[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2012 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          
          
          Title 29

Labor


________________________

Part 1927 to End

                         Revised as of July 1, 2012

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2012
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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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                                               305
          Chapter XXV--Employee Benefits Security 
          Administration, Department of Labor                      375
          Chapter XXVII--Federal Mine Safety and Health Review 
          Commission                                               865
          Chapter XL--Pension Benefit Guaranty Corporation         917
  Finding Aids:
      Table of CFR Titles and Chapters........................    1219
      Alphabetical List of Agencies Appearing in the CFR......    1239
      List of CFR Sections Affected...........................    1249

[[Page iv]]





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

                     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 
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    To determine whether a Code volume has been amended since its 
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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 
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OBSOLETE PROVISIONS

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``[RESERVED]'' TERMINOLOGY

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INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
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    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:
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    (b) The matter incorporated is in fact available to the extent 
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that volume.

[[Page vii]]

    The Federal Register Index is issued monthly in cumulative form. 
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    Director,
    Office of the Federal Register.
    July 1, 2012.







[[Page ix]]



                               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, part 1900-Sec.  1910.999, part 1910.1000-
end of part 1910, parts 1911-1925, part 1926, and part 1927 to end. The 
contents of these volumes represent all current regulations codified 
under this title as of July 1, 2012.

    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.

    For this volume, Susannah C. Hurley was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



                             TITLE 29--LABOR




                  (This book contains part 1927 to End)

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

          SUBTITLE B--Regulations Relating to Labor (Continued)

                                                                    Part

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

[[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..........................          39
1952            Approved State plans for enforcement of 
                    State standards.........................          39
1953            Changes to State plans......................         145
1954            Procedures for the evaluation and monitoring 
                    of approved State plans.................         150
1955            Procedures for withdrawal of approval of 
                    State plans.............................         156
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..................         167
1960            Basic program elements for Federal employee 
                    occupational safety and health programs 
                    and related matters.....................         189
1975            Coverage of employers under the Williams-
                    Steiger Occupational Safety and Health 
                    Act of 1970.............................         215
1977            Discrimination against employees exercising 
                    rights under the Williams-Steiger 
                    Occupational Safety and Health Act of 
                    1970....................................         219
1978            Procedures for the handling of retaliation 
                    complaints under the employee protection 
                    provision of the Surface Transportation 
                    Assistance Act of 1982..................         225
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.................................         234

[[Page 6]]

1980            Procedures for the handling of retaliation 
                    complaints under section 806 of the 
                    Sarbanes-Oxley Act of 2002, as amended..         242
1981            Procedures for the handling of 
                    discrimination complaints under section 
                    6 of the Pipeline Safety Improvement Act 
                    of 2002.................................         251
1982            Procedures for the handling of retaliation 
                    complaints under the National Transit 
                    Systems Security Act of 2007, enacted as 
                    section 1413 of the Implementing 
                    Recommendations of the 9/11 Commission 
                    Act of 2007, and the Federal Railroad 
                    Safety Act, as amended by section 1521 
                    of the Implementing Recommendations of 
                    the 9/11 Commission Act of 2007.........         259
1983            Procedures for the handling of retaliation 
                    complaints under section 219 of the 
                    Consumer Product Safety Improvement Act 
                    of 2008.................................         270
1990            Identification, classification, and 
                    regulation of potential occupational 
                    carcinogens.............................         279

[[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.
1928.52 Protective frames for wheel-type agricultural tractors--test 
          procedures and performance requirements.
1928.53 Protective enclosures for wheel-type agricultural tractors--test 
          procedures and performance requirements.

Appendix A to Subpart C--Employee Operating Instructions
Appendix B to Subpart C--Figures C-1 through C-16

               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: Sections 4, 6, and 8 of the Occupational Safety and 
Health Act of 1970 (29 U.S.C. 653, 655, 657); and Secretary of Labor's 
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-
90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 
65008), or 4-2010 (75 FR 55355), as applicable; and 29 CFR 1911.
    Section 1928.21 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C. 
533.

    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.

[[Page 8]]

    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.
    (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). ROPS shall be provided 
by the employer for each tractor operated by an employee. Except as 
provided in paragraph (b)(5) of this section, a ROPS used on wheel-type 
tractors shall meet the test and performance requirements of 29 CFR 
1928.52, 1928.53, or 1926.1002 as appropriate. A ROPS used on track-type 
tractors shall meet the test and performance requirements of 29 CFR 
1926.1001.
    (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 
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

[[Page 9]]

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; 69 
FR 18803, Apr. 9, 2004; 70 FR 77003, Dec. 29, 2005]



Sec.  1928.52  Protective frames for wheel-type agricultural tractors
--test procedures and performance requirements.

    (a) Purpose. The purpose of this section is to establish the test 
and performance requirements for a protective frame designed for wheel-
type agricultural tractors to minimize the frequency and severity of 
operator injury resulting from accidental upsets. General requirements 
for the protection of operators are specified in 29 CFR 1928.51.
    (b) Types of tests. All protective frames for wheel-type 
agricultural tractors shall be of a model that has been tested as 
follows:
    (1) Laboratory test. A laboratory energy-absorption test, either 
static or dynamic, under repeatable and controlled loading, to permit 
analysis of the protective frame for compliance with the performance 
requirements of this standard.
    (2) Field-upset test. A field-upset test under controlled 
conditions, both to the side and rear, to verify the effectiveness of 
the protective system under actual dynamic conditions. Such testing may 
be omitted when:
    (i) The analysis of the protective-frame static-energy absorption 
test results indicates that both FERis and FERir 
(as defined in paragraph (d)(2)(ii) of this section) exceed 1.15; or
    (ii) The analysis of the protective-frame dynamic-energy absorption 
test results indicates that the frame can withstand an impact of 15 
percent greater than the impact it is required to withstand for the 
tractor weight as shown in Figure C-7.
    (c) Descriptions--(1) Protective frame. A protective frame is a 
structure comprised of uprights mounted to the tractor, extending above 
the operator's seat. A typical two-post frame is shown in Figure C-1.
    (2) Overhead weather shield. When an overhead weather shield is 
available for attachment to the protective frame, it may be in place 
during tests provided it does not contribute to the strength of the 
protective frame.
    (3) Overhead falling object protection. When an overhead falling-
object protection device is available for attachment to the protective 
frame, it may be in place during tests provided it does not contribute 
to the strength of the protective frame.
    (d) Test procedures--(1) General. (i) The tractor weight used shall 
be that of the heaviest tractor model on which the protective frame is 
to be used.
    (ii) Each test required under this section shall be performed on a 
new protective frame. Mounting connections of the same design shall be 
used during each such test.

[[Page 10]]

    (iii) Instantaneous deflection shall be measured and recorded for 
each segment of the test; see paragraph (e)(1)(i) of this section for 
permissible deflections.
    (iv) The seat-reference point (``SRP'') in Figure C-3 is that point 
where the vertical line that is tangent to the most forward point at the 
longitudinal seat centerline of the seat back, and the horizontal line 
that is tangent to the highest point of the seat cushion, intersect in 
the longitudinal seat section. The seat-reference point shall be 
determined with the seat unloaded and adjusted to the highest and most 
rearward position provided for seated operation of the tractor.
    (v) When the centerline of the seat is off the longitudinal center, 
the frame loading shall be on the side with the least space between the 
centerline of seat and the protective frame.
    (vi) Low-temperature characteristics of the protective frame or its 
material shall be demonstrated as specified in paragraph (e)(1)(ii) of 
this section.
    (vii) Rear input energy tests (static, dynamic, or field-upset) need 
not be performed on frames mounted to tractors having four driven wheels 
and more than one-half their unballasted weight on the front wheels.
    (viii) Accuracy table:

------------------------------------------------------------------------
               Measurements                           Accuracy
------------------------------------------------------------------------
Deflection of the frame, in. (mm).........  5
                                             percent of the deflection
                                             measured.
Vertical weight, lb (kg)..................  5
                                             percent of the weight
                                             measured.
Force applied to the frame, pounds force    5
 (newtons).                                  percent of the force
                                             measured.
Dimensions of the critical zone, in. (mm).  0.5
                                             in. (12.5 mm).
------------------------------------------------------------------------

    (2) Static test procedure. (i) The following test conditions shall 
be met:
    (A) The laboratory mounting base shall be the tractor chassis for 
which the protective frame is designed, or its equivalent;
    (B) The protective frame shall be instrumented with the necessary 
equipment to obtain the required load-deflection data at the locations 
and directions specified in Figures C-2 and C-3; and
    (C) When the protective frame is of a one- or two-upright design, 
mounting connections shall be instrumented with the necessary equipment 
to record the required force to be used in paragraph (d)(2)(iii)(E) and 
(J) of this section. Instrumentation shall be placed on mounting 
connections before installation load is applied.
    (ii) The following definitions shall apply:

W = Tractor weight (see 29 CFR 1928.51(a)) in lb (W[min] in kg);
Eis = Energy input to be absorbed during side loading in ft-lb (E[min]is 
in J [joules]);
Eis = 723 + 0.4 W (E[min]is = 100 + 0.12 W[min]);
Eir = Energy input to be absorbed during rear loading in ft-lb (E[min]ir 
in J);
Eir = 0.47 W (E[min]ir = 0.14 W[min]);
L = Static load, lbf [pounds force], (N) [newtons];
D = Deflection under L, in. (mm);
L-D = Static load-deflection diagram;
Lmax = Maximum observed static load;
Load Limit = Point on a continuous L-D curve where the observed static 
load is 0.8 Lmax on the down slope of the curve (see Figure C-5);
Eu = Strain energy absorbed by the frame in ft-lb (J); area under the L-
D curve;
FER = Factor of energy ratio;
FERis = EuEis;
FERir = EuEir;
Pb = Maximum observed force in mounting connection under a static load, 
L lbf (N);
Pu = Ultimate force capacity of a mounting connection, lbf (N);
FSB = Design margin for a mounting connection; and
FSB = Pu/Pb

    (iii) The test procedures shall be as follows:
    (A) Apply the rear load according to Figure C-3, and record L and D 
simultaneously. Rear-load application shall be distributed uniformly on 
the frame over an area perpendicular to the direction of load 
application, no greater than 160 sq. in. (1,032 sq. cm) in size, with 
the largest dimension no greater than 27 in. (686 mm). The load shall be 
applied to the upper extremity of the frame at the point that is midway 
between the center of the frame and the inside of the frame upright. 
When no structural cross member exists at the rear of the frame, a 
substitute test beam that does not add strength to the frame may be used 
to complete this test procedure. The test shall be stopped when:
    (1) The strain energy absorbed by the frame is equal to or greater 
than the required input energy Eir; or

[[Page 11]]

