, the North 
Carolina occupational safety and health plan was certified, effective 
October 5, 1976, as having completed on or before March 31, 1976 all 
development steps specified in the plan as approved on January 26, 1973.

[40 FR 18429, Apr. 28, 1975, as amended at 41 FR 17547, Apr. 27, 1976; 
41 FR 22562, June 4, 1976; 41 FR 41083, Sept. 21, 1976; 41 FR 43897-
43900, 43902, Oct. 5, 1976. Redesignated at 51 FR 2488, Jan. 17, 1986]



Sec. 1952.153  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (``benchmarks'') necessary for a ``fully 
effective'' enforcement program were required for each State operating 
an approved State plan. In September 1984, North Carolina, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised benchmarks of 50 safety and 27 
health compliance officers. After opportunity for public comment and 
service on the AFL-CIO, the Assistant Secretary approved these revised 
staffing requirements on January 17, 1986. In

[[Page 44]]

June 1990, North Carolina reconsidered the information utilized in the 
initial revision of its 1980 benchmarks and determined that changes in 
local conditions and improved inspection data warranted further revision 
of its benchmarks to 64 safety inspectors and 50 industrial hygienists. 
After opportunity for public comment and service on the AFL-CIO, the 
Assistant Secretary approved these revised staffing requirements on June 
4, 1996.

[61 FR 28055, June 4, 1996]



Sec. 1952.154  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 and 1996 
in response to a court order in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. 
Cir. 1978), and was satisfactorily providing reports to OSHA through 
participation in the Federal-State Integrated Management Information 
System, the Assistant Secretary evaluated actual operations under the 
North Carolina State plan for a period of at least one year following 
certification of completion of developmental steps (41 FR 43896). Based 
on the Biennial Evaluation Report covering the period of October 1, 
1993, through September 30, 1995, an 18(e) Evaluation Report covering 
the period October 1, 1995, through June 30, 1996, and after opportunity 
for public comment, the Assistant Secretary determined that in operation 
the State of North Carolina's occupational safety and health program is 
at least as effective as the Federal program in providing safe and 
healthful employment and places of employment and meets the criteria for 
final State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the North Carolina plan 
was granted final approval and concurrent Federal enforcement authority 
was relinquished under section 18(e) of the Act effective December 10, 
1996.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in North Carolina. The plan does not cover Federal government employers 
and employees; the U.S. Postal Service (USPS), including USPS employees, 
and contract employees and contractor-operated facilities engaged in 
USPS mail operations; the American National Red Cross; private sector 
maritime activities; employment on Indian reservations; enforcement 
relating to any contractors or subcontractors on any Federal 
establishment where the land has been ceded to the Federal Government; 
railroad employment; and enforcement on military bases.
    (c) North Carolina is required to maintain a State program which is 
at least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[61 FR 66601, Dec. 18, 1996, as amended at 65 FR 36621, June 9, 2000; 65 
FR 62612, Oct. 19, 2000]



Sec. 1952.155  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the North Carolina State plan under section 18(e) of 
the Act, effective December 10, 1996, occupational safety and health 
standards which have been promulgated under section 6 of the Act do not 
apply with respect to issues covered under the North Carolina Plan. This 
determination also relinquishes concurrent Federal OSHA authority to 
issue citations for violations of such standards under sections 5(a)(2) 
and 9 of the Act; to conduct inspections and investigations under 
section 8 (except those necessary to conduct evaluation of the plan 
under section 18(f) and other inspections, investigations, or 
proceedings necessary to carry out Federal responsibilities not 
specifically preempted by section 18(e)); to conduct enforcement 
proceedings in contested cases under section 10; to institute 
proceedings to correct imminent dangers under section

[[Page 45]]

13; and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal OSH Act under section 17. The Assistant 
Secretary retains jurisdiction under the above provisions in any 
proceeding commenced under section 9 or 10 before the effective date of 
the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the North Carolina plan. OSHA retains full 
authority over issues which are not subject to State enforcement under 
the plan. Thus, Federal OSHA retains its authority relative to safety 
and health in private sector maritime activities and will continue to 
enforce all provisions of the Act, rules or orders, and all Federal 
standards, current or future, specifically directed to private sector 
maritime activities (occupational safety and health standards comparable 
to 29 CFR Parts 1915, shipyard employment; 1917, marine terminals; 1918, 
longshoring; and 1919; gear certification, as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments); employment on Indian 
reservations; enforcement relating to any contractors or subcontractors 
on any Federal establishment where the land has been ceded to the 
Federal Government; railroad employment, not otherwise regulated by 
another Federal agency; and enforcement on military bases. Federal 
jurisdiction is also retained with respect to Federal government 
employers and employees; the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations; and the American National Red Cross.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons which OSHA determines are not related to the 
required performance or structure of the plan shall be deemed to be an 
issue not covered by the State plan which has received final approval, 
and shall be subject to Federal enforcement. Where enforcement 
jurisdiction is shared between Federal and State authorities for a 
particular area, project, or facility, in the interest of administrative 
practicability Federal jurisdiction may be assumed over the entire 
project or facility. In any of the aforementioned circumstances, Federal 
enforcement authority may be exercised after consultation with the State 
designated agency.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the North Carolina 
State plan. Thus, for example, the Assistant Secretary retains his 
authority under section 11(c) of the Act with regard to complaints 
alleging discrimination against employees because of the exercise of any 
right afforded to the employee by the Act, although such complaints may 
be referred to the State for investigation. The Assistant Secretary also 
retains his authority under section 6 of the Act to promulgate, modify 
or revoke occupational safety and health standards which address the 
working conditions of all employees, including those in States which 
have received an affirmative 18(e) determination, although such 
standards may not be Federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority reinstated, 
all Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the North Carolina State program to assure 
that the provisions of the State plan are substantially complied with 
and that the program remains at least as effective as the Federal 
program. Failure by the State to comply with its obligations may result 
in the revocation of the final approval determination under section 
18(e), resumption of Federal enforcement, and/or proceedings for 
withdrawal of plan approval.

[61 FR 66601, Dec. 18, 1996, as ameded at 65 FR 36621, June 9, 2000; 65 
FR 62612, Oct. 19, 2000]



Sec. 1952.156  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected

[[Page 46]]

and copied during normal business hours at the following locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Atlanta Federal Center, 61 
Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303; and
Office of the Commissioner, North Carolina Department of Labor, 4 West 
Edenton Street, Raleigh, North Carolina 27601-1092.

[65 FR 36621, June 9, 2000]



Sec. 1952.157  Changes to approved plan.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved North Carolina's revised statutory penalty levels which are the 
same as the revised Federal penalty levels contained in section 17 of 
the Act as amended on November 5, 1990.
    (2) [Reserved]
    (b) The Voluntary Protection Program. On June 24, 1994, the 
Assistant Secretary approved North Carolina's plan supplement, which is 
generally identical to the Federal STAR Voluntary Protection Program. 
North Carolina's ``Carolina'' VVP is limited to the STAR Program, and 
excludes the MERIT and DEMONSTRATION Programs. Also, injury rates must 
be at or below 50 percent of the State injury average rather than the 
National injury average.

[59 FR 39257, Aug. 2, 1994]



                             Subpart J--Iowa



Sec. 1952.160  Description of the plan as initially approved.

    (a)(1) The plan identifies the Bureau of Labor as the State agency 
designated to administer the plan throughout the State. Its 
responsibilities include both occupational safety and occupational 
health, the latter on a developmental basis. The plan defines the 
covered occupational safety and health issues as defined by the 
Secretary of Labor in 29 CFR 1902.2(c)(i). Under existing occupational 
safety and health legislation, effective July 1, 1972, Iowa has adopted 
as interim standards all the occupational safety and health standards 
and amendments thereto which had been promulgated by the Secretary of 
Labor, except those found in 29 CFR parts 1915, 1916, 1917 and 1918 
(Ship repairing, ship building, ship breaking and longshoring). Hearings 
have been held on the adoption, as permanent standards, of the standards 
in 29 CFR parts 1910 and 1926. Under its existing legislation, the 
Bureau of Labor has exercised statewide inspection authority to enforce 
State standards which are identical to Federal standards. The 
legislation covers all employers including the State and its political 
subdivisions and gives the Iowa Bureau of Labor full authority to 
administer and enforce all laws, rules, and orders protecting employee 
safety and health in all places of employment in the State.
    (2) The legislation contains procedures for the promulgation of 
standards, including standards for the prompt protection of employees 
against new and unforeseen hazards; furnishing information to employees 
on hazards, precautions, symptoms, and emergency treatment; procedures 
for granting temporary and permanent variances; and for the protection 
of employees from hazards. The law provides for inspections including 
inspections in response to complaints; ensures employer and employee 
representatives an opportunity to accompany inspectors and call 
attention to possible violations before, during and after inspections; 
protection of employees against discharge or discrimination in terms or 
conditions of employment through court suits brought by the Bureau of 
Labor; notice to employees of their protections and obligations under 
the State law; imminent danger abatement through court injunctions; 
safeguards to protect trade secrets; prompt notice to employers and 
employees of alleged violations of standards and abatement requirements; 
effective sanctions against employers; employer right to review of 
alleged violations, abatement periods, and proposed penalties with an 
opportunity for employee participation as parties; and employee review 
of any citation issued to the employee, in review proceedings before the 
independent Review Commission.

[[Page 47]]

    (3) The plan is developmental in the establishment of a compliance 
program for agriculture, mercantile and service employees; development 
of an occupational health program; developing a management information 
system; and hiring and training of staff under the existing State merit 
system.
    (b) Included in the plan is a statement of the Governor's support 
for the plan and a statement of legal opinion that the legislation will 
meet the requirements of the Occupational Safety and Health Act of 1970 
and is consistent with the Constitution and laws of Iowa. The plan sets 
out goals and provides a timetable for bringing it into full conformity 
with part 1902 at the end of three years after the commencement of 
operations under the plan.
    (c) The plan includes the following documents as of the date of 
approval:
    (1) The plan document with appendices;
    (2) Letters from Jerry L. Addy, Commissioner of Labor, dated January 
2, 1973, and March 21, 1973, with clarifications and modifications of 
the plan;
    (3) Iowa has also submitted the following regulations adopted by the 
State:
    (i) Chapter 3 of the Iowa Bureau of Labor Administrative Rules 
dealing with inspections, citations, and proposed penalties, adopted 
July 25, 1972;
    (ii) Chapter 4 of the Iowa Bureau of Labor Administrative Rules 
dealing with recording and reporting occupational injuries and illnesses 
adopted July 11, 1973, and amended July 25, 1972;
    (iii) Chapter 5 of the Iowa Bureau of Labor Administrative Rules 
dealing with rules of practice for variances, limitations, variations, 
tolerances, and exemptions adopted July 25, 1972, and amended October 5, 
1972.

These adopted rules and regulations which were not part of the plan as 
originally submitted will be evaluated in accordance with the review of 
completions of developmental steps in State plans.

[37 FR 19370, July 20, 1973, as amended at 50 FR 27243, July 2, 1985]



Sec. 1952.161  Developmental schedule.

    The Iowa State plan is developmental. The following is the 
developmental schedule as amended and provided by the plan:
    (a) Enabling legislation becomes effective (Chapter 88 of Iowa 
Code)--July 1972.
    (b) Corrective amendments to Chapter 88 of Iowa Code become 
effective--July 1975.
    (c) Adoption of Federal Standards as interim State standards--July 
1972.
    (d) Promulgation of Federal Standards as permanent State standards--
July 1973.
    (e) Development of training program for employers and employees--
October 1974.
    (f) Complete hiring of additional staff--April 1975.
    (g) Basic training of staff--May 1975.
    (h) Development of approved Manual MIS--July 1972.
    (i) Commencement of compliance activities--July 1972.
    (j) Development of compliance programs in Agriculture, Mercantile, 
and Services--August 1975.
    (k) Development of on-site consultation program--September 1975.
    (l) Development of State poster--August 1975.

[41 FR 18836, May 7, 1976. Redesignated at 50 FR 27243, July 2, 1985]



Sec. 1952.162  Completion of developmental steps and certification.

    (a) In accordance with the requirements of Sec. 1952.10, the Iowa 
State poster was approved by the Assistant Secretary on August 26, 1975.
    (b) In accordance with the requirements of Sec. 1952.163(b), the 
Iowa Occupational Safety and Health Act of 1972 (Iowa S.F. 1218--Chapter 
88) is amended by Iowa Act S.F. 92, with an effective date of July 1, 
1975.
    (c) In accordance with the commitment contained in Sec. 1952.163(a), 
the State of Iowa enacted occupational safety and health enabling 
legislation which became effective on July 1, 1972.
    (d) In accordance with the commitment contained in Sec. 1952.163(f), 
the State of Iowa, as of April 24, 1974, hired a sufficient number of 
qualified safety and health personnel under the approved Iowa Merit 
Employment Department system.
    (e) In accordance with the commitment contained in Sec. 1952.163(g), 
all basic

[[Page 48]]

training of Iowa compliance personnel was completed as of May 9, 1975.
    (f) In accordance with the commitment contained in Sec. 1952.163(e), 
a program of education and training of employers and employees was 
developed with local community colleges as of October 1974.
    (g) In accordance with the commitment contained in Sec. 1952.163(h), 
the Iowa Bureau of Labor developed an approved manual Management 
Information System as of July 1972.
    (h) In accordance with the commitment contained in Sec. 1952.163(k), 
the Iowa Bureau of Labor initiated an approved program of on-site 
consultation as of September 1975.
    (i) In accordance with the commitment contained in Sec. 1952.163(c), 
the State of Iowa adopted Federal standards as interim State standards 
under chapter 88 of the Iowa Code, effective on July 1, 1972.
    (j) In accordance with the commitment contained in Sec. 1952.163(d), 
the State of Iowa promulgated Federal occupational safety and health 
standards (29 CFR parts 1910 and 1926) as permanent State Standards as 
of August 16, 1973.
    (k) In accordance with the commitment contained in Sec. 1952.163(i), 
the Iowa Bureau of Labor began its compliance activities in July 1973.
    (l) In accordance with the commitment contained in Sec. 1952.163(j), 
the Iowa Bureau of Labor implemented compliance programs in the 
agriculture, mercantile, and service issues by July 1975.
    (m) In accordance with Sec. 1902.34 of this chapter, the Iowa safety 
and health plan program was certified on September 14, 1976 as having 
completed all developmental steps in its plan with regard to those 
occupational safety and health issues specified in the plan on or before 
July 20, 1976.
    (n) Amendment to Chapter 4, Recording and Reporting Occupational 
Injuries and Illnesses. Clarifications of the Iowa recordkeeping and 
reporting rules.
    (o) Amendment to Chapter 6, IOSH Consultative Services and Training. 
Detailed procedures for safety consultants when they find a serious or 
imminent danger hazard.
    (p) Modifications to the Iowa Plan. Minor revisions to the Iowa plan 
dealing with present staffing, position statements, legislative changes, 
and current responsibilities of divisions in the Iowa Bureau of Labor.

[40 FR 40157, Sept. 2, 1975, as amended at 41 FR 23671, June 11, 1976; 
41 FR 39028, Sept. 14, 1976; 44 FR 11067, Feb. 27, 1979. Redesignated 
and amended at 50 FR 27243, July 2, 1985]



Sec. 1952.163  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984, Iowa, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 16 safety and 13 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements effective July 2, 1985.

[50 FR 27243, July 2, 1985]



Sec. 1952.164  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the Iowa State plan for a 
period of at least one year following certification of completion of 
developmental steps (41 FR 39027). Based on the 18(e) Evaluation Report 
for the period of October 1982 through March 1984, and after opportunity 
for public comment, the Assistant Secretary determined that in 
operation, the State of Iowa occupational safety and health program is 
at least as effective as the Federal

[[Page 49]]

program in providing safe and healthful employment and places of 
employment and meets the criteria for final State plan approval in 
section 18(e) of the Act and implementing regulations at 29 CFR part 
1902. Accordingly, the Iowa plan was granted final approval and 
concurrent Federal enforcement authority was relinquished under section 
18(e) of the Act effective July 2, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Iowa. The plan does not cover private sector maritime employment; 
Federal government-owned, contractor-operated military/munitions 
facilities; Federal government employers and employees; the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations; bridge 
construction projects spanning the Mississippi and Missouri Rivers 
between Iowa and other States; the enforcement of the field sanitation 
standard, 29 CFR 1928.110, and the enforcement of the temporary labor 
camps standard, 29 CFR 1910.142, with respect to any agricultural 
establishment where employees are engaged in ``agricultural employment'' 
within the meaning of the Migrant and Seasonal Agricultural Worker 
Protection Act, 29 U.S.C. 1802(3), regardless of the number of 
employees, including employees engaged in hand packing of produce into 
containers, whether done on the ground, on a moving machine, or in a 
temporary packing shed, except that Iowa retains enforcement 
responsibility over agricultural temporary labor camps for employees 
engaged in egg, poultry, or red meat production, or the post-harvest 
processing of agricultural or horticultural commodities.
    (c) Iowa is required to maintain a State program which is at least 
as effective as operations under the Federal program; to submit plan 
supplements in accordance with 29 CFR part 1953; to allocate sufficient 
safety and health enforcement staff to meet the benchmarks for State 
staffing established by the U.S. Department of Labor, or any revisions 
to those benchmarks; and, to furnish such reports in such form as the 
Assistant Secretary may from time to time require.

[50 FR 27243, July 2, 1985, as amended at 62 FR 2561, Jan. 17, 1997; 65 
FR 36622, June 9, 2000]



Sec. 1952.165  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval of the Iowa plan under section 18(e) of the Act, 
effective July 2, 1985, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Iowa plan. This determination also 
relinquishes concurrent Federal OSHA authority to issue citations for 
violations of such standards under section 5(a)(2) and 9 of the Act; to 
conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(f) and 
other inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal Act under section 17. The Assistant Secretary 
retains jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Iowa plan. OSHA retains full authority over 
issues which are not subject to State enforcement under the plan. Thus, 
Federal OSHA retains its authority relative to safety and health in 
private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to maritime employment (29 CFR 
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification), as well as

[[Page 50]]

provisions of general industry and construction standards (29 CFR Parts 
1910 and 1926) appropriate to hazards found in these employments; 
Federal government-owned, contractor-operated military/munitions 
facilities; bridge construction projects spanning the Mississippi and 
Missouri Rivers between Iowa and other States. Federal jurisdiction is 
retained and exercised by the Employment Standards Administration, U.S. 
Department of Labor, (Secretary's Order 5-96, dated December 27, 1996) 
with respect to the field sanitation standard, 29 CFR 1928.110, and the 
enforcement of the temporary labor camps standard, 29 CFR 1910.142, in 
agriculture, as described in Sec. 1952.164(b). Federal OSHA will also 
retain authority for coverage of all Federal government employers and 
employees; and of the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
finally approved plan, and shall be subject to Federal enforcement. 
Where enforcement jurisdiction is shared between Federal and State 
authorities for a particular area, project, or facility, in the interest 
of administrative practicability, Federal jurisdiction may be assumed 
over the entire project or facility. In either of the two aforementioned 
circumstances, Federal enforcement may be exercised immediately upon 
agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such standards may 
not be Federally applied. In the event that the State's 18(e) status is 
subsequently withdrawn and Federal authority reinstated, all Federal 
standards, including any standards promulgated or modified during the 
18(e) period, would be federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Iowa State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 27243, July 2, 1985, as amended at 62 FR 2561, Jan. 17, 1997; 65 
FR 36622, June 9, 2000]



Sec. 1952.166  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, City Center Square, 1100 Main 
Street, Suite 800, Kansas City, Missouri 64105; and
Office of the Commissioner, Iowa Division of Labor , 1000 E. Grand 
Avenue, Des Moines, Iowa 50319.

[65 FR 36622, June 9, 2000]



Sec. 1952.167  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Iowa's revised statutory penalty levels which are the same as 
the revised Federal penalty levels contained in section

[[Page 51]]

17 of the Act as amended on November 5, 1990.
    (2)  [Reserved]
    (b) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved Iowa's plan amendment, dated 
August 2, 1996, relinquishing coverage for the issues of field 
sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) 
in agriculture (except for agricultural temporary labor camps associated 
with egg, poultry or red meat production, or the post-harvest processing 
of agricultural or horticultural commodities). The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in Iowa 
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.

[59 FR 14555, Mar. 29, 1994, as amended at 62 FR 2561, Jan. 17, 1997]



                          Subpart K--California



Sec. 1952.170  Description of the plan.

    (a) The State's program will be enforced by the Division of 
Industrial Safety of the Department of Industrial Relations of the 
California Agriculture and Services Agency. Current safety and health 
standards will be continued unless amended by a State occupational 
safety and health standards board to be created. This board will take 
the amending action necessary to assure that State standards are as 
effective as those established under the Federal program. Appeals from 
the granting or denial of requests for variances will also come within 
the jurisdiction of this board. Administrative adjudications will be the 
responsibility of the California Occupational Safety and Health Appeals 
Board.
    (b) The State program is expected to extend its protection to all 
employees in the State (including those employed by it and its political 
subdivisions) except those employed by Federal agencies, certain 
maritime workers, household domestic service workers, and railroad 
workers not employed in railroad shops. (It is assumed that activities 
excluded from the Occupational Safety and Health Act's jurisdiction by 
section 4(b)(1) (29 U.S.C. 653(b)(1)) will also be excluded from the 
State's jurisdiction under this plan.)
    (c) The plan includes procedures for providing prompt and effective 
standards for the protection of employees against new and unforeseen 
hazards and for furnishing information to employees on hazards, 
precautions, symptoms, and emergency treatment; and procedures for 
variances and the protection of employee from hazards. It provides 
employer and employee representatives an opportunity to accompany 
inspectors and call attention to possible violations before, during, and 
after inspections, protection of employees against discharge or 
discrimination in terms and conditions of employment, notice to 
employees or their representatives when no compliance action is taken 
upon complaints, including informal review, notice to employees of their 
protections and obligations, adequate safeguards to protect trade 
secrets, prompt notice to employers and employees of alleged violations 
of standards and abatement requirements, effective remedies against 
employers, and the right to review alleged violations, abatement 
periods, and proposed penalties with opportunity for employee 
participation in the review proceedings; procedures for prompt restraint 
or elimination of imminent danger conditions, and procedures for 
inspection in response to complaints.
    (d) Based on an analysis of California's standards comparison, the 
State's standards corresponding to subparts F and K of this part, and 
Sec. 1910.263 of this (chapter) in subpart R of this part, of the OSHA 
standards have been determined to be at least as effective. These State 
standards contain no product standards corresponding to subpart F 
State's developmental schedule provides that the remaining subparts will 
be covered by corresponding State standards which are at least as 
effective within 1 year of plan approval.
    (e) The plan includes a statement of the Governor's support for the 
proposed legislation and a statement of legal opinion that it will meet 
the requirements of the Occupational Safety and Health Act of 1970, and 
is consistent with the constitution and laws of California. The plan 
sets out goals and provides a timetable for bringing it

[[Page 52]]

into full conformity with part 1902 of this chapter upon enactment of 
the proposed legislation by the State legislature. A merit system of 
personnel administration will be used. In addition, efforts to achieve 
voluntary compliance by employers and employees will include both on- 
and off-site consultations. The plan is supplemented by letters dated 
March 21, 1973, and April 10, 1973, from A. J. Reis, Assistant Secretary 
for Occupational Safety and Health of the Agriculture and Service Agency 
of the State of California.

[38 FR 10719, May 1, 1973]



Sec. 1952.171  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 71 Stevenson Street, 4th 
Floor, San Francisco, California 94105; and
Office of the Director, California Department of Industrial Relations, 
455 Golden Gate Avenue, 10th Floor, San Francisco 94102.

[65 FR 36622, June 9, 2000]



Sec. 1952.172  Level of Federal enforcement.

    (a) Pursuant to Secs. 1902.20(b)(1)(iii) and 1952.3 of this chapter, 
under which a revised agreement has been entered into between Frank 
Strasheim, OSHA Regional Administrator, and Ron Rinaldi, Director, 
California Department of Industrial Relations, effective October 5, 
1989, and based on a determination that California is operational in the 
issues covered by the California occupational safety and health plan, 
discretionary Federal enforcement authority under section 18(e) of the 
Act (29 U.S.C. 667(e)) will not be initiated with regard to Federal 
occupational safety and health standards in issues covered under 29 CFR 
part 1910, 29 CFR part 1926, and 29 CFR part 1928, except as set forth 
below.
    (b) The U.S. Department of Labor will continue to exercise 
authority, among other things, with regard to:
    (1) Specific Federal standards which the State has not yet adopted 
or with respect to which the State has not amended its existing State 
standards when the Federal standard provides a significantly greater 
level of worker protection than the corresponding Cal/OSHA standard, 
enforcement of new permanent and temporary emergency Federal standards 
until such time as the State shall have adopted equivalent standards, 
and enforcement of unique and complex standards as determined by the 
Assistant Secretary.
    (2) The following maritime activities:
    (i) Longshore operations on vessels from the shore side of the means 
of access to said vehicles.
    (ii) Marine vessels construction operations (from the means of 
access of the shore).
    (iii) All afloat marine ship building and repair from the foot of 
the gangway.
    (iv) All ship building and repair in graving docks or dry docks.
    (v) All ship repairing done in marine railways or similar 
conveyances used to haul vessels out of the water.
    (vi) All floating fuel operations.
    (vii) All afloat dredging and pile driving and similar operations.
    (viii) All diving from vessels afloat on the navigable waters.
    (ix) All off-shore drilling rigs operating outside the 3-mile limit.
    (3) Any hazard, industry, geographical area, operation or facility 
over which the State is unable to exercise jurisdiction fully or 
effectively.
    (4) Private contractors on Federal installations where the Federal 
agency claims exclusive Federal jurisdiction, challenges State 
jurisdiction and/or refuses entry to the State; such Federal enforcement 
will continue at least until the jurisdictional question is resolved at 
the National level between OSHA and the cognizant Federal agency.
    (5) Complaints filed with Federal OSHA alleging discrimination under 
section 11(c) of the OSH Act.
    (6) Completion of Federal enforcement actions initiated prior to the 
effective date of the agreement.

[[Page 53]]

    (7) Situations where the State is refused entry and is unable to 
obtain a warrant or enforce the right of entry.
    (8) Enforcement in situations where the State temporarily is unable 
to exercise its enforcement authority fully or effectively.
    (9) Federal government employers and employees; and the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations.
    (c) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the California State program to assure that 
the provisions of the State plan are substantially complied with and 
that the program remains at least as effective as the Federal program. 
The Regional Administrator for Occupational Safety and Health will make 
a prompt recommendation for the resumption of the exercise of Federal 
enforcement authority under section 18(e) of the Act (29 U.S.C. 667(e)) 
whenever, and to the degree, necessary to assure occupational safety and 
health protection to employees in California.

[55 FR 28613, July 12, 1990, as amended at 65 FR 36622, June 9, 2000]



Sec. 1952.173  Developmental schedule.

    (a) Within 1 year following plan approval, legislation will be 
enacted authorizing complete implementation of the plan and enforcement 
rules and regulations will be promulgated, and an operations manual be 
completed.
    (b) By October 31, 1975, present standards will be amended or new 
standards promulgated which are as effective and comprehensive as those 
set forth in chapter XVII of this title 29 of the Code of Federal 
Regulations;
    (c) An exception to paragraphs (a) and (b) of this section exists 
relative to radiation machines and other non-Atomic Energy Act sources 
of radiation. The standards and enforcement program in this area will be 
developed within 2 years of plan approval.
    (d) Inter-agency agreements to provide technical support to the 
program will be fully functioning within 1 year of plan approval.
    (e) Inservice training plans for enforcement personnel will be 
developed within 18 months of plan approval.
    (f) A program of consultation with employers and employees will be 
functioning within 6 months of plan approval.
    (g) Within 3 years of plan approval all developmental steps will be 
fully implemented.
    (h) The Inspection Scheduling System will be fully implemented and 
in operation March 31, 1975.

[38 FR 10719, May 1, 1973, as amended at 40 FR 18429, Apr. 28, 1975; 40 
FR 40156, Sept. 2, 1975]



Sec. 1952.174  Completion of developmental steps and certification.

    (a)(1) In accordance with Sec. 1952.173(a), The California 
Occupational Safety and Health Act (Assembly Bill No. 150) was enacted 
in September 1973 and filed with the California Secretary of State 
October 2, 1973.
    (2) The following difference between the program described in 
Sec. 1952.170(a) and the program authorized by the State law is 
approved: Authority to grant or deny temporary variances rests with the 
Division of Industrial Safety, and such authority for permanent 
variances is with the Occupational Safety and Health Standards Board. 
The Board hears appeals from the Division of Industrial Safety's 
decisions on temporary variances.
    (b) In accordance with Sec. 1952.173(d) formal interagency 
agreements were negotiated and signed between the Department of 
Industrial Relations and the State Department of Health (June 28, 1973) 
and between the State Department of Industrial Relations and the State 
Fire Marshal (August 14, 1973).
    (c) In accordance with Sec. 1952.173(f), a program of consultation 
with employers and employees was fully functioning in January 1974.
    (d) In accordance with the requirements of Sec. 1952.10, the 
California State poster was approved by the Assistant Secretary on 
August 27, 1975.
    (e) The Occupational Safety and Health Standards Board began 
functioning in January 1974.
    (f) The initial major training and education of employers, employees 
and

[[Page 54]]

the general public was completed by 1974.
    (g) In accordance with Sec. 1952.173(a), recordkeeping and reporting 
requirements were extended to State and local governments effective 
January 1, 1975.
    (h) The Management Information System was established by November 
1974.
    (i) The Occupational Safety and Health Appeals Board began 
functioning in early 1974. The Rules of Procedure for the Board were 
approved by the Assistant Secretary on November 19, 1975.
    (j) In accordance with Sec. 1952.173(a), enforcement rules and 
regulations were promulgated by January 1974, and were approved by the 
Assistant Secretary on September 28, 1976.
    (k) Recordkeeping and reporting requirements for private employers 
were promulgated by November 1974, and were approved by the Assistant 
Secretary on September 28, 1976.
    (l) In accordance with Sec. 1952.173(h), the Inspection Scheduling 
System was fully implemented and in operation by June 1975.
    (m) In accordance with Sec. 1952.173(a), an operations manual was 
published, and was approved by the Assistant Secretary on September 28, 
1976.
    (n) In accordance with Sec. 1952.173(e), in-service training 
Programs for safety and health enforcement personnel were implemented 
within 18 months of plan approval.
    (o) Enforcement of standards pertaining to temporary labor camps was 
implemented in March 1977.
    (p) In accordance with Sec. 1903.34 of this chapter, the California 
occupational safety and health plan was certified, effective August 12, 
1977, as having completed all developmental steps specified in the plan 
as approved on April 24, 1973, on or before June 1, 1976, with the 
exception that temporary labor camp standards development and 
enforcement program was completed on March 11, 1977.

[40 FR 18427, Apr. 28, 1975, as amended at 40 FR 40156, Sept. 2, 1975; 
40 FR 54426, Nov. 24, 1975; 41 FR 43405, Oct. 1, 1976; 41 FR 51013, Nov. 
19, 1976; 42 FR 37549, July 22, 1977; 42 FR 41858, Aug. 19, 1977]



Sec. 1952.175  Changes to approved plans.

    (a) In accordance with part 1953 of this chapter, the California 
carcinogen program implemented on January 1, 1977, was approved by the 
Assistant Secretary on March 6, 1978.
    (b) On January 1, 1978, the California Department of Industrial 
Relations became the agency designated to administer the California 
Occupational Safety and Health Plan.
    (c) In accordance with part 1953 of this chapter, California amended 
its employer recordkeeping and reporting requirements effective November 
4, 1978, so as to provide employee access to the employer's log and 
summary of occupational injuries and illnesses.
    (d) In accordance with part 1953 of this chapter, California's 
liaison with the Occupational Health Centers, implemented on April 25, 
1979, was approved by the Assistant Secretary on July 25, 1980.
    (e) In accordance with part 1953 of this chapter, the California 
Hazard Alert System, implemented in July 1979, was approved by the 
Assistant Secretary on July 25, 1980.
    (f) In accordance with part 1953 of this chapter, the revised 
stratification of the Safety Engineer Series, adopted by California on 
July 1, 1979, was approved by the Assistant Secretary on January 12, 
1981.
    (g) In accordance with part 1953 of this chapter, California's Small 
Employer Voluntary Compliance Program, implemented on March 1, 1981, was 
approved by the Assistant Secretary on August 2, 1983.
    (h) In accordance with part 1953 of this chapter, the California 
Cooperative Self-Inspection Program was approved by the Assistant 
Secretary on August 1, 1986.
    (i) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved California's revised statutory penalty levels which are the 
same as the revised Federal penalty levels contained in section 17 of 
the Act as amended on November 5, 1990.

[43 FR 9807, Mar. 10, 1978, as amended at 44 FR 36385, June 22, 1979; 45 
FR 8594, Feb. 8, 1980; 45 FR 51766, Aug. 5, 1980; 46 FR 3861, Jan. 16, 
1981; 48 FR 34951, Aug. 2, 1983; 51 FR 27535, Aug. 1, 1986; 59 FR 14556, 
Mar. 29, 1994; 67 FR 60129, Sept. 25, 2002]

[[Page 55]]

Subparts L-M [Reserved]



                          Subpart N--Minnesota



Sec. 1952.200  Description of the plan as initially approved.

    (a) The Department of Labor and Industry is the State agency 
designated by the Governor to administer the plan throughout the State. 
The plan defines the covered occupational safety and health issues as 
defined by the Secretary of Labor in 29 CFR 1902.2(c)(1). The 
commissioner of the Department of Labor and Industry adopted Federal 
standards promulgated as of October 1972, effective in Minnesota, 
February 1973. The commissioner will continue to adopt Federal standards 
and will retain those Minnesota standards not covered by Federal 
standards. The plan contains a list of the Federal standards adopted and 
the State standards that will be retained. These standards will be 
enforced according to current legislative authority in Minnesota prior 
to the effective date of Minnesota's enabling legislation submitted as 
part of the plan.
    (b)(1) The plan includes legislation enacted by the Minnesota 
legislature during its 1973 session. Under the legislation the 
Department of Labor and Industry will have full authority to enforce and 
administer laws respecting safety and health of employees in all 
workplaces of the State, including coverage of public employees, with 
the exception of maritime workers in the areas of exclusive Federal 
jurisdiction, employees of the United States, and employees whose 
working conditions are regulated by Federal agencies other than the U.S. 
Department of Labor under the provisions of section 4(b)(1) of the 
Occupational Safety and Health Act of 1970.
    (2) The legislation further proposed to bring the plan into 
conformity with the requirements of 29 CFR part 1902 in areas such as 
procedures for granting or denying temporary and permanent variances by 
the commissioner; protection of employees from hazards; procedures for 
the development and promulgation of standards by the commissioner, 
including emergency temporary standards; and procedures for prompt 
restraint or elimination of imminent danger situations by issuance of a 
``red-tag'' order effective for 3 days as well as by court injunction.
    (3) The legislation is also intended to insure inspections in 
response to complaints; give employer and employee representatives an 
opportunity to accompany inspectors in order to aid inspections and that 
loss of any privilege or payment to an employee as a result of aiding 
such inspection would constitute discrimination; notification of 
employees or their representatives where no compliance action is taken 
as a result of alleged violations, including informal review; 
notification of employees of their protections and obligations; 
protection of employees against discharge or discrimination in terms and 
conditions of employment by filing complaints with the commissioner and 
hearings by the review commission; adequate safeguards to protect trade 
secrets; provision for prompt notice to employers and employees of 
alleged violations of standards and abatement requirements through the 
issuance and posting of citations; a system of sanctions against 
employers for violation of standards; employer right of review and 
employee participation in review proceedings, before an independent 
review commission; and coverage of employees of the State and political 
subdivisions in the same manner as private employees.
    (c) Included in the plan is a statement of the Governor's support 
for the legislation and a statement of legal opinion that it will meet 
the requirements of the Occupational Safety and Health Act of 1970 and 
is consistent with the constitution and laws of Minnesota. The plan sets 
out goals and provides a timetable for bringing it into full conformity 
with part 1902 at the end of 3 years after commencement of operations 
under the plan. Personnel will be employed under the existing State 
merit system and the voluntary compliance program for onsite 
consultation for private and public employers meets the conditions set 
forth in the issues discussed in the Washington decision (38 FR 2421, 
January 26, 1973).
    (d) The plan includes the following documents as of the date of 
approval:

[[Page 56]]

    (1) The plan document and appendices;
    (2) Revised legislation, submitted January 25, 1973;
    (3) Compliance manual and supplements to the plan document, February 
15, 1973;
    (4) Letters from the Department of Labor and Industry dated February 
8, 1973, and April 9, 1973.

[38 FR 15077, June 8, 1973, as amended at 50 FR 30831, July 30, 1985]



Sec. 1952.201  Developmental schedule.

    (a) Retraining of present occupational safety and health personnel 
during March-May 1973;
    (b) Training sessions for public employers and employees during 
April-June 1973;
    (c) Effective date of legislation, August 1, 1973;
    (d) Regulations on variances, August 1973;
    (e) Management information system, August 1973;
    (f) Staff increases in Department of Labor and Industry and 
Department of Health 1973-74;
    (g) Voluntary compliance program implemented by January 1975;
    (h) Coverage and enforcement of standards regarding agriculture, 
July 1975.

[38 FR 15077, June 8, 1973. Redesignated at 50 FR 30831, July 30, 1985]



Sec. 1952.202  Completion of developmental steps and certification.

    (a) In accordance with the requirements of Sec. 1952.10, the 
Minnesota State poster was approved by the Assistant Secretary on March 
7, 1975.
    (b) In accordance with Sec. 1952.203(g), the Minnesota voluntary 
compliance program became effective on January 1, 1975, and was approved 
by the Assistant Secretary on April 24, 1975.
    (c) State occupational safety and health personnel were retrained 
during March-May 1973.
    (d) Training sessions for public employers and employees were held 
during April-June 1973.
    (e) The Minnesota enabling legislation became effective on August 1, 
1973. In addition, amendments to the legislation which concerned 
employee discrimination complaints and violations became effective on 
July 1, 1975, and a second amendment concerning the definition of a 
serious violation, posting of citations and penalties, right of 
employees to contest a citation and penalty, and furnishing copies of 
citations and notices of penalties to employer representatives and, in 
the case of a fatality, to the next of kin or a designated 
representative, became effective on August 1, 1975.
    (f) Regulations on variances were promulgated on February 20, 1974, 
and were approved with assurances by the Assistant Secretary on August 
31, 1976.
    (g) The management information system became operable in August 
1973.
    (h) Coverage and enforcement of agricultural standards commenced on 
July 1, 1975.
    (i) The Rules of Procedure of the Minnesota Occupational Safety and 
Health Review Commission, chapter 20, Minnesota Occupational Safety and 
Health Code, and regulations concerning inspections, citations, and 
proposed penalties, chapter 21, Minnesota Occupational Safety and Health 
Code, were approved by the Assistant Secretary on August 31, 1976.
    (j) The downward revision of the projected increase in personnel for 
fiscal year 1976 due to a lesser than anticipated increase of funding by 
the Minnesota legislature, was approved by the Assistant Secretary as 
meeting current required staffing on August 31, 1976.
    (k) The State poster approved on March 25, 1975 (40 FR 13211) which 
was revised in response to legislative amendments described above, to 
provide that citations and notices of penalties must be posted at or 
near the place of the alleged violation for 15 days or until the 
violation is corrected, whichever is later, and which lists additional 
Minnesota area offices, was approved by the Assistant Secretary on 
August 31, 1976.
    (l) In accordance with Sec. 1902.34 of this chapter, the Minnesota 
occupational safety and health plan was certified, effective September 
28, 1976, as having completed all developmental steps specified in the 
plan as approved on May 29, 1973, on or before June 30, 1976.

[40 FR 13212, Mar. 25, 1975, as amended at 40 FR 18996, May 1, 1975. 
Redesignated at 50 FR 30831, July 30, 1985]

[[Page 57]]



Sec. 1952.203  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 Minnesota, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 31 safety and 12 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on July 30, 1985.

[50 FR 30832, July 30, 1985]



Sec. 1952.204  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the Minnesota State plan for 
a period of at least one year following certification of completion of 
developmental steps (41 FR 42659). Based on the 18(e) Evaluation Report 
for the period of October 1982 through March 1984, and after opportunity 
for public comment, the Assistant Secretary determined that in operation 
the State of Minnesota's occupational safety and health program is at 
least as effective as the Federal program in providing safe and 
healthful employment and places of employment and meets the criteria for 
final State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Minnesota plan was 
granted final approval, and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective July 30, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Minnesota. The plan does not cover private sector offshore maritime 
employment on the navigable waters of the United States; employment at 
the Twin Cities Army Ammunition Plant; Federal government employers and 
employees; the U.S. Postal Service (USPS), including USPS employees, and 
contract employees and contractor-operated facilities engaged in USPS 
mail operations; any tribal or private sector employment within any 
Indian reservation in the State; the enforcement of the field sanitation 
standard, 29 CFR 1928.110, and the enforcement of the temporary labor 
camps standard, 29 CFR 1910.142, with respect to any agricultural 
establishment where employees are engaged in ``agricultural employment'' 
within the meaning of the Migrant and Seasonal Agricultural Worker 
Protection Act, 29 U.S.C. 1802(3), regardless of the number of 
employees, including employees engaged in hand packing of produce into 
containers, whether done on the ground, on a moving machine, or in a 
temporary packing shed, except that Minnesota retains enforcement 
responsibility over agricultural temporary labor camps for employees 
engaged in egg, poultry, or red meat production, or the post-harvest 
processing of agricultural or horticultural commodities.
    (c) Minnesota is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[50 FR 30832, July 30, 1985, as amended at 62 FR 2561, Jan. 17, 1997; 65 
FR 36622, June 9, 2000]



Sec. 1952.205  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final

[[Page 58]]

approval to the Minnesota plan under section 18(e) of the Act, effective 
July 30, 1985, occupational safety and health standards which have been 
promulgated under section 6 of the Act do not apply with respect to 
issues covered under the Minnesota plan. This determination also 
relinquishes concurrent Federal OSHA authority to issue citations for 
violations of such standards under sections 5(a)(2) and 9 of the Act; to 
conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(f) and 
other inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal Act under section 17. The Assistant Secretary 
retains jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Minnesota plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector offshore maritime activities and will continue to 
enforce all provisions of the Act, rules or orders, and all Federal 
standards, current or future, specifically directed to maritime 
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine 
terminals; Part 1918, longshoring; Part 1919, gear certification) as 
well as provisions of general industry and construction standards (29 
CFR Parts 1910 and 1926) appropriate to hazards found in these 
employments, as they relate to employment under the exclusive 
jurisdiction of the Federal government on the navigable waters of the 
United States. Federal jurisdiction is retained and exercised by the 
Employment Standards Administration, U.S. Department of Labor, 
(Secretary's Order 5-96, dated December 27, 1996) with respect to the 
field sanitation standard, 29 CFR 1928.110, and the enforcement of the 
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as 
described in Sec. 1952.204(b). Federal jurisdiction is also retained 
over the Twin Cities Army Ammunition Plant; over Federal government 
employers and employees; over any tribal or private sector employment 
within any Indian reservation in the State; and over the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
finally approved plan, and shall be subject to Federal enforcement. 
Where enforcement jurisdiction is shared between Federal and State 
authorities for a particular area, project, or facility, in the interest 
of administrative practicability, Federal jurisdiction may be assumed 
over the entire project or facility. In either of the two aforementioned 
circumstances, Federal enforcement may be exercised immediately upon 
agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such

[[Page 59]]

standards may not be Federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority reinstated, 
all Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Minnesota State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 30832, July 30, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65 
FR 36623, June 9, 2000]



Sec. 1952.206  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 230 S. Dearborn Street, 32nd 
Floor, Room 3244, Chicago, Illinois 60604; and
Office of the Commissioner, Minnesota Department of Labor and Industry, 
443 Lafayette Road, St. Paul, Minnesota 55155.

[65 FR 36623, June 9, 2000]



Sec. 1952.207  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Minnesota's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2)  [Reserved]
    (b) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved Minnesota's plan amendment, dated 
July 24, 1996, relinquishing coverage for the issues of field sanitation 
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in 
agriculture (except for agricultural temporary labor camps associated 
with egg, poultry or red meat production, or the post-harvest processing 
of agricultural or horticultural commodities). The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in Minnesota 
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.

[59 FR 14556, Mar. 29, 1994, as amended at 62 FR 2562, Jan. 17, 1997]



                           Subpart O--Maryland



Sec. 1952.210  Description of the plan as initially approved.

    (a) The Division of Labor and Industry in the Department of 
Licensing and Regulation is the State agency designated by the Governor 
to administer the plan throughout the State. The plan defines the 
covered occupational safety and health issues on the basis of Major 
Groups in the Standard Industrial Classification (SIC) Manual of the 
Office of Management and Budget of the Executive Office of the 
President. The Commissioner of the Division of Labor and industry 
promulgated the Federal standards existing as of February 2, 1973. These 
standards were effective in Maryland as of March 8, 1973, and they will 
be enforced according to current State legislative authority prior to 
the effective date of Maryland's enabling legislation, July 1, 1973. 
Maryland also intends to adopt those Federal standards applicable to 
ship repairing, ship building, ship breaking and longshoring except 
where prohibited by exclusive Federal maritime jurisdiction. Subsequent 
revisions to Federal standards will be considered by the State 
Occupational Safety and Health Advisory Board which will make 
recommendations on adoption of at least as effective standards to the 
Commissioner within 6 months after Federal promulgation. Maryland also 
includes in its plan State boiler and elevator standards where 
applicable.

[[Page 60]]

    (b)(1) The plan included draft legislation which has been passed by 
the State legislature and signed by the Governor. The legislation as 
enacted has been included as a supplement to the plan. Under the 
legislation, effective July 1, 1973, the Division of Labor and Industry 
in the Department of Licensing and Regulation has full authority to 
enforce and administer laws respecting safety and health of employees in 
all workplaces of the State, including coverage of public employees, 
with the exception of maritime workers in the areas of exclusive Federal 
jurisdiction; employees of the United States; and employees whose 
working conditions are protected under enumerated Federal laws.
    (2) The legislation brings the plan into conformity with the 
requirements of 29 CFR part 1902 in areas such as procedures for 
granting or denying temporary and permanent variances to rules, 
regulations or standards by the Commissioner; protection of employees 
from hazards including provision for medical examinations made available 
by the employer or at his cost; procedures for the development of 
standards by the Occupational Safety and Health Advisory Board; 
promulgation of these standards as recommended by the Commissioner; 
promulgation of emergency temporary standards by the Commissioner with 
referral to the Board to develop a permanent standard; procedures for 
prompt restraint or elimination of imminent danger situations by 
issuance of a ``red-tag'' order with court review as well as by court 
injunction.
    (3) The legislation provides for inspections in response to 
complaints; gives employer and employee representatives an opportunity 
to accompany inspectors in order to aid inspections; notification of 
employees or their representatives when no compliance action is taken as 
a result of alleged violations, including informal review; protection of 
employees against discharge or discrimination in terms and conditions of 
employment by filing complaints with the Commissioner who will seek 
court action; adequate safeguards to protect trade secrets; provision 
for prompt notice to employers and employees of alleged violations of 
standards and abatement requirements through the issuance and posting of 
citations; a system of sanctions against employers for violations of 
standards; employer right of review and employee participation in review 
proceedings before the Commissioner with subsequent judicial review; and 
coverage of employees of the State and political subdivisions in a 
separate program supervised by the Commissioner in accordance with the 
requirements described in the North Carolina decision (38 FR 3041).
    (c) Included in the plan is a statement of legal opinion that the 
law, which was supported by the Governor in accordance with the 
requirements of part 1902, meets the requirements of the Occupational 
Safety and Health Act of 1970 and is consistent with the Constitution 
and laws of Maryland. The plan sets out goals and provides a timetable 
for bringing it into full conformity with part 1902 at the end of three 
years after the commencement of operations under the plan. Personnel 
will be employed under the existing State merit system with the 
revisions in qualifications as stated in supplements to the plan, and 
the voluntary compliance program for on-site consultation meets the 
conditions set forth in the issues discussed in the Washington decision 
(38 FR 2421).
    (d) The plan includes the following documents as of the date of 
approval.
    (1) The plan document in two volumes.
    (2) Maryland Occupational Safety and Health Act of 1973, effective 
July 1, 1973.
    (3) ``A Program for Control of Occupational Health Hazards in 
Maryland'' by Johns Hopkins University Department of Environmental 
Medicine.
    (4) Letters from the Division of Labor and Industry dated February 
9, 1973; March 6, 1973; March 22, 1973; May 2, 1973 and May 21, 1973.
    (5) Maryland's Administrative Procedure Act Article 41 sections 244 
et seq.

[38 FR 17837, July 5, 1973, as amended at 50 FR 29219, July 18, 1985]



Sec. 1952.211  Developmental schedule.

    (a) Occupational health study accepted and implementation begun 
July, 1973;

[[Page 61]]

    (b) Compliance Manual developed by July, 1973;
    (c) Management Information System, December, 1975;
    (d) Training in compliance procedures by August, 1973;
    (e) Promulgation of standard-setting procedures, August, 1973;
    (f) Inspection and enforcement program, except as provided in 
paragraph (k), in September, 1973;
    (g) Staff of hearing examiners and review procedures set up in 
September, 1973;
    (h) Variance procedures and emergency temporary standard-setting 
procedures promulgated October, 1973;
    (i) Review of appeal procedures to see if it should be continued or 
modified, July, 1974;
    (j) Review of job qualifications within one year of plan approval;
    (k) Inspection and enforcement of agriculture standards by December, 
1974;
    (l) Fully operational occupational health program, July, 1975;
    (m) Fully implemented public employees program, December, 1975;

[38 FR 17837, July 5, 1973, as amended at 41 FR 45564, Oct. 15, 1976. 
Redesignated at 50 FR 29219, July 18, 1985]



Sec. 1952.212  Completion of developmental steps and certification.

    (a) In accordance with part 1953 of this chapter, the Maryland 
occupational safety and health standards were approved by OSHA on 
October 3, 1974.
    (b) In accordance with the requirements of 29 CFR 1952.10, the 
Maryland State poster was approved by the Assistant Secretary on June 6, 
1975.
    (c) In accordance with the commitment expressed in Sec. 1952.213(l), 
the State of Maryland developed and implemented an occupational health 
plan by December 31, 1975.
    (d) In accordance with the commitment expressed in Sec. 1952.213(n), 
the designee developed a fully operational Management Information System 
by May 1, 1975.
    (e) In accordance with 29 CFR 1952.213(d), training of Maryland 
compliance personnel in compliance procedure was completed by December 
31, 1975.
    (f) In accordance with 29 CFR 1952.213(f), the Maryland inspection 
and enforcement program was implemented by September 1973.
    (g) In accordance with 29 CFR 1952.213(j), review of the appeal 
procedures to see if they should be continued or modified was conducted 
by the State by May 1975.
    (h) In accordance with 29 CFR 1952.213(b), Maryland completed 
development of a Compliance Manual.
    (i) In accordance with 29 CFR 1952.213(e), the State has promulgated 
acceptable standard-setting procedures.
    (j) In accordance with 29 CFR 1952.213(h), Maryland promulgated 
acceptable variance procedures and emergency temporary standard-setting 
procedures.
    (k) In accordance with 29 CFR 1952.213(j), review of the job 
qualifications of State personnel was conducted by the State.
    (l) In accordance with 29 CFR 1952.213(m), the State of Maryland has 
developed and implemented a safety and health program for public 
employees
    (m) In accordance with 29 CFR 1952.213(a), the State submitted an 
occupational health study, and the State's occupational health plan is 
being implemented.
    (n) In accordance with 29 CFR 1952.213(g), the State established a 
staff of hearing examiners and review procedures.
    (o) In accordance with 29 CFR 1952.213(k), agricultural standards 
are being enforced by the Maryland Department of Labor and Industry.
    (p) In accordance with Sec. 1902.34 of this chapter, the Maryland 
occupational safety and health plan was certified effective February 15, 
1980, as having completed all developmental steps specified in the plan 
as approved on July 5, 1973, on or before August 31, 1976. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[40 FR 25207, June 13, 1975, as amended at 41 FR 45564, Oct. 15, 1976; 
42 FR 10988, Feb. 25, 1977; 44 FR 28326, 28327, May 15, 1979; 45 FR 
10337, Feb. 15, 1980. Redesignated at 50 FR 29219, July 18, 1985, as 
amended at 67 FR 60129, Sept. 25, 2002]

[[Page 62]]



Sec. 1952.213  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 Maryland, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 36 safety and 18 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on July 18, 1985.

[50 FR 29219, July 18, 1985]



Sec. 1952.214  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the Maryland State plan for 
a period of at least one year following certification of completion of 
developmental steps (45 FR 10335). Based on the 18(e) Evaluation Report 
for the period of October 1982 through March 1984, and after opportunity 
for public comment, the Assistant Secretary determined that in operation 
the State of Maryland's occupational safety and health program is at 
least as effective as the Federal program in providing safe and 
healthful employment and places of employment and meets the criteria for 
final State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Maryland plan was 
granted final approval and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective July 18, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Maryland. The plan does not cover private sector maritime employment; 
Federal government employers and employees; the U.S. Postal Service 
(USPS), including USPS employees, and contract employees and contractor-
operated facilities engaged in USPS mail operations; and employment on 
military bases.
    (c) Maryland is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[50 FR 29220, July 18, 1985, as amended at 65 FR 36623, June 9, 2000]



Sec. 1952.215  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Maryland plan under section 18(e) of the Act, 
effective July 18, 1985, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Maryland plan. This determination 
also relinquishes concurrent Federal OSHA authority to issue citations 
for violations of such standards under sections 5(a)(2) and 9 of the 
Act; to conduct inspections and investigations under section 8 (except 
those necessary to conduct evaluation of the plan under section 18(b) 
and other inspections, investigations, or proceedings necessary to carry 
out Federal responsibilities not specifically preempted by section 
18(e)); to conduct enforcement proceedings in contested cases under 
section 10; to institute proceedings to correct imminent dangers under 
section 13; and to propose civil penalties or initiate criminal 
proceedings for violations of the Federal Act under section 17. The 
Assistant Secretary retains jurisdiction under

[[Page 63]]

the above provisions in any proceeding commenced under section 9 or 10 
before the effective date of the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Maryland plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to private sector maritime 
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine 
terminals; Part 1918, longshoring; Part 1919, gear certification), as 
well as provisions of general industry and construction standards (29 
CFR Parts 1910 and 1926) appropriate to hazards found in these 
employments; and employment on military bases. Federal jurisdiction is 
also retained with respect to Federal government employers and 
employees; and the U.S. Postal Service (USPS), including USPS employees, 
and contract employees and contractor-operated facilities engaged in 
USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
finally approved plan, and shall be subject to Federal enforcement. 
Where enforcement jurisdiction is shared between Federal and State 
authorities for a particular area, project, or facility, in the interest 
of administrative practicability Federal jurisdiction may be assumed 
over the entire project or facility. In either of the two aforementioned 
circumstances, Federal enforcement may be exercised immediately upon 
agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such standards may 
not be Federally applied. In the event that the State's 18(e) status is 
subsequently withdrawn and Federal authority reinstated, all Federal 
standards, including any standards promulgated or modified during the 
18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Maryland State program to assure that the 
provisions of the State plan are subtantially complied with and that the 
program remains at least as effective as the Federal program. Failure by 
the State to comply with its obligations may result in the revocation of 
the final determination under section 18(e), resumption of Federal 
enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 29220, July 18, 1985, as amended at 65 FR 36623, June 9, 2000]



Sec. 1952.216  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, The Curtis Center, 170 South 
Independence Mall West--Suite 740 West, Philadelphia, Pennsylvania 
19106-3309; and
Office of the Commissioner, Maryland Division of Labor and Industry, 
Department of

[[Page 64]]

Labor, Licensing and Regulation, 1100 N. Eutaw Street, Room 613, 
Baltimore, Maryland 21201-2206.

[65 FR 36623, June 9, 2000]



Sec. 1952.217  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Maryland's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2)  [Reserved]
    (b)  [Reserved]

[59 FR 14556, Mar. 29, 1994]



                          Subpart P--Tennessee



Sec. 1952.220  Description of the plan as initially approved.

    (a) The plan identifies the Department of Labor and the Department 
of Health as the agencies designated to administer the plan throughout 
the State. It adopts the definition of occupational safety and health 
issues expressed in Sec. 1902.2(c)(1) of this chapter. All standards, 
except those found in 29 CFR parts 1915, 1916, 1917, and 1918 (ship 
repairing, ship building, ship breaking and longshoring) will be adopted 
and enforced immediately upon approval of the plan by the Assistant 
Secretary.
    (b)(1) The plan includes legislation passed by the Tennessee 
Legislature during its 1972 session which became effective July 1, 1972. 
Under the law, the Department of Labor and the Department of Public 
Health will have full authority to enforce and administer laws 
respecting safety and health of employees in all workplaces of the State 
with the exception of employees of the United States or employees 
protected under other Federal occupational safety and health laws such 
as the Atomic Energy Act of 1959 (42 U.S.C. 2011 et seq.). The Federal 
Coal Mine Safety Act of 1969 (30 U.S.C. 801), the Federal Metal and 
Nonmetallic Mine Safety Act (30 U.S.C. 721 et seq.) railroad employees 
covered by the Federal Safety Appliances Act (45 U.S.C. 1 et seq.) and 
the Federal Railroad Safety Act (45 U.S.C. 421 et seq.), the 
Longshoremen's and Harbor Workers' Compensation Act, as amended (33 
U.S.C. 901 et seq.), domestic workers, and any employee engaged in 
agriculture who is employed on a family farm. The Act further provides 
for the protection of employees from hazards, procedures for the 
development and promulgation of standards, including standards for 
protection of employees against new and unforeseen hazards; procedures 
for prompt restraint or elimination of imminent danger situations.
    (2) The Act also insures inspections in response to complaints; 
employer and employee representatives an opportunity to accompany 
inspectors in order to aid inspections; notification of employees or 
their representative when no compliance action is taken as a result of 
alleged violations, including informal review; notification of employees 
of their protections and obligations; adequate safeguards to protect 
trade secrets; provisions for prompt notice to employers and employees 
of alleged violations of standards and abatement requirements; a system 
of sanctions against employers for violations of standards; employer 
right of review with employee participation in review proceedings, and 
coverage of employees of political subdivisions. Legislation which 
became effective on April 5, 1973, providing for ``stop orders'' for 
cases of imminent danger situations is also included.
    (c)(1) The plan further includes proposed amendments submitted by 
the State which will be presented to the 1974 session of the State 
legislature to bring its Occupational Safety and Health Act into 
conformity with the requirements of 29 CFR part 1902. These amendments 
pertain to such areas as permanent variances, employee protection 
against discharge or discrimination in terms and conditions of 
employment, imminent danger situations, sanctions, and walkaround. A 
statement of the Governor's support for the proposed amandments and a 
statement of legal opinion that they will meet the requirements of the 
Occupational Safety and Health Act of 1970 and is consistent with the 
Constitution and laws of the State are included in the plan.
    (2) The plan provides a comprehensive description of personnel 
employed

[[Page 65]]

under the State's merit system and assurances of sufficient resources. 
The plan further sets out goals and provides a timetable to bring it 
into full conformity with the requirements of part 1902 of this chapter.
    (d) The Tennessee plan includes the following documents as of the 
date of approval:
    (1) The plan description documents including the Tennessee 
Occupational Safety and Health Act, the proposed amendments to the Act 
and appendices in three (3) volumes;
    (2) Letter from Ben O. Gibbs, Commissioner of Labor to Henry J. 
Baker, Project Officer, Office of State and Federal Operations, February 
14, 1973, submitting additions and deletions to the plan.
    (3) Letter from Edward C. Nichols, Jr., Staff Attorney for the 
Department of Labor, to Henry Baker, May 30, 1973, submitting a ``red 
tag'' provision which was signed into law by the Governor of Tennessee 
on April 5, 1973.
    (4) Letter from Ben O. Gibbs, Commissioner of Labor and Eugene W. 
Fowinkle, Commissioner of Public Health, to Thomas C. Brown, Director, 
Office of Federal and State Operations, June 15, 1973, submitting 
proposed amendments and clarifications to the plan.
    (e) The public comments will also be available for inspection and 
copying with the plan documents.

[38 FR 17840, July 5, 1973, as amended at 50 FR 29669, July 22, 1985]



Sec. 1952.221  Developmental schedule.

    The Tennessee state plan is developmental. The following is the 
developmental schedule as provided by the plan:
    (a) Formal adoption of Federal standards immediately upon approval 
of State plan. (Existing State standards were repealed by the enabling 
legislation). Enforcement of standards commences immediately upon 
promulgation.
    (b) Amendments to legislation to be submitted to 1974 State 
legislative session.
    (c) Regulations for recordkeeping and reporting will be promulgated 
upon plan approval.
    (d) Regulations for inspections, citations, and proposed penalties 
will be promulgated immediately upon plan approval.
    (e) Variances regulations will be promulgated within 60 days of plan 
approval.
    (f) Manual Management data system operational July 1, 1973. 
Automated Management data system operational January 1, 1974.

[38 FR 17840, July 5, 1973. Redesignated at 50 FR 29669, July 22, 1985]



Sec. 1952.222  Completed developmental steps.

    (a) In accordance with Sec. 1952.223(b), the Tennessee Occupational 
Safety and Health Act of 1972 was amended by Chapter 585, Public Acts of 
1974, on March 20, 1974, with an effective date of July 1, 1974 and 
approved by the Secretary of Labor in August 15, 1975 (40 FR 36556). 
Further State-initiated amendments to the Act transferring all 
occupational safety and health responsibility to the Commissioner of 
Labor were promulgated effective July 1, 1977, and approved by the 
Assistant Secretary on May 3, 1978.
    (b) In accordance with Sec. 1952.223(d), regulations governing 
inspections, citations, and proposed penalties were originally 
promulgated by the Commissioner of Labor on July 2, 1973 (effective July 
13, 1973) and approved by the Assistant Secretary on August 15, 1975 (40 
FR 36556). These regulations were subsequently codified as Tennessee 
Department of Labor Chapter 0800-1-4 and reapproved by the Assistant 
Secretary, as amended, on May 3, 1978. The Tennessee Commissioner of 
Public Health promulgated parallel regulations on April 3, 1974 
(effective May 3, 1974) which were also approved on August 15, 1975. 
These Department of Public Health regulations became inoperative on July 
1, 1977.
    (c) In accordance with Sec. 1952.223(e), regulations governing 
temporary variances were promulgated by the Commissioner of Labor on 
July 2, 1973 (effective July 13, 1973) and approved by the Assistant 
Secretary on August 15, 1975, (40 FR 36566). These regulations, which 
were subsequently codified as Tennessee Department of Labor Chapter 
0800-1-2, were expanded to include

[[Page 66]]

permanent variances, and amended in response to Federal comment, and 
reapproved by the Assistant Secretary on May 3, 1978. The Commissioner 
of Public Health promulgated regulations dealing with temporary 
variances on April 3, 1974, (effective May 3, 1974) which were also 
approved by the Secretary on August 15, 1975. These Department of Public 
Health regulations became inoperative on July 1, 1977.
    (d) In accordance with the requirements of 29 CFR 1952.10, the 
Tennessee occupational safety and health poster for private employers 
and local government employers choosing to be treated as private 
employers was approved by the Assistant Secretary on August 15, 1975. In 
addition, a Tennessee occupational safety and health poster for public 
employees was approved by the Assistant Secretary on May 3, 1978.
    (e) In accordance with Sec. 1952.223(a) the Tennessee occupational 
safety and health standards identical to Federal standards (through 
December 26, 1974) have been promulgated and approved, as revised, by 
the Assistant Regional Director on March 31, 1975 (40 FR 14383).
    (f) In accordance with Sec. 1952.223(f) Tennessee implemented a 
manual management information system in July 1973, and converted to an 
automated system in July 1975.
    (g) In accordance with plan commitments, regulations governing 
Occupational Safety and Health Recordkeeping and Reporting (Chapter 
0800-1-3) were promulgated by the Tennessee Department of Labor on June 
10, 1974, and subsequently amended on April 15, 1976, July 14, 1977, 
August 15, 1977 and February 13, 1978. These regulations, which contain 
requirements essentially identical to the Federal 29 CFR part 1904, were 
approved by the Assistant Secretary on May 3, 1978.
    (h) In accordance with plan commitments, the Tennessee Occupational 
Safety and Health Review Commission promulgated regulations governing 
its operation on May 5, 1974 (Chapters 1030-1 through 1030-7). These 
regulations were subsequently amended in response to Federal comment on 
February 13, 1978, and approved by the Assistant Secretary on May 3, 
1978.
    (i) In accordance with plan commitments, Tennessee revised its 
original Compliance Operations Manual on May 19, 1975. The manual which 
was subsequently amended in response to Federal comment and to reflect 
all Federal procedures in effect as of December 1, 1976, was approved by 
the Assistant Secretary on May 3, 1978.
    (j) In accordance with State plan commitments, a Tennessee Public 
Employee plan and implementing regulations (Tennessee Department of 
Labor Chapter 0800-1-5) have been adopted and were approved by the 
Assistant Secretary on May 3, 1978.
    (k) In accordance with Sec. 1902.34 of this chapter, the Tennessee 
occupational safety and health plan received certification, effective 
May 3, 1978, as having completed all developmental steps specified in 
its plan as approved on June 28, 1973, on or before July 1, 1976.

[40 FR 36567, Aug. 21, 1975, as amended at 42 FR 58747, Nov. 11, 1977; 
43 FR 20982-20986, May 16, 1978. Redesignated at 50 FR 29669, July 22, 
1985]



Sec. 1952.223  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 Tennessee, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 22 safety and 14 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on July 22, 1985.

[50 FR 29669, July 22, 1985]



Sec. 1952.224  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the

[[Page 67]]

Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the Tennessee State plan for 
a period of at least one year following certification of completion of 
developmental steps (43 FR 20980). Based on the 18(e) Evaluation Report 
for the period of October 1982 through March 1984, and after opportunity 
for public comment, the Assistant Secretary determined that in operation 
the State of Tennessee's occupational safety health program is at least 
as effective as the Federal program in providing safe and healthful 
employment and places of employment and meets the criteria for final 
State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Tennessee plan was 
granted final approval and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective July 22, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Tennessee. The plan does not cover private sector maritime 
employment; Federal government employers and employees; the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations; railroad 
employment; employment at Tennessee Valley Authority facilities and on 
military bases, as well as any other properties ceded to the United 
States Government.
    (c) Tennessee is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[50 FR 29669, July 22, 1985, as amended at 65 FR 36624, June 9, 2000]



Sec. 1952.225  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Tennessee plan under section 18(e) of the Act, 
effective July 22, 1985, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Tennessee plan. This determination 
also relinquishes concurrent Federal OSHA authority to issue citations 
for violations of such standards under sections 5(a)(2) and 9 of the 
Act; to conduct inspections and investigations under section 8 (except 
those necessary to conduct evaluation of the plan under section 18(b) 
and other inspections, investigations, or proceedings necessary to carry 
out Federal responsibilities not specifically preempted by section 
18(e)); to conduct enforcement proceedings in contested cases under 
section 10; to institute proceedings to correct imminent dangers under 
section 13; and to propose civil penalties or initiate criminal 
proceedings for violations of the Federal Act under section 17. The 
Assistant Secretary retains jurisdiction under the above provisions in 
any proceeding commenced under section 9 or 10 before the effective date 
of the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Tennessee plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to maritime employment (29 CFR 
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification) as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments; railroad employment, 
not otherwise regulated by another Federal agency;

[[Page 68]]

employment at Tennessee Valley Authority facilities and on military 
bases. Federal jurisdiction is also retained with respect to Federal 
government employers and employees, and the U.S. Postal Service (USPS), 
including USPS employees, and contract employees and contractor-operated 
facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
finally approved plan, and shall be subject to federal enforcement. 
Where enforcement jurisdiction is shared between Federal and State 
authorities for a particular area, project, or facility, in the interest 
of administrative practicability Federal jurisdiction may be assumed 
over the entire project or facility. In either of the two aforementioned 
circumstances, Federal enforcement may be exercised immediately upon 
agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such standards may 
not be federally applied. In the event that the State's 18(e) status is 
subsequently withdrawn and Federal authority reinstated, all Federal 
standards, including any standards promulgated or modified during the 
18(e) period, would be federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Tennessee State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 29670, July 22, 1985, as amended at 65 FR 36624, June 9, 2000]



Sec. 1952.226  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Atlanta Federal Center, 61 
Forsyth Street, SW, Room 6T50, Atlanta, Georgia 30303; and
Office of the Commissioner, Tennessee Department of Labor, 710 James 
Robertson Parkway, Nashville, Tennessee 37243-0659.

[65 FR 36624, June 9, 2000]



Sec. 1952.227  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Tennessee's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2)  [Reserved]
    (b) The Voluntary Protection Program. On October 24, 1996, the 
Assistant Secretary approved Tennessee's plan supplement, which is 
generally identical to the Federal Voluntary Protection Program, with 
the exception that the State's VPP is limited to the ``Star'' level 
participation for general industry firms.

[59 FR 14556, Mar. 29, 1994, as amended at 61 FR 55099, Oct. 24, 1996]

[[Page 69]]



                           Subpart Q--Kentucky

    Source: 50 FR 24896, June 13, 1985, unless otherwise noted.



Sec. 1952.230  Description of the plan as initially approved.

    (a) The plan designates the Department of Labor as the agency 
responsible for administering the Plan throughout the State. It proposes 
to define the occupational safety and health issue covered by it as 
defined by the Secretary of Labor in Sec. 1902.2(c)(1) of this chapter. 
All occupational safety and health standards promulgated by the United 
States Secretary of Labor have been adopted under the Plan as well as a 
certain standard deemed to be ``as effective as'' the Federal standard, 
except those found in parts 1915, 1916, 1917 and 1918 of this chapter 
(ship repairing, ship building, ship breaking and longshoring). All 
Federal standards adopted by the State became effective on December 29, 
1972.
    (b) Within the plan there is enabling legislation revising chapter 
338 of the Kentucky Revised Statutes which became law on March 27, 1972; 
as well as legislation enacted and approved in a Special Session of the 
Legislature in 1972 amending the enabling legislation. The law as 
enacted and modified gives the Department of Labor, Division of 
Occupational Safety and Health, the statutory authority to implement an 
occupational safety and health plan modeled after the Federal Act. There 
are provisions within it granting the Commissioner of Labor the 
authority to inspect workplaces and to issue citations for the abatement 
of violations and there is also included a prohibition against advance 
notice of such inspections. The law is also intended to insure employer 
and employee representatives an opportunity to accompany inspectors and 
to call attention to possible violations; notification of employees or 
their representatives when no compliance action is taken as a result of 
employee alleged violations; protection of employees against 
discrimination in terms and conditions of employment; and adequate 
safeguards to protect trade secrets. There is provision made for the 
prompt restraint of imminent danger situations and a system of penalties 
for violation of the statute. There are also provisions creating the 
Kentucky Occupational Safety and Health Standards Board and the Kentucky 
Occupational Safety and Health Review Board. The Law has further 
provision that the Department of Labor will enter into an agreement with 
the Public Service Commission (PSC) which shall serve as the State 
agency in the administration of all matters relating to occupational 
safety and health with respect to employees of public utilities.
    (c) The plan includes an opinion from the Attorney General that the 
Law is consistent with the Constitution of the State. There is also set 
forth in the Plan a Time Schedule for the Development of a Public 
Employee Program. The Plan also contains a comprehensive description of 
personnel employed under the State's merit system as well as its 
proposed budget and resources.
    (d) The Kentucky plan includes the following documents as of the 
date of approval:
    (1) The plan description documents, including the Kentucky 
Occupational Safety and Health Act, and appendices in three (3) volumes;
    (2) Letter for James R. Yocum, Commissioner of the Kentucky 
Department of Labor, to Basil A. Needham, Jr., Regional Administrator, 
Atlanta, Georgia Office, Occupational Safety and Health Administration, 
June 14, 1973, submitting additions and clarifications to the plan.
    (3) Letter from James R. Yocum to the Assistant Secretary of Labor, 
John H. Stender, July 13, 1973, submitting assurances that the State 
will submit certain amendments to the 1974 Session of its Legislature.
    (e) The public comments will also be available for inspection and 
copying with the plan documents.

[38 FR 20324, July 31, 1973, as amended at 50 FR 24896, June 13, 1985]



Sec. 1952.231  Developmental schedule.

    The Kentucky state plan is developmental. The following is the 
developmental schedule as provided by the plan:
    (a) A comprehensive public employee program will be developed within 
three years of plan approval.

[[Page 70]]

    (b) Within six months after plan approval, the procedure for the 
promulgation of standards will be revised.
    (c) An affirmative action program will be submitted to the Assistant 
Secretary as well as clearance of possible inconsistencies of the State 
Merit System by the Civil Service Commission within six months after 
grant approval.
    (d) Revision of various regulations, including those pertaining to 
employee access to information on their exposure to toxic materials or 
harmful physical agents and contests before the Review Commission will 
be undertaken within six months after plan approval.
    (e) Submission of amendments to KRS chapter 338 in 1974 General 
Assembly, to provide temporary variance authority and incorporate in 
that chapter penalties for willful violations causing death.

[38 FR 20324, July 31, 1973. Redesignated at 50 FR 24896, June 13, 1985]



Sec. 1952.232  Completion of developmental steps and certification.

    (a) In accordance with the requirements of Sec. 1952.10 the Kentucky 
Safety and Health Poster for private and public employees was approved 
by the Assistant Secretary on May 20, 1976.
    (b) Amendments in the Kentucky enabling legislation were enacted to 
include (1) a division of occupational safety and health compliance and 
a division of education and training (KRS 333.153(a)) and (2) authority 
and procedures for granting temporary variances. Penalties for willful 
violations causing death of an employee are covered under KRS chapters 
434, 503 and 534.
    (c) An amended Kentucky Administrative Procedure Act (KRS chapter 
13) provides procedures for promulgation of standards and administrative 
regulations including emergency temporary standards.
    (d) Kentucky regulations governing recordkeeping and reporting 
(parallel to the Federal 29 CFR part 1904), inspections, citations, 
proposed penalties (parallel to the Federal 29 CFR part 1903) and 
variances (parallel to the Federal 29 CFR part 1905) were initially 
approved with the State plan on July 31, 1973. These regulations were 
expanded to provide for:
    (1) Penalties for failure to correct violations;
    (2) Mandatory penalties for failure to post a citation;
    (3) Procedures for petition for modification of abatement dates and
    (4) Procedures for granting temporary variances.

In addition, Kentucky adopted regulations pertaining to employee access 
to information on exposure to toxic materials or harmful physical 
agents.
    (e) A manual Management Information System was implemented in July, 
1975, and converted to an automated system in July, 1977.
    (f) The personnel operations of the Kentucky Department of Labor and 
the servicing merit system agency have been found to be in substantial 
conformity with the ``Standards for a Merit System of Personnel 
Administration'' by letter of the Secretary of Labor dated May 17, 1977. 
In addition, a Kentucky Department of Labor affirmative action plan to 
promote equal employment opportunity has been judged acceptable by the 
Regional Office of Personnel Management by letter dated February 12, 
1979.
    (g) Kentucky revised regulations governing the operation of the 
Kentucky Occupational Safety and Health Review Commission were 
promulgated in December, 1975.
    (h) A revised Kentucky Compliance Manual was initially submitted in 
July, 1976, and subsequently amended in response to Federal comment to 
reflect changes in Federal procedures through December 20, 1976.
    (i) By executive orders 74-374 and 77-573 dated May 15, 1974, and 
June 30, 1977, respectively, the Governor of Kentucky made the following 
changes in the organization of the Kentucky Occupational Safety and 
Health Program:
    (1) All occupational health functions except laboratory services 
were transferred from Kentucky Department of Human Resources to the 
Kentucky Department of Labor.
    (2) Responsibilities for coverage of employees of public utilities 
were transferred from the Kentucky Public Service Commission to the 
Kentucky Department of Labor.
    (j) A Kentucky Public Employee plan has been adopted by the State.

[[Page 71]]

    (k) In accordance with Sec. 1902.34 of this chapter, the Kentucky 
occupational safety and health plan received certification, effective 
February 8, 1980, as having completed all developmental steps specified 
in its plan as approved on July 31, 1973, on or before July 31, 1976. 
This certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[41 FR 21774, May 28, 1976, as amended at 41 FR 34252, Aug. 13, 1976; 45 
FR 8596, 8598, Feb. 8, 1980. Redesignated at 50 FR 24896, June 13, 1985]



Sec. 1952.233  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 Kentucky, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 23 safety and 14 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on June 13, 1985.



Sec. 1952.234  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the Kentucky State plan for 
a period of at least one year following certification of completion of 
developmental steps (45 FR 8596). Based on the 18(e) Effectiveness 
Report for the period of October 1982 through March 1984, and after 
opportunity for public comment, the Assistant Secretary determined that 
in operation the State of Kentucky's occupational safety health program 
is at least as effective as the Federal program in providing safe and 
healthful employment and places of employment and meets the criteria for 
final State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Kentucky plan was 
granted final approval and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective June 13, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Kentucky. The plan does not cover private sector maritime employment; 
employment at Tennessee Valley Authority facilities; military bases; 
properties ceded to the U.S. Government; Federal government employers 
and employees; the U.S. Postal Service (USPS), including USPS employees, 
and contract employees and contractor-operated facilities engaged in 
USPS mail operations; the enforcement of the field sanitation standard, 
29 CFR 1928.110, and the enforcement of the temporary labor camps 
standard, 29 CFR 1910.142, with respect to any agricultural 
establishment where employees are engaged in ``agricultural employment'' 
within the meaning of the Migrant and Seasonal Agricultural Worker 
Protection Act, 29 U.S.C. 1802(3), regardless of the number of 
employees, including employees engaged in hand packing of produce into 
containers, whether done on the ground, on a moving machine, or in a 
temporary packing shed, except that Kentucky retains enforcement 
responsibility over agricultural temporary labor camps for employees 
engaged in egg, poultry, or red meat production, or the post-harvest 
processing of agricultural or horticultural commodities.
    (c) Kentucky is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as

[[Page 72]]

the Assistant Secretary may from time to time require.

[50 FR 24896, June 13, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65 
FR 36624, June 9, 2000]



Sec. 1952.235  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Kentucky plan under section 18(e) of the Act, 
effective June 13, 1985, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Kentucky plan. This determination 
also relinquishes concurrent Federal OSHA authority to issue citations 
for violations of such standards under sections 5(a)(2) and 9 of the 
Act; to conduct inspections and investigations under section 8 (except 
those necessary to conduct evaluation of the plan under section 18(b) 
and other inspections, investigations, or proceedings necessary to carry 
out Federal responsibilities not specifically preempted by section 
18(e)); to conduct enforcement proceedings in contested cases under 
section 10; to institute proceedings to correct imminent dangers under 
section 13; and to propose civil penalties or initiate criminal 
proceedings for violations of the Federal Act under section 17. The 
Assistant Secretary retains jurisdiction under the above provisions in 
any proceeding commenced under section 9 or 10 before the effective date 
of the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Kentucky plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to maritime employment (29 CFR 
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification) as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments; employment at 
Tennessee Valley Authority facilities and on all military bases, as well 
as any other properties ceded to the U.S. Government. Federal 
jurisdiction is retained and exercised by the Employment Standards 
Administration, U.S. Department of Labor, (Secretary's Order 5-96, dated 
December 27, 1996) with respect to the field sanitation standard, 29 CFR 
1928.110, and the enforcement of the temporary labor camps standard, 29 
CFR 1910.142, in agriculture, as described in Sec. 1952.234(b). Federal 
jurisdiction is also retained with respect to Federal government 
employers and employees; and the U.S. Postal Service (USPS), including 
USPS employees, and contract employees and contractor-operated 
facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
finally approved plan, and shall be subject to Federal enforcement. 
Where enforcement jurisdiction is shared between Federal and State 
authorities for a particular area, project, or facility, in the interest 
of administrative practicability, Federal jurisdiction may be assumed 
over the entire project or facility. In either of the two aforementioned 
circumstances, Federal enforcement may be exercised immediately upon 
agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational

[[Page 73]]

safety and health standards which address the working conditions of all 
employees, including those in States which have received an affirmative 
18(e) determination, although such standards may not be Federally 
applied. In the event that the State's 18(e) status is subsequently 
withdrawn and Federal authority reinstated, all Federal standards, 
including any standards promulgated or modified during the 18(e) period, 
would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Kentucky State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 24896, June 13, 1985, as amended at 62 FR 2562, Jan. 17, 1997; 65 
FR 36624, June 9, 2000]



Sec. 1952.236  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Atlanta Federal Center, 61 
Forsyth Street, SW., Room 6T50, Atlanta, Georgia 30303; and
Office of the Secretary, Kentucky Labor Cabinet, 1047 U.S. Highway 127 
South, Suite 4, Frankfort, Kentucky 40601.

[65 FR 36625, June 9, 2000]



Sec. 1952.237  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Kentucky's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2)  [Reserved]
    (b) The Voluntary Protection Program. On October 24, 1996, the 
Assistant Secretary approved Kentucky's plan supplement, which is 
generally identical to the Federal Voluntary Protection Program, with 
the exception that the State's VPP is limited to the ``Star'' level 
participation for general industry firms.
    (c) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved Kentucky's plan amendment, dated 
July 29, 1996, relinquishing coverage for the issues of field sanitation 
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in 
agriculture (except for agricultural temporary labor camps associated 
with egg, poultry or red meat production, or the post-harvest processing 
of agricultural or horticultural commodities.) The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in Kentucky 
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.

[59 FR 14556, Mar. 29, 1994, as amended at 61 FR 55099, Oct. 24, 1996; 
62 FR 2563, Jan. 17, 1997]



                            Subpart R--Alaska



Sec. 1952.240  Description of the plan as initially approved.