    (2) Deflection of the frame exceeds the allowable deflection (see 
paragraph (e)(1)(i) of this section); or
    (3) Frame load limit occurs before the allowable deflection is 
reached in rear load (see Figure C-5).
    (B) Using data obtained under paragraph (d)(2)(iii)(A) of this 
section, construct the L-D diagram shown in Figure C-5;
    (C) Calculate Eir;
    (D) Calculate FERir;
    (E) Calculate FSB as required by paragraph (d)(2)(i)(C) of this 
section;
    (F) Apply the side-load tests on the same frame, and record L and D 
simultaneously. Side-load application shall be at the upper extremity of 
the frame at a 90[deg] angle to the centerline of the vehicle. The side 
load shall be applied to the longitudinal side farthest from the point 
of rear-load application. Apply side load L as shown in Figure C-2. The 
test shall be stopped when:
    (1) The strain energy absorbed by the frame is equal to or greater 
than the required input energy Eis; or
    (2) Deflection of the frame exceeds the allowable deflection (see 
paragraph (e)(1)(i) of this section); or
    (3) Frame load limit occurs before the allowable deflection is 
reached in side load (see Figure C-5).
    (G) Using data obtained in paragraph (d)(2)(iii)(F) of this section, 
construct the L-D diagram as shown in Figure C-5;
    (H) Calculate Eis;
    (I) Calculate FERis; and
    (J) Calculate FSB as required by paragraph (d)(2)(i)(C) of this 
section.
    (3) Dynamic test procedure. (i) The following test conditions shall 
be met:
    (A) The protective frame and tractor shall be tested at the weight 
defined by 29 CFR 1928.51(a);
    (B) The dynamic loading shall be accomplished by using a 4,410-lb 
(2,000-kg) weight acting as a pendulum. The impact face of the weight 
shall be 27 1 in. by 27 1 
in. (686 25 mm by 686 25 
mm), and shall be constructed so that its center of gravity is within 
1.0 in. (25.4 mm) of its geometric center. The weight shall be suspended 
from a pivot point 18 to 22 ft (5.5 to 6.7 m) above the point of impact 
on the frame, and shall be conveniently and safely adjustable for height 
(see Figure C-6);
    (C) For each phase of testing, the tractor shall be restrained from 
moving when the dynamic load is applied. The restraining members shall 
have strength no less than, and elasticity no greater than, that of 
0.50-in. (12.7-mm) steel cable. Points of attachment for the restraining 
members shall be located an appropriate distance behind the rear axle 
and in front of the front axle to provide a 15[deg] to 30[deg] angle 
between a restraining cable and the horizontal. For impact from the 
rear, the restraining cables shall be located in the plane in which the 
center of gravity of the pendulum will swing, or alternatively, two sets 
of symmetrically located cables may be used at lateral locations on the 
tractor. For impact from the side, restraining cables shall be used as 
shown in Figures C-8 and C-9;
    (D) The front and rear wheel-tread settings, when adjustable, shall 
be at the position nearest to halfway between the minimum and maximum 
settings obtainable on the vehicle. When only two settings are 
obtainable, the minimum setting shall be used. The tires shall have no 
liquid ballast, and shall be inflated to the maximum operating pressure 
recommended by the manufacturer. With the specified tire inflation, the 
restraining cable shall be tightened to provide tire deflection of 6 to 
8 percent of the nominal tire-section width. After the vehicle is 
restrained properly, a wooden beam no less than 6-in. x 6-in. (150-mm x 
150-mm) in cross section shall be driven tightly against the appropriate 
wheels and clamped. For the test to the side, an additional wooden beam 
shall be placed as a prop against the wheel nearest to the operator's 
station, and shall be secured to the base so that it is held tightly 
against the wheel rim during impact. The length of this beam shall be 
chosen so that it is at an angle of 25[deg] to 40[deg] to the horizontal 
when it is positioned against the wheel rim. It shall have a length 20 
to 25 times its depth, and a width two to three times its depth (see 
Figures C-8 and C-9);
    (E) Means shall be provided for indicating the maximum instantaneous 
deflection along the line of impact. A simple friction device is 
illustrated in Figure C-4;

[[Page 12]]

    (F) No repairs or adjustments shall be made during the test; and
    (G) When any cables, props, or blocking shift or break during the 
test, the test shall be repeated.
    (ii) H = Vertical height of the center of gravity of a 4,410-lb 
(2,000-kg) weight in in. (H[min] in mm). The weight shall be pulled back 
so that the height of its center of gravity above the point of impact 
is: H = 4.92 + 0.00190 W (H[min] = 125 0.170 
W[min]) (see Figure C-7).
    (iii) The test procedures shall be as follows:
    (A) The frame shall be evaluated by imposing dynamic loading from 
the rear, followed by a load to the side on the same frame. The pendulum 
swinging from the height determined by paragraph (d)(3)(ii) of this 
section shall be used to impose the dynamic load. The position of the 
pendulum shall be so selected that the initial point of impact on the 
frame is in line with the arc of travel of the center of gravity of the 
pendulum. When a quick-release mechanism is used, it shall not influence 
the attitude of the block;
    (B) Impact at rear. The tractor shall be restrained properly 
according to paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section. 
The tractor shall be positioned with respect to the pivot point of the 
pendulum so that the pendulum is 20[deg] from the vertical prior to 
impact as shown in Figure C-8. The impact shall be applied to the upper 
extremity of the frame at the point that is midway between the 
centerline of the frame and the inside of the frame upright. When no 
structural cross member exists at the rear of the frame, a substitute 
test beam that does not add to the strength of the frame may be used to 
complete the test procedure; and
    (C) Impact at side. The blocking and restraining shall conform to 
paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section. The center 
point of impact shall be at the upper extremity of the frame at a point 
most likely to hit the ground first, and at a 90[deg] to the centerline 
of the vehicle (see Figure C-9). The side impact shall be applied to the 
longitudinal side farthest from the point of rear impact.
    (4) Field-upset test procedure. (i) The following test conditions 
shall be met:
    (A) The tractor shall be tested at the weight defined in 29 CFR 
1928.51(a);
    (B) The following provisions address soil bank test conditions.
    (1) The test shall be conducted on a dry, firm soil bank. The soil 
in the impact area shall have an average cone index in the 0-in. to 6-
in. (0-mm to 152-mm) layer of not less than 150. Cone index shall be 
determined according to American Society of Agricultural Engineers 
(``ASAE'') recommendation ASAE R313.1-1971 (``Soil cone penetrometer''), 
as reconfirmed in 1975, which is incorporated by reference. The 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The path 
of vehicle travel shall be 12[deg] 2[deg] to the 
top edge of the bank.
    (2) ASAE recommendation R313.1-1971, as reconfirmed in 1975, appears 
in the 1977 Agricultural Engineers Yearbook, or it may be examined at: 
Any OSHA Regional Office; the OSHA Docket Office, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room N-2625, Washington, DC 20210 
(telephone: (202) 693-2350 (TTY number: (877) 889-5627)); or the 
National Archives and Records Administration (``NARA''). (For 
information on the availability of this material at NARA, telephone 
(202) 741-6030 or access the NARA Web site at http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.) 
Copies may be purchased from the American Society of Agricultural 
Engineers, 2950 Niles Road, St. Joseph, MI 49085.
    (C) An 18-in. (457-mm) high ramp (see Figure C-10) shall be used to 
assist in upsetting the vehicle to the side; and
    (D) The front and rear wheel-tread settings, when adjustable, shall 
be at the position nearest to halfway between the minimum and maximum 
settings obtainable on the vehicle. When only two settings are 
obtainable, the minimum setting shall be used.
    (ii) Field upsets shall be induced to the rear and side as follows:
    (A) Rear upset shall be induced by engine power, with the tractor 
operating in gear to obtain 3 to 5 mph (4.8 to 8.0 kph) at maximum 
governed engine rpm by driving forward directly up

[[Page 13]]

a minimum slope of 60[deg] 5[deg] as shown in 
Figure C-11, or by an alternative equivalent means. The engine clutch 
may be used to aid in inducing the upset; and
    (B) To induce side upset, the tractor shall be driven under its own 
power along the specified path of travel at a minimum speed of 10 mph 
(16 kph), or at maximum vehicle speed when under 10 mph (16 kph), and 
over the ramp as described in paragraph (d)(4)(i)(C) of this section.
    (e) Performance requirements--(1) General requirements. (i) The 
frame, overhead weather shield, fenders, or other parts in the operator 
area may be deformed in these tests, but shall not shatter or leave 
sharp edges exposed to the operator, or encroach on the dimensions shown 
in Figures C-2 and C-3, and specified as follows:

d = 2 in. (51 mm) inside of the frame upright to the vertical centerline 
of the seat;
e = 30 in. (762 mm) at the longitudinal centerline;
f = Not greater than 4 in. (102 mm) to the rear edge of the crossbar, 
measured forward of the seat-reference point (``SRP'');
g = 24 in. (610 mm) minimum; and
m = Not greater than 12 in. (305 mm), measured from the seat-reference 
point to the forward edge of the crossbar.

    (ii) The protective structure and connecting fasteners must pass the 
static or dynamic tests described in paragraphs (d)(2), (d)(3), or 
(d)(4) of this section at a metal temperature of 0 [deg]F (-18 [deg]C) 
or below, or exhibit Charpy V-notch impact strengths as follows:

10-mm x 10-mm (0.394-in. x 0.394-in.) specimen: 8.0 ft-lb (10.8 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 7.5-mm (0.394-in. x 0.296-in.) specimen: 7.0 ft-lb (9.5 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 5-mm (0.394-in. x 0.197-in.) specimen: 5.5 ft-lb (7.5 J) at -20 
[deg]F (-30 [deg]C); or
10-mm x 2.5-mm (0.394-in. x 0.098-in.) specimen: 4.0 ft-lb (5.5 J) at -
20 [deg]F (-30 [deg]C).


Specimens shall be longitudinal and taken from flat stock, tubular, or 
structural sections before forming or welding for use in the frame. 
Specimens from tubular or structural sections shall be taken from the 
middle of the side of greatest dimension, not to include welds.
    (2) Static test-performance requirements. In addition to meeting the 
requirements of paragraph (e)(1) of this section for both side and rear 
loads, FERis and FERir, shall be greater than 1.0, and when the ROPS 
contains one or two upright frames only, FSB shall be greater than 1.3.
    (3) Dynamic test-performance requirements. The structural 
requirements shall be met when the dimensions in paragraph (e)(1) of 
this section are used in both side and rear loads.
    (4) Field-upset test performance requirements. The requirements of 
paragraph (e)(1) of this section shall be met for both side and rear 
upsets.

[70 FR 77004, Dec. 29, 2005]



Sec.  1928.53  Protective enclosures for wheel-type agricultural 
tractors--test procedures and performance requirements.