    (a) The Department of Labor is the State agency designated by the 
Governor to administer the plan throughout the State. The plan defines 
the covered occupational safety and health issues as defined by the 
Secretary of Labor in Sec. 1902.2(c)(1) of this chapter under four major 
codes for general safety, industrial housing, electrical hazards, and 
occupational health and environmental controls. The plan also includes 
vertical special industry codes for construction, wood products, 
petroleum, and fishing. Appendix G of the plan contains a time-table for 
adoption of the standards beginning with the effective date of the grant 
approved under section 23(g) of the Act. The timetable requires from 6 
to 36 months for completion of the standard-setting

[[Page 74]]

process with most of the standards to be adopted within 6 months of the 
effective date of the grant.
    (b)(1) The plan included draft legislation which has been passed by 
the State legislature and signed by the Governor amending chapter 18 of 
the Alaska Statutes. Under the legislation, effective July 24, 1973, the 
Department of Labor has full authority to enforce and administer laws 
respecting safety and health of employees in all workplaces of the 
State, including coverage of public employees, with the exceptions of 
maritime workers in the area of exclusive Federal jurisdiction; 
employees of the United States; employees protected by State agencies 
under the Atomic Energy Act of 1954, (42 U.S.C. 2021); and employees 
whose working conditions are regulated by Federal agencies other than 
the U.S. Department of Labor under the provisions of section 4(b)(1) of 
the Occupational Safety and Health Act of 1970. (84 Stat. 1592, 29 
U.S.C. 653(b)(1)).
    (2) The legislation brings the plan into conformity with the 
requirements of part 1902 of this chapter in areas such as procedures 
for granting or denying permanent and temporary variances to standards 
by the Commissioner; protection of employees from hazards; promulgation 
of standards by the Commissioner prescribing requirements ``at least as 
effective'' as the requirements for Federal Standards including medical 
examinations and monitoring and measuring of hazards; imminent danger 
abatement by administrative order and court injunction; protection of 
employees against discharge or discrimination in terms or conditions of 
employment by filing complaints with the Commissioner who will seek 
court action through the State Attorney General; and adequate safeguards 
to protect trade secrets.
    (3) The legislation provides for inspections, including inspections 
in response to complaints; gives employers and employee representatives 
an opportunity to accompany inspectors in order to aid inspections and 
provides for payment to employees for time spent in aiding an 
inspection; notification of employees or their representatives when no 
compliance action is taken as a result of an alleged violation, 
including informal review; notification of employees of their 
protections and obligations through legislative requirements on posting; 
provision for prompt notice to employers and employees of alleged 
violations of standards, and abatement requirements, through the 
issuance and posting of citations; a system of sanctions against 
employers for violations of standards; employer right of review to the 
Occupational Safety and Health Review Board; and employee participation 
in the review procedure with compensation for time spent by the 
employee.
    (c) Included in the plan is a statement of legal opinion that the 
law, which was supported by the Governor in accordance with the 
requirements of part 1902 of this chapter, is consistent with the 
Constitution and laws of Alaska. The plan sets out goals and provides a 
timetable for bringing it into full conformity with part 1902 of this 
chapter at the end of three years after commencement of operations under 
the plan. Personnel will be employed under the existing State merit 
system and the voluntary compliance program for on-site consultation 
meets the conditions set forth in the Washington decision (38 FR 2421). 
The plan also includes the State Administrative Procedure Act which 
authorizes the Commissioner to promulgate emergency temporary standards 
and issue rules and regulations necessary for the implementation of the 
safety and health law.
    (d) The plan includes the following documents as of the date of 
approval:
    (1) The plan document and appendices A through V.
    (2) Alaska legislation as enacted amending chapter 18 of the Alaska 
Statutes.
    (3) Letters from the Commissioner of Labor dated May 25, 1973, June 
15, 1973, and July 10, 1973.

[38 FR 21630, Aug. 10, 1973, as amended at 49 FR 38261, Sept. 28, 1984]



Sec. 1952.241  Developmental schedule.

    The Alaska plan is developmental. The Schedule of developmental 
steps (described in the plan as revised in letters dated September 17, 
1975, February 10, 1976, and April 15, 1976, from Edmond N. Orbeck, 
Commissioner, Alaska

[[Page 75]]

Department of Labor, to James Lake, Regional Administrator for 
Occupational Safety and Health) follows:
    (a) Promulgation of occupational safety and health standards, as 
effective as corresponding Federal standards promulgated under chapter 
XVII of title 29, Code of Federal Regulations by September 1976.
    (b) A Compliance Operations Manual for the guidance of compliance 
personnel will be developed and printed by February 1, 1974.
    (c) A Management Information System (MIS) will be developed by 
October 1, 1974.
    (d) An interim training schedule (appendix M) will be initiated by 
April 1, 1974. An extended training plan of substantially permanent form 
will be developed and adopted by October 1, 1976.
    (e) Complete hiring of industrial health staff by October 1, 1976.
    (f) Provide for an Industrial Health laboratory capacity by October 
1, 1976.
    (g) Adoption of the following regulations by January 30, 1975:
    (1) Recordkeeping and Reporting;
    (2) Variances;
    (3) Exceptions to the prohibitions against advance notice (such 
exceptions to be no broader than those contained in 29 CFR part 1903);
    (4) Clarification of the appropriate parties for employers to notify 
in order to file a notice of contest;
    (5) A definition of imminent danger that mirrors the Federal 
definition;
    (6) A regulation to allow affected employees to participate as 
parties in hearings.

[41 FR 56315, Dec. 28, 1976. Redesignated at 49 FR 38261, Sept. 28, 
1984]



Sec. 1952.242  Completed developmental steps.

    (a) In accordance with Sec. 1952.243(d) Alaska completed its interim 
training program by April 1, 1974, and has developed and adopted an 
extended training program by October 1, 1976 (41 FR 36206).
    (b) In accordance with Sec. 1952.243(c) Alaska has developed and 
implemented a manual Management Information System by October 1, 1974 
(41 FR 36206).
    (c) In accordance with the requirements of Sec. 1952.10 the Alaska 
Safety and Health Poster for private and public employees was approved 
by the Assistant Secretary on September 28, 1976 (41 FR 43405).
    (d) In accordance with Sec. 1952.243(e) Alaska has completed hiring 
of its industrial health staff by October 1, 1976 (41 FR 52556).
    (e) In accordance with Sec. 1952.243(f) Alaska has provided for an 
Industrial Health Laboratory capacity by October 1, 1976 (41 FR 36206).
    (f) In accordance with Sec. 1952.243(g) Alaska has adopted 
regulations covering inspections, citations, and proposed penalties, 
Alaska Occupational Safety and Health Review Board procedures; recording 
and reporting occupational injuries and illnesses; variances; and 
consulting and training which were approved by the Assistant Secretary 
on August 2, 1977.
    (g) In accordance with Sec. 1952.243(b) Alaska has developed a 
Compliance Manual which is modeled after the Federal Field Operations 
Manual and was approved by the Assistant Secretary on August 2, 1977.
    (h) In accordance with Sec. 1902.34 of this chapter, the Alaska 
occupational safety and health plan was certified, effective September 
9, 1977, as having completed on or before October 1, 1976, all 
developmental steps specified in the plan as approved on July 31, 1973.

[41 FR 56315, Dec. 28, 1976, as amended at 42 FR 40196, Aug, 9, 1977; 42 
FR 45907, Sept 13, 1977. Redesignated at 49 FR 38261, Sept. 28, 1984]



Sec. 1952.243  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after a determination that the State met the ``fully 
effective'' compliance staffing benchmarks as established in 1980 in 
response to a Court Order in AFL-CIO v. Marshall, (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Unified Management Information, System, the Assistant 
Secretary evaluated actual operations under the Alaska State plan for a 
period of at least one year following certification of completion of 
developmental steps (Sept. 9, 1977, 42 FR 54905). Based on the 
Evaluation Report for FY 1983 and available FY 1984 data, and

[[Page 76]]

after opportunity for public comment and an informal public hearing held 
on June 7, 1984 in Anchorage, Alaska, the Assistant Secretary determined 
that in actual operations, the State of Alaska occupational safety and 
health program is at least as effective as the Federal program in 
providing safe and healthful employment and places of employment and 
meets the criteria for final States plan approval in section 18(e) of 
the Act and implementing regulations at 29 CFR part 1902. Accordingly, 
the Alaska plan was granted final approval and concurrent Federal 
enforcement authority was relinquised under section 18(e) of the Act 
effective September 26, 1984.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Alaska. The plan does not cover private sector maritime employment; 
worksites located on the navigable waters, including artificial islands; 
operations of private sector employers within the Metlakatla Indian 
Community on the Annette Islands; operations of private sector employers 
within Denali (Mount McKinley) National Park; Federal government 
employers and employees; the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations; or the enforcement of the field 
sanitation standard, 29 CFR 1928.110, and the enforcement of the 
temporary labor camps standard, 29 CFR 1910.142, with respect to any 
agricultural establishment where employees are engaged in ``agricultural 
employment'' within the meaning of the Migrant and Seasonal Agricultural 
Worker Protection Act, 29 U.S.C. 1802(3), regardless of the number of 
employees, including employees engaged in hand packing of produce into 
containers, whether done on the ground, on a moving machine, or in a 
temporary packing shed, except that Alaska retains enforcement 
responsibility over agricultural temporary labor camps for employees 
engaged in egg, poultry, or red meat production, or the post-harvest 
processing of agricultural or horticultural commodities.
    (c) Alaska is required: To maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[49 FR 38261, Sept. 28, 1984, as amended at 54 FR 115, Jan. 4, 1989; 62 
FR 2563, Jan. 17, 1997; 65 FR 36625, June 9, 2000]



Sec. 1952.244  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Alaska plan under section 18(e) of the Act, 
effective September 26, 1984, occupational safety and health standards 
which have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Alaska plan. This determination also 
relinquishes concurrent Federal OSHA authority to issue citations for 
violation of such standards under sections 5(a)(2) and 9 of the Act; to 
conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(b) and 
other inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or inititate criminal proceedings for 
violations of the Federal Act under section 17. The Assistant Secretary 
may retain jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Alaska plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety

[[Page 77]]

and health in private sector maritime activities and will continue to 
enforce all provisions of the Act, rules or orders, and all Federal 
standards, current or future, specifically directed to maritime 
employment (29 CFR Part 1915, shipyard employment; Part 1917, marine 
terminals; Part 1918, longshoring; Part 1919, gear certification) as 
well as provisions of general industry and construction standards (29 
CFR Parts 1910 and 1926) appropriate to hazards found in these 
employments. Federal jurisdiction will be retained over marine-related 
private sector employment at worksites on the navigable waters, such as 
floating seafood processing plants, marine construction, employments on 
artificial islands, and diving operations in accordance with section 
4(b)(1) of the Act. Federal jurisdiction is also retained and exercised 
by the Employment Standards Administration, U.S. Department of Labor 
(Secretary's Order 5-96, December 27, 1996) with respect to the field 
sanitation standard, 29 CFR 1928.110, and the enforcement of the 
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as 
described in Sec. 1952.243(b). Federal jurisdiction is also retained for 
private sector worksites located within the Annette Islands Reserve of 
the Metlakatla Indian Community, for private sector worksites located 
within the Denali (Mount McKinley) National Park, for Federal government 
employers and employees, and for the U.S. Postal Service (USPS), 
including USPS employees, and contract employees and contractor-operated 
facilities engaged in USPS mail operations.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such standards may 
not be Federally applied. In the event that the State's 18(e) status is 
subsequently withdrawn and Federal authority reinstated, all Federal 
standards, including any standards promulgated or modified during the 
18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Alaska State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[49 FR 38261, Sept. 28, 1984, as amended at 54 FR 115, Jan. 4, 1989; 62 
FR 2563, Jan. 17, 1997; 65 FR 36625, June 9, 2000]



Sec. 1952.245  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Suite 715, 1111 Third Avenue, 
Seattle, Washington, 98101-3212; and
Office of the Commissioner, Alaska Department of Labor, 1111 W. 8th 
Street, Room 306, P.O. Box 24119, Juneau, Alaska 99802-1149.

[65 FR 36625, June 9, 2000]



Sec. 1952.246  Changes to approved plans.

    (a) In accordance with part 1953 of this chapter, the following 
Alaska plan changes were approved by the Assistant Secretary:
    (1) The State submitted a revised field operations manual patterned 
after and responsive to modifications to the

[[Page 78]]

Federal field operations manual in effect February 11, 1985 which 
superseded its earlier approved manual. The Assistant Secretary approved 
the manual on October 24, 1985.
    (2) The State submitted an industrial hygiene technical manual 
patterned after and responsive to modifications to the Federal manual in 
effect October 29, 1984. The Assistant Secretary approved the manual on 
October 24, 1985.
    (3) The State submitted an inspection scheduling system patterned 
after and responsive to the Federal system in effect October 29, 1984. 
The Assistant Secretary approved the supplement on October 24, 1985.
    (4) The State submitted an amendment to its legislation and field 
procedures which provided for issuance of an onsite notice of violations 
which serves to require correction of other than serious violations in 
lieu of a citation. The Assistant Secretary approved these changes on 
October 24, 1985.
    (5) The State submitted several changes on its administrative and 
review rules concerning personal sampling, ex parte warrants, petition 
to modify abatement dates, withdrawal of contest, recordkeeping 
penalties and exemptions, exemption from scheduled inspections after 
consultation, renaming the division of the State agency directly 
enforcing standards, and the address for filing contests. The Assistant 
Secretary approved these changes on October 24, 1985.
    (b) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Alaska's revised statutory penalty levels which are the same as 
the revised Federal penalty levels contained in section 17 of the Act as 
amended on November 5, 1990.
    (2)  [Reserved]
    (c) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved Alaska's plan amendment, dated 
October 1, 1996, relinquishing coverage for the issues of field 
sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) 
in agriculture (except for agricultural temporary labor camps associated 
with egg, poultry or red meat production, or the post-harvest processing 
of agricultural or horticultural commodities.) The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in Alaska 
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.

[50 FR 43133, Oct. 24, 1985, as amended at 59 FR 14556, Mar. 29, 1994; 
59 FR 50793, Oct. 5, 1994; 62 FR 2563, Jan. 17, 1997]



                      Subpart S--The Virgin Islands



Sec. 1952.250  Description of the plan as initially approved.

    (a) The Virgin Islands Occupational Safety and Health program will 
be administered and enforced by the Virgin Islands Department of Labor 
(hereafter called the agency). It will cover all activities of employees 
and places of private and public employment except those subject to 
subpart G of part 1910 and subpart D of part 1926 of this chapter 
relating to occupational health and environmental control and 
Secs. 1910.13--1910.16 and parts 1915--1918 of this chapter relating to 
maritime employment.
    (b)(1) The Plan requires employers of one or more employees to 
furnish them employment and a place of employment which are free from 
recognized hazards that are causing or are likely to cause death or 
serious physical harm, and to comply with all occupational safety and 
health standards promulgated or issued by the agency. The standards 
adopted by the United States Department of Labor covering issues within 
the scope of the plan will be adopted by the agency. The Plan also 
directs employees to comply with all occupational safety and health 
standards and regulations that are applicable to their own actions and 
conduct.
    (2) The Plan also requires each owner, lessor, agent or manager of 
any premises used in whole or in part as a place of employment to comply 
with safety and health standards and regulations established under the 
program.
    (c) The Plan includes procedures for providing prompt and effective 
standards for the protection of employees against new and unforeseen 
hazards and for furnishing information to employees on hazards, 
precautions, symptoms, and emergency treatment; and

[[Page 79]]

procedures for variances and the protection of employees from hazards. 
It provides employer and employee representatives an opportunity to 
accompany inspectors and call attention to possible violations, before, 
during, and after inspections, protection of employees against discharge 
or discrimination in terms and conditions of employment, notice to 
employees or their representatives when no compliance action is taken 
upon complaints, including informal review, notice to employees of their 
protections and obligations, adequate safeguards to protect trade 
secrets, prompt notice to employers and employees of alleged violations 
of standards and abatement requirements, effective remedies against 
employers and owners, and the right to review alleged violations, 
abatement periods, and proposed penalties with opportunity for employee 
participation in the review proceedings; procedures for prompt restraint 
or elimination of imminent danger conditions, and procedures for 
inspection in response to complaints.
    (d)(1) The Plan includes a legal opinion that it will meet the 
requirements of the Occupational Safety and Health Act of 1970, and is 
consistent with the laws of the Virgin Islands.
    (2) A merit system of personnel administration will be used.
    (3) A program of education, training, and consultation for employers 
and employees will be developed.
    (4) The Plan is supplemented by the inclusion of implementing 
legislation (Virgin Islands Act No. 3421) and bill number 6003 to 
correct section 14(e) thereof and a revised implementation time table.

[38 FR 24896, Sept. 11, 1973, as amended at 49 FR 16775, Apr. 20, 1984]



Sec. 1952.251  Developmental schedule.

    The following is a summary of the major developmental steps provided 
by the plan:
    (a) Commencement of recruitment and staff training--September 10, 
1973.
    (b) Effective date of implementing legislation--October 1, 1973.
    (c) Procedural and interpretative, regulations and standards to 
become effective--January 1, 1974.
    (d) Enforcement program to be operational--January 1, 1974.
    (e) Public employee program to be operational--July 15, 1974.
    (f) Program to be fully implemented--July 1, 1975.

[38 FR 24896, Sept. 11, 1973. Redesignated at 49 FR 16775, Apr. 20, 
1984]



Sec. 1952.252  Completion of developmental steps and certification.

    (a) In accordance with Sec. 1952.253(b), amendments to the Virgin 
Island legislation were passed March 11, and February 26, 1974.
    (b) In accordance with Sec. 1952.253(c), the Virgin Islands 
occupational safety and health standards were promulgated on March 21, 
1974.
    (c) In accordance with Sec. 1952.253(a) the Virgin Islands has 
completed the training as described therein.
    (d) The Virgin Islands has developed and implemented a manual 
Management Information System.
    (e) In accordance with the requirements of Sec. 1952.10 the Virgin 
Islands safety and health posters for private and public employees were 
approved by the Assistant Secretary on September 28, 1976.
    (f) The Virgin Islands has developed and implemented an effective 
Public Information Program.
    (g) The Virgin Islands amended its legislation to:
    (i) Delete reference to ``political subdivisions'' and substitute 
the term ``department,'' and
    (ii) To add new sections:
    (1) ``Variations, Tolerances and Exemptions,'' and
    (2) ``Disclosure of Confidential Trade Secrets.''
    (h) The Virgin Islands' Field Operations Manual (FOM) modeled after 
the Federal FOM has been developed by the State, and approved by the 
Assistant Secretary.
    (i) The Virgin Islands has developed:
    (1) An acceptable organizational chart;
    (2) Job descriptions for V.I. occupational safety and health 
employees which meet the necessary requirements;
    (3) A procedure to correct a problem of understaffing in the V.I. in 
terms of plan commitment;

[[Page 80]]

    (4) A procedure for rating and ranking candidates; and
    (5) An Affirmative Action Plan for Equal Employment Opportunity 
acceptable to CSC.
    (j) In accordance with Sec. 1952.253(e), the Virgin Islands 
implemented the public employee program in July 1975.
    (k) In accordance with Sec. 1952.253(c), the Virgin Islands adopted 
the Administrative Regulations on March 11, 1974.
    (l) In accordance with Sec. 1952.253(d), the safety enforcement 
program in the Virgin Islands was operation in April 1974.

The supplement was approved by the Assistant Secretary on August 3, 
1981.
    (m) In accordance with Sec. 1902.34 of this chapter, the Virgin 
Islands' occupational safety and health plan was certified effective 
September 22, 1981 as having completed all developmental steps specified 
in the plan as approved on September 11, 1973, on or before August 31, 
1976.

This certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[40 FR 11352, Mar. 11, 1975, as amended at 41 FR 43406, Oct. 1, 1976; 42 
FR 40195, Aug. 9, 1977; 44 FR 76783, Dec. 28, 1979; 45 FR 56054, Aug. 
22, 1980; 46 FR 41046, Aug. 14, 1981; 46 FR 46808, Sept 22, 1981. 
Redesignated at 49 FR 16775, Apr. 20, 1984]



Sec. 1952.253  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after a determination that the State met the ``fully 
effective'' compliance staffing benchmarks established in response to a 
Court Order in AFL-CIO v. Marshall (CA 74-406), and was satisfactorily 
providing reports to OSHA through participation in the Federal/State 
Unified Management Information System, the Assistant Secretary evaluated 
actual operations under the Virgin Islands State plan for a period of at 
least one year following certification of completion of developmental 
steps (Sept. 21, 1981, 46 FR 46807). Based on the Evaulation Report for 
FY 1982 and available FY 1983 data and after opportunity for public 
comment and an informal public hearing held on June 29, 1983, in St. 
Thomas, Virgin Islands, the Assistant Secretary determined that in 
actual operations, the Virgin Islands State plan is at least as 
effective as the Federal program in providing safe and healthful 
employment and places of employment and meets the criteria for final 
State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Virgin Islands plan 
was granted final approval and concurrent Federal enforcement authority 
was relinquished under section 18(e) of the Act effective April 17, 
1984. Note: The Virgin Islands final approval status under section 18(e) 
of the Act was suspended and Federal concurrent enforcement authority 
reinstated on November 13, 1995.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in the Virgin Islands. The plan does not cover private sector maritime 
employment; Federal government employers and employees; the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations; the 
enforcement of the field sanitation standard, 29 CFR 1928.110, and the 
enforcement of the temporary labor camps standard, 29 CFR 1910.142, with 
respect to any agricultural establishment where employees are engaged in 
``agricultural employment'' within the meaning of the Migrant and 
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3), 
regardless of the number of employees, including employees engaged in 
hand packing of produce into containers, whether done on the ground, on 
a moving machine, or in a temporary packing shed, except that the Virgin 
Islands retains enforcement responsibility over agricultural temporary 
labor camps for employees engaged in egg, poultry, or red meat 
production, or the post-harvest processing of agricultural or 
horticultural commodities.
    Note: The Virgin Islands' final approval status under section 18(e) 
of the Act was suspended and full Federal concurrent enforcement 
authority reinstated on November 13, 1995.
    (c) The Virgin Islands is required to maintain a State program which 
is at least as effective as operations under

[[Page 81]]

the Federal program; to submit plan supplements in accordance with 29 
CFR part 1953; to allocate sufficient safety and health enforcement 
staff to meet the benchmarks for State staffing established by the U.S. 
Department of Labor, or any revision to those benchmarks; and, to 
furnish such reports in such form as the Assistant Secretary may from 
time to time require.
    (d) As a result of Federal monitoring of the U.S. Virgin Islands 
State Plan and after opportunity for public comment, the Assistant 
Secretary for Occupational Safety and Health has determined that the 
State Plan no longer meets the criteria for final approval under section 
18(e). As a result the final approval status has been suspended and the 
State Plan reverts to ``initial approval'' status effective November 13, 
1995. Concurrent Federal enforcement authority over occupational safety 
issues in the U.S. Virgin Islands has been reinstituted pending the 
necessary corrective action by the State Plan to again meet the criteria 
for an 18(e) final approval determination. Concurrent Federal 
enforcement authority will be exercised in the U.S. Virgin Islands 
effective November 13, 1995, and will continue until further notice.

[49 FR 16775, Apr. 20, 1984, as amended at 60 FR 56951, Nov. 13, 1995; 
62 FR 2563, Jan. 17, 1997; 65 FR 36625, June 9, 2000]



Sec. 1952.254  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination to 
suspend the final approval determination under section 18(e) for the 
Virgin Islands state plan, effective November 13, 1995, Federal 
occupational safety standards which have been promulgated under section 
6 of the Act now apply to all covered employers in the Virgin Islands. 
Until subsequent determinations are made by Federal OSHA affecting the 
level of Federal enforcement in the Virgin Islands, discretionary 
Federal concurrent enforcement authority will be exercised in the 
following manner. Federal OSHA will exercise the full range of 
enforcement authority available under the Act, including but not limited 
to, issuance of citations under section 9 for violations of any 
requirement of section 5, of any standard, rule or order promulgated 
pursuant to section 6, or of any regulation prescribed pursuant to the 
Act; conduct of inspections and investigations under section 8; conduct 
of enforcement proceedings in contested cases under section 10; 
institution of proceedings to correct imminent dangers under section 13; 
and proposal of civil penalties or initiation of criminal proceedings 
for violations of the Act under section 17 with regard to occupational 
safety issues in the private sector. The Virgin Islands retains full 
authority under its approved State plan to continue to adopt and enforce 
occupational safety standards including issuing citations for violations 
thereof, proposing penalties and adjudicating contested cases under 
State law. Where State and Federal compliance officers conduct joint 
inspections, enforcement actions may be either Federal or State.
    (b) Federal OSHA also continues to retain full authority over issues 
which have not been subject to State enforcement under the Virgin 
Islands plan. Thus, OSHA retains authority to enforce all provisions of 
the Act, Federal standards, rules, or orders which relate to 
occupational health in private sector employment in the Virgin Islands. 
OSHA also retains its authority relative to safety and health in private 
sector maritime activities and will continue to enforce all provisions 
of the Act, Federal standards, rules, or orders specifically directed to 
maritime employment (e.g., 29 CFR Part 1915, shipyard employment; 29 CFR 
Part 1917, marine terminals; 29 CFR Part 1918, longshoring; 29 CFR Part 
1919, gear certification), as well as provisions of general industry and 
construction standards (29 CFR Parts 1910 and 1926) appropriate to 
hazards found in these employments. Federal jurisdiction is retained 
with respect to Federal government employers and employees; and the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations. 
Federal jurisdiction is also retained and exercised by the Employment 
Standards Administration, U.S. Department of Labor,

[[Page 82]]

(Secretary's Order 5-96, dated December 27, 1996) with respect to the 
field sanitation standard, 29 CFR 1928.110, and the enforcement of the 
temporary labor camps standard, 29 CFR 1910.142, in agriculture, as 
described in Sec. 1952.253(b).
    (c) The Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act. The Assistant Secretary also retains his authority 
under section 6 of the Act to promulgate, modify or revoke occupational 
safety and health standards which address the working conditions of all 
employees. Any Federal standards, including any standards promulgated or 
modified during the period of the Virgin Islands final approval under 
section 18(e), are now enforceable by Federal OSHA.
    (d) The Assistant Secretary also retains authority to continue to 
conduct investigations and inspections for the purpose of the evaluation 
of the Virgin Islands State plan under section 18 (e) and (f) of the 
Act. The Regional Administrator will closely monitor State performance 
and corrective action and make prompt recommendation to the Assistant 
Secretary for either reinstatement of the Virgin Islands final approval 
status or initiation of plan withdrawal action. Federal enforcement 
authority will continue to be exercised to the extent necessary to 
assure occupational safety and health protection to employees in the 
Virgin Islands until further notice.

[60 FR 56951, Nov. 13, 1995, as amended at 62 FR 2563, Jan. 17, 1997; 65 
FR 36626, June 9, 2000]



Sec. 1952.255  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW, Room N3700, 
Washington, DC 20210;
Regional Administrator, Occupational Safety and Health Administration, 
U.S. Department of Labor, 201 Varick Street, Room 670, New York, New 
York 10014.
Office of the Commissioner, Virgin Islands Department of Labor, 16-AB 
Church Street, St. Croix, Virgin Islands 00820-4666.

[65 FR 36626, June 9, 2000]



Sec. 1952.256  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Virgin Islands' revised statutory penalty levels which are the 
same as the revised Federal penalty levels contained in section 17 of 
the Act as amended on November 5, 1990.
    (2)  [Reserved]
    (b) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved the Virgin Island's plan 
amendment, dated July 31, 1996, relinquishing coverage for the issues of 
field sanitation (29 CFR 1928.110) and temporary labor camps (29 CFR 
1910.142) in agriculture (except for agricultural temporary labor camps 
associated with egg, poultry or red meat production, or the post-harvest 
processing of agricultural or horticultural commodities.) The Employment 
Standards Administration, U.S. Department of Labor, has assumed 
responsibility for enforcement of these Federal OSHA standards in 
agriculture in the Virgin Islands pursuant to Secretary of Labor's Order 
5-96, dated December 27, 1996.

[59 FR 14556, Mar. 29, 1994, as amended at 62 FR 2564, Jan. 17, 1997]



                           Subpart T--Michigan



Sec. 1952.260  Description of the plan as initially approved.

    (a) The plan identifies the Michigan Department of Labor and the 
Department of Public Health as the agencies to be responsible for 
administering the plan throughout the State. The Department of Labor 
will be responsible for promulgating and enforcing general safety and 
construction safety standards while the Department of Public Health will 
be responsible for the promulgation and enforcement of occupational 
health standards. Two independent commissions within the Department of 
Labor, the Construction Safety Commission and the Occupational Safety 
Standards Commission

[[Page 83]]

will promulgate general and construction safety standards while the 
Director of Public Health will promulgate health standards. Applications 
for variances to standards will be handled by the two Departments. 
Administrative adjudications will be the responsibility of the 
Occupational Safety Compliance and Appeals Board, the Construction 
Safety Compliance and Appeals Board, and the Occupational Health Review 
Commission.
    (b) The State program is expected to extend its protection to all 
employees in the State (including those employed by it and its political 
subdivisions) except those employed by Federal agencies, maritime 
workers, household domestic workers, and mine workers.
    (c) The Plan provides that the State agencies will have full 
authority to administer and to enforce all laws, rules and orders 
protecting employee safety and health in all places of employment in the 
State. It also proposes procedures for providing prompt and effective 
standards for the protection of employees against new and unforseen 
hazards, and for furnishing information to employees on hazards, 
precautions, symptoms, and emergency treatment, and procedures for 
variances and the protection of employees from hazards. It further, 
provides employer and employee representatives an opportunity to 
accompany inspectors and call attention to possible violations before, 
during and after inspections, protection of employees against discharge 
or discrimination in terms and conditions of employment, notice to 
employees or their representatives when no compliance action is taken 
upon complaints, including informal review, notice to employees of their 
protections and obligations, adequate safeguards to protect trade 
secrets, prompt notice to employers and employees of alleged violations 
of standards and abatement requirements, effective remedies against 
employers, and the right to review alleged violations, abatement 
periods, and proposed penalties with opportunity for employee 
participation in the review proceeding, procedures for prompt restraint 
or elimination of imminent danger conditions, provision for the issuance 
of cease operation orders in cases where employers fail to comply with 
final orders for abatement, and provision for inspections in response to 
complaints.
    (d) The State intends to promulgate standards for all of the issues 
contained in 29 CFR parts 1910 and 1926 with the exception of Ship 
Repairing (Sec. 1910.13), Shipbuilding (Sec. 1910.14), Shipbreaking 
(Sec. 1910.15) and Longshoring (Sec. 1910.16), which standards are to be 
as effective as Federal standards. Michigan had originally not intended 
to promulgate a standard covering cooperage machinery comparable to 29 
CFR 1910.214, but it has now provided assurances that it will promulgate 
such standard if the hazards covered by the Federal cooperage standard 
are found to exist in Michigan. The State has already promulgated 
standards as effective as subparts F, K, M, Q and S and the remaining 
subparts are to be covered by State standards which are to be 
promulgated by June 1975.
    (e) The Plan includes a statement of the Governor's support for the 
proposed legislation and a statement of legal opinion that it will meet 
the requirements of the Occupational Safety and Health Act of 1970, and 
is consistent with the Constitution and laws of Michigan. The Plan sets 
out goals and provides a timetable for bringing it into full conformity 
with part 1902 of this title upon enactment of the proposed legislation 
by the State legislature. A merit system of personnel administration 
will be used. In addition, health and safety education and training 
programs are to be carried on for the benefit of employers and 
employees. The Department of Labor will also be conducting a Safety 
Director Program wherein companies which are found to have high injury 
incident rates will be assisted in developing safety programs.

[38 FR 27391, Oct. 3, 1973, as amended at 60 FR 20193, Apr. 25, 1995]



Sec. 1952.261  Developmental schedule.

    (a) Enactment of the Michigan Occupational Safety and Health Act by 
December 1973.
    (b) Promulgation of occupational safety and health standards as 
effective and comprehensive as those set forth in chapter XVII of this 
title 29 of the Code of Federal Regulations by June 1975.

[[Page 84]]

    (c) Completion of the Michigan Compliance Manual within one year 
after passage of the state legislation.
    (d) Promulgation of regulations similar to parts 1903, 1905, and 
2200 of this title within one year after passage of the state 
legislation.
    (e) Promulgation of 29 CFR part 1904 as a State regulation, 
including any amendments to part 1904, within one (1) year following 
passage of the proposed legislation.
    (f) Development of a new coordination agreement between the Michigan 
Departments of Labor and Public Health within three months following the 
passage of the proposed state legislation.
    (g) Implementation of the state's public employee program within one 
year following passage of the proposed legislation.
    (h) Within three years of plan approval all developmental steps will 
be fully implemented.

This certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[38 FR 27391, Oct. 3, 1973, as amended at 46 FR 3865, Jan. 16, 1981. 
Redesignated and amended at 60 FR 20193, Apr. 25, 1995]



Sec. 1952.262  Completion of developmental steps and certification.

    (a) In accordance with Sec. 1952.263(a), the Michigan Occupational 
Safety and Health Act was enacted on June 18, 1974 and is effective 
January 1, 1975. This legislation, Act 154 of Michigan Public Acts of 
1974, was submitted to the Assistant Secretary on June 19, 1974 and 
approved on February 21, 1975.
    (b) In accordance with Sec. 1952.263(f) the Michigan Department of 
Labor and the Michigan Department of Public Health have entered into a 
new interagency agreement on September 23, 1974. The agreement was 
submitted to the Assistant Secretary on October 28, 1974, and approved 
on February 21, 1975.
    (c) In accordance with the requirements of Sec. 1952.10, the 
Michigan State poster was approved by the Assistant Secretary on 
September 22, 1975.
    (d) In accordance with Sec. 1952.263(g) Michigan's public employee 
program was implemented with an effective date of July 1, 1975, and 
approved by the Assistant Secretary on October 17, 1977.
    (e) In accordance with Sec. 1952.263(d), Procedural Rules for the 
granting of Variances, Regulations for Inspections and Investigations, 
Citations, and Proposed Penalties and Procedural Rules for the Board of 
Health and Safety Compliance and Appeals, were approved by the Assistant 
Secretary on January 12, 1981.
    (f) In accordance with prior commitments, the Michigan Occupational 
Safety and Health Act as amended by Act 149 of the Public Acts of 1979, 
was approved by the Assistant Secretary on January 12, 1981.
    (g) In accordance with Sec. 1952.263(c), Manuals for Compliance 
Operations of the Michigan Department of Labor and Public Health were 
approved by the Assistant Secretary on January 13, 1981.
    (h) In accordance with Sec. 1952.263(e), Rules for Recording and 
Reporting of Occupational Injuries and Illnesses, were approved by the 
Assistant Secretary on January 13, 1981.
    (i) In accordance with Sec. 1902.34 of this chapter, the Michigan 
occupational safety and health plan was certified effective January 13, 
1981 as having completed all developmental steps specified in the plan 
as approved on September 24, 1973, on or before September 24, 1976.

[40 FR 8556, Feb. 28, 1975, as amended at 40 FR 44132, Sept. 25, 1975; 
42 FR 57123, Nov. 1, 1977; 46 FR 3862, 3863, Jan. 16, 1981. Redesignated 
and amended at 60 FR 20193, Apr. 25, 1995]



Sec. 1952.263  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (``benchmarks'') necessary for a ``fully 
effective'' enforcement program were required for each State operating 
an approved State plan. In 1992, Michigan completed, in conjunction with 
OSHA, a reassessment of the levels initially established in 1980 and 
proposed revised benchmarks of 56 safety and 45 health compliance 
officers. After opportunity for public comment and service on the AFL-
CIO, the Assistant Secretary approved these revised staffing 
requirements on April 20, 1995.

[60 FR 20193, Apr. 25, 1995]

[[Page 85]]



Sec. 1952.264  [Reserved]



Sec. 1952.265  Level of Federal enforcement.

    Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this chapter 
under which an agreement has been entered into with Michigan, effective 
January 6, 1977, and based on a determination that Michigan is 
operational in the issues covered by the Michigan occupational safety 
and health plan, discretionary Federal enforcement activity under 
section 18(e) of the Act (29 U.S.C. 667(e)) will not be initiated with 
regard to Federal occupational safety and health standards in issues 
covered under 29 CFR Parts 1910 and 1926, except as provided in this 
section. The U.S. Department of Labor will continue to exercise 
authority, among other things, with regard to: Complaints filed with the 
U.S. Department of Labor about violations of the discrimination 
provisions of section 11(c) of the Act (29 U.S.C. 660(c)); Federal 
standards promulgated subsequent to the agreement where necessary to 
protect employees, as in the case of temporary emergency standards 
promulgated under section 6(c) of the Act (29 U.S.C. 655(c)), in the 
issues covered under the plan and the agreement until such time as 
Michigan shall have adopted equivalent standards in accordance with 
subpart C of 29 CFR Part 1953; private sector maritime activities and 
will continue to enforce all provisions of the Act, rules or orders, and 
all Federal standards, current or future, specifically directed to 
maritime employment (29 CFR Part 1915, shipyard employment; Part 1917, 
marine terminals; Part 1918, longshoring; Part 1919, gear certification) 
as well as provisions of general industry and construction standards (29 
CFR Parts 1910 and 1926) appropriate to hazards found in these 
employments; which issues have been specifically excluded from coverage 
under the Michigan plan; and investigations and inspections for the 
purpose of the evaluation of the Michigan plan under sections 18(e) and 
(f) of the Act (29 U.S.C. 667(e) and (f)). Federal OSHA will also retain 
authority for coverage of Federal government employers and employees; 
and of the U.S. Postal Service (USPS), including USPS employees, and 
contract employees and contractor-operated facilities engaged in USPS 
mail operations. The OSHA Regional Administrator will make a prompt 
recommendation for the resumption of the exercise of Federal enforcement 
authority under section 18(e) of the Act (29 U.S.C. 667(e)) whenever, 
and to the degree, necessary to assure occupational safety and health 
protection to employees in Michigan.

[65 FR 36626, June 9, 2000]



Sec. 1952.266  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 230 S. Dearborn Street, 32nd 
Floor, Room 3244, Chicago, Illinois 60604;
Office of the Director, Michigan Department of Consumer and Industry 
Services, 4th Floor, Law Building, 525 West Ottawa Street, Lansing, 
Michigan 48933 (Mailing address: P.O. Box 30004, Lansing, Michigan 
48909).

[65 FR 36626, June 9, 2000]



Sec. 1952.267  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Michigan's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2)  [Reserved]
    (b)  [Reserved]

[59 FR 14556, Mar. 29, 1994. Redesignated at 60 FR 20193, Apr. 25, 1995]



                           Subpart U--Vermont

    Source: 38 FR 28659, Oct. 16, 1973, unless otherwise noted.



Sec. 1952.270  Description of the plan.

    (a) The State's program will be administered and enforced by the 
Department of Labor and Industry. Safety standards are to be promulgated 
by the

[[Page 86]]

Commissioner of Labor and Industry while the Secretary of the Agency of 
Human Services is to promulgate health standards. The Division of 
Industrial Hygiene, within the Department of Labor and Industry, will 
then have the responsibility of inspecting workplaces for violations of 
health standards. However, enforcement of the Vermont Occupational 
Safety and Health Act, including the issuance of citations for all 
violations, rests with the Department of Labor and Industry. 
Administrative adjudications will be the responsibility of an 
independent State Occupational Safety and Health Review Board.
    (b) The State program will protect all employees within the state 
including those employed by the State and its political subdivisions. 
Public employees are to be granted the same protections as are afforded 
employees in the private sector. Specific administrative procedures for 
implementing the plan within the State agencies are to be drafted by the 
Vermont Agency of Administration.
    (c) Vermont has adopted all Federal standards promulgated before 
December 31, 1972. Future permanent Federal standards will be adopted by 
the state within one year after promulgation by the Secretary of Labor.
    (d) The State enabling legislation became law on July 1, 1972. The 
Act sets forth the general authority and scope for implementing the 
plan. The plan also contains proposed amendments to the Act which are 
designed to bring the legislation into full conformity with section 
18(c) of the Federal Act and part 1902. The State has also adopted 
regulations patterned after 29 CFR parts 1903, 1904 and 1905.
    (e) The Vermont Act and the regulations drafted pursuant to it 
provide procedures for prompt and effective standards-setting for the 
protection of employees against new and unforeseen hazards and for 
furnishing information to employees on hazards, precautions, symptoms, 
and emergency treatment; variances; the giving to employer and employee 
representatives an opportunity to accompany inspectors and to call 
attention to possible violations before, during, and after inspections; 
the protection of employees against discharge or discrimination in terms 
or conditions of employments; notice to employees or their 
representatives when no compliance action is taken upon complaints, 
including informal review; notice to employees of their protections and 
obligations; adequate safeguards to protect trade secrets; prompt notice 
to employers and employees of alleged violations of standards and 
abatement requirements; effective sanctions against employers; the right 
to review alleged violations, abatement periods, and proposed penalties 
with the opportunity for employee participation in the review 
proceedings; prompt restraint or elimination of imminent danger 
conditions; and the development of a program to encourage voluntary 
compliance by employers and employees.
    (f) The plan includes a statement of the Governor's support of it 
and of the proposed amendments to its legislation. It sets out goals and 
provides a timetable for bringing the plan into full conformity with 
part 1902. Personnel hired under the state's merit system will carry out 
the program.



Sec. 1952.271  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, John F. Kennedy Federal 
Building, Room E-340, Boston, Massachusetts 02203; and
Office of the Commissioner, Vermont Department of Labor and Industry, 
National Life Building-Drawer 20, 120 State Street, Montpelier, Vermont 
05620-3401.

[65 FR 36626, June 9, 2000]



Sec. 1952.272  Level of Federal enforcement.

    Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this chapter 
under which an agreement has been entered into with Vermont, effective 
February 19, 1975, and based on a determination that

[[Page 87]]

Vermont is operational in issues covered by the Vermont occupational 
safety and health plan, discretionary Federal enforcement authority 
under section 18(e) of the Act (29 U.S.C. 667(e)) will not be initiated 
with regard to Federal occupational safety and health standards in 
issues covered under 29 CFR Parts 1910 and 1926, except as provided in 
this section. The U.S. Department of Labor will continue to exercise 
authority, among other things, with regard to: Complaints filed with the 
U.S. Department of Labor about violations of the discrimination 
provisions of section 11(c) of the Act (29 U.S.C. 660(c)); federal 
standards promulgated subsequent to the agreement where necessary to 
protect employees, as in the case of temporary emergency standards 
promulgated under section 6(c) of the Act (29 U.S.C. 665(c)), in the 
issues covered under the plan and the agreement until such time as 
Vermont shall have adopted equivalent standards in accordance with 
Subpart C of 29 CFR Part 1953; in private sector offshore maritime 
activities and will continue to enforce all provisions of the Act, rules 
or orders, and all Federal standards, current or future, specifically 
directed to maritime employment (29 CFR Part 1915, shipyard employment; 
Part 1917, marine terminals; Part 1918, longshoring; Part 1919, gear 
certification) as well as provisions of general industry and 
construction standards (29 CFR Parts 1910 and 1926) appropriate to 
hazards found in these employments, as they relate to employment under 
the exclusive jurisdiction of the Federal government on the navigable 
waters of the United States, including dry docks, graving docks, and 
marine railways; and investigations and inspections for the purpose of 
the evaluation of the Vermont plan under sections 18(e) and (f) of the 
Act (29 U.S.C. 667(e) and (f)). Federal OSHA will also retain authority 
for coverage of Federal government employers and employees; and of the 
U.S. Postal Service (USPS), including USPS employees, and contract 
employees and contractor-operated facilities engaged in USPS mail 
operations. The OSHA Regional Administrator will make a prompt 
recommendation for the resumption of the exercise of Federal enforcement 
authority under Section 18(e) of the Act (29 U.S.C. 667(e)) whenever, 
and to the degree, necessary to assure occupational safety and health 
protection to employees in Vermont.

[65 FR 36627, June 9, 2000]



Sec. 1952.273  Developmental schedule.

    (a) Introduction and enactment of amendments to the Vermont 
Occupational Safety and Health Act in the 1974 session of the State 
legislature;
    (b) Completion of the State's Compliance Manual;
    (c) Drafting of rules governing the operation of the Occupational 
Safety and Health Review Board;
    (d) Development of specific administrative procedures for 
implementing the occupational safety and health program within the State 
agencies by January 1974;
    (e) Development of the State's Voluntary Compliance Program for 
Employers and Employees by January 1974;
    (f) Appointment of advisory committees for safety and health 
standards upon plan approval;
    (g) Within three years of plan approval all developmental steps will 
be fully implemented.



Sec. 1952.274  Completion of developmental steps and certification.

    (a) In accordance with Sec. 1952.273(a), amendments to the Vermont 
Occupational Safety and Health Act were passed by the legislature and 
signed by the Governor on April 3, 1974.
    (b) In accordance with Sec. 1952.273(c), rules governing the 
operation of the Occupational Safety and Health Review Board have been 
adopted, under section 230 of the Vermont Act, effective January, 1974.
    (c) In accordance with 29 CFR 1952.273(f), the Vermont Standards 
Advisory Council was established in January 1974.
    (d) In accordance with 29 CFR 1952.273(g), the following 
developmental steps have been implemented.
    (1) The health and safety enforcement program in the State of 
Vermont including enforcement of the State's occupational safety and 
health standards and regulations, was implemented on November 12, 1973.

[[Page 88]]

    (2) The Vermont Occupational Safety and Health Review Board has been 
in operation since October 1973, under rules and regulations formally 
promulgated on February 4, 1974 and approved on December 16, 1974 (39 FR 
44201, December 23, 1974).
    (3) Recordkeeping and reporting requirements, as approved on October 
1, 1973 (38 FR 28658), were implemented for both the private and public 
sectors on November 12, 1973.
    (4) Written procedures for coordination between Vermont's Division 
of Occupational Safety and Division of Occupational Health were 
formulated in June 1975, and revised in September 1975.
    (e) In accordance with the requirements of Sec. 1952.10 the Vermont 
Safety and Health Poster for private and public employees as amended by 
the attachment informing the public of its right to complain about State 
program administration, was approved by the Assistant Secretary on 
February 9, 1977.
    (f) In accordance with 29 CFR 1952.273(b), the State has developed a 
Field Operations Manual which defines the procedures and guidelines to 
be used by the Vermont compliance staff in carrying out the goals of the 
program and other local government workplaces and which has been 
approved by the Assistant Secretary on February 22, 1977.
    (g) In accordance with 29 CFR 1952.273(d), the State has developed 
and implemented a State Agency Program by July 1, 1974 and a Public 
Agency (local and municipal) Enforcement Program by November 12, 1973, 
which has been approved by the Assistant Secretary on February 22, 1977.
    (h) In accordance with 29 CFR 1952.273(e), the State of Vermont has 
developed and implemented its voluntary Compliance Program, including a 
training program for employers and employees, by February 1974, which 
has been approved by the Assistant Secretary as completion of 
developmental step on February 22, 1977.
    (i) In accordance with 29 CFR 1902.34, the Vermont occupational 
safety and health plan was certified, effective as of the date of 
publication on March 4, 1977, as having completed all developmental 
steps specified in the plan (as approved on October 1, 1973) on or 
before September 30, 1976.

[39 FR 44202, Dec. 23, 1974, as amended at 42 FR 2313, Jan. 11, 1977; 42 
FR 9169, Feb. 15, 1977; 42 FR 10989, Feb. 25, 1977, 42 FR 12428, Mar. 4, 
1977]



Sec. 1952.275  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Vermont's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2)  [Reserved]
    (b)  [Reserved]

[59 FR 14556, Mar. 29, 1994]

Subpart V [Reserved]



                            Subpart W--Nevada



Sec. 1952.290  Description of the plan as initially approved.

    (a) The Nevada Occupational Safety and Health program will be 
administered and enforced by the Department of Occupational Safety and 
Health of the Nevada Industrial Commission. Administrative adjudications 
of proposed penalties will be the responsibility of an independent five 
member review board appointed by the Governor.
    (b) The program will cover all activities of employees and places of 
private and public employment except those involving Federal employment, 
highway motor vehicles, and railroads, subject to the exercise of 
jurisdiction under other Federal safety and health programs. It requires 
employers of one or more employees (including those employed by the 
State and its political subdivisions) to furnish them employment and a 
place of employment which are free from recognized hazards that are 
causing or are likely to cause death or serious physical harm, and to 
comply with all occupational safety and health standards promulgated or 
issued by the agency. Moreover, all safety and health standards adopted 
by the United States Department of Labor shall be deemed Nevada 
Occupational Safety

[[Page 89]]

and Health standards. The Plan also directs employees to comply with all 
occupational safety and health standards and regulations that are 
applicable to their own actions and conduct.
    (c) The Plan includes procedures for providing prompt and effective 
standards for the protection of employees against new and unforeseen 
hazards and for furnishing information to employees on hazards, 
precautions, symptoms, and emergency treatment; and procedures for the 
issuance of variances. It provides employer and employee representatives 
an opportunity to accompany inspectors and call attention to possible 
violations, before, during, and after inspections; protection of 
employees against discharge or discrimination in terms and conditions of 
employment; notice to employees or their representatives when no 
compliance action is taken upon complaints, including informal review; 
notice to employees of their protections and obligations; adequate 
safeguards to protect trade secrets; prompt notice to employers and 
employees of alleged violations of standards and abatement requirements; 
effective remedies against employers and the right to review alleged 
violations, abatement periods, and proposed penalties with opportunity 
for employee participation in the review proceedings; procedures for 
prompt restraint or elimination of imminent danger conditions, and 
procedures for inspection in response to complaints.
    (d)(1) The Plan includes a legal opinion that it will meet the 
requirements of the Occupational Safety and Health Act of 1970, and is 
consistent with the Constitution and laws of the State of Nevada.
    (2) A merit system of personnel administration will be used.
    (3) The Plan provides a program of education, training, and 
consultation for employers and employees.
    (4) The Plan is supplemented by the inclusion of implementing 
legislation and letters dated July 26, August 10, and November 5, 1973, 
and a telegram dated December 5, 1973.

[39 FR 1009, Jan. 4, 1974, as amended at 39 FR 8613, Mar. 6, 1974]



Sec. 1952.291  Developmental schedule.

    The following is a summary of the major developmental steps provided 
by the plan:
    (a) Training of enforcement personnel to be completed--July 1, 1974.
    (b) Application of the program to State and local employees to take 
effect--July 1, 1974.
    (c) Not less than two industrial hygiene experts shall participate 
in the program--July 1, 1975.
    (d) Proposed amendments to the Nevada Occupational Safety and Health 
Act to have been adopted and to take effect--July 1, 1975.
    (e) System of recordkeeping and reporting fully developed and 
operational--January 1, 1977.
    (f) Program to be fully implemented--January 1, 1977.

[39 FR 1009, Jan. 4, 1974. Redesignated at 52 FR 34383, Sept. 11, 1987]



Sec. 1952.292  Completion of developmental steps and certification.

    (a) A separate and autonomous on-site consultation program became 
effective on July 1, 1975, and was approved by the Assistant Secretary 
on February 26, 1976.
    (b) In accordance with Sec. 1952.293(c), as amended, the Nevada 
health program was submitted on December 3, 1976 and has been 
implemented.
    (c) In accordance with the requirements of Sec. 1952.10, the Nevada 
poster for private employers was approved by the Assistant Secretary on 
December 23, 1977.
    (d) In accordance with Sec. 1952.293(a), initial training of Nevada 
personnel has been completed.
    (e) Nevada began participation in the Bureau of Labor Statistics 
annual survey of occupational injuries and illnesses on July 19, 1976.
    (f) Standards identical to Federal standards promulgated through 
January 18, 1977 were adopted by the State and approved by the Regional 
Administrator in a notice published in the Federal Register on July 26, 
1977 (42 FR 38026).
    (g) Regulations concerning the Rules of Occupational Safety and 
Health Recordkeeping Requirements were submitted on September 16, 1976, 
revised effective January 9, 1981, and approved

[[Page 90]]

by the Assistant Secretary on August 13, 1981.
    (h) Regulations concerning the Rules of Procedures of Occupational 
Safety and Health Review Commission; Rules of Practice for Variances; 
and Rules for Inspections, Citations, and Proposed Penalties were 
submitted on June 24, 1975, revised effective January 9, 1981, and 
approved by the Assistant Secretary on August 13, 1981.
    (i) Regulations concerning the Public Employee Program were 
submitted on June 24, 1975, revised effective February 15, 1979, and 
approved by the Assistant Secretary on August 13, 1981.
    (j) In accordance with the requirements of Sec. 1952.10, the revised 
poster was submitted on April 7, 1980, and approved by the Assistant 
Secretary on August 13, 1981.
    (k) Amendments to the State's legislation were submitted on June 24, 
1975 and July 1, 1977, became effective on July 1, 1975 and July 1, 
1977, and approved by the Assistant Secretary on August 13, 1981.
    (l) The Nevada Field Operations Manual was submitted on June 24, 
1975, revised to reflect those changes made in the Federal Field 
Operations Manual through March, 1981, and approved by the Assistant 
Secretary on August 13, 1981.
    (m) In accordance with Sec. 1902.34 of this chapter, the Nevada 
occupational safety and health plan was certified, effective August 13, 
1981 as having completed all developmental steps specified in the plan 
as approved on December 28, 1973, on or before January 1, 1977. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[41 FR 8955, Mar. 2, 1976, as amended at 42 FR 64627, Dec. 27, 1977; 46 
FR 42844, 42846, Aug. 25, 1981. Redesignated at 52 FR 34383, Sept. 11, 
1987]



Sec. 1952.293  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In July 1986 Nevada, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 11 safety and 5 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on September 2, 1987.

[52 FR 34383, Sept. 11, 1987]



Sec. 1952.294  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR Part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1986 in 
response to a court order in AFL-CIO v. Marshall, 570 F.2d 1030 (D.C. 
Cir 1978), and was satisfactorily providing reports to OSHA through 
participation in the Federal-State Integrated Management Information 
System, the Assistant Secretary evaluated actual operations under the 
Nevada State plan for a period of at least one year following 
certification of completion of developmental steps. Based on an 18(e) 
Evaluation Report covering the period July 1, 1995 through March 31, 
1999, and after opportunity for public comment, the Assistant Secretary 
determined that in operation the State of Nevada's occupational safety 
and health program is at least as effective as the Federal program in 
providing safe and healthful employment and places of employment and 
meets the criteria for final State plan approval in section 18(e) of the 
Act and implementing regulations at 29 CFR Part 1902. Accordingly, the 
Nevada plan was granted final approval and concurrent Federal 
enforcement authority was relinquished under section 18(e) of the Act 
effective April 18, 2000.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Nevada. The plan does not cover Federal government employers and 
employees; any private sector maritime activities; employment on Indian 
land; any contractors or subcontractors on any Federal

[[Page 91]]

establishment where the land is determined to be exclusive Federal 
jurisdiction; and the U.S. Postal Service (USPS), including USPS 
employees, contract employees, and contractor-operated facilities 
engaged in USPS mail operations.
    (c) Nevada is required to maintain a State program which is at least 
as effective as operations under the Federal program; to submit plan 
supplements in accordance with 29 CFR Part 1953; to allocate sufficient 
safety and health enforcement staff to meet the benchmarks for State 
staffing established by the U.S. Department of Labor, or any revisions 
to those benchmarks; and, to furnish such reports in such form as the 
Assistant Secretary may from time to time require.

[65 FR 20742, Apr. 18, 2000, as amended at 65 FR 36627, June 9, 2000]



Sec. 1952.295  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Nevada State plan under section 18(e) of the Act, 
effective April 18, 2000, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Nevada Plan. This determination also 
relinquishes concurrent Federal OSHA authority to issue citations for 
violations of such standards under section 5(a)(2) and 9 of the Act; to 
conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(f) and 
other inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal OSH Act under section 17. The Assistant 
Secretary retains jurisdiction under the above provisions in any 
proceeding commenced under section 9 or 10 before the effective date of 
the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Nevada plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to any private sector maritime 
activities (occupational safety and health standards comparable to 29 
CFR Parts 1915, shipyard employment; 1917, marine terminals; 1918, 
longshoring; and 1919, gear certification, as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments), employment on Indian 
land, and any contractors or subcontractors on any Federal establishment 
where the land is determined to be exclusive Federal jurisdiction. 
Federal jurisdiction is also retained with respect to Federal government 
employers and employees. Federal OSHA will also retain authority for 
coverage of the U.S. Postal Service (USPS), including USPS employees, 
contract employees, and contractor-operated facilities engaged in USPS 
mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons which OSHA determines are not related to the 
required performance or structure of the plan shall be deemed to be an 
issue not covered by the State plan which has received final approval, 
and shall be subject to Federal enforcement. Where enforcement 
jurisdiction is shared between Federal and State authorities for a 
particular area, project, or facility, in the interest of administrative 
practicability Federal jurisdiction may be assumed over the entire 
project or facility. In any of the aforementioned circumstances, Federal 
enforcement authority may be exercised after consultation with the State 
designated agency.

[[Page 92]]

    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the Nevada State plan. 
Thus, for example, the Assistant Secretary retains his authority under 
section 11(c) of the Act with regard to complaints alleging 
discrimination against employees because of the exercise of any right 
afforded to the employee by the Act, although such complaints may be 
referred to the State for investigation. The Assistant Secretary also 
retains his authority under section 6 of the Act to promulgate, modify 
or revoke occupational safety and health standards which address the 
working conditions of all employees, including those in States which 
have received an affirmative 18(e) determination, although such 
standards may not be Federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority reinstated, 
all Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Nevada State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
suspension or revocation of the final approval determination under 
Section 18(e), resumption of Federal enforcement, and/or proceedings for 
withdrawal of plan approval.

[65 FR 20742, Apr. 18, 2000, as amended at 65 FR 36627, June 9, 2000]



Sec. 1952.296  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations: Office of State Programs, Directorate of Federal-State 
Operations, Occupational Safety and Health Administration, U.S. 
Department of Labor, 200 Constitution Avenue NW, Room N3700, Washington, 
DC 20210; Office of the Regional Administrator, Occupational Safety and 
Health Administration, Room 415, 71 Stevenson Street, San Francisco, 
California 94105; Office of the State Designee, Administrator, Nevada 
Division of Industrial Relations, 400 West King Street, Suite 400, 
Carson City, Nevada 89703.

[65 FR 20743, Apr. 18, 2000]



Sec. 1952.297  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Nevada's revised statutory penalty levels which are the same as 
the revised Federal penalty levels contained in section 17 of the Act as 
amended on November 5, 1990.
    (2)  [Reserved]
    (b) Notices of violation. The State submitted a procedure for 
issuing notices of violation in lieu of citations for certain other than 
serious violations which the employer agrees to abate. The procedure as 
modified was approved by the Assistant Secretary on August 24, 1995.
    (c) Legislation. The State submitted amendments to its Occupational 
Safety and Health Act, enacted in 1981, which: provide for notices of 
violation in lieu of citations for certain other than serious 
violations; delete the authority for temporary variances for other than 
new standards; allow the Nevada Occupational Safety and Health Appeals 
Board to employ legal counsel; allow penalty collection actions to be 
brought in any court of competent jurisdiction; and ensure 
confidentiality to employees making statements to the Division of 
Occupational Safety and Health. Further amendments, enacted in 1989: 
require the maintenance of specific logs relating to complaints; provide 
public access to records on complaints, except for confidential 
information; provide confidentiality for those employees who file 
complaints or make statements, as well as for files relating to open 
cases; allow representatives of employees and former employees access to 
any records which indicate their exposure to toxic materials or harmful 
physical agents; define representative of employees or former employees; 
allow health care providers and government employees in the field of 
public safety, to file complaints; allow for oral complaints; require 
the

[[Page 93]]

division to respond to valid complaints of serious violations 
immediately and of other violations within 14 days; provide that an 
employee who accompanies a compliance officer on the inspection is 
entitled to be paid for the time spent, but that only one employee may 
accompany the compliance officer during the inspection; allow the 
Administrator of the Division of Occupational Safety and Health to issue 
an emergency order to restrain an imminent danger situation; and, double 
maximum authorized penalty levels. Amendments enacted in 1993 reflect 
the new State organizational structural by designating the previous 
Divisions as sections in the Division of Industrial Relations of the 
Department of Business and Industry. The Assistant Secretary approved 
these amendments on August 24, 1995.
    (d) Field Operations Manual. The State's Field Operations Manual, 
comparable to the Federal Field Operations Manual, through Change 4, was 
approved by the Assistant Secretary on August 24, 1995.
    (e) Consultation Manual. The State's Training and Consultation 
Section Policies and Procedures Manual was approved by the Assistant 
Secretary on August 24, 1995.
    (f) Occupational Safety and Health Administration Technical Manual. 
The State's adoption of the Federal OSHA Technical Manual, through 
Change 3, with a cover sheet adapting Federal references to the State's 
administrative structure, was approved by the Assistant Secretary on 
August 24, 1995.
    (g) Pre-construction conferences. A State regulations requiring pre-
construction conferences with the Division of Industrial Relations for 
certain types of construction projects was approved by the Assistant 
Secretary on August 24, 1995.
    (h) Reorganized Plan. The reorganization of the Nevada plan was 
approved by the Assistant Secretary on August 24, 1995.

[59 FR 14556, Mar. 29, 1994, as amended at 60 FR 43972, Aug. 24, 1995]

Subpart X [Reserved]



                            Subpart Y--Hawaii



Sec. 1952.310  Description of the plan as initially approved.

    (a) The plan designates the Department of Labor and Industrial 
Relations as the agency responsible for administering the plan 
throughout the State. It proposes to define the occupational safety and 
health issues covered by it as defined by the Secretary of Labor in 29 
CFR 1902.2(c)(1). All occupational safety and health standards 
promulgated by the U.S. Secretary of Labor will be adopted under the 
plan as well as certain standards deemed to be ``as effective as'' the 
Federal standards, except those found in 29 CFR parts 1915, 1916, 1917, 
and 1918 (ship repairing, shipbuilding, shipbreaking and longshoring).
    (b) Within the plan there is the Hawaii Occupational Safety and 
Health Law which became law on May 16, 1972. The law as enacted gives 
the Department of Labor and Industrial Relations the authority to 
inspect workplaces and to issue citations for the abatement of 
violations and there is also included a prohibition against advance 
notice of such inspections. The law is also intended to insure employer 
and employee representatives an opportunity to accompany inspectors and 
to call attention to possible violations; notification of employees or 
their representatives when no compliance action is taken as a result of 
alleged violations; protection of employees against discharge or 
discrimination in terms and conditions of employment; adequate 
safeguards to protect trade secrets. There is provision made for the 
prompt restraint of imminent danger situations and a system of penalties 
for violation of the law.
    (c) The plan also includes proposed amendments to be considered by 
the Hawaii Legislature during its 1974 session amending the Occupational 
Safety and Health Law, and related provisions, to bring them into 
conformity with the requirements of part 1902.
    (d) The Hawaii plan includes the following documents as of the date 
of approval:
    (1) The plan description documents, including the Hawaii 
Occupational Safety and Health Law, the proposed

[[Page 94]]

amendments to the Law and appendices in three (3) volumes;
    (2) Letter from Robert K. Hasegawa, Director of the Department of 
Labor and Industrial Relations, to Jay Arnoldus, Project Officer, Office 
of Federal and State Operations, December 10, 1973, submitting 
clarifications to the plan.
    (3) Letters from Robert C. Gilkey, Deputy Director of the Department 
of Labor and Industrial Relations, to Jay Arnoldus, December 3, 1973 and 
December 4, 1973 submitting clarifications and deletion to the plan.
    (4) Letters from Robert K. Hasegawa to Gabriel Gillotti, Assistant 
Regional Director, January 30, 1973, and June 28, 1973.
    (5) Letter from Robert A. Gilkey to John H. Stender, Assistant 
Secretary of Labor, October 30, 1973.
    (6) Letters from Robert K. Hasegawa to John H. Stender, Assistant 
Secretary of Labor, November 7, 1973 and September 14, 1973 submitting 
proposed legislative amendments and modifications and clarifications to 
the plan.

[39 FR 1012, Jan. 4, 1974, as amended at 49 FR 19192, May 4, 1984]



Sec. 1952.311  Developmental schedule.

    (a) Introduction of Legislative amendments to State Legislature 
January 1974.
    (b) Hearings on standards promulgation March 1974.
    (c) Implementation of the Management Information System by December 
1975.
    (d) Complete implementation of the occupational health program by 
July 1975.
    (e) Complete State plan implementation December 1976.

[39 FR 1013, Jan. 4, 1974. Redesignated and amended at 39 FR 44752, Dec. 
27, 1974; 40 FR 28792, July 9, 1975. Further redesignated at 49 FR 
19192, May 4, 1984]



Sec. 1952.312  Completion of developmental steps and certification.

    (a) In accordance with Sec. 1952.313(i), specific Legislative 
amendments were enacted by the State Legislature and signed by the 
Acting Governor on June 7, 1974, and amended by Act 95 of the 1976 
Hawaii Legislative Session.
    (b) In accordance with Sec. 1952.313(d), as amended, the Hawaii 
Occupational Health Plan was submitted to the Assistant Secretary on 
April 16, 1974, and approved on December 20, 1974, incorporating 
assurances from the State, by letter dated November 19, 1974.
    (c) In accordance with Sec. 1952.313(b), as amended, the Hawaii 
occupational safety and health standards were promulgated on April 18, 
22, 23, 24, and 25, 1975.
    (d) In accordance with the requirements of 29 CFR 1952.10, the 
Hawaii State poster was approved by the Assistant Secretary on February 
4, 1975.
    (e) In accordance with 29 CFR 1952.313(d), as amended, the Hawaii 
occupational health program was implemented on July 1, 1975.
    (f) The Rules of Procedure of the Hawaii Division of Occupational 
Safety and Health were promulgated in September, 1972, and revised in 
January, 1974. These rules include: Regulations on inspections, 
citations, and proposed penalties (chapter 102); regulations for 
recording and reporting occupational injuries and illnesses (chapter 
103); rules of practice for variances (chapter 104); regulations 
concerning administration witnesses and documents in private litigation 
(chapter 105); and regulations for promulgating, modifying, or revoking 
occupational safety and health standards (chapter 106).
    (g) In accordance with 29 CFR 1952.313(c), as amended, the Hawaii 
Management Information System was completed and in operation by December 
31, 1975.
    (h) In accordance with Sec. 1902.34 of this chapter, the Hawaii 
occupational safety and health plan was certified, effective April 26, 
1978 as having completed all developmental steps specified in the plan 
as approved on December 28, 1973, on or before December 31, 1976.

[39 FR 44203, Dec. 23, 1974, as amended at 39 FR 44752, Dec. 27, 1974; 
40 FR 6336, Feb. 11, 1975; 41 FR 26218, June 25, 1976; 43 FR 5821, Feb. 
10, 1978; 43 FR 19851, May 9, 1978. Redesignated at 49 FR 19192, May 4, 
1984]



Sec. 1952.313  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after a determination that

[[Page 95]]

the State met the ``fully effective'' compliance staffing benchmarks 
established in response to a Court Order in AFL-CIO v. Marshall, (CA 74-
406), and was satisfactorily providing reports to OSHA through 
participation in the Federal-State Unified Management Information 
System, the Assistant Secretary evaluated actual operations under the 
Hawaii State plan for a period of at least one year following 
certification of completion of developmental steps (May 9, 1978, 43 FR 
19849). Based on the Evaluation Report for FY 1982 and available FY 1983 
data, and after opportunity for public comment and an informal public 
hearing held on October 27, 1983, in Honolulu, Hawaii, the Assistant 
Secretary determined that in actual operations, Hawaii is at least as 
effective as the Federal program in providing safe and healthful 
employment and places of employment and meets the criteria for final 
State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Hawaii plan was 
granted final approval and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective April 30, 1984.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Hawaii. The plan does not cover maritime employment in the private 
sector; Federal government employers and employees; enforcement relating 
to any contractors or subcontractors on any Federal establishment where 
the land is determined to be exclusive Federal jurisdiction; and the 
U.S. Postal Service (USPS), including USPS employees, and contract 
employees and contractor-operated facilities engaged in USPS mail 
operations.
    (c) Hawaii is required: To maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[49 FR 19192, May 4, 1984, as amended at 65 FR 36627, June 9, 2000]



Sec. 1952.314  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Hawaii plan under section 18(e) of the Act, 
effective April 30, 1984, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Hawaii plan. This determination also 
relinquishes concurrent Federal OSHA authority to issue citations for 
violation of such standards under sections 5(a)(2) and 9 of the Act; to 
conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(f), and 
other inspections, investigations or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal Act under section 17. The Assistant Secretary 
may retain jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Hawaii plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to maritime employment (29 CFR 
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification) as well as provisions of 
general industry and construction standards (29 CFR Parts 1910

[[Page 96]]

and 1926) appropriate to hazards found in these employments. Federal 
jurisdiction also remains in effect with respect to Federal government 
employers and employees, enforcement relating to any contractors or 
subcontractors on any Federal establishment where the land is determined 
to be exclusive Federal jurisdiction; and the U.S. Postal Service 
(USPS), including USPS employees, and contract employees and contractor-
operated facilities engaged in USPS mail operations.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act. The Assistant Secretary also retains his authority 
under section 6 of the Act to promulgate, modify or revoke occupational 
safety and health standards which address the working conditions of all 
employees, including those in States which have received an affirmative 
18(e) determination, although such standards may not be Federally 
applied. In the event that the State's 18(e) status is subsequently 
withdrawn and Federal authority reinstated, all Federal standards, 
including any standards promulgated or modified during the 18(e) period, 
would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Hawaii State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[49 FR 19192, May 4, 1984, as amended at 65 FR 36627, June 9, 2000]



Sec. 1952.315  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 71 Stevenson Street, 4th 
Floor, San Francisco, California 94105; and
Office of the Director, Hawaii Department of Labor and Industrial 
Relations, 830 Punchbowl Street, Honolulu, Hawaii 96831.

[65 FR 36628, June 9, 2000]



Sec. 1952.316  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Hawaii's revised statutory penalty levels which are the same as 
the revised Federal penalty levels contained in section 17 of the Act as 
amended on November 5, 1990.
    (2) [Reserved]
    (b)(1) Regulations. The State's regulation on the Division of 
Occupational Safety and Health's Access to Employee Medical Records, and 
amendments to State regulations covering the Labor and Industrial 
Relations Appeals Board; General Provisions and Definitions; Recording 
and Reporting Occupational Injuries and Illnesses; Inspections, 
Citations, and Proposed Penalties; and Variances, promulgated by the 
State through March 22, 1991, were approved by the Assistant Secretary 
on February 20, 1995.
    (2) [Reserved]
    (c) Legislation. (1) An amendment to the Hawaii Occupational Safety 
and Health Law, enacted in 1987, which expands the type of information 
that is protected from disclosure in any discovery or civil action 
arising out of enforcement or administration of the law, was approved by 
the Assistant Secretary on February 20, 1995.
    (2) [Reserved]
    (d) Consultation Manual. The State's Consultation Policies and 
Procedures

[[Page 97]]

Manual was approved by the Assistant Secretary on February 20, 1995.
    (e) Occupational Safety and Health Administration Technical Manual. 
The State's adoption of the Federal OSHA Technical Manual, through 
Change 1, was approved by the Assistant Secretary on February 20, 1995.
    (f) Reorganized Plan. The reorganization of the Hawaii plan was 
approved by the Assistant Secretary on February 20, 1995.

[59 FR 14556, Mar. 29, 1994 as amended at 60 FR 12419, Mar. 7, 1995]



                           Subpart Z--Indiana



Sec. 1952.320  Description of the plan as initially approved.

    (a)(1) The plan identifies the Indiana Division of Labor as the 
State agency designated to implement and carry out the State plan. 
Within this structure, the Occupational Safety Standards Commission has 
the responsibility to adopt standards and dispose of variance 
applications; the Commissioner of Labor is charged with the 
administration and enforcement of the Act; and the Board of Safety 
Review is to conduct and decide contested cases. The State Board of 
Health, Industrial Hygiene Division, pursuant to an agreement with the 
Division of Labor will provide laboratory services and will conduct 
occupational health inspections as scheduled by the Division of Labor.
    (2) The plan defines the covered occupational safety and health 
issues as defined by the Secretary of Labor in 29 CFR 1902.2(c)(1). 
Further, Indiana has adopted all Federal safety and health standards 
contained in 29 CFR parts 1910 and 1926. The State program is to extend 
its protection to all employees in the State including those employed by 
it and its political subdivisions.
    (b) The plan includes existing enabling legislation and the Indiana 
Occupational Safety and Health Act (IC 1971, 22-8-1.1 et seq.) as well 
as amendments to this Act which were passed and became effective on May 
1, 1973. Under the Act as amended the Division of Labor has authority to 
administer and enforce the provisions of the State plan.
    (c) The legislation provides procedures for the promulgation of 
standards; furnishing information to employees on hazardous and toxic 
substances; and procedures for granting temporary and permanent 
variances. The law also contains procedures for inspections including 
inspections in response to complaints; ensures employer and employee 
representatives an opportunity to accompany inspectors and to call 
attention to possible violations before, during and after inspections; 
protection of employees against discharge or discrimination in terms or 
conditions of employment through court suits brought by the Attorney 
General at the request of the Commissioner; notice to employees of their 
protections and obligations under the State law; prompt restraint of 
imminent danger situations; safeguard to protect trade secrets; prompt 
notice to employers and employees of alleged violations of standards and 
abatement requirements; effective sanctions against employers; and 
employer right to review of alleged violations, abatement periods, and 
proposed penalties with an opportunity for employee participation and 
employee right of review of such abatement periods.
    (d) The plan also contains a voluntary compliance program. The State 
will conduct seminars, conferences and meetings designed for management, 
supervisory personnel, employees and union representatives to transmit 
information about its safety and health program. These programs are 
specifically designed to cover the following areas: general industrial 
safety, construction safety, first aid instruction, supervisory safety 
training, hazard recognition, Indiana occupational health and safety 
laws, federal occupational safety and health laws, State health and 
safety standards, injury and illness reporting procedures requirements, 
rights and obligations to employers and employees, enforcement programs. 
On-site consultation services will be available for employers upon 
request as part of the developmental plan.
    (e) Also included in the plan are proposed budgets to be devoted to 
it as well as descriptions of the job classifications and personnel who 
will be carrying out the program. Further, the

[[Page 98]]

plan sets out goals and provides a timetable for bringing it into full 
conformity with 29 CFR part 1902.

[39 FR 8612, Mar. 6, 1974, as amended at 51 FR 2488, Jan. 17, 1986]



Sec. 1952.321  Developmental schedule.

    (a) Proposed legislative amendments to be introduced in the 1974 
session of the State legislature;
    (b) Refresher Course for inspectors will be completed by September 
1, 1974;
    (c) A full complement of 69 inspectors will be hired by the end of 
the first year of plan operation; the State will add 10 inspectors for 
each of the two succeeding years;
    (d) Development of a State employee safety program within nine 
months following plan approval;
    (e) Establishment of the rules of procedure for on-site 
consultations within nine months following plan approval;
    (f) Within three years of plan approval all developmental steps will 
be fully implemented.

[39 FR 8612, Mar. 6, 1974. Redesignated at 51 FR 2488, Jan. 17, 1986]



Sec. 1952.322  Completion of developmental steps and certification.

    (a) In accordance with the requirements of Sec. 1952.10, the Indiana 
poster was approved for use until Federal enforcement authority and 
standards become inapplicable to issues covered under the plan, by the 
Assistant Secretary on March 2, 1976.
    (b) In accordance with 29 CFR 1952.323(a), Indiana amended the 
Indiana Occupational Safety and Health Act (I.C. 22-8-1.1) in 1975, 
1977, and 1978. These amendments were approved by the Assistant 
Secretary on September 24, 1981.
    (c) In accordance with 29 CFR 1952.323(b), Indiana submitted 
documentation outlining training and refresher courses for its 
compliance staff on May 19, 1975 and May 4, 1981. This supplement was 
approved by the Assistant Secretary on September 24, 1981.
    (d) In accordance with 29 CFR 1952.323(c), Indiana submitted 
documentation on May 4, 1981, showing that it has substantially met its 
compliance staffing commitments by providing for 14 health and 70 safety 
compliance officers. This supplement was approved by the Assistant 
Secretary on September 24, 1981.
    (e) In accordance with 29 CFR 1952.323(d), Indiana developed an 
occupational safety and health program for public employees on August 
25, 1975, and resubmitted a revised program with implementing 
regulations on September 5, 1981. These were approved by the Assistant 
Secretary on September 24, 1981.
    (f) In accordance with 29 CFR 1952.323(e), Indiana promulgated rules 
for on-site consultation on March 7, 1975, which were amended on 
September 5, 1981. These regulations were approved by the Assistant 
Secretary on September 24, 1981.
    (g) Indiana submitted its compliance operations manual on August 7, 
1975, which was subsequently revised in 1978 and again on June 4, 1980. 
The State submitted a revised Industrial Hygiene manual on July 15, 
1981. These manuals, which reflect changes in the Federal program 
through 1980 were approved by the Assistant Secretary on September 24, 
1981.
    (h) Indiana promulgated regulations for inspections, safety orders, 
and proposed penalties parallel to 29 CFR part 1903 on January 18, 1977 
with amendments dated July 29, 1977 and September 5, 1981. These 
regulations were approved by the Assistant Secretary on September 24, 
1981.
    (i) Indiana promulgated regulations for recordkeeping and reporting 
of occupational injuries and illnesses parallel to 29 CFR part 1904 on 
January 18, 1977, which were amended on September 10, 1979. The State 
also revised its recordkeeping and reporting provisions for the public 
sector on September 5, 1981. These regulations were approved by the 
Assistant Secretary on September 24, 1981.
    (j) Indiana promulgated rules for variances, limitations, 
variations, tolerances, and exemptions, parallel to 29 CFR part 1905 on 
December 17, 1976, which were revised June 3, 1977 and September 5, 
1981. These regulations were approved by the Assistant Secretary on 
September 24, 1981.
    (k) Indiana adopted rules of procedure for the Board of Safety 
Review on

[[Page 99]]

September 19, 1976, which were subsequently amended on September 5, 
1981. These regulations were approved by the Assistant Secretary on 
September 24, 1981.
    (l) Indiana deleted coverage of the maritime and longshoring issues 
from its plan on June 9, 1981. This supplement was approved by the 
Assistant Secretary on September 24, 1981.
    (m) Indiana submitted documentation on establishment of its 
Management Information System on May 20, 1974. This supplement was 
approved by the Assistant Secretary on September 24, 1981.
    (n) In accordance with Sec. 1902.34 of this chapter, the Indiana 
occupational safety and health plan was certified, effective October 16, 
1981 as having completed all developmental steps specified in the plan 
as approved on February 25, 1974 on or before February 25, 1977. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[46 FR 49119, 49121, Oct. 6, 1981; 47 FR 28918, July 2, 1982. 
Redesignated at 51 FR 2488, Jan. 17, 1986]



Sec. 1952.323  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 Indiana, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 47 safety and 23 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on January 17, 1986.

[51 FR 2488, Jan. 17, 1986]



Sec. 1952.324  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1986 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Integrated Management Information System, the Assistant 
Secretary evaluated actual operations under the Indiana State plan for a 
period of at least one year following certification of completion of 
developmental steps (46 FR 49119). Based on the 18(e) Evaluation Report 
for the period of March 1984 through December 1985, and after 
opportunity for public comment, the Assistant Secretary determined that 
in operation the State of Indiana's occupational safety and health 
program is at least as effective as the Federal program in providing 
safe and healthful employment and places of employment and meets the 
criteria for final State plan approval in section 18(e) of the Act and 
implementing regulations at 29 CFR part 1902. Accordingly, the Indiana 
plan was granted final approval, and concurrent Federal enforcement 
authority was relinquished under section 18(e) of the Act effective 
September 26, 1986.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Indiana. The plan does not cover maritime employment in the private 
sector; Federal government employers and employees; the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations; the 
enforcement of the field sanitation standard, 29 CFR 1928.110, and the 
enforcement of the temporary labor camps standard, 29 CFR 1910.142, with 
respect to any agricultural establishment where employees are engaged in 
``agricultural employment'' within the meaning of the Migrant and 
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1802(3), 
regardless of the number of employees, including employees engaged in 
hand packing of produce into containers, whether done on the ground, on 
a moving machine, or in a temporary packing shed, except that Indiana 
retains enforcement responsibility over agricultural temporary labor 
camps for employees engaged in egg, poultry, or red meat production,

[[Page 100]]

or the post-harvest processing of agricultural or horticultural 
commodities.
    (c) Indiana is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[51 FR 34215, Sept. 26, 1986, as amended at 62 FR 2564, Jan. 17, 1997; 
65 FR 36628, June 9, 2000]



Sec. 1952.325  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Indiana plan under section 18(e) of the Act, 
effective September 26, 1986, occupational safety and health standards 
which have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Indiana plan. This determination 
also relinquishes concurrent Federal OSHA authority to issue citations 
for violations of such standards under sections 5 (a)(2) and 9 of the 
Act; to conduct inspections and investigations under section 8 (except 
those necessary to conduct evaluation of the plan under section 18(f) 
and other inspections, investigations, or proceedings necessary to carry 
out Federal responsibilities not specifically preempted by section 
18(e)); to conduct enforcement proceedings in contested cases under 
section 10; to institute proceedings to correct imminent dangers under 
section 13; and to propose civil penalties or initiate criminal 
proceedings for violations of the Federal Act under section 17. The 
Assistant Secretary retains jurisdiction under the above provisions in 
any proceeding commenced under section 9 or 10 before the effective date 
of the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Indiana plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to maritime employment (29 CFR 
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification), as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments. Federal jurisdiction 
is retained and exercised by the Employment Standards Administration, 
U.S. Department of Labor, (Secretary's Order 5-96, dated December 27, 
1996) with respect to the field sanitation standard, 29 CFR 1928.110, 
and the enforcement of the temporary labor camps standard, 29 CFR 
1910.142, in agriculture, as described in Sec. 1952.324(b). Federal 
jurisdiction is also retained with respect to Federal government 
employers and employees, and the U.S. Postal Service (USPS), including 
USPS employees, and contract employees and contractor-operated 
facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
plan which has received final approval and shall be subject to Federal 
enforcement. Where enforcement jurisdiction is shared between Federal 
and State authorities for a particular area, project, or facility, in 
the interest of administrative practicability Federal jurisdiction may 
be assumed over the entire project or facility. In either of the two 
aforementioned circumstances, Federal enforcement may be exercised 
immediately upon agreement between Federal OSHA and the State designated 
agency.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of

[[Page 101]]

the plan. Thus, for example, the Assistant Secretary retains his 
authority under section 11(c) of the Act with regard to complaints 
alleging discrimination against employees because of the exercise of any 
right afforded to the employee by the Act, although such complaints may 
be referred to the State for investigation. The Assistant Secretary also 
retains his authority under section 6 of the Act to promulgate, modify 
or revoke occupational safety and health standards which address the 
working conditions of all employees, including those in States which 
have received an affirmative 18(e) determination, although such 
standards may not be federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority reinstated, 
all Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Indiana State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[51 FR 34215, Sept. 26, 1986, as amended at 62 FR 2564, Jan. 17, 1997; 
65 FR 36628, June 9, 2000]



Sec. 1952.326  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Regional Administrator, Occupational Safety and Health Administration, 
U.S. Department of Labor, 230 S. Dearborn Street, 32nd Floor, Room 3244, 
Chicago, Illinois 60604; and
Office of the Commissioner, Indiana Department of Labor, State Office 
Building, 402 West Washington Street, Room W195, Indianapolis, Indiana 
46204.

[65 FR 36628, June 9, 2000]



Sec. 1952.327  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Indiana's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2)  [Reserved]
    (b) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved Indiana's plan amendment, dated 
July 9, 1996, relinquishing coverage for the issues of field sanitation 
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in 
agriculture (except for agricultural temporary labor camps associated 
with egg, poultry or red meat production, or the post-harvest processing 
of agricultural or horticultural commodities.) The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in Indiana 
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.
    (c) The Voluntary Protection Program. On October 24, 1996, the 
Assistant Secretary approved Indiana's plan supplement which is 
generally identical to the Federal Voluntary Protection Program, with 
the exception of organizational and position titles.

[59 FR 14556, Mar. 29, 1994, as amended at 61 FR 55099, Oct. 24, 1996; 
62 FR 2564, Jan. 17, 1997]

Subpart AA [Reserved]



                           Subpart BB--Wyoming



Sec. 1952.340  Description of the plan as initially approved.

    (a) The plan identifies the Wyoming Occupational Health and Safety 
Commission as the agency to be responsible for administering the plan 
throughout the State. The Commission will be responsible for 
promulgating and enforcing occupational safety and health

[[Page 102]]

standards and deciding contested cases, subject to judicial review.
    (b) The State program will protect all employees within the State, 
including those employed by the State and its political subdivisions. 
Public employees are to be granted the same protections as are afforded 
employees in the private sector. The State plan does not cover employees 
of the Federal government or those employees whose working conditions 
are regulated by Federal agencies other than the U.S. Department of 
Labor.
    (c) The Wyoming Occupational Health and Safety Act gives the State 
agency full authority to administer and to enforce all laws, rules, and 
orders protecting employee safety and health in all places of employment 
in the State. The legislation provides employer and employee 
representatives an opportunity to accompany inspectors before or during 
the physical inspection of any workplace for the purpose of aiding such 
inspection; adequate safeguards to protect trade secrets; effective 
sanctions against employers; protection of employees against discharge 
or discrimination; procedures for prompt restraint or elimination of 
imminent danger situations; the right to review by employers and 
employees of alleged violations, abatement periods and proposed 
penalties; and prompt notice to employers and employees of alleged 
violations of standards and abatement requirements.
    (d) Administrative regulations include procedures for permanent and 
temporary variances; notice to employees or their representatives when 
no compliance action is taken as a result of a complaint, including 
procedures for informal review; information to employees on hazards, 
precautions, symptoms and emergency treatment; and training and 
education programs for employers and employees, including an on-site 
consultation program consistent with the criteria set out in the 
Washington Plan decision (38 FR 2421).
    (e) The State intends to promulgate Federal standards covering all 
of the issues contained in parts 1910 and 1926 of this chapter but will 
not cover those found in parts 1915, 1916, 1917, and 1918 of this 
chapter (ship repairing, ship building, ship breaking, and longshoring). 
The State also plans to adopt additional vertical standards relating to 
oil well drilling and servicing not provided by the Federal program. 
Future Federal standards shall be promulgated by the State within six 
months after promulgation by the Secretary of Labor. In the case of 
product standards the State has provided assurances that any State 
product standards will be required by compelling local conditions and 
will not unduly burden interstate commerce.
    (f) The plan sets out goals and provides a timetable for bringing it 
into full conformity with part 1902 of this chapter. All personnel 
employed to carry out the plan are to be hired under the Wyoming 
Personnel Merit System which conforms to standards established by the 
United States Civil Service Commission. The plan also contains a 
detailed description of the resources that are to be devoted to it.

[39 FR 15395, May 3, 1974, as amended at 50 FR 26558, June 27, 1985]



Sec. 1952.341  Developmental schedule.

    (a) Adoption of Federal standards as State standards by February 
1975.
    (b) Administrative regulations for recordkeeping and reporting, 
variances, posting requirements, employee complaint procedures, 
inspections under the Act, employee exposure to toxic materials, 
providing information to employees on their exposure to hazards, 
personal protective equipment, medical examinations, and monitoring, 
safeguarding trade secrets, administrative review of citations, proposed 
penalties, and abatement periods, to become effective by June 1, 1974.
    (c) Amendments to the Wyoming Administrative Procedure Act to be 
submitted to the State Legislature January 1975 and to become effective 
by May 1, 1975.
    (d) Management Information System to be completed August 1, 1974.
    (e) Merit staffing for administration of the program to be completed 
by August 15, 1974.

[[Page 103]]

    (f) Amendments to the State's Fair Employment Practices Act to be 
submitted to the State Legislature which convenes January 14, 1975.

[39 FR 15395, May 3, 1974. Redesignated at 50 FR 26558, June 27, 1985]



Sec. 1952.342  Completion of developmental steps and certification.

    (a) In accordance with Sec. 1952.343(a) the State adopted Federal 
standards covering all the issues contained in 29 CFR parts 1910 
subparts D through S, and 1926 (The State will not cover parts 1915, 
1916, 1917, and 1918). (40 FR 8948, Mar. 4, 1975; 41 FR 26767, June 29, 
1976.)
    (b) In accordance with the requirements of 29 CFR 1952.10 the 
Wyoming posters for private and public employees were approved by the 
Assistant Secretary on July 14, 1976.
    (c) In accordance with Sec. 1952.343(d), Wyoming has developed and 
implemented a Management Information System.
    (d) The State plan has been amended to include an Affirmative Action 
Plan outlining the State's policy of equal employment opportunity.
    (e) Guidelines and procedures for implementing the State's safety 
and health program for public employees were approved by the Assistant 
Secretary on June 1, 1978.
    (f) In accordance with Sec. 1952.343(b), Wyoming has promulgated its 
rules of practice and procedure which were approved by the Assistant 
Secretary on December 11, 1980.
    (g) Legislation revising the enabling law to provide for civil 
enforcement of safety and health violations and revised regulations 
establishing procedures for review of enforcement actions was approved 
by the Assistant Secretary on December 19, 1980. (45 FR 83483)
    (h) The State has met its plan commitment for hiring enforcement 
staff under an approved merit system for administration of its health 
and safety program pursuant to a July 3, 1980 memo from Don Owsley, 
Administrator of the Wyoming Occupational Health and Safety Department.
    (i) As required by 29 CFR 1902.34(b)(3), the personnel operations of 
the Wyoming Occupational Health and Safety Department have been found to 
be in substantial conformity with the ``Standards for a Merit System of 
Personnel Administration'' by the Office of Personnel Management in a 
letter dated October 17, 1980.
    (j) In accordance with Sec. 1902.34 of this chapter, the Wyoming 
occupational safety and health plan was certified, effective December 
30, 1980, as having completed all developmental steps specified in the 
plan as approved on April 25, 1974, on or before April 25, 1977. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[41 FR 28789, July 13, 1976, as amended at 41 FR 30329, July 23, 1976; 
42 FR 45907, Sept. 13, 1977; 43 FR 25424, June 13, 1978; 43 FR 34463, 
Aug. 4, 1978; 45 FR 83485, Dec. 19, 1980; 45 FR 85740, Dec. 30, 1980; 47 
FR 1290, Jan. 12, 1982. Redesignated at 50 FR 26558, June 27, 1985]



Sec. 1952.343  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
Compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 Wyoming, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 6 safety and 2 health compliance officers. After opportunity for 
pulbic comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on June 27, 1985.

[50 FR 26558, June 27, 1985]



Sec. 1952.344  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after a determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through particiption in the 
Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the Wyoming State plan

[[Page 104]]

for a period of at least one year following certification of completion 
of developmental steps (45 FR 85739). Based on the 18(e) Evaluation 
Report for the period of October 1982 through March 1984, and after 
opportunity for public comment, the Assistant Secretary determined that 
in operation the State of Wyoming's occupational safety health program 
is at least as effective as the Federal program in providing safe and 
healthful employment and places of employment and meets the criteria for 
final State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Wyoming plan was 
granted final approval and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective June 27, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Wyoming. The plan does not cover private sector maritime employment; 
employment on the Warren Air Force Base; Federal government employers 
and employees; the U.S. Postal Service (USPS), including USPS employees, 
and contract employees and contractor-operated facilities engaged in 
USPS mail operations; the enforcement of the field sanitation standard, 
29 CFR 1928.110, and the enforcement of the temporary labor camps 
standard, 29 CFR 1910.142, with respect to any agricultural 
establishment where employees are engaged in ``agricultural employment'' 
within the meaning of the Migrant and Seasonal Agricultural Worker 
Protection Act, 29 U.S.C. 1802(3), regardless of the number of 
employees, including employees engaged in hand packing of produce into 
containers, whether done on the ground, on a moving machine, or in a 
temporary packing shed, except that Wyoming retains enforcement 
responsibility over agricultural temporary labor camps for employees 
engaged in egg, poultry, or red meat production, or the post-harvest 
processing of agricultural or horticultural commodities.
    (c) Wyoming is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revisions to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[50 FR 26558, June 27, 1985, as amended at 62 FR 2564, Jan. 17, 1997; 65 
FR 36628, June 9, 2000]



Sec. 1952.345  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval of the Wyoming plan under section 18(e) of the Act, 
effective June 27, 1985, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Wyoming plan. This determination 
also relinquishes concurrent Federal OSHA authority to issue citations 
for violations of such standards under sections 5(a)(2) and 9 of the 
Act; to conduct inspections and investigations under section 8 (except 
those necessary to conduct evaluation of the plan under section 18(f) 
and other inspections, investigations, or proceedings necessary to carry 
out Federal responsibilities not specifically preempted by section 
18(e)); to conduct enforcement proceedings in contested cases under 
section 10; to institute proceedings to correct imminent dangers under 
section 13; and to propose civil penalties or initiate criminal 
proceedings for violations of the Federal Act under section 17. The 
Assistant Secretary retains jurisdiction under the above provisions in 
any proceeding commenced under section 9 or 10 before the effective date 
of the 18(e) determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Wyoming plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act,

[[Page 105]]

Federal standards, rules, or orders, and all Federal standards, current 
or future, specifically directed to maritime employment (29 CFR Part 
1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification) as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments. Federal jurisdiction 
is retained and exercised by the Employment Standards Administration, 
U.S. Department of Labor, (Secretary's Order 5-96, dated December 27, 
1996) with respect to the field sanitation standard, 29 CFR 1928.110, 
and the enforcement of the temporary labor camps standard, 29 CFR 
1910.142, in agriculture, as described in Sec. 1952.344(b). Federal 
jurisdiction is also retained for employment at Warren Air Force Base; 
Federal government employers and employees; and the U.S. Postal Service 
(USPS), including USPS employees, and contract employees and contractor-
operated facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
finally approved plan, and shall be subject to Federal enforcement. 
Where enforcement jurisdiction is shared between Federal and State 
authorities for a particular area, project, or facility, in the interest 
of administrative practicability, Federal jurisdiction may be assumed 
over the entire project or facility. In either of the two aforementioned 
circumstances, Federal enforcement may be exercised immediately upon 
agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States which have 
received an affirmative 18(e) determination, although such standards may 
not be Federally applied. In the event that the State's section 18(e) 
status is subsequently withdrawn and Federal authority reinstated, all 
Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Wyoming State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 26559, June 27, 1985, as amended at 62 FR 2565, Jan. 17, 1997; 65 
FR 36628, June 9, 2000]



Sec. 1952.346  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 1999 Broadway Suite 1690, 
Denver, Colorado 80202-5716; and
Office of the Assistant Administrator, Worker's Safety and Compensation 
Division, Wyoming Department of Employment, Herschler Building, 2nd 
Floor East, 122 West 25th Street, Cheyenne, Wyoming 82002.

[65 FR 36629, June 9, 2000]

[[Page 106]]



Sec. 1952.347  Changes to approved plans.

    In accordance with part 1953 of this chapter, the following Wyoming 
plan changes were approved by the Assistant Secretary:
    (a) Legislation. (1) The State submitted amendments to its 
Occupational Health and Safety Act (Laws 1983, chapter 172), which 
became effective on May 27, 1983, modifying the powers and duties of the 
Occupational Health and Safety Commission, abolishing the powers of the 
review board and Commission to hear contested cases and establishing an 
independent hearing officer to hear contested cases, providing 
procedures for hearings and appeals whereby the Commission makes final 
administrative decisions in contested cases and the party adversely 
affected may appeal to the District Court, making penalties for posting 
violations discretionary (although the State guidelines on penalties for 
posting violations parallel OSHA's and are set forth in the Wyoming 
Operations Manual), requiring written notification to employers of their 
right to refuse entry, and creating the Department of Occupational 
Health and Safety. The Assistant Secretary approved these amendments on 
February 27, 1989.
    (2) On March 29, 1994, the Assistant Secretary approved Wyoming's 
revised statutory penalty levels which are the same as the revised 
Federal penalty levels contained in section 17 of the Act as amended on 
November 5, 1990.
    (b) Regulations. (1) The State submitted amendments to its Rules of 
Practice and Procedure pertaining to contested cases, hearings, 
discrimination, and petitions for modification of abatement; and making 
the regulations consistent with other statutory changes made to its 
Occupational Health and Safety Act which became effective on September 
6, 1984, except amendment to Chapter IV, Enforcement which became 
effective on March 28, 1985. The Assistant Secretary approved these 
amendments on February 27, 1989.
    (2) [Reserved]
    (c) The Voluntary Protection Program. On October 24, 1996, the 
Assistant Secretary approved Wyoming's plan supplement which is 
generally identical to the Federal Voluntary Protection Program, with 
the exception of organizational and position titles.
    (d) Temporary labor camps/field sanitation. Effective February 3, 
1997, the Assistant Secretary approved Wyoming's plan amendment, dated 
July 19, 1996, relinquishing coverage for the issues of field sanitation 
(29 CFR 1928.110) and temporary labor camps (29 CFR 1910.142) in 
agriculture (except for agricultural temporary labor camps associated 
with egg, poultry or red meat production, or the post-harvest processing 
of agricultural or horticultural commodities.) The Employment Standards 
Administration, U.S. Department of Labor, has assumed responsibility for 
enforcement of these Federal OSHA standards in agriculture in Wyoming 
pursuant to Secretary of Labor's Order 5-96, dated December 27, 1996.

[54 FR 9045, Mar. 3, 1989, as amended at 59 FR 14556, Mar. 29, 1994; 61 
FR 55099, Oct. 24, 1996; 62 FR 2565, Jan. 17, 1997]



                           Subpart CC--Arizona



Sec. 1952.350  Description of the plan as initially approved.

    (a)(1) The plan identifies the Arizona Industrial Commission, 
Division of Occupational Safety and Health, as the State agency 
designated to administer the plan throughout the State. It adopts the 
definition of occupational safety and health issues expressed in 
Sec. 1902.2(c)(1) of this chapter. The State intends to adopt all 
Federal standards except those found in 29 CFR parts 1915, 1916, 1917 
and 1918 (ship repairing, shipbuilding, shipbreaking, and longshoring) 
and those subparts of parts 1910 and 1926 pertaining to industries which 
are not applicable to Arizona. In addition, the State intends to enforce 
elevator (ANSI) and boiler pressure vessel (ASME) standards for which 
there are no Federal counterparts.
    (2) The plan provides a description of personnel employed under a 
merit system; the coverage of employees of political subdivisions; 
procedures for the development and promulgation of standards, including 
standards for the protection of employees against new and unforeseen 
hazards; and procedures for the prompt restraint or elimination of 
imminent danger situations.

[[Page 107]]

    (b)(1) The plan includes legislation enacted by the Arizona 
Legislature during its 1974 legislative session amending title 23, 
article 10 of the Arizona Revised Statutes to bring them into conformity 
with the requirements of part 1902 of this chapter. Under the 
legislation the Industrial Commission will have full authority to 
enforce and administer laws respecting the safety and health of 
employees in all workplaces of the State.
    (2) The legislation is intended, among other things, to assure 
inspections in response to employee complaints; give employer and 
employee representatives an opportunity to accompany inspectors in order 
to aid inspections; notification of employees or their representatives 
when no compliance action is taken as a result of alleged violations; 
notification of employees of their protections and obligations; 
protection of employees against discharge or discrimination in terms and 
conditions of employment; adequate safeguards to protect trade secrets; 
sanctions against employers for violations of standards and orders; 
employer right of review to an Occupational Safety and Health Review 
Board and then the courts, and employee participation in review 
proceedings. The plan also proposes a program of voluntary compliance by 
employers and employees, including a provision for on-site consultation. 
The State's consultation program should not detract from its enforcement 
program and the State has given assurances that it will meet the 
conditions set forth in the Washington Decision (38 FR 2421, January 26, 
1973).
    (c) The Arizona Plan includes the following documents as of the date 
of approval:
    (1) The plan description documents, in two volumes.
    (2) A copy of the enabling legislation as amended and enacted by the 
State Legislature in its 1974 Session.
    (3) Letters from Donald G. Wiseman, Director of the Division of 
Occupational Safety and Health of the Arizona Industrial Commission to 
Barry J. White, Associate Assistant Secretary for Regional Programs on 
October 15, 18, and 24, 1974 submitting information, clarifications, and 
revisions on several issues raised during the review process, including 
proposals to be submitted to the Arizona Legislature during its 1975 
Session.

[39 FR 39038, Nov. 5, 1974, as amended at 50 FR 25571, June 20, 1985]



Sec. 1952.351  Developmental schedule.

    The Arizona State plan is developmental. The following is the 
developmental schedule as provided by the plan:
    (a) Development of a complete management information and control 
system by July 1, 1976.
    (b) The formulation and approval of inter-agency agreements with the 
Arizona Atomic Energy Commission, the State Health Department and the 
Arizona Corporation Commission by March 1, 1975.
    (c) Promulgation of variance regulations by July 1, 1977.
    (d) The promulgation of recordkeeping regulations by March 1, 1975, 
but full implementation of these regulations will not be until July 1, 
1976.
    (e) The submission of legislative amendments to the Arizona 
Legislature during its 1977 Session.

[39 FR 39038, Nov. 5, 1974, as amended at 40 FR 11873, Mar. 14, 1975; 41 
FR 56315, Dec. 28, 1976. Redesignated at 50 FR 25571, June 20, 1985]



Sec. 1952.352  Completion of developmental steps and certification.

    (a) Implementation of the Arizona occupational safety and health 
program began on March 1, 1975.
    (b) Inter-agency agreements between the Arizona Industrial 
Commission and the Arizona Department of Health Services were finalized 
on November 7, 1974, and March 20, 1975.
    (c) Regulations concerning inspections, citations and proposed 
penalties and the Rules of Procedure for contests before the Governor's 
Review Board were promulgated on February 28, 1975.
    (d) Recordkeeping and reporting regulations were promulgated on 
March 1, 1975; however, these regulations will not be applicable to 
public employers until January 1, 1977.
    (e) The universe file system for the inspections scheduling system 
was completed and implemented on March 12, 1976.

[[Page 108]]

    (f) An interagency agreement was entered into between the 
Corporation Commission of Arizona and the Industrial Commission on May 
7, 1976 and became effective May 10, 1076.
    (g) In accordance with the requirements of Sec. 1952.10, the Arizona 
State poster was approved by the Assistant Secretary on July 22, 1976.
    (h) Arizona occupational safety and health standards comparable to 
Federal standards in effect as of July 28, 1974, were promulgated on 
February 28, 1975, and were approved by the Regional Administrator 
effective August 6, 1976.
    (i) In accordance with Sec. 1902.34 of this chapter, the Arizona 
occupational safety and health plan was certified, effective September 
18, 1981 as having completed all developmental steps specified in the 
plan as approved on October 29, 1974, on or before November 1, 1977. 
This certification attests to structural completion, but does not render 
judgment on adequacy of performance.
    (j) Regulations concerning discrimination complaints were 
promulgated on September 22, 1977, and were approved by the Assistant 
Secretary on November 13, 1980.
    (k) Legislative amendments required to bring the Arizona 
occupational safety and health law (Arizona Revised Statutes, Chapter 
23) into conformity with Federal requirements were enacted effective 
August 27, 1977.

[41 FR 31813, July 30, 1976, as amended at 41 FR 34251, Aug. 13, 1976; 
41 FR 56316, Dec. 28, 1976; 46 FR 20164, Apr. 3, 1981; 46 FR 32022, June 
19, 1981; 46 FR 46322, Sept. 18, 1981. Redesignated at 50 FR 25571, June 
20, 1985]



Sec. 1952.353  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984, Arizona in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 9 safety and 6 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on June 20, 1985.

[50 FR 25571, June 20, 1985]



Sec. 1952.354  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after a determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall, (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Unified Management Information System, the Assistant 
Secretary evaluated actual operations under the State plan for a period 
of at least one year following certification of completion of 
developmental steps (46 FR 46320). Based on the 18(e) Evaluation Report 
(October 1982-March 1984) and after opportunity for public comment, the 
Assistant Secretary determined that, in operation, the State of 
Arizona's occupational safety and health program is at least as 
effective as the Federal program in providing safe and healthful 
employment and places of employment and meets the criteria for final 
State plan approval in section 18(e) of the Act and implementing 
regulations at 29 CFR part 1902. Accordingly, the Arizona plan was 
granted final approval and concurrent Federal enforcement authority was 
relinquished under section 18(e) of the Act effective June 20, 1985.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Arizona. The plan does not cover private sector maritime employment; 
Federal government employers and employees; enforcement relating to any 
contractors or subcontractors on any Federal establishment where the 
land is determined to be exclusive Federal jurisdiction; the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations; copper 
smelters; concrete and asphalt batch plants that are physically 
connected to a mine or so interdependent with a mine as to form one

[[Page 109]]

integral enterprise; and Indian reservations.
    (c) Arizona is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health enforcement staff to meet the benchmarks 
for State staffing established by the U.S. Department of Labor, or any 
revision to those benchmarks; and, to furnish such reports in such form 
as the Assistant Secretary may from time to time require.

[50 FR 25571, June 20, 1985, as amended at 63 FR 53281, Oct. 5, 1998; 65 
FR 36629, June 9, 2000]



Sec. 1952.355  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval of the Arizona plan under section 18(e) of the Act, 
effective June 20, 1985, occupational safety and health standards which 
have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Arizona plan. This determination 
also relinquishes concurrent Federal OSHA authority to issue citations 
for violation of such standards under sections 5(a)(2) and 9 of the Act; 
to conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(f) and 
other inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal Act under section 17. The Assistant Secretary 
retains jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Arizona plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to maritime employment (29 CFR 
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification) as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments. Federal jurisdiction 
is also retained with respect to Federal government employers and 
employees; enforcement relating to any contractors or subcontractors on 
any Federal establishment where the land is determined to be exclusive 
Federal jurisdiction; the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations; in copper smelters; in concrete and 
asphalt batch plants which are physically connected to a mine or so 
interdependent with the mine as to form one integral enterprise; and 
within Indian reservations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons not related to the required performance or 
structure of the plan shall be deemed to be an issue not covered by the 
finally approved plan, and shall be subject to Federal enforcement. 
Where enforcement jurisdiction is shared between Federal and State 
authorities for a particular area, project, or facility, in the interest 
of administrative practicability, Federal jurisdiction may be assumed 
over the entire project or facility. In either of the two aforementioned 
circumstances, Federal enforcement may be exercised immediately upon 
agreement between Federal and State OSHA.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority

[[Page 110]]

under section 11(c) of the Act with regard to complaints alleging 
discrimination against employees because of the exercise of any right 
afforded to the employee by the Act, although such complaints may be 
referred to the State for investigation. The Assistant Secretary also 
retains his authority under section 6 of the Act to promulgate, modify 
or revoke occupational safety and health standards which address the 
working conditions of all employees, including those in States which 
have received an affirmative 18(e) determination, although such 
standards may not be Federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority reinstated, 
all Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Arizona State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Failure by the State to comply with its obligations may result in the 
revocation of the Final determination under section 18(e), resumption of 
Federal enforcement, and/or proceedings for withdrawal of plan approval.

[50 FR 25571, June 20, 1985, as amended at 63 FR 53281, Oct. 5, 1998; 65 
FR 36629, June 9, 2000]



Sec. 1952.356  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, 71 Stevenson Street, 4th 
Floor, San Francisco, California 94105; and
Office of the Director, Industrial Commission of Arizona, 800 W. 
Washington, Phoenix, Arizona 85007.

[65 FR 36629, June 9, 2000]



Sec. 1952.357  Changes to approved plans.

    (a) The Voluntary Protection Program. On December 30, 1993, the 
Assistant Secretary approved Arizona's plan supplement, which is 
generally identical to the Federal Voluntary Protection Programs with 
the exception that the State's VPP is limited to the Star Program in 
general industry, excludes the Merit and Demonstration Programs and 
excludes the construction industry.
    (b) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Arizona's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.
    (2) [Reserved]

[59 FR 2295, Jan. 14, 1994, as amended at 59 FR 14556, Mar. 29, 1994]



                         Subpart DD--New Mexico



Sec. 1952.360  Description of the plan as initially approved.

    (a)(1) The plan identifies the New Mexico Environmental Improvement 
Agency, with its subordinate organization, the Occupational and 
Radiation Protection Division, as the State agency designated to 
administer the plan throughout the State. It adopts the definition of 
occupational safety and health issues expressed in Sec. 1909.2(c)(1) of 
this chapter. The State has adopted the Federal Field Operations Manual 
and all the Federal standards except those found in 29 CFR parts 1915, 
1916, 1917, and 1918 (ship repairing, shipbuilding, shipbreaking, and 
longshoring). In addition, the Occupational and Radiation Protection 
Division will be enforcing State standards under the Radiation 
Protection Act (chapter 284, Laws of 1971, 12-9-1 through 12-9-11, New 
Mexico Statutes Annotated). However, since this Act provides protection 
to the general public, in the event of conflict between Radiation 
Protection Act standards and

[[Page 111]]

occupational safety and health standards, employees will receive the 
protection provided under the more stringent regulation.
    (2) The plan provides a description of personnel employed under a 
merit system; the coverage of employees of political subdivisions; 
procedures for the development and promulgation of standards, including 
standards for the protection of employees against new and unforeseen 
hazards; and procedures for the prompt restraint of imminent danger 
situations.
    (b)(1) The plan includes legislation enacted by the New Mexico 
Legislature during its 1975 legislative session amending chapter 63, 
Laws of 1972, 59-14-1 through 59-14-23 of the New Mexico Statutes 
Annotated to bring them into conformity with the requirements of part 
1902 of this chapter. Under the legislation, the Environmental 
Improvement Agency will have full authority to enforce and administer 
laws respecting the safety and health of employees in all workplaces of 
the State.
    (2) The legislation is intended, among other things, to assure 
inspections in response to employee complaints; give employer and 
employee representatives an opportunity to accompany inspectors in order 
to aid inspections; notify employees of their protections and 
obligations; protect employees against discharge or discrimination in 
terms and conditions of employment; provide adequate safeguards to 
protect trade secrets; impose sanctions against employers for violations 
of standards and orders; insure employer right of review to an 
Occupational Health and Safety Review Commission and then the courts, 
and employee participation in the review proceedings. The plan also 
proposes a program of voluntary compliance by employers and employees, 
including a provision for on-site consultation. The State's consultation 
program will not detract from its enforcement program and the State's 
consultation program will meet the conditions set forth in the 
Washington Decision (38 FR 2421, January 26, 1973).
    (c) The New Mexico Plan includes the following documents as of the 
date of approval:
    (1) The plan description documents, in one volume.
    (2) A copy of the enabling legislation as amended by the State 
legislature in its 1975 session.
    (3) A letter from Aaron Bond, Director of the New Mexico 
Environmental Improvement Agency, to Barry J. White, Associate Assistant 
Secretary for Regional Programs, dated November 4, 1975, submitting 
information, clarification, and revisions on several issues raised 
during the review process, including proposals to be submitted to the 
New Mexico Legislature prior to the close of its 1977 legislative 
session.

[40 FR 57456, Dec. 10, 1975, as amended at 59 FR 42496, Aug. 18, 1994]



Sec. 1952.361  Developmental schedule.

    The New Mexico State Plan is developmental. The following is the 
developmental schedule as provided by the plan:
    (a) Development of a complete and operating management information 
and control system by January 1, 1976.
    (b) Submission of the State's occupational safety and health poster 
for approval by January 31, 1976.
    (c) Promulgation of Rules of Procedures for administrative review by 
the New Mexico Occupational Health and Safety Review Commission by 
January 31, 1976.
    (d) Enforcement program to achieve operational status by December 1, 
1976.
    (e) Amendments to basic legislation to become effective by July 1, 
1977.
    (f) Public employee program to become operational by July 1, 1977.

[40 FR 57456, Dec. 10, 1975. Redesignated at 59 FR 42496, Aug. 18, 1994]



Sec. 1952.362  Completion of developmental steps and certification.

    (a) In accordance with the requirements of Sec. 1952.10, the New 
Mexico State poster was approved by the Assistant Secretary on July 2, 
1976. A revised State poster reflecting legislative amendments and 
procedural changes was submitted on May 10, 1983, and approved by the 
Assistant Secretary on October 30, 1984.
    (b) In accordance with the intent of 29 CFR 1952.363(e), on December 
20, 1977, and June 3, 1983, New Mexico submitted procedural guidelines 
for its two-tier contested case procedures in lieu of

[[Page 112]]

legislative amendments. The procedures establish maximum timeframes for 
completion of the first level, informal administrative review of 
contested cases, and immediate docketing of cases with the New Mexico 
Occupational Health and Safety Review Commission. A second 15 day 
contest period is provided for employer/employee appeal directly to the 
Review Commission. The New Mexico Occupational Health and Safety Act 
(section 50-9-1 et seq., NMSA 1978) was amended in 1978, 1983 and 1984. 
These amendments deal with the imposition of penalties for serious 
violations by governmental entities; the private questioning of 
employees and employers by the Environmental Improvement Division 
officials at the worksite; the jurisdiction of the Environmental 
Improvement Division over working conditions in copper smelters; the use 
of interview statements as evidence in a civil or enforcement action; 
and the State's adoption of emergency temporary standards. These 
clarifications and legislative amendments were approved by the Assistant 
Secretary on October 30, 1984.
    (c) In accordance with 29 CFR 1952.363(a), New Mexico submitted 
documentation on establishment of its Management Information System on 
August 18, 1976, and June 3, 1983. The June 3, 1983, amendment specifies 
New Mexico's participation in OSHA's Unified Management Information 
System. These supplements were approved by the Assistant Secretary on 
October 30, 1984.
    (d) In accordance with 29 CFR 1952.363(c), New Mexico promulgated 
Review Commission Rules of Procedures on October 1, 1976. On January 11, 
1984, New Mexico submitted revised Review Commission Rules of Procedures 
which parallel 29 CFR part 2200. The revised rules were approved by the 
Assistant Secretary on October 30, 1984.
    (e) In accordance with 29 CFR 1952.363(d), New Mexico submitted 
documentation on December 20, 1977, showing that its enforcement program 
was operational effective June, 1976. The supplement was approved by the 
Assistant Secretary on October 30, 1984.
    (f) In accordance with 29 CFR 1952.363(f), New Mexico by letter 
dated December 20, 1977, submitted a plan supplement regarding its 
development of an occupational health and safety program for public 
employees in June, 1976. A revision thereto was submitted on February 
28, 1980. These supplements were approved by the Assistant Secretary on 
October 30, 1984.
    (g) New Mexico regulations for recording and reporting occupational 
injuries and illnesses parallel to 29 CFR part 1904 which were 
originally promulgated on August 8, 1975, were revised on February 19, 
1979, June 1, 1981, and October 26, 1983. The revised regulations were 
approved by the Assistant Secretary on October 30, 1984.
    (h) New Mexico regulations for inspections, citations and proposed 
penalties parallel to 29 CFR part 1903 originally promulgated on August 
8, 1975, were revised on April 14, 1981; May 10, 1981; May 27, 1981; 
June 1, 1981; April 6, 1982; May 11, 1983; June 8, 1983; June 14, 1983; 
and April 4, 1984. The revised regulations were approved by the 
Assistant Secretary on October 30, 1984.
    (i) New Mexico rules of practice for variances, limitations, 
variations, tolerances and exemptions parallel to 29 CFR part 1905 which 
were originally promulgated on August 8, 1975, were revised on April 14, 
1981. Subsequently, on June 18, 1981, and May 11, 1983, the State 
submitted amendments and assurances to its Field Operations Manual. 
These supplements were approved by the Assistant Secretary on October 
30, 1984.
    (j) New Mexico promulgated regulations for on-site consultation on 
March 7, 1979 and June 1, 1981 with an amendment dated October 17, 1983 
and assurances dated April 4, 1984 and July 10, 1984. These supplements 
were approved by the Assistant Secretary on October 30, 1984.
    (k) New Mexico adopted discrimination provisions parallel to 29 CFR 
part 1977 on March 29, 1982, with an amendment dated June 15, 1983. 
These supplements were approved by the Assistant Secretary on October 
30, 1984.
    (l) New Mexico submitted its field operations manual on May 16, 
1980, with subsequent amendments dated March 4, 1983; May 11, 1983; May 
23, 1983; June 8, 1983; June 16, 1983; June 17, 1983; and June 27, 1983. 
The manual reflects changes in the Federal program

[[Page 113]]

through March 1983. On July 25, 1980, with a subsequent amendment dated 
July 24, 1984, the State adopted Federal OSHA's Industrial Hygiene 
Manual. These supplements were approved by the Assistant Secretary on 
October 30, 1984.
    (m) New Mexico on February 28, 1980, submitted a supplement 
containing a revised plan narrative with further revisions dated June 
16, 1983; June 21, 1983; June 27, 1983, April 4, 1984, and July 24, 
1984. These supplements were approved by the Assistant Secretary on 
October 30, 1984.
    (n) In accordance with Sec. 1902.34 of this chapter, the New Mexico 
Occupational Health and Safety plan was certified effective December 4, 
1984, as having completed all developmental steps specified in the plan 
as approved on December 4, 1975, on or before December 4, 1978. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[49 FR 44205, Nov. 5, 1984, as amended at 49 FR 48918, Dec. 17, 1984. 
Redesignated at 59 FR 42497, Aug. 18, 1994]



Sec. 1952.363  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, 
compliance staffing levels (``benchmarks'') necessary for a ``fully 
effective'' enforcement program were required for each State operating 
an approved State plan. In May 1992, New Mexico completed, in 
conjunction with OSHA, a reassessment of the staffing levels initially 
established in 1980 and proposed revised benchmarks of 7 safety and 3 
health compliance officers. After opportunity for public comment and 
service on the AFL-CIO, the Assistant Secretary approved these revised 
staffing requirements on August 11, 1994.

[59 FR 42497, Aug. 18, 1994]



Sec. 1952.364  [Reserved]



Sec. 1952.365  Level of Federal enforcement.

    (a) Pursuant to Secs. 1902.20(b)(1)(iii) and 1954.3 of this chapter, 
under which an operational status agreement has been entered into 
between OSHA and New Mexico, effective October 5, 1981, and based on a 
determination that New Mexico is operational in issues covered by the 
New Mexico occupational health and safety plan, discretionary Federal 
enforcement authority under section 18(e) of the Act (29 U.S.C. 667(e)) 
will not be initiated with regard to Federal occupational safety and 
health standards in issues covered under 29 CFR parts 1910, 1926 and 
1928 except as provided in this section. The U.S. Department of Labor 
will continue to exercise authority, among other things, with regard to:
    (1) Complaints filed with the U.S. Department of Labor alleging 
discrimination under section 11(c) of the Act (29 U.S.C. 660(c));
    (2) Enforcement with respect to private sector maritime employment 
including 29 CFR parts 1915, 1917, 1918, 1919 (shipyard employment; 
marine terminals; longshoring and gear certification), and general 
industry and construction standards (29 CFR parts 1910 and 1926) 
appropriate to hazards found in these employments, which issues have 
been specifically excluded from coverage under the State plan;
    (3) Enforcement in situations where the State is refused and is 
unable to obtain a warrant or enforce its right of entry;
    (4) Enforcement of new Federal standards until the State adopts a 
comparable standard;
    (5) Enforcement of unique and complex standards as determined by the 
Assistant Secretary;
    (6) Enforcement in situations when the State is temporarily unable 
to exercise its enforcement authority fully or effectively;
    (7) Enforcement of occupational safety and health standards at all 
Federal and private sector establishments on military facilities and 
bases, including but not limited to Kirkland Air Force Base, Fort Bliss 
Military Reservation, White Sands Missile Range Military Reservation, 
Holloman Air Force Base, Cannon Air Force Base, Fort Wingate Military 
Reservation , Fort Bayard Veterans' Hospital, Albuquerque Veterans' 
Hospital, Santa Fe National Cemetery;
    (8) Enforcement of occuaptional safety and health standards, to the 
extent permitted by applicable law, over tribal or private sector 
employment within

[[Page 114]]

any Indian reservation and lands under the control of a tribal 
government;
    (9) Enforcement of occupational safety and health standards with 
regard to Federal government employers and employees; and the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations; and
    (10) Investigations and inspections for the purpose of the 
evaluation of the New Mexico plan under sections 18(e) and (f) of the 
Act (29 U.S. C. 667 (e) and (f)).
    (b) The Regional Administrator for Occupational Safety and Health 
will make a prompt recommendation for the resumption of the exercise of 
Federal enforcement authority under section 18(e) of the Act (29 U.S.C. 
667(e)) whenever, and to the degree, necessary to assure occupational 
safety and health protection to employees in New Mexico.

[62 FR 49911, Sept. 24, 1997, as amended at 65 FR 36629, June 9, 2000]



Sec. 1952.366  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N3700, 
Washington, D.C. 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room 602, 525 Griffin Street, 
Dallas, Texas 75202; and
New Mexico Environment Department, Occupational Safety and Health 
Bureau, 1190 St. Francis Drive, Santa Fe, New Mexico 87502.

[59 FR 42497, Aug. 18, 1994]



Sec. 1952.367  Changes to approved plans.

    (a) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved New Mexico's revised statutory penalty levels which are the 
same as the revised Federal penalty levels contained in section 17 of 
the Act as amended on November 5, 1990.
    (2) [Reserved]
    (b) In accordance with part 1953 of this chapter, New Mexico's State 
plan amendment, dated January 3, 1997, excluding coverage of all private 
sector employment on Federal military facilities and bases (see 
Sec. 1952.365), and, to the extent permitted by applicable law, over 
tribal or private sector employment within any Indian reservation and 
lands under the control of a tribal government, from its State plan was 
approved by the Acting Assistant Secretary on September 24, 1997.

[59 FR 14556, Mar. 29, 1994. Redesignated at 59 FR 42496, Aug. 18, 1994, 
as amended at 62 FR 49911, Sept. 24, 1997; 67 FR 60129, Sept. 25, 2002]



                          Subpart EE--Virginia



Sec. 1952.370  Description of the plan as initially approved.

    (a) The Virginia Department of Labor and Industry is the agency 
responsible for administering the plan and the Virginia Department of 
Health is designated as responsible for occupational health matters. The 
plan defines the covered occupational safety and health issues as 
defined by the Secretary of Labor in 29 CFR 1902.2(c)(1) and all safety 
and health standards adopted by the Secretary of Labor, except those 
found in 29 CFR parts 1915, 1916, 1917, and 1918 (ship repairing, 
shipbuilding, shipbreaking and longshoring), will be enforced by the 
State upon approval of the plan by the Assistant Secretary. The State 
will retain its existing standard applicable to ionizing radiation. New 
Federal standards will be adopted by the Safety and Health Codes 
Commission within 6 months after Federal promulgation.
    (b)(1) The plan includes enabling legislation passed by the Virginia 
legislature in February 1973, and amendments thereto enacted in 1975 and 
1976. The Commissioner of the Department of Labor and Industry will have 
authority to enforce and adminster laws regarding the safety and health 
of employees. Safety inspections will be conducted by the Department of 
Labor and Industry whereas health inspections will be conducted by the 
Department of Health. The Department of Labor and Industry will issue 
citations, set abatement

[[Page 115]]

dates, and issue summons and/or warrants for a civil district court 
determination of violations and assessment of proposed penalties for 
such safety and health violations. Appeals of the district court's 
determination shall be to the circuit court sitting without a jury. Fire 
safety inspections and enforcement will be provided by agreement with 
the State Fire Marshal. The State plan provides for the coverage of all 
employees including coverage of public employees within the Commonwealth 
with the exception of maritime workers, employees of the United States, 
and employees whose working conditions are regulated by Federal agencies 
other than the U.S. Department of Labor under section 4(b)(1) of the 
Occupational Safety and Health Act of 1970. The Commissioner is 
authorized to establish a program applicable to employees of the State 
and its political subdivisions.
    (2) The legislation also insures inspections in response to employee 
complaints; right of employer and employee representatives to accompany 
inspectors; notification to employees or their representatives when no 
compliance action is taken as a result of alleged violations; 
notification to employees of their protections and obligations; 
protection of employees against discharge or discrimination in terms and 
conditions of employment; adequate safeguards to protect trade secrets; 
prompt notice to employers and employees of alleged violations of 
standards and abatement requirements; effective sanctions against 
employers for violations of rules, regulations, standards and orders; 
employee right of review in the State civil courts and employee 
participation in this judicial review process. In addition, there is 
provision for prompt restraint of imminent danger situations by 
injunction and ``red-tag'' procedures. The plan also proposes to develop 
a program to encourage voluntary compliance by employers and employees, 
including provision for onsite consultation, which program will not 
detract from its enforcement program.
    (c) The plan sets out goals and provides a timetable for bringing it 
into conformity with part 1902 of this chapter at the end of three years 
after commencement of operations under the plan. The plan also includes 
the State Administrative Process Act. A merit system of personnel 
administration will be utilized.
    (d) The plan includes the following documents as of the date of 
approval:
    (1) The plan document and appendices including revised legislation, 
submitted June 21, 1976.
    (2) Letters from the Department of Labor and Industry dated January 
15, March 4, and August 23, 1976, and from the Department of Health 
dated August 18, 1976.

[41 FR 42658, Sept. 28, 1976, as amended at 51 FR 2489, Jan. 17, 1986]



Sec. 1952.371  Developmental schedule.

    The Virginia plan is developmental. Following is a schedule of major 
developmental steps:
    (a) Standards identical to the Federal standards will be completely 
adopted by January 1, 1978.
    (b) A plan for delegation of authority to the State Fire Marshal for 
fire standards development and enforcement will be completed by December 
31, 1976, with necessary legislative action and program implementation 
by July 1, 1978.
    (c) State poster(s) informing public and private employees of their 
rights and responsibilities will be developed and distributed within 6 
months of plan approval.
    (d) A voluntary compliance program (including on-site consultation 
services) will be initiated within 6 months of plan approval.
    (e) Both safety and health conpliance programs will be fully staffed 
by FY 1979.
    (f) Both safety and health consultation programs will be fully 
staffed by FY 1979.
    (g) An automated Management Information System, including a court 
reporting system, will be developed within 6 months of plan approval.
    (h) An Administrative Procedures Manual which will contain State 
regulations on standards promulgation, inspections, citations, proposal 
of penalties, review procedures, variances, etc., will be developed 
within 6 months of plan approval.

[[Page 116]]

    (i) A Compliance Manual establishing procedures to be used by safety 
and health inspectors and voluntary compliance personnel will be 
developed within 6 months of plan approval.
    (j) The State is now responsible for enforcement of the State 
explosive code. That code will be amended within 6 months of plan 
approval to contain only standards identical to OSHA's standards.
    (k) Job descriptions for both safety and health personnel will be 
reviewed and revised to accurately reflect job functions within 12 
months of plan approval.
    (l) The Directors of the Industry and Construction Safety Divisions 
in the Department of Labor and Industry will be brought under State 
merit system coverage by January 1, 1977.
    (m) An inspection scheduling system will be developed for the health 
program within 6 months of plan approval and for the safety program 
within 8 months of plan approval.
    (n) A public employee program will be developed and implemented 
within 6 months of plan approval.

[41 FR 42658, Sept. 28, 1976, as amended at 42 FR 10989, Feb. 25, 1977. 
Redesignated at 51 FR 2489, Jan. 17, 1986]



Sec. 1952.372  Completion of developmental steps and certification.

    (a) In accordance with 29 CFR 1952.373(b), Virginia was to develop a 
plan for delegation of authority to the State Fire Marshal for fire 
standards enforcement. The State has since announced that the authority 
for fire standards enforcement will rest with the Department of Labor 
and Industry, which has been enforcing fire standards since plan 
approval. This action is judged to have sufficiently fulfilled the 
commitments of this step.
    (b) In accordance with 29 CFR 1952.373(c) and 1952.10. Virginia's 
safety and health posters for public and private employers were approved 
by the Assistant Secretary on November 13, 1980.
    (c) In accordance with 29 CFR 1952.373(d), Virginia initiated a 
voluntary compliance program which includes on-site consultation 
services on March 15, 1977. (The State subsequently arranged for on-site 
consultation activities for the private sector to be covered by an 
agreement with the U.S. Department of Labor under section 7(c)(1) of the 
Act).
    (d) In accordance with 29 CFR 1952.373(f), the State had met its 
developmental commitment for the staffing of its on-site consultation 
program in the public sector by fiscal year 1979. On-site consultation 
in the private sector is covered by a section 7(c)(1) agreement with the 
U.S. Department of Labor.
    (e) In accordance with the relevant part of 29 CFR 1952.373(g), 
Virginia met its developmental commitment of developing and implementing 
an automated Management Information System on July 1, 1977.
    (f) In accordance with 29 CFR 1952.373(l), the Directors of the 
Industry and the Construction Safety Divisions have been placed under 
the State merit system as of September 1, 1976.
    (g) In accordance with 29 CFR 1952.373(a), Virginia was to 
completely adopt standards identical to the Federal standards by January 
1, 1978. State standards identical to the Federal standards of 29 CFR 
part 1910 (General Industry) and part 1926 (Construction) and as 
effective as the Federal standards for ionizing radiation exposure 
became effective on April 15, 1977, and were approved by the Regional 
Administrator in the Federal Register of March 17, 1978 (43 FR 11274). 
State standards identical to the Federal standards in 29 CFR part 1928 
(Agriculture) became effective on April 1, 1978, and were approved by 
the Regional Administrator in the Federal Register of June 12, 1979 (44 
FR 3375). The State's subsequent adoption of standards identical to the 
Federal standards for ionizing radiation exposure was approved on August 
20, 1982 (47 FR 36485). The State has continued to adopt standards, 
amendments and corrections identical to the Federal, as noted in 
separate standards approval notices.
    (h) In accordance with 29 CFR 1952.373(e), the State met its 
developmental commitment for the staffing of its compliance program by 
Fiscal Year 1979 with the submission of its Fiscal Year 1979 grant 
application on August 11, 1978, which allocated 38 safety and

[[Page 117]]

18 health compliance officer positions. This supplement was approved by 
the Assistant Secretary on October 14, 1983.
    (i) In accordance with 29 CFR 1952.373(g), Virginia met its 
developmental commitment for the development and implementation of a 
system for the reporting of court decisions resulting from the State's 
system for the judicial review of contested cases with the submission of 
a publication on May 27, 1981, which compiled final orders and decisions 
regarding cases contested to the Virginia General District and Circuit 
Courts. The State has subsequently submitted other compilations which 
are to be published annually. This amendment was approved by the 
Assistant Secretary on October 14, 1983.
    (j) In accordance with 29 CFR 1952.373(j), Virginia submitted 
revised standards for explosives and blasting agents on March 23, 1977, 
which were found to be identical to the Federal standards and were 
approved by the Regional Administrator in the Federal Register of March 
17, 1978 (43 FR 11274).
    (k) In accordance with 29 CFR 1952.373(k), the State met its 
developmental commitment of reviewing and revising job descriptions for 
both safety and health personnel with the submission of revised job 
specifications on October 5, 1977. This supplement was approved by the 
Assistant Secretary on October 14, 1983.
    (l) In accordance with 29 CFR 1952.373(m), Virginia submitted 
inspection scheduling systems for its health and safety programs on 
September 7 and November 2, 1977, and a revised health scheduling system 
on May 9, 1979. The State has subsequently adopted revisions identical 
to revisions to the Federal scheduling system for safety as well as 
health inspections with submissions dated December 11, 1980, October 30, 
1981, and May 28, 1982. These amendments were approved by the Assistant 
Secretary on October 14, 1983.
    (m) In accordance with 29 CFR 1952.373(h), Virginia submitted an 
administrative procedures manual containing State rules and regulations 
on standards promulgation, inspections, recordkeeping and reporting of 
occupational injuries and illnesses, nondiscrimination, citations, 
proposal of penalties, review procedures, variances, etc., on March 31, 
1977. The State has subsequently submitted revised versions of and 
clarifications to the manual by letters dated September 8, 1978, May 26, 
1981, November 12, 1982, January 20, 1983, March 16, 1983 and September 
13, 1983 in response to OSHA comments, and these actions are adjudged to 
have sufficiently fulfilled the commitments of this step. The Virginia 
Occupational Safety and Health Administrative Regulations Manual (which 
became effective on October 31, 1983 and was clarified by a letter dated 
June 13, 1984) was approved by the Assistant Secretary on August 15, 
1984.
    (n) In accordance wth 29 CFR 1952.373(i), the State was to develop a 
compliance manual establishing procedures to be used by safety and 
health compliance officers and voluntary compliance personnel. A 
voluntary compliance and training manual was initially submitted by the 
State on March 31, 1977 and a completely revised version was submitted 
by a letter dated March 21, 1984. The State submitted a compliance 
manual for safety and health compliance officers on August 2, 1977. By 
letters dated November 20, 1978 and August 2, 1979, Virginia informed 
OSHA that it would adopt and implement Federal OSHA's Field Operations 
Manual and Industrial Hygiene Field Operations Manual. The State has 
adopted subsequent Federal changes to these manuals by letters dated 
August 26, 1981, February 9, 1984, and June 18, 1984. On July 30, 1984, 
the State submitted a completely revised Field Operations Manual 
reflecting changes to the Federal manual through June 1, 1984. In 
addition, by a letter dated June 5, 1984, the State indicated its intent 
to utilize and adopt the March 30, 1984 Federal Industrial Hygiene 
Technical Manual. These supplements were approved by the Assistant 
Secretary on August 15, 1984.
    (o) In accordance with 29 CFR 1952.373(n), Virginia met its 
developmental commitment of developing and implementing an occupational 
safety and health program applicable to employees of the State and local 
governments. On March 31, 1977, the State

[[Page 118]]

submitted rules and regulations applying Virginia occupational safety 
and health law and standards to State, local and municipal governments. 
These regulations were subsequently revised and incorporated into the 
State's Administrative Regulations Manual as submitted on September 13, 
1983. These supplements were approved by the Assistant Secretary on 
August 15, 1984.
    (p) In accordance with part 1953 of this chapter, Virginia submitted 
legislative amendments to Title 40.1 of the Labor Laws of Virginia as 
enacted by the Virginia General Assembly of February 6, 1979. These 
legislative amendments, which dealt primarily with the Commissioner's 
delegation authority, procedures concerning Virginia's system of 
judicial review of contested cases, and penalty provisions, were 
approved by the Assistant Secretary on August 15, 1984.
    (q) In accordance with Sec. 1902.34 of this chapter, the Virginia 
occupational safety and health plan was certified effective August 15, 
1984 as having completed all developmental steps specified in the plan 
as approved on September 23, 1976 on or before September 23, 1979. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[45 FR 77003, Nov. 21, 1980, as amended at 48 FR 48823, Oct. 21, 1983; 
49 FR 33122 and 33126, Aug. 21, 1984. Redesignated at 51 FR 2489, Jan. 
17, 1986; 67 FR 60129, Sept. 25, 2002]



Sec. 1952.373  Compliance staffing benchmarks.

    Under the terms of the 1978 Court Order in AFL-CIO v. Marshall 
compliance staffing levels (benchmarks) necessary for a ``fully 
effective'' enforcement program were required to be established for each 
State operating an approved State plan. In September 1984 Virginia, in 
conjunction with OSHA, completed a reassessment of the levels initially 
established in 1980 and proposed revised compliance staffing benchmarks 
of 38 safety and 21 health compliance officers. After opportunity for 
public comment and service on the AFL-CIO, the Assistant Secretary 
approved these revised staffing requirements on January 17, 1986.

[51 FR 2489, Jan. 17, 1986]



Sec. 1952.374  Final approval determination.

    (a) In accordance with section 18(e) of the Act and procedures in 29 
CFR part 1902, and after determination that the State met the ``fully 
effective'' compliance staffing benchmarks as revised in 1984 in 
response to a Court Order in AFL-CIO v. Marshall (CA 74-406), and was 
satisfactorily providing reports to OSHA through participation in the 
Federal-State Integrated Management Information System, the Assistant 
Secretary evaluated actual operations under the Virginia State plan for 
a period of at least one year following certification of completion of 
developmental steps (49 FR 33123). Based on the 18(e) Evaluation Report 
for the period of January 1, 1987 through March 31, 1988, and after 
opportunity for public comment, the Assistant Secretary determined that 
in operation the State of Virginia's occupational safety and health 
program is at least as effective as the Federal program in providing 
safe and healthful employment and places of employment and meets the 
criteria for final State plan approval in section 18(e) of the Act and 
implementing regulations at 29 CFR part 1902. Accordingly, the Virginia 
plan was granted final approval and concurrent Federal enforcement 
authority was relinquished under section 18(e) of the Act effective 
November 30, 1988.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Virginia. The plan does not cover private sector maritime employment; 
worksites located within Federal military facilities as well as on other 
Federal enclaves where civil jurisdiction has been ceded by the State to 
the Federal government; Federal government employers and employees; and 
the U.S. Postal Service (USPS), including USPS employees, and contract 
employees and contractor-operated facilities engaged in USPS mail 
operations.
    (c) Virginia is required to maintain a State program which is at 
least as effective as operations under the Federal program; to submit 
plan supplements in accordance with 29 CFR part 1953; to allocate 
sufficient safety and health

[[Page 119]]

enforcement staff to meet the benchmarks for State staffing established 
by the U.S. Department of Labor, or any revisions to those benchmarks; 
and, to furnish such reports in such form as the Assistant Secretary may 
from time to time require.

[53 FR 48258, Nov. 30, 1988, as amended at 65 FR 36630, June 9, 2000]



Sec. 1952.375  Level of Federal Enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Virginia plan under section 18(e) of the Act, 
effective November 30, 1988, occupational safety and health standards 
which have been promulgated under section 6 of the Act do not apply with 
respect to issues covered under the Virginia plan. This determination 
also relinquishes concurrent Federal OSHA authority to issue citations 
for violations of such standards under section 5(a)(2) and 9 of the Act; 
to conduct inspections and investigations under section 8 (except those 
necessary to conduct evaluation of the plan under section 18(f) and 
other inspections, investigations, or proceedings necessary to carry out 
Federal responsibilities not specifically preempted by section 18(e)); 
to conduct enforcement proceedings in contested cases under section 10; 
to institute proceedings to correct imminent dangers under section 13; 
and to propose civil penalties or initiate criminal proceedings for 
violations of the Federal Act under section 17. The Assistant Secretary 
retains jurisdiction under the above provisions in any proceeding 
commenced under section 9 or 10 before the effective date of the 18(e) 
determination.
    (b)(1) In accordance with section 18(e), final approval relinquishes 
Federal OSHA authority only with regard to occupational safety and 
health issues covered by the Virginia plan. OSHA retains full authority 
over issues which are not subject to State enforcement under the plan. 
Thus, Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and will continue to enforce all 
provisions of the Act, rules or orders, and all Federal standards, 
current or future, specifically directed to maritime employment (29 CFR 
Part 1915, shipyard employment; Part 1917, marine terminals; Part 1918, 
longshoring; Part 1919, gear certification) as well as provisions of 
general industry and construction standards (29 CFR Parts 1910 and 1926) 
appropriate to hazards found in these employments, and employment at 
worksites located within Federal military facilities as well as on other 
Federal enclaves where civil jurisdiction has been ceded by the State to 
the Federal government. Federal jurisdiction is also retained with 
respect to Federal government employers and employees, and the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations.
    (2) In addition, any hazard, industry, geographical area, operation 
or facility over which the State is unable to effectively exercise 
jurisdiction for reasons which OSHA determines are not related to the 
required performance or structure of the plan shall be deemed to be an 
issue not covered by plan which has received final approval, and shall 
be subject to Federal enforcement. Where enforcement jurisdiction is 
shared between Federal and State authorities for a particular area, 
project, or facility, in the interest of administrative practicability 
Federal jurisdiction may be assumed over the entire project or facility. 
In any of the aforementioned circumstances, Federal enforcement 
authority may be exercised after consultation with the State designated 
agency.
    (c) Federal authority under provisions of the Act not listed in 
section 18(e) is unaffected by final approval of the plan. Thus, for 
example, the Assistant Secretary retains his authority under section 
11(c) of the Act with regard to complaints alleging discrimination 
against employees because of the exercise of any right afforded to the 
employee by the Act, although such complaints may be referred to the 
State for investigation. The Assistant Secretary also retains his 
authority under section 6 of the Act to promulgate, modify or revoke 
occupational safety and health standards which address the working 
conditions of all employees, including those in States

[[Page 120]]

which have received an affirmative 18(e) determination, although such 
standards may not be Federally applied. In the event that the State's 
18(e) status is subsequently withdrawn and Federal authority reinstated, 
all Federal standards, including any standards promulgated or modified 
during the 18(e) period, would be Federally enforceable in that State.
    (d) As required by section 18(f) of the Act, OSHA will continue to 
monitor the operations of the Virginia State program to assure that the 
provisions of the State plan are substantially complied with and that 
the program remains at least as effective as the Federal program. 
Fairlure by the State to comply with its obligations may result in the 
revocation of Federal enforcement, and/or proceedings for withdrawal of 
plan approval.

[53 FR 48258, Nov. 30, 1988, as amended at 65 FR 36630, June 9, 2000]



Sec. 1952.376  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Office of the Regional Administrator, Occupational Safety and Health 
Administration, U.S. Department of Labor, The Curtis Center, 170 South 
Independence Mall West--Suite 740 West, Philadelphia, Pennsylvania
Office of the Commissioner, Virginia Department of Labor and Industry, 
Powers-Taylor Building, 13 South 13th Street, Richmond, Virginia 23219.

[65 FR 36630, June 9, 2000]



Sec. 1952.377  Changes to approved plans.

    In accordance with part 1953 of this chapter, the following Virginia 
plan changes were approved by the Assistant Secretary:
    (a) The State submitted legislative amendments related to the 
issuance and judicial review of administrative search warrants which 
became effective on July 1, 1987. The Assistant Secretary approved these 
amendments on 14 September, 1987.
    (b) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Virginia's revised statutory penalty levels which are the same 
as the revised Federal penalty levels contained in section 17 of the Act 
as amended on November 5, 1990.

[52 FR 35070, Sept. 17, 1987, as amended at 59 FR 14556, Mar. 29, 1994]



                         Subpart FF--Puerto Rico



Sec. 1952.380  Description of the plan.

    (a) The plan designates the Puerto Rico Department of Labor and 
Human Resources as the agency responsible for the administration and 
enforcement of the plan throughout the Commonwealth. This includes the 
responsibility for administration of a public employee program for which 
the same enforcement provisions and procedures used for the private 
sector will apply, with the exception of penalties. Penalties in the 
Commonwealth's Act for the private sector are essentially identical to 
those in the Federal Act, and Puerto Rico intends to adopt all Federal 
standards. The Commonwealth will exclude from coverage all industries 
included within the classifications of Marine Cargo Handling (SIC 4463) 
and Shipbuilding and Repairing (SIC 3713), but will adopt and enforce 
standards for boilers and elevators and other issues where no Federal 
OSHA standards exist. The plan provides that program personnel will be 
employed under a merit system and provides for a Management Information 
System. It also provides procedures for the development and promulgation 
of standards and procedures for the prompt restraint or elimination of 
imminent danger situations.
    (b) The Puerto Rico Occupational Safety and Health Act was enacted 
on July 7, 1975, and approved by the Governor on August 5, 1975. It is 
similar in most respect to the Federal Act. The Puerto Rico Act provides 
employers the right of administrative review of citations, abatement 
requirements, and proposed penalties, and employee review of abatement 
dates, by a hearing examiner appointed by the Puerto Rico Secretary of 
Labor. The decision by the Secretary may be appealed by the employer or 
employees to the civil courts.

[[Page 121]]

The plan contains a statement of support by the Governor and an opinion 
by the Secretary of Justice that the Act is consistent with the State's 
Law and Constitution. Federal procedural regulations will be 
incorporated into the Commonwealth's regulations and the Federal 
Compliance Manual will be adopted to fit Puerto Rico's Law. In addition, 
the Puerto Rico Act requires that a Spanish language version of OSHA 
standards be made available within three years of plan approval.
    (c) The Puerto Rico Act provides for, among other things, 
inspections in response to employee complaints; an opportunity for 
employer and employee representatives to accompany inspectors in order 
to aid inspections; notification of employees or their representatives 
when no compliance action is taken as a result of a complaint; 
notification of employees of their protections and obligations; 
protection for employees against discharge or discrimination in terms 
and conditions of employment; adequate safeguards to protect trade 
secrets; sanctions against employers for violations of standards and 
orders; and review of citations by a hearing examiner, with appeal to 
the Secretary of Labor and the Commonwealth's courts.
    (d) The plan also proposes a program of voluntary compliance by 
employers and employees, including a provision for on-site consultation.
    (e) The Puerto Rico Plan includes the following documents as of the 
date of approval:
    (1) The plan description documents, in two volumes.
    (2) A copy of the enabling legislation as enacted on July 7, 1975, 
and signed by the Governor on August 5, 1975.
    (3) An assurance of separability of the enforcement personnel from 
the hearing examiner.
    (4) A letter of assurance of the authenticity of the English version 
of the Puerto Rico OSHA Act from John Cinque Sacarello, Assistant 
Secretary for Occupational Safety and Health, Puerto Rico Department of 
Labor, dated December 4, 1975.

[42 FR 43629, Aug. 30, 1977]



Sec. 1952.381  Where the plan may be inspected.

    A copy of the principal documents comprising the plan may be 
inspected and copied during normal business hours at the following 
locations:

Office of State Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Room N3700, 
Washington, DC 20210;
Regional Administrator, Occupational Safety and Health Administration, 
U.S. Department of Labor, 201 Varick Street, Room 670, New York, New 
York 10014.
Office of the Secretary, Puerto Rico Department of Labor and Human 
Resources, Prudencio Rivera Martinez Building, 505 Munoz Rivera Avenue, 
Hato Rey, Puerto Rico 00918.

[65 FR 36630, June 9, 2000]



Sec. 1952.382  Level of Federal enforcement.

    Pursuant to Sec. 1902.20(b)(1)(iii) and Sec. 1954.3 of this chapter 
under which an agreement has been entered into with Puerto Rico, 
effective December 8, 1981, and based on a determination that Puerto 
Rico is operational in the issues covered by the Puerto Rico 
occupational safety and health plan, discretionary Federal enforcement 
authority under section 18(e) of the Act (29 U.S.C. 667(e)) will not be 
initiated with regard to Federal occupational safety and health 
standards in issues covered under 29 CFR Parts 1910 and 1926 except as 
provided in this section. The U.S. Department of Labor will continue to 
exercise authority, among other things, with regard to: complaints filed 
with the U.S. Department of Labor alleging discrimination under section 
11(c) of the Act (29 U.S.C. 660(c)); safety and health in private sector 
maritime activities and will continue to enforce all provisions of the 
Act, rules of orders, and all Federal standards, current or future, 
specifically directed to maritime employment (29 CFR Part 1915, shipyard 
employment; Part 1917, marine terminals; Part 1918, longshoring; Part 
1919, gear certification) as well as provisions of general industry and 
construction standards (29 CFR Parts 1910 and 1926) appropriate to 
hazards found

[[Page 122]]

in these employments; enforcement relating to any contractors or 
subcontractors on any Federal establishment where the State cannot 
obtain entry; enforcement of new Federal standards until the State 
adopts a comparable standard; situations where the State is refused 
entry and is unable to obtain a warrant or enforce the right of entry; 
enforcement of unique and complex standards as determined by the 
Assistant Secretary; situations when the State is temporarily unable to 
exercise its enforcement authority fully or effectively; completion of 
enforcement actions initiated prior to the effective date of the 
agreement; and investigations and inspections for the purpose of the 
evaluation of the Puerto Rico plan under sections 18(e) and (f) of the 
Act (29 U.S.C. 667(e) and (f)). Federal OSHA will also retain authority 
for coverage of Federal employers and employees, and the U.S. Postal 
Service (USPS), including USPS employees, and contract employees and 
contractor-operated facilities engaged in USPS mail operations. The OSHA 
Regional Administrator will make a prompt recommendation for the 
resumption of the exercise of Federal enforcement authority under 
section 18(e) of the Act (29 U.S.C. 667(e)) whenever, and to the degree, 
necessary to assure occupational safety and health protection to 
employees in Puerto Rico.

[65 FR 36630, June 9, 2000]



Sec. 1952.383  Completion of developmental steps and certification.

    (a) Position descriptions of State plan personnel by March, 1978.
    (b) Public information program (private sector), one year after plan 
approval.
    (c) Analysis for inspection scheduling (private sector), March 1980.
    (d) Submit administrative regulations, September, 1978.
    (e) Affirmative action plan by July, 1980.
    (f) File and promulgate standards, March, 1978.
    (g) Adopt the Field Operations Manual, April, 1980.
    (h) Adopt management information system, January, 1980.
    (i) Internal training schedule, April, 1980.
    (j) Employer, employee training schedule, August, 1978.
    (k) Public information program (government sector), February, 1980.
    (l) Analysis for inspection scheduling (government sector), June, 
1980.
    (m) Implementation of public employee program, October, 1978.
    (n) On-site consultation regulations, March, 1979.
    (o) Laboratory, August, 1980.
    (p) Posters, February, 1978.
    (q) Boiler and Elevator Program, June, 1980.
    (r) Staffing on Board for consultation, laboratory, boiler and 
elevators, February, 1980.
    (s) In accordance with Sec. 1902.34 of this chapter, the Puerto Rico 
occupational safety and health plan was certified effective September 7, 
1982, as having completed all developmental steps specified in the plan 
as approved on August 15, 1977 on or before August 14, 1980. This 
certification attests to structural completion, but does not render 
judgment on adequacy of performance.

[45 FR 54334, July 15, 1980, as amended at 47 FR 39166, Sept. 7, 1982]



Sec. 1952.384  Completed developmental steps.

    (a) In accordance with the requirements of Sec. 1952.10, Puerto 
Rico's safety and health posters for private and public employees were 
approved by the Assistant Secretary, on July 2, 1979.
    (b) In accordance with 29 CFR 1952.383(a), Puerto Rico submitted 
position descriptions for State plan personnel on March 3, 1980, and 
submitted revised position descriptions on September 8, 1980.
    (c) In accordance with 29 CFR 1952.383(b), Puerto Rico submitted its 
public information program for the private sector on August 10, 1978.
    (d) In accordance with 29 CFR 1952.383(c), Puerto Rico submitted its 
analysis for inspection scheduling in the private sector on June 3, 
1980.
    (e) In accordance with 29 CFR 1952.383(d), Puerto Rico submitted its 
administrative regulations on September 13, 1978, and submitted 
revisions to the regulations on October 27, 1978, March 12, 1979, and 
February 14, 1980.

[[Page 123]]

    (f) In accordance with 29 CFR 1952.383(e), Puerto Rico has developed 
an affirmative action plan that was found acceptable by the United 
States Office of Personnel Management on March 27, 1981.
    (g) In accordance with 29 CFR 1952.383(f), Puerto Rico has 
promulgated standards identical to Federal standards and subsequent 
amendments to reflect changes in and additions to Federal standards. The 
Regional Administrator approved these supplements on July 14, 1978 (43 
FR 37233), June 18, 1979 (44 FR 71470), June 12, 1979 (44 FR 33751), 
April 17, 1979 (44 FR 22830), and October 23, 1981 (46 FR 52060).
    (h) In accordance with 29 CFR 1952.383(g), Puerto Rico submitted its 
Field Operations Manuals on July 31, 1980, and submitted a revised 
supplement adopting the Federal OSHA Field Operations Manuals on 
February 25, 1981.
    (i) In accordance with 29 CFR 1952.383(h), Puerto Rico has 
participated in the Federal OSHA Management Information System since 
August of 1978.
    (j) In accordance with 29 CFR 1952.383(i), Puerto Rico submitted its 
internal training schedule on May 5, 1980.
    (k) In accordance with 29 CFR 1952.383(j), Puerto Rico submitted its 
employer/employee training schedule on March 11, 1980, and on February 
13, 1981, submitted an updated training schedule.
    (l) In accordance with 29 CFR 1952.383(k), Puerto Rico submitted its 
public information program for the government sector on March 13, 1980.
    (m) In accordance with 29 CFR 1952.383(l), Puerto Rico submitted its 
analysis for inspection scheduling in the government sector on August 
13, 1980.
    (n) In accordance with 29 CFR 1952.383(m), Puerto Rico implemented 
its public employee program in October 1978.
    (o) In accordance with 29 CFR 1952.383(n), Puerto Rico submitted its 
on-site consultation regulations on March 30, 1979.
    (p) In accordance with 29 CFR 1952.383(o), Puerto Rico submitted a 
State plan supplement on its industrial hygiene laboratory on July 14, 
1980.
    (q) In accordance with 29 CFR 1952.383(q), Puerto Rico submitted its 
procedures for a boiler and elevator inspection program on November 28, 
1979. Based on OSHA recommendations, Puerto Rico submitted a revision to 
this supplement deleting the boiler and elevator inspection program from 
the State plan on November 14, 1980.
    (r) In accordance with 29 CFR 1952.383(r), Puerto Rico submitted 
documentation of staffing levels for the on-site consultation program 
and the industrial hygiene laboratory on March 3, 1980. Based on OSHA 
recommendations, Puerto Rico deleted staffing for the boiler and 
elevator inspection program from its State plan on November 14, 1980.

[44 FR 41429, July 17, 1979, as amended at 47 FR 25329, June 11, 1982]



Sec. 1952.385  Changes to approved plans.

    (a) The Voluntary Protection Programs. On December 30, 1993, the 
Assistant Secretary approved Puerto Rico's plan supplement, which is 
generally identical to the Federal Voluntary Protection Program with the 
exception of changes to reflect different structure and exclusion of the 
Demonstration Program.
    (b) Legislation. (1) On March 29, 1994, the Assistant Secretary 
approved Puerto Rico's revised statutory penalty levels which are the 
same as the revised Federal penalty levels contained in section 17 of 
the Act as amended on November 5, 1990.
    (2)  [Reserved]

[59 FR 2995, Jan. 14, 1994, as amended at 59 FR 14556, Mar. 29, 1994]



PART 1953--CHANGES TO STATE PLANS--Table of Contents




Sec.
1953.1  Purpose and scope.
1953.2  Definitions.
1953.3  General policies and procedures.
1953.4  Submission of plan supplements.
1953.5  Special provisions for standards changes.
1953.6  Review and approval of plan supplements.


[[Page 124]]


    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of 
Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).

    Source: 67 FR 60125, Sept. 25, 2002, unless otherwise noted.



Sec. 1953.1  Purpose and scope.

    (a) This part implements the provisions of section 18 of the 
Occupational Safety and Health Act of 1970 (``OSH Act'' or the ``Act'') 
which provides for State plans for the development and enforcement of 
State occupational safety and health standards. These plans must meet 
the criteria in section 18(c) of the Act, and part 1902 of this chapter 
(for plans covering both private sector and State and local government 
employers) or part 1956 of this chapter (for plans covering only State 
and local government employers), either at the time of submission or--
where the plan is developmental--within the three year period 
immediately following commencement of the plan's operation. Approval of 
a State plan is based on a finding that the State has, or will have, a 
program, pursuant to appropriate State law, for the adoption and 
enforcement of State standards that is ``at least as effective'' as the 
Federal program.
    (b) When submitting plans, the States provide assurances that they 
will continue to meet the requirements in section 18(c) of the Act and 
part 1902 or part 1956 of this chapter for a program that is ``at least 
as effective'' as the Federal. Such assurances are a fundamental basis 
for approval of plans. (See Sec. 1902.3 and Sec. 1956.2 of this 
chapter.) From time to time after initial plan approval, States will 
need to make changes to their plans. This part establishes procedures 
for submission and review of State plan supplements documenting those 
changes that are necessary to fulfill the State's assurances, the 
requirements of the Act, and part 1902 or part 1956 of this chapter.
    (c) Changes to a plan may be initiated in several ways. In the case 
of a developmental plan, changes are required to document establishment 
of those necessary structural program components that were not in place 
at the time of plan approval. These commitments are included in a 
developmental schedule approved as part of the initial plan. These 
``developmental changes'' must be completed within the three year period 
immediately following the commencement of operations under the plan. 
Another circumstance requiring subsequent changes to a State plan would 
be the need to keep pace with changes to the Federal program, or 
``Federal Program Changes.'' A third situation would be when changes are 
required as a result of the continuing evaluation of the State program. 
Such changes are called ``evaluation changes.'' Finally, changes to a 
State program's safety and health requirements or procedures initiated 
by the State without a Federal parallel could have an impact on the 
effectiveness of the State program. Such changes are called ``State-
initiated changes.'' While requirements for submission of a plan 
supplement to OSHA differ depending on the type of change, all 
supplements are processed in accordance with the procedures in 
Sec. 1953.6.



Sec. 1953.2  Definitions.

    (a) OSHA means the Assistant Secretary of Labor for Occupational 
Safety and Health, or any representative authorized to perform any of 
the functions discussed in this part, as set out in implementing 
Instructions.
    (b) State means an authorized representative of the agency 
designated to administer a State plan under Sec. 1902.3(b) of this 
chapter.
    (c) Plan change means any modification made by a State to its 
approved occupational safety and health State plan which has an impact 
on the plan's effectiveness.
    (d) Plan supplement means all documents necessary to accomplish, 
implement, describe and evaluate the effectiveness of a change to a 
State plan which differs from the parallel Federal legislation, 
regulation, policy or procedure. (This would include a copy of the 
complete legislation, regulation, policy or procedure adopted; an 
identification of each of the differences; and an explanation of how 
each provision is at least as effective as the comparable Federal 
provision.)
    (e) Identical plan change means one in which the State adopts the 
same program provisions and documentation as

[[Page 125]]

the Federal program with the only differences being those modifications 
necessary to reflect a State's unique structure (e.g., organizational 
responsibility within a State and corresponding titles or internal State 
numbering system). Different plan change means one in which the State 
adopts program provisions and documentation that are not identical as 
defined in this paragraph.
    (g) Developmental change is a change made to a State plan which 
documents the completion of a program component which was not fully 
developed at the time of initial plan approval.
    (h) Federal program change is a change made to a State plan when 
OSHA determines that an alteration in the Federal program could render a 
State program less effective than OSHA's if it is not similarly 
modified.
    (i) Evaluation change is a change made to a State plan when 
evaluations of a State program show that some substantive aspect of a 
State plan has an adverse impact on the implementation of the State's 
program and needs revision.
    (j) State-initiated change is a change made to a State plan which is 
undertaken at a State's option and is not necessitated by Federal 
requirements.



Sec. 1953.3  General policies and procedures.

    (a) Effectiveness of State plan changes under State law. Federal 
OSHA approval of a State plan under section 18(b) of the OSH Act in 
effect removes the barrier of Federal preemption, and permits the State 
to adopt and enforce State standards and other requirements regarding 
occupational safety or health issues regulated by OSHA. A State with an 
approved plan may modify or supplement the requirements contained in its 
plan, and may implement such requirements under State law, without prior 
approval of the plan change by Federal OSHA. Changes to approved State 
plans are subject to subsequent OSHA review. If OSHA finds reason to 
reject a State plan change, and this determination is upheld after an 
adjudicatory proceeding, the plan change would then be excluded from the 
State's Federally-approved plan.
    (b) Required State plan notifications and supplements. Whenever a 
State makes a change to its legislation, regulations, standards, or 
major changes to policies or procedures, which affect the operation of 
the State plan, the State shall provide written notification to OSHA. 
When the change differs from a corresponding Federal program component, 
the State shall submit a formal, written plan supplement. When the State 
adopts a provision which is identical to a corresponding Federal 
provision, written notification, but no formal plan supplement, is 
required. However, the State is expected to maintain the necessary 
underlying State document (e.g., legislation or standard) and to make it 
available for review upon request. All plan change supplements or 
required documentation must be submitted within 60 days of adoption of 
the change. Submission of all notifications and supplements may be in 
electronic format.
    (c) Plan supplement availability. Copies of all principal documents 
comprising the State plan, whether approved or pending approval, shall 
be available for inspection and copying at the Federal and State 
locations specified in the subpart of Part 1952 of this chapter relating 
to each State plan. The underlying documentation for identical plan 
changes shall be maintained by the State and shall similarly be 
available for inspection and copying at the State locations. Annually, 
States shall submit updated copies of the principal documents comprising 
the plan, or appropriate page changes, to the extent that these 
documents have been revised. To the extent possible, plan documents will 
be maintained and submitted by the State in electronic format and also 
made available in such manner.
    (d) Advisory opinions. Upon State request, OSHA may issue an 
advisory opinion on the approvability of a proposed change which differs 
from the Federal program prior to promulgation or adoption by the State 
and submission as a formal supplement.
    (e) Alternative procedures. Upon reasonable notice to interested 
persons, the Assistant Secretary may prescribe additional or alternative 
procedures in order to expedite the review process or

[[Page 126]]

for any other good cause which may be consistent with the applicable 
laws.



Sec. 1953.4  Submission of plan supplements.