    (a) Purpose. The purpose of this section is to establish the test 
and performance requirements for a protective enclosure designed for 
wheel-type agricultural tractors to minimize the frequency and severity 
of operator injury resulting from accidental upset. General requirements 
for the protection of operators are specified in 29 CFR 1928.51.
    (b) Types of tests. All protective enclosures for wheel-type 
agricultural tractors shall be of a model that has been tested as 
follows:
    (1) Laboratory test. A laboratory energy-absorption test, either 
static or dynamic, under repeatable and controlled loading, to permit 
analysis of the protective enclosure for compliance with the performance 
requirements of this standard; and
    (2) Field-upset test. A field-upset test under controlled 
conditions, both to the side and rear, to verify the effectiveness of 
the protective system under actual dynamic conditions. This test may be 
omitted when:
    (i) The analysis of the protective-frame static-energy absorption 
test results indicates that both FERis and FERir (as defined in 
paragraph (d)(2)(ii) of this section) exceed 1.15; or
    (ii) The analysis of the protective-frame dynamic-energy absorption 
test results indicates that the frame can withstand an impact 15 percent 
greater than the impact it is required to withstand for the tractor 
weight as shown in Figure C-7.
    (c) Description. A protective enclosure is a structure comprising a 
frame and/

[[Page 14]]

or enclosure mounted to the tractor. A typical enclosure is shown in 
Figure C-12.
    (d) Test procedures--(1) General. (i) The tractor weight used shall 
be that of the heaviest tractor model on which the protective enclosure 
is to be used.
    (ii) Each test required under this section shall be performed on a 
protective enclosure with new structural members. Mounting connections 
of the same design shall be used during each test.
    (iii) Instantaneous deflection shall be measured and recorded for 
each segment of the test; see paragraph (e)(1)(i) of this section for 
permissible deflections.
    (iv) The seat-reference point (``SRP'') in Figure C-14 is that point 
where the vertical line that is tangent to the most forward point at the 
longitudinal seat centerline of the seat back, and the horizontal line 
that is tangent to the highest point of the seat cushion, intersect in 
the longitudinal seat section. The seat-reference point shall be 
determined with the seat unloaded and adjusted to the highest and most 
rearward position provided for seated operations of the tractor.
    (v) When the centerline of the seat is off the longitudinal center, 
the protective-enclosure loading shall be on the side with least space 
between the centerline of the seat and the protective enclosure.
    (vi) Low-temperature characteristics of the protective enclosure or 
its material shall be demonstrated as specified in paragraph (e)(1)(ii) 
of this section.
    (vii) Rear input energy tests (static, dynamic, or field-upset) need 
not be performed on enclosures mounted to tractors having four driven 
wheels and more than one-half their unballasted weight on the front 
wheels.
    (viii) Accuracy table:

------------------------------------------------------------------------
               Measurements                           Accuracy
------------------------------------------------------------------------
Deflection of the enclosure, in. (mm).....  5
                                             percent of the deflection
                                             measured.
Vertical weight, pounds (kg)..............  5
                                             percent of the weight
                                             measured.
Force applied to the enclosure, pounds      5
 force (newtons).                            percent of the force
                                             measured.
Dimensions of the critical zone, in. (mm).  0.5
                                             in. (12.5 mm).
------------------------------------------------------------------------

    (ix) When movable or normally removable portions of the enclosure 
add to structural strength, they shall be placed in configurations that 
contribute least to structural strength during the test.
    (2) Static test procedure. (i) The following test conditions shall 
be met:
    (A) The laboratory mounting base shall be the tractor chassis for 
which the protective enclosure is designed, or its equivalent; and
    (B) The protective enclosure shall be instrumented with the 
necessary equipment to obtain the required load-deflection data at the 
locations and directions specified in Figures C-13 and C-14.
    (ii) The following definitions shall apply:

W = Tractor weight (see 29 CFR 1928.51(a)) in lb (W [min] in kg);
Eis = Energy input to be absorbed during side loading in ft-lb (E 
[min]is in J [joules]);
Eis = 723 + 0.4 W (E [min]is = 100 + 0.12 W [min]);
Eir = Energy input to be absorbed during rear loading in ft-lb (E 
[min]ir in J);
Eir = 0.47 W (E [min]ir = 0.14 W [min]);
L = Static load, lbf [pounds force], (N) [newtons];
D = Deflection under L, in. (mm);
L-D = Static load-deflection diagram;
Lmax = Maximum observed static load;
Load Limit = Point on a continuous L-D curve where the observed static 
load is 0.8 Lmax on the down slope of the curve (see Figure C-5);
Eu = Strain energy absorbed by the protective enclosure in ft-lbs (J); 
area under the L-D curve;
FER = Factor of energy ratio;
FERis = Eu/Eis; and
FERir = Eu/Eir.

    (iii) The test procedures shall be as follows:
    (A) When the protective-frame structures are not an integral part of 
the enclosure, the direction and point of load application for both side 
and rear shall be the same as specified in 29 CFR 1928.52(d)(2);
    (B) When the protective-frame structures are an integral part of the 
enclosure, apply the rear load according to Figure C-14, and record L 
and D simultaneously. Rear-load application shall be distributed 
uniformly on the frame structure over an area perpendicular to the load 
application, no greater than 160 sq. in. (1,032 sq. cm) in size, with 
the largest dimension no greater than 27

[[Page 15]]

in. (686 mm). The load shall be applied to the upper extremity of the 
structure at the point that is midway between the centerline of the 
protective enclosure and the inside of the protective structure. When no 
structural cross member exists at the rear of the enclosure, a 
substitute test beam that does not add strength to the structure may be 
used to complete this test procedure. The test shall be stopped when:
    (1) The strain energy absorbed by the structure is equal to or 
greater than the required input energy Eir; or
    (2) Deflection of the structure exceeds the allowable deflection 
(see paragraph (e)(1)(i) of this section); or
    (3) The structure load limit occurs before the allowable deflection 
is reached in rear load (see Figure C-5);
    (C) Using data obtained in paragraph (d)(2)(iii)(B) of this section, 
construct the L-D diagram for rear loads as shown in Figure C-5;
    (D) Calculate Eir;
    (E) Calculate FERir;
    (F) When the protective-frame structures are an integral part of the 
enclosure, apply the side load according to Figure C-13, and record L 
and D simultaneously. Static side-load application shall be distributed 
uniformly on the frame over an area perpendicular to the direction of 
load application, and no greater than 160 sq. in. (1,032 sq. cm) in 
size, with the largest dimension no greater than 27 in. (686 mm). Side-
load application shall be at a 90[deg] angle to the centerline of the 
vehicle. The center of the side-load application shall be located 
between point k, 24 in. (610 mm) forward of the seat-reference point, 
and point l, 12 in. (305 mm) rearward of the seat-reference point, to 
best use the structural strength (see Figure C-13). This side load shall 
be applied to the longitudinal side farthest from the point of rear-load 
application. The test shall be stopped when:
    (1) The strain energy absorbed by the structure is equal to or 
greater than the required input energy Eis; or
    (2) Deflection of the structure exceeds the allowable deflection 
(see paragraph (e)(1)(i) of this section); or
    (3) The structure load limit occurs before the allowable deflection 
is reached in side load (see Figure C-5);
    (G) Using data obtained in paragraph (d)(2)(iii)(F) of this section, 
construct the L-D diagram for the side load as shown in Figure C-5;
    (H) Calculate FERis; and
    (I) Calculate FERir.
    (3) Dynamic test procedure. (i) The following test conditions shall 
be met:
    (A) The protective enclosure and tractor shall be tested at the 
weight defined by 29 CFR 1928.51(a);
    (B) The dynamic loading shall be accomplished by using a 4,410-lb 
(2,000-kg) weight acting as a pendulum. The impact face of the weight 
shall be 27 1 in. by 27 1 
in. (686 25 mm by 686 25 
mm), and shall be constructed so that its center of gravity is within 
1.0 in. (25.4 mm) of its geometric center. The weight shall be suspended 
from a pivot point 18 to 22 ft (5.5 to 6.7 m) above the point of impact 
on the enclosure, and shall be conveniently and safely adjustable for 
height (see Figure C-6);
    (C) For each phase of testing, the tractor shall be restrained from 
moving when the dynamic load is applied. The restraining members shall 
have strength no less than, and elasticity no greater than, that of 
0.50-in. (12.7-mm) steel cable. Points of attachment for the restraining 
members shall be located an appropriate distance behind the rear axle 
and in front of the front axle to provide a 15[deg] to 30[deg] angle 
between the restraining cable and the horizontal. For impact from the 
rear, the restraining cables shall be located in the plane in which the 
center of gravity of the pendulum will swing, or alternatively, two sets 
of symmetrically located cables may be used at lateral locations on the 
tractor. For the impact from the side, restraining cables shall be used 
as shown in Figures C-15 and C-16;
    (D) The front and rear wheel-tread settings, when adjustable, shall 
be at the position nearest to halfway between the minimum and maximum 
settings obtainable on the vehicle. When only two settings are 
obtainable, the minimum setting shall be used. The tires shall have no 
liquid ballast, and shall be inflated to the maximum operating pressure 
recommended by the manufacturer. With specified tire inflation, the 
restraining cable shall be tightened to provide tire deflection of 6

[[Page 16]]

to 8 percent of nominal tire section width. After the vehicle is 
retrained properly, a wooden beam no smaller than 6-in. x 6-in. (150-mm 
x 150-mm) cross-section shall be driven tightly against the appropriate 
wheels and clamped. For the test to the side, an additional wooden beam 
shall be placed as a prop against the wheel nearest the operator's 
station, and shall be secured to the base so that it is held tightly 
against the wheel rim during impact. The length of this beam shall be 
chosen so that it is at an angle of 25[deg] to 40[deg] to the horizontal 
when it is positioned against the wheel rim. It shall have a length 20 
to 25 times its depth, and a width two to three times its depth (see 
Figures C-15 and C-16);
    (E) Means shall be provided for indicating the maximum instantaneous 
deflection along the line of impact. A simple friction device is 
illustrated in Figure C-4;
    (F) No repair or adjustments shall be made during the test; and
    (G) When any cables, props, or blocking shift or break during the 
test, the test shall be repeated.
    (ii) H = Vertical height of the center of gravity of a 4,410-lb 
(2,000-kg) weight in in. (H[min] in mm). The weight shall be pulled back 
so that the height of its center of gravity above the point of impact 
is: H = 4.92 + 0.00190 W (H[min] = 125 + 0.107 W[min]) (see Figure C-7).
    (iii) The test procedures shall be as follows:
    (A) The enclosure structure shall be evaluated by imposing dynamic 
loading from the rear, followed by a load to the side on the same 
enclosure structure. The pendulum swinging from the height determined by 
paragraph (d)(3)(ii) of this section shall be used to impose the dynamic 
load. The position of the pendulum shall be so selected that the initial 
point of impact on the protective structure is in line with the arc of 
travel of the center of gravity of the pendulum. When a quick-release 
mechanism is used, it shall not influence the attitude of the block;
    (B) Impact at rear. The tractor shall be restrained properly 
according to paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section. 
The tractor shall be positioned with respect to the pivot point of the 
pendulum so that the pendulum is 20[deg] from the vertical prior to 
impact as shown in Figure C-15. The impact shall be applied to the upper 
extremity of the enclosure structure at the point that is midway between 
the centerline of the enclosure structure and the inside of the 
protective structure. When no structural cross member exists at the rear 
of the enclosure structure, a substitute test beam that does not add to 
the strength of the structure may be used to complete the test 
procedure; and
    (C) Impact at side. The blocking and restraining shall conform to 
paragraphs (d)(3)(i)(C) and (d)(3)(i)(D) of this section. The center 
point of impact shall be at the upper extremity of the enclosure at a 
90[deg] angle to the centerline of the vehicle, and located between a 
point k, 24 in. (610 mm) forward of the seat-reference point, and a 
point l, 12 in. (305 mm) rearward of the seat-reference point, to best 
use the structural strength (see Figure C-13). The side impact shall be 
applied to the longitudinal side farthest from the point of rear impact.
    (4) Field-upset test procedure. (i) The following test conditions 
shall be met:
    (A) The tractor shall be tested at the weight defined in 29 CFR 
1928.51(a);
    (B) The following provisions address soil bank test conditions.
    (1) The test shall be conducted on a dry, firm soil bank. The soil 
in the impact area shall have an average cone index in the 0-in. to 6-
in. (0-mm to 152-mm) layer of not less than 150. Cone index shall be 
determined according to American Society of Agricultural Engineers 
(``ASAE'') recommendation ASAE R313.1-1971 (``Soil cone penetrometer''), 
as reconfirmed in 1975, which is incorporated by reference. The 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The path 
of vehicle travel shall be 12[deg] 2[deg] to the 
top edge of the bank.
    (2) ASAE recommendation R313.1-1971, as reconfirmed in 1975, appears 
in the 1977 Agricultural Engineers Yearbook, or it may be examined at: 
Any OSHA Regional Office; the OSHA Docket Office, U.S. Department of 
Labor, 200 Constitution Avenue, NW., Room