    (a) Developmental changes. (1) Sections 1902.2(b) and 1956.2(b) of 
this chapter require that each State with a developmental plan must set 
forth in its plan, as developmental steps, those changes which must be 
made to its initially-approved plan for its program to be at least as 
effective as the Federal program and a timetable for making these 
changes. The State must notify OSHA of a developmental change when it 
completes a developmental step or fails to meet any developmental step.
    (2) If the completion of a developmental step is the adoption of a 
program component which is identical to the Federal program component, 
the State need only submit documentation, such as the cover page of an 
implementing directive or a notice of promulgation, that it has adopted 
the program component, within 60 days of adoption of the change, but 
must make the underlying documentation available for Federal and public 
review upon request.
    (3) If the completion of a developmental step involves the adoption 
of policies or procedures which differ from the Federal program, the 
State must submit one copy of the required plan supplement within 60 
days of adoption of the change.
    (4) When a developmental step is missed, the State must submit a 
supplement which documents the impact on the program of the failure to 
complete the developmental step, an explanation of why the step was not 
completed on time and a revised timetable with a new completion date 
(generally not to exceed 90 days) and any other actions necessary to 
ensure completion. Where the State has an operational status agreement 
with OSHA under Sec. 1954.3 of this Chapter, the State must provide an 
assurance that the missed step will not affect the effectiveness of 
State enforcement in any issues for which the State program has been 
deemed to be operational.
    (5) If the State fails to submit the required documentation or 
supplement, as provided in Sec. 1953.4(a)(2), (3) or (4), when the 
developmental step is scheduled for completion, OSHA shall notify the 
State that documentation or a supplement is required and set a timetable 
for submission of any required documentation or supplement, generally 
not to exceed 60 days.
    (b) Federal Program changes. (1) When a significant change in the 
Federal program would have an adverse impact on the ``at least as 
effective'' status of the State program if a parallel State program 
modification were not made, State adoption of a change in response to 
the Federal program change shall be required. A Federal program change 
that would not result in any diminution of the effectiveness of a State 
plan compared to Federal OSHA generally would not require adoption by 
the State.
    (2) Examples of significant changes to the Federal program that 
would normally require a State response would include a change in the 
Act, promulgation or revision of OSHA standards or regulations, or 
changes in policy or procedure of national importance. A Federal program 
change that only establishes procedures necessary to implement a new or 
established policy, standard or regulation does not require a State 
response, although the State would be expected to establish policies and 
procedures which are ``at least as effective,'' which must be available 
for review on request.
    (3) When there is a change in the Federal program which requires 
State action, OSHA shall advise the States. This notification shall also 
contain a date by which States must adopt a corresponding change or 
submit a statement why a program change is not necessary. This date will 
generally be six months from the date of notification, except where the 
Assistant Secretary determines that the nature or scope of the change 
requires a different time frame, for example, a change requiring 
legislative action where a State has a biennial legislature or a policy 
of major national implications requiring a shorter implementing time 
frame. State notification of intent may be required prior to adoption.
    (4) If the State change is different from the Federal program 
change, the

[[Page 127]]

State shall submit one copy of the required supplement within 60 days of 
State adoption. The supplement shall contain a copy of the relevant 
legislation, regulation, policy or procedure and documentation on how 
the change maintains the ``at least as effective as'' status of the 
plan.
    (5) If the State adopts a change identical to the Federal program 
change, the State is not required to submit a supplement. However, the 
State shall provide documentation that it has adopted the change, such 
as the cover page of an implementing directive or a notice of 
promulgation, within 60 days of State adoption.
    (6) The State may demonstrate why a program change is not necessary 
because the State program is already the same as or at least as 
effective as the Federal program change. Such submissions will require 
review and approval as set forth in Sec. 1953.6.
    (7) Where there is a change in the Federal program which does not 
require State action but is of sufficient national interest to warrant 
indication of State intent, the State may be required to provide such 
notification within a specified time frame.
    (c) Evaluation changes. (1) Special and periodic evaluations of a 
State program by OSHA in cooperation with the State may show that some 
portion of a State plan has an adverse impact on the effectiveness of 
the State program and accordingly requires modification to the State's 
underlying legislation, regulations, policy or procedures as an 
evaluation change. For example, OSHA could find that additional 
legislative or regulatory authority may be necessary to effectively 
pursue the State's right of entry into workplaces, or to assure various 
employer rights.
    (2) OSHA shall advise the State of any evaluation findings that 
require a change to the State plan and the reasons supporting this 
decision. This notification shall also contain a date by which the State 
must accomplish this change and submit either the change supplement or a 
timetable for its accomplishment and interim steps to assure continued 
program effectiveness, documentation of adoption of a program component 
identical to the Federal program component, or, as explained in 
paragraph (c)(5) of this section, a statement demonstrating why a 
program change is not necessary.
    (3) If the State adopts a program component which differs from a 
corresponding Federal program component, the State shall submit one copy 
of a required supplement within 60 days of adoption of the change. The 
supplement shall contain a copy of the relevant legislation, regulation, 
policy or procedure and documentation on how the change maintains the 
``at least as effective as'' status of the plan.
    (4) If the State adopts a program component identical to a Federal 
program component, submission of a supplement is not required. However, 
the State shall provide documentation that it has adopted the change, 
such as the cover page of an implementing directive or a notice of 
promulgation, within 60 days of adoption of the change and shall retain 
all other documentation within the State available for review upon 
request.
    (5) The State may demonstrate why a program change is not necessary 
because the State program is meeting the requirements for an ``at least 
as effective'' program. Such submission will require review and approval 
as set forth in Sec. 1953.6.
    (d) State-initiated changes. (1) A State-initiated change is any 
change to the State plan which is undertaken at a State's option and is 
not necessitated by Federal requirements. State-initiated changes may 
include legislative, regulatory, administrative, policy or procedural 
changes which impact on the effectiveness of the State program.
    (2) A State-initiated change supplement is required whenever the 
State takes an action not otherwise covered by this part that would 
impact on the effectiveness of the State program. The State shall notify 
OSHA as soon as it becomes aware of any change which could affect the 
State's ability to meet the approval criteria in parts 1902 and 1956 of 
this chapter, e.g., changes to the State's legislation, and submit a 
supplement within 60 days. Other State initiated supplements must be 
submitted within 60 days after the change occurred. The State supplement 
shall contain a copy of the relevant legislation, regulation, policy or 
procedure

[[Page 128]]

and documentation on how the change maintains the ``at least as 
effective as'' status of the plan. If the State fails to notify OSHA of 
the change or fails to submit the required supplement within the 
specified time period, OSHA shall notify the State that a supplement is 
required and set a time period for submission of the supplement, 
generally not to exceed 30 days.



Sec. 1953.5  Special provisions for standards changes.

    (a) Permanent standards. (1) Where a Federal program change is a new 
permanent standard, or a more stringent amendment to an existing 
permanent standard, the State shall promulgate a State standard adopting 
such new Federal standard, or more stringent amendment to an existing 
Federal standard, or an at least as effective equivalent thereof, within 
six months of the date of promulgation of the new Federal standard or 
more stringent amendment. The State may demonstrate that a standard 
change is not necessary because the State standard is already the same 
as or at least as effective as the Federal standard change. In order to 
avoid delays in worker protection, the effective date of the State 
standard and any of its delayed provisions must be the date of State 
promulgation or the Federal effective date whichever is later. The 
Assistant Secretary may permit a longer time period if the State makes a 
timely demonstration that good cause exists for extending the time 
limitation. State permanent standards adopted in response to a new or 
revised Federal standard shall be submitted as a State plan supplement 
within 60 days of State promulgation in accordance with Sec. 1953.4(b), 
Federal Program changes.
    (2) Because a State may include standards and standards provisions 
in addition to Federal standards within an issue covered by an approved 
plan, it would generally be unnecessary for a State to revoke a standard 
when the comparable Federal standard is revoked or made less stringent. 
If the State does not adopt the Federal action, it need only provide 
notification of its intent to retain the existing State standard to OSHA 
within 6 months of the Federal promulgation date. If the State adopts a 
change to its standard parallel to the Federal action, it shall submit 
the appropriate documentation as provided in Secs. 1953.4(b)(3) or (4)--
Federal program changes. However, in the case of standards applicable to 
products used or distributed in interstate commerce where section 
18(c)(2) of the Act imposes certain restrictions on State plan 
authority, the modification, revision, or revocation of the Federal 
standard may necessitate the modification, revision, or revocation of 
the comparable State standard unless the State standard is required by 
compelling local conditions and does not unduly burden interstate 
commerce.
    (3) Where a State on its own initiative adopts a permanent State 
standard for which there is no Federal parallel, the State shall submit 
it within 60 days of State promulgation in accordance with 
Sec. 1953.4(d)--State-initiated changes,
    (b) Emergency temporary standards. (1) Immediately upon publication 
of an emergency temporary standard in the Federal Register, OSHA shall 
advise the States of the standard and that a Federal program change 
supplement shall be required. This notification must also provide that 
the State has 30 days after the date of promulgation of the Federal 
standard to adopt a State emergency temporary standard if the State plan 
covers that issue. The State may demonstrate that promulgation of an 
emergency temporary standard is not necessary because the State standard 
is already the same as or at least as effective as the Federal standard 
change. The State standard must remain in effect for the duration of the 
Federal emergency temporary standard which may not exceed six (6) 
months.
    (2) Within 15 days after receipt of the notice of a Federal 
emergency temporary standard, the State shall advise OSHA of the action 
it will take. State standards shall be submitted in accordance with the 
applicable procedures in Sec. 1953.4(b)--Federal Program Changes, except 
that the required documentation or plan supplement must be submitted 
within 5 days of State promulgation.

[[Page 129]]

    (3) If for any reason, a State on its own initiative adopts a State 
emergency temporary standard, it shall be submitted as a plan supplement 
in accordance with Sec. 1953.4(c), but within 10 days of promulgation.



Sec. 1953.6  Review and approval of plan supplements.

    (a) OSHA shall review a supplement to determine whether it is at 
least as effective as the Federal program and meets the criteria in the 
Act and implementing regulations and the assurances in the State plan. 
If the review reveals any defect in the supplement, or if more 
information is needed, OSHA shall offer assistance to the State and 
shall provide the State an opportunity to clarify or correct the change.
    (b) If upon review, OSHA determines that the differences from a 
corresponding Federal component are purely editorial and do not change 
the substance of the policy or requirements on employers, it shall deem 
the change identical. This includes ``plain language'' rewrites of new 
Federal standards or previously approved State standards which do not 
change the meaning or requirements of the standard. OSHA will inform the 
State of this determination. No further review or Federal Register 
publication is required.
    (c) Federal OSHA may seek public comment during its review of plan 
supplements. Generally, OSHA will seek public comment if a State program 
component differs significantly from the comparable Federal program 
component and OSHA needs additional information on its compliance with 
the criteria in section 18(c) of the Act, including whether it is at 
least as effective as the Federal program and in the case of a standard 
applicable to products used or distributed in interstate commerce, 
whether it is required by compelling local conditions or unduly burdens 
interstate commerce under section 18(c)(2) of the Act.
    (d) If the plan change meets the approval criteria, OSHA shall 
approve it and shall thereafter publish a Federal Register notice 
announcing the approval. OSHA reserves the right to reconsider its 
decision should subsequent information be brought to its attention.
    (e) If a State fails to submit a required supplement or if 
examination discloses cause for rejecting a submitted supplement, OSHA 
shall provide the State a reasonable time, generally not to exceed 30 
days, to submit a revised supplement or to show cause why a proceeding 
should not be commenced either for rejection of the supplement or for 
failure to adopt the change in accordance with the procedures in 
Sec. 1902.17 or Part 1955 of this chapter.



PART 1954--PROCEDURES FOR THE EVALUATION AND MONITORING OF APPROVED STATE PLANS--Table of Contents




                           Subpart A--General

Sec.
1954.1  Purpose and scope.
1954.2  Monitoring system.
1954.3  Exercise of Federal discretionary authority.

    Subpart B--State Monitoring Reports and Visits to State Agencies

1954.10  Reports from the States.
1954.11  Visits to State agencies.

    Subpart C--Complaints About State Program Administration (CASPA)

1954.20  Complaints about State program administration.
1954.21  Processing and investigating a complaint.
1954.22  Notice provided by State.

    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of 
Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).

    Source: 39 FR 1838, Jan. 15, 1974, unless otherwise noted.



                           Subpart A--General



Sec. 1954.1  Purpose and scope.

    (a) Section 18(f) of the Williams-Steiger Occupational Safety and 
Health Act of 1970 (hereinafter referred to as the Act) provides that 
``the Secretary shall, on the basis of reports submitted by the State 
agency and his own inspections make a continuing evaluation of the 
manner in which each State having a plan approved *  *  * is carrying 
out such plan.''

[[Page 130]]

    (b) This part 1954 applies to the provisions of section 18(f) of the 
Act relating to the evaluation of approved plans for the development and 
enforcement of State occupational safety and health standards. The 
provisions of this part 1954 set forth the policies and procedures by 
which the Assistant Secretary for Occupational Safety and Health 
(hereinafter referred to as the Assistant Secretary) under a delegation 
of authority from the Secretary of Labor (Secretary's Order 12-71, 36 FR 
8754, May 12, 1971) will continually monitor and evaluate the operation 
and administration of approved State plans.
    (c) Following approval of a State plan under section 18(c) of the 
Act, workplaces in the State are subject to a period of concurrent 
Federal and State authority. The period of concurrent enforcement 
authority must last for at least three years. Before ending Federal 
enforcement authority, the Assistant Secretary is required to make a 
determination as to whether the State plan, in actual operation, is 
meeting the criteria in section 18(c) of the Act including the 
requirements in part 1902 of this chapter and the assurances in the 
approval plan itself. After an affirmative determination has been made, 
the provisions of sections 5(a)(2), 8 (except for the purpose of 
carrying out section 18(f) of the Act), 9, 10, 13, and 17 of the Act 
shall not apply with respect to any occupational safety or health issues 
covered under the plan. The Assistant Secretary may, however, retain 
jurisdiction under the above provisions in any proceeding commenced 
under section 9 or 10 of the Act before the date of the determination 
under section 18(e) of the Act.
    (d) During this period of concurrent Federal and State authority, 
the operation and administration of the plan will be continually 
evaluated under section 18(f) of the Act. This evaluation will continue 
even after an affirmative determination has been made under section 
18(e) of the Act.



Sec. 1954.2  Monitoring system.

    (a) To carry out the responsibilities for continuing evaluation of 
State plans under section 18(f) of the Act, the Assistant Secretary has 
established a State Program Performance Monitoring System. Evaluation 
under this monitoring system encompasses both the period before and 
after a determination has been made under section 18(e) of the Act. The 
monitoring system is a three phased system designed to assure not only 
that developmental steps are completed and that the operational plan is, 
in fact, at least as effective as the Federal program with respect to 
standards and enforcement, but also to provide a method for continuing 
review of the implementation of the plan and any modifications thereto 
to assure compliance with the provisions of the plan during the time the 
State participates in the cooperative Federal-State program.
    (b) Phase I of the system begins with the initial approval of a 
State plan and continues until the determination required by section 
18(e) of the Act is made. During Phase I, the Assistant Secretary will 
secure monitoring data to make the following key decisions:
    (1) What should be the level of Federal enforcement;
    (2) Should plan approval be continued; and
    (3) What level of technical assistance is needed by the State to 
enable it to have an effective program.
    (c) Phase II of the system relates to the determination required by 
section 18(e) of the Act. The Assistant Secretary must decide, after no 
less than three years following approval of the plan, whether or not to 
relinquish Federal authority to the State for issues covered by the 
occupational safety and health program in the State plan. Phase II will 
be a comprehensive evaluation of the total State program, drawing upon 
all information collected during Phase I.
    (d) Phase III of the system begins after an affirmative 
determination has been made under section 18(e) of the Act. The 
continuing evaluation responsibility will be exercised under Phase III, 
and will provide data concerning the total operations of a State program 
to enable the Assistant Secretary to determine whether or not the plan 
approval should be continued or withdrawn.
    (e) The State program performance monitoring system provides for, 
but is

[[Page 131]]

not limited to, the following major data inputs:
    (1) Quarterly and annual reports of State program activity;
    (2) Visits to State agencies;
    (3) On-the-job evaluation of State compliance officers; and
    (4) Investigation of complaints about State program administration.



Sec. 1954.3  Exercise of Federal discretionary authority.

    (a)(1) When a State plan is approved under section 18(c) of the Act, 
Federal authority for enforcement of standards continues in accordance 
with section 18(e) of the Act. That section prescribes a period of 
concurrent Federal-State enforcement authority which must last for at 
least three years, after which time the Assistant Secretary shall make a 
determination whether, based on actual operations, the State plan meets 
all the criteria set forth in section 18(c) of the Act and the 
implementing regulations in 29 CFR part 1902 and subpart A of 29 CFR 
part 1952. During this period of concurrent authority, the Assistant 
Secretary may, but shall not be required to, exercise his authority 
under sections 5(a)(2), 8, 9, 10, 13 and 17 of the Act with respect to 
standards promulgated under section 6 of the Act where the State has 
comparable standards. Accordingly, section 18(e) authorizes, but does 
not require, the Assistant Secretary to exercise his discretionary 
enforcement authority over all the issues covered by a State plan for 
the entire 18(e) period.
    (2) Existing regulations at 29 CFR part 1902 set forth factors to be 
considered in determining how Federal enforcement authority should be 
exercised. These factors include:
    (i) Whether the plan is developmental or complete;
    (ii) Results of evaluations conducted by the Assistant Secretary;
    (iii) The State's schedule for meeting Federal standards; and
    (iv) Any other relevant matters.

(29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii).
    (3) Other relevant matters requiring consideration in the decision 
as to the level of Federal enforcement include:
    (i) Coordinated utilization of Federal and State resources to 
provide effective worker protection throughout the Nation;
    (ii) Necessity for clarifying the rights and responsibilities of 
employers and employees with respect to Federal and State authority;
    (iii) Increasing responsibility for administration and enforcement 
by States under an approved plan for evaluation of their effectiveness; 
and
    (iv) The need to react promptly to any failure of the States in 
providing effective enforcement of standards.
    (b) Guidelines for determining the appropriate level of Federal 
enforcement. In light of the requirements of 29 CFR part 1902 as well as 
the factors mentioned in paragraph (a)(3) of this section, the following 
guidelines for the extent of the exercise of discretionary Federal 
authority have been determined to be reasonable and appropriate. When a 
State plan meets all of these guidelines it will be considered 
operational, and the State will conduct all enforcement activity 
including inspections in response to employee complaints, in all issues 
where the State is operational. Federal enforcement activity will be 
reduced accordingly and the emphasis will be placed on monitoring State 
activity in accordance with the provisions of this part.
    (1) Enabling legislation. A State with an approved plan must have 
enacted enabling legislation substantially in conformance with the 
requirements of section 18(c) and 29 CFR part 1902 in order to be 
considered operational. This legislation must have been reviewed and 
approved under 29 CFR part 1902. States without such legislation, or 
where State legislation as enacted requires substantial amendments to 
meet the requirements of 29 CFR part 1902, will not be considered 
operational.
    (2) Approved State standards. The State must have standards 
promulgated under State law which are identical to Federal standards; or 
have been found to be at least as effective as the comparable Federal 
standards; or have been reviewed by OSHA and found to provide overall 
protection equal to comparable Federal standards. Review of the 
effectiveness of State standards and their enforcement will be a 
continuing function of the evaluation process. Where State standards in 
an

[[Page 132]]

issue have not been promulgated by the State or have been promulgated 
and found not to provide overall protection equal to comparable Federal 
standards, the State will not be considered operational as to those 
issues.
    (3) Personnel. The State must have a sufficient number of qualified 
personnel who are enforcing the standards in accordance with the State's 
enabling legislation. Where a State lacks the qualified personnel to 
enforce in a particular issue; e.g., Occupational Health, the State will 
not be considered operational as to that issue even though it has 
enabling legislation and standards.
    (4) Review of enforcement actions. Provisions for review of State 
citations and penalties, including the appointment of the reviewing 
authority and the promulgation of implementing regulations, must be in 
effect.
    (c)(1) Evaluation reports. One of the factors to consider in 
determining the level of Federal enforcement is the result of 
evaluations conducted under the monitoring system described in this 
part. While completion of an initial comprehensive evaluation of State 
operations is not generally a prerequisite for a determination that a 
State is operational under paragraph (b) of this section, such 
evaluations will be used in determining the Federal enforcement 
responsibility in certain circumstances.
    (2) Where evaluations have been completed prior to the time a 
determination as to the operational status of a State plan is made, the 
results of those evaluations will be included in the determination.
    (3) Where the results of one or more evaluations conducted during 
the operation of a State plan and prior to an 18(e) determination reveal 
that actual operations as to one or more aspects of the plan fail in a 
substantial manner to be at least as effective as the Federal program, 
and the State does not adequately resolve the deficiencies in accordance 
with subpart C of part 1953, the appropriate level of Federal 
enforcement activity shall be reinstated. An example of such deficiency 
would be a finding that State standards and their enforcement in an 
issue are not at least as effective as comparable Federal standards and 
their enforcement. Federal enforcement activity may also be reinstated 
where the Assistant Secretary determines that such action is necessary 
to assure occupational safety and health protection to employees.
    (d)(1) Recognition of State procedures. In order to resolve 
potential conflicting responsibilities of employers and employees, 
Federal authority will be exercised in a manner designed to recognize 
the implementation of State procedures in accordance with approved plans 
in areas such as variances, informing employees of their rights and 
obligations, and recordkeeping and reporting requirements.
    (i) Subject to pertinent findings of effectiveness under this part, 
Federal enforcement proceedings will not be initiated where an employer 
is in compliance with a State standard which has been found to be at 
least as effective as the comparable Federal standard, or with any 
temporary or permanent variance granted to such employer with regard to 
the employment or place of employment from such State standard, or any 
order or interim order in connection therewith, or any modification or 
extension thereof: Provided such variance action was taken under the 
terms and procedures required under Sec. 1902.4(b)(2)(iv) of this 
chapter, and the employer has certified that he has not filed for such 
variance on the same set of facts with the Assistant Secretary.
    (ii) Subject to pertinent findings of effectiveness under this part, 
and approval under Part 1953 of this chapter, Federal enforcement 
proceedings will not be initiated where an employer has posted the 
approved State poster in accordance with the applicable provisions of an 
approved State plan and Sec. 1952.10.
    (iii) Subject to pertinent findings of effectiveness under this 
part, and approval under part 1953 of this chapter, Federal enforcement 
proceedings will not be initiated where an employer is in compliance 
with the recordkeeping and reporting requirements of an approved State 
plan as provided in Sec. 1952.4.
    (2) [Reserved]
    (e) Discrimination complaints. State plan provisions on employee 
discrimination do not divest the Secretary of Labor of any authority 
under section

[[Page 133]]

11(c) of the Act. The Federal authority to investigate discrimination 
complaints exists even after an affirmative 18(e) determination. (See 
South Carolina decision 37 FR 25932, December 6, 1972). Employee 
complaints alleging discrimination under section 11(c) of the Act will 
be subject to Federal jurisdiction.
    (f)(1) Procedural agreements. A determination as to the operational 
status of a State plan shall be accompanied by an agreement with the 
State setting forth the Federal-State responsibilities as follows:
    (i) Scope of the State's operational status including the issues 
excluded from the plan, the issues where State enforcement will not be 
operational at the time of the agreement and the dates for commencement 
of operations;
    (ii) Procedures for referral, investigation and enforcement of 
employee requests for inspections;
    (iii) Procedures for reporting fatalities and catastrophes by the 
agency which has received the report to the responsible enforcing 
authority both where the State has and has not adopted the requirement 
that employers report as provided in 29 CFR 1904.8;
    (iv) Specifications as to when and by what means the operational 
guidelines of this section were met; and
    (v) Provision for resumption of Federal enforcement activity for 
failure to substantially comply with this agreement, or as a result of 
evaluation or other relevant factors.
    (2) Upon approval of these agreements, the Assistant Secretary shall 
cause to be published in the Federal Register, notice of the operational 
status of each approved State plan.
    (3) Where subsequent changes in the level of Federal enforcement are 
made, similar Federal Register notices shall be published.

[39 FR 22126, June 20, 1974, as amended at 39 FR 29182, Aug. 14, 1974; 
39 FR 39036, Nov. 5, 1974; 40 FR 25450, June 16, 1975; 67 FR 60129, 
Sept. 25, 2002]



    Subpart B--State Monitoring Reports and Visits to State Agencies



Sec. 1954.10  Reports from the States.

    (a) In addition to any other reports required by the Assistant 
Secretary under sections 18(c)(8) and 18(f) of the Act and 
Sec. 1902.3(1) of this chapter, the State shall submit quarterly and 
annual reports as part of the evaluation and monitoring of State 
programs. \1\
---------------------------------------------------------------------------

    \1\ Such quarterly and annual reports forms may be obtained from the 
Office of the Assistant Regional Director in whose Region the State is 
located.
---------------------------------------------------------------------------

    (b) Each State with an approved State plan shall submit to the 
appropriate Regional Office an annual occupational safety and health 
report in the form and detail provided for in the report and the 
instructions contained therein.
    (c) Each State with an approved State plan shall submit to the 
appropriate Regional Office a quarterly occupational safety and health 
compliance and standards activity report in the form and detail provided 
for in the report and the instructions contained therein.



Sec. 1954.11  Visits to State agencies.

    As a part of the continuing monitoring and evaluation process, the 
Assistant Secretary or his representative shall conduct visits to the 
designated agency or agencies of State with approved plans at least 
every 6 months. An opportunity may also be provided for discussion and 
comments on the effectiveness of the State plan from other interested 
persons. These visits will be scheduled as needed. Periodic audits will 
be conducted to assess the progress of the overall State program in 
meeting the goal of becoming at least as effective as the Federal 
program. These audits will include case file review and follow-up 
inspections of workplaces.

[[Page 134]]



    Subpart C--Complaints About State Program Administration (CASPA)



Sec. 1954.20  Complaints about State program administration.

    (a) Any interested person or representative of such person or groups 
of persons may submit a complaint concerning the operation or 
administration of any aspect of a State plan. The complaint may be 
submitted orally or in writing to the Assistant Regional Director for 
Occupational Safety and Health (hereinafter referred to as the Assistant 
Regional Director) or his representative in the Region where the State 
is located.
    (b) Any such complaint should describe the grounds for the complaint 
and specify the aspect or aspects of the administration or operation of 
the plan which is believed to be inadequate. A pattern of delays in 
processing cases, of inadequate workplace inspections, or the granting 
of variances without regard to the specifications in the State plans, 
are examples.
    (c)(1) If upon receipt of the complaint, the Assistant Regional 
Director determines that there are reasonable grounds to believe that an 
investigation should be made, he shall cause such investigation, 
including any workplace inspection, to be made as soon as practicable.
    (2) In determining whether an investigation shall be conducted and 
in determining the timing of such investigation, the Assistant Regional 
Director shall consider such factors as:
    (i) The extent to which the complaint affects any substantial number 
of persons;
    (ii) The number of complaints received on the same or similar issues 
and whether the complaints relate to safety and health conditions at a 
particular establishment;
    (iii) Whether the complainant has exhausted applicable State 
remedies; and
    (iv) The extent to which the subject matter of the complaint is 
pertinent to the effectuation of Federal policy.



Sec. 1954.21  Processing and investigating a complaint.

    (a) Upon receipt of a complaint about State program administration, 
the Assistant Regional Director will acknowledge its receipt and may 
forward a copy of the complaint to the designee under the State plan and 
to such other person as may be necessary to complete the investigation. 
The complainant's name and the names of other complainants mentioned 
therein will be deleted from the complaint and the names shall not 
appear in any record published, released or made available.
    (b) In conducting the investigation, the Assistant Regional Director 
may obtain such supporting information as is appropriate to the 
complaint. Sources for this additional information may include ``spot-
check'' follow-up inspections of workplaces, review of the relevant 
State files, and discussion with members of the public, employers, 
employees and the State.
    (c) On the basis of the information obtained through the 
investigation, the Assistant Regional Director shall advise the 
complainant of the investigation findings and in general terms, any 
corrective action that may result. A copy of such notification shall be 
sent to the State and it shall be considered part of the evaluation of 
the State plan.
    (d) If the Assistant Regional Director determines that there are no 
reasonable grounds for an investigation to be made with respect to a 
complaint under this Subpart, he shall notify the complaining party in 
writing of such determination. Upon request of the complainant, or the 
State, the Assistant Regional Director, at his discretion, may hold an 
informal conference. After considering all written and oral views 
presented the Assistant Regional Director shall affirm, modify, or 
reverse his original determination and furnish the complainant with 
written notification of his decision and the reasons therefore. Where 
appropriate the State may also receive such notification.



Sec. 1954.22  Notice provided by State.

    (a)(1) In order to assure that employees, employers, and members of 
the public are informed of the procedures for complaints about State 
program administration, each State with an approved State plan shall 
adopt not later

[[Page 135]]

than July 1, 1974, a procedure not inconsistent with these regulations 
or the Act, for notifying employees, employers and the public of their 
right to complain to the Occupational Safety and Health Administration 
about State program administration.
    (2) Such notification may be by posting of notices in the workplace 
as part of the requirement in Sec. 1902.4(c)(2)(iv) of this chapter and 
other appropriate sources of information calculated to reach the public.
    (b)  [Reserved]



PART 1955--PROCEDURES FOR WITHDRAWAL OF APPROVAL OF STATE PLANS--Table of Contents




                           Subpart A--General

Sec.
1955.1  Purpose and scope.
1955.2  Definitions.
1955.3  General policy.
1955.4  Effect of withdrawal of approval.
1955.5  Petitions for withdrawal of approval.

                 Subpart B--Notice of Formal Proceeding

1955.10  Publication of notice of formal proceeding.
1955.11  Contents of notice of formal proceeding.
1955.12  Administrative law judge; powers and duties.
1955.13  Disqualification.
1955.14  Ex parte communications.
1955.15  Manner of service and filing.
1955.16  Time.
1955.17  Determination of parties.
1955.18  Provision for written comments.

            Subpart C--Consent Findings and Summary Decisions

1955.20  Consent findings and orders.
1955.21  Motion for a summary decision.
1955.22  Summary decision.

             Subpart D--Preliminary Conference and Discovery

1955.30  Submission of documentary evidence.
1955.31  Preliminary conference.
1955.32  Discovery.
1955.33  Sanctions for failure to comply with orders.
1955.34  Fees of witnesses.

                     Subpart E--Hearing and Decision

1955.40  Hearings.
1955.41  Decision of the administrative law judge.
1955.42  Exceptions.
1955.43  Transmission of the record.
1955.44  Final decision.
1955.45  Effect of appeal of administrative law judge's decision.
1955.46  Finality for purposes of judicial review.
1955.47  Judicial review.

    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of 
Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).

    Source: 40 FR 23467, May 30, 1975, unless otherwise noted.



                           Subpart A--General



Sec. 1955.1  Purpose and scope.

    (a) This part contains rules of practice and procedure for formal 
administrative proceedings on the withdrawal of initial or final 
approval of State plans in accordance with section 18(f) of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 667).
    (b) These rules shall be construed to secure a prompt and just 
conclusion of the proceedings subject thereto.



Sec. 1955.2  Definitions.

    (a) As used in this part unless the context clearly requires 
otherwise:
    (1) Act means the Occupational Safety and Health Act of 1970;
    (2) Assistant Secretary means Assistant Secretary of Labor for 
Occupational Safety and Health;
    (3) Commencement of a case under section 18(f) of the Act means, for 
the purpose of determining State jurisdiction following a final decision 
withdrawing approval of a plan, the issuance of a citation.
    (4) Developmental step includes, but is not limited to, those items 
listed in the published developmental schedule, or any revisions 
thereto, for each plan contained in 29 CFR part 1952. A developmental 
step also includes those items in the plan as approved under section 
18(c) of the Act, as well as those items in the approval decision which 
are subject to evaluations (see e.g., approval of Michigan plan), which 
were deemed necessary to make the State program at least as effective as 
the Federal program within the 3 year developmental period. (See part 
1953 of this chapter.

[[Page 136]]

    (5) Final approval means approval of the State plan, or any 
modification thereof under section 18(e) of the Act and subpart D of 29 
CFR part 1902.
    (6) Initial approval means approval of a State plan, or any 
modification thereof under section 18(c) of the Act and subpart C of 29 
CFR part 1902;
    (7) Party includes the State agency or agencies designated to 
administer and enforce the State plan that is the subject of withdrawal 
proceedings, the Department of Labor, Occupational Safety and Health 
Administration (hereinafter called OSHA), represented by the Office of 
the Solicitor and any person participating in the proceedings pursuant 
to Sec. 1955.17;
    (8) Person means an individual, partnership, association, 
corporation, business trust, legal representative, an organized group of 
individuals, or an agency, authority, or instrumentality of the United 
States or of a State;
    (9) Secretary means Secretary of Labor;
    (10) Separable portion of a plan for purposes of withdrawal of 
approval generally means an issue as defined in 29 CFR 1902.2(c), i.e. 
``an industrial, occupational or hazard grouping which is at least as 
comprehensive as a corresponding grouping contained in (i) one or more 
sections in subpart B or R of part 1910 of this chapter, or (ii) one or 
more of the remaining subparts of part 1910'': Provided, That wherever 
the Assistant Secretary has determined that other industrial, 
occupational or hazard groupings are administratively practicable, such 
groupings shall be considered separable portions of a plan.
    (b)  [Reserved]

[40 FR 23467, May 30, 1975, as amended at 67 FR 60129, Sept. 25, 2002]



Sec. 1955.3  General policy.

    (a) The following circumstances shall be cause for initiation of 
proceedings under this part for withdrawal of approval of a State plan, 
or any portion thereof.
    (1) Whenever the Assistant Secretary determines that under 
Sec. 1902.2(b) of this chapter a State has not substantially completed 
the developmental steps of its plan at the end of three years from the 
date of commencement of operations, a withdrawal proceeding shall be 
instituted. Examples of a lack of substantial completion of 
developmental steps include but are not limited to the following:
    (i) A failure to develop the necessary regulations and 
administrative guidelines for an ``at least as effective'' enforcement 
program;
    (ii) Failure to promulgate all or a majority of the occupational 
safety and health standards in an issue covered by the plan; or
    (iii) Failure to enact the required enabling legislation.
    (2) Whenever the Assistant Secretary determines that there is no 
longer a reasonable expectation that a State plan will meet the criteria 
of Sec. 1902.3 of this chapter involving the completion of developmental 
steps within the three year period immediately following commencement of 
operations, a withdrawal proceeding shall be instituted. Examples of a 
lack of reasonable expectation include but are not limited to the 
following:
    (i) A failure to enact enabling legislation in the first two years 
following commencement of operations where the remaining developmental 
steps are dependent on the passage of enabling legislation and cannot be 
completed within one year; or
    (ii) Repeal or substantial amendment of the enabling legislation by 
the State legislature so that the State program fails to meet the 
criteria in Sec. 1902.3 of this chapter; or
    (iii) Inability to complete the developmental steps within the 
indicated three year period.
    (3) Whenever the Assistant Secretary determines that in the 
operation or administration of a State plan, or as a result of any 
modifications to a plan, there is a failure to comply substantially with 
any provision of the plan, including assurances contained in the plan, a 
withdrawal proceeding shall be instituted in a State which has received 
final approval under section 18(e) of the Act, and may be instituted in 
a State which has received initial approval under section 18(c) of the 
Act. Examples of a lack of substantial compliance include but are not 
limited to the following:

[[Page 137]]

    (i) Where a State over a period of time consistently fails to 
provide effective enforcement of standards;
    (ii) Where the rights of employees are circumscribed in such a 
manner as to diminish the effectiveness of the program;
    (iii) Where a State, without good cause, fails to continue to 
maintain its program in accordance with the appropriate changes in the 
Federal program;
    (iv) Where a State fails to comply with the required assurances on a 
sufficient number of qualified personnel and/or adequate resources for 
administration and enforcement of the program; or
    (v) Where, on the basis of actual operations, the Assistant 
Secretary determines that the criteria in section 18(c) of the Act are 
not being met, that the period of concurrent authority under section 
18(e) of the Act should not be extended, and that final approval under 
section 18(e) of the Act should not be given.
    (b) A State may, at any time both before or after a determination 
under section 18(e) of the Act, voluntarily withdraw its plan, or any 
portion thereof, by notifying the Assistant Secretary in writing setting 
forth the reasons for such withdrawal. Such notification shall be 
accompanied by a letter terminating the application for related grants 
authorized under section 23(g) of the Act in accordance with 29 CFR 
1951.25(d). Upon receipt of the State notice the Assistant Secretary 
shall cause to be published in the Federal Register a notice of 
withdrawal of approval of the State plan or portion thereof (see Montana 
notice 39 FR 2361, June 27, 1974).
    (c) Approval of a portion of a plan may be withdrawn under any of 
the paragraphs in this section when it is determined that that portion 
is reasonably separable from the remainder of the plan in a manner 
consistent with the provisions in Sec. 1902.2(c) of this chapter 
defining the scope of a State plan. As an example, such a partial 
withdrawal of approval would be considered appropriate where a State 
fails to adopt, without good cause shown, Federal standards within a 
separable issue, such as occupational health.

[40 FR 23467, May 30, 1975, as amended at 67 FR 60129, Sept. 25, 2002]



Sec. 1955.4  Effect of withdrawal of approval.

    (a) After receipt of notice of withdrawal of approval of a State 
plan, such plan, or any part thereof, shall cease to be in effect and 
the provisions of the Federal Act shall apply within that State. But the 
State, in accordance with section 18(f) of the Act, may retain 
jurisdiction in any case commenced before receipt of the notice of 
withdrawal of approval of the plan, in order to enforce standards under 
the plan, whenever the issues involved in the case or cases pending do 
not relate to the reasons for withdrawal of the plan.
    (b) Such notice of withdrawal of approval shall operate 
constructively as notice of termination of all related grants authorized 
under section 23(g) of the Act in accordance with 29 CFR 1951.25(c).



Sec. 1955.5  Petitions for withdrawal of approval.

    (a) At any time following the initial approval of a State plan under 
section 18(c) of the Act, any interested person may petition the 
Assistant Secretary in writing to initiate proceedings for withdrawal of 
approval of the plan under section 18(f) of the Act and this part. The 
petition shall contain a statement of the grounds for initiating a 
withdrawal proceeding, including facts to support the petition.
    (b)(1) The Assistant Secretary may request the petitioner for 
additional facts and may take such other actions as are considered 
appropriate such as:
    (i) Publishing the petition for public comment;
    (ii) Holding informal discussion on the issues raised by the 
petition with the State and other persons affected; or
    (iii) Holding an informal hearing in accordance with Sec. 1902.13 of 
this chapter.
    (2) Any such petition shall be considered and acted upon within a 
reasonable time. Prompt notice shall be given of the denial in whole or 
in part of any

[[Page 138]]

petition and the notice shall be accompanied by a brief statement of the 
grounds for the denial. A denial of a petition does not preclude future 
action on those issues or any other issues raised regarding a State 
plan.



                 Subpart B--Notice of Formal Proceeding



Sec. 1955.10  Publication of notice of formal proceeding.

    (a) The Assistant Secretary, prior to any notice of a formal 
proceeding under this subpart, shall by letter, provide the State with 
an opportunity to show cause within 45 days why a proceeding should not 
be instituted for withdrawal of approval of a plan or any portion 
thereof. When a State fails to show cause why a formal proceeding for 
withdrawal of approval should not be instituted, the State shall be 
deemed to have waived its right to a formal proceeding under paragraph 
(b) of this section and the Assistant Secretary shall cause to be 
published in the Federal Register a notice of withdrawal of approval of 
the State plan.
    (b)(1) Whenever the Assistant Secretary, on the basis of a petition 
under Sec. 1955.5 or on his own initiative, determines that approval of 
a State plan or any portion thereof should be withdrawn, and the State 
has not waived its right under Sec. 1955.3(b) or paragraph (a) of this 
section to a formal proceeding, he shall publish a notice of proposed 
withdrawal in the Federal Register as set out in Sec. 1955.11 and cause 
such notice, in the form of a complaint, to be served on the State in 
accordance with Sec. 1955.15.
    (2) Not later than 5 days following the publication of the notice in 
the Federal Register, the State agency shall publish, or cause to be 
published, within the State reasonable notice containing a summary of 
the information in the Federal notice, as well as the location or 
locations where a copy of the full notice is available for inspection 
and public copying.
    (3) Two copies of such notice shall be served on the Assistant 
Secretary in accordance with Sec. 1955.15.
    (c) Not less than 30 days following publication of the notice in the 
Federal Register, the State shall submit a statement of those items in 
the notice which are being contested and a brief statement of the facts 
relied upon, including whether the use of witnesses is intended. This 
statement shall be served on the Assistant Secretary in accordance with 
Sec. 1955.15. When a State fails to respond to the notice of proposed 
withdrawal under paragraph (b)(1) of this section, the State shall be 
deemed to have waived its right to a formal proceeding and the Assistant 
Secretary shall cause to be published in the Federal Register a notice 
of withdrawal of approval.



Sec. 1955.11  Contents of notice of formal proceeding.

    (a) A notice of a formal proceeding published under Sec. 1955.10 
shall include:
    (1) A statement on the nature of the proceeding and addresses for 
filing all papers;
    (2) The legal authority under which the proceeding is to be held;
    (3) A description of the issues and the grounds for the Assistant 
Secretary's proposed withdrawal of approval;
    (4) A specified period, generally not less than 30 days after 
publication of the notice in the Federal Register, for the State to 
submit a response to the statement of issues in the notice;
    (5) A provision for designation of an administrative law judge under 
5 U.S.C. 3105 to preside over the proceeding.
    (b) A copy of the notice of the proceeding stating the basis for the 
Assistant Secretary's determination that approval of the plan, or any 
portion thereof, should be withdrawn shall be referred to the 
administrative law judge.



Sec. 1955.12  Administrative law judge; powers and duties.

    (a) The administrative law judge appointed under 5 U.S.C. 3105 and 
designated by the Chief Administrative Law Judge to preside over a 
proceeding shall have all powers necessary and appropriate to conduct a 
fair, full, and impartial proceeding, including the following:
    (1) To administer oaths and affirmations;

[[Page 139]]

    (2) To rule upon offers of proof and receive relevant evidence;
    (3) To provide for discovery, including the issuance of subpoenas 
authorized by section 8(b) of the Act and 5 U.S.C. 555(d) and 556(c)(2), 
and to determine the scope and time limits of the discovery;
    (4) To regulate the course of the proceeding and the conduct of the 
parties and their counsel;
    (5) To consider and rule upon procedural requests, e.g. motions for 
extension of time;
    (6) To hold preliminary conferences for the settlement or 
simplification of issues;
    (7) To take official notice of material facts not appearing in the 
evidence in the record in accordance with Sec. 1955.40(c);
    (8) To render an initial decision;
    (9) To examine and cross-examine witnesses;
    (10) To take any other appropriate action authorized by the Act, the 
implementing regulations, or the Administrative Procedure Act, 5 U.S.C. 
554-557 (hereinafter called the APA).
    (b) On any procedural question not otherwise regulated by this part, 
the Act, or the APA, the administrative law judge shall be guided to the 
extent practicable by the pertinent provisions of the Federal Rules of 
Civil Procedure.



Sec. 1955.13  Disqualification.

    (a) If an administrative law judge deems himself disqualified to 
preside over a particular proceeding, he shall withdraw by notice on the 
record directed to the Chief Administrative Law Judge. Any party who 
deems an administrative law judge, for any reason, to be disqualified to 
preside, or to continue to preside, over a particular proceeding may 
file a motion to disqualify and remove the administrative law judge, 
provided the motion is filed prior to the time the administrative law 
judge files his decision. Such motion must be supported by affidavits 
setting forth the alleged ground for disqualification. The Chief 
Administrative Law Judge shall rule upon the motion.
    (b) Contumacious conduct at any proceeding before the administrative 
law judge shall be ground for summary exclusion from the proceeding. If 
a witness or party refuses to answer a question after being so directed, 
or refuses to obey an order to provide or permit discovery, the 
administrative law judge may make such orders with regard to the refusal 
as are just and proper, including the striking of all testimony 
previously given by such witness on related matters.



Sec. 1955.14  Ex parte communications.

    (a) Except to the extent required for the disposition of ex parte 
matters, the administrative law judge shall not consult any interested 
person or party or their representative on any fact in issue or on the 
merits of any matter before him except upon notice and opportunity for 
all parties to participate.
    (b)(1) Written or oral communications from interested persons 
outside the Department of Labor involving any substantive or procedural 
issues in a proceeding directed to the administrative law judge, the 
Secretary of Labor, the Assistant Secretary, the Associate Assistant 
Secretary for Regional Programs, the Solicitor of Labor, or the 
Associate Solicitor for Occupational Safety and Health, or their staffs 
shall be deemed ex parte communications and are not to be considered 
part of any record or the basis for any official decision, unless the 
communication is made by motion to the administrative law judge and 
served upon all the parties.
    (2) To facilitate implementation of this requirement, the above-
mentioned offices shall keep a log of such communications which shall be 
made available to the public and which may, by motion, be entered into 
the record.
    (c) No employee or agent of the Department of Labor engaged in the 
investigation or presentation of the withdrawal proceeding governed by 
this part shall participate or advise in the initial or final decision, 
except as a witness or counsel in the proceeding.



Sec. 1955.15  Manner of service and filing.

    (a) Service of any document upon any party may be made by personal 
delivery of, or by mailing a copy of the document by certified mail, to 
the last known address of the party or his representative. The person 
serving the

[[Page 140]]

document shall certify to the manner and date of service.
    (b) In addition to serving a copy of any documents upon the parties, 
the original and two copies of each document shall be filed with the 
administrative law judge. With respect to exhibits and transcripts, only 
originals or certified copies need be filed.



Sec. 1955.16  Time.

    Computation of any period of time under these rules shall begin with 
the first business day following that on which the act, event or 
development initiating such period of time shall have occurred. When the 
last day of the period so computed is a Saturday, Sunday, or national 
holiday, or other day on which the Department of Labor is closed, the 
period shall run until the end of the next following business day. When 
such period of time is 7 days or less, each of the Saturdays, Sundays, 
and such holidays shall be excluded from the computation.



Sec. 1955.17  Determination of parties.

    (a) The designated State agency or agencies and the Department of 
Labor, OSHA, shall be the initial parties to the proceedings. Other 
interested persons may, at the discretion of the administrative law 
judge, be granted the right to participate as parties if he determines 
that the final decision could substantially affect them or the class 
they represent or that they may contribute materially to the disposition 
of the proceedings.
    (b)(1) Any person wishing to participate in any proceeding as a 
party under paragraph (a) of this section shall submit a petition to the 
administrative law judge within 30 days after the notice of such 
proceeding has been published in the Federal Register. The petition 
shall also be served upon the other parties. Such petition shall 
concisely state:
    (i) Petitioner's interest in the proceeding;
    (ii) How his participation as a party will contribute materially to 
the disposition of the proceeding;
    (iii) Who will appear for petitioner;
    (iv) The issue or issues as set out in the notice published under 
Sec. 1955.10 of this part on which petitioner wishes to participate; and
    (v) Whether petitioner intends to present witnesses.
    (2) The administrative law judge shall, within 5 days of receipt of 
the petition, ascertain what objections, if any, there are to the 
petition. He shall then determine whether the petitioner is qualified in 
his judgment to be a party in the proceedings and shall permit or deny 
participation accordingly. The administrative law judge shall give each 
petitioner written notice of the decision on his petition promptly. If 
the petition is denied, the notice shall briefly state the grounds for 
denial. Persons whose petition for party participation is denied may 
appeal the decision to the Secretary within 5 days of receipt of the 
notice of denial. The Secretary will make the final decision to grant or 
deny the petition no later than 20 days following receipt of the appeal.
    (3) Where the petitions to participate as parties are made by 
individuals or groups with common interests, the administrative law 
judge may require all such petitioners to designate a single 
representative, or he may recognize one or more of such petitioners to 
represent all such petitioners.



Sec. 1955.18  Provision for written comments.

    Any person who is not a party may submit a written statement of 
position with 4 copies to either the Assistant Secretary or the State at 
any time during the proceeding which statement shall be made available 
to all parties and may be introduced into evidence by a party. Mere 
statements of approval or opposition to the plan without any documentary 
support shall not be considered as falling within this provision.



            Subpart C--Consent Findings and Summary Decisions



Sec. 1955.20  Consent findings and orders.

    (a)(1) At any time during the proceeding a reasonable opportunity 
may be afforded to permit negotiation by the parties of an agreement 
containing consent findings and a rule or order disposing of the whole 
or any part of

[[Page 141]]

the proceeding. The allowance of such opportunity and the duration 
thereof shall be in the discretion of the administrative law judge, 
after consideration of the requirements of section 18 of the Act, the 
nature of the proceeding, the requirements of the public interest, the 
representations of the parties, and the probability of an agreement 
which will result in a just disposition of the issues.
    (2) Any agreement containing consent findings and a rule or order 
disposing of a proceeding shall also provide:
    (i) That the rule or order shall have the same force and effect as 
if made after a full hearing;
    (ii) A waiver of any further procedural steps before the 
administrative law judge and the Secretary; and
    (iii) A waiver of any right to challenge or contest the validity of 
the findings and of the rule or order made in accordance with the 
agreement.
    (b)(1) On or before the expiration of the time granted for 
negotiations, the parties or their counsel may:
    (i) Submit the proposed agreement to the administrative law judge 
for his consideration; or
    (ii) Inform the administrative law judge that agreement cannot be 
reached.
    (2) In the event an agreement containing consent findings and a rule 
or order is submitted within the time allowed therefor, the 
administrative law judge may accept such agreement by issuing his 
decision based upon the agreed findings. Such decision shall be 
published in the Federal Register.



Sec. 1955.21  Motion for a summary decision.

    (a)(1) Any party may move, with or without supporting affidavits, 
for a summary decision on all or any part of the proceeding. Any other 
party may, within 10 days after service of the motion, serve opposing 
affidavits or file a cross motion for summary decision. The 
administrative law judge may, in his discretion, set the matter for 
argument and call for submission of briefs. The filing of any documents 
under this section shall be with the administrative law judge and copies 
of any such document shall be served on all the parties.
    (2) The administrative law judge may grant such motion if the 
pleadings, affidavits, material obtained by discovery or otherwise 
obtained, or matters officially noticed, show that there is no genuine 
issue as to any material fact and that a party is entitled to summary 
decision. Affidavits shall set forth such facts as would be admissible 
in evidence in the hearing and shall show affirmatively that the affiant 
is competent to testify to the matters stated therein. When a motion for 
summary decision is made and supported as provided in paragraph (a)(1) 
of this section, the party opposing the motion may not rest upon the 
mere allegations or denials of his pleading; his response must set forth 
specific facts showing that there is a genuine issue of fact for the 
hearing.
    (3) Should it appear from the affidavits of a party opposing the 
motion that he cannot, for reasons stated, present by affidavit facts 
essential to justify his opposition, the administrative law judge may 
refuse the application for summary decision or may order a continuance 
to permit affidavits to be obtained, or depositions to be taken, or 
discovery to be had, or may make such other order as is just.
    (b)(1) The denial of all or any part of a motion or cross motion for 
summary decision by the administrative law judge shall not be subject to 
interlocutory appeal to the Secretary unless the administrative law 
judge certifies in writing:
    (i) That the ruling involves an important question of law or policy 
as to which there is substantial ground for difference of opinion; and
    (ii) That an immediate appeal from the ruling may materially advance 
the ultimate termination of the proceeding.
    (2) The allowance of such an interlocutory appeal shall not stay the 
proceeding before the administrative law judge unless the Secretary so 
orders.



Sec. 1955.22  Summary decision.

    (a)(1) Where no genuine issue of material fact is found to have been 
raised, the administrative law judge shall issue an initial decision to 
become

[[Page 142]]

final 30 days after service thereof upon each party unless, within those 
30 days, any party has filed written exceptions to the decision with the 
Secretary. Requests for extension of time to file exceptions may be 
granted if the requests are received by the Secretary no later than 25 
days after service of the decision.
    (2) If any timely exceptions are filed, the Secretary may set a time 
for filing any response to the exceptions with supporting reasons. All 
exceptions and responses thereto shall be served on all the parties.
    (b)(1) The Secretary, after consideration of the decision, the 
exceptions, and any supporting briefs filed therewith and any responses 
to the exceptions with supporting reasons, shall issue a final decision.
    (2) An initial decision and a final decision under this section 
shall include a statement of:
    (i) Findings of fact and conclusions of law and the reasons and 
bases therefor on all issues presented;
    (ii) Reference to any material fact based on official notice; and
    (iii) The terms and conditions of the rule or order made.

The final decision shall be published in the Federal Register and served 
on all the parties.
    (c) Where a genuine material question of fact is raised, the 
administrative law judge shall, and in any other case may, set the case 
for an evidentiary hearing. A notice of such hearing shall be published 
in the Federal Register at least 30 days prior to the hearing date.



             Subpart D--Preliminary Conference and Discovery



Sec. 1955.30  Submission of documentary evidence.

    (a) Where there has been no consent finding or summary decision 
under subpart C of this part and a formal hearing is necessary, the 
administrative law judge shall set a date by which all documentary 
evidence, which is to be offered during the hearing, shall be submitted 
to the administrative law judge and served on the other parties. Such 
submission date shall be sufficiently in advance of the hearing as to 
permit study and preparation for cross-examination and rebuttal 
evidence. Documentary evidence not submitted in advance may be received 
into evidence upon a clear showing that the offering party had good 
cause for failure to produce the evidence sooner.
    (b) The authenticity of all documents submitted in advance shall be 
deemed admitted unless written objections are filed prior to the 
hearing, except that a party will be permitted to challenge such 
authenticity at a later date upon clear showing of good cause for 
failure to have filed such written objections.



Sec. 1955.31  Preliminary conference.

    (a) Upon his own motion, or the motion of a party, the 
administrative law judge may direct the parties to meet with him for a 
conference or conferences to consider:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to documents for 
purposes of clarification, simplification, or limitation;
    (3) Stipulations of fact, and of the authenticity, of the contents 
of documents;
    (4) Limitations on the number of parties and of witnesses;
    (5) Scope of participation of petitioners under Sec. 1955.17 of this 
part;
    (6) Establishment of dates for discovery; and
    (7) Such other matters as may tend to expedite the disposition of 
the proceedings, and to assure a just conclusion thereof.
    (b) The administrative law judge shall enter an order which recites 
the action taken at the conference, the amendments allowed to any 
documents which have been filed, and the agreements made between the 
parties as to any of the matters considered. Such order shall limit the 
issues for hearing to those not disposed of by admissions or agreements, 
and control the subsequent course of the hearing, unless modified at the 
hearing to prevent manifest injustice.



Sec. 1955.32  Discovery.

    (a)(1) At any time after the commencement of a proceeding under this 
part, but generally before the preliminary conference, if any, a party 
may

[[Page 143]]

request of any other party admissions that relate to statements or 
opinions of fact, or of the application of law to fact, including the 
genuineness of any document described in the request. Copies of 
documents shall be served with the request unless they have been or are 
otherwise furnished or made available for inspection or copying. The 
matter shall be deemed admitted unless within 30 days after service of 
the request, or within such shorter or longer time as the administrative 
law judge may prescribe, the party to whom the request is directed 
serves upon the party requesting the admission a specific written 
response.
    (2) If objection is made, the reasons therefor shall be stated. The 
answer shall specifically deny the matter or set forth in detail the 
reasons why the answering party cannot truthfully admit or deny the 
matter. A denial shall fairly meet the substance of the requested 
admission and when good faith requires that a party qualify his answer 
or deny only a part of the matter on which an admission is requested, he 
shall specify so much of it as is true and qualify or deny the 
remainder. An answering party may not give lack of information or 
knowledge as the reason for failure to admit or deny unless he states 
that he has made reasonable inquiry and that the information known or 
readily obtainable by him is insufficient to enable him to admit or 
deny.
    (3) The party who has requested the admission may move to determine 
the sufficiency of the answers or objections. Unless the administrative 
law judge determines that an objection is justified, he may order either 
that the matter is admitted or that an amended answer be served. The 
administrative law judge may, in lieu of these orders, determine that 
final disposition of the requests be made at a preliminary conference, 
or at a designated time prior to the hearing. Any matter admitted under 
this section is conclusively established unless the administrative law 
judge on motion permits withdrawal or amendment of the admission. Copies 
of all requests and responses shall be served on all parties and filed 
with the administrative law judge.
    (b)(1) The testimony of any witness may be taken by deposition. 
Depositions may be taken orally or upon written interrogatories before 
any person designated by the administrative law judge or having power to 
administer oaths.
    (2) Any party desiring to take the deposition of a witness may make 
application in writing to the administrative law judge setting forth:
    (i) The time when, the place where, and the name and post office 
address of the person before whom the deposition is to be taken;
    (ii) The name and address of each witness; and
    (iii) The subject matter concerning which each witness is expected 
to testify.
    (3) Such notice as the administrative law judge may order shall be 
given by the party taking the deposition to every other party.
    (c)(1) Each witness testifying upon deposition shall be sworn, and 
the parties not calling him shall have the right to cross-examine him. 
The questions propounded and the answers thereto, together with all 
objections made, shall be reduced to writing and shall be read to or by 
the witness unless such examination and reading are waived by the 
witness and the parties. Any changes in form or substance which the 
witness desires to make shall be entered upon the deposition by the 
officer with a statement of the reasons given by the witness for making 
them. The deposition shall then be signed by the witness and certified 
by the officer before whom the deposition was taken. Thereafter, the 
officer shall seal the deposition, with copies thereof, in an envelope 
and mail the same by registered or certified mail to the administrative 
law judge.
    (2) Subject to such objections to the questions and answers as were 
noted at the time of taking the deposition, and to the provisions in 
Sec. 1955.40(b)(1), any part or all of a deposition may be offered into 
evidence by the party taking it as against any party who was present, 
represented at the taking of the deposition, or who had due notice 
thereof.

[[Page 144]]

    (d) Whenever appropriate to a just disposition of any issue in the 
proceeding the administrative law judge may allow discovery by any other 
appropriate procedure, such as by interrogatories upon a party or 
request for production of documents by a party.
    (e) Upon motion by a party or by the person from whom discovery is 
sought, and for good cause shown, the administrative law judge may make 
any order which justice requires to limit or condition discovery in 
order to protect a party or person from annoyance, embarrassment, 
oppression, or undue burden or expense.



Sec. 1955.33  Sanctions for failure to comply with orders.

    (a) If a party or an official or agent of a party fails, without 
good cause, to comply with an order including, but not limited to, an 
order for the taking of a deposition, written interrogatories, the 
production of documents, or an order to comply with a subpoena, the 
administrative law judge or the Secretary or both, for the purpose of 
permitting resolution of relevant issues and disposition of the 
proceeding without unnecessary delay despite such failure, may take such 
action as is just, including but not limited to the following:
    (1) Infer that the admission, testimony, documents, or other 
evidence would have been adverse to the party;
    (2) Rule that for the purposes of the proceeding, the matter or 
matters concerning which the order or subpoena was issued be taken as 
established adversely to the party;
    (3) Rule that the party may not introduce into evidence or otherwise 
rely, in support of any claim or defense, upon testimony by such party, 
officer or agent, or the documents or other evidence;
    (4) Rule that the party may not be heard to object to introduction 
and use of secondary evidence to show what the withheld admission, 
testimony, documents, or other evidence would have shown;
    (5) Rule that a pleading, or part of a pleading, on a motion or 
other submission by the party, concerning which the order or subpoena 
was issued, be stricken or that decision on the pleading be rendered 
against the party, or both.
    (b) Any such action may be taken by written or oral order issued in 
the course of the proceeding or by inclusion in the initial decision of 
the administrative law judge or an order or opinion of the Secretary. 
The parties may seek, and the administrative law judge may grant, such 
of the foregoing means of relief or other appropriate relief as may be 
sufficient to compensate for the lack of withheld testimony, documents, 
or other evidence.



Sec. 1955.34  Fees of witnesses.

    Witnesses, including witnesses for depositions, shall be paid the 
same fees and mileage that are paid witnesses in the courts of the 
United States. Fees shall be paid by the party at whose instance the 
witness appears, and the person taking a deposition shall be paid by the 
party at whose instance the deposition is taken.



                     Subpart E--Hearing and Decision



Sec. 1955.40  Hearings.

    (a)(1) Except as may be ordered otherwise by the administrative law 
judge, the Department of Labor shall proceed first at the hearing.
    (2) The Department of Labor shall have the burden of proof to 
sustain the contentions alleged in the notice of proposed withdrawal, 
published under Sec. 1955.10(b)(1) but the proponent of any factual 
proposition shall be required to sustain the burden of proof with 
respect thereto.
    (b)(1) A party shall be entitled to present his case or defense by 
oral or documentary evidence, to submit rebuttal evidence, and to 
conduct such cross-examination as may be required for a full and true 
disclosure of the facts. Any oral or documentary evidence may be 
received, but the administrative law judge shall exclude evidence which 
is irrelevant, immaterial, or unduly repetitious.
    (2) The testimony of a witness shall be upon oath or affirmation 
administered by the administrative law judge.
    (3) If a party objects to the admission or rejection of any 
evidence, or to the limitation of the scope of any examination or cross-
examination, or to the

[[Page 145]]

failure to limit such scope, he shall state briefly the grounds for such 
objection. Rulings on all objections shall appear in the record. Only 
objections made before the administrative law judge may be relied upon 
subsequently in the proceeding.
    (4) Formal exception to an adverse ruling is not required.
    (c) Official notice may be taken of any material fact not appearing 
in evidence in the record, which is among the traditional matters of 
judicial notice, or concerning which the Department of Labor by reason 
of its functions is presumed to be expert: Provided, that the parties 
shall be given adequate notice, at the hearing or by reference in the 
administrative law judge's and the Secretary's decision of the matters 
so noticed and shall be given adequate opportunity to show the contrary.
    (d) When an objection to a question propounded to a witness is 
sustained, the examining party may make a specific offer of proof of 
what the party expects to prove by the answer of the witness orally or 
in writing. Written offers of proof, adequately marked for 
identification, shall be retained in the record so as to be available 
for consideration by any reviewing authority.
    (e) Hearings shall be stenographically reported. Copies of the 
transcript may be obtained by the parties and the public upon payment of 
the actual cost of duplication to the Department of Labor in accordance 
with 29 CFR 70.62(c).
    (f) Corrections of the official transcript may be made only when 
they involve errors affecting substance and then only in the manner 
herein provided. Corrections may be ordered by the administrative law 
judge or agreed to in a written stipulation by all parties or their 
representatives. Where the parties are in disagreement, the 
administrative law judge shall determine the corrections to be made and 
so order. Corrections may be interlineated in the official transcript so 
as not to obliterate the original text.



Sec. 1955.41  Decision of the administrative law judge.

    (a) Within 30 days after receipt of notice that the transcript of 
the testimony has been filed with the administrative law judge, or such 
additional time as the administrative law judge may allow, each party 
may file with the administrative law judge proposed findings of fact, 
conclusions of law, and rules or orders, together with a supporting 
brief expressing the reasons for such proposals. Such proposals and 
brief shall be served on all other parties and shall refer to all 
portions of the record and to all authorities relied upon in support of 
each proposal.
    (b)(1) Within a reasonable time after the time allowed for the 
filing of proposed findings of fact, conclusions of law, and rules or 
orders, the administrative law judge shall make and serve upon each 
party his initial decision which shall become final upon the 30th day 
after service thereof unless exceptions are filed thereto.
    (2) The decision of the administrative law judge shall be based 
solely upon substantial evidence on the record as a whole and shall 
state all facts officially noticed and relied upon. The decision of the 
administrative law judge shall include:
    (i) A statement of the findings of fact and conclusions of law, with 
reasons and bases therefor upon each material issue of fact, law, or 
discretion presented on the record;
    (ii) Reference to any material fact based on official notice; and
    (iii) The appropriate rule, order, relief, or denial thereof.



Sec. 1955.42  Exceptions.

    (a) Within 30 days after service of the decision of the 
administrative law judge, any party may file with the Secretary written 
exceptions thereto with supporting reasons. Such exceptions shall refer 
to the specific findings of fact, conclusions of law, or terms of the 
rule or order excepted to; and shall suggest corrected findings of fact, 
conclusions of law, or terms of the rule or order referencing the 
specific pages of the transcript relevant to the suggestions. Requests 
for extension of time to file exceptions may be granted if the requests 
are received by the Secretary no later than 25 days after service of the 
decision.
    (b) If any timely exceptions are filed, the Secretary may set a time 
for filing

[[Page 146]]

any response to the exceptions with supporting reasons. All exceptions 
and responses thereto shall be served on all the parties.



Sec. 1955.43  Transmission of the record.

    If exceptions are filed, the Secretary shall request the 
administrative law judge to transmit the record of the proceeding to the 
Secretary for review. The record shall include the State plan; a copy of 
the Assistant Secretary's notice of proposed withdrawal; the State's 
statement of items in contention; the notice of the hearing if any; any 
motions and requests filed in written form and rulings thereon; the 
transcript of the testimony taken at the hearing, together with any 
documents or papers filed in connection with the preliminary conference 
and the hearing itself; such proposed findings of fact, conclusions of 
law, rules or orders, and supporting reasons as may have been filed; the 
administrative law judge's decision; and such exceptions, responses, and 
briefs in support thereof as may have been filed in the proceedings.



Sec. 1955.44  Final decision.

    (a) After review of any exceptions, together with the record 
references and authorities cited in support thereof, the Secretary shall 
issue a final decision ruling upon each exception and objection filed. 
The final decision may affirm, modify, or set aside in whole or in part 
the findings, conclusions, and the rule or order contained in the 
decision of the administrative law judge. The final decision shall also 
include reference to any material fact based on official notice.
    (b) The Secretary's final decision shall be served upon all the 
parties and shall become final upon the 30th day after service thereof 
unless the Secretary grants a stay pending judicial review.



Sec. 1955.45  Effect of appeal of administrative law judge's decision.

    An administrative law judge's decision shall be stayed pending a 
decision on appeal to the Secretary. If there are no exceptions filed to 
the decisions of the administrative law judge, the administrative law 
judge's decision shall be published in the Federal Register as a final 
decision and served upon the parties.



Sec. 1955.46  Finality for purposes of judicial review.

    Only a final decision by the Secretary under Sec. 1955.44 shall be 
deemed final agency action for purposes of judicial review. A decision 
of an administrative law judge which becomes final for lack of appeal is 
not deemed final agency action for purposes of 5 U.S.C. 704.



Sec. 1955.47  Judicial review.

    The State may obtain judicial review of a decision by the Secretary 
in accordance with section 18(g) of the Act.



  PART 1956--STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE STANDARDS APPLICABLE TO STATE AND LOCAL GOVERNMENT EMPLOYEES IN STATES WITHOUT APPROVED 
PRIVATE EMPLOYEE PLANS--Table of Contents




                           Subpart A--General

Sec.
1956.1  Purpose and scope.
1956.2  General policies.

                           Subpart B--Criteria

1956.10  Specific criteria.
1956.11  Indices of effectiveness.

   Subpart C--Approval, Change, Evaluation and Withdrawal of Approval 
                               Procedures

1956.20  Procedures for submission, approval and rejection.
1956.21  Procedures for submitting changes.
1956.22  Procedures for evaluation and monitoring.
1956.23  Procedures for certification of completion of development and 
          determination on application of criteria.
1956.24  Procedures for withdrawal of approval.

Subpart D--General Provisions and Conditions [Reserved]

                         Subpart E--Connecticut

1956.40  Description of the plan.
1956.41  Where the plan may be inspected.
1956.43  Developmental schedule.
1956.44  Completion of developmental steps and certification.

[[Page 147]]

                           Subpart F--New York

1956.50  Description of the plan as initially approved.
1956.51  Developmental schedule.
1956.52  Completed developmental steps.
1956.53  Determination of operational effectiveness. [Reserved]
1956.54  Location of plan for inspection and copying.
1956.55  Changes to approved plans.

                          Subpart G--New Jersey

1956.60  Description of the plan as initially approved.
1956.61  Developmental schedule.
1956.62  Completion of developmental steps and certification. [Reserved]
1956.63  Determination of operational effectiveness. [Reserved]
1956.64  Location of plan for inspection and copying.

    Authority: Secs. 8, 18, Occupational Safety and Health Act of 1970 
(29 U.S.C. 657, 667); Secretary of Labor's Order No. 12-71 (36 FR 8754), 
8-76 (41 FR 25059), or 9-83 (48 FR 35736), as applicable, unless 
otherwise noted.

    Source: 41 FR 12429, Mar. 4, 1977, unless otherwise noted.



                           Subpart A--General



Sec. 1956.1  Purpose and scope.

    (a) This part sets forth procedures and requirements for approval, 
continued evaluation, and operation of State plans submitted under 
section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 
667) (hereinafter called the Act) for the development and enforcement of 
State standards applicable to State and local government employees in 
States without approved private employee plans. Although section 2(b) of 
the Act sets forth the policy of assuring every working man and woman 
safe and healthful working conditions, State and local government 
agencies are excluded from the definition of ``employer'' in section 
3(5). Only under section 18 of the Act are such public employees ensured 
protection under the provisions of an approved State plan. Where no such 
plan is in effect with regard to private employees, State and local 
government employees have not heretofore been assured any protections 
under the Act. Section 18(b), however, permits States to submit plans 
with respect to any occupational safety and health issue with respect to 
which a Federal standard has been promulgated under section 6 of the 
Act. Under Sec. 1902.2(c) of this chapter, an issue is defined as ``any 
* * * industrial, occupational, or hazard grouping that is found to be 
administratively practicable and * * * not in conflict with the purposes 
of the Act.'' Since Federal standards are in effect with regard to 
hazards found in public employment, a State plan covering this 
occupational category meets the definition of section 18 and the 
regulations. It is the purpose of this part to assure the availability 
of the protections of the Act to public employees, where no State plan 
covering private employees is in effect, by adapting the requirements 
and procedures applicable to State plans covering private employees to 
the situation where State coverage under section 18(b) is proposed for 
public employees only.
    (b) In adopting these requirements and procedures, consideration 
should be given to differences between public and private employment. 
For instance, a system of monetary penalties applicable to violations of 
public employers may not in all cases be necessarily the most 
appropriate method of achieving compliance. Further, the impact of the 
lack of Federal enforcement authority application to public employers 
requires certain adjustments of private employer plan procedures in 
adapting them to plans covering only public employees in a State.



Sec. 1956.2  General policies.

    (a) Policy. The Assistant Secretary of Labor for Occupational Safety 
and Health (hereinafter referred to as the Assistant Secretary) will 
approve a State plan which provides an occupational safety and health 
program for the protection of State and local government employees 
(hereinafter State and local government employees are referred to as 
public employees) that in his judgment meets or will meet the criteria 
set forth in Sec. 1956.10. Included among these criteria is the 
requirement that the State plan for public employees (hereinafter such a 
plan will be referred to as the plan) provides for the development and 
enforcement of standards relating to hazards in employment covered by 
the plan which are or will

[[Page 148]]

be at least as effective in providing safe and healthful employment and 
places of employment for public employees as standards promulgated and 
enforced under section 6 of the Act. In determining whether a plan 
satisfies the requirement of effectiveness, the Assistant Secretary will 
measure the plan against the indices of effectiveness, set forth in 
Sec. 1956.11.
    (b) Developmental plan. (1) A State plan for an occupational safety 
and health program for public employees may be approved although, upon 
submission, it does ot fully meet the criteria set forth in 
Sec. 1956.10, if it includes satisfactory assurances by the State that 
it will take the necessary steps to bring the program into conformity 
with these criteria within the 3-year period immediately following the 
commencement of the plan's operation. In such a case, the plan shall 
include the specific actions the State proposes to take, and a time 
schedule for their accomplishment which is not to exceed 3 years, at the 
end of which the plan will meet the criteria in Sec. 1956.10. A 
developmental plan shall include the dates within which intermediate and 
final action will be accomplished. Although administrative actions, such 
as stages for application of standards and enforcement, related 
staffing, development of regulations may be developmental, to be 
considered for approval, a State plan for public employees must contain 
at time of plan approval basic State legislative and/or executive 
authority under which these actions will be taken. If necessary program 
changes require further implementing executive action by the Governor or 
supplementary legislative action by the State, a copy of the appropriate 
order, or the bill or a draft of legislation that will be or has been 
proposed for enactment shall be submitted, accompanied by:
    (i) A statement of the Governor's support of the legislation or 
order and
    (ii) A statement of legal opinion that the proposed legislation or 
executive action will meet the requirements of the Act and this part in 
a manner consistent with the State's constitution and laws.
    (2) On the basis of the State's submission, the Assistant Secretary 
will approve the plan if he finds that there is a reasonable expectation 
that the plan for public employees will meet the criteria in 
Sec. 1956.10 within the indicated 3 year period. In such a case, the 
Assistant Secretary shall not make a determination that a State is fully 
applying the criteria in Sec. 1956.10 until the State has completed all 
the developmental steps specified in the plan which are designed to make 
it at least as effective as the Federal program for the private sector, 
and the Assistant Secretary has had at least 1 year to evaluate the plan 
on the basis of actual operations following the completion of all 
developmental steps. If at the end of 3 years from the date of 
commencement of the plan's operation, the State is found by the 
Assistant Secretary, after affording the State notice and an opportunity 
for a hearing, not to have substantially completed the developmental 
steps of the plan, he shall withdraw the approval of the plan.
    (3) Where a State plan approved under part 1902 of this chapter is 
discontinued, except for its public employee component, or becomes 
approved after approval of a plan under this part, the developmental 
period applicable to the public employee component of the earlier plan 
will be controlling with regard to any such public employee coverage. 
For good cause, a State may demonstrate that an additional period of 
time is required to make adjustments on account of the transfer from one 
type of plan to another.
    (c) Scope of a State plan for public employees. (1) A State plan for 
public employees must provide for the coverage of both State and local 
government employees to the full extent permitted by the State laws and 
constitution. The qualification ``to the extent permitted by its law'' 
means only that where a State may not constitutionally regulate 
occupational safety and health conditions in certain political 
subdivisions, the plan may exclude such political subdivision employees 
from coverage.
    (2) The State shall not exclude any occupational, industrial, or 
hazard grouping from coverage under its plan unless the Assistant 
Secretary finds

[[Page 149]]

that the State has shown there is no necessity for such coverage.



                           Subpart B--Criteria



Sec. 1956.10  Specific criteria.

    (a) General. A State plan for public employees must meet the 
specific criteria set forth in this section.
    (b) Designation of State agency. (1) The plan shall designate a 
State agency or agencies which will be responsible for administering the 
plan throughout the State.
    (2) The plan shall also describe the authority and responsibilities 
vested in such agency or agencies. The plan shall contain assurances 
that any other responsibilities of the designated agency shall not 
detract significantly from the resources and priorities assigned to the 
administration of the plan.
    (3) A State agency or agencies must be designated with overall 
responsibility for administering the plan throughout the State. Subject 
to this overall responsibility, enforcement of standards may be 
delegated to an appropriate agency having occupational safety and health 
responsibilities or expertise throughout the State. Included in this 
overall responsibility are the requirements that the designated agency 
have, or assure the provision of necessary qualified personnel, legal 
authority necessary for the enforcement of the standards and make 
reports as required by the Assistant Secretary.
    (c) Standards. The State plan for public employees shall include, or 
provide for the development or adoption of, standards which are or will 
be at least as effective as those promulgated under section 6 of the 
Act. The plan shall also contain assurances that the State will continue 
to develop or adopt such standards. Indices of the effectiveness of 
standards and procedures for the development or adoption of standards 
against which the Assistant Secretary will measure the plan in 
determining whether it is approvable are set forth in Sec. 1956.11(b).
    (d) Enforcement. (1) The State plan for public employees shall 
provide a program for the enforcement of the State standards which is, 
or will be, at least as effective in assuring safe and healthful 
employment and places of employment as the standards promulgated by 
section 6 of the Act; and provide assurances that the State's 
enforcement program for public employees will continue to be at least as 
effective in this regard as the Federal program in the private sector. 
Indices of the effectiveness of a State's enforcement plan against which 
the Assistant Secretary will measure the plan in determining whether it 
is approvable are set forth in Sec. 1956.11(c).
    (2) The plan shall require State and local government agencies to 
comply with all applicable State occupational safety and health 
standards included in the plan and all applicable rules issued 
thereunder, and employees to comply with all standards, rules, and 
orders applicable to their conduct.
    (e) Right of entry and inspection. The plan shall contain adequate 
assurances that inspectors will have a right to enter covered workplaces 
which is at least as effective as that provided in section 8 of the Act 
for the purpose of inspection or monitoring. Where such entry is 
refused, the State agency or agencies shall have the authority through 
appropriate legal process to compel such entry.
    (f) Prohibition against advance notice. The State plan shall contain 
a prohibition against advance notice of inspections. Any exceptions must 
be expressly authorized by the head of the designated agency or agencies 
or his representative and such exceptions may be no broader than those 
authorized under the Act and the rules published in part 1903 of this 
chapter relating to advance notice.
    (g) Personnel. The plan shall provide assurances that the designated 
agency or agencies and all government agencies to which authority has 
been delegated, have, or will have, a sufficient number of adequately 
trained and qualified personnel necessary for the enforcement of 
standards. For this purpose, qualified personnel means persons employed 
on a merit basis, including all persons engaged in the development of 
standards and the administration of the plan. Subject to the results of 
evaluations, conformity with the Standards for a Merit System of 
Personnel Administration, 45 CFR part 70,

[[Page 150]]

issued by the Secretary of Labor, including any amendments thereto, and 
any standards prescribed by the U.S. Civil Service Commission, pursuant 
to section 208 of the Intergovernmental Personnel Act of 1970, modifying 
or superseding such standards, and guidelines on ``at least as effective 
as'' staffing derived from the Federal private employee program will be 
deemed to meet this requirement.
    (h) Resources. The plan shall contain satisfactory assurances 
through the use of budget, organizational description, and any other 
appropriate means, that the State will devote adequate funds to the 
administration and enforcement of the public employee program. The 
Assistant Secretary will make the periodic evaluations of the adequacy 
of the resources the State has devoted to the plan.
    (i) Employer records and reports. The plan shall provide assurances 
that public employers covered by the plan will maintain records and make 
reports on occupational injuries and illnesses in a manner similar to 
that required of private employers under the Act.
    (j) State agency reports to the Assistant Secretary. The plan shall 
provide assurances that the designated agency or agencies shall make 
such reasonable reports to the Assistant Secretary in such form and 
containing such information as he may from time to time require. The 
agency or agencies shall establish specific goals consistent with the 
goals of the Act, including measures of performance, output, and results 
which will determine the efficiency and effectiveness of the State 
program for public employees, and shall make periodic reports to the 
Assistant Secretary on the extent to which the State, in implementation 
of its plan, has attained these goals. Reports will also include data 
and information on the implementation of the specific inspection and 
voluntary compliance activities included within the plan. Further, these 
reports shall contain such statistical information pertaining to work-
related deaths, injuries and illnesses in employments and places of 
employment covered by the plan as the Assistant Secretary may from time 
to time require.



Sec. 1956.11  Indices of effectiveness.

    (a) General. In order to satisfy the requirements of effectiveness 
under Sec. 1956.10 (c)(1) and (d)(1), the State plan for public 
employees shall:
    (1) Establish the same standards, procedures, criteria, and rules as 
have been established by the Assistant Secretary under the act; or
    (2) Establish alternative standards, procedures, criteria, and rules 
which will be measured against each of the indices of effectiveness in 
paragraphs (b) and (c) of this section to determine whether the 
alternatives are at least as effective as the Federal program for 
private employees, where applicable, with respect to the subject of each 
index. For each index the State must demonstrate by the presentation of 
factual or other appropriate information that its plan for public 
employees will, to the extent practicable, be at least as effective as 
the Federal program for private employees.
    (b) Standards. (1) The indices for measurement of a State plan for 
public employees with regard to standards follow in paragraph (b)(2) of 
this section. The Assistant Secretary will determine whether the State 
plan for public employees satisfies the requirements of effectiveness 
with regard to each index as provided in paragraph (a) of this section.
    (2) The Assistant Secretary will determine whether the State plan 
for public employees:
    (i) Provides for State standards which are or will be at least as 
effective as the standards promulgated under section 6 of the Act. In 
the case of any State standards dealing with toxic materials or harmful 
physical agents, they should adequately assure, to the extent feasible, 
that no employee will suffer material impairment of health or functional 
capacity, even if such employee has regular exposure to the hazard dealt 
with by such standard for the period of his working life, by such means 
as, in the development and promulgation of standards, obtaining the best 
available evidence through research, demonstration, experiments, and 
experience under this and any other safety and health laws.
    (ii) Provides an adequate method to assure that its standards will 
continue

[[Page 151]]

to be at least as effective as Federal standards, including Federal 
standards which become effective subsequent to any approval of the plan.
    (iii) Provides a procedure for the development and promulgation of 
standards which allows for the consideration of pertinent factual 
information and affords interested persons, including employees, 
employers and the public, an opportunity to participate in such 
processes, by such means as establishing procedures for consideration of 
expert technical knowledge, and providing interested persons, including 
employers, employees, recognized standards-producing organizations, and 
the public, an opportunity to submit information requesting the 
development or promulgation of new standards or the modification or 
revocation of existing standards and to participate in any hearings. 
This index may also be satisfied by such means as the adoption of 
Federal standards, in which case the procedures at the Federal level 
before adoption of a standard under section 6 may be considered to meet 
the conditions of this index.
    (iv) Provides authority for the granting of variances from State 
standards upon application of a public employer or employers which 
correspond to variances authorized under the Act, and for consideration 
of the views of interested parties, by such means as giving affected 
employees notice of each application and an opportunity to request and 
participate in hearings or other appropriate proceedings relating to 
applications for variances.
    (v) Provides for prompt and effective standards setting actions for 
the protection of employees against new and unforeseen hazards, by such 
means as the authority to promulgate emergency temporary standards. Such 
authority is particularly appropriate for those situations where public 
employees are exposed to unique hazards for which existing standards do 
not provide adequate protection.
    (vi) Provides that State standards contain appropriate provision for 
the furnishing to employees of information regarding hazards in the 
workplace, including information about suitable precautions, relevant 
symptoms, and emergency treatment in case of exposure; by such means as 
labelling, posting, and, where appropriate, results of medical 
examinations, being furnished only to appropriate State officials and, 
if the employee so requests, to his physician.
    (vii) Provides that State standards where appropriate, contain 
specific provision for the protection of employees from exposure to 
hazards, by such means as containing appropriate provision for the use 
of suitable protective equipment and for control or technological 
procedures with respect to such hazards, including monitoring or 
measuring such exposure.
    (c) Enforcement. (1) The indices for measurement of a State plan for 
public employees with regard to enforcement follow in paragraph (c)(2) 
of this section. The Assistant Secretary will determine whether the plan 
satisfies the requirements of effectiveness with regard to each index as 
provided in paragraph (a) of this section.
    (2) The Assistant Secretary will determine whether the State plan 
for public employees:
    (i) Provides for inspection of covered workplaces in the State by 
the designated agency or agencies or any other agency which is duly 
delegated authority, including inspections in response to complaints 
where there are reasonable grounds to believe a hazard exists, in order 
to assure, so far as possible, safe and healthful working conditions for 
covered employees by such means as providing for inspections under 
conditions such as those provided in section 8 of the Act.
    (ii) Provides an opportunity for employees and their representative, 
before, during, and after inspections, to bring possible violations to 
the attention of the State or local agency with enforcement 
responsibility in order to aid inspections, by such means as affording a 
representative of the employer, and a representative authorized by 
employees, an opportunity to accompany the inspector during the physical 
inspection of the workplace, or where there is no authorized 
representative, provide for consultation by the inspector with a 
reasonable number of employees.
    (iii) Provides for notification of employees, or their 
representatives, when

[[Page 152]]

the State decides not to take compliance action as a result of 
violations alleged by such employees or their representative, and 
further provides for informal review of such decisions, by such means as 
written notification of decisions not to take compliance action and the 
reasons therefor, and procedures for informal review of such decisions 
and written statements of the disposition of such review.
    (iv) Provides that public employees be informed of their protections 
and obligations under the Act, including the provisions of applicable 
standards, by such means as the posting of notices or other appropriate 
sources of information.
    (v) Provides necessary and appropriate protection to an employee 
against discharge or discrimination in terms and conditions of 
employment because he has filed a complaint, testified, or otherwise 
acted to exercise rights under the State program for public employees 
for himself or others, by such means as providing for appropriate 
sanctions against the State or local agency for such actions, and by 
providing for the withholding, upon request, of the names of 
complainants from the employer.
    (vi) Provides that public employees have access to information on 
their exposure to toxic materials or harmful physical agents and receive 
prompt information when they have been or are being exposed to such 
materials or agents in concentrations or at levels in excess of those 
prescribed by the applicable safety and health standards, by such means 
as the observation by employees of the monitoring or measuring of such 
materials or agents, employee access to the records of such monitoring 
or measuring, prompt notification by a public employer to any employee 
who has been or is being exposed to such agents or materials in excess 
of the applicable standards, and information to such employee of 
corrective action being taken.
    (vii) Provides procedures for the prompt restraint or elimination of 
any conditions or practices in covered places of employment which could 
reasonably be expected to cause death or serious physical harm 
immediately or before the imminence of such danger can be eliminated 
through the enforcement procedures otherwise provided for in the plan, 
by such means as immediately informing employees and employers of such 
hazards, taking steps to obtain immediate abatement of the hazard by the 
employer, and, where appropriate, authority to initiate necessary legal 
proceedings to require such abatement.
    (viii) Provides that the designated agency (or agencies) and any 
agency to which it has duly delegated authority, will have the necessary 
legal authority for the enforcement of standards by such means as 
provisions for appropriate compulsory process to obtain necessary 
evidence or testimony in connection with inspection and enforcement 
proceedings.
    (ix) Provides for prompt notice to public employers and employees 
when an alleged violation of standards has occurred, including the 
proposed abatement requirements, by such means as the issuance of a 
written citation to the public employer and posting of the citation at 
or near the site of the violation; further provides for advising the 
public employer of any proposed sanctions, wherever appropriate, by such 
means as a notice to the employer by certified mail within a reasonable 
time of any proposed sanctions.
    (x) Provides effective sanctions against public employers who 
violate State standards and orders, or applicable public agency 
standards, such as those prescribed in the Act. In lieu of monetary 
penalties a complex of enforcement tools and rights, such as various 
forms of equitable remedies available to the designee including 
administrative orders; availability of employee rights such as right to 
contest citations, and provisions for strengthened employee 
participation in enforcement may be demonstrated to be as effective as 
monetary penalties in achieving complianace in public employment. In 
evaluating the effectiveness of an alternate system for compelling 
compliance, elements of the enforcement educational program such as a 
system of agency self inspection procedures, and in-house training 
programs, and employee complaint procedures may be taken into 
consideration.

[[Page 153]]

    (xi) Provides for an employer to have the right of review of 
violations alleged by the State or any agency to which it has duly 
delegated authority, abatement periods and proposed penalties, where 
appropriate, for employees or their representatives to challenge the 
reasonableness of the period of time fixed in the citation for the 
abatement of the hazard, and for employees or their representatives to 
have an opportunity to participate in review, proceedings, by such means 
as providing for admininistrative review, with an opportunity for a full 
hearing on the issues.
    (xii) Provides that the State will undertake programs to encourage 
voluntary compliance by public employers and employees by such means as 
conducting training and consultation with such employers and employees, 
and encouraging agency self-inspection programs.
    (d) Additional indices. Upon his own motion, or after consideration 
of data, views, and arguments received in any proceedings held under 
subpart C of this part, the Assistant Secretary may prescribe additional 
indices for any State plan for public employees which shall be in 
furtherance of the purpose of this section.



   Subpart C--Approval, Change, Evaluation and Withdrawal of Approval 
                               Procedures



Sec. 1956.20  Procedures for submission, approval and rejection.

    The procedures contained in subpart C of part 1902 of this chapter 
shall be applicable to submission, approval, and rejection of State 
plans submitted under this part, except that the information required in 
Sec. 1902.20(b)(1)(iii) would not be included in decisions of approval.



Sec. 1956.21  Procedures for submitting changes.

    The procedures contained in part 1953 of this chapter shall be 
applicable to submission and consideration of developmental, Federal 
program, evaluation, and State-initiated change supplements to plans 
approved under this part.



Sec. 1956.22  Procedures for evaluation and monitoring.

    The procedures contained in part 1954 of this chapter shall be 
applicable to evaluation and monitoring of State plans approved under 
this part, except that the decision to relinquish Federal enforcement 
authority under section 18(e) of the Act is not relevant to Phase II and 
III monitoring under Sec. 1954.2 and the guidelines of exercise of 
Federal discretionary enforcement authority provided in Sec. 1954.3 are 
not applicable to plans approved under this part. The factors listed in 
Sec. 1902.37(b) of this chapter, except those specified in 
Sec. 1902.37(b)(11) and (12), which would be adapted to the State 
compliance program, provide the basis for monitoring.



Sec. 1956.23  Procedures for certification of completion of development and determination on application of criteria.

    The procedures contained in Secs. 1902.33 and 1902.34 of this 
chapter shall be applicable to certification of completion of 
developmental steps under plans approved in accordance with this part. 
Such certification shall initiate intensive monitoring of actual 
operations of the developed plan, which shall continue for at least a 
year after certification, at which time a determination shall be made 
under the procedures and criteria of Secs. 1902.38, 1902.39, 1902.40 and 
1902.41, that on the basis of actual operations, the criteria set forth 
in Secs. 1956.10 and 1956.11 of this part are being applied under the 
plan. The factors listed in Sec. 1902.37(b) of this chapter, except 
those specified in Sec. 1902.37(b)(11) and (12) which would be adapted 
to the State's compliance program provide the basis for making the 
determination of operational effectiveness.



Sec. 1956.24  Procedures for withdrawal of approval.

    The procedures and standards contained in part 1955 of this chapter 
shall be applicable to the withdrawal of approval of plans approved 
under this part 1956, except that (because these plans, as do public 
employee programs aproved and financed in connection with a State plan 
covering private employees, must cover all employees of State and local 
agencies in a State

[[Page 154]]

whenever a State is constitutionally able to do so, at least 
developmentally), no industrial or occupational issues may be considered 
a separable portion of a plan under Sec. 1955.2(a)(10); and, as Federal 
standards and enforcement do not apply to State and local government 
employers, withdrawal of approval of a plan approved under this part 
1956 could not bring about application of the provisions of the Federal 
Act to such employers as set out in Sec. 1955.4 of this chapter.

Subpart D--General Provisions and Conditions [Reserved]



                         Subpart E--Connecticut

    Source: 43 FR 51390, Nov. 3, 1978, unless otherwise noted.



Sec. 1956.40  Description of the plan.

    (a) The plan designates the Connecticut Department of Labor as the 
State agency responsible for administering the plan throughout the 
State. The State has adopted all Federal standards promulgated as of 
September 1977 and has given assurances that it will continue to adopt 
all Federal standards, revisions, and amendments. The State further 
assured that in those situations where public employees are exposed to 
unique hazards for which existing standards do not provide adequate 
protection, effective State standards will be adopted. The plan includes 
legislation, Public Act 73-379, passed by the Connecticut Legislature in 
1973 and amended as follows: P.A. 74-176, P.A. 75-285, P.A. 77-107, and 
P.A. 77-610. Under the legislation the Connecticut Department of Labor, 
Occupational Safety and Health Division has full authority to enforce 
and administer all laws and rules protecting the safety and health of 
employees of the State and its political subdivisions. The plan is 
accompanied by a statement of the Governor's support and a legal opinion 
that the Connecticut legislation meets the requirements of the 
Occupational Safety and Health Act of 1970 and is in accord with the 
constitution of the State.
    (b) The plan establishes procedures for variances and the protection 
of employees from hazards under a variance; insures inspection in 
response to complaints; provides employer and employee representatives 
an opportunity to accompany inspectors and to call attention to possible 
violations before, during, and after inspections; notification to 
employees or their representatives when no compliance action is taken as 
a result of alleged violations, including informal review; notification 
of employees of their protection; protection of employees against 
discharge or discrimination in terms and conditions of employment; 
provision for prompt notices to employers and employees of violations of 
standards and abatement requirements; sanctions against employers for 
violation of standards and orders; employer's right to appeal citations 
for violations, abatement periods and proposed penalties; employee's 
right to appeal abatement periods; and employee participation in review 
proceedings. Also included are provisions for right of entry for 
inspection, ``prohibition'' of advance notice of inspection and the 
requirement for both employers and employees to comply with the 
applicable rules, standards, and orders, and employer obligations to 
maintain records and provide reports as required. Further, the plan 
provides assurances of a fully trained adequate staff and sufficient 
funding.
    (c) The plan includes the following documents as of the date of 
approval:
    (1) The plan document and appendixes submitted January 30, 1978;
    (2) Letter from the Commissioner, Connecticut Department of Labor, 
dated September 19, 1978, providing supplemental assurances.



Sec. 1956.41  Where the plan may be inspected.

    A copy of the plan may be inspected and copied during normal 
business hours at the following locations: Office of State programs, 
2100 M Street NW, Room 149, Washington, DC 20210; Office of the Regional 
Administrator, Occupational Safety and Health Administration, Room 1804, 
John F. Kennedy Federal Building, Boston, Mass. 02203; Connecticut 
Department of Labor, 200 Folly Brook Boulevard, Wethersfield, Conn. 
06109.

[[Page 155]]



Sec. 1956.43  Developmental schedule.

    The Connecticut plan is developmental. The following is a schedule 
of major developmental steps as provided by the plan:
    (a) A new State poster will be printed, by December 15, 1978, in 
order to reflect coverage of the public sector only.
    (b) Standards identical to or at least as effective as all existing 
Federal standards will be adopted by February 1, 1979.
    (c) Connecticut regulations equivalent to the following Federal 
provisions will be revised by April 1, 1979, to show coverage of the 
public sector only and to accurately reflect the current program: 29 CFR 
part 1903 (Inspections, Citations, and Proposed Penalties); 29 CFR part 
1904 (Recording and Reporting Occupational Injuries and Illnesses); 29 
CFR part 1905 (Variance Rules); 29 CFR part 2200 (Review Commission); 
and the Field Operations Manual.
    (d) The State will submit revised and updated provisions dealing 
with employee discrimination by May 1, 1979.
    (e) The State will prepare by June 1, 1979, a comprehensive list of 
government entities whose employees are covered by the plan, giving the 
number of employees for each entity, describing the work performed, and 
assigning for each entity a standard industrial classification (SIC) 
code.
    (f) The State will resubmit its plan in the required outline format 
by October 1, 1979.



Sec. 1956.44  Completion of developmental steps and certification.

    (a) In accordance with 29 CFR 1956.43(f), Connecticut's reformatted 
and revised public employee only plan and narrative description 
(including background information on program operations) were approved 
by the Assistant Secretary on August 3, 1983.
    (b) In accordance with 29 CFR 1956.43(a), Connecticut's safety and 
health poster for public employees only was approved by the Assistant 
Secretary on August 3, 1983.
    (c) In accordance with 29 CFR 1956.43(b), Connecticut has 
promulgated standards identical to all basic Federal standards in 29 CFR 
parts 1910, 1926, and 1928. The State has continued to adopt Federal 
standards, amendments and corrections as noted in separate standards 
approval notices.
    (d) In accordance with 29 CFR 1956.43(c), Connecticut promulgated 
rules for inspections, citations, and proposed penalties (Administrative 
Regulation Section 31-371-1 through 20) parallel to 29 CFR part 1903; 
recording and reporting occupational injuries and illness 
(Administrative Regulation Section 31-374-1 through 15 parallel to 29 
CFR part 1904; rules of practices for variances (Administrative 
Regulation Section 31-372-1 through 51) parallel to 29 CFR part 1905; 
and review commission procedures (Administrative Regulation Section 31-
376-1 through 61) parallel to 29 CFR part 2200. In addition, Connecticut 
adopted Field Operations and Industrial Hygiene Manuals identical to the 
Federal. These supplements were approved by the Assistant Secretary on 
August 3, 1983.
    (e) In accordance with 29 CFR 1956.43(d), Connecticut's employee 
discrimination provisions (Administrative Regulation Section 31-379-1 
through 22) were approved by the Assistant Secretary on August 3, 1983.
    (f) In accordance with 29 CFR 1956.43(e), Connecticut's 
comprehensive list classifying governmental entities covered by the plan 
was approved by the Assistant Secretary on August 3, 1983.
    (g) In accordance with 29 CFR 1956.10(g), a State is required to 
have a sufficient number of adequately trained and competent personnel 
to discharge its responsibilities under the plan. The Connecticut Public 
Employee Only State plan provides for three (3) safety compliance 
officers and one (1) health compliance officer as set forth in the 
Connecticut Fiscal Year 1986 grant. This staffing level meets the 
``fully effective'' benchmarks established for Connecticut for both 
safety and health.
    (h) In accordance with Sec. 1956.23 of this chapter, the Connecticut 
occupational safety and health public employee only plan was certified 
effective August 19, 1986 as having completed all developmental steps 
specified in the plan as approved October 2, 1978, on or before October 
2, 1979. This certification attests to the structured completeness of

[[Page 156]]

the plan, but does not render judgment on adequacy of performance.

[48 FR 37027, Aug. 16, 1983, as amended at 51 FR 32454, Sept. 12, 1986]



                           Subpart F--New York

    Authority: Secs. 8(g), 18, 84 Stat. 1600, 1608 (29 U.S.C. 657(g), 
667); 29 CFR part 1956, Secretary of Labor's Order 9-83 (48 FR 35736).

    Source: 49 FR 23000, June 1, 1984, unless otherwise noted.



Sec. 1956.50  Description of the plan as initially approved.

    (a) Authority and scope. The New York State Plan for Public Employee 
Occupational Safety and Health received initial OSHA approval on June 1, 
1984. The plan designates the New York Department of Labor as the State 
agency responsible for administering the plan throughout the State. The 
plan includes legislation, the New York Act (Public Employees Safety and 
Health Act, Chapter 729 of the Laws of 1980), enacted in 1980, and 
amended on April 30, 1984, to clarify the State's right of entry for 
inspection authority. Under this legislation, the Industrial 
Commissioner (now the Commissioner of Labor), has full authority to 
enforce and administer all laws and rules protecting the safety and 
health of all employees of the State and its political subdivisions. In 
response to OSHA concern that language in section 27-a(2) of the New 
York Act, regarding the Commissioner of Education's authority with 
respect to school buildings, raised questions about the coverage under 
the plan of public school employees, New York submitted amendments to 
its plan consisting of Counsel's opinion and assurance that public 
school employees are fully covered under the terms of the New York Act. 
In a March 4, 1984 letter from Lee O. Smith, Deputy Commissioner of 
Labor for Legal Affairs, New York indicated that the Commissioner of 
Education's authority applies only to ensuring the safety and health of 
pupils, and that the Commissioner of Labor has exclusive authority to 
enforce occupational safety and health standards covering public 
employees in school buildings. Furthermore, New York has provided 
assurance that should the Department of Labor's interpretation on 
coverage of public school employees be challenged successfully, 
appropriate legislative correction would be sought.
    (b) Standards. The New York plan provides for the adoption of all 
Federal OSHA standards promulgated as of July 31, 1983, and for the 
incorporation of any subsequent revisions or additions thereto in a 
timely manner, including in response to Federal OSHA emergency temporary 
standards. The procedure for adoption of Federal OSHA standards calls 
for publication of the Commissioner of Labor's intent to adopt a 
standard in the New York State Register 30 days prior to such adoption. 
Subsequent to adoption and upon filing of the standard with the 
Secretary of State, a notice of final action will be published as soon 
as is practicable in the State Register. The plan also provides for the 
adoption of alternative or different occupational safety and health 
standards if a determination is made by the State that an issue is not 
properly addressed by OSHA standards and is relevant to the safety and 
health of public employees. In such cases, the State shall propose 
legislation mandating the development of an alternative standard to 
protect the safety and health of public employees. The procedures for 
adoption of alternative standards will contain criteria for development 
and consideration of expert technical knowledge in the field to be 
addressed by the standard, and provisions allowing interested persons to 
submit information requesting development or promulgation of any 
standard and to participate in any hearing for the development, 
modification or establishment of standards.
    (c) Variances. The plan includes provisions for the granting of 
permanent and temporary variances from State standards in terms 
substantially similar to the variance provisions contained in the 
Federal Act. The State provisions require employee notification of 
variance applications as well as employee rights to participate in 
hearings held on variance applications. Variances may not be granted 
unless it is established that adequate protection is afforded employees 
under the terms of the variance.

[[Page 157]]

    (d) Employee notice and discrimination protection. The plan provides 
for notification to employees of their protections and obligations under 
the plan by such means as a State poster, and required posting of 
notices of violations. The plan also provides for protection of 
employees against discharge or discrimination resulting from exercise of 
their rights under the State's Act in terms essentially identical to 
section 11(c) of the Federal Act.
    (e) Inspections and enforcement. The plan provides for inspection of 
covered workplaces including inspections in response to employee 
complaints. If a determination is made that an employee complaint does 
not warrant an inspection, the complainant shall be notified, in 
writing, of such determination and afforded an opportunity to seek 
informal review of the determination. The plan also provides the 
opportunity for employer and employee representatives to accompany the 
inspector during an inspection for the purpose of aiding in the 
inspection. The plan also provides for right of entry for inspection and 
prohibition of advance notice of inspection. In lieu of monetary 
penalties for violations, the plan establishes a scheme of enforcement 
for compelling compliance under which public employers are issued 
notices of violation and orders to comply, for any violation of 
standards and orders. Such notices will fix a reasonable time for 
compliance. The Commissioner of Labor may seek judicial enforcement 
(mandamus actions) of orders to comply by commencing a proceeding 
pursuant to Article 78 of the New York Civil Practice Law and Rules 
against public employers who fail to abide by the requirements of the 
order.
    (f) Review procedures. Under the plan, employers, employees and 
other affected parties may seek informal review with the Department of 
Labor of a notice of violation, including the reasonableness of the 
abatement period, and/or may seek formal administrative review with the 
Industrial Board of Appeals, the independent State agency authorized by 
section 27-a(6)(c) of the New York Act to consider petitions from 
affected parties for review of the Commissioner of Labor's 
determinations pursuant to the New York Act. The ``Rules of Practice and 
Procedure'' of the Industrial Board of Appeals also permit public 
employees or their representatives to participate in the review process 
when a public employer contests a notice. Judicial review of the 
decision of the Industrial Board of Appeals may be sought pursuant to 
Article 78 of the New York Civil Practice Law and Rules. The period 
fixed in the plan for contesting notices of violation is 60 calendar 
days, which is significantly longer than the 15 working day period 
allowed under the Federal OSHA program. However, New York has provided 
assurance, by Counsel's opinion of March 4, 1984, that it has the 
authority under Article 78 of the New York Civil Practice Law and Rules 
to obtain judicial enforcement of an uncontested order to comply upon 
expiration of the period stipulated for abatement, regardless of whether 
the 60 day contest period has expired or not. New York has also assured 
that should the State Labor Department's interpretation be challenged 
successfully appropriate legislative correction would be sought.
    (g) Staffing and resources. The plan provides assurances of a fully 
trained, adequate staff, including 30 safety and 8 health compliance 
officers for enforcement inspections and 10 safety and 12 health 
consultants to perform consultation services in the public sector. The 
State has also given satisfactory assurances of adequate funding to 
support the plan. In addition, the plan assures that New York will meet 
the compliance staffing benchmarks established pursuant to the terms of 
the court order in AFL-CIO v. Marshall (CA 74-406).
    (h) Records and reports. The plan provides that public employers in 
New York will maintain appropriate records and make timely reports on 
occupational injuries and illnesses in a manner substantially identical 
to that required for private sector employers under Federal OSHA. New 
York has assured that it will continue its participation in the Bureau 
of Labor Statistics Annual Survey of Injuries and Illnesses and will 
include the public sector under its plan after approval. The plan also 
contains assurances that the

[[Page 158]]

Commissioner of Labor will provide reports to OSHA in such form as the 
Assistant Secretary may require, and that New York will participate in 
OSHA's Integrated Management Information System.
    (i) Voluntary compliance programs. The plan provides that training 
will be provided to public employers and employees; seminars will be 
conducted to familiarize affected individuals with OSHA standards and 
requirements (as adopted by New York), and safe work practices; an on-
site consultation program in the public sector will be established to 
provide services to public employers who so desire; and, all State 
agencies and political subdivisions will be encouraged to develop and 
maintain self-inspection programs as an adjunct to but not substitute 
for the Commissioner of Labor's enforcement inspections.



Sec. 1956.51  Developmental schedule.

    The New York plan is developmental. The following is a schedule of 
major developmental steps as provided in the plan:
    (a) Adopt all OSHA standards promulgated as of July 1, 1983 (within 
three months after plan approval).
    (b) Promulgate regulations for inspections, citations and abatement, 
equivalent to 29 CFR part 1903 (within three years after plan approval).
    (c) Submit State poster (within six months after plan approval).
    (d) Extend BLS Survey of Injuries and Illnesses to State and local 
government (within one year after plan approval).
    (e) Promulgate regulations for granting variances, equivalent to 29 
CFR part 1905 (within one year after plan approval).
    (f) Promulgate regulations for injury/illness recordkeeping, 
equivalent to 29 CFR part 1904 (within two years after plan approval).
    (g) Develop employee nondiscrimination procedures (within three 
years after plan approval).
    (h) Promulgate procedures for review of contested cases (within 
three years after plan approval).
    (i) Promulgate regulations for development of alternative State 
standards, equivalent to 29 CFR part 1911 (within three years after plan 
approval).
    (j) Develop Field Operations Manual (within three years after plan 
approval).
    (k) Develop Industrial Hygiene Manual (within three years after plan 
approval).
    (l) Develop on-site consultation procedures for state and local 
government employers (within three years after plan approval).
    (m) Fully implement public employer/employee training and education 
program (within three years after plan approval).

[49 FR 23000, June 1, 1984, as amended at 52 FR 20073, May 29, 1987]



Sec. 1956.52  Completed developmental steps.

    (a) In accordance with 29 CFR 1956.51(c), the New York Safety and 
Health poster for public employees only was approved by the Assistant 
Secretary on May 16, 1985.
    (b) In accordance with 29 CFR 1956.51(a) the State of New York has 
promulgated standards identical to all Federal OSHA standards 
promulgated as of July 1, 1983. This supplement was approved by the 
Assistant Secretary on August 26, 1986. (51 FR 30449).
    (c) In accordance with 29 CFR 1956.51(d) the State extended its 
participation in the Bureau of Labor Statistics (BLS) Survey of Injuries 
and Illnesses to the public sector. This supplement was approved by the 
Assistant Secretary on December 29, 1989.
    (d) In accordance with 29 CFR 1956.51(e) the State promulgated 
regulations for granting variances, equivalent to 29 CFR part 1905, 
which were approved by the Assistant Secretary on December 29, 1989.
    (e) In accordance with 29 CFR 1956.51(f) the State promulgated 
regulations for injury/illness recordkeeping, equivalent to 29 CFR part 
1904, which were approved by the Assistant Secretary on December 29, 
1989.
    (f) In accordance with 29 CFR 1956.51(g) the State developed and 
adopted employee non-discrimination procedures equivalent to 29 CFR part 
1977, which were approved by the Assistant Secretary on December 29, 
1989.

[[Page 159]]

    (g) In accordance with 29 CFR 1956.51(h) the State adopted 
procedures for the review of contested cases equivalent to 29 CFR part 
2200, which were approved by the Assistant Secretary on December 29, 
1989.
    (h) In accordance with 29 CFR 1956.51(i) the State revised its plan 
to reflect the procedures dictated by State law that require specific 
legislative action in the development and adoption of alternative 
standards as the State's Public Employee Safety and Health Act provides 
only for the adoption of identical OSHA safety and health standards, 
which were approved by the Assistant Secretary on December 29, 1989.
    (i) In accordance with 29 CFR 1956.51(k) the State has adopted the 
Federal Industrial Hygiene Manual, including changes one (1) and two 
(2), through April 7, 1987, which was approved by the Assistant 
Secretary on December 29, 1989.
    (j) In accordance with 29 CFR 1956.51(l) the State issued a 
directive implementing an on-site consultation program in the public 
sector which was approved by the Assistant Secretary on December 29, 
1989.

[50 FR 21047, May 22, 1985, as amended at 52 FR 20073, May 29, 1987; 55 
FR 1206, Jan. 12, 1990]



Sec. 1956.53  Determination of operational effectiveness. [Reserved]



Sec. 1956.54  Location of plan for inspection and copying.

    A copy of the plan may be inspected and copied during normal 
business hours at the following locations:

Office of State Programs, U.S. Department of Labor, Occupational Safety 
and Health Administration, Third Street and Constitution Avenue, NW., 
Room N-3476, Washington, DC 20210;
Office of the Regional Administrator, U.S. Department of Labor, 
Occupational Safety and Health Administration, 1515 Broadway (1 Astor 
Plaza) Room 3445, New York, New York 10036;
State of New York Department of Labor, State Office Building Campus, 
Building 12, Room 579, Albany, New York 12226;
Division of Occupational Safety and Health, State of New York Department 
of Labor, Room 6994, 2 World Trade Center, New York, New York 10047.



Sec. 1956.55  Changes to approved plans.

    In accordance with part 1953, the following New York plan changes 
were approved by the Assistant Secretary:
    (a) The State submitted a staffing pattern change involving the 
reassignment of two positions from Industrial Hygiene Consultation to 
Industrial Hygiene Enforcement. The Assistant Secretary approved the 
supplement on May 26, 1987.
    (b) The State submitted a staffing pattern change which establishes 
an Analysis and Management Information System Unit. The Assistant 
Secretary approved the supplement on December 29, 1989.

[52 FR 20073, May 29, 1987, as amended at 55 FR 1206, Jan. 12, 1990]



                          Subpart G--New Jersey

    Authority: Section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR Part 
1902, 29 CFR 1956, and Secretary of Labor's Order No. 3-2000 (65 FR 
50017).

    Source: 66 FR 2272, Jan. 11, 2001, unless otherwise noted.



Sec. 1956.60  Description of the plan as initially approved.

    (a) Authority and scope. The New Jersey State Plan for Public 
Employee Occupational Safety and Health received initial OSHA approval 
on January 11, 2001. The plan designates the New Jersey Department of 
Labor as the State agency responsible for administering the plan 
throughout the State. The plan includes enabling legislation, Public 
Employees Occupational Safety and Health Act of 1995 (N.J.S.A. 34:6A-25 
et seq.), enacted in 1984, and amended on July 25, 1995. Under this 
legislation, the State Commissioner of Labor has full authority to 
enforce and administer all laws and rules protecting the safety and 
health of all employees of the State and its political subdivisions 
under the Public Employee Occupational Safety and Health program 
(PEOSH). The Commissioner of Health and Senior Services has authority 
for occupational health matters including the authority to conduct 
health inspections, investigations and related activities. However, all 
standards adoption

[[Page 160]]

and enforcement authority for both occupational safety and health remain 
the responsibility of the New Jersey Department of Labor.
    (b) Standards. New Jersey has adopted State standards identical to 
OSHA occupational safety and health standards promulgated as of December 
7, 1998, with differences only in its hazard communication and fire 
protection standards. The State plan includes a commitment to bring 
those two (2) standards into conformance with OSHA requirements and to 
update all standards within one year after plan approval. The State plan 
also provides that future OSHA standards and revisions will be adopted 
by the State within six (6) months of Federal promulgation, in 
accordance with 29 CFR 1953.21. Any emergency temporary standards will 
be adopted within 30 days of Federal adoption. The State will adopt 
Federal OSHA standards in accordance with the provisions of New Jersey 
statute, N.J.S.A. 52:14B-5; Federal standards shall be deemed to be duly 
adopted as State regulations upon publication by the Commissioner of 
Labor. The plan also provides for the adoption of alternative or 
different occupational safety and health standards by the Commissioner 
of Labor in consultation with the Commissioner of Health and Senior 
Services, the Commissioner of Community Affairs, and the Public Employee 
Occupational Safety and Health Advisory Board, where no Federal 
standards are applicable to the conditions or circumstances or where 
standards more stringent than the Federal are deemed advisable.
    (c) Variances. The plan includes provisions for the granting of 
permanent and temporary variances from State standards in terms 
substantially similar to the variance provisions contained in the OSH 
Act. The State provisions require employee notification of variance 
applications as well as employee rights to participate in hearings held 
on variance applications. Variances may not be granted unless it is 
established that adequate protection is afforded employees under the 
terms of the variance. The State has committed to amend its current 
variance procedures at N.J.A.C. 12:110-6 to bring them into conformance 
with Federal procedures at 29 CFR Part 1905 within two years after state 
plan approval.
    (d) Employee notice and discrimination protection. The plan provides 
for notification to employees of their protections and obligations under 
the plan by such means as a State poster, and required posting of 
notices of violations. The plan also provides for protection of 
employees against discharge or discrimination resulting from exercise of 
their rights under the State's Act in terms similar to section ll(c) of 
the OSH Act. However, employees have 180 days to file complaints of 
discrimination with the Commissioner of Labor; and the Commissioner is 
authorized to both investigate and order all appropriate relief. The 
monetary penalty for repeated violations (up to $70,000 per violation) 
may also be applicable to repeated employer acts of discrimination.
    (e) Inspections and enforcement. The plan provides for inspection of 
covered workplaces including inspections in response to employee 
complaints, by both the Department of Labor, and by the Department of 
Health and Senior Services with regard to health issues. If a 
determination is made that an employee complaint does not warrant an 
inspection, the complainant shall be notified, in writing, of such 
determination and afforded an opportunity to seek informal review of the 
determination. The plan also provides the opportunity for employer and 
employee representatives to accompany the inspector during an inspection 
for the purpose of aiding in the inspection. Employee(s) accompanying an 
inspector are entitled to normal wages for the time spent during the 
inspection. The plan also provides for right of entry for inspection and 
prohibition of advance notice of inspection. The Commissioner of Labor 
is responsible for all enforcement actions including the issuance of 
citations/Orders to Comply which must also specify the abatement period, 
posting requirements and the employer's and employee's right to contest 
any or all orders. Although the plan does not provide for initial (first 
instance) monetary sanctions, the Commissioner of Labor has the 
authority

[[Page 161]]

to impose civil administrative penalties of up to $7,000 per day for 
each violation, for failure to abate, if the time for compliance with an 
order has elapsed, and the employer has not contested and has not made a 
good faith effort to comply. Willful or repeated violations also are 
subject to civil administrative penalties of up to $70,000 for each 
violation. Penalties may be recovered with costs in a civil action 
brought under the New Jersey Penalty Enforcement Act (N.J.S.2A.:58-1 et 
seq.)
    (f) Review procedures. Under the plan, employers, employees and 
other affected parties may seek informal review with the Department of 
Labor relative to a notice of violation/Order to Comply, the 
reasonableness of the abatement period, any penalty and/or may seek 
formal administrative review with the Occupational Safety and Health 
Review Commission, a board appointed by the Governor and authorized 
under section 34:6A.42 of the New Jersey Act to hear and rule on appeals 
of orders to comply and any penalties proposed. Any employer, employee 
or employee representative affected by a determination of the 
Commissioner may file a contest within fifteen (15) working days of the 
issuance of an order to comply. The Review Commission will issue an 
order, based on a finding of fact, affirming, modifying, or vacating the 
commissioner's order to comply or the proposed penalty, or directing 
other appropriate relief, and the order shall become final 45 days after 
its issuance. Judicial review of the decision of the Review Commission 
may be sought at the Appellate Division of the Superior Court.
    (g) Staffing and Resources. The plan further provides assurances of 
a fully trained, adequate staff, including 20 safety and 7 health 
compliance officers for enforcement inspections, and 4 safety and 3 
health consultants to perform consultation services in the public 
sector, and 2 safety and 3 health training and education staff. The 
State has assured that it will continue to provide a sufficient number 
of adequately trained and qualified personnel necessary for the 
enforcement of standards as required by 29 CFR 1956.10. The State has 
also given satisfactory assurance of adequate funding to support the 
plan.
    (h) Records and reports. The plan provides that public employers in 
New Jersey will maintain appropriate records and make timely reports on 
occupational injuries and illnesses in a manner substantially identical 
to that required for private sector employers under Federal OSHA. New 
Jersey has assured that it will continue its participation in the Bureau 
of Labor Statistics Annual Survey of Injuries and Illnesses with regard 
to both private and public sector employers. The State will comply with 
the provisions of 29 CFR 1904.7 which allows full employee and employee 
representative access, including employee's names, to the log of 
workplace injuries and illnesses; and will amend its regulations 
accordingly. The plan also contains assurances that the Commissioner of 
Labor will provide reports to OSHA in such form as the Assistant 
Secretary may require, and that New Jersey will participate in OSHA's 
Integrated Management Information System.
    (i) Voluntary compliance programs. The plan provides that training 
will be provided to public employers and employees; seminars will be 
conducted to familiarize affected individuals with OSHA standards, 
requirements and safe work practices; an on-site consultation program in 
the public sector will be established to provide services to public 
employers who so desire; and, all State agencies and political 
subdivisions will be encouraged to develop and maintain self inspection 
programs as well as internal safety and health programs as an adjunct to 
but not a substitute for the Commissioner of Labor's enforcement.



Sec. 1956.61  Developmental Schedule.

    The New Jersey State plan is developmental. The following is a 
schedule of major developmental steps as provided in the plan:
    (a) Adopt standards identical to or at least as effective as all 
existing OSHA standards within one year after plan approval.
    (b) Adopt amendments to regulations regarding inspections, 
citations, and proposed penalties equivalent to 29

[[Page 162]]

CFR part 1903 within one year after plan approval.
    (c) Develop a five year strategic plan within two years after plan 
approval.
    (d) Develop field inspection reference manual and/or field 
operations manual within two years after plan approval.
    (e) Fully implement public employer/employee consultation, training 
and education program equivalent to 29 CFR part 1908 within three years 
after plan approval.
    (f) Adopt amendments to regulations regarding discrimination against 
employees equivalent to 29 CFR part 1977 within two years after plan 
approval.
    (g) Adopt amendments to regulations regarding variances equivalent 
to 29 CFR part 1905 within two years after plan approval.
    (h) Adopt amendments to regulations regarding record keeping 
equivalent to 29 CFR part 1904 within two years after plan approval.



Sec. 1956.62  Completion of developmental steps and certification. [Reserved]



Sec. 1956.63  Determination of operational effectiveness. [Reserved]



Sec. 1956.64  Location of plan for inspection and copying.

    A copy of the plan may be inspected and copied during normal 
business hours at the following locations: Office of State Programs, 
U.S. Department of Labor, Occupational Safety and Health Administration, 
200 Constitution Avenue, NW., Room N-3700, Washington, DC 20210; Office 
of the Regional Administrator, U.S. Department of Labor, Occupational 
Safety and Health Administration, 1201 Varick Street, Room 670, New 
York, New York 10014; and New Jersey Department of Labor, Division of 
Public Safety and Occupational Safety and Health, Office of Public 
Employees' Safety, P.O. Box 386, 225 East State Street, 8th Floor West, 
Trenton, New Jersey 08625-0386.



PART 1960--BASIC PROGRAM ELEMENTS FOR FEDERAL EMPLOYEE OCCUPATIONAL SAFETY AND HEALTH PROGRAMS AND RELATED MATTERS--Table of Contents




                           Subpart A--General

Sec.
1960.1  Purpose and scope.
1960.2  Definitions.

                        Subpart B--Administration

1960.6  Designation of agency safety and health officials.
1960.7  Financial management.
1960.8  Agency responsibilities.
1960.9  Supervisory responsibilities.
1960.10  Employee responsibilities and rights.
1960.11  Evaluation of occupational safety and health performance.
1960.12  Dissemination of occupational safety and health program 
          information.

                          Subpart C--Standards

1960.16  Compliance with OSHA standards.
1960.17  Alternate standards.
1960.18  Supplementary standards.
1960.19  Other Federal agency standards affecting occupational safety 
          and health.

                   Subpart D--Inspection and Abatement

1960.25  Qualifications of safety and health inspectors and agency 
          inspections.
1960.26  Conduct of inspections.
1960.27  Representatives of officials in charge and representatives of 
          employees.
1960.28  Employee reports of unsafe or unhealthful working conditions.
1960.29  Accident investigation.
1960.30  Abatement of unsafe or unhealthful working conditions.
1960.31  Inspections by OSHA.

  Subpart E--General Services Administration and Other Federal Agencies

1960.34  General provisions.
1960.35  National Institute for Occupational Safety and Health.

          Subpart F--Occupational Safety and Health Committees

1960.36  General provisions.
1960.37  Committee organization.

[[Page 163]]

1960.38  Committee formation.
1960.39  Agency responsibilities.
1960.40  Establishment committee duties.
1960.41  National committee duties.

                   Subpart G--Allegations of Reprisal

1960.46  Agency responsibility.
1960.47  Results of investigations.

                           Subpart H--Training

1960.54  Training of top management officials.
1960.55  Training of supervisors.
1960.56  Training of safety and health specialists.
1960.57  Training of safety and health inspectors.
1960.58  Training of collateral duty safety and health personnel and 
          committee members.
1960.59  Training of employees and employee representatives.
1960.60  Training assistance.

           Subpart I--Recordkeeping and Reporting Requirements

1960.66  Purpose, scope and general provisions.
1960.67  Log of occupational injuries and illnesses.
1960.68  Supplementary record of occupational injuries and illnesses.
1960.69  Annual summaries of Federal occupational injuries and 
          illnesses.
1960.70  Reporting of serious accidents.
1960.71  Location and utilization of records and reports.
1960.72  Access to records by Secretary.
1960.73  Retention of records.
1960.74  Agency annual reports.
1960.75--1960.77  [Reserved]

Subpart J--Evaulation of Federal Occupational Safety and Health Programs

1960.78  Purpose and scope.
1960.79  Self-evaluations of occupational safety and health programs.
1960.80  Secretary's evaluations of agency occupational safety and 
          health programs.

           Subpart K--Field Federal Safety and Health Councils

1960.84  Purpose.
1960.85  Role of the Secretary.
1960.86  Establishing councils.
1960.87  Objectives.
1960.88  Membership and participation.
1960.89  Organization.
1960.90  Operating procedures.

    Authority: Sections 19 and 24 of the Occupational Safety and Health 
Act of 1970 (84 Stat. 1609, 1614; 29 U.S.C. 668, 673), 5 U.S.C. 553, 
Secretary of Labor's Order No. 1-90 (55 FR 9033), and Executive Order 
12196.

    Source: 45 FR 69798, Oct. 21, 1980, unless otherwise noted.



                           Subpart A--General



Sec. 1960.1  Purpose and scope.

    (a) Section 19 of the Occupational Safety and Health Act (the Act) 
contains special provisions to assure safe and healthful working 
conditions for Federal employees. Under that section, it is the 
responsibility of the head of each Federal agency to establish and 
maintain an effective and comprehensive occupational safety and health 
program which is consistent with the standards promulgated under section 
6 of the Act. The Secretary of Labor (the Secretary), under section 19, 
is to report to the President certain evaluations and recommendations 
with respect to the programs of the various agencies, and the duties 
which section 24 of the Act imposes on the Secretary of Labor 
necessarily extend to the collection, compilation and analysis of 
occupational safety and health statistics from the Federal Government. 
The role of the General Services Administration in this area stems from 
its duties as the Government's principal landlord and from its specific 
safety and health responsibilities under 41 CFR part 101, subchapter D, 
Federal Property Management Regulations.
    (b) Executive Order 12196, Occupational Safety and Health Programs 
for Federal Employees, issued February 26, 1980, prescribes additional 
responsibilities for the heads of agencies, the Secretary, and the 
General Services Administrator. Among other duties, the Secretary is 
required to issue basic program elements in accordance with which the 
heads of agencies shall operate their safety and health programs. The 
purpose of this part is to issue these basic program elements. Although 
agency heads are required to operate a program in accordance with the 
basic program elements, those elements contain numerous provisions 
which, by their terms, permit agency heads the flexibility necessary to 
implement their programs in a manner

[[Page 164]]

consistent with their respective missions, sizes, and organizations. 
Moreover, an agency head, after consultation with agency employees or 
their representatives and with appropriate safety and health committees 
may request the Secretary to consider approval of alternate program 
elements; the Secretary, after consultation with the Federal Advisory 
Council on Occupational Safety and Health, may approve such alternate 
program elements.
    (c) Under Executive Order 12196, the Secretary is required to 
perform various services for the agencies, including consultation, 
training, recordkeeping, inspections, and evaluations. Agencies are 
encouraged to seek such assistance from the Secretary as well as advice 
on how to comply with the basic program elements and operate effective 
occupational safety and health programs. Upon the request of an Agency, 
the Office of Federal Agency Safety and Health Programs will review 
proposed agency plans for the implementation of program elements.
    (d) Section 19 of the Act and the Executive Order require specific 
opportunities for employee participation in the operation of agency 
safety and health programs. The manner of fulfilling these requirements 
is set forth in part in these program elements. These requirements are 
separate from but consistent with the Federal Service Labor Management 
Relations Statute (5 U.S.C. 71) and regulations dealing with labor-
management relations within the Federal Government.
    (e) Executive Order 12196 and these basic program elements apply to 
all agencies of the Executive Branch. They apply to all Federal 
employees. They apply to all working conditions of Federal employees 
except those involving uniquely military equipment, systems, and 
operations.
    (f) No provision of the Executive Order or this part shall be 
construed in any manner to relieve any private employer, including 
Federal contractors, or their employees of any rights or 
responsibilities under the provisions of the Act, including compliance 
activities conducted by the Department of Labor or other appropriate 
authority.
    (g) Federal employees who work in establishments of private 
employers are covered by their agencies' occupational safety and health 
programs. Although an agency may not have the authority to require 
abatement of hazardous conditions in a private sector workplace, the 
agency head must assure safe and healthful working conditions for his/
her employees. This shall be accomplished by administrative controls, 
personal protective equipment, or withdrawal of Federal employees from 
the private sector facility to the extent necessary to assure that the 
employees are protected.

[45 FR 69798, Oct. 21, 1980, as amended at 60 FR 34852, July 5, 1995]



Sec. 1960.2  Definitions.

    (a) The term Act means the Occupational Safety and Health Act of 
1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.).
    (b) The term agency for the purposes of this part means an Executive 
Department, as defined in 5 U.S.C. 101, or any employing unit or 
authority of the Executive Branch of the Government. For the purposes of 
this part to the extent it implements section 19 of the Act, the term 
agency includes the United States Postal Service. By agreement between 
the Secretary of Labor and the head of an agency of the Legislative or 
Judicial Branches of the Government, these regulations may be applicable 
to such agencies.
    (c) The term agency liaison means an agency person appointed with 
full authority and reponsibility to represent the occupant agency 
management with the official in charge of a facility or installation 
such as a GSA Building Manager.
    (d) The term building manager means the person who manages one or 
several buildings under the authority of a Federal agency. For example, 
a building manager may be the GSA person who manages building(s) for 
GSA.
    (e) As used in Executive Order 12196, the term consultation with 
representatives of the employees thereof shall include such 
consultation, conference, or negotiation with representatives of agency 
employees as is consistent with the Federal Service Labor Management

[[Page 165]]

Relations Statute (5 U.S.C. 71), or collective bargaining or other 
labor-management arrangements. As used in this part, the term 
representative of employees shall be interpreted with due regard for any 
obligation imposed by the aforementioned statute and any other labor-
management arrangement that may cover the employees involved.
    (f) The term Designated Agency Safety and Health Official means the 
individual who is responsible for the management of the safety and 
health program within an agency, and is so designated or appointed by 
the head of the agency pursuant to Sec. 1960.6 and the provisions of 
Executive Order 12196.
    (g) The term employee as used in this part means any person, other 
than members of the Armed Forces, employed or otherwise suffered, 
permitted, or required to work by an agency as the latter term is 
defined in paragraph (b) of this section.
    (h) The term establishment means a single physical location where 
business is conducted or where services or operations are performed. 
Where distinctly separate activities are performed at a single physical 
location, each activity shall be treated as a separate establishment. 
Typically, an establishment as used in this part refers to a field 
activity, regional office, area office, installation, or facility.
    (i) The term uniquely military equipment, systems, and operations 
excludes from the scope of the order the design of Department of Defense 
equipment and systems that are unique to the national defense mission, 
such as military aircraft, ships, submarines, missiles, and missile 
sites, early warning systems, military space systems, artillery, tanks, 
and tactical vehicles; and excludes operations that are uniquely 
military such as field maneuvers, naval operations, military flight 
operations, associated research test and development activities, and 
actions required under emergency conditions. The term includes within 
the scope of the Order Department of Defense workplaces and operations 
comparable to those of industry in the private sector such as: Vessel, 
aircraft, and vehicle repair, overhaul, and modification (except for 
equipment trials); construction; supply services; civil engineering or 
public works; medical services; and office work.
    (j) The term incidence rates means the number of injuries and 
illnesses, or lost workdays, per 100 full-time workers. Rates are 
calculated as

N x 200,000 / EH

N = number of injuries and illnesses, or number of lost workdays.
EH = total hours worked by all employees during a month, a quarter, or 
fiscal year.
200,000 = base for 100 full-time equivalent workers (working 40 hours 
per week, 50 weeks per year).

    (k) The term inspection means a comprehensive survey of all or part 
of a workplace in order to detect safety and health hazards. Inspections 
are normally performed during the regular work hours of the agency, 
except as special circumstances may require. Inspections do not include 
routine, day-to-day visits by agency occupational safety and health 
personnel, or routine workplace surveillance of occupational health 
conditions.
    (l) Categories of injuries/illnesses/fatalities--(1) Injury 
(Traumatic). A wound or other condition of the body caused by external 
force, including stress or strain. The injury is identifiable as to time 
and place of occurrence and member or function of the body affected, and 
is caused by a specific event or incident or series of events or 
incidents within a single day or work shift.
    (2) Illness/disease (occupational). A physiological harm or loss of 
capacity produced by systemic infection; continued or repeated stress or 
strain; exposure to toxins, poisons, fumes, etc.; or other continued and 
repeated exposures to conditions of the work environment over a long 
period of time. For practical purposes, an occupational illness/disease 
is any reported condition which does not meet the definition of injury 
(traumatic).
    (3) Fatality. Death resulting from an injury (traumatic) or illness/
disease (occupational).
    (4) The term lost time case means a nonfatal traumatic injury that 
causes any loss of time from work beyond the day or shift it occurred; 
or a nonfatal nontraumatic illness/disease that causes disability at any 
time.

[[Page 166]]

    (5) No-lost time case. A nonfatal injury (traumatic) or illness/
disease (occupational) that does not meet the definition of lost time 
case.
    (6) Catastrophe. An accident resulting in five or more agency and/or 
nonagency people being hospitalized for inpatient care.
    (m) The term representative of management means a supervisor or 
management official as defined in the applicable labor-management 
relations program covering the affected employees.
    (n)-(p) [Reserved]
    (q) The term Safety and Health Inspector means a safety and/or 
occupational health specialist or other person authorized pursuant to 
Executive Order 12196, section 1-201(g), to carry out inspections for 
the purpose of subpart D of this part, a person having equipment and 
competence to recognize safety and/or health hazards in the workplace.
    (r) The term Safety and Health Official means an individual who 
manages the occupational safety and/or occupational health program at 
organizational levels below the Designated Agency Safety and Health 
Official.
    (s) The term Safety and Health Specialist means a person or persons 
meeting the Office of Personnel Management standards for such 
occupations, which include but are not limited to:

Safety and Occupational Health Manager/Specialist GS-018
Safety Engineer GS-803
Fire Prevention Engineer GS-804
Industrial Hygienist GS-690
Fire Protection and Prevention Specialist/Marshal GS-081
Health Physicist GS-1306
Occupational Medicine Physician GS-602
Occupational Health Nurse GS-610
Safety Technician GS-019
Physical Science Technician GS-1311
Environmental Health Technician GS-699
Air Safety Investigation Officer GS-1815
Aviation Safety Specialist GS-1825
Chemist GS-1320
Health Technician GS-645
Highway Safety Manager GS-2125


or equally qualified military, agency, or nongovernment personnel. The 
agency head shall be responsible for determination and certification of 
equally qualified personnel.
    (t) The term workplace means a physical location where the agency's 
work or operations are performed.
    (u) The term imminent danger means any conditions or practices in 
any workplace which are such that a danger exists which could reasonably 
be expected to cause death or serious physical harm immediately or 
before the imminence of such danger can be eliminated through normal 
procedures.
    (v) The word serious as used in serious hazard, serious violation or 
serious condition means a hazard, violation or condition such that there 
is a substantial probability that death or serious physical harm could 
result.
    (w) The term certified safety and health committee means an agency 
safety and health committee that meets the provisions of section 1-3 of 
Executive Order 12196 and of this part, as listed and attested to by the 
head of each agency in writing to the Secretary.
    (x) The term reprisal as used in this part means any act of 
restraint, interference, coercion or discrimination against an employee 
for exercising his or her rights under Executive Order 12196 and this 
part, or for participating in the agency's safety and health program.

[45 FR 69798, Oct. 21, 1980, as amended at 49 FR 3078, Jan. 25, 1984; 50 
FR 40269, Oct. 2, 1985; 51 FR 28378, Aug. 7, 1986]



                        Subpart B--Administration



Sec. 1960.6  Designation of agency safety and health officials.

    (a) The head of each agency shall designate an official with 
sufficient authority and responsibility to represent effectively the 
interest and support of the agency head in the management and 
administration of the agency occupational safety and health program. 
This Designated Agency Safety and Health Official should be of the rank 
of Assistant Secretary, or of equivalent rank, or equivalent degree of 
responsibility, and shall have sufficient headquarters staff with the 
necessary training and experience. The headquarters staff should report 
directly to, or have appropriate access to, the Designated Agency Safety 
and Health Official, in order to carry out the responsibilities under 
this part.
    (b) The Designated Agency Safety and Health Official shall assist 
the agency head in establishing:

[[Page 167]]

    (1) An agency occupational safety and health policy and program to 
carry out the provisions of section 19 of the Act, Executive Order 
12196, and this part;
    (2) An organization, including provision for the designation of 
safety and health officials at appropriate levels, with adequate budgets 
and staffs to implement the occupational safety and health program at 
all operational levels;
    (3) A set of procedures that ensures effective implementation of the 
agency policy and program as required by section 19 of the Act, 
Executive Order 12196, and the program elements of this part, 
considering the mission, size, and organization of the agency;
    (4) Goals and objectives for reducing and eliminating occupational 
accidents, injuries, and illnesses;
    (5) Plans and procedures for evaluating the agency's occupational 
safety and health program effectiveness at all operational levels; and
    (6) Priorities with respect to the factors which cause occupational 
accidents, injuries, and illnesses in the agency's workplaces so that 
appropriate corrective actions can be taken.
    (c) The agency head shall assure that safety and health officials 
are designated at each appropriate level with sufficient authority and 
responsibility to plan for and assure funds for necessary safety and 
health staff, equipment, materials, and training required to ensure 
implementation of an effective occupational safety and health program.



Sec. 1960.7  Financial management.

    (a) The head of each agency shall ensure that the agency budget 
submission includes appropriate financial and other resources to 
effectively implement and administer the agency's occupational safety 
and health program.
    (b) The Designated Agency Safety and Health Official, management 
officials in charge of each establishment, safety and health officials 
at all appropriate levels, and other management officials shall be 
responsible for planning, requesting resources, implementing, and 
evaluating the occupational safety and health program budget in 
accordance with the regulations of the Office of Management and Budget 
Circular A-11 (sections 13.2(f) and 13.5(f)) and other relevant 
documents.
    (c) Appropriate resources for an agency's occupational safety and 
health program shall include, but not be limited to:
    (1) Sufficient personnel to implement and administer the program at 
all levels, including necessary administrative costs such as training, 
travel, and personal protective equipment;
    (2) Abatement of unsafe or unhealthful working conditions related to 
agency operations or facilities;
    (3) Safety and health sampling, testing, and diagnostic and 
analytical tools and equipment, including laboratory analyses;
    (4) Any necessary contracts to identify, analyze, or evaluate unsafe 
or unhealthful working conditions and operations;
    (5) Program promotional costs such as publications, posters, or 
films;
    (6) Technical information, documents, books, standards, codes, 
periodicals, and publications; and
    (7) Medical surveillance programs for employees.



Sec. 1960.8  Agency responsibilities.

    (a) The head of each agency shall furnish to each employee 
employment and a place of employment which are free from recognized 
hazards that are causing or are likely to cause death or serious 
physical harm.
    (b) The head of each agency shall comply with the Occupational 
Safety and Health Administration standards applicable to the agency.
    (c) The head of each agency shall develop, implement, and evaluate 
an occupational safety and health program in accordance with the 
requirements of section 19 of the Act, Executive Order 12196, and the 
basic program elements prescribed in this part, or approved alternate 
program elements.
    (d) The head of each agency shall acquire, maintain, and require the 
use of approved personal protective equipment, approved safety 
equipment, and other devices necessary to protect employees.
    (e) In order to provide essential specialized expertise, agency 
heads shall authorize safety and health personnel

[[Page 168]]

to utilize such expertise from whatever source available, including but 
not limited to other agencies, professional groups, consultants, 
universities, labor organizations, and safety and health committees.



Sec. 1960.9  Supervisory responsibilities.

    Employees who exercise supervisory functions shall, to the extent of 
their authority, furnish employees employment and a place of employment 
which are free from recognized hazards that are causing or are likely to 
cause death or serious physical harm. They shall also comply with the 
occupational safety and health standards applicable to their agency and 
with all rules, regulations, and orders issued by the head of the agency 
with respect to the agency occupational safety and health program.



Sec. 1960.10  Employee responsibilities   and rights.

    (a) Each employee shall comply with the standards, rules, 
regulations, and orders issued by his/her agency in accordance with 
section 19 of the Act, Executive Order 12196, and this part which are 
applicable to his/her own actions and conduct.
    (b) Employees shall use safety equipment, personal protective 
equipment, and other devices and procedures provided or directed by the 
agency and necessary for their protection.
    (c) Employees shall have the right to report unsafe and unhealthful 
working conditions to appropriate officials.
    (d) Employees shall be authorized official time to participate in 
the activities provided for in section 19 of the Act, Executive Order 
12196, this part, and the agency occupational safety and health program.



Sec. 1960.11  Evaluation of occupational safety and health performance.

    Each agency head shall ensure that any performance evaluation of any 
management official in charge of an establishment, any supervisory 
employee, or other appropriate management official, measures that 
employee's performance in meeting requirements of the agency 
occupational safety and health program, consistent with the employee's 
assigned responsibilities and authority, and taking into consideration 
any applicable regulations of the Office of Personnel Management or 
other appropriate authority. The recognition of superior performance in 
discharging safety and health responsibilities by an individual or group 
should be encouraged and noted.



Sec. 1960.12  Dissemination of occupational safety and health program information.

    (a) Copies of the Act, Executive Order 12196, program elements 
published in this part, details of the agency's occupational safety and 
health program, and applicable safety and health standards shall be made 
available upon request to employees or employee representatives for 
review.
    (b) A copy of the agency's written occupational safety and health 
program applicable to the establishment shall be made available to each 
supervisor, each occupational safety and health committee member, and to 
employee representatives.
    (c) Each agency shall post conspicuously in each establishment, and 
keep posted, a poster informing employees of the provisions of the Act, 
Executive Order 12196, and the agency occupational safety and health 
program under this part. The Department of Labor will furnish the core 
text of a poster to agencies. Each agency shall add the following items:
    (1) Details of the agency's procedures for responding to reports by 
employees of unsafe or unhealthful working conditions, and to 
allegations of discrimination or reprisal due to participation in safety 
and/or health activities;
    (2) The location where employees may obtain information about the 
agency's occupational safety and health program, including the full text 
of agency occupational safety and health standards, and
    (3) Relevant information about any agency safety and health 
committees.

Such posters and additions shall not be altered, defaced, or covered by 
other material.
    (d) A copy of the agency's poster shall be provided to the 
Secretary. If the agency needs assistance and advice on the content and 
development of the

[[Page 169]]

poster, such shall be requested of the Secretary prior to printing and 
distribution.
    (e) Agency heads shall promote employee awareness of occupational 
safety and health matters through their ordinary information channels, 
such as newsletters, bulletins and handbooks.



                          Subpart C--Standards



Sec. 1960.16  Compliance with OSHA   standards.

    Each agency head shall comply with all occupational safety and 
health standards issued under section 6 of the Act, or with alternate 
standards issued pursuant to this subpart. In complying with section 6 
standards, an agency may, upon prior notification to the Secretary, 
prescribe and enforce more stringent permissible exposure levels or 
threshhold limit values and may require more frequent monitoring of 
exposures without recourse to the approval procedures for alternate 
standards described in Sec. 1960.17. In addition, after consultation 
with employees and safety and health committees and prior notification 
to the Secretary, an agency may utilize the latest edition of a 
reference standard if it is more stringent than the section 6 standard. 
After notification, the Secretary may require the use of the approval 
procedures for alternate standards for any of the situations described 
in this paragraph.



Sec. 1960.17  Alternate standards.

    An agency head may apply an alternate standard where deemed 
necessary, and shall, after consultation with employees or their 
representatives, including appropriate occupational safety and health 
committees, notify the Secretary and request approval of such alternate 
standards.
    (a) Any request by the head of the agency for an alternate standard 
shall be transmitted to the Secretary.
    (b) Any such request for an alternate standard shall not be approved 
by the Secretary unless it provides equivalent or greater protection for 
affected employees. Any such request shall include:
    (1) A statement of why the agency cannot comply with the OSHA 
standard or wants to adopt an alternate standard;
    (2) A description of the alternate standard;
    (3) An explanation of how the alternate standard provides equivalent 
or greater protection for the affected employees;
    (4) A description of interim protective measures afforded employees 
until a decision is rendered by the Secretary of Labor; and
    (5) A summary of written comments, if any, from interested 
employees, employee representatives, and occupational safety and health 
committees.



Sec. 1960.18  Supplementary standards.

    (a) In addition to complying with emergency temporary standards 
issued under section 6 of the Act, an agency head shall adopt such 
emergency temporary and permanent supplementary standards as necessary 
and appropriate for application to working conditions of agency 
employees for which there exists no appropriate OSHA standards. In order 
to avoid any possible duplication of effort, the agency head should 
notify the Secretary of the subject matter of such standard when the 
development of the standard begins.
    (b) The agency head shall send a copy of the final draft of the 
permanent supplementary standard to the Secretary prior to official 
adoption by the agency, along with any written comments on the standard 
from interested employees, employee representatives, and occupational 
safety and health committees. If the Secretary finds the permanent 
supplementary standard to be adopted inconsistent with OSHA standards, 
or inconsistent with OSHA enforcement practices under section 5(a)(1) of 
the Act, the Secretary shall have 15 working days in which to notify the 
head of the agency of this finding. In such a case, the supplementary 
standard shall not be adopted, but the agency will be afforded an 
opportunity to resubmit a revised standard that is designed to provide 
adequate protection and is consistent with OSHA standards. Upon request 
of the agency head, the Secretary shall offer to the agency technical 
assistance in the development of the supplemental standard.

[[Page 170]]



Sec. 1960.19  Other Federal agency standards affecting occupational safety and health.

    (a) Where employees of different agencies engage in joint 
operations, and/or primarily report to work or carry out operations in 
the same establishment, the standards adopted under Sec. 1960.17 or 
Sec. 1960.18 of the host agency shall govern.
    (b) There are situations in which the head of an agency is required 
to comply with standards affecting occupational safety and health issued 
by a Federal agency other than OSHA. For example, standards issued by 
the Federal Aviation Administration, the Department of Energy, or the 
General Services Administration may be applicable to certain Federal 
workplaces. Nothing in this subpart affects the duty of any agency head 
to comply with such standards. In addition, agency heads should comply 
with other standards issued by Federal agencies which deal with 
hazardous working conditions, but for which OSHA has no standards.
    (c) Although it is not anticipated that standards of other Federal 
agencies will conflict with OSHA standards, should such conflict occur, 
the head of the agency shall inform the other Federal agency and the 
Secretary so that joint efforts to resolve the issues may be undertaken. 
However, until conflicts are resolved, agencies shall comply with the 
more protective of the conflicting standards.



                   Subpart D--Inspection and Abatement



Sec. 1960.25  Qualifications of safety and health inspectors and agency inspections.

    (a) Executive Order 12196 requires that each agency utilize as 
inspectors ``personnel with equipment and competence to recognize 
hazards.'' Inspections shall be conducted by inspectors qualified to 
recognize and evaluate hazards of the working environment and to suggest 
general abatement procedures. Safety and health specialists as defined 
in Sec. 1960.2(s), with experience and/or up-to-date training in 
occupational safety and health hazard recognition and evaluation are 
considered as meeting the qualifications of safety and health 
inspectors. For those working environments where there are less complex 
hazards, such safety and health specializations as cited above may not 
be required, but inspectors in such environments shall have sufficient 
documented training and/or experience in the safety and health hazards 
of the workplace involved to recognize and evaluate those particular 
hazards and to suggest general abatement procedures. All inspection 
personnel must be provided the equipment necessary to conduct a thorough 
inspection of the workplace involved.
    (b) Each agency which has workplaces containing information 
classified in the interest of national security shall provide access to 
safety and health inspectors who have obtained the appropriate security 
clearance.
    (c) All areas and operations of each workplace, including office 
operations, shall be inspected at least annually. More frequent 
inspections shall be conducted in all workplaces where there is an 
increased risk of accident, injury, or illness due to the nature of the 
work performed. Sufficient unannounced inspections and unannounced 
follow-up inspections should be conducted by the agency to ensure the 
identification and abatement of hazardous conditions.
    (d) When situations arise involving multiple agencies' 
responsibilities for conditions affecting employee safety and health, 
coordination of inspection functions is encouraged.



Sec. 1960.26  Conduct of inspections.

    (a) Preparation. (1) Prior to commencement of the inspection, the 
Safety and Health Inspector shall be provided all available relevant 
information which pertains to the occupational safety and health of the 
workplace to be inspected, including safety and health hazard reports, 
injury and illness records, previous inspection reports, and reports of 
unsafe and unhealthful working conditions.
    (2) The Safety and Health Inspector shall determine in advance, 
where possible, the actual work procedures and conditions to be 
inspected, in order to have the proper equipment available to conduct an 
effective inspection.

[[Page 171]]

    (b) Inspection. (1) For the purpose of assuring safe and healthful 
working conditions for employees of agencies, the head of the agency 
shall authorize safety and/or health inspectors: To enter without delay, 
and at reasonable times, any building, installation, facility, 
construction site, or other area, workplace, or environment where work 
is performed by employees of the agency; to inspect and investigate 
during regular working hours and at other reasonable times, and within 
reasonable limits and in a reasonable manner, any such place of 
employment and all pertinent conditions, structures, machines, 
apparatus, devices, equipment, and materials therein, and to question 
privately any agency employee, and/or any agency supervisory employee, 
and/or any official in charge of an establishment.
    (2) If there are no authorized representatives of employees, the 
inspector shall consult with a reasonable number of employees during the 
walkaround.
    (3) When, in the opinion of the inspector, it is necessary to 
conduct personal monitoring (sampling) of employee's work environments, 
the inspector may request employees to wear reasonable and necessary 
personal monitoring devices, e.g., noise dosimeters and air sampling 
pumps, for periods determined by the inspector to be necessary for 
complete and effective sampling of the environment.
    (4) Upon request of the inspector, the employer shall encourage 
employees to wear the personal environmental monitoring devices during 
an inspection.
    (5) Whenever and as soon as it is concluded on the basis of an 
inspection that a danger exists which could reasonably be expected to 
cause death or serious physical harm immediately, the inspector shall 
inform the affected employees and official in charge of the workplace of 
the danger. The official in charge of the workplace, or a person 
empowered to act for that official, shall undertake immediate abatement 
and the withdrawal of employees who are not necessary for abatement of 
the dangerous conditions. In the event the official in charge of the 
workplace needs assistance to undertake full abatement, that official 
shall promptly contact the Designated Agency Safety and Health Official 
and other responsible agency officials, who shall assist the abatement 
effort. Safety and health committees shall be informed of all relevant 
actions and representatives of the employees shall be so informed.
    (6) At the conclusion of an inspection, the Safety and Health 
Inspector shall confer with the official in charge of the workplace or 
that official's representative, and with an appropriate representative 
of the employees of the establishment, and informally advise them of any 
apparent unsafe or unhealthful working conditions disclosed by the 
inspection. During any such conference, the official in charge of the 
workplace and the employee representative shall be afforded an 
opportunity to bring to the attention of the Safety and Health Inspector 
any pertinent information regarding conditions in the workplace.
    (c) Written reports and notices of unsafe or unhealthful working 
conditions. (1) The inspector shall, in writing, describe with 
particularity the procedures followed in the inspection and the findings 
which form the basis for the issuance of any Notice of Unsafe or 
Unhealthful Working Conditions.
    (2) Each agency shall establish a procedure for the prompt issuance 
of a Notice of Unsafe or Unhealthful Working Conditions. Such notices 
shall be issued not later than 15 days after completion of the 
inspection for safety violations or not later than 30 days for health 
violations. If there are compelling reasons why such notice cannot be 
issued within the 15 days or 30 days indicated, the persons described in 
paragraph (c)(2)(iii) of this section shall be informed of the reasons 
for the delay. Such procedure shall include the following:
    (i) Notices shall be in writing and shall describe with 
particularity the nature and degree of seriousness of the unsafe or 
unhealthful working condition, including a reference to the standard or 
other requirement involved;
    (ii) The notice shall fix a reasonable time for the abatement of the 
unsafe or unhealthful working condition; and

[[Page 172]]

    (iii) A copy of the notice shall be sent to the official in charge 
of the workplace, the employee representative who participated in the 
closing conference, and/or the safety and health committee of the 
workplace, if any.
    (3) Upon receipt of any notice of an unsafe or unhealthful working 
condition, the official in charge of a workplace shall immediately post 
such notice, or copy thereof, unedited, except for reason of national 
security, at or near each place an unsafe or unhealthful working 
condition referred to in the notice exists or existed. In addition, a 
notice shall be posted if any special procedures are in effect. Where, 
because of the nature of the workplace operations, it is not practicable 
to post the notice at or near each such place, such notice shall be 
posted, unedited, except for reason of national security, in a prominent 
place where it will be readily observable by all affected employees. For 
example, where workplace activities are physically dispersed, the notice 
may be posted at the location to which employees report each day. Where 
employees do not primarily work at or report to a single location, the 
notice may be posted at the location from which the employees operate to 
carry out their activities.
    (4) Each notice of an unsafe or unhealthful working condition, or a 
copy thereof, shall remain posted until the unsafe or unhealthful 
working condition has been abated or for 3 working days whichever is 
later. A copy of the notice will be filed and maintained for a period of 
five years after abatement at the establishment and made available to 
the Secretary upon request.

[45 FR 69798, Oct. 21, 1980; 45 FR 77003, Nov. 21, 1980]



Sec. 1960.27  Representatives of officials in charge and representatives of employees.

    (a) Safety and health inspectors shall be in charge of inspections 
and may interview any employee in private if the inspector deems it 
necessary. A representative of the official in charge of a workplace and 
a representative of employees shall be given an opportunity to accompany 
Safety and Health Inspectors during the physical inspection of any 
workplace, both to aid the inspection and to provide such 
representatives with more detailed knowledge of any existing or 
potential unsafe or unhealthful working conditions. The representative 
of employees shall be selected by the employees. Additional 
representatives of the official in charge and additional representatives 
of employees may accompany the Safety and Health Inspectors if it is 
determined by the inspector that such additional representatives will 
further aid the inspection. Different representatives of the employer 
and employees may be allowed to accompany the Inspector during each 
different phase of an inspection.
    (b) Safety and health inspectors shall be authorized to deny the 
right of accompaniment under this section to any person whose 
participation interferes with a fair and orderly inspection.
    (c) With regard to facilities classified in the interest of national 
security, only persons authorized to have access to such facilities 
shall be allowed to accompany a Safety and Health Inspector in such 
areas.
    (d) Safety and health inspectors shall consult with employees 
concerning matters of occupational safety and health to the extent 
deemed necessary for the conduct of an effective and thorough 
inspection. During the course of an inspection, any employee shall be 
afforded an opportunity to bring to the attention of the Safety and 
Health Inspector any unsafe or unhealthful working condition which the 
employee has reason to believe exists in the workplace.



Sec. 1960.28  Employee reports of unsafe or unhealthful working conditions.

    (a) The purpose of employee reports is to inform agencies of the 
existence of, or potential for, unsafe or unhealthful working 
conditions. A report under this part is not a grievance.
    (b) This section provides guidance in establishing a channel of 
communication between agency employees and those with responsibilities 
for safety and health matters, e.g., their supervisor, the agency safety 
and health officials, safety and health committees, safety and health 
inspectors, the head of the agency, or the Secretary. These

[[Page 173]]

channels of communication are intended to assure prompt analysis and 
response to reports of unsafe or unhealthful working conditions in 
accordance with the requirements of Executive Order 12196. Since many 
safety and health problems can be eliminated as soon as they are 
identified, the existence of a formal channel of communication shall not 
preclude immediate corrective action by an employee's supervisor in 
response to oral reports of unsafe or unhealthful working conditions 
where such action is possible. Nor should an employee be required to 
await the outcome of such an oral report before filing a written report 
pursuant to the provisions of this section.
    (c) Any employee or representative of employees, who believes that 
an unsafe or unhealthful working condition exists in any workplace where 
such employee is employed, shall have the right and is encouraged to 
make a report of the unsafe or unhealthful working condition to an 
appropriate agency safety and health official and request an inspection 
of such workplace for this purpose. The report shall be reduced to 
writing either by the individual submitting the report or, in the case 
of an oral notification, by the above official or other person 
designated to receive the reports in the workplace. Any such report 
shall set forth the grounds for the report and shall contain the name of 
the employee or representative of employees. Upon the request of the 
individual making such report, no person shall disclose the name of the 
individual making the report or the names of individual employees 
referred to in the report, to anyone other than authorized 
representatives of the Secretary. In the case of imminent danger 
situations, employees shall make reports by the most expeditious means 
available.
    (d) Reports received by the agency. (1) Each report of an existing 
or potential unsafe or unhealthful working condition should be recorded 
on a log maintained at the establishment. If an agency finds it 
inappropriate to maintain a log of written reports at the establishment 
level, it may avail itself of procedures set forth in Sec. 1960.71. A 
copy of each report received shall be sent to the appropriate 
establishment safety and health committee.
    (2) A sequentially numbered case file, coded for identification, 
should be assigned for purposes of maintaining an accurate record of the 
report and the response thereto. As a minimum, each establishment's log 
should contain the following information: date, time, code/reference/
file number, location of condition, brief description of the condition, 
classification (imminent danger, serious or other), and date and nature 
of action taken.
    (3) Executive Order 12196 requires that agency inspections be 
conducted within 24 hours for employee reports of imminent danger 
conditions, within three working days for potentially serious 
conditions, and within 20 working days for other than serious safety and 
health conditions. However, an inspection may not be necessary if, 
through normal management action and with prompt notification to 
employees and safety and health committees, the hazardous condition(s) 
identified can be abated immediately.
    (4) An employee submitting a report of unsafe or unhealthful 
conditions shall be notified in writing within 15 days if the official 
receiving the report determines there are not reasonable grounds to 
believe such a hazard exists and does not plan to make an inspection 
based on such report. A copy of each such notification shall be provided 
by the agency to the appropriate certified safety and health committee, 
where established under Executive Order 12196. An agency's inspection or 
investigation report, if any, shall be made available to the employee 
making the report within 15 days after completion of the inspection, for 
safety violations or within 30 days for health violations, unless there 
are compelling reasons, and shall be made available to the Secretary or 
the Secretary's authorized representative on request.
    (e) Reports received by the Secretary of Labor. (1) Agency safety 
and health programs must have provisions for responding to employees' 
reports of unsafe or unhealthful working conditions and the Secretary 
encourages employees to use agency procedures as the most expeditious 
means of achieving abatement of hazardous conditions. It

[[Page 174]]

is recognized, however, that employee reports may be received directly 
by the Secretary.
    (2) When such reports are received directly from an employee or 
employee representative, the Secretary shall, where a certified safety 
and health committee exists, forward the report to the agency for 
handling in accordance with procedures outlined in Sec. 1960.28(d). A 
copy of the response to the originator shall be sent to the Secretary.
    (3) Where there is no certified safety and health committee, or when 
requested by half the members of a committee, the Secretary may initiate 
an inspection or other appropriate action. When the Secretary determines 
that an inspection is warranted, the Secretary shall observe the same 
response times as required of the agencies under the Executive Order and 
Sec. 1960.28(d)(3). When the Secretary determines not to make an 
inspection, the report shall be forwarded to the agency for handling in 
accordance with procedures outlined in Sec. 1960.28(d). A copy of the 
response to the originator shall be sent to the Secretary.



Sec. 1960.29  Accident investigation.

    (a) While all accidents should be investigated, including accidents 
involving property damage only, the extent of such investigation shall 
be reflective of the seriousness of the accident.
    (b) In any case, each accident which results in a fatality or the 
hospitalization of five or more employees shall be investigated to 
determine the causal factors involved. Except to the extent necessary to 
protect employees and the public, evidence at the scene of an accident 
shall be left untouched until inspectors have an opportunity to examine 
it.
    (c) Any information or evidence uncovered during accident 
investigations which would be of benefit in developing a new OSHA 
standard or in modifying or revoking an existing standard should be 
promptly transmitted to the Secretary.
    (d) The investigative report of the accident shall include 
appropriate documentation on date, time, location, description of 
operations, description of accident, photographs, interviews of 
employees and witnesses, measurements, and other pertinent information. 
A copy of the investigative report required by this section shall be 
forwarded to the official in charge of the workplace, the appropriate 
safety and health committee, and the exclusive employee representative, 
if any. The investigative report shall be made available to the 
Secretary or his authorized representative on request.



Sec. 1960.30  Abatement of unsafe or unhealthful working conditions.

    (a) The agency shall ensure the prompt abatement of unsafe and 
unhealthful conditions. Where a Notice of an Unsafe or Unhealthful 
Working Condition has been issued, abatement shall be within the time 
set forth in the notice, or in accordance with the established abatement 
plan.
    (b) The procedures for correcting unsafe or unhealthful working 
conditions shall include a follow-up, to the extent necessary, to 
determine whether the correction was made. If, upon the follow-up, it 
appears that the correction was not made, or was not carried out in 
accordance with an abatement plan prepared pursuant to paragraph (c) of 
this section, the official in charge of the establishment and the 
appropriate safety and health committee shall be notified of the failure 
to abate.
    (c) The official in charge of the establishment shall promptly 
prepare an abatement plan with the appropriate participation of the 
establishment's Safety and Health Official or a designee, if in the 
judgment of the establishment official the abatement of an unsafe or 
unhealthful working condition will not be possible within 30 calendar 
days. Such plan shall contain an explanation of the circumstances of the 
delay in abatement, a proposed timetable for the abatement, and a 
summary of steps being taken in the interim to protect employees from 
being injured as a result of the unsafe or unhealthful working 
condition. A copy of the plan shall be sent to the safety and health 
committee, and, if no committee exists, to the representative of the 
employees. Any changes in an abatement plan will require the preparation 
of a new plan in accordance with the provisions of this section.

[[Page 175]]

    (d) When a hazard cannot be abated within the authority and 
resources of the official in charge of the establishment, that official 
shall request assistance from appropriate higher authority. The local 
safety and health official, any established committee and/or employee 
representatives, and all personnel subject to the hazard shall be 
advised of this action and of interim protective measures in effect, and 
shall be kept informed of subsequent progress on the abatement plan.
    (e) When a hazard cannot be abated without assistance of the General 
Services Administration or other Federal lessor agency, the occupant 
agency shall act with the lessor agency to secure abatement. Procedures 
for coordination with the General Services Administration are contained 
in subpart E of this part.



Sec. 1960.31  Inspections by OSHA.

    (a) The Secretary or the Secretary's representatives are authorized 
to conduct, when the Secretary deems necessary, announced or unannounced 
inspections in the following situations:
    (1) Where an agency has not established occupational safety and 
health committees or where committees no longer operate in conformance 
to the requirements of subpart F of this part;
    (2) In response to a request from half the membership of record of 
any certified safety and health committee; and
    (3) In response to an employee's report of an imminent danger 
situation, where there is a certified committee, but where the Secretary 
determines that neither the agency nor the committee has responded to 
the employee.
    (b) The Secretary's inspectors or evaluators are authorized: to 
enter without delay, and at reasonable times, any building, 
installation, facility, construction site, or other area, workplace, or 
environment where work is performed by employees of the agency; to 
inspect and investigate during regular working hours and at other 
reasonable times, and within reasonable limits and in a reasonable 
manner, any such place of employment, and all pertinent conditions, 
structures, machines, apparatus, devices, equipment, and materials 
therein, and to question privately any employee, any supervisory 
employee, and/or any official in charge of an establishment.
    (c) The Secretary may also make scheduled inspections as an integral 
part of OSHA's evaluation of an agency's safety and health program in 
accordance with subpart J of this part.
    (d) OSHA inspections shall follow the general format set forth for 
agency inspections in other applicable parts of this subpart.



  Subpart E--General Services Administration and Other Federal Agencies



Sec. 1960.34  General provisions.

    Within six months of the effective date of this part, the Secretary 
of Labor and the Administrator of the General Services Administration 
(GSA) shall initiate a study of conflicts that may exist in their 
standards concerning Federal buildings, leased space, products purchased 
or supplied, and other requirements affecting Federal employee safety 
and health. Both agencies shall establish and publish a joint procedure 
for resolving conflicting standards. All other Federal agencies that 
have authority for purchasing equipment, supplies, and materials, and 
for controlling Government space, as well as the leasing of space, shall 
also be subject to the requirements of this subpart, including 
publication of a procedure for resolving conflicting standards.
    (a) In order to assist agencies in carrying out their duties under 
section 19 of the Act, Executive Order 12196, and this part, the 
Administrator or the Administrator's designee shall:
    (1) Upon an agency's request, furnish for any owned or leased space 
offered to a Federal agency for occupancy:
    (i) A report of a recent pre-occupancy inspection to identify 
serious hazards or serious violations of OSHA standards or approved 
alternate standards, and
    (ii) A plan for abatement of the hazards and violations discovered;
    (2) Provide space which:
    (i) Meets any special safety and health requirements submitted by 
the requesting agency, and

[[Page 176]]

    (ii) Does not contain either serious hazards or serious violations 
of OSHA standards or approved alternate standards which cannot be 
abated;
    (3) Repair, renovate, or alter, upon an agency's request, owned or 
leased space in a planned and controlled manner to reduce or eliminate, 
whenever possible, any hazardous exposure to the occupant agency's 
employees;
    (4) Accompany, upon request, the Secretary or the Secretary's 
designee on any inspection or investigation of a facility subject to the 
authority of the General Services Administration. Requests made for this 
purpose shall, whenever possible, be made at the GSA regional level in 
order to facilitate prompt assistance;
    (5) Investigate, upon an official agency request, reports of unsafe 
or unhealthful conditions within the scope of GSA's responsibility. Such 
investigation, when requiring an on-site inspection, shall be completed 
within 24 hours for imminent danger situations, within three working 
days for potentially serious conditions, and within 20 working days for 
other safety and health risk conditions;
    (6) Abate unsafe or unhealthful conditions disclosed by reports, 
investigation or inspection within 30 calendar days or submit to the 
occupant agency's designated liaison official an abatement plan. Such 
abatement plan shall give priority to the allocation of resources to 
bring about prompt abatement of the conditions. (GSA shall publish 
procedures for abatement of hazards in the Federal Property Management 
Regulations--41 CFR part 101);
    (7) Establish an occupancy permit program which will regulate the 
types of activities and occupancies in facilities in order to avoid 
incompatible groupings, e.g., chemical or biological laboratories in 
office space. GSA shall seek to consolidate Federal laboratory 
operations in facilities designed for such purposes;
    (8) Ensure, insofar as possible, that agency safety and health 
problems still outstanding are resolved, or otherwise answered by 
acceptable alternatives prior to renegotiation of leases; and
    (9) Ensure that GSA or other Federal lessor agencies' building 
managers maintain a log of reports of unsafe or unhealthful conditions 
submitted by tenants to include: date of receipt of report, action 
taken, and final resolution.
    (b) Product safety. Agencies such as GSA, DOD, and others which 
procure and provide supplies, equipment, devices, and material for their 
own use or use by other agencies, except for the design of uniquely 
military products as set forth in Sec. 1960.2(i), shall establish and 
maintain a product safety program which:
    (1) Ensures that items procured will allow user agencies to use such 
products safely for their designed purpose and will facilitate user 
compliance with all applicable standards.
    (2) Requires that products meet the applicable safety and health 
requirements of Federal law and regulations issued thereunder;
    (3) Ensures that hazardous material will be labelled in accordance 
with current law or regulation to alert users, shippers, occupational 
safety and health, and emergency action personnel, and others, to basic 
information concerning flammability, toxicity, compatibility, first aid 
procedures, and normal as well as emergency handling and disposal 
procedures;
    (4) Ensures availability of appropriate safety rescue and personal 
protective equipment to supply user agencies. The writing of Federal 
procurement specifications will be coordinated by GSA with OSHA/NIOSH as 
needed to assure purchase of approved products;
    (5) Ensures that products recalled by the manufacturer, either 
voluntarily or by order from a regulatory authority, are removed from 
inventory. Each recall notice or order shall be forwarded to all 
agencies which have ordered such product from or through the procuring/
supplying Federal agency, e.g., GSA, DOD, etc.;
    (6) Includes preparation of FEDSTD 313, Material Safety Data Sheets 
(MSDS), involving all interested agencies in review to keep the standard 
current. MSDS provided by agencies or contractors shall meet the 
requirements of FEDSTD 313 and be furnished to DOD for filing and 
distribution.
    (c) In order to assist agencies in carrying out their duties under 
section 19 of the Act, Executive Order 12196, and

[[Page 177]]

this part, the DOD operates and maintains an automated system to 
receive, file, reproduce, and make available MSDS data to other Federal 
agencies through the Government Printing Office or the National 
Technical Information Services.
    (d) All Federal agencies shall use MSDS either provided by DOD, or 
acquired directly from suppliers, when purchasing hazardous materials 
(as defined in FEDSTD 313) for local use. These data will be used to 
develop detailed procedures to advise employees in the workplace of the 
hazards involved with the materials and to protect them therefrom.
    (e) Safety and health services. GSA will operate and maintain for 
user agencies the following services:
    (1) Listings in the ``Federal Supply Schedule'' of safety and health 
services and equipment which are approved for use by agencies when 
needed. Examples of such services are: Workplace inspections, training, 
industrial hygiene surveys, asbestos bulk sampling, and mobile health 
testing; examples of such equipment are: personal protective equipment 
and apparel, safety devices, and environmental monitoring equipment;
    (2) Rules for assistance in the preparation of agency ``Occupant 
Emergency Plans'' (formerly called ``Facility Self-Protection Plans''), 
to be published by GSA at 41 CFR part 101;
    (3) An effective maintenance program in the Interagency Motorpool 
System which will ensure the safety and health of Federal employees 
utilizing the vehicles. Critical items to be included are: Exhaust 
systems, brakes, tires, lights, steering, and passenger restraint or 
other crash protection systems; and
    (4) A rapid response system whereby agencies can alert GSA to unsafe 
or unhealthful items purchased or contracted for by GSA, which in turn 
will evaluate the reports, initiate corrective action, as appropriate, 
and advise use agencies of interim protective measures.