[[Page 17]]

N-2625, Washington, DC 20210 (telephone: (202) 693-2350 (TTY number: 
(877) 889-5627)); or the National Archives and Records Administration 
(``NARA''). (For information on the availability of this material at 
NARA, telephone (202) 741-6030 or access the NARA Web site at http://
www.archives.gov/
federal--register/
code--of--federal--regulations/
ibr--locations.html.) Copies may be purchased from the American Society 
of Agricultural Engineers 2950 Niles Road, St. Joseph, MI 49085.
    (C) An 18-in. (457 mm) high ramp (see Figure C-10) shall be used to 
assist in upsetting the vehicle to the side; and
    (D) The front and rear wheel-tread settings, when adjustable, shall 
be at the position nearest to halfway between the minimum and maximum 
settings obtainable on the vehicle. When only two settings are 
obtainable, the minimum setting shall be used.
    (ii) Field upsets shall be induced to the rear and side.
    (A) Rear upset shall be induced by engine power, with the tractor 
operating in gear to obtain 3 to 5 mph (4.8 to 8.0 kph) at maximum 
governed engine rpm by driving forward directly up a minimum slope of 
60[deg] 5[deg] as shown in Figure C-11, or by an 
alternate equivalent means. The engine clutch may be used to aid in 
inducing the upset; and
    (B) To induce side upset, the tractor shall be driven under its own 
power along the specified path of travel at a minimum speed of 10 mph 
(16 kph), or at maximum vehicle speed when under 10 mph (16 kph), and 
over the ramp as described in paragraph (d)(4)(i)(C) of this section.
    (e) Performance requirements--(1) General requirements. (i) The 
protective enclosure structural members or other parts in the operator 
area may be deformed in these tests, but shall not shatter or leave 
sharp edges exposed to the operator. They shall not encroach on a 
transverse plane passing through points d and f within the projected 
area defined by dimensions d, e, and g, or on the dimensions shown in 
Figures C-13 and C-14, as follows:

d = 2 in. (51 mm) inside of the protective structure to the vertical 
centerline of the seat;
e = 30 in. (762 mm) at the longitudinal centerline;
f = Not greater than 4 in. (102 mm) measured forward of the seat-
reference point (``SRP'') at the longitudinal centerline as shown in 
Figure C-14;
g = 24 in. (610 mm) minimum;
h = 17.5 in. (445 mm) minimum; and
j = 2.0 in. (51 mm) measured from the outer periphery of the steering 
wheel.

    (ii) The protective structure and connecting fasteners must pass the 
static or dynamic tests described in paragraphs (d)(2), (d)(3), or 
(d)(4) of this section at a metal temperature of 0 [deg]F (-8 [deg]C) or 
below, or exhibit Charpy V-notch impact strengths as follows:

10-mm x 10-mm (0.394-in. x 0.394-in.) specimen: 8.0 ft-lb (10.8 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 7.5-mm (0.394-in. x 0.296-in.) specimen: 7.0 ft-lb (9.5 J) at -
20 [deg]F (-30 [deg]C);
10-mm x 5-mm (0.394-in. x 0.197-in.) specimen: 5.5 ft-lb (7.5 J) at -20 
[deg]F (-30 [deg]C); or
10-mm x 2.5-mm (0.394-in. x 0.098-in.) specimen: 4.0 ft-lb (5.5 J) at -
20 [deg]F (-30 [deg]C).

    Specimens shall be longitudinal and taken from flat stock, tubular, 
or structural sections before forming or welding for use in the 
protective enclosure. Specimens from tubular or structural sections 
shall be taken from the middle of the side of greatest dimension, not to 
include welds.
    (iii) The following provisions address glazing requirements.
    (A) Glazing shall conform to the requirements contained in Society 
of Automotive Engineers (``SAE'') standard J674-1963 (``Safety glazing 
materials''), which is incorporated by reference. The incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
    (B) SAE standard J674-1963 appears in the 1965 SAE Handbook, or it 
may be examined at: any OSHA Regional Office; the OSHA Docket Office, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-2625, 
Washington, DC 20210 (telephone: (202) 693-2350 (TTY number: (877) 889-
5627)); or the National Archives and Records Administration (``NARA''). 
(For information on the availability of this material at NARA, telephone 
(202) 741-6030 or access the NARA Web site at http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html.) 
Copies may be purchased from the Society of Automotive

[[Page 18]]

Engineers, 400 Commonwealth Drive, Warrendale, Pennsylvania 15096-0001.
    (iv) Two or more operator exits shall be provided and positioned to 
avoid the possibility of both being blocked by the same accident.
    (2) Static test-performance requirements. In addition to meeting the 
requirements of paragraph (e)(1) of this section for both side and rear 
loads, FERis and FER ir shall be greater than 1.0.
    (3) Dynamic test-performance requirements. The structural 
requirements shall be met when the dimensions in paragraph (e)(1) of 
this section are used in both side and rear loads.
    (4) Field-upset test performance requirements. The requirements of 
paragraph (e)(1) of this section shall be met for both side and rear 
upsets.

[70 FR 77004, Dec. 29, 2005, as amended at 71 FR 41145, July 20, 2006]



     Sec. 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.



   Sec. Appendix B to Subpart C of Part 1928--Figures C-1 through C-16
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[[Page 33]]



[71 FR 41146, July 20, 2006]



               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 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

[[Page 34]]

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 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

[[Page 35]]

    (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.
    (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.

[[Page 36]]

    (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 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 \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

[[Page 37]]

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 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 Primary Drinking Water Regulations (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

[[Page 38]]

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 
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, as amended at 76 FR 33612, June 8, 2011]

Subparts J-L [Reserved]

[[Page 39]]



                      Subpart M_Occupational Health



Sec.  1928.1027  Cadmium.

    SeeSec. 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 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.

[[Page 40]]

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 Final approval determination.
1952.105 Level of Federal enforcement.
1952.106 Where the plan may be inspected.
1952.107 Changes to approved plans.

                             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.

[[Page 41]]

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 [Reserved]

                           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.

[[Page 42]]

                           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: Section 18 of the OSH Act (29 U.S.C. 667), 29 CFR part 
1902, and Secretary of Labor's Order No. 5-2002 (67 FR 65008).



               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 inSec. 1902.3 of this chapter at the time of 
approval, must meet the requirements ofSec. 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

[[Page 43]]

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 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. InSec. 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.

[[Page 44]]

    (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 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 andSec. 1903.2 of this chapter where the 
State attains operational status for the enforcement of State standards 
as defined inSec. 1954.3(b) of this chapter.
    (3) Where a State has distributed its poster and has enabling 
legislation as defined inSec. 1954.3(b)(1) of this chapter but becomes 
nonoperational under the provisions ofSec. 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

[[Page 45]]

Administration about State program administration;
    (x) A list of the issues as defined inSec. 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 andSec. 
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]



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 
Sec.Sec. 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.

[[Page 46]]

    (c) In accordance withSec. 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]



                        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 inSec. 
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 Sec.Sec. 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.

[[Page 47]]



Sec.  1952.92  Completion of developmental steps and certification.

    (a) In accordance withSec. 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 withSec. 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 withSec. 1952.91(d) a voluntary compliance 
program, to be known as the Taxpayers' Assistant Program, has been 
developed.
    (d) In accordance withSec. 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 withSec. 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 ofSec. 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 withSec. 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 withSec. 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 withSec. 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.

[[Page 48]]



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 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

[[Page 49]]

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 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 inSec. 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

[[Page 50]]

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 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 inSec. 
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 Sec.Sec. 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

[[Page 51]]

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 
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

[[Page 52]]

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]



Sec.  1952.102  Completion of developmental steps and certification.

    (a)(1) In accordance withSec. 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 inSec. 
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 withSec. 1952.108(d) Oregon has completed the 
training as described.
    (d) Oregon has developed and implemented a computerized Management 
Information System.
    (e) In accordance withSec. 1952.108(f) Oregon has developed and 
implemented an Affirmative Action Plan.
    (f) In accordance withSec. 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 ofSec. 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.

[[Page 53]]

    (i) In accordance withSec. 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 withSec. 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 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 withSec. 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  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 1994 in 
response to a court order of the United States District Court for the 
District of Columbia in AFL-CIO v. Marshall, (C.A. No. 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 Oregon 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 October 1, 2002 through September 30, 2003, and after opportunity 
for public comment, the Assistant Secretary determined that, in 
operation, Oregon's occupational safety and health program (with the 
exception of temporary labor camps in agriculture, general industry, 
construction and logging) 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, under Section 18(e) of the Act, the Oregon State Plan 
was granted final approval and concurrent Federal enforcement authority

[[Page 54]]

was relinquished for all worksites covered by the plan (with the 
exception of temporary labor camps in agriculture, general industry, 
construction and logging), effective May 12, 2005.
    (b) Except as otherwise noted, the plan which has received final 
approval covers all activities of employers and all places of employment 
in Oregon. The plan does not cover private sector establishments on 
Indian reservations and tribal trust lands, including tribal and Indian-
owned enterprises; employment at Crater Lake National Park; employment 
at the U.S. Department of Energy's Albany Research Center (ARC); Federal 
agencies; the U.S. Postal Service and its contractors; contractors on 
U.S. military reservations, except those working on U.S. Army Corps of 
Engineers dam construction projects; and private sector maritime 
employment on or adjacent to navigable waters, including shipyard 
operations and marine terminals.
    (c) Oregon 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.

[70 FR 24954, May 12, 2005, as amended at 71 FR 2886, Jan. 18, 2006; 71 
FR 36990, June 29, 2006]



Sec.  1952.105  Level of Federal enforcement.

    (a) As a result of the Assistant Secretary's determination granting 
final approval to the Oregon State Plan under Section 18(e) of the Act, 
effective May 12, 2005, occupational safety and health standards which 
have been promulgated under Section 6 of the Act (with the exception of 
those applicable to temporary labor camps in agriculture, general 
industry, construction and logging) do not apply with respect to issues 
covered under the Oregon 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 evaluate 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 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. The Operational Status Agreement, effective January 23, 
1975, and as amended, effective December 12, 1983 and November 27, 1991, 
is superseded by this action, except that it will continue to apply to 
temporary labor camps in agriculture, general industry, construction and 
logging.
    (b)(1) In accordance with Section 18(e), final approval relinquishes 
Federal OSHA authority with regard to occupational safety and health 
issues covered by the Oregon plan (with the exception of temporary labor 
camps in agriculture, general industry, construction and logging). OSHA 
retains full authority over issues which are not subject to state 
enforcement under the plan. Thus, Federal OSHA retains its authority 
relative to:
    (i) 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,

[[Page 55]]

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;
    (ii) 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.);
    (iii) 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;
    (iv) Enforcement of occupational safety and health standards with 
regard to employment at Crater Lake National Park;
    (v) Enforcement of occupational safety and health standards with 
regard to employment at the U.S. Department of Energy's Albany Research 
Center (ARC);
    (vi) 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.
    (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 Oregon State Plan. 
Thus, for example, the Assistant Secretary retains 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 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 Oregon 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

[[Page 56]]

enforcement, and/or proceedings for withdrawal of plan approval.