Sec. 1960.35  National Institute for Occupational Safety and Health.

    (a) The Director of the National Institute for Occupational Safety 
and Health (NIOSH) shall, upon request by the Secretary, assist in:
    (1) Evaluations of Federal agency safety and health programs;
    (2) Investigations of possible safety and health hazards and
    (3) Inspections resulting from employee or committee reports of 
unsafe or unhealthful working conditions.
    (b) The Director of NIOSH shall provide a Hazard Evaluation (HE) 
program for Federal agencies. This program shall be designed to respond 
to requests for assistance in determining whether or not safety or 
health hazards are present in a Federal workplace. Requests for such 
Hazard Evaluations may be submitted to the Director by:
    (1) The Secretary of Labor;
    (2) The Head of a Federal agency;
    (3) An agency safety and health committee if half the committee 
requests such service; and
    (4) Employees who are not covered by a certified safety and health 
committee.
    (c) The Director of NIOSH may assist agencies by providing hazard 
alerts, technical services, training materials and conducting training 
programs upon request by an agency and with reimbursement.



          Subpart F--Occupational Safety and Health Committees



Sec. 1960.36  General provisions.

    (a) The occupational safety and health committees described in this 
subpart are organized and maintained basically to monitor and assist an 
agency's safety and health program. These committees assist agencies to 
maintain an open channel of communication between employees and 
management concerning safety and health matters in agency workplaces. 
The committees provide a method by which employees can utilize their 
knowledge of workplace operations to assist agency management to improve 
policies, conditions, and practices.
    (b) Agencies may elect to establish safety and health committees 
meeting the minimum requirements contained in this subpart. Where such 
committees are not established or fail to meet the minimum requirements 
established

[[Page 178]]

by the Secretary, the Secretary is authorized by section 1-401(i) of 
Executive Order 12196 to conduct unannounced inspections of agency 
workplaces when the Secretary determines them necessary.



Sec. 1960.37  Committee organization.

    (a) For agencies which elect to utilize the committee concept, 
safety and health committees shall be formed at both the national level 
and, for agencies with field or regional offices, at appropriate levels 
within the agency. To realize exemption from unannounced OSHA 
inspections, an agency must form a committee at the national level and 
at any establishment or grouping of establishments that is to be exempt, 
keeping the Secretary advised of the locations and activities where such 
committees are functioning.
    (1) The principal function of the national level committee shall be 
to consult and provide policy advice on, and monitor the performance of, 
the agency-wide safety and health program.
    (2) Committees at other appropriate levels shall be established at 
agency establishments or groupings of establishments consistent with the 
mission, size and organization of the agency and its collective 
bargaining configuration. The agency shall form committees at the lowest 
practicable local level. The principal function of the establishment (or 
local) committees is to monitor and assist in the execution of the 
agency's safety and health policies and program at the workplaces within 
their jurisdiction. Any dispute over the meaning of the term 
``appropriate levels'' shall be resolved by the Secretary.
    (b) Committees shall have equal representation of management and 
nonmanagement employees, who shall be members of record.
    (1) Management members of both national level and establishment 
level committees shall be appointed in writing by the person empowered 
to make such appointments.
    (2) Nonmanagement members of establishment level committees shall 
represent all employees of the establishment and shall be determined 
according to the following rules:
    (i) Where employees are represented under collective bargaining 
arrangements, members shall be appointed from among those recommended by 
the exclusive bargaining representative;
    (ii) Where employees are not represented under collective bargaining 
arrangements, members shall be determined through procedures devised by 
the agency which provide for effective representation of all employees; 
and
    (iii) Where some employees of an establishment are covered under 
collective bargaining arrangements and others are not, members shall be 
representative of both groups.
    (3) Nonmanagement members of national level committees shall be 
determined according to the following rules:
    (i) Where employees are represented by organizations having 
exclusive recognition on an agency basis or by organizations having 
national consultation rights, some members shall be determined in 
accordance with the terms of collective bargaining agreements and some 
members shall be selected from those organizations having consultation 
rights, and
    (ii) Where employees are not represented by organizations meeting 
the criteria of paragraph (b)(3)(i) of this section, members shall be 
determined through procedures devised by the agency which provide for 
effective representation of all employees.
    (c) Committee members should serve overlapping terms. Such terms 
should be of at least two years duration, except when the committee is 
initially organized.
    (d) The committee chairperson shall be nominated from among the 
committee's members and shall be elected by the committee members. 
Management and nonmanagement members should alternate in this position. 
Maximum service time as chairperson should be two consecutive years.
    (e) Committees shall establish a regular schedule of meetings and 
special meetings shall be held as necessary; establishment level 
committees shall meet at least quarterly and national committees shall 
meet at least annually.
    (f) Adequate advance notice of committee meetings shall be furnished 
to employees and each meeting shall be

[[Page 179]]

conducted pursuant to a prepared agenda.
    (g) Written minutes of each committee meeting shall be maintained 
and distributed to each committee member, and upon request, shall be 
made available to employees and to the Secretary.



Sec. 1960.38  Committee formation.

    (a) Upon forming such committees, heads of agencies shall submit 
information to the Secretary concerning the existence, location, and 
coverage, in terms of establishments and population, of such committees, 
certifying to the Secretary that such committees meet the requirements 
of this subpart. The information submitted should include the name and 
telephone numbers of the chairperson of each committee, and should be 
updated annually as part of the annual report required by Sec. 1960.74 
to reflect any changes that may have occurred.
    (b) If, upon evaluation, the Secretary determines that the 
operations of a committee do not meet the requirements of this subpart, 
the Secretary shall notify the agency and identify the deficiencies to 
be remedied. If the agency does not satisfy the Secretary within 90 days 
that the committee meets the requirements of this subpart, the committee 
shall not be deemed a committee under Executive Order 12196 and this 
part.

[45 FR 69798, Oct. 21, 1980; 45 FR 77003, Nov. 21, 1980, as amended at 
49 FR 3080, Jan. 24, 1984]



Sec. 1960.39  Agency responsibilities.

    (a) Agencies shall make available to committees all agency 
information relevant and necessary to their duties, except where 
prohibited by law. Examples of such information include, but are not 
limited to: The agency's safety and health policies and program; human 
and financial resources available to implement the program; accident, 
injury, and illness data; epidemiological data; employee exposure 
monitoring data; Material Safety Data Sheets; inspection reports; 
reprisal investigation reports; abatement plans; NIOSH hazard evaluation 
reports; and internal and external evaluation reports.
    (b) Agencies shall provide all committee members appropriate 
training as required by subpart H of this part.



Sec. 1960.40  Establishment committee duties.

    (a) The safety and health committee is an integral part of the 
safety and health program, and helps ensure effective implementation of 
the program at the establishment level.
    (b) An establishment committee formed under this subpart shall, 
except where prohibited by law:
    (1) Monitor and assist the safety and health program at 
establishments under its jurisdiction and make recommendations to the 
official in charge on the operation of the program;
    (2) Monitor findings and reports of workplace inspections to confirm 
that appropriate corrective measures are implemented;
    (3) When requested by the agency Safety and Health Official, or when 
the committee deems it necessary for effective monitoring of agency 
establishment inspection procedures, participate in inspections of the 
establishment;
    (4) Review internal and external evaluation reports and make 
recommendations concerning the establishment safety and health program;
    (5) Review, and recommend changes, as appropriate, to procedures for 
handling safety and health suggestions and recommendations from 
employees;
    (6) When requested by the Designated Agency Safety and Health 
Official, or when the committee deems it necessary, comment on standards 
proposed pursuant to the provisions of subpart C of this part;
    (7) Monitor and recommend changes, as required, in the level of 
resources allocated and spent on the establishment safety and health 
program;
    (8) Review agency responses to reports of hazardous conditions, 
safety and health program deficiencies, and allegations of reprisal;
    (9) Report their dissatisfaction to the Secretary if half a 
committee determines there are deficiencies in the establishment's 
safety and health program or is not satisfied with the agency's reports 
of reprisal investigations; and

[[Page 180]]

    (10) Request the Secretary to conduct an evaluation or inspection if 
half the members of record are not satisfied with an agency's response 
to a report of hazardous working conditions.



Sec. 1960.41  National committee duties.

    National committees established under this subpart shall, except 
where prohibited by law:
    (a) Monitor performance of the agency safety and health program and 
make policy recommendations to the head of the agency on the operation 
of the program;
    (b) Monitor and assist in the development and operation of the 
agency's establishment committees. As the committee deems appropriate, 
monitor and review: Reports of inspections; internal and external 
evaluation reports; agency safety and health training programs; proposed 
agency standards; agency plans for abating hazards; and responses to 
reports of hazardous conditions; safety and health program deficiencies; 
and allegations of reprisal;
    (c) Monitor and recommend changes in the resources allocated to the 
entire agency safety and health program;
    (d) Report their dissatisfaction to the Secretary if half a 
committee determines there are deficiencies in the agency's safety and 
health program or is not satisfied with the agency's reports of reprisal 
investigations; and
    (e) Request the Secretary to conduct an evaluation or inspection if 
half the members of record are not satisfied with an agency's response 
to a report of hazardous working conditions.



                   Subpart G--Allegations of Reprisal



Sec. 1960.46  Agency responsibility.

    (a) The head of each agency shall establish procedures to assure 
that no employee is subject to restraint, interference, coercion, 
discrimination or reprisal for filing a report of an unsafe or 
unhealthful working condition, or other participation in agency 
occupational safety and health program activities, or because of the 
exercise by such employee on behalf of himself or herself or others of 
any right afforded by section 19 of the Act, Executive Order 12196, or 
this part. These rights include, among other, the right of an employee 
to decline to perform his or her assigned task because of a reasonable 
belief that, under the circumstances the task poses an imminent risk of 
death or serious bodily harm coupled with a reasonable belief that there 
is insufficient time to seek effective redress through normal hazard 
reporting and abatement procedures established in accordance with this 
part.
    (b) Based on the Secretary's evaluation of agencies' procedures for 
protecting employees from reprisal, the Secretary shall report to the 
President by September 30, 1982 his findings and recommendations for 
improvements in procedures for the investigation and resolution of 
allegations of reprisal.



Sec. 1960.47  Results of investigations.

    Each agency shall keep occupational safety and health committees 
advised of agency activity regarding allegations of reprisal and any 
agency determinations thereof. Agency officials shall provide copies of 
reprisal investigation findings, if any, to the Secretary and to the 
appropriate safety and health committee.



                           Subpart H--Training



Sec. 1960.54  Training of top management officials.

    Each agency shall provide top management officials with orientation 
and other learning experiences which will enable them to manage the 
occupational safety and health programs of their agencies. Such 
orientation should include coverage of section 19 of the Act, Executive 
Order 12196, the requirements of this part, and the agency safety and 
health program.



Sec. 1960.55  Training of supervisors.

    (a) Each agency shall provide occupational safety and health 
training for supervisory employees that includes: supervisory 
responsibility for providing and maintaining safe and healthful working 
conditions for employees, the agency occupational safety and health 
program, section 19 of the Act, Executive Order 12196, this part, 
occupational safety and health standards applicable to the assigned 
workplaces, agency

[[Page 181]]

procedures for reporting hazards, agency procedures for reporting and 
investigating allegations of reprisal, and agency procedures for the 
abatement of hazards, as well as other appropriate rules and 
regulations.
    (b) This supervisory training should include introductory and 
specialized courses and materials which will enable supervisors to 
recognize and eliminate, or reduce, occupational safety and health 
hazards in their working units. Such training shall also include the 
development of requisite skills in managing the agency's safety and 
health program within the work unit, including the training and 
motivation of subordinates toward assuring safe and healthful work 
practices.



Sec. 1960.56  Training of safety and health specialists.

    (a) Each agency shall provide occupational safety and health 
training for safety and health specialists through courses, laboratory 
experiences, field study, and other formal learning experiences to 
prepare them to perform the necessary technical monitoring, consulting, 
testing, inspecting, designing, and other tasks related to program 
development and implementation, as well as hazard recognition, 
evaluation and control, equipment and facility design, standards, 
analysis of accident, injury, and illness data, and other related tasks.
    (b) Each agency shall implement career development programs for 
their occupational safety and health specialists to enable the staff to 
meet present and future program needs of the agency.



Sec. 1960.57  Training of safety and health inspectors.

    Each agency shall provide training for safety and health inspectors 
with respect to appropriate standards, and the use of appropriate 
equipment and testing procedures necessary to identify and evaluate 
hazards and suggest general abatement procedures during or following 
their assigned inspections, as well as preparation of reports and other 
documentation to support the inspection findings.



Sec. 1960.58  Training of collateral duty safety and health personnel and committee members.

    Within six months after October 1, 1980, or on appointment of an 
employee to a collateral duty position or to a committee, each agency 
shall provide training for collateral duty safety and health personnel 
and all members of certified occupational safety and health committees 
commensurate with the scope of their assigned responsibilities. Such 
training shall include: The agency occupational safety and health 
program; section 19 of the Act; Executive Order 12196; this part; agency 
procedures for the reporting, evaluation and abatement of hazards; 
agency procedures for reporting and investigating allegations of 
reprisal, the recognition of hazardous conditions and environments; 
identification and use of occupational safety and health standards, and 
other appropriate rules and regulations.



Sec. 1960.59  Training of employees and employee representatives.

    (a) Each agency shall provide appropriate safety and health training 
for employees including specialized job safety and health training 
appropriate to the work performed by the employee, for example: 
Clerical; printing; welding; crane operation; chemical analysis, and 
computer operations. Such training also shall inform employees of the 
agency occupational safety and health program, with emphasis on their 
rights and responsibilities.
    (b) Occupational safety and health training for employees of the 
agency who are representatives of employee groups, such as labor 
organizations which are recognized by the agency, shall include both 
introductory and specialized courses and materials that will enable such 
groups to function appropriately in ensuring safe and healthful working 
conditions and practices in the workplace and enable them to effectively 
assist in conducting workplace safety and health inspections. Nothing in 
this paragraph shall be construed to alter training provisions provided 
by law, Executive Order, or collective bargaining arrangements.

[[Page 182]]



Sec. 1960.60  Training assistance.

    (a) Agency heads may seek training assistance from the Secretary of 
Labor, the National Institute for Occupational Safety and Health and 
other appropriate sources.
    (b) After the effective date of Executive Order 12196, the Secretary 
shall, upon request and with reimbursement, conduct orientation for 
Designated Agency Safety and Health Officials and/or their designees 
which will enable them to manage the occupational safety and health 
programs of their agencies. Such orientation shall include coverage of 
section 19 of the Act, Executive Order 12196, and the requirements of 
this part.
    (c) Upon request and with reimbursement, the Department of Labor 
shall provide each agency with training materials to assist in 
fulfilling the training needs of this subpart, including resident and 
field training courses designed to meet selected training needs of 
agency safety and health specialists, safety and health inspectors, and 
collateral duty safety and health personnel. These materials and courses 
in no way reduce each agency's responsibility to provide whatever 
specialized training is required by the unique characteristics of its 
work.
    (d) In cooperation with OPM, the Secretary will develop guidelines 
and/or provide materials for the safety and health training programs for 
high-level managers, supervisors, members of committees, and employee 
representatives.



           Subpart I--Recordkeeping and Reporting Requirements

    Source: 50 FR 40269, Oct. 2, 1985, unless otherwise noted.



Sec. 1960.66  Purpose, scope and general provisions.

    (a) The purpose of this subpart is to establish uniform requirements 
for the collection and compilation by agencies of occupational safety 
and health data, for proper evaluation and necessary corrective action 
and to assist the Secretary in meeting the requirement to develop and 
maintain an effective program of collection, compilation, and analysis 
of occupational safety and health statistics. The term ``incident'' as 
hereinafter used in this subpart shall include all occupational injuries 
and illnesses.
    (b) In order to perform his duties under section 19 of the Act and 
Executive Order 12196, particularly with respect to providing the 
President with current information about the Federal agency safety and 
health program, it is necessary that the Secretary be promptly informed 
of serious incidents involving agency employees as provided in 
Sec. 1960.70. Assistance to agencies in the investigation of such 
incidents is available pursuant to the provisions of Executive Order 
12196 and this subpart.
    (c) Each agency shall utilize the information collected through its 
management information system to identify unsafe and unhealthful working 
conditions, and to establish program priorities.
    (d) The Department of Labor shall provide Federal agencies with the 
OSHA Form 101, when requested, to meet the recordkeeping specified in 
Sec. 1960.68.
    (e) The provisions of this subpart are not intended to discourage 
agencies from utilizing recordkeeping and reporting forms which contain 
a more detailed breakdown of information than the form provided by the 
Department of Labor.
    (f) Retention and access of employee record shall be in accordance 
with 29 CFR 1910.20.
    (g) Information concerning occupational injuries and illnesses or 
accidents which, pursuant to statute or Executive Order, must be kept 
secret in the interest of national defense or foreign policy shall be 
recorded on separate forms. Such records shall not be submitted to the 
Department of Labor, but may be used by the appropriate Federal agency 
in evaluating the agency's program to reduce occupational injuries, 
illnesses and accidents.

[50 FR 40269, Oct. 2, 1985, as amended at 60 FR 34852, July 5, 1995]



Sec. 1960.67  Log of occupational injuries and illnesses.

    (a) Each Federal agency shall maintain a log of all occupational 
injuries

[[Page 183]]

and illnesses specified in Sec. 1960.67(c) for each establishment. 
Except as provided in Sec. 1960.71 (b) and (c), the log is to be 
maintained at the establishment.
    (b) Within six working days after receiving information of an 
occupational injury or illness, apporpriate information concerning such 
injury or illness shall be entered on the log. The format printed in 
OSHA publication 2014 or an agency form with at least the same 12 data 
elements shall be used for the log.
    (c) Any occupational injury, illness or fatality reported on a CA-1, 
CA-2, or CA-6 to OWCP shall be reported on the log.

[51 FR 28378, Aug. 7, 1986]



Sec. 1960.68  Supplementary record of occupational injuries and illnesses.

    In addition to the log of occupational injuries and illnesses 
provided for under Sec. 1960.67, each Federal agency shall maintain a 
supplementary record for each occupational injury and illness. The 
record shall be completed within six working days after the receipt of 
information that an occupational injury or illness has occurred. Each 
Federal agency shall complete OWCP Forms CA-1, CA-2, and CA-6 in the 
detail required by the forms and instructions provided by the Secretary 
(OSHA-2014), and may be used as the supplementary record. OSHA Form No. 
101 or an agency equivalent may be used as a supplementary record. Where 
OWCP forms are used as supplementary records, copies shall be maintained 
in the occupational safety and/or health office.

[51 FR 28379, Aug. 7, 1986]



Sec. 1960.69  Annual summaries of Federal occupational injuries and illnesses.

    (a) Each Federal agency, on a fiscal year basis, shall compile an 
annual summary of occupational injuries and illnesses as prescribed in 
OSHA publication 2014. The summaries shall be based on the log of 
occupational injuries and illnesses maintained pursuant to Sec. 1960.67.
    (b) At the agency's option, and consistent with the Privacy Act 
considerations and applicable collective bargaining agreements, the last 
page of the log of occupational injuries and illnesses may be posted as 
the annual summary of Federal occupational injuries and illnesses.

[51 FR 28379, Aug. 7, 1986]



Sec. 1960.70  Reporting of serious accidents.

    (a) Within 8 hours after the death of any employee from a work-
related incident or the in-patient hospitalization of three or more 
employees as a result of a work-related incident, the Federal Agency 
head or his/her designee shall orally report the fatality/multiple 
hospitalization by telephone or in person to the Area Office of the 
Occupational Safety and Health Administration (OSHA), U.S. Department of 
Labor, that is nearest to the site of the incident, or by using the OSHA 
toll-free central telephone number.
    (b) This requirement applies to each such fatality or 
hospitalization of three or more employees which occurs within thirty 
(30) days of an incident.
    (c) Exception: If the Federal Agency Head or designee does not learn 
of a reportable incident at the time it occurs and the incident would 
otherwise be reportable under paragraphs (a) and (b) of this section, 
the Federal Agency Head or designee shall make the report within 8 hours 
of the time the incident is reported to any agent or employee of the 
employer.
    (d) Each report required by this section shall relate the following 
information: Establishment name; location of incident; time of the 
incident; number of fatalities or hospitalized employees; contact 
person; phone number; and a brief description of the incident.
    (e) Agencies shall provide the Office of Federal Agency Programs 
with a summary report of each fatal and catastrophic accident 
investigation. The summaries shall address the date/time of accident, 
agency/establishment name and location, and consequences, description of 
operation and the accident, causal factors, applicable standards and 
their effectiveness, and agency corrective/preventive actions.

[60 FR 18994, Apr. 14, 1995]

[[Page 184]]



Sec. 1960.71  Location and utilization of records and reports.

    (a) The provisions of the section, dealing with the availability of 
information compiled pursuant to this subpart, are designed to guide 
agencies in providing agency employees and their representatives with 
the basic information necessary to assure that they can actively 
participate in an agency safety and health program. The provisions of 
this section are also designed to encourage agencies to allow agency 
safety and health inspectors to have direct access to the accident, 
injury and illness records of the establishments they are inspecting in 
order that they may better carry out their duties pursuant to subpart D 
of this part.
    (b) The log and supplementary record required by Sec. 1960.67 and 
Sec. 1960.68 shall be maintained at each establishment. Where, for 
reasons of efficient administration or practicality, an agency must 
maintain this record at a place other than at each establishment, such 
agency shall ensure that there is available at each establishment a copy 
of this record. This record shall be complete and as current as 
possible; in no case shall more than 3 months elapse between the 
recording of an illness or injury occurring in an establishment and the 
availability of records reflecting that injury or illness at that 
establishment.
    (c)(1) For agencies engaged in activities such as agriculture, 
construction, transportation, communication, and electric, gas and 
sanitary services, which may be physically dispersed, the log and 
supplementary records, or copies thereof, may be maintained at a place 
to which employees report each day.
    (2) For personnel who do not primarily report or work at a single 
establishment, and who are generally not supervised in their daily work, 
such as traveling employees, technicians, engineers, etc., the log and 
supplementary records, or copies thereof, may be maintained at the base 
from which personnel operate to carry out their activities.
    (d) Each Federal agency shall post a copy of its agency annual 
summary of Federal occupational injuries and illnesses for an 
establishment, as compiled pursuant to Sec. 1960.67 or 1960.69, at such 
establishment, not later than 45 calendar days after the close of the 
fiscal year or otherwise disseminate a copy of the annual summary for an 
establishment in written form to all employees of the establishment. 
Copies of the annual summary shall be posted for a minimum of 30 
consecutive days in a conspicuous place or places in the establishment 
where notices to employees are customarily posted. Where establishment 
activities are physically dispersed, the notice may be posted at the 
location to which employees report each day. Where employees do not 
primarily work at or report to a single location, the notice may be 
posted at the location from which the employees operate to carry out 
their activities. Each Federal agency shall take necessary steps to 
ensure that such summary is not altered, defaced, or covered by other 
material.
    (e) The head of each agency shall ensure access to establishment 
logs and annual summaries by the establishment's Occupational Safety and 
Health Committees, employees, former employees and employee 
representatives.

[50 FR 40269, Oct. 2, 1985, as amended at 51 FR 28379, Aug. 7, 1986]



Sec. 1960.72  Access to records by Secretary.

    The records required to be maintained under the provisions of this 
subpart shall also be available and made accessible to the Secretary of 
Labor, Secretary of Health and Human Services and their authorized 
representative.



Sec. 1960.73  Retention of records.

    The records and reports required to be maintained under the 
provisions of this subpart shall be retained by each agency for five 
years following the end of the fiscal year to which they relate, and any 
location including a Federal record retention center, to which the 
Secretary or his authorized representative would have reasonable access. 
In addition, records required by OSHA standards shall be retained in 
accordance with those standards.

[[Page 185]]



Sec. 1960.74  Agency annual reports.

    (a) The Act and E.O. 12196 require all Federal agency heads to 
submit to the Secretary an annual report on their agency's occupational 
safety and health program, containing such information as the Secretary 
prescribes.
    (1) Each agency shall submit to the Secretary by January 1 of each 
year a report describing the agency occupational safety and health 
program of the previous fiscal year and objectives for the current year. 
The report shall include a summary of the agency's self-evaluation 
findings as required by Sec. 1960.78(b).
    (2) Guidelines for agency annual reports to OSHA are prescribed in 
OSHA publication 2014. The Secretary shall notify agencies by January 1 
of any changes to the guidelines for the subsequent year's report.
    (3) The agency reports shall be used in the preparation of the 
Secretary's report to the President.
    (b) The Secretary shall submit to the President by October 1 of each 
year a summary report of the status of the occupational safety and 
health of Federal employees, based on agency reports, evaluations of 
individual agency progress and problems in correcting unsafe or 
unhealthful working conditions, and recommendations for improving their 
performance.



Secs. 1960.75-1960.77  [Reserved]



Subpart J--Evaluation of Federal Occupational Safety and Health Programs



Sec. 1960.78  Purpose and scope.

    (a) The purpose of this subpart is to establish a comprehensive 
program for the evaluation of Federal employee occupational safety and 
health programs. This subpart includes the responsibilities of agency 
heads in conducting self-evaluations of the effectiveness of their 
occupational safety and health programs, and the responsibilities of the 
Secretary in evaluating the extent to which each agency head has 
developed and implemented agency programs in accordance with the 
requirements of Executive Order 12196 and this part.
    (b) Agency heads shall develop and implement a program for 
evaluating the effectiveness of their agency's occupational safety and 
health program. An annual summary report shall be submitted to the 
Secretary covering self-evaluations conducted during the previous year.
    (c) The Secretary shall conduct a comprehensive evaluation of each 
Federal agency's occupational safety and health program. Evaluations 
shall be conducted on a regular schedule to determine the performance 
levels of each agency's program. The Secretary shall submit to the 
President each year: A summary report of the status of the occupational 
safety and health of Federal employees; Department of Labor evaluations, 
together with agency responses, of individual agency progress and 
problems in correcting unsafe and unhealthful working conditions, and 
recommendations for improving agency's performance.



Sec. 1960.79  Self-evaluations of occupational safety and health programs.

    Agency heads shall develop and implement a program of self-
evaluations to determine the effectiveness of their occupational safety 
and health programs. The self-evaluations are to include qualitative 
assessments of the extent to which their agency safety and health 
programs are:
    (a) Developed in accordance with the requirements set forth in 
Executive Order 12196 and this part and,
    (b) Implemented effectively in all agency field activities.

Agencies needing assistance in developing a self-evaluation program 
should contact the Secretary.



Sec. 1960.80  Secretary's evaluations of agency occupational safety and health programs.

    (a) In accordance with section 1-401(h), the Secretary shall develop 
a comprehensive program for evaluating an agency's occupational safety 
and health program. To accomplish this, the Secretary shall conduct:
    (1) A complete and extensive evaluation of all elements of an 
agency's occupational safety and health program on a regular basis;

[[Page 186]]

    (2) Special studies of limited areas of an agency's occupational 
safety and health program as deemed necessary by the Secretary; and
    (3) Field reviews and scheduled inspections of agency workplaces as 
deemed necessary by the Secretary.
    (b) The Secretary shall develop and distribute to Federal agencies 
detailed information on the Department of Labor's evaluation program. 
The information shall include, but is not limited to:
    (1) The major program elements included in a complete and extensive 
evaluation of an agency's occupational safety and health program;
    (2) The methods and factors used to determine the effectiveness of 
each element of an agency's program;
    (3) The factors used to define ``large'' or ``more hazardous'' 
Federal agencies, establishments, or operations;
    (4) The procedures for conducting evaluations including field visits 
and scheduled inspections; and
    (5) The reporting format for agency heads in submitting annual 
summaries of their self-evaluation programs.
    (c) Prior to the initiation of an agency evaluation, the Department 
of Labor will review the annual agency self-evaluation summary report. 
The Secretary will then develop a program evaluation plan before the 
initiation of an agency evaluation. A copy of the plan shall be 
furnished to the agency to be evaluated at the time of the notification 
of the evaluation.
    (d) To facilitate the evaluation process and to insure full 
understanding of the procedures to be followed and the support required 
from the agency, the Secretary, or the Secretary's representative, shall 
conduct an opening conference with the agency head or designee. At the 
opening conference, the Secretary's authority and evaluation plan will 
be explained.
    (e) The agency evaluation should be completed within 90 calendar 
days of the date of the opening conference.
    (f) A report of the evaluation shall be submitted to the agency head 
by the Secretary within 90 calendar days from the date of the closing 
conference.
    (g) Agency heads shall respond to the evaluation report within 60 
calendar days of receipt of the report.

[45 FR 69798, Oct. 21, 1980; 45 FR 77003, Nov. 21, 1980]



           Subpart K--Field Federal Safety and Health Councils



Sec. 1960.84  Purpose.

    (a) Executive Order 12196 provides that the Secretary shall 
``facilitate the exchange of ideas and information throughout the 
Government about occupational safety and health.''
    (b) Consistent with this objective, the Secretary will continue to 
sponsor and/or provide guidance for those Field Federal Safety and 
Health Councils now established and in operation, and establish new 
field councils as necessary. The field councils will consist primarily 
of qualified representatives of local area Federal field activities 
whose duties pertain to occupational safety and health, and also of 
representatives of recognized local labor organizations, or other 
civilian employee organizations, at local area Federal field activities. 
For the purpose of this subpart the definition of field activity will be 
provided by each agency.



Sec. 1960.85  Role of the Secretary.

    (a) The Secretary shall maintain liaison with agency heads to ensure 
that they encourage their field activities to participate actively in 
field council programs. To ensure maximum participation, the field 
councils' annual reports to the Secretary shall provide descriptions of 
the degree of management and employee participation by the defined 
Federal field activities. The Secretary shall annually furnish each 
agency head with a report consolidating the information received as to 
the participation of the agency's several field installations in field 
council activities.
    (b) The Secretary shall provide leadership and guidance and make 
available necessary equipment, supplies, and staff services to the Field 
Federal Safety and Health Councils to assist them in carrying out their 
responsibilities. The Secretary shall also provide consultative and 
technical services to

[[Page 187]]

field councils. These services shall involve aid in any phase of 
developing and planning programs; and in sponsoring, conducting or 
supporting safety and health training courses.



Sec. 1960.86  Establishing councils.

    (a) Those field councils established and in operation prior to the 
effective date of this subpart will continue to function without 
interruption provided they are operating in accordance with the 
provision of their charter and this subpart.
    (b) The Secretary may establish a council in any area where ten or 
more Federal establishments totaling 300 or more employees are located 
within an area having a radius of 50 miles, and there is substantial 
agreement among the agencies that such a council would be useful. In any 
such area where there is no council already established, a field 
representative of the Secretary may, upon his own initiative or at the 
request of any establishment within the area, contact representatives of 
all establishments within the area and encourage the organization of a 
field council.
    (c) After a new council has been organized, officers elected, and 
articles of organization drafted and accepted by the council membership, 
a formal request for recognition as a field council shall be sent to the 
Secretary. Upon approval of the Articles of Organization, a charter will 
be issued.
    (d) At the first general meeting of the council, committees should 
be appointed and the cooperation of all participants should be solicited 
to aid the functioning of committees and the successful accomplishment 
of the council's objectives.



Sec. 1960.87  Objectives.

    The basic objective of field councils is to facilitate the exchange 
of ideas and information to assist agencies to reduce the incidence, 
severity and cost of occupational accidents, injuries, and illnesses. 
Field councils shall act on behalf of the Secretary or his designees on 
occupational safety and health activities in carrying out within their 
respective geographic areas the following functions:
    (a) To act as a clearinghouse on information and data on 
occupational accidents, injuries, and illnesses and their prevention.
    (b) To plan, organize and conduct field council meetings or programs 
which will give technical advice and information on occupational safety 
and health to representatives of participating agencies and employee 
organizations.
    (c) To promote improvement of safety and health programs and 
organizations in each Federal agency represented or participating in 
council activities.
    (d) To promote coordination, cooperation, and sharing of resources 
and expertise to aid agencies with inadequate or limited resources. 
These objectives can be accomplished in a variety of ways. For example, 
field councils could organize and conduct training programs for employee 
representatives, collateral duty and professional safety and health 
personnel, coordinate or promote programs for inspections, or, on 
request, conduct inspections and evaluations of the agencies' safety and 
health programs.
    (e) To provide Federal Executive Boards, Federal Executive 
Associations, labor union organizations and other employee 
representatives with information on the administrative and technical 
aspects of safety and health programs.
    (f) To evaluate the safety and health problems peculiar to local 
conditions and facilitate solutions to these problems through council 
activities.
    (g) To develop a cooperative relationship with local community 
leaders by informing them of the existing functions and objectives of 
the council and by calling on them for support and participation in 
council meetings and activities.



Sec. 1960.88  Membership and participation.

    (a) Each field council shall consist of the designated 
representatives of local Federal activities appointed by their 
respective activity heads, after consultation with appropriate employee 
representatives and appropriate certified safety and health committees.

[[Page 188]]

    (b) Federal agency heads should encourage each field activity having 
responsibility for the safety and health of agency employees to 
participate in the programs of these councils.
    (c) Each activity head shall appoint an equal number of officially 
designated representatives (with designated alternates), from management 
and from nonmanagement employees, consistent with applicable collective 
bargaining arrangements.
    (d) Representatives shall be selected from individuals in the 
following categories:
    (1) Federal occupational safety and health professionals.
    (2) Related Federal professionals, or collateral duty personnel. 
This includes persons employed in professions or occupations related to 
or concerned with safety and health of employees.
    (3) Line management officials.
    (4) Representatives of recognized Federal labor or other employee 
organizations.
    (i) Where certified occupational safety and health committees exist, 
nonmanagement members of the committees shall be given the opportunity 
to select one individual for official appointment to field councils by 
the activity head.
    (ii) Where employees are represented by collective bargaining 
arrangements, but no committee exists, nonmanagement members of field 
councils shall be selected from among those recommended by the exclusive 
bargaining representatives for official appointment to field councils by 
the activity head.
    (iii) Where some employees in an activity are represented by 
collective bargaining arrangements and others are not, the agency head 
should solicit nominations for the agency's designated nonmanagement 
representative and alternate both from lawful labor organization(s) with 
collective bargaining status and from employees not represented through 
collective bargaining and should select from the nominees for official 
appointment as designated employee representatives on the field council.
    (e) Representatives from non-Federal organizations. Associate 
membership may be granted to any non-Federally employed person who 
demonstrated interest in occupational safety and health. An associate 
member has no voting rights and may not hold any office.
    (f) No maximum limitation shall be imposed by a council on itself, 
in regard to the numbers of personnel in any of the above categories 
that may attend meetings and/or participate in field council activities. 
An agency is free to have any number of individuals, in addition to the 
officially designated representatives participate in council activities.
    (g) Only officially designated agency representatives or their 
alternates shall have voting privileges. All representatives and 
participants shall serve without additional compensation.
    (h) Travel funds shall be made available equally to management and 
nonmanagement employee representatives.



Sec. 1960.89  Organization.

    (a) Field council officers shall include, as a minimum, a 
chairperson, vice chairperson, and secretary. Officers shall be elected 
for a one or two-year term on a calendar year basis by a majority vote 
of the designated representatives. Election of officers shall be held at 
least 60 days before the beginning of a calendar year. The election may 
be conducted at a regularly scheduled meeting or by letter ballot.
    (b) Each council shall notify the appropriate OSHA Regional Office 
and the Office of Federal Agency Safety and Health Programs of the name, 
agency address, and telephone number of each newly elected official.
    (c) Each council shall have an Executive Committee consisting of all 
elected officers, chairpersons of appointed committees and the immediate 
past chairperson of the field council.
    (d) In addition to the Executive Committee, each council shall have 
either a membership committee, a program committee and a finance 
committee, or a council official designated responsibility in these 
areas. Additional committees may be appointed by the chairperson for 
specific purposes as warranted.

[[Page 189]]



Sec. 1960.90  Operating procedures.

    (a) The Executive Committee of each council shall meet at least 45 
days before the beginning of each calendar year to approve an annual 
program for the council designed to accomplish the objectives and 
functions stated in Sec. 1960.87. In addition, the Executive Committee 
shall meet periodically to ensure that the meetings and other activities 
of the council are being conducted as outlined in the council schedule.
    (b) The council program shall include at least four meetings or 
activities per year dealing with occupational safety and health issues.
    (c) Each field council shall submit to the Secretary or his designee 
by March 15 of each year a report describing the activities and programs 
of the previous calender year and plans for the current year. In 
addition, the report shall address the participation and attendance of 
designated representatives of the council. The Office of Federal Agency 
Safety and Health Programs, OSHA, shall furnish guidelines to field 
councils concerning the preparation of this report.
    (d) Upon determination that a council is not operating in accordance 
with its charter and the provisions of this subpart, and after 
consultation with appropriate OSHA regional officials, the Secretary 
shall revoke the council's charter. Upon revocation of a charter, the 
council shall surrender all its government property to the appropriate 
OSHA regional official. Any continuing or future organization in the 
same geographical area shall not use the title Field Federal Safety and 
Health Council, or any derivation thereof, unless formally rechartered 
by the Secretary. Notification of revocation of a council's charter 
shall be sent to the chairperson, where identifiable, and to the 
appropriate OSHA Regional Office.



PART 1975--COVERAGE OF EMPLOYERS UNDER THE WILLIAMS-STEIGER OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970--Table of Contents




Sec.
1975.1  Purpose and scope.
1975.2  Basis of authority.
1975.3  Extent of coverage.
1975.4  Coverage.
1975.5  States and political subdivisions thereof.
1975.6  Policy as to domestic household employment activities in private 
          residences.

    Authority: Secs. 2, 3, 4, 8, Occupational Safety and Health Act of 
1970 (29 U.S.C. 651, 652, 653, 657); Secretary of Labor's Order No. 12-
71 (36 FR 8754).

    Source: 37 FR 929, Jan. 21, 1972, unless otherwise noted.



Sec. 1975.1  Purpose and scope.

    (a) Among other things, the Williams-Steiger Act poses certain 
duties on employers. This part has the limited purpose and scope of 
clarifying which persons are considered to be employers either as a 
matter of interpretation of the intent and terms of the Act or as a 
matter of policy appropriate to administering and enforcing the Act. In 
short, the purpose and scope of this part is to indicate which persons 
are covered by the Act as employers and, as such, subject to the 
requirements of the Act.
    (b) It is not the purpose of this part to indicate the legal effect 
of the Act, once coverage is determined. Section 4(b)(1) of the Act 
provides that the statute shall be inapplicable to working conditions to 
the extent they are subject to another Federal agency's exercise of 
different statutory authority affecting the occupational safety and 
health aspects of those conditions. Therefore, a person may be 
considered an employer covered by the Act, and yet standards issued 
under the Act respecting certain working conditions would not be 
applicable to the extent those conditions were subject to another 
agency's authority.



Sec. 1975.2  Basis of authority.

    The power of Congress to regulate employment conditions under the 
Williams-Steiger Occupational Safety and Health Act of 1970, is derived 
mainly from the Commerce Clause of the Constitution. (section 2(b), Pub. 
L. 91-596; U.S. Constitution, Art. I, Sec. 8, Cl. 3; ``United States v. 
Darby,'' 312 U.S. 100.) The reach of the Commerce Clause extends beyond 
Federal regulation of the channels and instrumentalities of

[[Page 190]]

interstate commerce so as to empower Congress to regulate conditions or 
activities which affect commerce even though the activity or condition 
may itself not be commerce and may be purely intrastate in character. 
(``Gibbons v. Ogden,'' 9 Wheat. 1, 195; ``United States v. Darby,'' 
supra; ``Wickard v. Filburn,'' 317 U.S. 111, 117; and ``Perez v. United 
States,'' 91 S. Ct. 1357 (1971).) And it is not necessary to prove that 
any particular intrastate activity affects commerce, if the activity is 
included in a class of activities which Congress intended to regulate 
because the class affects commerce. (``Heart of Atlanta Motel, Inc. v. 
United States,'' 379 U.S. 241; ``Katzenbach v. McClung,'' 379 U.S. 294; 
and ``Perez v. United States,'' supra.) Generally speaking, the class of 
activities which Congress may regulate under the commerce power may be 
as broad and as inclusive as Congress intends, since the commerce power 
is plenary and has no restrictions placed on it except specific 
constitutional prohibitions and those restrictions Congress, itself, 
places on it. (``United States v. Wrightwood Dairy Co.,'' 315 U.S. 110; 
and ``United States v. Darby,'' supra.) Since there are no specific 
constitutional prohibitions involved, the issue is reduced to the 
question: How inclusive did Congress intend the class of activities to 
be under the Williams-Steiger Act?



Sec. 1975.3  Extent of coverage.

    (a) Section 2(b) of the Williams-Steiger Occupational Safety and 
Health Act (Public Law 91-596) sets forth the purpose and policy of 
Congress in enacting this legislation. In pertinent part, that section 
reads as follows:

    (b) Congress declares it to be its purpose and policy, through the 
exercise of its powers to regulate commerce among the several States and 
with foreign nations and to provide for the general welfare, to assure 
so far as possible every working man and woman in the Nation safe and 
healthful working conditions and to preserve our human resources * * *


Congressman William Steiger described the scope of the Act's coverage in 
the following words during a discussion of the legislation on the floor 
of the House of Representatives:

    The coverage of this bill is as broad, generally speaking, as the 
authority vested in the Federal Government by the commerce clause of the 
Constitution (Cong. Rec., vol. 116, p. H-11899, Dec. 17, 1970)


The legislative history, as a whole, clearly shows that every amendment 
or other proposal which would have resulted in any employee's being left 
outside the protections afforded by the Act was rejected. The reason for 
excluding no employee, either by exemption or limitation on coverage, 
lies in the most fundamental of social purposes of this legislation 
which is to protect the lives and health of human beings in the context 
of their employment.
    (b) The Williams-Steiger Act includes special provisions (sections 
19 and 18(c)(6)) for the protection of Federal and State employees to 
whom the Act's other provisions are made inapplicable under section 
3(5), which excludes from the definition of the term ``employer'' both 
the United States and any State or political subdivision of a State.
    (c) In the case of section 4(b)(1) of the Act, which makes the Act 
inapplicable to working conditions to the extent they are protected 
under laws administered by other Federal agencies, Congress did not 
intend to grant any general exemptions under the Act; its sole purpose 
was to avoid duplication of effort by Federal agencies in establishing a 
national policy of occupational safety and health protection.
    (d) Interpretation of the provisions and terms of the Williams-
Steiger Act must of necessity be consistent with the express intent of 
Congress to exercise its commerce power to the extent that, ``so far as 
possible, every working man and woman in the Nation'' would be protected 
as provided for in the Act. The words ``so far as possible'' refer to 
the practical extent to which governmental regulation and expended 
resources are capable of achieving safe and healthful working 
conditions; the words are not ones of limitation on coverage. The 
controlling definition for the purpose of coverage under the Act is that 
of ``employer'' contained in section 3(5). This term is defined as 
follows:

    (5) The term ``employer'' means any person engaged in a business 
affecting commerce

[[Page 191]]

who has employees, but does not include the United States or any State 
or political subdivision of a State.


In carrying out the broad coverage mandate of Congress, we interpret the 
term ``business'' in the above definition as including any commercial or 
noncommercial activity affecting commerce and involving the employment 
of one or more employees; the term ``commerce'' is defined in the Act 
itself, in section 3(3). Since the legislative history and the words of 
the statute, itself, indicate that Congress intended the full exercise 
of its commerce power in order to reduce employment-related hazards 
which, as a whole impose a substantial burden on commerce, it follows 
that all employments where such hazards exist or could exist (that is, 
those involving the employment of one or more employees) were intended 
to be regulated as a class of activities which affects commerce.



Sec. 1975.4  Coverage.

    (a) General. Any employer employing one or more employees would be 
an ``employer engaged in a business affecting commerce who has 
employees'' and, therefore, he is covered by the Act as such.
    (b) Clarification as to certain employers--(1) The professions, such 
as physicians, attorneys, etc. Where a member of a profession, such as 
an attorney or physician, employs one or more employees such member 
comes within the definition of an employer as defined in the Act and 
interpreted thereunder and, therefore, such member is covered as an 
employer under the Act and required to comply with its provisions and 
with the regulations issued thereunder to the extent applicable.
    (2) Agricultural employers. Any person engaged in an agricultural 
activity employing one or more employees comes within the definition of 
an employer under the Act, and therefore, is covered by its provisions. 
However, members of the immediate family of the farm employer are not 
regarded as employees for the purposes of this definition.
    (3) Indians. The Williams-Steiger Act contains no special provisions 
with respect to different treatment in the case of Indians. It is well 
settled that under statutes of general application, such as the 
Williams-Steiger Act, Indians are treated as any other person, unless 
Congress expressly provided for special treatment. ``FPC v. Tuscarora 
Indian Nation,'' 362 U.S. 99, 115-118 (1960); ``Navajo Tribe v. 
N.L.R.B.,'' 288 F.2d 162, 164-165 (D.C. Cir. 1961), cert. den. 366 U.S. 
928 (1961). Therefore, provided they otherwise come within the 
definition of the term ``employer'' as interpreted in this part, Indians 
and Indian tribes, whether on or off reservations, and non-Indians on 
reservations, will be treated as employers subject to the requirements 
of the Act.
    (4) Nonprofit and charitable organizations. The basic purpose of the 
Williams-Steiger Act is to improve working environments in the sense 
that they impair, or could impair, the lives and health of employees. 
Therefore, certain economic tests such as whether the employer's 
business is operated for the purpose of making a profit or has other 
economic ends, may not properly be used as tests for coverage of an 
employer's activity under the Williams-Steiger Act. To permit such 
economic tests to serve as criteria for excluding certain employers, 
such as nonprofit and charitable organizations which employ one or more 
employees, would result in thousands of employees being left outside the 
protections of the Williams-Steiger Act in disregard of the clear 
mandate of Congress to assure ``every working man and woman in the 
Nation safe and healthful working conditions *  *  *''. Therefore, any 
charitable or non-profit organization which employs one or more 
employees is covered under the Williams-Steiger Act and is required to 
comply with its provisions and the regulations issued thereunder. (Some 
examples of covered charitable or non-profit organizations would be 
disaster relief organizations, philanthropic organizations, trade 
associations, private educational institutions, labor organizations, and 
private hospitals.)
    (c) Coverage of churches and special policy as to certain church 
activities--(1) Churches. Churches or religious organizations, like 
charitable and nonprofit organizations, are considered employers under 
the Act where they employ

[[Page 192]]

one or more persons in secular activities. As a matter of enforcement 
policy, the performance of, or participation in, religious services (as 
distinguished from secular or proprietary activities whether for 
charitable or religion-related purposes) will be regarded as not 
constituting employment under the Act. Any person, while performing 
religious services or participating in them in any degree is not 
regarded as an employer or employee under the Act, notwithstanding the 
fact that such person may be regarded as an employer or employee for 
other purposes--for example, giving or receiving remuneration in 
connection with the performance of religious services.
    (2) Examples. Some examples of coverage of religious organizations 
as employers would be: A private hospital owned or operated by a 
religious organization; a private school or orphanage owned or operated 
by a religious organization; commercial establishments of religious 
organizations engaged in producing or selling products such as alcoholic 
beverages, bakery goods, religious goods, etc.; and administrative, 
executive, and other office personnel employed by religious 
organizations. Some examples of noncoverage in the case of religious 
organizations would be: Clergymen while performing or participating in 
religious services; and other participants in religious services; 
namely, choir masters, organists, other musicians, choir members, 
ushers, and the like.



Sec. 1975.5  States and political subdivisions thereof.

    (a) General. The definition of the term ``employer'' in section 3(5) 
of the Act excludes the United States and States and political 
subdivisions of a State:

    (5) The term ``employer'' means a person engaged in a business 
affecting commerce who has employees, but does not include the United 
States or any State or political subdivision of a State.


The term ``State'' is defined as follows in section 3(7) of the Act:

    (7) The term ``State'' includes a State of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, 
Guam, and the Trust Territory of the Pacific Islands.


Since States, as defined in section 3(7) of the Act, and political 
subdivisions thereof are not regarded as employers under section 3(5) of 
the Act, they would not be covered as employers under the Act, except to 
the extent that section 18(c)(6), and the pertinent regulations 
thereunder, require as a condition of approval by the Secretary of Labor 
of a State plan that such plan:

    (6) Contain[s] satisfactory assurances that such State will, to the 
extent permitted by its law, establish and maintain an effective and 
comprehensive occupational safety and health program applicable to all 
employees of public agencies of the State and its political 
subdivisions, which program is as effective as the standards contained 
in an approved plan.

    (b) Tests. Any entity which has been (1) created directly by the 
State, so as to constitute a department or administrative arm of the 
government, or (2) administered by individuals who are controlled by 
public officials and responsible to such officials or to the general 
electorate, shall be deemed to be a ``State or political subdivision 
thereof'' under section 3(5) of the Act and, therefore, not within the 
definition of employer, and, consequently, not subject to the Act as an 
employer.
    (c) Factors for meeting the tests. Various factors will be taken 
into consideration in determining whether an entity meets the test 
discussed above. Some examples of these factors are:

    Are the individuals who administer the entity appointed by a public 
official or elected by the general electorate?
    What are the terms and conditions of the appointment?
    Who may dismiss such individuals and under what procedures?
    What is the financial source of the salary of these individuals?
    Does the entity earn a profit? Are such profits treated as revenue?
    How are the entity's functions financed? What are the powers of the 
entity and are they usually characteristic of a government rather than a 
private instrumentality like the power of eminent domain?
    How is the entity regarded under State and local law as well as 
under other Federal laws?
    Is the entity exempted from State and local tax laws?

[[Page 193]]

    Are the entity's bonds, if any, tax-exempt? As to the entity's 
employees, are they regarded like employees of other State and political 
subdivisions?
    What is the financial source of the employee-payroll?
    How do employee fringe benefits, rights, obligations, and 
restrictions of the entity's employees compare to those of the employees 
of other State and local departments and agencies?


In evaluating these factors, due regard will be given to whether any 
occupational safety and health program exists to protect the entity's 
employees.
    (d) Weight of the factors. The above list of factors is not 
exhaustive and no factor, isolated from the particular facts of a case, 
is assigned any particular weight for the purpose of a determination by 
the Secretary of Labor as to whether a given entity is a ``State or 
political subdivision of a State'' and, as such, not subject to the Act 
as an ``employer''. Each case must be viewed on its merits; and whether 
a single factor will be decisive, or whether the factors must be viewed 
in their relationship to each other as part of a sum total, also depends 
on the merits of each case.
    (e) Examples. (1) The following types of entities would normally be 
regarded as not being employers under section 3(5) of the Act: the State 
Department of Labor and Industry; the State Highway and Motor Vehicle 
Department; State, county, and municipal law enforcement agencies as 
well as penal institutions; State, county, and municipal judicial 
bodies; State University Boards of Trustees; State, county, and 
municipal public school boards and commissions; and public libraries.
    (2) Depending on the facts in the particular situation, the 
following types of entities would probably be excluded as employers 
under section 3(5) of the Act: harbor districts, irrigation districts, 
port authorities, bi-State authorities over bridges, highways, rivers, 
harbors, etc.; municipal transit entities; and State, county, and local 
hospitals and related institutions.
    (3) The following examples are of entities which would normally not 
be regarded as a ``State or political subdivision of a State'', but 
unusual factors to the contrary in a particular case may indicate 
otherwise: Public utility companies, merely regulated by State or local 
bodies; businesses, such as alcoholic beverage distributors, licensed 
under State or local law; other business entities which under agreement 
perform certain functions for the State, such as gasoline stations 
conducting automobile inspections for State and county governments.



Sec. 1975.6  Policy as to domestic household employment activities in private residences.

    As a matter of policy, individuals who, in their own residences, 
privately employ persons for the purpose of performing for the benefit 
of such individuals what are commonly regarded as ordinary domestic 
household tasks, such as house cleaning, cooking, and caring for 
children, shall not be subject to the requirements of the Act with 
respect to such employment.



PART 1977--DISCRIMINATION AGAINST EMPLOYEES EXERCISING RIGHTS UNDER THE WILLIAMS-STEIGER OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970--Table of Contents




                                 General

Sec.
1977.1  Introductory statement.
1977.2  Purpose of this part.
1977.3  General requirements of section 11(c) of the Act.
1977.4  Persons prohibited from discriminating.
1977.5  Persons protected by section 11(c).
1977.6  Unprotected activities distinguished.

                          Specific Protections

1977.9  Complaints under or related to the Act.
1977.10  Proceedings under or related to the Act.
1977.11  Testimony.
1977.12  Exercise of any right afforded by the Act.

                               Procedures

1977.15  Filing of complaint for discrimination.
1977.16  Notification of Secretary of Labor's determination.
1977.17  Withdrawal of complaint.
1977.18  Arbitration or other agency proceedings.

[[Page 194]]

                         Some Specific Subjects

1977.22  Employee refusal to comply with safety rules.
1977.23  State plans.

    Authority: Secs. 8, 11, Occupational Safety and Health Act of 1970 
(29 U.S.C. 657, 660); Secretary of Labor's Order No. 12-71 (36 FR 8754).

    Source: 38 FR 2681, Jan. 29, 1973, unless otherwise noted.

                                 General



Sec. 1977.1  Introductory statement.

    (a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 651, 
et seq.), hereinafter referred to as the Act, is a Federal statute of 
general application designed to regulate employment conditions relating 
to occupational safety and health and to achieve safer and healthier 
workplaces throughout the Nation. By terms of the Act, every person 
engaged in a business affecting commerce who has employees is required 
to furnish each of his employees employment and a place of employment 
free from recognized hazards that are causing or likely to cause death 
or serious physical harm, and, further, to comply with occupational 
safety and health standards promulgated under the Act. See part 1975 of 
this chapter concerning coverage of the Act.
    (b) The Act provides, among other things, for the adoption of 
occupational safety and health standards, research and development 
activities, inspections and investigations of workplaces, and 
recordkeeping requirements. Enforcement procedures initiated by the 
Department of Labor, review proceedings before an independent quasi-
judicial agency (the Occupational Safety and Health Review Commission), 
and express judicial review are provided by the Act. In addition, States 
which desire to assume responsibility for development and enforcement of 
standards which are at least as effective as the Federal standards 
published in this chapter may submit plans for such development and 
enforcement of the Secretary of Labor.
    (c) Employees and representatives of employees are afforded a wide 
range of substantive and procedural rights under the Act. Moreover, 
effective implementation of the Act and achievement of its goals depend 
in large part upon the active but orderly participation of employees, 
individually and through their representatives, at every level of safety 
and health activity.
    (d) This part deals essentially with the rights of employees 
afforded under section 11(c) of the Act. Section 11(c) of the Act 
prohibits reprisals, in any form, against employees who exercise rights 
under the Act.



Sec. 1977.2  Purpose of this part.

    The purpose of this part is to make available in one place 
interpretations of the various provisions of section 11(c) of the Act 
which will guide the Secretary of Labor in the performance of his duties 
thereunder unless and until otherwise directed by authoritative 
decisions of the courts, or concluding, upon reexamination of an 
interpretation, that it is incorrect.



Sec. 1977.3  General requirements of section 11(c) of the Act.

    Section 11(c) provides in general that no person shall discharge or 
in any manner discriminate against any employee because the employee 
has:
    (a) Filed any complaint under or related to the Act;
    (b) Instituted or caused to be instituted any proceeding under or 
related to the Act;
    (c) Testified or is about to testify in any proceeding under the Act 
or related to the Act; or
    (d) Exercised on his own behalf or on behalf of others any right 
afforded by the Act.

Any employee who believes that he has been discriminated against in 
violation of section 11(c) of the Act may, within 30 days after such 
violation occurs, lodge a complaint with the Secretary of Labor alleging 
such violation. The Secretary shall then cause appropriate investigation 
to be made. If, as a result of such investigation, the Secretary 
determines that the provisions of section 11(c) have been violated civil 
action may be instituted in any appropriate United States district 
court, to restrain violations of section 11(c)(1) and to obtain other 
appropriate relief, including rehiring or reinstatement of the employee 
to his former position

[[Page 195]]

with back pay. Section 11(c) further provides for notification of 
complainants by the Secretary of determinations made pursuant to their 
complaints.



Sec. 1977.4  Persons prohibited from discriminating.

    Section 11(c) specifically states that ``no person shall discharge 
or in any manner discriminate against any employee'' because the 
employee has exercised rights under the Act. Section 3(4) of the Act 
defines ``person'' as ``one or more individuals, partnerships, 
associations, corporations, business trusts, legal representatives, or 
any group of persons.'' Consequently, the prohibitions of section 11(c) 
are not limited to actions taken by employers against their own 
employees. A person may be chargeable with discriminatory action against 
an employee of another person. Section 11(c) would extend to such 
entities as organizations representing employees for collective 
bargaining purposes, employment agencies, or any other person in a 
position to discriminate against an employee. See, Meek v. United 
States, 136 F. 2d 679 (6th Cir., 1943); Bowe v. Judson C. Burns, 137 F. 
2d 37 (3rd Cir., 1943).



Sec. 1977.5  Persons protected by section 11(c).

    (a) All employees are afforded the full protection of section 11(c). 
For purposes of the Act, an employee is defined as ``an employee of an 
employer who is employed in a business of his employer which affects 
commerce.'' The Act does not define the term ``employ.'' However, the 
broad remedial nature of this legislation demonstrates a clear 
congressional intent that the existence of an employment relationship, 
for purposes of section 11(c), is to be based upon economic realities 
rather than upon common law doctrines and concepts. See, U.S. v. Silk, 
331 U.S. 704 (1947); Rutherford Food Corporation v. McComb, 331 U.S. 722 
(1947).
    (b) For purposes of section 11(c), even an applicant for employment 
could be considered an employee. See, NLRB v. Lamar Creamery, 246 F. 2d 
8 (5th Cir., 1957). Further, because section 11(c) speaks in terms of 
any employee, it is also clear that the employee need not be an employee 
of the discriminator. The principal consideration would be whether the 
person alleging discrimination was an ``employee'' at the time of 
engaging in protected activity.
    (c) In view of the definitions of ``employer'' and ``employee'' 
contained in the Act, employees of a State or political subdivision 
thereof would not ordinarily be within the contemplated coverage of 
section 11(c).



Sec. 1977.6  Unprotected activities distinguished.

    (a) Actions taken by an employer, or others, which adversely affect 
an employee may be predicated upon nondiscriminatory grounds. The 
proscriptions of section 11(c) apply when the adverse action occurs 
because the employee has engaged in protected activities. An employee's 
engagement in activities protected by the Act does not automatically 
render him immune from discharge or discipline for legitimate reasons, 
or from adverse action dictated by non-prohibited considerations. See, 
NLRB v. Dixie Motor Coach Corp., 128 F. 2d 201 (5th Cir., 1942).
    (b) At the same time, to establish a violation of section 11(c), the 
employee's engagement in protected activity need not be the sole 
consideration behind discharge or other adverse action. If protected 
activity was a substantial reason for the action, or if the discharge or 
other adverse action would not have taken place ``but for'' engagement 
in protected activity, section 11(c) has been violated. See, Mitchell v. 
Goodyear Tire & Rubber Co., 278 F. 2d 562 (8th Cir., 1960); Goldberg v. 
Bama Manufacturing, 302 F. 2d 152 (5th Cir., 1962). Ultimately, the 
issue as to whether a discharge was because of protected activity will 
have to be determined on the basis of the facts in the particular case.

                          Specific Protections



Sec. 1977.9  Complaints under or related to the Act.

    (a) Discharge of, or discrimination against, an employee because the 
employee has filed ``any complaint * * * under or related to this Act * 
* *'' is prohibited by section 11(c). An example of a complaint made 
``under'' the Act

[[Page 196]]

would be an employee request for inspection pursuant to section 8(f). 
However, this would not be the only type of complaint protected by 
section 11(c). The range of complaints ``related to'' the Act is 
commensurate with the broad remedial purposes of this legislation and 
the sweeping scope of its application, which entails the full extent of 
the commerce power. (See Cong. Rec., vol. 116 p. P. 42206 Dec. 17, 
1970).
    (b) Complaints registered with other Federal agencies which have the 
authority to regulate or investigate occupational safety and health 
conditions are complaints ``related to'' this Act. Likewise, complaints 
made to State or local agencies regarding occupational safety and health 
conditions would be ``related to'' the Act. Such complaints, however, 
must relate to conditions at the workplace, as distinguished from 
complaints touching only upon general public safety and health.
    (c) Further, the salutary principles of the Act would be seriously 
undermined if employees were discouraged from lodging complaints about 
occupational safety and health matters with their employers. (Section 
2(1), (2), and (3)). Such complaints to employers, if made in good 
faith, therefore would be related to the Act, and an employee would be 
protected against discharge or discrimination caused by a complaint to 
the employer.



Sec. 1977.10  Proceedings under or related to the Act.

    (a) Discharge of, or discrimination against, any employee because 
the employee has ``instituted or caused to be instituted any proceeding 
under or related to this Act'' is also prohibited by section 11(c). 
Examples of proceedings which could arise specifically under the Act 
would be inspections of worksites under section 8 of the Act, employee 
contest of abatement date under section 10(c) of the Act, employee 
initiation of proceedings for promulgation of an occupational safety and 
health standard under section 6(b) of the Act and part 1911 of this 
chapter, employee application for modification of revocation of a 
variance under section 6(d) of the Act and part 1905 of this chapter, 
employee judicial challenge to a standard under section 6(f) of the Act 
and employee appeal of an Occupational Safety and Health Review 
Commission order under section 11(a) of the Act. In determining whether 
a ``proceeding'' is ``related to'' the Act, the considerations discussed 
in Sec. 1977.9 would also be applicable.
    (b) An employee need not himself directly institute the proceedings. 
It is sufficient if he sets into motion activities of others which 
result in proceedings under or related to the Act.



Sec. 1977.11  Testimony.

    Discharge of, or discrimination against, any employee because the 
employee ``has testified or is about to testify'' in proceedings under 
or related to the Act is also prohibited by section 11(c). This 
protection would of course not be limited to testimony in proceedings 
instituted or caused to be instituted by the employee, but would extend 
to any statements given in the course of judicial, quasi-judicial, and 
administrative proceedings, including inspections, investigations, and 
administrative rule making or adjudicative functions. If the employee is 
giving or is about to give testimony in any proceeding under or related 
to the Act, he would be protected against discrimination resulting from 
such testimony.



Sec. 1977.12  Exercise of any right   afforded by the Act.

    (a) In addition to protecting employees who file complaints, 
institute proceedings, or testify in proceedings under or related to the 
Act, section 11(c) also protects employees from discrimination occurring 
because of the exercise ``of any right afforded by this Act.'' Certain 
rights are explicitly provided in the Act; for example, there is a right 
to participate as a party in enforcement proceedings (section 10). 
Certain other rights exist by necessary implication. For example, 
employees may request information from the Occupational Safety and 
Health Administration; such requests would constitute the exercise of a 
right afforded by the Act. Likewise, employees interviewed by agents of 
the Secretary in the course of inspections or investigations could not 
subsequently be discriminated against because of their cooperation.

[[Page 197]]

    (b)(1) On the other hand, review of the Act and examination of the 
legislative history discloses that, as a general matter, there is no 
right afforded by the Act which would entitle employees to walk off the 
job because of potential unsafe conditions at the workplace. Hazardous 
conditions which may be violative of the Act will ordinarily be 
corrected by the employer, once brought to his attention. If corrections 
are not accomplished, or if there is dispute about the existence of a 
hazard, the employee will normally have opportunity to request 
inspection of the workplace pursuant to section 8(f) of the Act, or to 
seek the assistance of other public agencies which have responsibility 
in the field of safety and health. Under such circumstances, therefore, 
an employer would not ordinarily be in violation of section 11(c) by 
taking action to discipline an employee for refusing to perform normal 
job activities because of alleged safety or health hazards.
    (2) However, occasions might arise when an employee is confronted 
with a choice between not performing assigned tasks or subjecting 
himself to serious injury or death arising from a hazardous condition at 
the workplace. If the employee, with no reasonable alternative, refuses 
in good faith to expose himself to the dangerous condition, he would be 
protected against subsequent discrimination. The condition causing the 
employee's apprehension of death or injury must be of such a nature that 
a reasonable person, under the circumstances then confronting the 
employee, would conclude that there is a real danger of death or serious 
injury and that there is insufficient time, due to the urgency of the 
situation, to eliminate the danger through resort to regular statutory 
enforcement channels. In addition, in such circumstances, the employee, 
where possible, must also have sought from his employer, and been unable 
to obtain, a correction of the dangerous condition.

[38 FR 2681, Jan. 29, 1973, as amended at 38 FR 4577, Feb. 16, 1973]

                               Procedures



Sec. 1977.15  Filing of complaint for discrimination.

    (a) Who may file. A complaint of section 11(c) discrimination may be 
filed by the employee himself, or by a representative authorized to do 
so on his behalf.
    (b) Nature of filing. No particular form of complaint is required.
    (c) Place of filing. Complaint should be filed with the Area 
Director (Occupational Safety and Health Administration) responsible for 
enforcement activities in the geographical area where the employee 
resides or was employed.
    (d) Time for filing. (1) Section 11(c)(2) provides that an employee 
who believes that he has been discriminated against in violation of 
section 11(c)(1) ``may, within 30 days after such violation occurs,'' 
file a complaint with the Secretary of Labor.
    (2) A major purpose of the 30-day period in this provision is to 
allow the Secretary to decline to entertain complaints which have become 
stale. Accordingly, complaints not filed within 30 days of an alleged 
violation will ordinarily be presumed to be untimely.
    (3) However, there may be circumstances which would justify tolling 
of the 30-day period on recognized equitable principles or because of 
strongly extenuating circumstances, e.g., where the employer has 
concealed, or misled the employee regarding the grounds for discharge or 
other adverse action; or where the discrimination is in the nature of a 
continuing violation. The pendency of grievance-arbitration proceedings 
or filing with another agency, among others, are circumstances which do 
not justify tolling the 30-day period. In the absence of circumstances 
justifying a tolling of the 30-day period, untimely complaints will not 
be processed.

[38 FR 2681, Jan. 29, 1973, as amended at 50 FR 32846, Aug. 15, 1985]



Sec. 1977.16  Notification of Secretary of Labor's determination.

    Section 11(c)(3) provides that the Secretary is to notify a 
complainant within 90 days of the complaint of his

[[Page 198]]

determination whether prohibited discrimination has occurred. This 90-
day provision is considered directory in nature. While every effort will 
be made to notify complainants of the Secretary's determination within 
90 days, there may be instances when it is not possible to meet the 
directory period set forth in section 11(c)(3).



Sec. 1977.17  Withdrawal of complaint.

    Enforcement of the provisions of section 11(c) is not only a matter 
of protecting rights of individual employees, but also of public 
interest. Attempts by an employee to withdraw a previously filed 
complaint will not necessarily result in termination of the Secretary's 
investigation. The Secretary's jurisdiction cannot be foreclosed as a 
matter of law by unilateral action of the employee. However, a voluntary 
and uncoerced request from a complainant to withdraw his complaint will 
be given careful consideration and substantial weight as a matter of 
policy and sound enforcement procedure.



Sec. 1977.18  Arbitration or other agency proceedings.

    (a) General. (1) An employee who files a complaint under section 
11(c) of the Act may also pursue remedies under grievance arbitration 
proceedings in collective bargaining agreements. In addition, the 
complainant may concurrently resort to other agencies for relief, such 
as the National Labor Relations Board. The Secretary's jurisdiction to 
entertain section 11(c) complaints, to investigate, and to determine 
whether discrimination has occurred, is independent of the jurisdiction 
of other agencies or bodies. The Secretary may file action in U.S. 
district court regardless of the pendency of other proceedings.
    (2) However, the Secretary also recognizes the national policy 
favoring voluntary resolution of disputes under procedures in collective 
bargaining agreements. See, e.g., Boy's Markets, Inc. v. Retail Clerks, 
398 U.S. 235 (1970); Republic Steel Corp. v. Maddox, 379 U.S. 650 
(1965); Carey v. Westinghouse Electric Co., 375 U.S. 261 (1964); Collier 
Insulated Wire, 192 NLRB No. 150 (1971). By the same token, due 
deference should be paid to the jurisdiction of other forums established 
to resolve disputes which may also be related to section 11(c) 
complaints.
    (3) Where a complainant is in fact pursuing remedies other than 
those provided by section 11(c), postponement of the Secretary's 
determination and deferral to the results of such proceedings may be in 
order. See, Burlington Truck Lines, Inc., v. U.S., 371 U.S. 156 (1962).
    (b) Postponement of determination. Postponement of determination 
would be justified where the rights asserted in other proceedings are 
substantially the same as rights under section 11(c) and those 
proceedings are not likely to violate the rights guaranteed by section 
11(c). The factual issues in such proceedings must be substantially the 
same as those raised by section 11(c) complaint, and the forum hearing 
the matter must have the power to determine the ultimate issue of 
discrimination. See Rios v. Reynolds Metals Co., F.2d (5th Cir., 1972), 
41 U.S.L.W. 1049 (Oct. 10, 1972); Newman v. Avco Corp., 451 F.2d 743 
(6th Cir., 1971).
    (c) Deferral to outcome of other proceedings. A determination to 
defer to the outcome of other proceedings initiated by a complainant 
must necessarily be made on a case-to-case basis, after careful scrutiny 
of all available information. Before deferring to the results of other 
proceedings, it must be clear that those proceedings dealt adequately 
with all factual issues, that the proceedings were fair, regular, and 
free of procedural infirmities, and that the outcome of the proceedings 
was not repugnant to the purpose and policy of the Act. In this regard, 
if such other actions initiated by a complainant are dismissed without 
adjudicatory hearing thereof, such dismissal will not ordinarily be 
regarded as determinative of the section 11(c) complaint.

                         Some Specific Subjects



Sec. 1977.22  Employee refusal to comply with safety rules.

    Employees who refuse to comply with occupational safety and health 
standards or valid safety rules implemented by the employer in 
furtherance of the Act are not exercising any rights

[[Page 199]]

afforded by the Act. Disciplinary measures taken by employers solely in 
response to employee refusal to comply with appropriate safety rules and 
regulations, will not ordinarily be regarded as discriminatory action 
prohibited by section 11(c). This situation should be distinguished from 
refusals to work, as discussed in Sec. 1977.12.



Sec. 1977.23  State plans.

    A State which is implementing its own occupational safety and health 
enforcement program pursuant to section 18 of the Act and parts 1902 and 
1952 of this chapter must have provisions as effective as those of 
section 11(c) to protect employees from discharge or discrimination. 
Such provisions do not divest either the Secretary of Labor or Federal 
district courts of jurisdiction over employee complaints of 
discrimination. However, the Secretary of Labor may refer complaints of 
employees adequately protected by State Plans' provisions to the 
appropriate state agency. The basic principles outlined in Sec. 1977.18, 
supra will be observed as to deferrals to findings of state agencies.



PART 1978--RULES FOR IMPLEMENTING SECTION 405 OF THE SURFACE TRANSPORTATION ASSISTANCE ACT OF 1982 (STAA)--Table of Contents




Subpart A--Interpretive Rules [Reserved]

                      Subpart B--Rules of Procedure

       Complaints, Investigations, Findings and Preliminary Orders

Sec.
1978.100  Purpose and scope.
1978.101  Definitions.
1978.102  Filing of discrimination complaint.
1978.103  Investigation.
1978.104  Issuance of findings and preliminary orders.
1978.105  Objections to the findings and the preliminary order.

                               Litigation

1978.106  Scope of rules; applicability of other rules; notice of 
          hearing.
1978.107  Parties.
1978.108  Captions, titles of cases.
1978.109  Decision and orders.
1978.110  Judicial review.
1978.111  Withdrawal of section 405 complaints, objections, and 
          findings; settlement.

                        Miscellaneous Provisions

1978.112  Arbitration or other proceedings.
1978.113  Judicial enforcement.
1978.114  Statutory time periods.
1978.115  Special circumstances; waiver of rules.

    Authority: 29 U.S.C. 657(g)(2); 29 U.S.C. 660(c)(2); 49 U.S.C. 31101 
and 31105; Secretary of Labor's Order No. 1-90, 55 FR 9033.

    Source: 53 FR 47681, Nov. 25, 1988, unless otherwise noted.

Subpart A--Interpretive Rules [Reserved]



                      Subpart B--Rules of Procedure

       Complaints, Investigations, Findings and Preliminary Orders



Sec. 1978.100  Purpose and scope.

    (a) This subpart implements the procedural aspects of section 405 of 
the Surface Transportation Assistance Act of 1982, 49 U.S.C. 2305, which 
provides for employee protection from discrimination because the 
employee has engaged in protected activity pertaining to commercial 
motor vehicle safety and health matters.
    (b) Procedures are established by this subpart pursuant to the 
statutory provision set forth above for the expeditious handling of 
complaints of discrimination made by employees, or persons acting on 
their behalf. These rules, together with those rules set forth at 29 CFR 
part 18, set forth the procedures for submission of complaints under 
section 405, investigations, issuance of findings and preliminary 
orders, objections thereto, litigation before administrative law judges, 
post-hearing administrative review, withdrawals and settlements, 
judicial review and enforcement, and deferral to other forums.



Sec. 1978.101  Definitions.

    (a) Act means the Surface Transportation Assistance Act of 1982 
(STAA) (49 U.S.C. 2301 et seq.).
    (b) Secretary means Secretary of Labor or persons to whom authority 
under the Act has been delegated.

[[Page 200]]

    (c) Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under the Act.
    (d) Employee means (1) a driver of a commercial motor vehicle 
(including an independent contractor while in the course of personally 
operating a commercial motor vehicle); (2) a mechanic; (3) a freight 
handler; or (4) any individual other than an employer; who is employed 
by a commercial motor carrier and who in the course of his employment 
directly affects commercial motor vehicle safety, but such term does not 
include an employee of the United States, any State, or a political 
subdivision of a State who is acting within the course of such 
employment.
    (e) Commercial motor carrier means a person who meets the definition 
of motor carrier found at 49 U.S.C. 10102(13) (Supp. 1987) and motor 
private carrier found at 49 U.S.C. 10102(16) (Supp. 1987).
    (f) OSHA means the Occupational Safety and Health Administration.
    (g) Complainant means the employee who filed a section 405 complaint 
or on whose behalf a complaint was filed.
    (h) Named person means the person alleged to have violated section 
405.
    (i) Person means one or more individuals, partnerships, 
associations, corporations, business trusts, legal representatives or 
any group of persons.



Sec. 1978.102  Filing of discrimination   complaint.

    (a) Who may file. An employee may file, or have filed by any person 
on the employee's behalf, a complaint alleging a violation of section 
405.
    (b) Nature of filing. No particular form of complaint is required.
    (c) Place of filing. The complaint should be filed with the OSHA 
Area Director responsible for enforcement activities in the geographical 
area where the employee resides or was employed, but filing with any 
OSHA officer or employee is sufficient. Addresses and telephone numbers 
for these officials are set forth in local directories.
    (d) Time for filing. (1) Section 405(c)(1) provides that an employee 
who believes that he has been discriminated against in violation of 
section 405 (a) or (b) ``* * * may, within one hundred and eighty days 
after such alleged violation occurs,'' file or have filed by any person 
on the employee's behalf a complaint with the Secretary.
    (2) A major purpose of the 180-day period in this provision is to 
allow the Secretary to decline to entertain complaints which have become 
stale. Accordingly, complaints not filed within 180 days of an alleged 
violation will ordinarily be considered to be untimely.
    (3) However, there are circumstances which will justify tolling of 
the 180-day period on the basis of recognized equitable principles or 
because of extenuating circumstances, e.g., where the employer has 
concealed or misled the employee regarding the grounds for discharge or 
other adverse action; or where the discrimination is in the nature of a 
continuing violation. The pendency of grievance-arbitration proceedings 
or filing with another agency are examples of circumstances which do not 
justify a tolling of the 180-day period. The Assistant Secretary will 
not ordinarily investigate complaints which are determined to be 
untimely.
    (e) Relationship to section 11(c) complaints. A complaint filed by 
an employee within thirty days of the alleged violation or otherwise 
timely filed pursuant to section 11(c) of the OSHA Act, which alleges 
discrimination relating to safety or health, shall be deemed to be a 
complaint filed under both section 405 and section 11(c). Normal 
procedures for investigations under both sections will be followed, 
except as otherwise provided.
    (f) Upon receipt of a valid complaint, OSHA shall notify the named 
person of the filing of the complaint by providing a copy of the 
complaint, sanitized to protect witness confidentiality if necessary, 
and shall also notify the named person of his or her rights under 29 CFR 
1978.103 (b) and (c).



Sec. 1978.103  Investigation.

    (a) OSHA shall investigate and gather data concerning the case as it 
deems appropriate.
    (b) Within twenty days of his or her receipt of the complaint the 
named person may submit to OSHA a written statement and any affidavits 
or documents explaining or defending his or her position. Within the 
same twenty

[[Page 201]]

days the named person may request a meeting with OSHA to present his or 
her position. The meeting will be held before the issuance of any 
findings or preliminary order. At the meeting the named person may be 
accompanied by counsel and by any persons with information relating to 
the complaint, who may make statements concerning the case. At such 
meeting OSHA may present additional allegations of violations which may 
have been discovered in the course of its investigation.
    (c) If, on the basis of information gathered under paragraphs (a) 
and (b) of this section, OSHA has reasonable cause to believe that the 
named person has violated the Act and that temporary reinstatement is 
warranted, prior to the issuance of findings and preliminary order as 
provided for in Sec. 1978.104, OSHA shall again contact the named person 
to give him or her notice of the substance of the relevant evidence 
supporting the complainant's allegations as developed during the course 
of the investigation. The named person shall be given the opportunity to 
submit a written response, to meet with the investigators and to present 
statements from rebuttal witnesses. The named person shall present this 
rebuttal evidence within five days of OSHA's notification pursuant to 
this subsection, or as soon thereafter as OSHA and the named person can 
agree, if the interests of justice so require.



Sec. 1978.104  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within sixty days 
of the filing of the complaint, written findings as to whether there is 
reasonable cause to believe that the named person or others have 
discriminated against the complainant in violation of section 405 (a) or 
(b). If the Assistant Secretary concludes that there is reasonable cause 
to believe that a violation has occurred, he shall accompany his 
findings with a preliminary order providing the relief prescribed in 
section 405(c)(2)(B). Such order will include, where appropriate, a 
requirement that the named person abate the violation; reinstatement of 
the complainant to his or her former position, together with the 
compensation (including back pay), terms, conditions and privileges of 
the complainant's employment; and payment of compensatory damages. At 
the complainant's request the order may also assess against the named 
party the complainant's costs and expenses (including attorney's fees) 
reasonably incurred in filing the complaint.
    (b) The findings and the preliminary order shall be sent by 
certified mail, return receipt requested, to all parties of record. The 
letter accompanying the findings and order shall inform the parties of 
the right to object to the findings and/or the order and shall give the 
address of the Chief Administrative Law Judge. At the same time, the 
Assistant Secretary shall file with the Chief Administrative Law Judge, 
U.S. Department of Labor, the original complaint and a copy of the 
findings and/or order.
    (c) Upon the issuance of findings that there is reasonable cause to 
believe that a violation has occurred, any pending section 11(c) 
complaint will be suspended until the section 405 proceeding is 
completed. When the section 405 proceeding is completed the Assistant 
Secretary will determine what action, if any, is appropriate on the 
section 11(c) complaint. If the Assistant Secretary's findings indicate 
that a violation has occurred, the Assistant Secretary shall make a 
separate determination as to whether section 11(c) has been violated.



Sec. 1978.105  Objections to the findings and the preliminary order.

    (a) Basic procedures. Within thirty days of receipt of the findings 
or preliminary order the named person or the complainant, or both, may 
file objections to the findings or preliminary order providing relief or 
both and request a hearing on the record. The objection and request 
shall be in writing and shall state whether the objection is to the 
findings or the preliminary order or both. Such objection shall also be 
considered a request for a hearing.

[[Page 202]]

The date of the postmark shall be considered to be the date of filing. 
Objections shall be filed with the Chief Administrative Law Judge, U.S. 
Department of Labor, Washington, DC and copies of the objections shall 
be mailed at the same time to the other parties of record, including the 
Assistant Secretary's designee who issued the findings and order.
    (b) Effective date of findings and preliminary order and failure to 
object. (1) The findings and the preliminary order shall be effective 
thirty days after the named person's receipt thereof, or on the 
compliance date set forth in the preliminary order, whichever is later, 
unless an objection to the findings or preliminary order has been timely 
filed. However, the portion of any preliminary order requiring 
reinstatement shall be effective immediately upon the named person's 
receipt of the findings and preliminary order, regardless of any 
objections thereto.
    (2) If no timely objection is filed with respect to either the 
findings or the preliminary order, such findings or preliminary order, 
as the case may be, shall become final and not subject to judicial 
review.

                               Litigation



Sec. 1978.106  Scope of rules; applicability of other rules; notice of hearing.

    (a) Except as otherwise noted, hearings shall be conducted in 
accordance with the Rules of Practice and Procedure for Administrative 
Hearings Before the Office of Administrative Law Judges promulgated at 
29 CFR part 18, 48 FR 32538 (July 15, 1983), amended at 49 FR 2739 
January 20, 1984. Hearings shall be conducted as hearings de novo.
    (b) Upon receipt of an objection, the Chief Administrative Law Judge 
shall immediately assign the case to a judge who shall, within seven 
days following the receipt of the objection, notify the parties, by 
certified mail, of the day, time, and place of hearing. The hearing 
shall commence within 30 days of the filing of the objection, except 
upon a showing of good cause or unless otherwise agreed to by the 
parties.
    (c) If both complainant and the named person object to the findings 
and/or order, the objections shall be consolidated and a single hearing 
shall be conducted. If the objections are not received simultaneously, 
the hearing shall commence within 30 days of the receipt of the later 
objection.
    (d) At the time the hearing order issues, the judge may order the 
prosecuting party to file a prehearing statement of position, which 
shall briefly set forth the issues involved in the proceeding and the 
remedy requested. Such prehearing statement shall be filed within three 
days of the receipt of the hearing order and shall be served on all 
parties by certified mail. Thereafter, within three days of receipt of 
the prosecuting party's prehearing statement, the other parties to the 
proceeding shall file prehearing statements of position.



Sec. 1978.107  Parties.

    (a) In any case in which only the named person objects to the 
findings or the preliminary order the Assistant Secretary ordinarily 
shall be the prosecuting party. In such a case the complainant shall 
also be a party and may engage in discovery, present evidence or 
otherwise act as a party. The named person shall be the party-
respondent. If, at any time after the named person files objections, the 
Assistant Secretary and complainant agree, the complainant may present 
the case to the judge. Under such circumstances the case will be handled 
as if it had arisen under paragraph (b) of this section.
    (b) In any case in which only the complainant objects to findings 
that the complaint lacks merit, to the preliminary order, or to both, 
the complainant shall be the prosecuting party. The Assistant Secretary 
may as of right intervene as a party at any time in proceedings under 
this paragraph. The named person shall be the party-respondent.
    (c) In any case in which both the complainant and the named person 
object to the preliminary order the Assistant Secretary shall be the 
prosecuting party. The complainant and the named person shall be the 
party-respondents. In any such case, if the named person also objected 
to the findings the Assistant Secretary, complainant, and named party 
shall each

[[Page 203]]

have the party status, rights, and responsibilities set forth in 
paragraph (a) of this section with respect to the findings.



Sec. 1978.108  Captions, titles of cases.

    (a) Cases described in Sec. 1978.107(a) shall be titled:

Assistant Secretary of Labor for Occupational Safety and Health, 
Prosecuting Party and (Name of Complainant), Complainant v. (Name of 
named person), Respondent.

    (b) Cases described in Sec. 1978.107(b) shall be titled:

(Name of complainant), Complainant v. (Name of named person), 
Respondent.

    (c) Cases described in Sec. 1978.107(c) shall be titled:

Assistant Secretary of Labor for Occupational Safety and Health, 
Prosecuting Party v. (Name of named person), Respondent.
(Name of complainant), Complainant v. (Name of named person), 
Respondent.

    (d) The titles listed in paragraphs (a), (b), and (c) of this 
section shall appear at the left upper portion of the initial page of 
any pleading or document (other than exhibits) filed.



Sec. 1978.109  Decision and orders.

    (a) Administrative Law Judge decisions. The administrative law judge 
shall issue a decision within 30 days after the close of the record. The 
close of the record shall occur no later than 30 days after the filing 
of the objection, except upon a showing of good cause or unless 
otherwise agreed to by the parties. For the purposes of the statute the 
issuance of the judge's decision shall be deemed the conclusion of the 
hearing. The decision shall contain appropriate findings, conclusions, 
and an order pertaining to the remedy which, among other things, may 
provide for reinstatement of a discharged employee and also may include 
an award of the complainant's costs and expenses (including attorney's 
fees) reasonably incurred in bringing and litigating the case, if the 
complainant's position has prevailed. The decision shall be forwarded 
immediately, together with the record, to the Secretary for review by 
the Secretary or his or her designee. The decision shall be served upon 
all parties to the proceeding.
    (b) The administrative law judge's decision and order concerning 
whether the reinstatement of a discharged employee is appropriate shall 
be effective immediately upon receipt of the decision by the named 
person. All other portions of the judge's order are stayed pending 
review by the Secretary.
    (c) Final order. (1) Within 120 days after issuance of the 
administrative law judge's decision and order, the Administrative Review 
Board, United States Department of Labor, shall issue a final decision 
and order based on the record and the decision and order of the 
administrative law judge.
    (2) The parties may file with the Administrative Review Board, 
United States Department of Labor, briefs in support of or in opposition 
to the administrative law judge's decision and order within thirty days 
of the issuance of that decision unless the Administrative Review Board, 
United States Department of Labor, upon notice to the parties, 
establishes a different briefing schedule.
    (3) The findings of the administrative law judge with respect to 
questions of fact, if supported by substantial evidence on the record 
considered as a whole, shall be considered conclusive.
    (4) Where the Administrative Review Board, United States Department 
of Labor, determines that the named party has not violated the law, the 
final order shall deny the complaint.
    (5) The final decision and order of the Administrative Review Board, 
United States Department of Labor, shall be served upon all parties to 
the proceeding.

[53 FR 47681, Nov. 25, 1988, as amended at 61 FR 19986, May 3, 1996]



Sec. 1978.110  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. 1978.109, any person adversely affected or aggrieved by such order 
may file a petition for review of the order in the United States Court 
of Appeals for the circuit in which the violation allegedly occurred or 
the circuit in which the person resided on the date of the violation (49 
U.S.C. 2305(d)(1)).

[[Page 204]]

    (b) A final order of the Administrative Review Board, United States 
Department of Labor, shall not be subject to judicial review in any 
criminal or other civil proceedings (49 U.S.C. 2305(d)(2)).
    (c) The record of a case, including the record of proceedings before 
the administrative law judge, shall be transmitted by the Administrative 
Review Board, United States Department of Labor, to the appropriate 
court pursuant to the rules of such court.

[53 FR 47681, Nov. 25, 1988, as amended at 61 FR 19986, May 3, 1996]



Sec. 1978.111  Withdrawal of section 405 complaints, objections, and findings; settlement.

    (a) At any time prior to the filing of objections to the findings or 
preliminary order, an employee may withdraw his or her section 405 
complaint by filing a written withdrawal with the Assistant Secretary. 
The Assistant Secretary shall thereafter determine whether the 
withdrawal shall be approved. The Assistant Secretary shall notify the 
named person of the approval of any withdrawal.
    (b) The Assistant Secretary may withdraw his findings or a 
preliminary order at any time before the expiration of the 30-day 
objection period, provided that no objection has yet been filed, and 
substitute new findings or preliminary order. The date of the receipt of 
the substituted findings or order shall begin a new 30-day objection 
period.
    (c) At any time before the findings or order become final, a party 
may withdraw his objections to the findings or order by filing a written 
withdrawal with the administrative law judge or, if the case is on 
review, with the Administrative Review Board, United States Department 
of Labor. The judge or the Administrative Review Board, United States 
Department of Labor, as the case may be, shall affirm any portion of the 
findings or preliminary order with respect to which the objection was 
withdrawn.
    (d)(1) Investigative settlements. At anytime after the filing of a 
section 405 complaint by an employee and before the finding and/or order 
are objected to, or become a final order by operation of law, the case 
may be settled if the Assistant Secretary, the complainant and the named 
person agree to a settlement.
    (2) Adjudicatory settlement. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
such settlement is approved by the Administrative Review Board, United 
States Department of Labor, or the ALJ. A copy of the settlement shall 
be filed with the ALJ or the Administrative Review Board, United States 
Department of Labor as the case may be.
    (3) If, under paragraph (d)(1) or (2) of this section the named 
person makes an offer to settle the case which the Assistant Secretary, 
when acting as the prosecuting party, deems to be a fair and equitable 
settlement of all matters at issue and the complainant refuses to accept 
the offer, the Assistant Secretary may decline to assume the role of 
prosecuting party as set forth in Sec. 1978.107(a). In such 
circumstances, the Assistant Secretary shall immediately notify the 
complainant that his review of the settlement offer may cause the 
Assistant Secretary to decline the role of prosecuting party. After the 
Assistant Secretary has reviewed the offer and when he or she has 
decided to decline the role of prosecuting party, the Assistant 
Secretary shall immediately notify all parties of his or her decision in 
writing and, if the case is before the administrative law judge, or the 
Administrative Review Board, United States Department of Labor on 
review, a copy of the notice shall be sent to the appropriate official. 
Upon receipt of the Assistant Secretary's notice, the parties shall 
assume the roles set forth in Sec. 1978.107(b).

[53 FR 47681, Nov. 25, 1988, as amended at 61 FR 19986, May 3, 1996]

                        Miscellaneous Provisions



Sec. 1978.112  Arbitration or other proceedings.

    (a) General. (1) An employee who files a complaint under section 405 
of the Act may also pursue remedies under grievance arbitration 
proceedings in collective bargaining agreements. In

[[Page 205]]

addition, the complainant may concurrently resort to other agencies for 
relief, such as the National Labor Relations Board. The Secretary's 
jurisdiction to entertain section 405 complaints, to investigate, and to 
determine whether discrimination has occurred, is independent of the 
jurisdiction of other agencies or bodies. The Secretary may proceed with 
the investigation and the issuance of findings and orders regardless of 
the pendency of other proceedings.
    (2) However, the Secretary also recognizes the national policy 
favoring voluntary resolution of disputes under procedures in collective 
bargaining agreements. By the same token, due deference should be paid 
to the jurisdiction of other forums established to resolve disputes 
which may also be related to section 405 complaints.
    (3) Where complainant is in fact pursuing remedies other than those 
provided by section 405, the Secretary may, in his or her discretion, 
postpone a determination of the section 405 complaint and defer to the 
results of such proceedings.
    (b) Postponement of determination. When a complaint is under 
investigation pursuant to Sec. 1978.103, postponement of determination 
would be justified where the rights asserted in other proceedings are 
substantially the same as rights under section 405 and those proceedings 
are not likely to violate rights guaranteed by section 405. The factual 
issues in such proceedings must be substantially the same as those 
raised by a section 405 complaint, and the forum hearing the matter must 
have the power to determine the ultimate issue of discrimination.
    (c) Deferral to outcome of other proceedings. A determination to 
defer to the outcome of other proceedings initiated by a complainant 
must necessarily be made on a case-by-case basis, after careful scrutiny 
of all available information. Before the Assistant Secretary or the 
Secretary defers to the results of other proceedings, it must be clear 
that those proceedings dealt adequately with all factual issues, that 
the proceedings were fair, regular, and free of procedural infirmities, 
and that the outcome of the proceedings was not repugnant to the purpose 
and policy of the Act. In this regard, if such other actions initiated 
by a complainant are dismissed without adjudicatory hearing thereof, 
such dismissal will not ordinarily be regarded as determinative of the 
section 405 complaint.



Sec. 1978.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order of 
reinstatement or a final order or the terms of a settlement agreement, 
the Secretary may file a civil action seeking enforcement of the order 
in the United States district court for the district in which the 
violation was found to occur.



Sec. 1978.114  Statutory time periods.

    The time requirements imposed on the Secretary by these regulations 
are directory in nature. While every effort will be made to meet these 
requirements, there may be instances when it is not possible to meet 
these requirements. Failure to meet these requirements does not 
invalidate any action by the Assistant Secretary or Secretary under 
section 405.



Sec. 1978.115  Special circumstances;     waiver of rules.

    In special circumstances not contemplated by the provisions of these 
rules, or for good cause shown, the judge or the Secretary on review 
may, upon application, after three days notice to all parties and 
intervenors, waive any rule or issue such orders as justice or the 
administration of section 405 requires.



  PART 1979--PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS UNDER SECTION 519 OF THE WENDELL H. FORD AVIATION INVESTMENT AND REFORM ACT FOR THE 21ST 
CENTURY--Table of Contents




 Subpart A--Complaints, Investigations, Findings and Preliminary Orders

Sec.
1979.100  Purpose and scope.
1979.101  Definitions.
1979.102  Obligations and prohibited acts.
1979.103  Filing of discrimination complaint.

[[Page 206]]

1979.104  Investigation.
1979.105  Issuance of findings and preliminary orders.

                          Subpart B--Litigation

1979.106  Objections to the findings and the preliminary order and 
          request for a hearing.
1979.107  Hearings.
1979.108  Role of Federal agencies.
1979.109  Decision and orders of the administrative law judge.
1979.110  Decision and orders of the Administrative Review Board.

                   Subpart C--Miscellaneous Provisions

1979.111  Withdrawal of complaints, objections, and findings; 
          settlement.
1979.112  Judicial review.
1979.113  Judicial enforcement.
1979.114  Special circumstances; waiver of rules.

    Authority: 49 U.S.C. 42121; Secretary of Labor's Order 5-2002, 67 FR 
65008 (October 22, 2002).

    Source: 68 FR 14107, Mar. 21, 2003, unless otherwise noted.



 Subpart A--Complaints, Investigations, Findings and Preliminary Orders



Sec. 1979.100  Purpose and scope.

    (a) This part implements procedures under section 519 of the Wendell 
H. Ford Aviation Investment and Reform Act for the 21st Century, 49 
U.S.C. 42121 (``AIR21''), which provides for employee protection from 
discrimination by air carriers or contractors or subcontractors of air 
carriers because the employee has engaged in protected activity 
pertaining to a violation or alleged violation of any order, regulation, 
or standard of the Federal Aviation Administration or any other 
provision of Federal law relating to air carrier safety.
    (b) This part establishes procedures pursuant to AIR21 for the 
expeditious handling of discrimination complaints made by employees, or 
by persons acting on their behalf. These rules, together with those 
rules codified at 29 CFR part 18, set forth the procedures for 
submission of complaints under AIR21, investigations, issuance of 
findings and preliminary orders, objections to findings and orders, 
litigation before administrative law judges, post-hearing administrative 
review, and withdrawals and settlements.



Sec. 1979.101  Definitions.

    Act or AIR21 means section 519 of the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century, Public Law 106-181, 
April 5, 2000, 49 U.S.C. 42121.
    Air carrier means a citizen of the United States undertaking by any 
means, directly or indirectly, to provide air transportation.
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under the Act.
    Complainant means the employee who filed a complaint under the Act 
or on whose behalf a complaint was filed.
    Contractor means a company that performs safety-sensitive functions 
by contract for an air carrier.
    Employee means an individual presently or formerly working for an 
air carrier or contractor or subcontractor of an air carrier, an 
individual applying to work for an air carrier or contractor or 
subcontractor of an air carrier, or an individual whose employment could 
be affected by an air carrier or contractor or subcontractor of an air 
carrier.
    Named person means the person alleged to have violated the Act.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Person means one or more individuals, partnerships, associations, 
corporations, business trusts, legal representatives, or any group of 
persons.
    Secretary means the Secretary of Labor or persons to whom authority 
under the Act has been delegated.



Sec. 1979.102  Obligations and prohibited acts.

    (a) No air carrier or contractor or subcontractor of an air carrier 
may discharge any employee or otherwise discriminate against any 
employee with respect to the employee's compensation, terms, conditions, 
or privileges of employment because the employee, or any person acting 
pursuant to the employee's request, engaged in

[[Page 207]]

any of the activities specified in paragraphs (b)(1) through (4) of this 
section.
    (b) It is a violation of the Act for any air carrier or contractor 
or subcontractor of an air carrier to intimidate, threaten, restrain, 
coerce, blacklist, discharge or in any other manner discriminate against 
any employee because the employee has:
    (1) Provided, caused to be provided, or is about to provide (with 
any knowledge of the employer) or cause to be provided to the air 
carrier or contractor or subcontractor of an air carrier or the Federal 
Government, information relating to any violation or alleged violation 
of any order, regulation, or standard of the Federal Aviation 
Administration or any other provision of Federal law relating to air 
carrier safety under subtitle VII of title 49 of the United States Code 
or under any other law of the United States;
    (2) Filed, caused to be filed, or is about to file (with any 
knowledge of the employer) or cause to be filed a proceeding relating to 
any violation or alleged violation of any order, regulation, or standard 
of the Federal Aviation Administration or any other provision of Federal 
law relating to air carrier safety under subtitle VII of title 49 of the 
United States Code, or under any other law of the United States;
    (3) Testified or is about to testify in such a proceeding; or
    (4) Assisted or participated or is about to assist or participate in 
such a proceeding.
    (c) This part shall have no application to any employee of an air 
carrier, contractor, or subcontractor who, acting without direction from 
an air carrier, contractor, or subcontractor (or such person's agent) 
deliberately causes a violation of any requirement relating to air 
carrier safety under Subtitle VII Aviation Programs of Title 49 of the 
United States Code or any other law of the United States.



Sec. 1979.103  Filing of discrimination complaint.

    (a) Who may file. An employee who believes that he or she has been 
discriminated against by an air carrier or contractor or subcontractor 
of an air carrier in violation of the Act may file, or have filed by any 
person on the employee's behalf, a complaint alleging such 
discrimination.
    (b) Nature of filing. No particular form of complaint is required, 
except that a complaint must be in writing and should include a full 
statement of the acts and omissions, with pertinent dates, which are 
believed to constitute the violations.
    (c) Place of filing. The complaint should be filed with the OSHA 
Area Director responsible for enforcement activities in the geographical 
area where the employee resides or was employed, but may be filed with 
any OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: http://www.osha.gov.
    (d) Time for filing. Within 90 days after an alleged violation of 
the Act occurs (i.e., when the discriminatory decision has been both 
made and communicated to the complainant), an employee who believes that 
he or she has been discriminated against in violation of the Act may 
file, or have filed by any person on the employee's behalf, a complaint 
alleging such discrimination. The date of the postmark, facsimile 
transmittal, or e-mail communication will be considered to be the date 
of filing; if the complaint is filed in person, by hand-delivery, or 
other means, the complaint is filed upon receipt.
    (e) Relationship to section 11(c) complaints. A complaint filed 
under AIR21 that alleges facts which would constitute a violation of 
section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 
660(c), shall be deemed to be a complaint filed under both AIR21 and 
section 11(c). Similarly, a complaint filed under section 11(c) that 
alleges facts that would constitute a violation of AIR21 shall be deemed 
to be a complaint filed under both AIR21 and section 11(c). Normal 
procedures and timeliness requirements for investigations under the 
respective laws and regulations will be followed.

[[Page 208]]



Sec. 1979.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the named person of the filing of the 
complaint, of the allegations contained in the complaint, and of the 
substance of the evidence supporting the complaint (redacted to protect 
the identity of any confidential informants). The Assistant Secretary 
will also notify the named person of his or her rights under paragraphs 
(b) and (c) of this section and paragraph (e) of Sec. 1979.110. A copy 
of the notice to the named person will also be provided to the Federal 
Aviation Administration.
    (b) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected behavior or 
conduct was a contributing factor in the unfavorable personnel action 
alleged in the complaint.
    (1) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity or conduct;
    (ii) The named person knew or suspected, actually or constructively, 
that the employee engaged in the protected activity;
    (iii) The employee suffered an unfavorable personnel action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the unfavorable 
action.
    (2) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews of 
the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give rise 
to an inference that the named person knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the unfavorable personnel action. Normally 
the burden is satisfied, for example, if the complaint shows that the 
adverse personnel action took place shortly after the protected 
activity, giving rise to the inference that it was a factor in the 
adverse action. If the required showing has not been made, the 
complainant will be so advised and the investigation will not commence.
    (c) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted if the named person, pursuant to the 
procedures provided in this paragraph, demonstrates by clear and 
convincing evidence that it would have taken the same unfavorable 
personnel action in the absence of the complainant's protected behavior 
or conduct. Within 20 days of receipt of the notice of the filing of the 
complaint, the named person may submit to the Assistant Secretary a 
written statement and any affidavits or documents substantiating his or 
her position. Within the same 20 days the named person may request a 
meeting with the Assistant Secretary to present his or her position.
    (d) If the named person fails to demonstrate by clear and convincing 
evidence that it would have taken the same unfavorable personnel action 
in the absence of the behavior protected by the Act, the Assistant 
Secretary will conduct an investigation. Investigations will be 
conducted in a manner that protects the confidentiality of any person 
who provides information on a confidential basis, other than the 
complainant, in accordance with 29 CFR part 70.
    (e) Prior to the issuance of findings and a preliminary order as 
provided for in Sec. 1979.105, if the Assistant Secretary has reasonable 
cause, on the basis of information gathered under the procedures of this 
part, to believe that the named person has violated the Act and that 
preliminary reinstatement is warranted, the Assistant Secretary will 
again contact the named person to give notice of the substance of the 
relevant evidence supporting the complainant's allegations as developed 
during the course of the investigation. This evidence includes any 
witness statements, which will be redacted to protect the identity of 
confidential informants where statements were given in confidence; if 
the statements cannot be redacted without revealing the identity

[[Page 209]]

of confidential informants, summaries of their contents will be 
provided. The named person shall be given the opportunity to submit a 
written response, to meet with the investigators to present statements 
from witnesses in support of his or her position, and to present legal 
and factual arguments. The named person shall present this evidence 
within ten business days of the Assistant Secretary's notification 
pursuant to this paragraph, or as soon afterwards as the Assistant 
Secretary and the named person can agree, if the interests of justice so 
require.



Sec. 1979.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days of 
filing of the complaint, written findings as to whether or not there is 
reasonable cause to believe that the named person has discriminated 
against the complainant in violation of the Act.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, he or she will accompany 
the findings with a preliminary order providing relief to the 
complainant. The preliminary order will include, where appropriate, a 
requirement that the named person abate the violation; reinstatement of 
the complainant to his or her former position, together with the 
compensation (including back pay), terms, conditions and privileges of 
the complainant's employment; and payment of compensatory damages. Where 
the named person establishes that the complainant is a security risk 
(whether or not the information is obtained after the complainant's 
discharge), a preliminary order of reinstatement would not be 
appropriate. At the complainant's request the order shall also assess 
against the named person the complainant's costs and expenses (including 
attorney's and expert witness fees) reasonably incurred in connection 
with the filing of the complaint.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and the preliminary order will be sent by certified 
mail, return receipt requested, to all parties of record. The letter 
accompanying the findings and order will inform the parties of their 
right to file objections and to request a hearing, and of the right of 
the named person to request attorney's fees from the administrative law 
judge, regardless of whether the named person has filed objections, if 
the named person alleges that the complaint was frivolous or brought in 
bad faith. The letter also will give the address of the Chief 
Administrative Law Judge. At the same time, the Assistant Secretary will 
file with the Chief Administrative Law Judge, U.S. Department of Labor, 
a copy of the original complaint and a copy of the findings and order.
    (c) The findings and the preliminary order shall be effective 30 
days after receipt by the named person pursuant to paragraph (b) of this 
section, unless an objection and a request for a hearing has been filed 
as provided at Sec. 1979.106. However, the portion of any preliminary 
order requiring reinstatement shall be effective immediately upon 
receipt of the findings and preliminary order.



                          Subpart B--Litigation



Sec. 1979.106  Objections to the findings and the preliminary order and request for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and preliminary order, or a named person alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney's fees, must file any objections and/or a request for a hearing 
on the record within 30 days of receipt of the findings and preliminary 
order pursuant to paragraph (b) of Sec. 1979.105. The objection or 
request for attorney's fees and request for a hearing must be in writing 
and state whether the objection is to the findings, the preliminary 
order, and/or whether there should be an award of attorney's fees. The 
date of the postmark, facsimile transmittal, or e-mail communication 
will be considered to be the date of filing; if the objection is filed 
in person, by hand-delivery or other means, the objection is filed upon

[[Page 210]]

receipt. Objections must be filed with the Chief Administrative Law 
Judge, U.S. Department of Labor, Washington, DC 20001, and copies of the 
objections must be mailed at the same time to the other parties of 
record, the OSHA official who issued the findings and order, and the 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, Washington, DC 20210.
    (b)(1) If a timely objection is filed, all provisions of the 
preliminary order shall be stayed, except for the portion requiring 
preliminary reinstatement. The portion of the preliminary order 
requiring reinstatement shall be effective immediately upon the named 
person's receipt of the findings and preliminary order, regardless of 
any objections to the order.
    (2) If no timely objection is filed with respect to either the 
findings or the preliminary order, the findings or preliminary order, as 
the case may be, shall become the final decision of the Secretary, not 
subject to judicial review.



Sec. 1979.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A, of 29 CFR part 18.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to a judge who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted as hearings de novo, on the record. 
Administrative law judges shall have broad discretion to limit discovery 
in order to expedite the hearing.
    (c) If both the complainant and the named person object to the 
findings and/or order, the objections will be consolidated and a single 
hearing will be conducted.
    (d) Formal rules of evidence shall not apply, but rules or 
principles designed to assure production of the most probative evidence 
shall be applied. The administrative law judge may exclude evidence 
which is immaterial, irrelevant, or unduly repetitious.



Sec. 1979.108  Role of Federal agencies.

    (a)(1) The complainant and the named person shall be parties in 
every proceeding. At the Assistant Secretary's discretion, the Assistant 
Secretary may participate as a party or may participate as amicus curiae 
at any time in the proceedings. This right to participate shall include, 
but is not limited to, the right to petition for review of a decision of 
an administrative law judge, including a decision based on a settlement 
agreement between complainant and the named person, to dismiss a 
complaint or to issue an order encompassing the terms of the settlement.
    (2) Copies of pleadings in all cases, whether or not the Assistant 
Secretary is participating in the proceeding, must be sent to the 
Assistant Secretary, Occupational Safety and Health Administration, and 
to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, DC 20210.
    (b) The FAA may participate as amicus curiae at any time in the 
proceedings, at the FAA's discretion. At the request of the FAA, copies 
of all pleadings in a case must be sent to the FAA, whether or not the 
FAA is participating in the proceeding.



Sec. 1979.109  Decision and orders of the administrative law judge.

    (a) The decision of the administrative law judge will contain 
appropriate findings, conclusions, and an order pertaining to the 
remedies provided in paragraph (b) of this section, as appropriate. A 
determination that a violation has occurred may only be made if the 
complainant has demonstrated that protected behavior or conduct was a 
contributing factor in the unfavorable personnel action alleged in the 
complaint. Relief may not be ordered if the named person demonstrates by 
clear and convincing evidence that it would have taken the same 
unfavorable personnel action in the absence of any protected behavior. 
Neither the Assistant Secretary's determination to dismiss a complaint 
without completing

[[Page 211]]

an investigation pursuant to Sec. 1979.104(b) nor the Assistant 
Secretary's determination to proceed with an investigation is subject to 
review by the administrative law judge, and a complaint may not be 
remanded for the completion of an investigation or for additional 
findings on the basis that a determination to dismiss was made in error. 
Rather, if there otherwise is jurisdiction, the administrative law judge 
shall hear the case on the merits.
    (b) If the administrative law judge concludes that the party charged 
has violated the law, the order shall direct the party charged to take 
appropriate affirmative action to abate the violation, including, where 
appropriate, reinstatement of the complainant to that person's former 
position, together with the compensation (including back pay), terms, 
conditions, and privileges of that employment, and compensatory damages. 
At the request of the complainant, the administrative law judge shall 
assess against the named person all costs and expenses (including 
attorney's and expert witness fees) reasonably incurred. If, upon the 
request of the named person, the administrative law judge determines 
that a complaint was frivolous or was brought in bad faith, the judge 
may award to the named person a reasonable attorney's fee, not exceeding 
$1,000.
    (c) The decision will be served upon all parties to the proceeding. 
Any administrative law judge's decision requiring reinstatement or 
lifting an order of reinstatement by the Assistant Secretary shall be 
effective immediately upon receipt of the decision by the named person, 
and may not be stayed. All other portions of the judge's order shall be 
effective ten business days after the date of the decision unless a 
timely petition for review has been filed with the Administrative Review 
Board.



Sec. 1979.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, of 
a decision of the administrative law judge, or a named person alleging 
that the complaint was frivolous or brought in bad faith who seeks an 
award of attorney's fees, must file a written petition for review with 
the Administrative Review Board (``the Board''), which has been 
delegated the authority to act for the Secretary and issue final 
decisions under this part. The decision of the administrative law judge 
shall become the final order of the Secretary unless, pursuant to this 
section, a petition for review is timely filed with the Board. The 
petition for review must specifically identify the findings, conclusions 
or orders to which exception is taken. Any exception not specifically 
urged ordinarily shall be deemed to have been waived by the parties. To 
be effective, a petition must be filed within ten business days of the 
date of the decision of the administrative law judge. The date of the 
postmark, facsimile transmittal, or e-mail communication will be 
considered to be the date of filing; if the petition is filed in person, 
by hand-delivery or other means, the petition is considered filed upon 
receipt. The petition must be served on all parties and on the Chief 
Administrative Law Judge at the time it is filed with the Board. Copies 
of the petition for review and all briefs must be served on the 
Assistant Secretary, Occupational Safety and Health Administration, and 
on the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, DC 20210.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the administrative law judge shall 
become the final order of the Secretary unless the Board, within 30 days 
of the filing of the petition, issues an order notifying the parties 
that the case has been accepted for review. If a case is accepted for 
review, the decision of the administrative law judge shall be 
inoperative unless and until the Board issues an order adopting the 
decision, except that a preliminary order of reinstatement shall be 
effective while review is conducted by the Board. The Board will specify 
the terms under which any briefs are to be filed. The Board will review 
the factual determinations of the administrative law judge under the 
substantial evidence standard.
    (c) The final decision of the Board shall be issued within 120 days 
of the conclusion of the hearing, which shall be deemed to be the 
conclusion of all

[[Page 212]]

proceedings before the administrative law judge--i.e., ten business days 
after the date of the decision of the administrative law judge unless a 
motion for reconsideration has been filed with the administrative law 
judge in the interim. The decision will be served upon all parties and 
the Chief Administrative Law Judge by mail to the last known address. 
The final decision will also be served on the Assistant Secretary, 
Occupational Safety and Health Administration, and on the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
Washington, DC 20210, even if the Assistant Secretary is not a party.
    (d) If the Board concludes that the party charged has violated the 
law, the final order shall order the party charged to take appropriate 
affirmative action to abate the violation, including, where appropriate, 
reinstatement of the complainant to that person's former position, 
together with the compensation (including back pay), terms, conditions, 
and privileges of that employment, and compensatory damages. At the 
request of the complainant, the Board shall assess against the named 
person all costs and expenses (including attorney's and expert witness 
fees) reasonably incurred.
    (e) If the Board determines that the named person has not violated 
the law, an order shall be issued denying the complaint. If, upon the 
request of the named person, the Board determines that a complaint was 
frivolous or was brought in bad faith, the Board may award to the named 
person a reasonable attorney's fee, not exceeding $1,000.



                   Subpart C--Miscellaneous Provisions



Sec. 1979.111  Withdrawal of complaints, objections, and findings; settlement.

    (a) At any time prior to the filing of objections to the findings or 
preliminary order, a complainant may withdraw his or her complaint under 
the Act by filing a written withdrawal with the Assistant Secretary. The 
Assistant Secretary will then determine whether the withdrawal will be 
approved. The Assistant Secretary will notify the named person of the 
approval of any withdrawal. If the complaint is withdrawn because of 
settlement, the settlement shall be approved in accordance with 
paragraph (d) of this section.
    (b) The Assistant Secretary may withdraw his or her findings or a 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec. 1979.106, provided that no objection 
has yet been filed, and substitute new findings or preliminary order. 
The date of the receipt of the substituted findings or order will begin 
a new 30-day objection period.
    (c) At any time before the findings or order become final, a party 
may withdraw his or her objections to the findings or order by filing a 
written withdrawal with the administrative law judge or, if the case is 
on review, with the Board. The judge or the Board, as the case may be, 
will determine whether the withdrawal will be approved. If the 
objections are withdrawn because of settlement, the settlement shall be 
approved in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if the 
Assistant Secretary, the complainant and the named person agree to a 
settlement.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the administrative law judge if the case 
is before the judge, or by the Board if a timely petition for review has 
been filed with the Board. A copy of the settlement shall be filed with 
the administrative law judge or the Board, as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the 
administrative law judge, or the Board, shall constitute the final order 
of the Secretary and may be enforced pursuant to Sec. 1979.113.



Sec. 1979.112  Judicial review.

    (a) Within 60 days after the issuance of a final order by the Board 
under Sec. 1979.110, any person adversely affected

[[Page 213]]

or aggrieved by the order may file a petition for review of the order in 
the United States Court of Appeals for the circuit in which the 
violation allegedly occurred or the circuit in which the complainant 
resided on the date of the violation. A final order of the Board is not 
subject to judicial review in any criminal or other civil proceeding.
    (b) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the administrative law judge, 
will be transmitted by the Board to the appropriate court pursuant to 
the rules of the court.



Sec. 1979.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order of 
reinstatement or a final order or the terms of a settlement agreement, 
the Secretary or a person on whose behalf the order was issued may file 
a civil action seeking enforcement of the order in the United States 
district court for the district in which the violation was found to have 
occurred.



Sec. 1979.114  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of this 
part, or for good cause shown, the administrative law judge or the Board 
on review may, upon application, after three days notice to all parties 
and interveners, waive any rule or issue any orders that justice or the 
administration of the Act requires.



PART 1980--PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS UNDER SECTION 806 OF THE CORPORATE AND CRIMINAL FRAUD ACCOUNTABILITY ACT OF 2002, TITLE VIII 
OF THE SARBANES-OXLEY ACT OF 2002--Table of Contents




 Subpart A--Complaints, Investigations, Findings and Preliminary Orders

Sec.
1980.100  Purpose and scope.
1980.101  Definitions.
1980.102  Obligations and prohibited acts.
1980.103  Filing of discrimination complaint.
1980.104  Investigation.
1980.105  Issuance of findings and preliminary orders.

                          Subpart B--Litigation

1980.106  Objections to the findings and the preliminary order and 
          request for a hearing.
1980.107  Hearings.
1980.108  Role of Federal agencies.
1980.109  Decision and orders of the administrative law judge.
1980.110  Decision and orders of the Administrative Review Board.

                   Subpart C--Miscellaneous Provisions

1980.111  Withdrawal of complaints, objections, and findings; 
          settlement.
1980.112  Judicial review.
1980.113  Judicial enforcement.
1980.114  District Court jurisdiction of discrimination complaints.
1980.115  Special circumstances; waiver of rules.

    Authority: 18 U.S.C. 1514A; Secretary of Labor's Order No. 5-2002, 
67 FR 65008 (October 22, 2002).

    Source: 68 FR 31864, May 28, 2003, unless otherwise noted.



 Subpart A--Complaints, Investigations, Findings and Preliminary Orders



Sec. 1980.100  Purpose and scope.

    (a) This part implements procedures under section 806 of the 
Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of 
the Sarbanes-Oxley Act of 2002 (``Sarbanes-Oxley'' or ``Act''), enacted 
into law July 30, 2002. Sarbanes-Oxley provides for employee protection 
from discrimination by companies and representatives of companies 
because the employee has engaged in protected activity pertaining to a 
violation or alleged violation of 18 U.S.C. 1341, 1343, 1344, or 1348, 
or any rule or regulation of the Securities and Exchange Commission, or 
any provision of Federal law relating to fraud against shareholders.
    (b) This part establishes procedures pursuant to Sarbanes-Oxley for 
the expeditious handling of discrimination complaints made by employees, 
or by persons acting on their behalf. These rules, together with those 
rules codified at 29 CFR part 18, set forth the

[[Page 214]]

procedures for submission of complaints under Sarbanes-Oxley, 
investigations, issuance of findings and preliminary orders, objections 
to findings and orders, litigation before administrative law judges, 
post-hearing administrative review, and withdrawals and settlements.



Sec. 1980.101  Definitions.

    Act means section 806 of the Corporate and Criminal Fraud 
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 
2002, Public Law No. 107-204, July 30, 2002, codified at 18 U.S.C. 
1514A.
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health or the person or persons to whom he or 
she delegates authority under the Act.
    Company means any company with a class of securities registered 
under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l) 
and any company required to file reports under section 15(d) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o(d)).
    Company representative means any officer, employee, contractor, 
subcontractor, or agent of a company.
    Complainant means the employee who filed a complaint under the Act 
or on whose behalf a complaint was filed.
    Employee means an individual presently or formerly working for a 
company or company representative, an individual applying to work for a 
company or company representative, or an individual whose employment 
could be affected by a company or company representative.
    Named person means the employer and/or the company or company 
representative named in the complaint who is alleged to have violated 
the Act.
    OSHA means the Occupational Safety and Health Administration of the 
United States Department of Labor.
    Person means one or more individuals, partnerships, associations, 
corporations, business trusts, legal representatives or any group of 
persons.
    Secretary means the Secretary of Labor or persons to whom authority 
under the Act has been delegated.



Sec. 1980.102  Obligations and prohibited acts.

    (a) No company or company representative may discharge, demote, 
suspend, threaten, harass or in any other manner discriminate against 
any employee with respect to the employee's compensation, terms, 
conditions, or privileges of employment because the employee, or any 
person acting pursuant to the employee's request, engaged in any of the 
activities specified in paragraphs (b)(1) through (2) of this section.
    (b) A company or company representative is deemed to have violated 
the Act if it intimidates, threatens, restrains, coerces, blacklists, or 
in any other manner discriminates against an employee in the terms and 
conditions of employment because of any lawful act done by the employee:
    (1) To provide information, cause information to be provided, or 
otherwise assist in an investigation regarding any conduct which the 
employee reasonably believes constitutes a violation of 18 U.S.C. 1341, 
1343, 1344, or 1348, any rule or regulation of the Securities and 
Exchange Commission, or any provision of Federal law relating to fraud 
against shareholders, when the information or assistance is provided to 
or the investigation is conducted by--
    (i) A Federal regulatory or law enforcement agency;
    (ii) Any Member of Congress or any committee of Congress; or
    (iii) A person with supervisory authority over the employee (or such 
other person working for the employer who has the authority to 
investigate, discover, or terminate misconduct); or
    (2) To file, cause to be filed, testify, participate in, or 
otherwise assist in a proceeding filed or about to be filed (with any 
knowledge of the employer) relating to an alleged violation of 18 U.S.C. 
1341, 1343, 1344, or 1348, any rule or regulation of the Securities and 
Exchange Commission, or any provision of Federal law relating to fraud 
against shareholders.



Sec. 1980.103  Filing of discrimination complaint.

    (a) Who may file. An employee who believes that he or she has been 
discriminated against by a company or

[[Page 215]]

company representative in violation of the Act may file, or have filed 
by any person on the employee's behalf, a complaint alleging such 
discrimination.
    (b) Nature of filing. No particular form of complaint is required, 
except that a complaint must be in writing and should include a full 
statement of the acts and omissions, with pertinent dates, which are 
believed to constitute the violations.
    (c) Place of filing. The complaint should be filed with the OSHA 
Area Director responsible for enforcement activities in the geographical 
area where the employee resides or was employed, but may be filed with 
any OSHA officer or employee. Addresses and telephone numbers for these 
officials are set forth in local directories and at the following 
Internet address: http://www.osha.gov.
    (d) Time for filing. Within 90 days after an alleged violation of 
the Act occurs (i.e., when the discriminatory decision has been both 
made and communicated to the complainant), an employee who believes that 
he or she has been discriminated against in violation of the Act may 
file, or have filed by any person on the employee's behalf, a complaint 
alleging such discrimination. The date of the postmark, facsimile 
transmittal, or e-mail communication will be considered to be the date 
of filing; if the complaint is filed in person, by hand-delivery, or 
other means, the complaint is filed upon receipt.



Sec. 1980.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the named person (or named persons) of 
the filing of the complaint, of the allegations contained in the 
complaint, and of the substance of the evidence supporting the complaint 
(redacted to protect the identity of any confidential informants). The 
Assistant Secretary also will notify the named person of its right under 
paragraphs (b) and (c) of this section and paragraph (e) of 
Sec. 1980.110. A copy of the notice to the named person will also be 
provided to the Securities and Exchange Commission.
    (b) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected behavior or 
conduct was a contributing factor in the unfavorable personnel action 
alleged in the complaint.
    (1) The complaint, supplemented as appropriate by interviews of the 
complainant, must allege the existence of facts and evidence to make a 
prima facie showing as follows:
    (i) The employee engaged in a protected activity or conduct;
    (ii) The named person knew or suspected, actually or constructively, 
that the employee engaged in the protected activity;
    (iii) The employee suffered an unfavorable personnel action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the unfavorable 
action.
    (2) For purposes of determining whether to investigate, the 
complainant will be considered to have met the required burden if the 
complaint on its face, supplemented as appropriate through interviews of 
the complainant, alleges the existence of facts and either direct or 
circumstantial evidence to meet the required showing, i.e., to give rise 
to an inference that the named person knew or suspected that the 
employee engaged in protected activity and that the protected activity 
was a contributing factor in the unfavorable personnel action. Normally 
the burden is satisfied, for example, if the complaint shows that the 
adverse personnel action took place shortly after the protected 
activity, giving rise to the inference that it was a factor in the 
adverse action. If the required showing has not been made, the 
complainant will be so advised and the investigation will not commence.
    (c) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint will not be conducted if the named person, pursuant to the 
procedures provided in this paragraph, demonstrates by clear and 
convincing evidence that it would have taken the same unfavorable 
personnel action in the absence of the complainant's protected behavior 
or

[[Page 216]]

conduct. Within 20 days of receipt of the notice of the filing of the 
complaint, the named person may submit to the Assistant Secretary a 
written statement and any affidavits or documents substantiating its 
position. Within the same 20 days, the named person may request a 
meeting with the Assistant Secretary to present its position.
    (d) If the named person fails to demonstrate by clear and convincing 
evidence that it would have taken the same unfavorable personnel action 
in the absence of the behavior protected by the Act, the Assistant 
Secretary will conduct an investigation. Investigations will be 
conducted in a manner that protects the confidentiality of any person 
who provides information on a confidential basis, other than the 
complainant, in accordance with part 70 of this title.
    (e) Prior to the issuance of findings and a preliminary order as 
provided for in Sec. 1980.105, if the Assistant Secretary has reasonable 
cause, on the basis of information gathered under the procedures of this 
part, to believe that the named person has violated the Act and that 
preliminary reinstatement is warranted, the Assistant Secretary will 
again contact the named person to give notice of the substance of the 
relevant evidence supporting the complainant's allegations as developed 
during the course of the investigation. This evidence includes any 
witness statements, which will be redacted to protect the identity of 
confidential informants where statements were given in confidence; if 
the statements cannot be redacted without revealing the identity of 
confidential informants, summaries of their contents will be provided. 
The named person will be given the opportunity to submit a written 
response, to meet with the investigators to present statements from 
witnesses in support of its position, and to present legal and factual 
arguments. The named person will be directed to present this evidence 
within ten business days of the Assistant Secretary's notification 
pursuant to this paragraph, or as soon afterwards as the Assistant 
Secretary and the named person can agree, if the interests of justice so 
require.



Sec. 1980.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary will issue, within 60 days of 
filing of the complaint, written findings as to whether or not there is 
reasonable cause to believe that the named person has discriminated 
against the complainant in violation of the Act.
    (1) If the Assistant Secretary concludes that there is reasonable 
cause to believe that a violation has occurred, he or she will accompany 
the findings with a preliminary order providing relief to the 
complainant. The preliminary order will include all relief necessary to 
make the employee whole, including: Where appropriate, reinstatement 
with the same seniority status that the employee would have had but for 
the discrimination; back pay with interest; and compensation for any 
special damages sustained as a result of the discrimination, including 
litigation costs, expert witness fees, and reasonable attorney's fees. 
Where the named person establishes that the complainant is a security 
risk (whether or not the information is obtained after the complainant's 
discharge), a preliminary order of reinstatement would not be 
appropriate.
    (2) If the Assistant Secretary concludes that a violation has not 
occurred, the Assistant Secretary will notify the parties of that 
finding.
    (b) The findings and the preliminary order will be sent by certified 
mail, return receipt requested, to all parties of record. The letter 
accompanying the findings and order will inform the parties of their 
right to file objections and to request a hearing, and of the right of 
the named person to request attorney's fees from the ALJ, regardless of 
whether the named person has filed objections, if the named person 
alleges that the complaint was frivolous or brought in bad faith. The 
letter also will give the address of the Chief Administrative Law Judge. 
At the same time, the Assistant Secretary will file with the Chief 
Administrative Law Judge, U.S. Department of Labor, a copy of the 
original complaint and a copy of the findings and order.

[[Page 217]]

    (c) The findings and the preliminary order will be effective 30 days 
after receipt by the named person pursuant to paragraph (b) of this 
section, unless an objection and a request for a hearing has been filed 
as provided at Sec. 1980.106. However, the portion of any preliminary 
order requiring reinstatement will be effective immediately upon receipt 
of the findings and preliminary order.



                          Subpart B--Litigation



Sec. 1980.106  Objections to the findings and the preliminary order and request for a hearing.

    (a) Any party who desires review, including judicial review, of the 
findings and preliminary order, or a named person alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorneys' fees, must file any objections and a request for a hearing on 
the record within 30 days of receipt of the findings and preliminary 
order pursuant to Sec. 1980.105(b). The objection or request for 
attorneys' fees and request for a hearing must be in writing and state 
whether the objection is to the findings, the preliminary order, and/or 
whether there should be an award of attorneys' fees. The date of the 
postmark, facsimile transmittal, or e-mail communication will be 
considered to be the date of filing; if the objection is filed in 
person, by hand-delivery or other means, the objection is filed upon 
receipt. Objections must be filed with the Chief Administrative Law 
Judge, U.S. Department of Labor, Washington, DC 20001, and copies of the 
objections must be mailed at the same time to the other parties of 
record, the OSHA official who issued the findings and order, and the 
Associate Solicitor, Division of Fair Labor Standards, U.S. Department 
of Labor, Washington, DC 20210.
    (b)(1) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement. The portion of the preliminary order 
requiring reinstatement will be effective immediately upon the named 
person's receipt of the findings and preliminary order, regardless of 
any objections to the order.
    (2) If no timely objection is filed with respect to either the 
findings or the preliminary order, the findings or preliminary order, as 
the case may be, will become the final decision of the Secretary, not 
subject to judicial review.



Sec. 1980.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure for 
administrative hearings before the Office of Administrative Law Judges, 
codified at subpart A, part 18 of title 29 of the Code of Federal 
Regulations.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to a judge who 
will notify the parties, by certified mail, of the day, time, and place 
of hearing. The hearing is to commence expeditiously, except upon a 
showing of good cause or unless otherwise agreed to by the parties. 
Hearings will be conducted as hearings de novo, on the record. 
Administrative law judges will have broad discretion to limit discovery 
in order to expedite the hearing.
    (c) If the complainant and the named person object to the findings 
and/or order, the objections will be consolidated and a single hearing 
will be conducted.
    (d) Formal rules of evidence will not apply, but rules or principles 
designed to assure production of the most probative evidence will be 
applied. The administrative law judge may exclude evidence that is 
immaterial, irrelevant, or unduly repetitious.



Sec. 1980.108  Role of Federal agencies.

    (a)(1) The complainant and the named person will be parties in every 
proceeding. At the Assistant Secretary's discretion, the Assistant 
Secretary may participate as a party or may participate as amicus curiae 
at any time in the proceedings. This right to participate includes, but 
is not limited to, the right to petition for review of a decision of an 
administrative law judge, including a decision based on a settlement 
agreement between complainant and the named person, to dismiss a 
complaint or to issue an order

[[Page 218]]

encompassing the terms of the settlement.
    (2) Copies of pleadings in all cases, whether or not the Assistant 
Secretary is participating in the proceeding, must be sent to the 
Assistant Secretary, Occupational Safety and Health Administration, and 
to the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, DC 20210.
    (b) The Securities and Exchange Commission (SEC) may participate as 
amicus curiae at any time in the proceedings, at the SEC's discretion. 
At the request of the SEC, copies of all pleadings in a case must be 
sent to the SEC, whether or not the SEC is participating in the 
proceeding.



Sec. 1980.109  Decision and orders of the administrative law judge.

    (a) The decision of the administrative law judge will contain 
appropriate findings, conclusions, and an order pertaining to the 
remedies provided in paragraph (b) of this section, as appropriate. A 
determination that a violation has occurred may only be made if the 
complainant has demonstrated that protected behavior or conduct was a 
contributing factor in the unfavorable personnel action alleged in the 
complaint. Relief may not be ordered if the named person demonstrates by 
clear and convincing evidence that it would have taken the same 
unfavorable personnel action in the absence of any protected behavior. 
Neither the Assistant Secretary's determination to dismiss a complaint 
without completing an investigation pursuant to Sec. 1980.104(b) nor the 
Assistant Secretary's determination to proceed with an investigation is 
subject to review by the administrative law judge, and a complaint may 
not be remanded for the completion of an investigation or for additional 
findings on the basis that a determination to dismiss was made in error. 
Rather, if there otherwise is jurisdiction, the administrative law judge 
will hear the case on the merits.
    (b) If the administrative law judge concludes that the party charged 
has violated the law, the order will provide all relief necessary to 
make the employee whole, including reinstatement of the complainant to 
that person's former position with the seniority status that the 
complainant would have had but for the discrimination, back pay with 
interest, and compensation for any special damages sustained as a result 
of the discrimination, including litigation costs, expert witness fees, 
and reasonable attorney's fees. If, upon the request of the named 
person, the administrative law judge determines that a complaint was 
frivolous or was brought in bad faith, the judge may award to the named 
person a reasonable attorney's fee, not exceeding $1,000.
    (c) The decision will be served upon all parties to the proceeding. 
Any administrative law judge's decision requiring reinstatement or 
lifting an order of reinstatement by the Assistant Secretary will be 
effective immediately upon receipt of the decision by the named person, 
and may not be stayed. All other portions of the judge's order will be 
effective ten business days after the date of the decision unless a 
timely petition for review has been filed with the Administrative Review 
Board.



Sec. 1980.110  Decision and orders of the Administrative Review Board.

    (a) Any party desiring to seek review, including judicial review, of 
a decision of the administrative law judge, or a named person alleging 
that the complaint was frivolous or brought in bad faith who seeks an 
award of attorney's fees, must file a written petition for review with 
the Administrative Review Board (``the Board''), which has been 
delegated the authority to act for the Secretary and issue final 
decisions under this part. The decision of the administrative law judge 
will become the final order of the Secretary unless, pursuant to this 
section, a petition for review is timely filed with the Board. The 
petition for review must specifically identify the findings, conclusions 
or orders to which exception is taken. Any exception not specifically 
urged ordinarily will be deemed to have been waived by the parties. To 
be effective, a petition must be filed within ten business days of the 
date of the decision of the administrative law judge. The date of the 
postmark, facsimile transmittal, or e-mail communication

[[Page 219]]

will be considered to be the date of filing; if the petition is filed in 
person, by hand-delivery or other means, the petition is considered 
filed upon receipt. The petition must be served on all parties and on 
the Chief Administrative Law Judge at the time it is filed with the 
Board. Copies of the petition for review and all briefs must be served 
on the Assistant Secretary, Occupational Safety and Health 
Administration, and on the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor, Washington, DC 20210.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the administrative law judge will 
become the final order of the Secretary unless the Board, within 30 days 
of the filing of the petition, issues an order notifying the parties 
that the case has been accepted for review. If a case is accepted for 
review, the decision of the administrative law judge will be inoperative 
unless and until the Board issues an order adopting the decision, except 
that a preliminary order of reinstatement will be effective while review 
is conducted by the Board. The Board will specify the terms under which 
any briefs are to be filed. The Board will review the factual 
determinations of the administrative law judge under the substantial 
evidence standard.
    (c) The final decision of the Board will be issued within 120 days 
of the conclusion of the hearing, which will be deemed to be the 
conclusion of all proceedings before the administrative law judge--i.e., 
10 business days after the date of the decision of the administrative 
law judge unless a motion for reconsideration has been filed with the 
administrative law judge in the interim. The decision will be served 
upon all parties and the Chief Administrative Law Judge by mail to the 
last known address. The final decision will also be served on the 
Assistant Secretary, Occupational Safety and Health Administration, and 
on the Associate Solicitor, Division of Fair Labor Standards, U.S. 
Department of Labor, Washington, DC 20210, even if the Assistant 
Secretary is not a party.
    (d) If the Board concludes that the party charged has violated the 
law, the final order will order the party charged to provide all relief 
necessary to make the employee whole, including reinstatement of the 
complainant to that person's former position with the seniority status 
that the complainant would have had but for the discrimination, back pay 
with interest, and compensation for any special damages sustained as a 
result of the discrimination, including litigation costs, expert witness 
fees, and reasonable attorneys' fees.
    (e) If the Board determines that the named person has not violated 
the law, an order will be issued denying the complaint. If, upon the 
request of the named person, the Board determines that a complaint was 
frivolous or was brought in bad faith, the Board may award to the named 
person a reasonable attorneys' fee, not exceeding $1,000.



                   Subpart C--Miscellaneous Provisions



Sec. 1980.111  Withdrawal of complaints, objections, and findings; settlement.

    (a) At any time prior to the filing of objections to the findings or 
preliminary order, a complainant may withdraw his or her complaint under 
the Act by filing a written withdrawal with the Assistant Secretary. The 
Assistant Secretary will then determine whether the withdrawal will be 
approved. The Assistant Secretary will notify the named person of the 
approval of any withdrawal. If the complaint is withdrawn because of 
settlement, the settlement will be approved in accordance with paragraph 
(d) of this section.
    (b) The Assistant Secretary may withdraw his or her findings or a 
preliminary order at any time before the expiration of the 30-day 
objection period described in Sec. 1980.106, provided that no objection 
has yet been filed, and substitute new findings or preliminary order. 
The date of the receipt of the substituted findings or order will begin 
a new 30-day objection period.
    (c) At any time before the findings or order become final, a party 
may withdraw his or her objections to the findings or order by filing a 
written withdrawal with the administrative law judge or, if the case is 
on review, with the Board. The judge or the Board, as

[[Page 220]]

the case may be, will determine whether the withdrawal will be approved. 
If the objections are withdrawn because of settlement, the settlement 
will be approved in accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
complaint, and before the findings and/or order are objected to or 
become a final order by operation of law, the case may be settled if the 
Assistant Secretary, the complainant and the named person agree to a 
settlement.
    (2) Adjudicatory settlements. At any time after the filing of 
objections to the Assistant Secretary's findings and/or order, the case 
may be settled if the participating parties agree to a settlement and 
the settlement is approved by the administrative law judge if the case 
is before the judge, or by the Board if a timely petition for review has 
been filed with the Board. A copy of the settlement will be filed with 
the administrative law judge or the Board, as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the 
administrative law judge, or the Board, will constitute the final order 
of the Secretary and may be enforced pursuant to Sec. 1980.113.



Sec. 1980.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec. 1980.110, any person adversely affected or aggrieved by the order 
may file a petition for review of the order in the United States Court 
of Appeals for the circuit in which the violation allegedly occurred or 
the circuit in which the complainant resided on the date of the 
violation. A final order of the Board is not subject to judicial review 
in any criminal or other civil proceeding.
    (b) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the administrative law judge, 
will be transmitted by the Board to the appropriate court pursuant to 
the rules of the court.



Sec. 1980.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order of 
reinstatement or a final order or the terms of a settlement agreement, 
the Secretary or a person on whose behalf the order was issued may file 
a civil action seeking enforcement of the order in the United States 
district court for the district in which the violation was found to have 
occurred.



Sec. 1980.114  District Court jurisdiction of discrimination complaints.

    (a) If the Board has not issued a final decision within 180 days of 
the filing of the complaint, and there is no showing that there has been 
delay due to the bad faith of the complainant, the complainant may bring 
an action at law or equity for de novo review in the appropriate 
district court of the United States, which will have jurisdiction over 
such an action without regard to the amount in controversy.
    (b) Fifteen days in advance of filing a complaint in Federal court, 
a complainant must file with the administrative law judge or the Board, 
depending upon where the proceeding is pending, a notice of his or her 
intention to file such a complaint. The notice must be served upon all 
parties to the proceeding. If the Assistant Secretary is not a party, a 
copy of the notice must be served on the Assistant Secretary, 
Occupational Safety and Health Administration, and on the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, 
Washington, DC 20210.



Sec. 1980.115  Special circumstances; waiver of rules.

    In special circumstances not contemplated by the provisions of this 
part, or for good cause shown, the administrative law judge or the Board 
on review may, upon application, after three days notice to all parties 
and interveners, waive any rule or issue any orders that justice or the 
administration of the Act requires.



PART 1990--IDENTIFICATION, CLASSIFICATION, AND REGULATION OF POTENTIAL OCCUPATIONAL CARCINOGENS--Table of Contents




                                 General

Sec.
1990.101  Scope.
1990.102  Purpose.
1990.103  Definitions.

[[Page 221]]

1990.104  Scientific review panel.
1990.105  Advisory committees.
1990.106  Amendments to this policy.

                         The OSHA Cancer Policy

1990.111  General statement of regulatory policy.
1990.112  Classification of potential carcinogens.

                            Priority Setting

1990.121  Candidate list of potential occupational carcinogens.
1990.122  Response to petitions.
1990.131  Priority lists for regulating potential occupational 
          carcinogens.
1990.132  Factors to be considered.
1990.133  Publication.

            Regulation of Potential Occupational Carcinogens

1990.141  Advance notice of proposed rulemaking.
1990.142  Initiation of a rulemaking.
1990.143  General provisions for the use of human and animal data.
1990.144  Criteria for consideration of arguments on certain issues.
1990.145  Consideration of substantial new issues or substantial new 
          evidence.
1990.146  Issues to be considered in the rulemaking.
1990.147  Final action.

                             Model Standards

1990.151  Model standard pursuant to section 6(b) of the Act.
1990.152  Model emergency temporary standard pursuant to section 6(c) of 
          the Act.

    Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 
(29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 8-76 (41 FR 
25059); and 29 CFR part 1911.

    Source: 45 FR 5282, Jan. 22, 1980, unless otherwise noted.

                                 General



Sec. 1990.101  Scope.

    This part establishes criteria and procedures for the 
identification, classification, and regulation of potential occupational 
carcinogens found in each workplace in the United States regulated by 
the Occupational Safety and Health Act of 1970 (the Act). The procedures 
contained in this part supplement the procedural regulations in other 
parts of this chapter. In the event of a conflict, the procedures 
contained in this part shall govern the identification, classification, 
and regulation of potential occupational carcinogens. This part may be 
referred to as ``The OSHA Cancer Policy.''



Sec. 1990.102  Purpose.

    The Act provides, among other things, that

the Secretary, in promulgating standards dealing with toxic materials or 
harmful physical agents under this section, shall set the standard which 
most adequately assures, to the extent feasible, on the basis of the 
best available evidence, that no employee will suffer material 
impairment of health or functional capacity even if such employee has 
regular exposure to the hazard dealt with by such standard for the 
period of his or her working life. Development of standards under this 
section shall be based upon research, demonstrations, experiments, and 
such other information as may be appropriate. In addition to the 
attainment of the highest degree of health and safety protection for the 
employee, other considerations shall be the latest available scientific 
data in the field, the feasibility of the standards, and experience 
gained under this and other health and safety laws. Whenever 
practicable, the standard promulgated shall be expressed in terms of 
objective criteria and of the performance desired (section 6(b)(5)).


It is the purpose of the regulations of this part to carry out the 
intent of the Act with respect to the identification, classification, 
and regulation of potential occupational carcinogens.



Sec. 1990.103  Definitions.

    Terms used in this part shall have the meanings set forth in the 
Act. In addition, as used in this part, the following terms shall have 
the meanings set forth below:
    Act means the Occupational Safety and Health Act of 1970 (Pub. L. 
91-596, 84 Stat. 1590 et seq., 29 U.S.C. 551 et seq.).
    Administrator of EPA means the Administrator of the United States 
Environmental Protection Agency, or designee.
    Chairperson of CPSC means the Chairman of the United States Consumer 
Product Safety Commission, or designee.
    Commissioner of FDA means the Commissioner of the Food and Drug 
Administration, United States Department of Health and Human Services, 
or designee.
    Director of NCI means the Director of the National Cancer Institute, 
United

[[Page 222]]

States Department of Health and Human Services, or designee.
    Director of NIEHS means the Director of the National Institute of 
Environmental Health Sciences, United States Department of Health and 
Human Services, or designee.
    Director of NIOSH means the Director of the National Institute for 
Occupational Safety and Health, United States Department of Health and 
Human Services, or designee.
    Mutagenesis means the induction of heritable changes in the genetic 
material of either somatic or germinal cells.
    Positive results in short-term tests means positive results in 
assays for two or more of the following types of effect:
    (1) The induction of DNA damage and/or repair;
    (2) Mutagenesis in bacteria, yeast, Neurospora or Drosophila 
melanogaster;
    (3) Mutagenesis in mammalian somatic cells;
    (4) Mutagenesis in mammalian germinal cells; or
    (5) Neoplastic transformation of mammalian cells in culture.
    Potential occupational carcinogen means any substance, or 
combination or mixture of substances, which causes an increased 
incidence of benign and/or malignant neoplasms, or a substantial 
decrease in the latency period between exposure and onset of neoplasms 
in humans or in one or more experimental mammalian species as the result 
of any oral, respiratory or dermal exposure, or any other exposure which 
results in the induction of tumors at a site other than the site of 
administration. This definition also includes any substance which is 
metabolized into one or more potential occupational carcinogens by 
mammals.
    Secretary of HHS means the Secretary of the United States Department 
of Health and Human Services, or designee.



Sec. 1990.104  Scientific review panel.

    (a) General. At any time, the Secretary may request the Director of 
NCI, the Director of NIEHS and/or the Director of NIOSH to convene a 
scientific review panel (``the panel'') to provide recommendations to 
the Secretary in the identification, classification, or regulation of 
any potential occupational carcinogen.
    (b) Membership. The panel will consist of individuals chosen by the 
respective Director(s). The panel will consist of individuals who are 
appropriately qualified in the disciplines relevant to the issues to be 
considered, and who are employed by the United States. The panel does 
not constitute an advisory committee within the meaning of section 6(b) 
or 7(b) of the Act, or the Federal Advisory Committee Act (Pub. L. 92-
463, 86 Stat. 770).
    (c) Report. The Secretary shall request that the panel submit a 
report of its evaluation within ninety (90) days after the appointment 
of the members of the panel. The Secretary shall place a copy of the 
report in the record of any relevant rulemaking undertaken pursuant to 
this part and allow an appropriate time for public review and comment. 
If a panel is not established or fails to file a timely report, or if 
the Secretary determines that it is necessary to proceed without waiting 
for the panel's report, the Secretary may proceed in making any 
determination without such report.
    (d) Other aid and assistance. Nothing herein precludes the Secretary 
from obtaining advice or other aid from any person or organization 
including NCI, NIEHS, and NIOSH.



Sec. 1990.105  Advisory committees.

    The Secretary may appoint an Advisory Committee, pursuant to 
sections 6(b) and 7 of the Act, and 29 CFR part 1912, concerning any 
potential occupational carcinogen. The Secretary shall require the 
Advisory Committee to submit its recommendations to assist the Secretary 
in standard setting no later than ninety (90) days from the date of the 
Advisory Committee's appointment, unless extended by the Secretary for 
exceptional circumstances. If an Advisory Committee fails to file a 
timely report, the Secretary may proceed in standard setting activities 
without such a report.



Sec. 1990.106  Amendments to this policy.

    (a) Initiation of review of this policy--(1) Secretary's request. No 
later than every three (3) years from the effective

[[Page 223]]

date of this part, or from the last general review, the Secretary shall 
request the Director of NCI, the Director of NIEHS and/or the Director 
of NIOSH, to review this part and render their opinions on whether 
significant scientific or technical advances made since the effective 
date of this part warrant any amendment to this part. The request shall 
ask that the answer be provided to the Secretary within one hundred 
twenty (120) days.
    (2) Recommendations by the institutes. At any time, the Director of 
NCI, the Director of NIEHS and/or the Director of NIOSH may submit 
recommendations to the Secretary for amendments to this part whenever 
any of them believes that scientific or technical advances justify such 
amendments.
    (3) Petitions from the public. (i) Any interested person may 
petition the Secretary concerning amendments to this part based upon 
substantial new issues or substantial new evidence.
    (ii) For the purposes of this part, substantial new evidence is 
evidence which differs significantly from that presented in establishing 
this part, including amendments.
    (iii) For the purposes of this part, substantial new issues are 
issues which differ significantly from those upon which the Secretary 
has reached a conclusion in the rulemaking establishing this part 
(including the conclusions reached in the preamble).
    (iv) Each petition to amend this part shall contain at least the 
following information:
    (A) Name and address of petitioner;
    (B) The provisions which the petitioner believes are inappropriate;
    (C) All data, views and arguments relied upon by the petitioner; and
    (D) A detailed statement and analysis as to why the petitioner 
believes that the data, views and arguments presented by petitioner:
    (1) Constitute substantial new issues or substantial new evidence; 
and
    (2) Are so significant as to warrant amendment of this part.
    (b) Response to recommendations and petitions--(1) By the 
institutes. Whenever any Director recommends an amendment to this part, 
the Secretary shall, within one hundred twenty (120) days after receipt 
of the recommendation, publish in the Federal Register, a notice which:
    (i) States the reasons why the Secretary has determined not to 
commence a rulemaking proceeding to amend this part, in whole or in 
part, at that time; or
    (ii) Commences a rulemaking proceeding to consider amending this 
part accordingly; or
    (iii) Appoints an Advisory Committee as provided for by 
Sec. 1990.105 of this part and sections 6(b) and 7 of the Act.
    (2) By the public. Within ninety (90) days, or as soon thereafter as 
possible, after receipt of a petition pursuant to Sec. 1990.106(a)(3), 
the Secretary shall:
    (i) Refer the petition to the Director of NCI, the Director of NIEHS 
and/or the Director of NIOSH, in which case the provisions of 
Sec. 1990.106 (a)(1) and (b)(1) are applicable; or
    (ii) Appoint an advisory committee;
    (iii) Deny the petition, briefly giving the reasons therefor; or
    (iv) Commence a rulemaking proceeding to consider amending this part 
accordingly.
    (3) On the Secretary's motion. At any time, the Secretary may, on 
his own motion, commence a rulemaking proceeding to amend this part.

[45 FR 5282, Jan. 22, 1980; 45 FR 43405, June 27, 1980]

                         The OSHA Cancer Policy



Sec. 1990.111  General statement of regulatory policy.

    (a) This part establishes the criteria and procedures under which 
substances will be regulated by OSHA as potential occupational 
carcinogens. Although the conclusive identification of ``carcinogens'' 
is a complex matter ``on the frontiers of science,'' (IUD v. Hodgson 499 
F. 2d 467, 474 (D.C. Cir. 1974)), responsible health regulatory policy 
requires that criteria should be specified for the identification of 
substances which should be regulated as posing potential cancer risks to 
workers.
    (b) The criteria established by this part are based on an extensive 
review of scientific data and opinions. The part provides for amending 
these criteria in light of new scientific developments. Decisions as to 
whether any particular substance meets the criteria

[[Page 224]]

or not will be consistent with the policies and procedures established 
by this part and will be based upon scientific evaluation of the 
evidence on that substance.
    (c) This part applies to individual substances, groups of 
substances, or combinations or mixtures of substances which may be found 
in workplaces in the United States. In individual rulemaking proceedings 
under this part, the identity and range of substances and mixtures to be 
covered by the standard will be specified and the appropriateness of 
applying the available evidence to the range of substances and mixtures 
proposed for regulation will be subject to scientific and policy review.
    (d) Potential occupational carcinogens will be identified and 
classified on the basis of human epidemiological studies and/or 
experimental carcinogenesis bioassays in mammals. Positive results in 
short term tests will also be used as concordant evidence.
    (e) Potential occupational carcinogens will be classified and 
regulated in accordance with the policy. The scientific evidence as to 
whether individual substances meet these criteria will be considered in 
individual rulemakings. The issues which may be considered in these 
rulemakings will be limited as specified herein.
    (f) This policy provides for the classification of potential 
occupational carcinogens into two categories depending on the nature and 
extent of the available scientific evidence. The two categories of 
potential occupational carcinogens may be regulated differently.
    (g) The policy establishes a procedure for setting priorities and 
making them public.
    (h) Worker exposure to Category I Potential Carcinogens will be 
reduced primarily through the use of engineering and work practice 
controls.
    (i) Worker exposure to Category II Potential Carcinogens will be 
reduced as appropriate and consistent with the statutory requirements on 
a case-by-case basis in the rulemaking proceedings on individual 
substances. Any permissible exposure level so established shall be met 
primarily through engineering and work practice controls.
    (j) The assessment of cancer risk to workers resulting from exposure 
to a potential occupational carcinogen will be made on the basis of 
available data. Because of the uncertainties and serious consequences to 
workers if the estimated risk is understated, cautious and prudent 
assumptions will be utilized to perform risk assessments.
    (k) Where the Secretary determines that one or more suitable 
substitutes exist for certain uses of Category I Potential Carcinogens 
that are less hazardous to humans, a no occupational exposure level 
shall be set for those uses, to be achieved solely through the use of 
engineering and work practice controls to encourage substitution. In 
determining whether a substitute is suitable, the Secretary will 
consider the technological and economic feasibility of the introduction 
of the substitute, including its relative effectiveness and other 
relevant factors, such as regulatory requirements and the time needed 
for an orderly transition to the substitute.

[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]



Sec. 1990.112  Classification of potential carcinogens.

    The following criteria for identification, classification and 
regulation of potential occupational carcinogens will be applied, unless 
the Secretary considers evidence under the provisions of Secs. 1990.143, 
1990.144 and 1990.145 and determines that such evidence warrants an 
exception to these criteria.
    (a) Category I Potential Carcinogens. A substance shall be 
identified, classified, and regulated as a Category I Potential 
Carcinogen if, upon scientific evaluation, the Secretary determines that 
the substance meets the definition of a potential occupational 
carcinogen in (1) humans, or (2) in a single mammalian species in a 
long-term bioassay where the results are in concordance with some other 
scientifically evaluated evidence of a potential carcinogenic hazard, or 
(3) in a single mammalian species in an adequately conducted long-term 
bioassay, in appropriate circumstances where the Secretary determines 
the requirement for concordance is not necessary. Evidence of 
concordance is any of the following: positive

[[Page 225]]

results from independent testing in the same or other species, positive 
results in short-term tests, or induction of tumors at injection or 
implantation sites.
    (b) Category II Potential Carcinogens. A substance shall be 
identified, classified, and regulated as a Category II Potential 
Carcinogen if, upon scientific evaluation, the Secretary determines 
that:
    (1) The substance meets the criteria set forth in Sec. 1990.112(a), 
but the evidence is found by the Secretary to be only ``suggestive''; or
    (2) The substance meets the criteria set forth in Sec. 1990.112(a) 
in a single mammalian species without evidence of concordance.

                            Priority Setting



Sec. 1990.121  Candidate list of potential occupational carcinogens.

    (a) Contents. The Secretary shall prepare a list of substances (the 
``Candidate List'') which are reported to be present in any American 
workplace and which, on the basis of a brief scientific review of 
available data, may be considered candidates for further scientific 
review and possible regulation as Category I Potential Carcinogens or 
Category II Potential Carcinogens. For the purposes of this paragraph, 
``available data'' means:
    (1) The data submitted by any person;
    (2) Any data referred to by the Secretary of HHS or by the Director 
of NIOSH, either in the latest list entitled ``Suspected Carcinogens'' 
or any other communication;
    (3) Literature referred to in U.S. Public Health Service, 
Publication No. 149;
    (4) Data summarized and reviewed in Monographs of the International 
Agency for Research on Cancer (IARC) of the World Health Organization;
    (5) The Toxic Substances Control Act Inventory of Chemical 
Substances, published by the Administrator of EPA;
    (6) The Secretary of HHS's Annual Report to the President and the 
Congress as required by the Community Mental Health Centers Extension 
Act of 1978, section 404(a)(9), 42 U.S.C. 285.
    (7) Any other relevant data of which the Secretary has actual 
knowledge.
    (b) Tentative classification. The Secretary may tentatively 
designate substances on the Candidate List as candidates for 
classification as Category I Potential Carcinogens or as Category II 
Potential Carcinogens, or may list substances without a tentative 
designation, based on the brief scientific review of available data for 
the purpose of initiating a more extensive scientific review.
    (c) No legal rights established. The inclusion or exclusion of any 
substance from the Candidate List shall not be subject to judicial 
review nor be the basis of any legal action, nor shall the exclusion of 
any substance from the list prevent the regulation of that substance as 
a potential occupational carcinogen. The inclusion of a substance on the 
Candidate List and its possible tentative designation as a Category I 
Potential Carcinogen or a Category II Potential Carcinogen therein do 
not reflect a final scientific determination that the substance is, in 
fact, a Category I Potential Carcinogen or a Category II Potential 
Carcinogen. It is a policy determination based on the brief scientific 
review that the Secretary should conduct a thorough review of all 
relevant scientific data concerning the substance.

    Effective Date Note: Paragraphs (a) and (b) of Sec. 1990.121 were 
stayed at 48 FR 243, Jan. 4, 1983, in order to evaluate the impact of 
publishing the Candidate Lists and Priority List and to reconsider the 
criteria used in establishing the lists (see also 47 FR 187, Jan. 5, 
1982).



Sec. 1990.122  Response to petitions.

    Whenever the Secretary receives any information submitted in writing 
by any interested person concerning the inclusion or omission of any 
substance from the Candidate List, the Secretary shall briefly review 
the information and any other available data, as defined in 
Sec. 1990.121(a). The results of the Secretary's review shall be 
transmitted to the petitioner, together with a short statement of the 
Secretary's reasons therefor, and made public upon request.

    Effective Date Note: Section 1990.122 was stayed at 48 FR 243, Jan. 
4, 1983, in order to

[[Page 226]]

evaluate the impact of publishing the Candidate List and Priority Lists 
and to reconsider the criteria used in establishing the lists (see also 
47 FR 187, Jan. 5, 1982).



Sec. 1990.131  Priority lists for regulating potential occupational carcinogens.

    The Secretary shall establish two priority lists for regulating 
potential occupational carcinogens. One list should include 
approximately ten (10) candidates for rulemaking as Category I Potential 
Carcinogens; the other approximately ten (10) candidates for rulemaking 
as Category II Potential Carcinogens. The order of placement of 
substances on these lists will not reflect the Secretary's determination 
of the exact order in which these substances should be regulated in 
rulemaking proceedings but rather a policy determination that the 
Secretary plans to address some or all of these substances prior to 
proceeding with a thorough scientific review of data concerning other 
substances on the Candidate List. The inclusion or exclusion of any 
substance on these lists shall not be subject to judicial review or be 
the basis for any legal action. The Secretary may regulate a potential 
occupational carcinogen which has not been placed on these lists. The 
inclusion of a substance on either of these lists does not reflect a 
final scientific determination that the substance is, in fact, a 
Category I Potential Carcinogen or a Category II Potential Carcinogen.

    Effective Date Note: Section 1990.131 was stayed at 48 FR 243, Jan. 
4, 1983, in order to evaluate the impact of publishing the Candidate 
List and Priority Lists and to reconsider the criteria used in 
establishing the lists (see also 47 FR 187, Jan. 5, 1982).



Sec. 1990.132  Factors to be considered.

    (a) The setting of priorities is a complex matter which requires 
subjective and policy judgments. It is not appropriate to establish a 
rigid formula or to assign predetermined weight to each factor. The 
identification of some of the elements is to guide the OSHA staff and 
inform the public on the development of priorities. It is not intended 
to create any legal rights with respect to the setting of priorities.
    (b) Some factors which may be taken into account in setting 
priorities for regulating potential occupational carcinogens, when such 
data are available, are:
    (1) The estimated number of workers exposed;
    (2) The estimated levels of human exposure;
    (3) The levels of exposure to the substance which have been reported 
to cause an increased incidence of neoplasms in exposed humans, animals 
or both;
    (4) The extent to which regulatory action could reduce not only 
risks of contracting cancer but also other occupational and 
environmental health hazards;
    (5) Whether the molecular structure of the substance is similar to 
the molecular structure of another substance which meets the definition 
of a potential occupational carcinogen;
    (6) Whether there are substitutes that pose a lower risk of cancer 
or other serious human health problems, or available evidence otherwise 
suggests that the social and economic costs of regulation would be 
small; and
    (7) OSHA will also consider its responsibilities for dealing with 
other health and safety hazards and will consider the actions being 
taken or planned by other governmental agencies in dealing with the same 
or similar health and safety hazards.



Sec. 1990.133  Publication.

    (a) The Secretary shall publish the Candidate List in the Federal 
Register at least annually.
    (b) The Secretary shall publish the Priority Lists in the Federal 
Register at least every six months and may seek public comment thereon.
    (c) The Secretary may periodically publish in the Federal Register a 
notice requesting information concerning the classification and 
establishment of priorities for substances on the Candidate List 
together with a brief statement describing the type of information being 
sought.

    Effective Date Note: Section 1990.133 was stayed at 48 FR 243, Jan. 
4, 1983, in order to evaluate the impact of publishing the Candidate 
List and Priority Lists and to reconsider the criteria used in 
establishing the lists (see also 47 FR 187, Jan. 5, 1982).

[[Page 227]]

            Regulation of Potential Occupational Carcinogens



Sec. 1990.141  Advance notice of proposed rulemaking.

    (a) Within thirty (30) days after OSHA initiates a study concerning 
the economic and/or technological feasibility of specific standards that 
might be applied in the regulation of a potential occupational 
carcinogen, the Secretary will normally publish, in the Federal 
Register, a notice which includes at least the following:
    (1) The name of the substance(s),
    (2) The scope of the study, including where possible,
    (i) Affected industries,
    (ii) Levels of exposure being studied,
    (iii) The anticipated completion date of the study;
    (3) A brief summary of the available data on health effects;
    (4) An estimate of when the Secretary anticipates the issuance of a 
proposal;
    (5) An invitation to interested parties to provide relevant 
information;
    (6) A statement that persons wishing to provide OSHA with their own 
study should complete it within 30 days after the anticipated proposal 
date; and
    (7) A statement of the procedural requirements that must be met 
before substantial new issues or substantial new evidence will be 
considered in the proceeding pursuant to Sec. 1990.145.
    (b) Where the Secretary determines to discontinue a feasibility 
study, the Secretary should publish, within 30 days, a notice in the 
Federal Register so indicating.



Sec. 1990.142  Initiation of a rulemaking.

    Where the Secretary decides to regulate a potential occupational 
carcinogen, the Secretary shall initiate a rulemaking proceeding in 
accordance with one of the following procedures, as appropriate.
    (a) Notice of proposed rulemakings (section 6(b) of the Act)--(1) 
General. The Secretary may issue a notice of proposed rulemaking in the 
Federal Register, pursuant to section 6(b) of the Act and part 1911 of 
this chapter. The notice shall provide for no more than a sixty (60) day 
comment period, and may provide for a hearing, which shall be scheduled 
for no later than one hundred (100) days after publication of the Notice 
of Proposed Rulemaking. The commencement of the hearing may be postponed 
once, for no more than thirty (30) days, for good cause shown.
    (2) Provisions of the proposed standard for Category I Potential 
Carcinogens. Whenever the Secretary issues a notice of proposed 
rulemaking to regulate a substance as a Category I Potential Carcinogen:
    (i) The proposed standard shall contain at least provisions for 
scope and application, definitions, notification of use, a permissible 
exposure limit, monitoring, regulated areas, methods of compliance 
including the development of a compliance plan, respiratory protection, 
protective clothing and equipment, housekeeping, waste disposal, hygiene 
facilities, medical surveillance, employee information and training, 
signs and labels, recordkeeping, and employee observation of monitoring 
as set forth in Sec. 1990.151, unless the Secretary explains why any or 
all such provisions are not appropriate;
    (ii) The model standard set forth in Sec. 1990.151 shall be used as 
a guideline, and
    (iii) The permissible exposure limit shall be achieved primarily 
through engineering and work practice controls except that if a suitable 
substitute is available for one or more uses no occupational exposure 
shall be permitted for those uses.
    (3) Provisions of the proposed standard for Category II Potential 
Carcinogens. Whenever the Secretary issues a Notice of Proposed 
Rulemaking to regulate a substance as a Category II Potential 
Carcinogen:
    (i) The proposed standard shall contain at least provisions for 
scope and application, definitions, notification of use, monitoring, 
respiratory protection, protective clothing and equipment, housekeeping, 
waste disposal, medical surveillance, employee information and training, 
recordkeeping and employee observation of monitoring as set forth in 
Sec. 1990.151, unless the Secretary explains why any or all such 
provisions are not appropriate; and

[[Page 228]]

    (ii) The model standard set forth in Sec. 1990.151 shall be used as 
a guideline; and
    (iii) Worker exposure to Category II Potential Carcinogens will be 
reduced as appropriate and consistent with the statutory requirements on 
a case-by-case basis in the individual rulemaking proceedings. Any 
permissible exposure level so established shall be met primarily through 
engineering and work practice controls.
    (b) Emergency temporary standards (section 6(c) of the Act).--(1) 
General. The Secretary may issue an Emergency Temporary Standard (ETS) 
for a Category I Potential Carcinogen in accordance with section 6(c) of 
the Act.
    (2) Provisions of the ETS. (i) The ETS shall contain at least 
provisions for scope and application, definitions, notification of use, 
a permissible exposure limit, monitoring, methods of compliance 
including the development of a compliance plan, respiratory protection, 
protective clothing and equipment, housekeeping, waste disposal, medical 
surveillance, employee information and training, signs and labels, 
recordkeeping and employee observation of monitoring, unless the 
Secretary explains why any or all such provisions are not appropriate.
    (ii) The model standard set forth in Sec. 1990.152 shall be used as 
a guideline.
    (iii) The permissible exposure limit shall be achieved through any 
practicable combination of engineering controls, work practice controls 
and respiratory protection.

[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]



Sec. 1990.143  General provisions for the use of human and animal data.