[70 FR 24954, May 12, 2005, as amended at 71 FR 2886, Jan. 18, 2006; 71 
FR 36990, June 29, 2006]



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.
    (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 Sec.Sec. 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]

[[Page 57]]



                             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 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.

[[Page 58]]

    (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 withSec. 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 withSec. 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 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

[[Page 59]]

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; employment at the U.S. Department of 
Energy's Naval Petroleum and Oil Shale Reserve, to the extent that it 
remains a U.S. DOE facility; 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; 71 FR 36990, June 29, 2006]



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

[[Page 60]]

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 inSec. 1952.114(b). Federal 
jurisdiction is also retained with regard to: all employment on the Hill 
Air Force Base; all employment at the U.S. Department of Energy's Naval 
Petroleum and Oil Shale Reserve, to the extent that it remains a U.S. 
DOE facility; 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. 
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 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; 71 FR 36990, June 29, 2006]



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

[[Page 61]]

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]



                          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 inSec. 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

[[Page 62]]

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, 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 Sec.Sec. 1902.20(b)(1)(iii) and 1954.3 of this 
chapter under which an agreement has been entered into with

[[Page 63]]

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 federally 
recognized Indian Tribes or enrolled members of these Tribes--including 
establishments of the Yakama Indian Nation and Colville Confederated 
Tribes, which were previously excluded by the State in 1987 and 1989 
respectively--where such establishments are located within the borders 
of Indian reservations, or on lands outside these reservations that are 
held in trust by the Federal government for these Tribes. (Non-member 
private sector or State and local government employers located within a 
reservation or on Trust lands, and member employers located outside the 
territorial boundaries of a reservation or Trust lands, remain the 
responsibility of the State.);
    (9) 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
    (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 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, as amended at 69 FR 20829, Apr. 19, 2004]



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;

[[Page 64]]

    (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 ofSec. 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 ofSec. 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 withSec. 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 withSec. 1952.123(e) Washington has completed 
the training as described in this section.
    (f) In accordance withSec. 1952.123(d) Washington has developed 
and implemented a computerized Management Information System.
    (g) In accordance withSec. 1952.123(f) Washington has completed 
the upgrading of salaries of safety personnel.
    (h) In accordance withSec. 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 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 withSec. 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 withSec. 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,

[[Page 65]]

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 inSec. 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 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.

[[Page 66]]

    (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.
    (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

[[Page 67]]

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 withSec. 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 withSec. 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 withSec. 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 withSec. 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 withSec. 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 withSec. 1952.153(c) all North Carolina 
compliance personnel have completed refresher training courses.
    (g) In accordance withSec. 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 Personnel 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 withSec. 1952.153(f) all North Carolina 
compliance personnel have attended basic training courses at the OSHA 
Institute in Chicago.
    (i) In accordance withSec. 1952.153(g) the North Carolina 
Department of Labor has publicly disseminated information on the 
availability of consultative services.
    (j) In accordance withSec. 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 withSec. 1952.153(i) State enforcement of 
standards began on July 1, 1973.
    (l) In accordance withSec. 1952.153(k) the State has promulgated 
the following administrative ``rules and regulations'':

[[Page 68]]

    (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 withSec. 1952.153(l), Safety programs for State 
employees were initiated and implemented.
    (o) In accord withSec. 1952.153(m), Safety programs for large 
counties and municipalities with over 10,000 population were initiated 
and implemented.
    (p) In accord withSec. 1952.153(n), Safety programs for other 
counties and municipalities with 4,000 to 10,000 population were 
initiated and implemented.
    (q) In accord withSec. 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 withSec. 1952.153(e) andSec. 1902.3(d) the North 
Carolina occupational safety and health program has been fully staffed.
    (s) In accordance withSec. 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 withSec. 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 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

[[Page 69]]

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 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

[[Page 70]]

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 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]

[[Page 71]]



                             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.
    (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

[[Page 72]]

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 ofSec. 1952.10, the Iowa 
State poster was approved by the Assistant Secretary on August 26, 1975.
    (b) In accordance with the requirements ofSec. 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 inSec. 
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 inSec. 
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 inSec. 
1952.163(g), all basic training of Iowa compliance personnel was 
completed as of May 9, 1975.
    (f) In accordance with the commitment contained inSec. 
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 inSec. 
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 inSec. 
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 inSec. 
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 inSec. 
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 inSec. 
1952.163(i), the Iowa Bureau of Labor began its compliance activities in 
July 1973.
    (l) In accordance with the commitment contained inSec. 
1952.163(j), the Iowa Bureau of Labor implemented compliance programs in 
the agriculture, mercantile, and service issues by July 1975.
    (m) In accordance withSec. 1902.34 of this chapter, the Iowa 
safety and

[[Page 73]]

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 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

[[Page 74]]

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 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 inSec. 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.

[[Page 75]]

    (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 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

[[Page 76]]

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 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 Sec.Sec. 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,

[[Page 77]]

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.
    (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

[[Page 78]]

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 withSec. 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 inSec. 
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 withSec. 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 withSec. 1952.173(f), a program of consultation 
with employers and employees was fully functioning in January 1974.
    (d) In accordance with the requirements ofSec. 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 the general public was completed by 1974.
    (g) In accordance withSec. 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 withSec. 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 withSec. 1952.173(h), the Inspection Scheduling 
System was fully implemented and in operation by June 1975.
    (m) In accordance withSec. 1952.173(a), an operations manual was 
published, and was approved by the Assistant Secretary on September 28, 
1976.
    (n) In accordance withSec. 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 withSec. 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

[[Page 79]]

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]

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)

[[Page 80]]

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:
    (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 ofSec. 1952.10, the 
Minnesota State poster was approved by the Assistant Secretary on March 
7, 1975.
    (b) In accordance withSec. 1952.203(g), the Minnesota voluntary 
compliance program became effective on January

[[Page 81]]

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 withSec. 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]



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

[[Page 82]]

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 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

[[Page 83]]

(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 inSec. 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 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]

[[Page 84]]



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.
    (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;

[[Page 85]]

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;
    (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 inSec. 
1952.213(l), the

[[Page 86]]

State of Maryland developed and implemented an occupational health plan 
by December 31, 1975.
    (d) In accordance with the commitment expressed inSec. 
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 withSec. 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]



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

[[Page 87]]

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 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

[[Page 88]]

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 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 inSec. 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

[[Page 89]]

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 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:

[[Page 90]]

    (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 withSec. 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 withSec. 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 withSec. 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 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 withSec. 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 withSec. 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

[[Page 91]]

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 withSec. 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 
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

[[Page 92]]

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; 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

[[Page 93]]

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]



                           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 inSec. 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

[[Page 94]]

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.
    (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 ofSec. 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

[[Page 95]]

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.
    (k) In accordance withSec. 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

[[Page 96]]

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 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.

[[Page 97]]

    (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 inSec. 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 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:


[[Page 98]]


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 inSec. 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 
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

[[Page 99]]

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 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);

[[Page 100]]

    (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 withSec. 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 withSec. 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 ofSec. 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 withSec. 1952.243(e) Alaska has completed hiring 
of its industrial health staff by October 1, 1976 (41 FR 52556).
    (e) In accordance withSec. 1952.243(f) Alaska has provided for an 
Industrial Health Laboratory capacity by October 1, 1976 (41 FR 36206).
    (f) In accordance withSec. 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 withSec. 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 withSec. 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 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:
    (1) Private sector maritime employment;
    (2) Worksites located on the navigable waters, including artificial 
islands;
    (3) Native health care facilities that are Federally owned and 
contractor operated, including those owned by the

[[Page 101]]

U.S. Department of the Interior--Indian Health Service, the U.S. 
Department of Defense, or the U.S. Department of Commerce--National 
Oceanic and Atmospheric Administration, and operated by Tribal 
organizations under contract with the Indian Health Service;
    (4) Operations of private sector employers within the Metlakatla 
Indian Community on the Annette Islands;
    (5) Operations of private sector employers within Denali (Mount 
McKinley) National Park;
    (6) Operations of private contractors at Cape Lisburne Long Range 
Missile Base, Point Lay Short Range Missile Base, Eareckson Air Station 
on Shemya Island, Fort Greeley Missile Defense in Delta Junction, the 
U.S. Coast Guard Integrated Support Commands in Kodiak and Ketchikan, 
the U.S. Coast Guard Air Station in Sitka, and the U.S. Coast Guard 17th 
District Command in Juneau;
    (7) Federal government employers and employees;
    (8) The U.S. Postal Service (USPS), including USPS employees, and 
contract employees and contractor-operated facilities engaged in USPS 
mail operations; or
    (9) 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; 69 FR 20827, Apr. 19, 
2004]



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.
    (1) Federal OSHA retains its authority relative to safety and health 
in private sector maritime activities and

[[Page 102]]

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.
    (2) 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.
    (3) 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 inSec. 1952.243(b).
    (4) Federal jurisdiction is also retained for Native health care 
facilities that are Federally owned and contractor operated, including 
those owned by the U.S. Department of the Interior, Indian Health 
Service; the U.S. Department of Defense; or the U.S. Department of 
Commerce, National Oceanic and Atmospheric Administration; and operated 
by Tribal organizations under contract with the Indian Health Service. 
However, the State retains jurisdiction over construction and contract 
maintenance activities at these facilities with the exception of the 
Metlakatla Indian Community, Annette Island Service Unit, which is 
entirely under Federal jurisdiction. (The State also retains 
jurisdiction over Native health care facilities that are leased or owned 
by Tribal organizations, except for the Metlakatla Indian Community.)
    (5) Federal jurisdiction is also retained with regard to the 
operations of private contractors at Cape Lisburne Long Range Missile 
Base, Point Lay Short Range Missile Base, Eareckson Air Station on 
Shemya Island, Fort Greeley Missile Defense in Delta Junction, the U.S. 
Coast Guard Integrated Support Commands in Kodiak and Ketchikan, the 
U.S. Coast Guard Air Station in Sitka, and the U.S. Coast Guard 17th 
District Command in Juneau.
    (6) 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 
for the U.S. Portal 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

[[Page 103]]

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; 69 FR 20827, Apr. 19, 
2004]



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 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 [Reserved]



                           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

[[Page 104]]

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 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

[[Page 105]]

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.
    (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 withSec. 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 withSec. 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 ofSec. 1952.10, the 
Michigan State poster was approved by the Assistant Secretary on 
September 22, 1975.
    (d) In accordance withSec. 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 withSec. 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 withSec. 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 withSec. 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 withSec. 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'')

[[Page 106]]

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]



Sec.  1952.264  [Reserved]



Sec.  1952.265  Level of Federal enforcement.

    Pursuant to Sec.Sec. 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; and of employers who own or operate businesses located 
within the boundaries of Indian reservations who are enrolled members of 
Indian tribes. (Non-Indian employers within the reservations and Indian 
employers outside the territorial boundaries of Indian reservations 
remain subject to Michigan jurisdiction). 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, as amended at 76 FR 63191, Oct. 12, 2011]



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]

[[Page 107]]



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 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

[[Page 108]]

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 Sec.Sec. 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 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.