    Human and animal data which are scientifically evaluated to be 
positive evidence for carcinogenicity including the following policies 
shall be uniformly relied upon for the identification of potential 
occupational carcinogens. Arguments challenging the following provisions 
or their application to specific substances will be considered in 
individual rulemaking proceedings only if the evidence presented in 
support of the arguments meets the criteria for consideration specified 
in Sec. 1990.144 or Sec. 1990.145.
    (a) Positive human studies. Positive results obtained in one or more 
human epidemiologic studies will be used to establish the qualitative 
inference of carcinogenic hazards to workers.
    (b) Positive animal studies. Positive results obtained in one or 
more experimental studies conducted in one or more mammalian species 
will be used to establish the qualitative inference of carcinogenic 
hazard to workers. Arguments that positive results obtained in mammalian 
species should not be relied upon will be considered only if evidence is 
presented which meets the criteria for consideration specified in 
Sec. 1990.144(c) or 1990.144(f).
    (c) Non-positive human studies. Positive results in human or 
mammalian studies generally will be used for the qualitative 
identification of potential occupational carcinogens, even where non-
positive results from human studies exist. Such non-positive results 
will be considered by the Secretary only if the studies or results meet 
the criteria set forth in Sec. 1990.144(a).
    (d) Non-positive animal studies. Positive results in one or more 
mammalian studies will be used for the qualitative identification of 
potential occupational carcinogens, even where non-positive studies 
exist in other mammalian species. Where non-positive and positive 
results exist in studies in the same species, the non-positive results 
will be evaluated.
    (e) Spontaneous tumors. Positive results in human or mammalian 
studies for the induction or acceleration of induction of tumors of a 
type which occurs ``spontaneously'' in unexposed individuals will be 
used for the qualitative identification of potential occupational 
carcinogens.
    (f) Routes of exposure. (1) Positive results in studies in which 
mammals are exposed via the oral, respiratory or dermal routes will be 
used for the qualitative identification of potential occupational 
carcinogens, whether tumors are induced at the site of application or 
distant sites.
    (2) Positive results in studies in which mammals are exposed via any 
route of exposure and in which tumors are induced at sites distant from 
the site of administration will be used for

[[Page 229]]

the qualitative identification of potential occupational carcinogens.
    (3)(i) Positive results in mammalian studies in which tumors are 
induced only at the site of administration, in which a substance or 
mixture of substances is administered by routes other than oral, 
respiratory or dermal, will be used as ``concordant'' evidence that a 
substance is a potential occupational carcinogen.
    (ii) Arguments that such studies should not be relied upon will be 
considered only if evidence which meets the criteria set forth in 
Sec. 1990.144(b) is provided.
    (g) Use of high doses in animal testing. Positive results for 
carcinogenicity obtained in mammals exposed to high doses of a substance 
will be used to establish the qualitative inference of carcinogenic 
hazard to workers. Arguments that such studies should not be relied upon 
will be considered only if evidence which meets the criteria set forth 
in Sec. 1990.144(d) is provided.
    (h) ``Threshold'' or ``No-effect'' Levels. No determination will be 
made that a ``threshold'' or ``no-effect'' level of exposure can be 
established for a human population exposed to carcinogens in general, or 
to any specific substance.
    (i) Benign tumors. Results based on the induction of benign or 
malignant tumors, or both, will be used to establish a qualitative 
inference of carcinogenic hazard to workers. Arguments that substances 
that induce benign tumors do not present a carcinogenic risk to workers 
will be considered only if evidence that meets the criteria set forth in 
Sec. 1990.144(e) is provided.
    (j) Statistical evaluation. Statistical evaluation will be used in 
the determination of whether results in human, animal or short-term 
studies provide positive evidence for carcinogenicity, but will not be 
the exclusive means for such evaluation.
    (k) Carcinogenicity of metabolites. A substance which is metabolized 
by mammals to yield one or more potential occupational carcinogens will 
itself be identified and classified as a potential occupational 
carcinogen, whether or not there is direct evidence that it induces 
tumors in humans or experimental animals. Evidence for such metabolism 
will normally be derived from in vivo studies in mammals. In appropriate 
circumstances, evidence may be derived from in vitro studies of 
mammalian tissues or fractions thereof. Arguments that evidence from in 
vivo metabolic studies in mammals is not relevant to the inference of 
carcinogenic hazard to humans will be considered only if such evidence 
meets the criteria set forth in Sec. 1990.144(c).

[45 FR 5282, Jan. 22, 1980; 45 FR 43405, June 27, 1980]



Sec. 1990.144  Criteria for consideration of arguments on certain issues.

    Arguments on the following issues will be considered by the 
Secretary in identifying or classifying any substance pursuant to this 
part, if evidence for the specific substance subject to the rulemaking 
conforms to the following criteria. Such arguments and evidence will be 
evaluated based upon scientific and policy judgments.
    (a) Non-positive results obtained in human epidemiologic studies. 
Non-positive results obtained in human epidemiologic studies regarding 
the substance subject to the rulemaking or to a similar or closely 
related substance will be considered by the Secretary only if they meet 
the following criteria:

    Criteria. (i) The epidemiologic study involved at least 20 years' 
exposure of a group of subjects to the substance and at least 30 years' 
observation of the subjects after initial exposure;
    (ii) Documented reasons are provided for predicting the site(s) at 
which the substance would induce cancer if it were carcinogenic in 
humans; and
    (iii) The group of exposed subjects was large enough for an increase 
in cancer incidence of 50% above that in unexposed controls to have been 
detected at any of the predicted sites.


Arguments that non-positive results obtained in human epidemiologic 
studies should be used to establish numerical upper limits on potential 
risks to humans exposed to specific levels of a substance will be 
considered only if criteria (i) and (ii) are met and, in addition:

    (iv) Specific data on the level of exposure of the group of workers 
are provided, based either on direct measurements made periodically 
throughout the period of exposure, or

[[Page 230]]

upon other data which provide reliable evidence of the magnitude of 
exposure.

    (b) Tumors induced at site of administration. Arguments that tumors 
at the site of administration should not be considered will be 
considered only if:
    (i) The route of administration is not oral, respiratory or dermal; 
and
    (ii) Evidence is provided which establishes that induction of local 
tumors is related to the physical configuration or formulation of the 
material administered (e.g., crystalline form or dimensions of a solid 
material, or matrix of an impregnated implant) and that tumors are not 
induced when the same material is administered in a different 
configuration or formula.
    (c) Metabolic differences. Arguments that differences in metabolic 
profiles can be used to demonstrate that a chemical found positive in an 
experimental study in a mammalian species would pose no potential 
carcinogenic risk to exposed workers will be considered by the Secretary 
only if the evidence presented for the specific substance subject to the 
rulemaking meets the following criteria:

    Criteria. (i) A complete metabolic profile, including identities of 
trace metabolites, is presented for the experimental animal species;
    (ii) A complete metabolic profile, including identities of trace 
metabolites, is available for a human population group representative of 
those who are occupationally exposed;
    (iii) Documented evidence is provided for ascribing the carcinogenic 
activity of the substance in the test animal species to metabolite(s) 
produced only in that species and not in humans; and
    (iv) Documented evidence is provided to show that other metabolites 
produced also in humans have been adequately tested and have not been 
shown to be carcinogenic.

    (d) Use of high doses in animal testing. Arguments that positive 
results obtained in carcinogenesis bioassays with experimental animals 
subjected to high doses of a substance are not relevant to potential 
carcinogenic risks to exposed workers will be considered by the 
Secretary only if the evidence for the specific substance subject to the 
rulemaking meets the following criteria:

    Criteria. (i) Documented evidence is presented to show that the 
substance in question is metabolized by the experimental animal species 
exposed at the dose levels used in the bioassay(s) to metabolic products 
which include one or more that are not produced in the same species at 
lower doses.
    (ii) Documented evidence is presented to show that the metabolite(s) 
produced only at high doses in the experimental animal species are the 
ultimate carcinogen(s) and that the metabolites produced at low doses 
are not also carcinogenic; and
    (iii) Documented evidence is presented to show that the 
metabolite(s) produced only at high doses in the experimental animal 
species are not produced in humans exposed to low doses.

    (e) Benign tumors. The Secretary will consider evidence that the 
substance subject to the rulemaking proceeding is capable only of 
inducing benign tumors in humans or experimental animals provided that 
the evidence for the specific substance meets the following criteria:

    Criteria. (i) Data are available from at least two well-conducted 
bioassays in each of two species of mammals (or from equivalent evidence 
in more than two species);
    (ii) Each of the bioassays to be considered has been conducted for 
the full lifetime of the experimental animals;
    (iii) The relevant tissue slides are made available to OSHA or its 
designee and the diagnoses of the tumors as benign are made by at least 
one qualified pathologist who has personally examined each of the slides 
and who provides specific diagnostic criteria and descriptions; and
    (iv) All of the induced tumors must be shown to belong to a type 
which is known not to progress to malignancy or to be at a benign stage 
when observed. In the latter case, data must be presented to show that 
multiple sections of the affected organ(s) were adequately examined to 
search for invasion of the tumor cells into adjacent tissue, and that 
multiple sections of other organs were adequately examined to search for 
tumor metastases.

    (f) Indirect mechanisms. The Secretary will consider evidence that 
positive results obtained in a carcinogenesis bioassay with experimental 
animals are not relevant to a determination of a carcinogenic risk to 
exposed workers, if the evidence demonstrates that the mechanism by 
which the observed tumor incidence is effected is indirect and would not 
occur if humans were exposed. As examples, evidence will be considered 
that a substance causes a carcinogenic effect by augmenting caloric 
intake or that the carcinogenic effect from exposure to a substance is

[[Page 231]]

demonstrated to be the result of the presence of a carcinogenic virus 
and it is demonstrated that, in either case, the effect would not take 
place in the absence of the particular carcinogenic virus or the 
augmented caloric intake.

[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]



Sec. 1990.145  Consideration of substantial new issues or substantial new evidence.

    (a) Substantial new issues. Notwithstanding any other provision of 
this part, the Secretary will consider in a rulemaking proceeding on a 
specific substance any substantial new issues upon which the Secretary 
did not reach a conclusion in the rulemaking proceeding(s) underlying 
this part including conclusions presented in the preamble.
    (b) Substantial new evidence. Notwithstanding any other provision of 
this part, the Secretary will consider in a rulemaking proceeding on a 
specific substance any arguments, data or views which he determines are 
based upon substantial new evidence which may warrant the amendment of 
one or more provisions of this part. For the purposes of this part, 
``substantial new evidence'' is evidence directly relevant to any 
provision of this part and is based upon data, views or arguments which 
differ significantly from those presented in establishing this part, 
including amendments thereto.
    (c) Petitions for consideration of substantial new evidence--(1) 
Petition. Any interested person may file a written petition with the 
Secretary to consider ``substantial new evidence'' or one or more 
``substantial new issues'' which contains the information specified in 
paragraph (c)(2) of this section. The Secretary shall treat such a 
petition as a request to amend this part, as well as a petition to 
consider ``substantial new evidence''.
    (2) Contents. Each petition for consideration of ``substantial new 
evidence'' or one or more ``substantial new issues'' shall contain at 
least the following information:
    (i) Name and address of the petitioner;
    (ii) All of the data, views and arguments that the petitioner would 
like the Secretary to consider;
    (iii) The provision or provisions that petitioner believes are 
inappropriate or should be added to this part in light of the new data, 
views, and arguments;
    (iv) A statement which demonstrates that the data, views, and 
arguments relied upon by petitioners are directly relevant to the 
substance or class of substances that is the subject of a rulemaking or 
an Advance Notice of Proposed Rulemaking;
    (v) A detailed statement and analysis as to why the petitioner 
believes that the data, views, and arguments presented by the 
petitioner:
    (A) Differ significantly from those presented in the proceeding(s) 
which establish this part;
    (B) Are so substantial as to warrant amendment of this part; and
    (C) Constitute a new issue or new evidence within the meaning of 
paragraphs (a) and (b) of this section.
    (3) Deadline for petitions. (i) Petitions which comply with 
paragraph (c) of this section, shall be filed in accordance with the 
schedule set forth in the Advanced Notice of Proposed Rulemaking.
    (ii) In extraordinary cases the Secretary may consider evidence 
submitted after the deadline if the petitioner establishes that the 
evidence relied upon was not available and could not have reasonably 
been available in whole or substantial part by the deadline and that it 
is being submitted at the earliest possible time.
    (d) Secretary's response. (1) The Secretary shall respond to 
petitions under this paragraph in accordance with Sec. 1990.106.
    (2) Whenever the Secretary determines that the ``substantial new 
issue'' or the ``substantial new evidence'' submitted under this 
paragraph is sufficient to initiate a proceeding to amend this part, the 
Secretary shall:
    (i) Issue a notice to consider amendment to this part and not 
proceed on the rulemaking concerning the individual substance until 
completion of the amendment proceeding; or
    (ii) Issue a notice to consider amendment to this part and 
consolidate it

[[Page 232]]

with the proceeding on the individual substance.



Sec. 1990.146  Issues to be considered in the rulemaking.

    Except as provided in Sec. 1990.145, after issuance of the advance 
notice of rulemaking, the proceedings for individual substances under 
this part shall be limited to consideration of the following issues:
    (a) Whether the substance, group of substances or combination of 
substances subject to the proposed rulemaking is appropriately 
considered in a single proceeding;
    (b) Whether the substance or group of substances subject to the 
rulemaking meets the definition of a potential occupational carcinogen 
set forth in Sec. 1990.103, including whether the scientific studies are 
reliable;
    (c) Whether the available data can appropriately be applied to the 
substance, group of substances or combination of substances covered by 
the rulemaking;
    (d) Whether information, data, and views that are submitted in 
accordance with Sec. 1990.144 are sufficient to warrant an exception to 
this part;
    (e) Whether the data, views and arguments that are submitted in 
accordance with Sec. 1990.145 are sufficient to warrant amendment of 
this part;
    (f) Whether the potential occupational carcinogen meets the criteria 
for a Category I Potential Carcinogen or a Category II Potential 
Carcinogen.
    (g) The environmental impact arising from regulation of the 
substance;
    (h) Any issues required by statute or executive order;
    (i) The determination of the level to control exposures to Category 
I Potential Carcinogens primarily through the use of engineering and 
work practice controls including technological and economic 
considerations.
    (j) The determination of the appropriate employee exposure level, 
consistent with the Act's requirements, for Category II Potential 
Carcinogens;
    (k) Whether suitable substitutes are available for one or more uses 
of Category I Potential Carcinogens and; if so, the no occupational 
exposure level to be achieved solely with engineering and work practice 
controls and other issues relevant to substitution; and
    (l) Whether the provisions of the proposal and of Secs. 1990.151 and 
1990.152 (model standards) are appropriate, except as limited by 
Sec. 1990.142 and whether additional regulatory provisions may be 
appropriate.

[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]



Sec. 1990.147  Final action.

    (a) Within one hundred twenty (120) days from the last day of any 
hearing or ninety (90) days from the close of any post hearing comment 
period, whichever occurs first, the Secretary shall publish in the 
Federal Register:
    (1) A final standard based upon the record in the proceeding; or
    (2) A statement that no final standard will be issued, and the 
reasons therefor, or
    (3) A statement that the Secretary intends to issue a final rule, 
but that he is unable to do so at the present time, including:
    (i) The reasons therefor; and
    (ii) The date by which the standard will be published, which may not 
exceed one hundred twenty (120) days thereafter.
    (iii) The Secretary may issue no more than one such notice, unless 
the Secretary determines that (A) new evidence which was unavailable 
during the rulemaking proceeding has just become available; (B) the 
evidence is so important that a final rule could not reasonably be 
issued without this evidence, and; (C) the record is reopened for 
receipt of comments and/or a hearing on this evidence. This paragraph 
does not require the Secretary to consider any evidence which is 
submitted after the dates established for the submission of evidence.
    (b) The failure of the Secretary to comply with the required 
timeframes shall not be a basis to set aside any standard or to require 
the issuance of a new proposal on any individual substance.
    (c) The final standard shall state whether the substance or group of 
substances subject to the rulemaking is classified as a Category I 
Potential Carcinogen or as a Category II Potential Carcinogen. If the 
classification

[[Page 233]]

differs from that in the notice of proposed rulemaking, the Secretary 
shall explain the reasons for the change in classification in the 
preamble to the final standard.
    (d) If the substance is classified as a Category I Potential 
Carcinogen, the final standard shall conform to the provisions of 
Sec. 1990.142(a)(2)(iii). If the final standard contains other 
provisions that substantially differ from the proposed provisions, the 
Secretary shall explain the reasons for the changes in the preamble to 
the final standard.
    (e) If the substance is classified as a Category II potential 
carcinogen, the final standard shall conform to the provisions of 
Sec. 1990.142(a)(3)(iii). If the final standard contains other 
provisions that substantially differ from the proposed provisions, the 
Secretary shall explain the reasons for the changes in the preamble to 
the final standard.
    (f) If the substance is classified as a Category II potential 
carcinogen, the Secretary shall notify the applicable federal and state 
agencies, including the Administrator of EPA, the Director of NCI, the 
Director of NIEHS, the Director of NIOSH, the Commissioner of FDA and 
the Chairperson of CPSC of such determination and request that the 
applicable agencies engage in, or stimulate, further research pursuant 
to their legislative authority, to develop new and additional scientific 
data.
    (g) If, after a rulemaking, the Secretary determines that the 
substance under consideration should not be classified as a Category I 
potential carcinogen or a Category II potential carcinogen, the 
Secretary shall publish a notice of this determination in the Federal 
Register, together with the reasons therefor.

                             Model Standards



Sec. 1990.151  Model standard pursuant to section 6(b) of the Act.

                Occupational Exposure to ----------------

         Permanent Standard (insert section number of standard)

    (a) Scope and application--(1) General. This section applies to all 
occupational exposures to ------ or to (specify those uses or classes of 
uses of ------ [Chemical Abstracts Service Registry Number 0000] which 
are covered by the standard, including, where appropriate, the type of 
exposure to be regulated by the standard) except as provided in 
paragraph (a)(2).
    (2) Exemptions. This section does not apply to (insert those uses or 
classes of uses of ------ which are exempted from compliance with the 
standard, including, where appropriate,
    (i) Workplaces where exposure to ------ results from solid or liquid 
mixtures containing a specified percentage of ------ or less;
    (ii) Workplaces where another Federal agency is exercising statutory 
authority to prescribe or enforce standards or regulations affecting 
occupational exposure to ------; or
    (iii) Workplaces which are appropriately addressed in a separate 
standard).
    (b) Definitions.
    ------ means (definition of the substance, group of substances, or 
combination of substances, to be regulated).
    Action level means an airborne concentration of ------ of (insert 
appropriate level of exposure).
    Note: Where appropriate, consider an action level as a limitation on 
requirements for periodic monitoring (para. (e)(3)), medical 
surveillance (para. (n)), training (para. (o)), labels (para. (p)(3)), 
and other provisions.
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, or designee.
    Authorized person means any person specifically authorized by the 
employer whose duties require the person to enter regulated areas or any 
person entering such an area as a designated representative of employees 
for the purpose of exercising the opportunity to observe monitoring 
procedures under paragraph (r) of this section.
    Director means the Director, National Institute for Occupational 
Safety and Health, U.S. Department of Health, and Health Services, or 
designee.
    Emergency means in any occurrence such as, but not limited to, 
equipment failure, rupture of containers, or failure of control 
equipment which may result in a massive release of ---------- which is 
(insert appropriate quantitative or qualitative level of release which 
constitutes an emergency).

[[Page 234]]

    OSHA Area Office means the Area Office of the Occupational Safety 
and Health Administration having jurisdiction over the geographic area 
where the affected workplace is located.
    (c) Permissible exposure limits provisions--(1) Inhalation--(i) Time 
weighted average limit (TWA). Within (insert appropriate time period) of 
the effective date of this section, the employer shall assure that no 
employee is exposed to an airborne concentration of ------in excess of: 
(insert appropriate exposure limit or when it is determined by the 
Secretary that there are available suitable substitutes for uses or 
classes of uses that are less hazardous to humans, the proposal shall 
permit no occupational exposure) as an eight (8)-hour-time-weighted 
average.

(Where the Secretary finds that suitable substitutes for ------may 
exist, the determination of the ------level shall include consideration 
of the availability, practicability, relative degree of hazard, and 
economic consequences of the substitutes.)
    (ii) Ceiling limit (if appropriate). Within (insert appropriate time 
period) of the effective date of this section, the employer shall assure 
that no employee is exposed to an airborne concentration of ------in 
excess of: (insert exposure limit) as averaged over any: (insert 
appropriate time period) during the working day.
    (2) Dermal and eye exposure. (As appropriate.) (i) Within (insert 
appropriate time period) of the effective date of this section, the 
employer shall (If eye exposure to ------does not create a risk of 
cancer, insert exposure level or criteria which will prevent other 
adverse health effects of eye exposure to ------if any. If eye exposure 
creates a risk of cancer, insert exposure level or criteria which 
represents the level of eye exposure to ------).
    (ii) Within (insert appropriate time period) of the effective date 
of this section, the employer shall (If skin exposure to ------does not 
create a risk of cancer, insert exposure level or criteria which will 
prevent other adverse health effects of skin exposure to ------if any. 
If skin exposure creates a risk of cancer, insert exposure level or 
criteria which represents the level of skin exposure to --------).
    (d) Notification of use and emergencies--(1) Use. Within (insert 
appropriate time period and additional information requirements if 
appropriate), of the effective date of this standard or within thirty 
days of the introduction of ------ into the workplace, every employer 
who has a place of employment in which ------ is present shall report 
the address and location of each place of employment to the OSHA Area 
Office and an estimate of the number of employees exposed.
    (2) Emergencies. Emergencies, and the facts obtainable at that time, 
shall be reported within (insert appropriate number) hours of, or during 
the first federal working day after, the time the employer becomes aware 
of the emergency to the OSHA Area Office, whichever is longer. Upon 
request of the OSHA Area Office, the employer shall submit additional 
information in writing relevant to the nature and extent of employee 
exposures and measures taken to prevent future emergencies of a similar 
nature.
    (e) Exposure monitoring--(1) General. (i) Determinations of airborne 
exposure levels shall be made from air samples that are representative 
of each employee's exposure to ------ over an eight (8) hour period. 
(Modify the time period as appropriate to be practical in the relevant 
industries yet reasonably representative of full shift exposures.) 
Monitoring of exposure levels required under this paragraph shall be 
made as follows: [insert method or alternative methods to be used to 
meet the requirements of this paragraph].
    (ii) For the purpose of this section, employee exposure is that 
exposure which would occur if the employee were not using a respirator.
    (2) Initial monitoring. Each employer who has one or more workplaces 
where (specify the types of workplaces subject to the monitoring 
requirement) shall, within (insert appropriate period) of the effective 
date of this section (insert requirements for initial monitoring, as 
appropriate).
    (3) Frequency. (Insert, if appropriate, provisions prescribing the 
minimum frequency at which monitoring must be repeated, the conditions 
under which such frequency must be increased or may be reduced, and 
conditions under

[[Page 235]]

which such routine monitoring may be discontinued (for example, where 
the action level is not exceeded). Where appropriate, specify different 
frequency requirements for certain types of workplaces where, for 
example, exposure levels are subject to greater or less variability.)
    (4) Additional monitoring. (Insert, if appropriate, provisions for 
monitoring, in addition to the requirements (if any) of paragraph 
(e)(3). This may include a production, process, control or personnel 
change which might result in new or additional exposure to ------,

or whenever the employer has any other reason to suspect a change which 
might result in new or additional exposures to  ------.)
    (5) Employee notification. (i) Within (insert appropriate period) 
after the receipt of monitoring results, the employer shall notify each 
employee in writing of the results which represent that employee's 
exposure.
    (ii) Whenever the results indicate that the representative employee 
exposure exceeds the permissible exposure limits, the employer shall 
include in the written notice a statement that the permissible exposure 
limits were exceeded and a description of the corrective action being 
taken to reduce exposure to or below the permissible exposure limits.
    (6) Accuracy of measurement. (Insert requirements for accuracy of 
methods of measurement or detection used to comply with the paragraph).
    (f) Regulated areas--(1) Within (insert appropriate time period) of 
the effective date of this section, the employer shall, where 
practicable, establish regulated areas where ------ concentrations are 
in excess of the permissible exposure limits.
    (2) Regulated areas shall be demarcated and segregated from the rest 
of the workplace, in any manner that minimizes the number of persons who 
will be exposed to  ------.
    (3) Access to regulated areas shall be limited to authorized persons 
or to persons otherwise authorized by the Act or regulations issued 
pursuant thereto.
    (4) The employer shall assure that in the regulated area, food or 
beverages are not present or consumed, smoking products are not present 
or used, and cosmetics are not applied (except that these activities may 
be conducted in the lunchroom, change rooms and showers required under 
paragraphs (m)(1) through (m)(3) of this section).
    (g) Methods of compliance--(1) Engineering and work practice 
controls. (i) The employer shall institute engineering or work practice 
controls to reduce and maintain employee exposures to  ------ to or 
below the permissible exposure limits, except to the extent that the 
employer establishes that such controls are not feasible.
    (ii) Engineering and work practice controls shall be implemented to 
reduce exposures even if they will not be sufficient to reduce exposures 
to or below the permissible exposure limits.
    (2) Compliance program. (i) Within (insert appropriate period) of 
the effective date of this section, the employer shall establish and 
implement a written program to reduce exposures to or below the 
permissible exposure limits by means of engineering and work practice 
controls, as required by paragraph (g)(1) of this section.
    (ii) Written plans for these compliance programs shall include at 
least the following:
    (A) A description of each operation or process resulting in employee 
exposure to ------;
    (B) Engineering plans and other studies contemplated or used to 
determine the controls for each process;
    (C) A report of the technology considered or to be considered in 
meeting the permissible exposure limits;
    (D) A detailed schedule for the implementation of engineering or 
work practice controls; and
    (E) Other relevant information reasonably requested by OSHA.
    (iii) Written plans for such a program shall be submitted, upon 
request, to the Assistant Secretary and the Director, and shall be 
available at the worksite for examination and copying by the Assistant 
Secretary, the Director, or any affected employee or designated 
representative.
    (iv) The plans required by this paragraph shall be revised and 
updated periodically to reflect the current status of the program.

[[Page 236]]

    (h) Respiratory protection--(1) General. The employer shall assure 
that respirators are used where required pursuant to this section to 
reduce employee exposures to or below the permissible exposure limits 
and in emergencies. Compliance with the permissible exposure limits may 
not be achieved by the use of respirators except:
    (i) During the time period necessary to install or implement 
feasible engineering and work practice controls; or
    (ii) In work operations in which the employer establishes that 
engineering and work practice controls are not feasible; or
    (iii) In work situations where feasible engineering and work 
practice controls are not yet sufficient to reduce exposure to or below 
the permissible exposure limits; or
    (iv) In emergencies.
    (2) Respirator selection. (i) Where respiratory protection is 
required under this section, the employer shall select and provide at no 
cost to the employee, the appropriate type of respirator from Table 1 
below and shall assure that the employee wears the respirator provided.

                     Table 1--Respiratory Protection

                               for ------

    (The table will contain a listing of the appropriate type of 
respirator for various conditions of exposure to ------).

    (ii) The employer shall select respirators from those approved by 
the National Institute for Occupational Safety and Health under the 
provisions of 30 CFR part 11.
    (3) Respirator program. (i) The employer shall institute a 
respiratory protection program in accordance with 29 CFR 1910.134 (b), 
(d), (e), and (f).
    (ii) Employees who wear respirators shall be allowed to wash their 
face and respirator facepiece to prevent potential skin irritation 
associated with respirator use.
    (iii) The employer shall assure that the respirator issued to each 
employee is properly fitted (as appropriate, indicate the requirement 
for a qualitative or quantitative respirator fit testing program).
    (i) Emergency situations--(1) Written plans. (i) A written plan for 
emergency situations shall be developed for each workplace where ------ 
is present. Appropriate portions of the plan shall be implemented in the 
event of an emergency.
    (ii) The plan shall specifically provide that employees engaged in 
correcting emergency conditions shall be equipped with respirators as 
required in paragraph (h) of this section and other necessary personal 
protective equipment as required in paragraph (j) until the emergency is 
abated.
    (2) Alerting employees--(i) Alarms. Where there is the possibility 
of employee exposure to ------ due to the occurrence of an emergency, a 
general alarm shall be installed and maintained to promptly alert 
employees of such occurrences.
    (ii) Evacuation. Employees not engaged in correcting the emergency 
shall be restricted from the area and shall not be permitted to return 
until the emergency is abated.
    (j) Protective clothing and equipment--(1) Provision and use. Where 
employees are exposed to eye or skin contact with ------ (insert 
criteria which trigger this requirement as appropriate), the employer 
shall, within (insert appropriate time period) of the effective date of 
this section provide at no cost to such employees, and assure that such 
employees wear, appropriate protective clothing or other equipment in 
accordance with 29 CFR 1910.132 and 1910.133 to protect the area of the 
body which may come in contact with ------.
    (2) Cleaning and replacement. (i) The employer shall clean, launder, 
maintain, or replace protective clothing and equipment required to 
maintain their effectiveness.
    (k) Housekeeping--(1) General. The employer shall, within 
appropriate time period of the effective date of this section, implement 
a housekeeping program to minimize accumulation of ------.
    (2) Specific provisions. The program shall include (insert 
appropriate elements).
    (i) Periodic scheduling of routine housekeeping.
    (ii) Provision for periodic cleaning of dust collection systems.
    (iii) Provision for maintaining clean surfaces.

[[Page 237]]

    (iv) Provision for assigning personnel to housekeeping procedures; 
and the
    (v) Provision for informing employees about housekeeping program.
    (l) Waste disposal--(1) General. The employer shall assure that no 
waste material containing ------ is dispersed into the workplace, to the 
extent practicable.
    (2) The employer shall label, or otherwise inform employees who may 
contact waste material containing ------, the contents of such waste 
material.
    (3) (Insert specific disposal methods, as appropriate.)
    (m) Hygiene facilities and practices. Where employees are exposed to 
airborne concentrations of ------ in excess of the permissible exposure 
limits specified in paragraph (c)(1), or where employees are required to 
wear protective clothing or equipment pursuant to paragraph (j) of this 
section, or where otherwise found to be appropriate, the following 
facilities shall be provided by the employer for the use of those 
employees and the employer shall assure that the employees use the 
facilities provided.
    [Specify appropriate hygiene facilities and practices such as]:
    (1) Change rooms. The employer shall provide clean change rooms in 
accordance with 29 CFR 1910.141(e).
    (2) Showers. (i) The employer shall provide shower facilities in 
accordance with 29 CFR 1910.141(d)(3).
    (ii) The employer shall assure that employees exposed to ------ 
shower at the end of the work shift.
    (3) Lunchrooms (if appropriate or other suitable requirements 
depending on the circumstances). Whenever food or beverages are consumed 
in the workplace, the employer shall provide lunchroom facilities which 
have a temperature controlled, positive pressure, filtered air supply, 
and which are readily accessible to employees exposed to ------.
    (n) Medical surveillance--(1) General. (i) The employer shall 
institute a program of medical surveillance for (specify the types of 
employees subject to the medical surveillance requirement, for example, 
by specifying the level, duration, and frequency of exposure to ------ 
which make medical surveillance appropriate for individual employees). 
The employer shall provide each such employee with an opportunity for 
medical examinations and tests in accordance with this paragraph.
    (ii) The employer shall assure that all medical examinations and 
procedures are performed by or under the supervision of a licensed 
physician, and shall be provided without cost to the employee.
    (2) Initial examinations. Within (insert appropriate time period) of 
the effective date of this section or thereafter at the time of initial 
assignment, the employer shall provide each employee specified in 
paragraph (n)(1) of this section an opportunity for a medical 
examination, including at least the following elements:
    (i) A work history and a medical history which shall include: 
(insert specific areas to be covered pertinent to the health hazards 
posed by --------------).
    (ii) A physical examination which shall include: (insert specific 
tests, procedures, etc., pertinent to the health hazards posed by ------
--------.) Where appropriate, provide that the examining physician shall 
conduct such additional examinations and tests as are needed according 
to his professional judgment).
    Note: Where appropriate, require or permit different medical 
protocols, or different frequencies of medical examinations, for 
separate sub-populations of employees covered under paragraph (n)(1).
    (3) Periodic examinations. (i) The employer shall provide the 
examinations specified below in this subparagraph at least (insert 
appropriate time) for all employees specified in paragraph (n)(3)(i) of 
this section: (insert appropriate medical protocol for periodic 
examinations).
    (ii) If an employee has not had the examinations prescribed in 
paragraph (n)(3)(i) of this section within (insert appropriate time 
period) prior to termination of employment, the employer shall make such 
examination available to the employee upon such termination.
    (4) Additional examinations. If the employee for any reason develops 
signs or symptoms commonly associated with exposure to ------, the 
employer shall provide appropriate examination and emergency medical 
treatment.

[[Page 238]]

    (5) Information provided to the physician. The employer shall 
provide the following information to the examining physician:
    (i) A copy of this standard and its appendices;
    (ii) A description of the affected employee's duties as they relate 
to the employee's exposure;
    (iii) The employee's actual or representative exposure level;
    (iv) The employee's anticipated or estimated exposure level (for 
preplacement examinations or in cases of exposure due to an emergency);
    (v) A description of any personal protective equipment used or to be 
used; and
    (vi) The names and addresses of physicians who, under the 
sponsorship of the employer, provided previous medical examinations of 
the affected employee, if such records are not otherwise available to 
the examining physician.
    (6) Physician's written opinion. (i) The employer shall obtain a 
written opinion from the examining physician which shall include:
    (A) The physician's certification that he has received the 
information from the employer required under the paragraph (n)(5) and 
has performed all medical examinations and tests which are in his 
opinion appropriate under this standard;
    (B) The physician's opinion as to whether the employee has any 
detected medical condition which would place the employee at an 
increased risk of material impairment of the employee's health from 
exposure to ------;
    (C) Any recommended limitations upon the employee's exposure to ----
-- or upon the use of protective clothing and equipment such as 
respirators; and
    (D) A statement that the employee has been informed by the physician 
of the results of the medical examination and any medical conditions 
which require further examination or treatment.
    (ii) The employer shall instruct the physician not to reveal in the 
written opinion specific findings or diagnoses unrelated to occupational 
exposure to ------;
    (iii) The employer shall provide a copy of the written opinion to 
the affected employee.
    (o) Employee information and training--(1) Training program. (i) 
Within (insert appropriate time period) from the effective date of this 
section, the employer shall institute a training program for all 
employees who (specify the employees subject to the training 
requirement), and shall assure their participation in the training 
program.
    (ii) The training program shall be provided at the time of initial 
assignment, or upon institution of the training program, and at least 
(insert appropriate time period) thereafter, and the employer shall 
assure that each employee is informed of the following:
    Note: Specify, as appropriate, some or all of the following 
information, or any other appropriate information. Where appropriate, 
require training programs with different contents, or different 
frequencies, for separate subpopulations of the employees specified in 
paragraph (o)(1).
    (A) The information contained in the Appendices;
    (B) The quantity, location, manner of use, release or storage of --
---- and the specific nature of operations which could result in 
exposure to ------, as well as any necessary protective steps;
    (C) The purpose, proper use, and limitations of respirators;
    (D) The purpose and a description of the medical surveillance 
program required by paragraph (n) of this section;
    (E) The emergency procedures developed, as required by paragraph (i) 
of this section;
    (F) The engineering and work practice controls, their function and 
the employee's relationship thereto; and
    (G) A review of this standard.
    (2) Access to training materials. (i) The employer shall make a copy 
of this standard and its appendices readily available to all affected 
employees.
    (ii) The employer shall provide, upon request, all materials 
relating to the employee information and training program to the 
Assistant Secretary and the Director.
    (p) Signs and labels--(1) General. (i) The employer may use labels 
or signs required by other statutes, regulations, or ordinances in 
addition to, or in combination with, signs and labels required by this 
paragraph.

[[Page 239]]

    (ii) The employer shall assure that no statement appears on or near 
any sign or label, required by this paragraph, which contradicts or 
detracts from the meaning of the required sign or label.
    (2) Signs. (i) The employer shall post signs to clearly indicate all 
workplaces. (Specify as appropriate the description of the area to be 
signposted such as ``where employees are exposed to ------------,'' or 
``where exposures exceed the action level,'' or ``where exposures exceed 
the PEL,'' or ``which are regulated areas''). The signs shall bear the 
following legend:

                                 DANGER

________________________________________________________________________
(insert appropriate trade or common names)

                              CANCER HAZARD

                        AUTHORIZED PERSONNEL ONLY

    (ii) The employer shall assure that signs required by this paragraph 
are illuminated and cleaned as necessary so that the legend is readily 
visible.
    (iii) Where airborne concentrations of ------ exceed the permissible 
exposure limits, the signs shall bear the additional legend: 
``Respirator Required'' or ``Respirator May Be Required'' as 
appropriate.
    (3) Labels. (i) The employer shall assure that precautionary labels 
are affixed to all containers of ------ and of products containing ----
-- (specify if appropriate suitable modifications), and that the labels 
remain affixed when the ------ or products containing ------ are sold, 
distributed or otherwise leave the employer's workplace.
    (ii) The employer shall assure that the precautionary labels 
required by this paragraph are readily visible and legible. The labels 
shall bear the following legend:

                                 DANGER

                             CONTAINS ------

                              CANCER HAZARD

    Note: Utilize the clause ``POTENTIAL CANCER HAZARD'' if it is 
appropriate to include a signs and labels provision for a Category II 
potential carcinogen.

    (q) Recordkeeping--(1) Exposure monitoring. (i) The employer shall 
establish and maintain an accurate record of all monitoring required by 
paragraph (e) of this section.
    (ii) This record shall include:
    (A) The dates, number, duration, and results of each of the samples 
taken, including a description of the sampling procedure used to 
determine representative employees exposure;
    (B) A description of the sampling and analytical methods used;
    (C) Type of respiratory protective devices worn, if any; and
    (D) Name, social security number and job classification of the 
employees monitored and of all other employees whose exposure the 
measurement is intended to represent.
    (iii) The employer shall maintain this record for (insert 
appropriate period) or for the duration of employment plus (insert 
appropriate period) whichever is longer.
    (2) Medical surveillance. (i) The employer shall establish and 
maintain an accurate record of each employee subject to medical 
surveillance as required by paragraph (n) of this section.
    (ii) This record shall include:
    (A) A copy of the physicians' written opinions or a written 
explanation of the absence of any such opinion or employee refusal to 
take the medical examination:
    (B) Any employees medical complaints related to exposure

to ------;
    (C) A copy of the information provided to the physician as required 
by paragraphs (n)(5)(ii) through (v) of this section unless it is 
systematically retained elsewhere by the employer for the period of time 
specified in paragraph (q)(2)(ii); and
    (D) A copy of the employee's work history.
    (iii) The employer shall assure that this record be maintained for 
(insert appropriate period) or for the duration of employment plus 
(insert appropriate period) whichever is longer.
    (3) Availability. (i) The employer shall assure that all records 
required to be maintained by this section be made available upon request 
to the Assistant Secretary and the Director for examination and copying.
    (ii) Employee exposure measurement records and employee medical 
records

[[Page 240]]

required by this section shall be provided upon request to employees, 
designated representatives, and the Assistant Secretary in accordance 
with 29 CFR 1910.20(a) through (e) and (g) through (i).
    (4) Transfer of records. (i) Whenever the employer ceases to do 
business, the successor employer shall receive and retain all records 
required to be maintained by this section.
    (ii) Whenever the employer ceases to do business and there is no 
successor employer to receive and retain the records for the prescribed 
period, these records shall be transmitted to the Director.
    (iii) At the expiration of the retention period for the records 
required to be maintained pursuant to this section, the employer shall 
transmit these records to the Director.
    (iv) The employer shall also comply with any additional requirements 
involving transfer of records set forth in 29 CFR 1910.20(h).

    Note: Include other recordkeeping requirements if appropriate.

    (r) Observation of monitoring--(1) Employee observation. The 
employer shall provide affected employees, or their designated 
representatives, an opportunity to observe any monitoring of employee 
exposure to ------ conducted pursuant to paragraph (e) of this section.
    (2) Observation procedures. (i) Whenever observation of the 
monitoring of employee exposure to ------ requires entry into an area 
where the use of protective clothing or equipment is required, the 
employer shall provide the observer with personal protective clothing or 
equipment required to be worn by employees working in the area, assure 
the use of such clothing and equipment, and require the observer to 
comply with all other applicable safety and health procedures.
    (ii) Without interfering with the monitoring, observers shall be 
entitled to:
    (A) Receive an explanation of the measurement procedures;
    (B) Observe all steps related to the measurement of airborne 
concentrations of ------ performed at the place of exposure; and
    (C) Record the results obtained, and receive results supplied by the 
laboratory.
    (s) Effective date. This section shall become effective (insert 
effective date).
    (t) Appendices. The information contained in the appendices is not 
intended, by itself, to create any additional obligations not otherwise 
imposed or to detract from any existing obligation. (In normal 
circumstances three appendices will be included in each standard, an 
``Appendix A--Substance Safety Data Sheet,'' an ``Appendix B--Substance 
Technical Guidelines,'' and an ``Appendix C--Medical Surveillance 
Guidelines.'' Insert additional appendices or delete any of the 
suggested appendices as appropriate.)

[45 FR 5282, Jan. 22, 1980; 45 FR 43405-43406, June 27, 1980, as amended 
at 46 FR 5881, Jan. 21, 1981]



Sec. 1990.152  Model emergency temporary standard pursuant to section 6(c) of the Act.

                    Occupational Exposure to ------;

    Emergency Temporary Standard (insert section number of standard)

    (a) Scope and application--(1) General. This section applies to all 
occupational exposures to ------, or to (specify the uses of classes of 
uses of ------ [Chemical Abstracts Service Registry Number 00000], which 
are covered by the standard, including, where appropriate, the type of 
exposure to be regulated by the standard) except as provided in 
paragraph (a)(2).
    (2) Exemption. This section does not apply to (insert those uses or 
classes of uses of ------ which are exempted from compliance with the 
standard, including, where appropriate,
    (i) Workplaces where exposure to ------ results from solid or liquid 
mixtures containing a specified percentage of ------ or less;
    (ii) Workplaces where another Federal agency is exercising statutory 
authority to prescribe or enforce standards or regulations affecting 
occupational exposure to ------ or
    (iii) Workplaces which are appropriately addressed in a separate 
standard.
    (b) Definitions.

[[Page 241]]

    ------ means (definition of the substance, group of substances, or 
combination of substances, to be regulated).
    Action level means an airborne concentration of ------ of (insert 
appropriate level of exposure).
    Note: Where appropriate, consider an action level as a limitation on 
requirements for periodic monitoring (para. (e)(3)), medical 
surveillance (para. (n)), training (para, (o)), and other provisions.
    Assistant Secretary means the Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, or designee.
    Authorized person means any person specifically authorized by the 
employer whose duties require the person to enter a regulated area or 
any person entering such an area as a designated representative of 
employees exercising the opportunity to observe monitoring procedures 
under paragraph (r) of this section.
    Director means the Director, National Institute for Occupational 
Safety and Health, U.S. Department of Health, Education and Welfare, or 
designee.
    Emergency means any occurrence such as, but not limited to, 
equipment failure, rupture of containers, or failure of control 
equipment which may result in a release of ------ which is (insert 
appropriate quantitative or qualitative level of release which 
constitutes an emergency).
    OSHA Area Office means the Area Office of the Occupational Safety 
and Health Administration having jurisdiction over the geographic area 
where the affected workplace is located.
    (c) Permissible exposure limits--(1) Inhalation--(i) Time-weighted 
average limit (TWA). Within (insert appropriate time) from the effective 
date of this emergency temporary standard, the employer shall assure 
that no employee is exposed to an airborne concentration of ------in 
excess of: (insert appropriate exposure limit representing a level that 
can be complied with immediately) as an eight (8)-hour-time-weighted 
average.
    (ii) Ceiling limit (if appropriate). The employer shall assure that 
no employee is exposed to an airborne concentration of ------in excess 
of: (insert appropriate exposure limit representing a level that can be 
complied with immediately) as averaged over any: (insert appropriate 
time period) during the working day.
    (2) Dermal and eye exposure. (As appropriate.) (i) Within (insert 
appropriate time period) of the effective date of this section, the 
employer shall (If eye exposure to ------does not create a risk of 
cancer, insert exposure level or criteria which will prevent other 
adverse effects of eye exposure to ------, if any. If eye exposure 
creates a risk of cancer, insert exposure level or criteria which 
represent the level of eye exposure to ------.)
    (ii) Within (insert appropriate time period) of the effective date 
of this section, the employer shall (If skin exposure to ------does not 
create a risk of cancer, insert exposure level or criteria which will 
prevent other adverse health affects of skin exposure to ------if any. 
If skin exposure creates a risk of cancer, insert exposure level or 
criteria which represents the level of skin exposure to ------).
    (d) Notification of use. Within (insert appropriate time and omit 
specific categories of information if appropriate) of the effective date 
of this section, or within fifteen (15) days following the introduction 
of ------ into the workplace, every employer shall report the following 
information to the nearest OSHA Area Office for each such workplace:
    (1) The address and location of each workplace in which ------ is 
present;
    (2) A brief description of each process or operation which may 
result in employee exposure to ------;
    (3) The number of employees engaged in each process or operation who 
may be exposed ------ and an estimate of the frequency and degree of 
exposure that occurs; and
    (4) A brief description of the employer's safety and health program 
as it relates to limitation of employee exposure to ------;
    (e) Exposure monitoring--(1) General. (i) Determinations of airborne 
exposure levels shall be made from air samples that are representative 
of each employee's exposure to ------ over an eight (8) hour period. 
(Modify the time period as appropriate to be practical in the relevant 
industries yet reasonably representative of full shift exposures).

[[Page 242]]

Monitoring of exposure levels required under this paragraph shall be 
made as follows: [insert method or alternative methods to be used to 
meet the requirements of this paragraph].
    (ii) For the purposes of this section, employee exposure is that 
exposure which would occur if the employee were not using a respirator.
    (2) Initial monitoring. Each employer who has one or more workplaces 
where (specify the types of workplaces subject to the monitoring 
requirement), shall within (insert appropriate period) of the effective 
date of this section (insert requirements for initial monitoring, as 
appropriate).
    (3) Frequency. (Insert, if appropriate, provisions prescribing the 
minimum frequency at which monitoring must be repeated, the conditions 
under which such frequency must be increased, or may be reduced, and 
conditions under which such routine monitoring may be discontinued (for 
example where the action level is not exceeded). Where appropriate, 
specify different frequency requirements for certain types of workplaces 
where, for example, exposure levels are subject to greater or less 
variability.)
    (4) Additional monitoring. (Insert, if appropriate, provisions for 
monitoring, in addition to the requirements (if any) of paragraph 
(e)(3). This may include a production, process, control or personnel 
change which might result in new or additional exposure to ------ or 
whenever the employer has any other reason to suspect a change which 
might result in new or additional exposures to ------.)
    (5) Employee notification. (i) Within (insert appropriate period) 
after the receipt of monitoring results, the employer shall notify each 
employee in writing of the results which represent that employee's 
exposure.
    (ii) Whenever the results indicate that the representative employee 
exposure exceeds the permissible exposure limits, the employer shall 
include in the written notice a statement that permissible exposure 
limits were exceeded and a description of the corrective action being 
taken to reduce exposure to or below the permissible exposure limits.
    (6) Accuracy of measurement. (Insert requirements for accuracy of 
methods of measurement or detection used to comply with the paragraph.)
    (f) [Reserved]
    (g) Methods of compliance--(1) General. (i) Employee exposures to --
---- shall be controlled to or below the permissible exposure limits by 
any practicable combination of engineering controls, work practices and 
personal protective devices and equipment, during the effective period 
of this emergency temporary standard.
    Note: Where engineering controls or work practices can reduce 
employee exposures to ------ it is recommended that they be implemented 
where practicable, even where they do not themselves reduce exposures 
to, or below the permissible exposure limits. Work practices which can 
be implemented by the employer to help reduce employee exposures to ----
-- include limiting access to work areas to authorized personnel, 
prohibiting smoking and consumption of food and beverages in work areas, 
and establishing good maintance and housekeeping practices, including 
the prompt clean-up of spills and repair of leaks.
    (2) Engineering and work practice control plan. (i) Within (insert 
appropriate time period) of the effective date of this emergency 
temporary standard, the employer shall develop a written plan describing 
proposed means to reduce employee exposures to the lowest feasible level 
by means of engineering and work practice controls (which will be 
eventually required by a permanent standard for occupational exposure to 
------, as provided for by Sec. 1990.151(g) of this subpart).
    (ii) Written plans required by this paragraph shall be submitted, 
upon request, to the Assistant Secretary and the Director and shall be 
available at the worksite for examination and copying by the Assistant 
Secretary, the Director, and any affected employee or designated 
representative.
    (h) Respiratory protection--(1) Required use. The employer shall 
assure that respirators are used where required pursuant to this section 
to reduce employee exposures to within the permissible exposure limits 
and in emergencies.
    (2) Respirator selection. (i) Where respiratory protection is 
required under this section, the employer shall select and provide at no 
cost to the employee,

[[Page 243]]

the appropriate respirator from Table 1 below and shall assure that the 
employee wears the respirator provided.

               Table 1--Respiratory Protection for ------

    (The table will contain a listing of the appropriate type of 
respirator for various conditions of exposure
to ------.)

    (ii) The employer shall select respirators from those approved by 
the National Institute for Occupational Safety and Health under the 
provisions of 30 CFR part 11.
    (3) Respirator program. (i) The employer shall institute a 
respirator protection program in accordance with 29 CFR 1910.134 (b), 
(d), (e) and (f).
    (ii) Employees who wear respirators shall be allowed to wash their 
face and respirator face piece to prevent potential skin irritation 
associated with respirator use.
    (iii) The employer shall assure that the respirator issued to each 
employee is properly fitted (as appropriate, indicate the requirement 
for a qualitative or quantitative respirator fit testing program.)
    (i) [Reserved]
    (j) Protective clothing and equipment--(1) Provision and use. Where 
employees are exposed to eye or skin contact with ------ (insert 
criteria which trigger this requirement as appropriate), the employer 
shall within (insert appropriate time period) of the effective date of 
this standard provide, at no cost to the employees, and assure that 
employees wear, appropriate protective clothing or other equipment in 
accordance with 29 CFR 1910.132 and 1910.133 to protect the area of the 
body which may come in contact with ------.
    (2) Cleaning and replacement. (i) The employer shall clean, launder, 
maintain, or replace protective clothing and equipment required by this 
paragraph, as needed to maintain their effectiveness.
    (k) Housekeeping--(1) General. The employer shall, within (insert 
appropriate time period) of the effective date of this section, 
implement a housekeeping program to minimize accumulations of ------.
    (2) Specific provisions. The program shall include (insert 
appropriate elements):
    (i) Periodic scheduling of routine housekeeping procedures;
    (ii) Provision for periodic cleaning of dust collection systems;
    (iii) Provision for maintaining clean surfaces;
    (iv) Provision for assigning personnel to housekeeping procedures; 
and
    (v) Provision for informing employees about housekeeping program.
    (l) Waste disposal--(1) General. The employer shall assure that no 
waste material containing ------ is dispersed into the workplace, to the 
extent practicable.
    (2) The employer shall label, or otherwise inform employees who may 
contact waste material containing ------ of the contents of such waste 
material.
    (3) (Insert specific disposal methods, as appropriate.)
    (m) [Reserved]
    (n) Medical surveillance--(1) General. (i) The employer shall 
institute a program of medical surveillance for (specify the types of 
employees subject to the medical surveillance requirement, for example, 
by specifying the level, duration, and frequency of exposure to -------- 
which make medical surveillance appropriate for individual employees). 
The employer shall provide each such employee with an opportunity for 
medical examinations and tests in accordance with this paragraph.
    (ii) The employer shall assure that all medical examinations and 
procedures are performed by or under the supervision of a licensed 
physician, and shall be provided without cost to the employee.
    (2) Initial examinations. Within (insert appropriate time period) of 
the effective date of this section, or thereafter at the time of initial 
assignment, the employer shall provide each employee specified in 
paragraph (n)(1) of this section an opportunity for a medical 
examination, including at least the following elements:
    (i) A work history and a medical history which shall include (insert 
specific areas to be covered pertinent to the health hazards posed by --
------).

[[Page 244]]

    (ii) A physical examination which shall include: (insert specific 
tests, procedures, etc., pertinent to the health hazards posed by ------
--. Where appropriate, provide that the examining physician shall 
conduct such additional examinations and tests as are needed according 
to his professional judgement).
    Note: Where appropriate, require or permit different medical 
protocols, or different frequencies of medical examinations, for 
separate sub-populations of employees covered under paragaph (n)(1).
    (3) Periodic examinations. (If appropriate insert appropriate 
medical protocol and time.)
    (4) Additional examinations. If the employee for any reason develops 
signs or symptoms commonly associated with exposure to ------, the 
employer shall provide an appropriate examination and emergency medical 
treatment.
    (5) Information provided to the physician. The employer shall 
provide the following information to the examining physician:
    (i) A copy of this emergency temporary standard and its appendices;
    (ii) A description of the affected employee's duties as they relate 
to the employee's exposure;
    (iii) The employee's actual or representative exposure level;
    (iv) The employee's anticipated or estimated exposure level (for 
preplacement examinations or in cases of exposures due to an emergency);
    (v) A description of any personal protective equipment used or to be 
used; and
    (vi) The names and addresses of physicians who, under the 
sponsorship of the employer, provided previous medical examinations of 
the affected employee, if such records are not otherwise available to 
the examining physician.
    (6) Physician's written opinion. (i) The employer shall obtain a 
written opinion from the examining physician which shall include:
    (A) The results of the medical tests performed;
    (B) The physician's opinion as to whether the employee has any 
detected medical condition which would place the employee at an 
increased risk of material impairment of the employee's health from 
exposure to ------;
    (C) Any recommended limitations upon the employee's exposure to ----
-- or upon the use of protective clothing and equipment such as 
respirators; and
    (D) A statement that the employee has been informed by the physician 
of the results of the medical examination and any medical conditions 
which require further examination or treatment.
    (ii) The employer shall instruct the physician not to reveal in the 
written opinion specific findings or diagnoses unrelated to occupational 
exposure to ------;
    (iii) The employer shall provide a copy of the written opinion to 
the affected employee.
    (o) Employee information and training--(1) Training program. (i) 
Within (insert appropriate time period) from the effective date of this 
standard, the employer shall institute a training program for all 
employees who (specify the employees subject to the training 
requirement), and shall assure their participation in the training 
program.
    (ii) The employer shall assure that each employee is informed of the 
following:
    (A) The information contained in the Appendices;
    (B) The quantity, location, manner of use, release, or storage of --
---- and the specific nature of operations which could result in 
exposure to ------, as well as any necessary protective steps;
    (C) The purpose, proper use, and limitations of respirators;
    (D) The purpose and description of the medical surveillance program 
required by paragraph (n) of this section; and
    (E) A review of this standard.
    (2) Access to training materials. (i) The employer shall make a copy 
of this standard and its appendices readily available to all affected 
employees.
    (ii) The employer shall provide, upon request, all materials 
relating to the employee information and training program to the 
Assistant Secretary and the Director.
    (p) Signs and labels (include a signs or a signs and labels 
provision if it is appropriate for the duration of the ETS)--(1) 
General. (i) The employer may use labels or signs required by

[[Page 245]]

other statutes, regulations, or ordinances in addition to, or in 
combination with, signs and labels required by this paragraph.
    (ii) The employer shall assure that no statement appears on or near 
any sign or label, required by this paragraph, which contradicts or 
detracts from the meaning of the required sign or label.
    (2) Signs. (i) The employer shall post signs to clearly indicate all 
workplaces (specify as appropriate the description of the area to be 
signposted such as ``where employees are exposed to --------,'' or 
``where exposures exceed the PEL,'' or ``which are regulated areas''). 
The signs shall bear the following legend:

                                 DANGER

                                  ------

(insert appropriate trade or common names)

                              CANCER HAZARD

                        AUTHORIZED PERSONNEL ONLY

    (ii) The employer shall assure that signs required by this paragraph 
are illuminated and cleaned as necessary so that the legend is readily 
visible.
    (iii) Where airborne concentrations of ------------ exceed the 
permissible exposure limits, the signs shall bear the additional legend: 
(``Respirator Required'' or ``Respirator may be Required'' as 
appropriate).
    (3) Labels. (i) The employer shall assure that precautionary labels 
are affixed to all containers of ------------ and of products containing 
-------------- (specify if appropriate suitable modifications), and that 
the labels remain affixed when ---------- or products containing ------
------ are sold, distributed or otherwise leave the employer's 
workplace.
    (ii) The employer shall assure that the precautionary labels 
required by this paragraph are readily visible and legible. The labels 
shall bear the following legend:

                                 DANGER

                         CONTAINS --------------

                              CANCER HAZARD

    (q) Recordkeeping--(1) Exposure monitoring. (i) The employer shall 
establish and maintain an accurate record of all monitoring required by 
paragraph (e) of this section.
    (ii) This record shall include:
    (A) The dates, number, duration, and results of each of the samples 
taken, including a description of the sampling procedures used to 
determine representative employee exposure;
    (B) A description of the sampling and analytical methods used;
    (C) Type of respiratory protective devices worn, if any; and
    (D) Name, social security number, and job classification of the 
employee monitored and of all other employees whose exposure the 
measurement is intended to represent.
    (iii) The employer shall maintain this record for the effective 
period of this emergency temporary standard, and for any additional 
period required by the permanent standard.
    (2) Medical surveillance. (i) The employer shall establish and 
maintain an accurate record for each employee subject to medical 
surveillance as required by paragraph (n) of this section.
    (ii) This record shall include:
    (A) A copy of the physicians' written opinions or a written 
explanation of the absence of any such opinion or employee refusal to 
take the medical examination;
    (B) Any employee medical complaints related to exposure to ------;
    (C) A copy of the information provided to the physician as required 
by paragraphs (n)(5)(ii)-(iv) of this section unless it is 
systematically retained elsewhere by the employer for the period of time 
specified in paragraph (q)(2)(iii); and,
    (D) A copy of the employee's work history. (1[hairsp][hairsp]) The 
employer shall assure that employee exposure measurement records, as 
required by this section, be made available upon request to the 
Assistant Secretary and the Director for examination and copying.
    (iii) The employer shall assure that this record be maintained for 
the effective period of this emergency temporary standard, and for any 
additional period required by the permanent standard.
    (3) Availability. (i) The employer shall assure that all records 
required to be maintained by this section be made

[[Page 246]]

available upon request, to the Assistant Secretary and the Director for 
examination and copying.
    (ii) Employee exposure measurement records and employee medical 
records required by this section shall be provided upon request to 
employees, designated representatives, and the Assistant Secretary in 
accordance with 29 CFR 1910.20 (a) through (e) and (g) through (i).
    (r) Observation of monitoring. (1) Employee observation. The 
employer shall provide affected employees, or their designated 
representatives, an opportunity to observe any monitoring of employee 
exposure to ------ conducted pursuant to paragraph (e) of this section.
    (2) Observation procedures. (i) Whenever observation of the 
monitoring of employee exposure to ------ requires entry into an area 
where the use of protective clothing or equipment is required, the 
employer shall provide the observer with personal protective clothing or 
equipment required to be worn by employees working in the area, assure 
the use of such clothing and equipment, and require the observer to 
comply with all other applicable safety and health procedures.
    (ii) Without interfering with the monitoring, observers shall be 
entitled to:
    (A) Receive an explanation of measurement procedures;
    (B) Observe all steps related to the measurement of airborne 
concentrations of ------ performed at the place of exposure; and
    (C) Record the results obtained and receive results supplied by the 
laboratory.
    (s) Effective date. This section shall become effective (insert 
effective date).
    (t) Appendices. The information contained in the appendices is not 
intended, itself, to create any additional obligations not otherwise 
imposed or to detract from any existing obligation. (In normal 
circumstances three appendices will be included in each standard, an 
``Appendix A--Substance Safety Data Sheet,'' an ``Appendix B--Substance 
Technical Guidelines,'' and an ``Appendix C--Medical Surveillance 
Guidelines.'' Insert additional appendices or delete any of the 
suggested appendices as appropriate.)

[45 FR 5282, Jan. 22, 1980; 45 FR 43406-43407, June 27, 1980, as amended 
at 46 FR 5882, Jan. 21, 1981]

[[Page 247]]



      CHAPTER XX--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
2200            Rules of procedure..........................         249
2201            Regulations implementing the Freedom of 
                    Information Act.........................         284
2202

[Reserved]

2203            Regulations implementing the Government in 
                    the Sunshine Act........................         291
2204            Implementation of the Equal Access to 
                    Justice Act in proceedings before the 
                    Occupational Safety and Health Review 
                    Commission..............................         295
2205            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Occupational 
                    Safety and Health Review Commission.....         301
2400            Regulations implementing the Privacy Act....         307

[[Page 249]]



PART 2200--RULES OF PROCEDURE--Table of Contents




                      Subpart A--General Provisions

Sec.
2200.1  Definitions.
2200.2  Scope of rules; applicability of Federal Rules of Civil 
          Procedure; construction.
2200.3  Use of gender and number.
2200.4  Computation of time.
2200.5  Extension of time.
2200.6  Record address.
2200.7  Service and notice.
2200.8  Filing.
2200.9  Consolidation.
2200.10  Severance.
2200.11  Protection of claims of privilege.
2200.12  References to cases.

                 Subpart B--Parties and Representatives

2200.20  Party status.
2200.21  Intervention; appearance by non-parties.
2200.22  Representation of parties and intervenors.
2200.23  Appearances and withdrawals.
2200.24  Brief of an amicus curiae.

                    Subpart C--Pleadings and Motions

2200.30  General rules.
2200.31  Caption; titles of cases.
2200.32  Signing of pleadings and motions.
2200.33  Notices of contest.
2200.34  Employer contests.
2200.35  Disclosure of corporate parents, subsidiaries, and affiliates.
2200.36  [Reserved]
2200.37  Petitions for modification of the abatement period.
2200.38  Employee contests.
2200.39  Statement of position.
2200.40  Motions and requests.
2200.41  Failure to obey rules.

             Subpart D--Prehearing Procedures and Discovery

2200.50  [Reserved]
2200.51  Prehearing conferences and orders.
2200.52  General provisions governing discovery.
2200.53  Production of documents and things.
2200.54  Requests for admissions.
2200.55  Interrogatories.
2200.56  Depositions.
2200.57  Issuance of subpoenas; petitions to revoke or modify subpoenas; 
          right to inspect or copy data.

                           Subpart E--Hearings

2200.60  Notice of hearing; location.
2200.61  Submission without hearing.
2200.62  Postponement of hearing.
2200.63  Stay of proceedings.
2200.64  Failure to appear.
2200.65  Payment of witness fees and mileage; fees of persons taking 
          depositions.
2200.66  Transcript of testimony.
2200.67  Duties and powers of judges.
2200.68  Disqualification of the judge.
2200.69  Examination of witnesses.
2200.70  Exhibits.
2200.71  Rules of evidence.
2200.72  Objections.
2200.73  Interlocutory review.
2200.74  Filing of briefs and proposed findings with the Judge; oral 
          argument at the hearing.

                    Subpart F--Posthearing Procedures

2200.90  Decisions of Judges.
2200.91  Discretionary review; petitions for discretionary review; 
          statements in opposition to petitions.
2200.92  Review by the Commission.
2200.93  Briefs before the Commission.
2200.94  Stay of final order.
2200.95  Oral argument before the Commission.
2200.96  Commission receipt pursuant to 28 U.S.C. 2112(a)(1) of copies 
          of petitions for judicial review of Commission orders when 
          petitions for review are filed in two or more courts of 
          appeals with respect to the same order.

                   Subpart G--Miscellaneous Provisions

2200.100  Settlement.
2200.101  Settlement Judge procedure.
2200.102  Withdrawal.
2200.103  Expedited proceeding.
2200.104  Standards of conduct.
2200.105  Ex parte communication.
2200.106  Amendment to rules.
2200.107  Special circumstances; waiver of rules.
2200.108  Official Seal of the Occupational Safety and Health Review 
          Commission.

                       Subpart H--Settlement Part

2200.120  Settlement part.

Subparts I-L [Reserved]

                          Subpart M--E-Z Trial

2200.200  Purpose.
2200.201  Application.
2200.202  Eligibility for E-Z Trial.
2200.203  Commencing E-Z Trial.
2200.204  Discontinuance of E-Z Trial.
2200.205  Filing of pleadings.
2200.206  Disclosure of information.
2200.207  Pre-hearing conference.
2200.208  Discovery.
2200.209  Hearing.
2200.210  Review of Judge's decision.

[[Page 250]]

2200.211  Applicability of subparts A through G.

    Authority: 29 U.S.C. 661(g), unless otherwise noted.
    Section 2200.96 is also issued under 28 U.S.C. 2112(a).

    Source: 51 FR 32015, Sept. 8, 1986, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 2200.1  Definitions.

    As used herein:
    (a) Act means the Occupational Safety and Health Act of 1970, 29 
U.S.C. 651-678.
    (b) Commission, person, employer, and employee have the meanings set 
forth in section 3 of the Act.
    (c) Secretary means the Secretary of Labor or his duly authorized 
representative.
    (d) Executive Secretary means the Executive Secretary of the 
Commission.
    (e) Affected employee means an employee of a cited employer who is 
exposed to or has access to the hazard arising out of the allegedly 
violative circumstances, conditions, practices or operations.
    (f) Judge means an Administrative Law Judge appointed by the 
Chairman of the Commission pursuant to section 12(j) of the Act, 29 
U.S.C. 661(j), as amended by Pub. L. 95-251, 92 Stat. 183, 184 (1978).
    (g) Authorized employee representative means a labor organization 
that has a collective bargaining relationship with the cited employer 
and that represents affected employees.
    (h) Representative means any person, including an authorized 
employee representative, authorized by a party or intervenor to 
represent him in a proceeding.
    (i) Citation means a written communication issued by the Secretary 
to an employer pursuant to 9(a) of the Act.
    (j) Notification of proposed penalty means a written communication 
issued by the Secretary to an employer pursuant to 10 (a) or (b) of the 
Act.
    (k) Day means a calendar day.
    (l) Working day means all days except Saturdays, Sundays, or Federal 
holidays.
    (m) Proceeding means any proceeding before the Commission or before 
a Judge.
    (n) Pleadings are complaints and answers filed under Sec. 2200.34, 
statements of reasons and contestants' responses filed under 
Sec. 2200.38, and petitions for modification of abatement and objecting 
parties' responses filed under Sec. 2200.37. A motion is not a pleading 
within the meaning of these rules.



Sec. 2200.2  Scope of rules; applicability of Federal Rules of Civil Procedure; construction.

    (a) Scope. These rules shall govern all proceedings before the 
Commission and its Judges.
    (b) Applicability of Federal Rules of Civil Procedure. In the 
absence of a specific provision, procedure shall be in accordance with 
the Federal Rules of Civil Procedure.
    (c) Construction. These rules shall be construed to secure an 
expeditious, just and inexpensive determination of every case.



Sec. 2200.3  Use of gender and number.

    (a) Number. Words importing the singular number may extend and be 
applied to the plural and vice versa.
    (b) Gender. Words importing the masculine gender may be applied to 
the feminine gender.



Sec. 2200.4  Computation of time.

    (a) Computation. In computing any period of time prescribed or 
allowed in these rules, the day from which the designated period begins 
to run shall not be included. The last day of the period so computed 
shall be included unless it is a Saturday, Sunday or Federal holiday, in 
which event the period runs until the end of the next day which is not a 
Saturday, Sunday, or Federal holiday. When the period of time prescribed 
or allowed is less than 11 days, the period shall commence on the first 
day which is not a Saturday, Sunday, or Federal holiday, and 
intermediate Saturdays, Sundays, and Federal holidays shall likewise be 
excluded from the computation.
    (b) Service by mail. Where service of a document, including 
documents issued by the Commission or Judge, is made by mail pursuant to 
Sec. 2200.7, a separate

[[Page 251]]

period of 3 days shall be allowed, in addition to the prescribed period, 
for the filing of a response. This additional 3-day period shall 
commence on the calendar day following the day on which service has been 
made and shall include all calendar days; that is, paragraph (a) of this 
section shall not apply to the extent it requires the exclusion of 
Saturdays, Sundays, or Federal holidays. The prescribed period for the 
responsive filing shall commence on the first day following the 
expiration of the 3-day period, except when the prescribed period is 
less than 11 days. Where the period is less than 11 days, it shall 
commence on the first day following the expiration of the 3-day period 
that is not a Saturday, Sunday, or Federal holiday.
    (c) Exclusion. Paragraph (b) of this section does not apply to 
petitions for discretionary review. The period of time for filing a 
petition for discretionary review is governed by Sec. 2200.91(b).

[57 FR 41683, Sept. 11, 1992]



Sec. 2200.5  Extension of time.

    Upon motion of a party, for good cause shown, the Commission or 
Judge may enlarge any time prescribed by these rules or prescribed by an 
order. All such motions shall be in writing but, in exigent 
circumstances in a case pending before a Judge, an oral request may be 
made and thereafter shall be followed by a written motion filed with the 
Judge within 3 working days. A request for an extension of time should 
be received in advance of the date on which the pleading or document is 
due to be filed. However, in exigent circumstances, an extension of time 
may be granted even though the request was filed after the designated 
time for filing has expired. In such circumstances, the party requesting 
the extension must show, in writing, the reasons for the party's failure 
to make the request before the time prescribed for the filing had 
expired. The motion may be acted upon before the time for response has 
expired.

[57 FR 41684, Sept. 11, 1992]



Sec. 2200.6  Record address.

    Every pleading or document filed by any party or intervenor shall 
contain the name, current address and telephone number of his 
representative or, if he has no representative, his own name, current 
address and telephone number. Any change in such information shall be 
communicated promptly in writing to the Judge, or the Executive 
Secretary if no Judge has been assigned, and to all other parties and 
intervenors. A party or intervenor who fails to furnish such information 
shall be deemed to have waived his right to notice and service under 
these rules.

[51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987]



Sec. 2200.7  Service and notice.

    (a) When service is required. At the time of filing pleadings or 
other documents, a copy thereof shall be served by the filing party or 
intervenor on every other party or intervenor. Every paper relating to 
discovery required to be served on a party shall be served on all 
parties and intervenors. Every order required by its terms to be served 
shall be served upon each of the parties and intervenors.
    (b) Service on represented parties or intervenors. Service upon a 
party or intervenor who has appeared through a representative shall be 
made only upon such representative.
    (c) How accomplished. Unless otherwise ordered, service may be 
accomplished by postage pre-paid first class mail at the last known 
address or by personal delivery. Service is deemed effected at the time 
of mailing (if by mail) or at the time of personal delivery (if by 
personal delivery). Facsimile transmission of documents and documents 
sent by an overnight delivery service shall be considered personal 
delivery. Legibility of documents served by facsimile transmission is 
the responsibility of the serving party.
    (d) Proof of service. Proof of service shall be accomplished by a 
written statement of the same which sets forth the date and manner of 
service. Such statement shall be filed with the pleading or document.
    (e) Proof of posting. Where service is accomplished by posting, 
proof of such

[[Page 252]]

posting shall be filed not later than the first working day following 
the posting.
    (f) Service on represented employees. Service and notice to 
employees represented by an authorized employee representative shall be 
deemed accomplished by serving the representative in the manner 
prescribed in paragraph (c) of this section.
    (g) Service on unrepresented employees. In the event that there are 
any affected employees who are not represented by an authorized employee 
representative, the employer shall, immediately upon receipt of notice 
of the docketing of the notice of contest or petition for modification 
of the abatement period, post, where the citation is required to be 
posted, a copy of the notice of contest and a notice informing such 
affected employees of their right to party status and of the 
availability of all pleadings for inspection and copying at reasonable 
times. A notice in the following form shall be deemed to comply with 
this paragraph:

(Name of employer)______________________________________________________

Your employer has been cited by the Secretary of Labor for violation of 
the Occupational Safety and Health Act of 1970. The citation has been 
contested and will be the subject of a hearing before the OCCUPATIONAL 
SAFETY AND HEALTH REVIEW COMMISSION. Affected employees are entitled to 
participate in this hearing as parties under terms and conditions 
established by the OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION in 
its Rules of Procedure. Notice of intent to participate must be filed no 
later than 10 days before the hearing. Any notice of intent to 
participate should be sent to:

Occupational Safety and Health Review Commission, Office of the 
Executive Secretary, One Lafayette Centre, 1120-20th Street, NW., Suite 
980, Washington, DC 20036-3419.

    All pleadings relevant to this matter may be inspected at:

(Place reasonably convenient to employees, preferably at or near 
workplace.)


Where appropriate, the second sentence of the above notice will be 
deleted and the following sentence will be substituted:

The reasonableness of the period prescribed by the Secretary of Labor 
for abatement of the violation has been contested and will be the 
subject of a hearing before the OCCUPATIONAL SAFETY AND HEALTH REVIEW 
COMMISSION.

    (h) Special service requirements; authorized employee 
representatives. The authorized employee representative, if any, shall 
be served with the notice set forth in paragraph (g) of this section and 
with a copy of the notice of contest.
    (i) Notice of hearing to unrepresented employees. Immediately upon 
receipt, a copy of the notice of the hearing to be held before the Judge 
shall be served by the employer on affected employees who are not 
represented by an authorized employee representative by posting a copy 
of the notice of such hearing at or near the place where the citation is 
required to be posted.
    (j) Notice of hearing to represented employees. Immediately upon 
receipt, a copy of the notice of the hearing to be held before the Judge 
shall be served by the employer on the authorized employee 
representative of affected employees in the manner prescribed in 
paragraph (c) of this section, if the employer has not been informed 
that the authorized employee representative has entered an appearance as 
of the date such notice is received by the employer.
    (k) Employee contest; service on other employees. Where a notice of 
contest is filed by an affected employee who is not represented by an 
authorized employee representative and there are other affected 
employees who are represented by an authorized employee representative, 
the unrepresented employee shall, upon receipt of the statement filed in 
conformance with Sec. 2200.38, serve a copy thereof on such authorized 
employee representative in the manner prescribed in paragraph (c) of 
this section and shall file proof of such service.
    (l) Employee contest; Service on employer. Where a notice of contest 
is filed by an affected employee or an authorized employee 
representative, a copy of the notice of contest and response filed in 
support thereof shall be provided to the employer for posting in the 
manner prescribed in paragraph (g) of this section.
    (m) Employee contest; service on other authorized employee 
representatives. An authorized employee representative

[[Page 253]]

who files a notice of contest shall be responsible for serving any other 
authorized employee representative whose members are affected employees.
    (n) Duration of posting. Where posting is required by this section, 
such posting shall be maintained until the commencement of the hearing 
or until earlier disposition.

[51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987, as amended at 
57 FR 41684, Sept. 11, 1992; 58 FR 26065, Apr. 30, 1993; 62 FR 35963, 
July 3, 1997]



Sec. 2200.8  Filing.

    (a) What to file. All papers required to be served on a party or 
intervenor, except for those papers associated with part of a discovery 
request under Rules 52 through 56, shall be filed either before service 
or within a reasonable time thereafter.
    (b) Where to file. Prior to assignment of a case to a Judge, all 
papers shall be filed with the Executive Secretary at One Lafayette 
Centre, 1120-20th Street, NW., Suite 980, Washington, DC 20036-3419. 
Subsequent to the assignment of the case to a Judge, all papers shall be 
filed with the Judge at the address given in the notice informing of 
such assignment. Subsequent to the docketing of the Judge's report, all 
papers shall be filed with the Executive Secretary, except as provided 
in Sec. 2200.90(b)(3).
    (c) How to file. Unless otherwise ordered, all filing may be 
accomplished by postage-prepaid first class mail or by personal 
delivery.
    (d) Number of copies. Unless otherwise ordered or stated in this 
part:
    (1) If a case is before a Judge or if it has not yet been assigned 
to a Judge, only the original of a document shall be filed.
    (2) If a case is before the Commission for review, the original and 
eight copies of a document shall be filed.
    (e) Filing date. Filing is effective upon mailing (if by mail) or 
upon receipt by the Commission (if filing is by personal delivery, 
overnight delivery service, or facsimile transmission), except that the 
filing of petitions for discretionary review is effective only upon 
receipt by the Commission. See Sec. 2200.91.
    (f) Facsimile transmissions. (1) Any document may be filed with the 
Commission or its Judges by facsimile transmission. Filing shall be 
deemed completed at the time that the facsimile transmission is received 
by the Commission or the Judge. The filed facsimile shall have the same 
force and effect as the original.
    (2) All facsimile transmissions shall include a facsimile of the 
appropriate certificate of service.
    (3) Within 3 days after the Commission or the Judge has received the 
facsimile, the party filing the document shall forward to the Commission 
or the Judge a signed, original document and, where appropriate, the 
proper number of multiple copies.
    (4) It is the responsibility of parties desiring to file documents 
by the use of facsimile transmission equipment to utilize equipment that 
is compatible with facsimile transmission equipment operated by the 
Commission. Legibility of the transmitted documents is the 
responsibility of the serving party.

[57 FR 41684, Sept. 11, 1992, as amended at 58 FR 26065, Apr. 30, 1993; 
62 FR 35963, July 3, 1997]



Sec. 2200.9  Consolidation.

    Cases may be consolidated on the motion of any party, on the Judge's 
own motion, or on the Commission's own motion, where there exist common 
parties, common questions of law or fact or in such other circumstances 
as justice or the administration of the Act require.

[51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987; 52 FR 19631, 
May 26, 1987]



Sec. 2200.10  Severance.

    Upon its own motion, or upon motion of any party or intervenor, 
where a showing of good cause has been made by the party or intervenor, 
the Commission or the Judge may order any proceeding severed with 
respect to some or all claims or parties.

[57 FR 41684, Sept. 11, 1992]



Sec. 2200.11  Protection of claims of privilege.

    (a) Scope. This section applies to all claims of privilege, whenever 
asserted. It applies to privileged information,

[[Page 254]]

such as trade secrets and other matter protected by 18 U.S.C. 1905, and 
other information the confidentiality of which is protected by law. As 
it is used in this section, ``privileged information'' encompasses such 
confidential information.
    (b) Assertion of a privilege. A person claiming that information is 
privileged shall claim the privilege in writing or, if during a hearing, 
on the record. The claim shall (1) identify the information that would 
be disclosed and for which a privilege is claimed, and (2) allege with 
specificity the facts showing that the information is privileged. The 
claim shall be supported by affidavits, depositions or testimony and 
shall specify the relief sought. The claim may be accompanied by a 
motion for a protective order or by a motion that the allegedly 
privileged information be received and the claim be ruled upon in 
camera, that is, with the record and hearing room closed to the public, 
or ex parte, that is, without the participation of parties and their 
representatives.
    (c) Opposition to the claim. A party wishing to make a response 
opposing a claim of privilege, or asserting a substantial need for 
disclosure in the event a qualified privilege exists, must do so within 
15 days but, if the motion is made during a hearing, the Judge may 
prescribe a shorter time or require that the response be made during the 
hearing. A response contravening the facts stated by the claimant of the 
privilege shall be supported by affidavits, depositions, or testimony.
    (d) Examination of claim. In examining a claim of privilege, the 
Judge may enter such orders and impose such terms and conditions on his 
examination as justice may require, including orders designed to assure 
that the alleged privileged information not be disclosed until after the 
examination is completed. The Judge may:
    (1) Receive the allegedly privileged information in camera; he may 
temporarily seal the portions of the record containing the allegedly 
privileged information and may exclude the public from the hearing room.
    (2) Receive the allegedly privileged information ex parte; he may 
order that the allegedly privileged information not be heard or served 
on all parties and their representatives; he may hear or examine it 
without the presence of all parties and their representatives.
    (3) Order the preparation of a summary of the allegedly privileged 
information; he may order that a copy of a document be prepared with the 
allegedly privileged information excised; he may order that such 
summaries or documents be served upon other parties or their 
representatives.
    (4) Enter a protective order. See paragraphs (e) and (f) of this 
section.
    (e) Upholding of claim. If a claim of privilege is upheld, the Judge 
may enter such orders and impose such terms and conditions as justice 
may require, including orders that the privileged information not be 
disclosed or be disclosed in a specified manner. The Judge may: exclude 
the privileged information from the record; enter orders under 
Sec. 2200.52(d), including an order that discovery not be had; revoke or 
modify a subpoena; and permanently seal that portion of the record or 
other files of the Commission containing the privileged information, 
permitting access only to the Commission and any reviewing court. The 
Judge may also permit the information to be disclosed only to persons 
covered by protective orders under Sec. 2200.52(d) and paragraph (f) of 
this section.
    (f) Protective orders. To govern the examination of a claim of 
privilege or to govern the treatment of privileged information, the 
Judge may enter protective orders under Sec. 2200.52(d). The Judge may 
decline to permit disclosure to persons against whom the Commission 
could not enforce the order. The order may require that--
    (1) An attorney or other representative not disclose the allegedly 
privileged information to any person, including his client.
    (2) Any person to whom the material will be disclosed sign a written 
confidentiality agreement that the material will not be disclosed except 
under stated terms and conditions and that stipulates a reasonable 
preestimate of likely damages.
    (3) In the case of an entry upon land, the case be stayed to allow 
the party seeking entry an opportunity to seek an order of a court or 
search warrant with protective conditions.

[[Page 255]]

    (g) Rejection of claim. If the Judge overrules a claim of privilege, 
the person claiming the privilege may obtain as of right an order 
sealing from the public those portions of the record containing the 
allegedly privileged information pending interlocutory or final review 
of the ruling, or final disposition of the case, by the Commission. 
Interlocutory review of such an order shall be given priority 
consideration by the Commission.

[51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987, as amended at 
62 FR 35963, July 3, 1997]



Sec. 2200.12  References to cases.

    (a) Citing decisions by Commission and Judges--(1) Generally. 
Parties citing decisions by the Commission should include in the 
citation the name of the employer, a citation to either the Bureau of 
National Affairs' Occupational Safety and Health Cases (``BNA OSHC'') or 
Commerce Clearing House's Occupational Safety and Health Decisions 
(``CCH OSHD''), the OSHRC docket number and the year of the decision. 
For example, Clement Food Co., 11 BNA OSHC 2120 (No. 80-607, 1984).
    (2) Parenthetical statements. When citing the decision of a Judge, 
the digest of an opinion, or the opinion of a single Commissioner, a 
parenthetical statement to that effect should be included. For example, 
Rust Engineering Co., 1984 CCH OSHD [p