[[Page 109]]



Sec.  1952.274  Completion of developmental steps and certification.

    (a) In accordance withSec. 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 withSec. 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.
    (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 ofSec. 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

[[Page 110]]

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 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 withSec. 1952.293(c), as amended, the Nevada 
health program was submitted on December 3, 1976 and has been 
implemented.

[[Page 111]]

    (c) In accordance with the requirements ofSec. 1952.10, the Nevada 
poster for private employers was approved by the Assistant Secretary on 
December 23, 1977.
    (d) In accordance withSec. 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 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 ofSec. 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 withSec. 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

[[Page 112]]

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 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.

[[Page 113]]

    (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 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

[[Page 114]]

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 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;

[[Page 115]]

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 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 withSec. 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 withSec. 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 withSec. 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).

[[Page 116]]

    (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 withSec. 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 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; the U.S. 
Postal Service (USPS), including USPS employees, and contract employees 
and contractor-operated facilities engaged in USPS mail operations; and 
private sector employers on military installations.
    (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; 76 
FR 63190, Oct. 12, 2011]



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

[[Page 117]]

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 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; the U.S. Postal Service (USPS), including USPS 
employees, and contract employees and contractor-operated facilities 
engaged in USPS mail operations; and private sector employers on 
military installations.
    (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; 76 
FR 63190, Oct. 12, 2011]



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

[[Page 118]]

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 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

[[Page 119]]

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 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 ofSec. 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

[[Page 120]]

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 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 withSec. 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;

[[Page 121]]

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, 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 inSec. 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

[[Page 122]]

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 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

[[Page 123]]

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 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

[[Page 124]]

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.
    (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 withSec. 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 withSec. 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 withSec. 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 withSec. 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]

[[Page 125]]



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 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; employment at the U.S. 
Department of Energy's Naval Petroleum and Oil Shale Reserve; 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; 71 FR 36990, June 29, 2006]



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

[[Page 126]]

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, 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 inSec. 1952.344(b). Federal jurisdiction is also retained 
for employment at Warren Air Force Base; employment at the U.S. 
Department of Energy's Naval Petroleum and Oil Shale Reserve; 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; 71 FR 36991, June 29, 2006]



Sec.  1952.346  Where the plan may be inspected.

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

[[Page 127]]

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]



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 inSec. 
1902.2(c)(1) of this chapter. The State intends to adopt all Federal 
standards

[[Page 128]]

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.
    (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]

[[Page 129]]



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.
    (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 ofSec. 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 withSec. 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

[[Page 130]]

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 
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.

[[Page 131]]

    (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 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

[[Page 132]]

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 inSec. 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 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.

[[Page 133]]

    (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 ofSec. 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 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.

[[Page 134]]

    (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 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 withSec. 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 Sec.Sec. 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;

[[Page 135]]

    (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 any Indian reservation and lands under the control of 
a tribal government;
    (9) Enforcement of occupational safety and health standards with 
regard to employment at the U.S. Department of Energy's Western Area 
Power Administration site at Elephant Butte; 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; 
71 FR 36991, June 29, 2006]



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 (seeSec. 
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

[[Page 136]]

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 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.

[[Page 137]]

    (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.
    (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

[[Page 138]]

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 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 with 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

[[Page 139]]

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 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 withSec. 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.

[[Page 140]]

    (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; employment at the U.S. Department of Energy's 
Southeastern Power Administration Kerr-Philpott System; 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 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; 71 
FR 36991, June 29, 2006]



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 employment at the U.S. Department of Energy's Southeastern 
Power Administration Kerr-Philpott System; 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

[[Page 141]]

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 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; 71 
FR 36991, June 29, 2006]



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,

[[Page 142]]

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. 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 toSec. 1902.20(b)(1)(iii) andSec. 1954.3 of this 
chapter under which an

[[Page 143]]

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 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 withSec. 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,

[[Page 144]]

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 ofSec. 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.
    (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]

[[Page 145]]



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.

    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. (SeeSec. 1902.3 andSec. 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 inSec. 
1953.6.

[[Page 146]]



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 underSec. 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 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

[[Page 147]]

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 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 underSec. 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 inSec. 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

[[Page 148]]

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 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 inSec. 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.

[[Page 149]]

    (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 inSec. 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 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 withSec. 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 Sec.Sec. 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 withSec. 
1953.4(d)--State-initiated changes,

[[Page 150]]

    (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 inSec. 1953.4(b)--Federal Program Changes, 
except that the required documentation or plan supplement must be 
submitted within 5 days of State promulgation.
    (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 withSec. 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 inSec. 
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.

[[Page 151]]

     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.''
    (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;

[[Page 152]]

    (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 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

[[Page 153]]

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 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

[[Page 154]]

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 underSec. 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 andSec. 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 inSec. 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 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 andSec. 
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.

[[Page 155]]



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.



     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

[[Page 156]]

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 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 inSec. 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

[[Page 157]]

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.
    (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 
toSec. 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 underSec. 
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 
ofSec. 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 inSec. 1902.3 of this chapter; or

[[Page 158]]

    (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:
    (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 inSec. 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.

[[Page 159]]

    (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 withSec. 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 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 
underSec. 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 underSec. 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 inSec. 1955.11 and cause 
such notice, in the form of a complaint, to be served on the State in 
accordance withSec. 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 withSec. 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 underSec. 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

[[Page 160]]

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;
    (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 withSec. 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

[[Page 161]]

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 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

[[Page 162]]

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 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:

[[Page 163]]

    (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 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 underSec. 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.

[[Page 164]]

    (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 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

[[Page 165]]

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.
    (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 underSec. 1955.10(b)(1) but the proponent of any factual 
proposition shall be required to sustain the burden of proof with 
respect thereto.

[[Page 166]]

    (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 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.

[[Page 167]]



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 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 underSec. 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.

[[Page 168]]

   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.

                           Subpart F_New York

1956.50 Description of the plan as certified.
1956.51 Developmental schedule.
1956.52 Completed developmental steps and certification.
1956.53 [Reserved]
1956.54 Location of basic State plan documentation.
1956.55 [Reserved]

                          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.

                      Subpart H_The Virgin Islands

1956.70 Description of plan as approved.
1956.71 Developmental schedule.
1956.72 Changes to approved plan. [Reserved]
1956.73 Determination of operational effectiveness. [Reserved]
1956.74 Location of basic State plan documentation.

                           Subpart I_Illinois

1956.80 Description of the plan as initially approved.
1956.81 Developmental schedule.
1956.82-1956.83 [Reserved]
1956.84 Location of plan for inspection and copying.

    Authority: Section 18 of the Occupational Safety and Health Act of 
1970, (29 U.S.C. 667), 29 CFR 1902, 1952, and 1955, and Secretary of 
Labor's Order No. 5-2007 (72 FR 31160).

    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. UnderSec. 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

[[Page 169]]

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 inSec. 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 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 inSec. 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 inSec. 
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 inSec. 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 inSec. 
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 inSec. 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

[[Page 170]]

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 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 inSec. 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 inSec. 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

[[Page 171]]

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, 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 
underSec. 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,

[[Page 172]]

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 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

[[Page 173]]

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 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

[[Page 174]]

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.
    (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 underSec. 1954.2 and the guidelines of exercise of 
Federal discretionary enforcement authority provided inSec. 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 inSec. 
1902.37(b)(11) and (12), which would be adapted to the State compliance 
program, provide the basis for monitoring.

[[Page 175]]



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

    The procedures contained in Sec.Sec. 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 Sec.Sec. 1902.38, 1902.39, 
1902.40 and 1902.41, that on the basis of actual operations, the 
criteria set forth in Sec.Sec. 1956.10 and 1956.11 of this part are 
being applied under the plan. The factors listed inSec. 1902.37(b) of 
this chapter, except those specified inSec. 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 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 underSec. 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 inSec. 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

[[Page 176]]

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.



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

[[Page 177]]

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 withSec. 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 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 certified.

    (a) Authority and scope. The New York State Plan for Public Employee 
Occupational Safety and Health received initial OSHA approval on June 1, 
1984, and was certified as having successfully completed its 
developmental steps on August 16, 2006. 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 Employee Safety and Health Act, Chapter 729 of the Laws 
of 1980/Article 2, Section 27-a of the New York State Labor Law), 
enacted in 1980, and amended on April 17, 1984; August 2, 1985; May 25 
and July 22, 1990; April 10, 1992; June 28, 1993; and April 1, 1997. 
Under this legislation, 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's 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, in 1984 New York submitted 
amendments to its plan consisting of Counsel's opinion and an assurance 
that public school employees are fully covered under the terms of the 
PESH Act.
    (b) Standards. The New York plan, as of revisions dated April 28, 
2006, provides for the adoption of all Federal OSHA standards 
promulgated as of that date, 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 45 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

[[Page 178]]

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 
Commissioner of Labor will develop an alternative standard to protect 
the safety and health of public employees in consultation with the 
Hazard Abatement Board, or on his/her own initiative. The procedures for 
adoption of alternative standards contain criteria for consideration of 
expert technical advice and allow interested persons to request 
development of any standard and to participate in any hearing for the 
development or modification 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 program. The State provisions require employee notification of 
variance applications and provide for employee participation 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, and variances may have only future effect.
    (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 OSH 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 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 a prohibition 
of advance notice of inspection. In lieu of first-instance monetary 
sanctions for violations, the plan establishes a system for compelling 
compliance under which public employers are issued notices of violation 
and orders to comply. Such notices fix a reasonable period of time for 
compliance. If compliance is not achieved by the time of a follow-up 
inspection, daily failure-to-abate penalties of up to $50 for non-
serious violations and up to $200 for serious violations, will be 
proposed. The Commissioner of Labor may seek judicial enforcement of 
orders to comply by commencing a proceeding pursuant to Article 78 of 
the New York Civil Practice Law. In addition, the plan provides for 
expedited judicial enforcement when non-compliance is limited to non-
payment of penalties.
    (f) Review procedures. Under the plan, public employers and 
employees may seek formal administrative review of New York Department 
of Labor citations, including penalties and the reasonableness of the 
abatement periods, by petitioning the New York Industrial Board of 
Appeals (IBA) no later than 60 days after the issuance of the citation. 
The IBA is 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. A contest does not 
automatically stay a notice of violation, penalty or abatement date; a 
stay must be granted from the IBA. Judicial review of any decision of 
the IBA may be sought pursuant to Article 78 of the New York Civil 
Practice Law. Prior to contest, employers, employees and other affected 
parties may seek informal review of citations, penalties and abatement 
dates by the Department of Labor by requesting an informal conference in 
writing within 20 working days from the receipt of citation. If the 
informal conference does not produce agreement, the affected party may 
seek formal administrative review with the IBA. Public employees or 
their authorized representatives have the additional right under 12 
NYCRR Part 805

[[Page 179]]

to contest the abatement period by filing a petition with the 
Commissioner within 15 working days of the posting of the citation by 
filing a petition with the Department of Labor, or later if good cause 
for late filing is shown. If the Commissioner denies the employee 
contest of abatement period under Part 805 in whole or in part, the 
complaint will automatically be forwarded to the IBA for review. Under 
the IBA rules, public employees or their representatives may request 
permission to participate in an employer-initiated review process as 
``intervenors.'' The plan includes an April 28, 2006, assurance that 
should an employee or employee representative request intervenor status 
in an employer-initiated case, the State will appropriately inform the 
IBA of its support for the request. Should an employee's or employee 
representative's request for participation be denied, the State will 
seek immediate corrective action to guarantee the right to employee 
party status in employer-initiated cases. 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 3, 1984, that it has the authority under 
Article 78 of the New York Civil Practice Law to obtain judicial 
enforcement of an uncontested order to comply upon expiration of the 
abatement period, regardless of whether the 60 day contest period has 
expired. New York has also assured that should the State Labor 
Department's interpretation be successfully challenged, appropriate 
legislative correction would be sought.
    (g) Staffing and resources. The plan as revised April 28, 2006, 
provides assurances of a fully trained, adequate staff, including 29 
safety and 21 health compliance officers for enforcement inspections and 
11 safety and 9 health consultants to perform consultation services in 
the public sector. The State has also given satisfactory assurances of 
continued adequate funding to support the plan.
    (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 in the 
public sector. 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 York will participate in OSHA's 
Integrated Management Information System.
    (i) Voluntary compliance programs. The plan provides for training 
for public employers and employees; seminars to familiarize affected 
public employers and employees with applicable standards, requirements 
and safe work practices; and an on-site consultation program in the 
public sector to provide services to public employers upon request.

[71 FR 47087, Aug. 16, 2006]



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).

[[Page 180]]

    (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 and certification.

    (a) In accordance with 29 CFR 1956.51(a), the State of New York 
promulgated standards identical to all Federal OSHA standards as of July 
1, 1983. A supplement to the State plan documenting this accomplishment 
was initially approved by the Assistant Secretary on August 26, 1986 (51 
FR 30449). Subsequently, all OSHA standards promulgated through April 
28, 2006, have been adopted as New York State standards applicable to 
public employees. These identical standards; the State's different Air 
Contaminants Standard (1910.1000); the additional hazard communication 
requirements, as applicable to public sector employers only, in the New 
York Toxic Substances Act; and the State's independent Workplace 
Violence Prevention law, were approved by the Assistant Secretary on 
August 16, 2006.
    (b) In accordance with 29 CFR 1956.51(b), New York has promulgated 
regulations for inspections, citations and abatement equivalent to 29 
CFR part 1903 at 12 NYCRR Part 802 and implementing procedures in the 
State compliance manual, as contained in the State's April 28, 2006, 
revised plan, which were approved by the Assistant Secretary on August 
16, 2006.
    (c) In accordance with 29 CFR 1956.51(c), the New York safety and 
health poster for public employees only, which was originally approved 
by the Assistant Secretary on May 16, 1985 (50 FR 21046), was approved, 
as contained in the State's April 28, 2006, revised plan, by the 
Assistant Secretary on August 16, 2006.
    (d) 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. A supplement documenting this action 
was approved by the Assistant Secretary on December 29, 1989 (55 FR 
1204) and is contained in the State's April 28, 2006, revised plan, 
which was approved by the Assistant Secretary on August 16, 2006.
    (e) In accordance with 29 CFR 1956.51(e), the State promulgated 
regulations for granting variances equivalent to 29 CFR part 1905 at 12 
NYCRR Part 803, which were approved by the Assistant Secretary on 
December 29, 1989 (55 FR 1204). These regulations, as revised and 
supplemented by implementing procedures in the State's Field Operations 
Manual, are contained in the April 28, 2006, revised State plan, and 
were approved by the Assistant Secretary on August 16, 2006.
    (f) In accordance with 29 CFR 1956.51(f), the State initially 
promulgated regulations for injury/illness recordkeeping, equivalent to 
29 CFR part 1904, which were approved by the Assistant Secretary on 
December 29, 1989 (55 FR 1204). The State's revised recordkeeping 
regulation, 12 NYCRR Part 801; corresponding instructions (SH 901); and 
supplemental assurances concerning amendments to the SH 901 
Instructions, after-hours reporting of fatalities and catastrophes, 
required reporting of delayed hospitalizations, protected activity, and 
employee rights to receive a copy of the Annual Summary of workplace 
injuries and illnesses, are contained in the April 28, 2006, revised 
plan, and were approved by the Assistant Secretary on August 16, 2006.
    (g) In accordance with 29 CFR 1956.51(g), the State developed and 
adopted employee non-discrimination procedures equivalent to 29 CFR part

[[Page 181]]

1977, which were approved by the Assistant Secretary on December 29, 
1989 (55 FR 1204). Updated procedures, as contained in the April 28, 
2006, revised plan, were approved by the Assistant Secretary on August 
16, 2006.
    (h) 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 (55 FR 1204). The State's contested case procedures at Section 101 
of the Labor Law; the ``Rules of Procedure and Practice'' of the 
Industrial Board of Appeals, 12 NYCRR Chapter 1, Subchapter B, Parts 65 
and 66; and 12 NYCRR 805, as contained in the April 28, 2006, revised 
plan, were approved by the Assistant Secretary on August 16, 2006.
    (i) In accordance with 29 CFR 1956.51(i), the State revised its plan 
to reflect its procedures for the adoption of State standards identical 
to OSHA safety and health standards, which were approved by the 
Assistant Secretary on December 29, 1989 (55 FR 1204). Subsequently, the 
State's procedures were revised to provide that the Commissioner of 
Labor, in consultation with the Hazard Abatement Board, or on his/her 
own initiative, can propose alternative or different occupational safety 
and health standards if a determination is made that an issue is not 
properly addressed by Federal OSHA standards and is necessary for the 
protection of public employees. The procedures for adoption of 
alternative standards contain criteria for development and consideration 
of expert technical knowledge in the field to be addressed by the 
standard and allow 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. 
These procedures are contained in the April 28, 2006, revised plan, and 
were approved by the Assistant Secretary on August 16, 2006.
    (j) In accordance with 29 CFR 1956.51(j), the State has developed a 
Field Operations Manual which parallels Federal OSHA's Field Operations 
Manual, CPL 02-00-045 [CPL 2.45B], incorporates other Federal compliance 
policy directives, and contains procedures for unique State 
requirements. This manual is contained in the April 28, 2006, revised 
plan, and was approved by the Assistant Secretary on August 16, 2006.
    (k) In accordance with 29 CFR 1956.51(k), the State 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 (55 FR 1204). The State's subsequent 
adoption of the OSHA Technical Manual is documented in the April 28, 
2006, revised State plan and was approved by the Assistant Secretary on 
August 16, 2006.
    (l) 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 (55 FR 1204). The State's current Consultation Policy and 
Procedures Manual and its description of New York's on-site consultation 
program and other compliance assistance efforts, as contained in the 
April 28, 2006, revised plan, were approved by the Assistant Secretary 
on August 16, 2006.
    (m) In accordance with 29 CFR 1956.51(m), the State has developed 
and implemented a public employer and employee training and education 
program with procedures described in the Field Operations Manual, which, 
as contained in the April 28, 2006, revised plan, was approved by the 
Assistant Secretary on August 16, 2006.
    (n) A revised State plan as submitted on April 28, 2006, was 
approved and in accordance with 29 CFR 1956.23 of this chapter, the New 
York occupational safety and health State plan for public employees only 
was certified on August 16, 2006 as having successfully completed all 
developmental steps specified in the plan as initially approved on June 
1, 1984. This certification attests to the structural completeness of 
the plan, but does not render judgment as to adequacy of performance.

[71 FR 47089, Aug. 16, 2006]

[[Page 182]]



Sec.  1956.53  [Reserved]



Sec.  1956.54  Location of basic State plan documentation.

    Copies of basic State plan documentation are maintained at the 
following locations. Specific documents are available upon request, and 
will also be provided in electronic format, to the extent possible. 
Contact the Directorate of Cooperative and State Programs, 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, 201 Varick Street, 
Room 670, New York, New York 10014; and the New York Department of 
Labor, Public Employee Safety and Health Program, State Office Campus 
Building 12, Room 158, Albany, New York 12240. Current contact 
information for these offices (including telephone numbers and mailing 
addresses) is available on OSHA's Web site, http://www.osha.gov.

[71 FR 47090, Aug. 16, 2006]



Sec.  1956.55  [Reserved]



                          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 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

[[Page 183]]

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 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

[[Page 184]]

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 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

[[Page 185]]

Safety and Health, Office of Public Employees' Safety, P.O. Box 386, 225 
East State Street, 8th Floor West, Trenton, New Jersey 08625-0386.



                      Subpart H_The Virgin Islands

    Source: 68 FR 43460, July 23, 2003, unless otherwise noted.



Sec.  1956.70  Description of plan as approved.

    (a) The Virgin Islands State plan was converted to a public employee 
only occupational safety and health program on July 1, 2003, and 
received initial approval on July 23, 2003. It is administered and 
enforced by the Virgin Islands Department of Labor, Division of 
Occupational Safety and Health (``the agency,'' or ``VIDOSH'') 
throughout the U.S. Virgin Islands (the ``Virgin Islands''). The Virgin 
Islands public employee program, established by Executive Order 200-76 
on July 11, 1975, extends full authority under Virgin Islands Act No. 
3421, Section 16 (April 27, 1973) and implementing regulations to the 
agency to enforce and administer all laws and rules protecting the 
safety and health of employees of the Government of the Virgin Islands, 
its departments, agencies and instrumentalities, including any political 
subdivisions. It covers all activities of public employers and employees 
and places of public employment. The Territory has adopted all Federal 
standards promulgated as of June 2003, and has given assurances that it 
will continue to adopt and update all Federal standards, revisions and 
amendments. The plan is accompanied by a statement of the Governor's 
support.
    (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; 
includes provision for prompt notices to employers and employees of 
violations of standards and abatement requirements and either sanctions 
or alternative mechanisms to assure abatement; employer's right to 
appeal citations for violations, abatement periods and any proposed 
sanctions and/or compulsory process; 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, and for voluntary 
compliance programs, including a public sector consultation program.

    Note: The Virgin Islands' received initial approval for a 
comprehensive State plan covering the private (safety only) and public 
sectors on September 11, 1973 (38 FR 24896) and final approval under 
Section 18(e) of the Act on April 17, 1984 (49 FR 16766). Final approval 
status for that State plan was suspended and full Federal concurrent 
enforcement authority was reinstated on November 13, 1995 (60 FR 56950). 
Effective July 1, 2003, the Virgin Islands withdrew the portion of its 
State plan which covered private sector employment, and exclusive 
Federal enforcement jurisdiction for the private sector resumed.



Sec.  1956.71  Developmental schedule.

    The Virgin Islands State plan for public employees only is 
developmental. The following is a schedule of major developmental steps 
to be completed:
    (a) The Virgin Islands will review and amend its legislation and 
regulations, as appropriate, to assure proper statutory authority for 
``at least as effective'' coverage of all public sector employers and 
employees including Territorial government employers and employees and 
any employers or employees of municipalities or other local governmental 
entities. The plan will be revised to include a legal opinion that

[[Page 186]]

the converted plan meets the requirements of the Occupational Safety and 
Health Act of 1970 and is consistent with the laws of the Virgin 
Islands. These actions will occur within one year of plan conversion 
approval.
    (b) The Virgin Islands will review and amend its legislation and 
regulations as necessary to reflect its more limited coverage and to be 
consistent with formal withdrawal of Federal approval of the private 
sector portion of the State plan, within one year of plan conversion 
approval.
    (c) The Virgin Islands will review its statutory authority regarding 
standards adoption and take appropriate legislative or administrative 
action to assure that it is consistent with 29 CFR part 1953 and that 
all standards applicable to the public sector will be promulgated within 
six months of the promulgation date of new Federal OSHA standards, 
within one year of plan conversion approval.
    (d) The Virgin Islands will take appropriate legislative or 
administrative action to assure effective sanctions, either as monetary 
penalties, or an alternative mechanism for compelling abatement in the 
public sector within one year of plan conversion approval.
    (e) The Virgin Islands will develop a five-year strategic plan and 
corresponding annual performance plan within two years of plan 
conversion approval.
    (f) A new State poster will be developed and distributed to reflect 
coverage of the public sector only within one year of plan conversion 
approval.
    (g) The Virgin Islands will submit a revised State plan, in 
electronic format to the extent possible, reflecting its coverage of 
public employers and employees only in accordance with 29 CFR 1956, 
within one year of plan conversion approval.
    (h) The Virgin Islands will hire and provide appropriate training 
for their public sector compliance and consultation staffs, within one 
year of plan conversion approval.
    (i) The Virgin Islands will develop a public sector consultation 
program within two years of plan conversion approval.



Sec.  1956.72  Changes to approved plan. [Reserved]



Sec.  1956.73  Determination of operational effectiveness. [Reserved]



Sec.  1956.74  Location of basic State plan documentation.

    Copies of basic State plan documentation are maintained at the 
following locations. Specific documents are available upon request, and 
will be provided in electronic format, to the extent possible. Contact 
the: Directorate of Cooperative and State Programs, 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, 201 Varick Street, 
Room 670, New York, New York 10014; and the Virgin Islands Department of 
Labor, Division of Occupational Safety and Health, 3021 Golden Rock, 
Christiansted, St. Croix, Virgin Islands, 00840. Current contact 
information for these offices (including telephone numbers, mailing and 
e-mail addresses) is available on OSHA's Web site, http://www.osha.gov.



                           Subpart I_Illinois

    Source: 74 FR 45114, Sept. 1, 2009, unless otherwise noted.



Sec.  1956.80  Description of the plan as initially approved.

    (a) Authority and scope. The Illinois State Plan for Public Employee 
Occupational Safety and Health received initial OSHA approval on 
September 1, 2009. The Plan designates the Illinois Department of Labor 
as the State agency responsible for administering the Plan throughout 
the State. The Plan includes as enabling legislation the Illinois Safety 
Inspection and Education Act (SIEA) [820 ILCS 220] and the Illinois 
Health and Safety Act (HSA) [820 ILCS 225]. Under the legislation, the 
State Director of Labor has full authority to adopt, enforce and 
administer all laws and rules protecting the safety and health of all 
employees

[[Page 187]]

of the State and its political subdivisions under the Illinois Public 
Employee Only State Plan.
    (b) Standards. Illinois has adopted State standards identical to 
OSHA occupational safety and health standards promulgated through 
September 30, 2005. The State Plan provides that these standards will be 
updated within one year of plan approval and future OSHA standards and 
revisions will be adopted by the State within six months of Federal 
promulgation, in accordance with 29 CFR 1953.5. 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 
the Illinois Health and Safety Act [820 ILCS 225/4.1]. The Plan also 
provides for the adoption of alternative or different occupational 
safety and health standards by the Director of Labor, where no Federal 
standards are applicable to the conditions or circumstances or where 
standards more stringent than Federal are deemed appropriate.
    (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 56 ILAC 350.40 to bring them into conformance 
with Federal procedures at 29 CFR 1905 within two years of 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 the 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 Acts in terms similar to section 11(c) of 
the OSH Act. The SIEA provides that an employee who believes that he or 
she has been discharged or otherwise discriminated against by any person 
in violation of this section may, within 30 calendar days after the 
violation occurs, file a complaint with the Director of Labor alleging 
the discrimination. The Plan provides that the Director shall 
investigate such complaints as appropriate and make a determination 
within 90 days. If the Director determines that the provisions of this 
section have been violated, the Director shall bring an action in the 
circuit court for appropriate relief.
    (e) Inspections and enforcement. The Plan provides for inspection of 
covered workplaces, including inspections in response to employee 
complaints by the Department of Labor. 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 
provides the opportunity for employer and employee representatives to 
accompany the inspector during an inspection for the purpose of aiding 
in the inspection and in the absence of such a representative, the right 
to interview a reasonable number of employees during the inspection. The 
Plan also provides for the right of entry for inspection and prohibition 
of advance notice of inspection. The Director of Labor is responsible 
for all enforcement actions, including the issuance of all citations 
which must specify the abatement period, posting requirements, and the 
employer's and employees' right to contest any or all citations. 
Although the Plan contains authority for a system of first-instance 
monetary penalties, in practice it is the State's intent to issue 
monetary penalties only for failure to correct and egregious violations. 
The State has discretionary authority for civil penalties of not more 
than $10,000 for repeat and willful violations. Serious and other-than-
serious violations may be assessed a penalty of up to $1,000 per 
violation and failure-to-correct violations may be assessed a penalty of 
up to $1,000 per violation per day. In addition, any public employer who 
willfully violates any standard, rule, or order

[[Page 188]]

can be charged by the Attorney General with a Class 4 felony if that 
violation causes death to any employee.
    (f) Review procedures. Although the Director has statutory 
responsibility for both the enforcement and the appeals process (820 
ILCS 220/2.4), in practice, Administrative Law Judges (ALJ) hear 
contested cases without any oversight or review by the Director. The 
State will make appropriate changes to its regulations and procedures to 
ensure the separation of these functions and the independence of the 
adjudicatory process within one year of plan approval. The Director of 
Labor will remain responsible for the enforcement process, including the 
issuance of citations and penalties, and their defense, if contested. 
Public employers or their representatives who receive a citation or a 
proposed penalty may within 15 working days contest the citation, 
proposed penalty and/or abatement period and request a hearing before an 
Administrative Law Judge. Any public employee or representative may 
within 15 working days request a hearing before an ALJ regarding the 
reasonableness of the abatement period. Informal review prior to contest 
may also be requested at the division level. The ALJ's decision is 
subject to appeal to the courts.
    (g) Staffing and resources. The Plan further provides assurances of 
a fully trained, adequate staff within three years of plan approval, 
including 11 safety and 3 health compliance officers for enforcement 
inspections, and 3 safety and 2 health consultants to perform 
consultation services in the public sector. 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 
Illinois 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. 
Illinois has assured that it will coordinate with the Illinois 
Department of Health to expand its participation in the Bureau of Labor 
Statistics Annual Survey of Injuries and Illnesses to include public 
sector employers. The State will comply with the provisions of 29 CFR 
1904.7, which allow full employee and employee representative access, 
including employee's names, to the log of workplace injuries and 
illnesses; and will amend its recordkeeping regulations within two years 
of plan approval. The Plan also contains assurances that the Director of 
Labor will provide reports to OSHA in such form as the Assistant 
Secretary may require, and that Illinois will participate in OSHA's 
Integrated Management Information System as well as it successor, OSHA 
Information System, once deployed.
    (i) Voluntary compliance programs. The Plan provides that training 
will be provided to public employers and employees; a separate on-site 
consultation program in the public sector will be established to provide 
services to public employers who request assistance; and all State 
agencies and political subdivisions will be encouraged to develop and 
maintain internal safety and health programs as an adjunct to, but not a 
substitute for, the Director of Labor's enforcement.



Sec.  1956.81  Developmental schedule.

    The Illinois State Plan is developmental. The following is a 
schedule of major developmental steps as provided in the Plan that will 
be accomplished within three years of plan approval:
    (a) Illinois will adopt standards identical to or at least as 
effective as the applicable existing OSHA standards and revise the Rules 
of Procedures in Administrative Hearings (56 ILAC 120), clarifying the 
separation of the enforcement role of the Director of Labor from the 
adjudicatory role in contested cases, within one year after plan 
approval.
    (b) Illinois will update and adopt amendments to the Illinois 
Administrative Rules (56 ILAC 350) regarding identical standards, 
variances, inspections, review system for contested cases and employee 
access to information equivalent to 29 CFR parts 1903, 1905, 1911 and 
2200 within two years after plan approval.

[[Page 189]]

    (c) Illinois will adopt amendments to rules regarding recordkeeping 
substantially identical to 29 CFR part 1904 within two years after plan 
approval.
    (d) An annual performance plan will be developed and submitted with 
the FY 2010 Grant Application. The performance plan will focus on 
achievement of developmental steps and activity reporting until such 
time as the program is fully operational, at which point objective, 
results-oriented performance goals will be established.
    (e) Illinois will develop an inspection scheduling system that 
targets high hazard establishments within two years of plan approval.
    (f) Illinois will develop a comprehensive field operations manual 
that is at least as effective as the Federal Field Operations Manual 
within two years after plan approval.
    (g) Illinois will begin hiring critical program management staff and 
filling current vacancy positions within 30 days of plan approval.
    (h) Illinois will hire the additional Enforcement program field and 
support staff within two years of plan approval.
    (i) Illinois will fully implement and staff a public employer/
employee Consultation program equivalent to 29 CFR part 1908, and 
training and education programs separate from Enforcement, within three 
years after plan approval.
    (j) Illinois will have an authorized compliance staff of 11 Safety 
Inspectors and 3 Industrial Hygienists (non-supervisory) and a public 
sector consultation staff of 3 Safety Consultants and 2 Industrial 
Hygiene Consultants within three years of plan approval.
    (k) Illinois and OSHA will develop a plan for joining the OSHA 
Integrated Management Information System to report State plan activity, 
including specific information on inspections, consultation visits, 
etc., in conjunction with OSHA, within six months of plan approval. 
Illinois will convert to the new OSHA Information System upon its 
deployment. In the interim, Illinois will provide monthly reports on its 
activity in an agreed upon format.
    (l) Illinois will coordinate with the Illinois Department of Public 
Health and the Bureau of Labor Statistics to expand the current Illinois 
survey to provide more detailed injury/illness/fatality rates on State 
and local government, within two years of plan approval.
    (m) Illinois will revise and submit a State poster for posting at 
all public sector workplaces in the State within one year of plan 
approval.



Sec.Sec. 1956.82-1956.83  [Reserved]



Sec.  1956.84  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; OSHA's 
Regional Office in Chicago, Illinois, at 230 South Dearborn Street, 32nd 
Floor, Room 3244, Chicago, IL 60604; and at: the Offices of the Illinois 
Department of Labor, Safety Inspection and Education Division at 1 West 
Old State Capitol Plaza, 3rd floor, Springfield, IL 62701; 160 North 
LaSalle Street, Suite C-1300, Chicago, IL 60601; or 2309 West Main 
Street, Suite 115, Marion, IL 62959.



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.

[[Page 190]]

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.
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 Federal agency certification of the injury and illness annual 
          summary (OSHA 300-A or equivalent).
1960.68 Prohibition against discrimination.
1960.69 Retention and updating of old forms.
1960.70 Reporting of serious accidents.
1960.71 Agency annual reports.
1960.72-1960.74 [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.

[[Page 191]]

    (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 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

[[Page 192]]

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 
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 toSec. 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) Injury or illness. An injury or illness is an abnormal condition 
or disorder. Injuries include cases such as, but not limited to, a cut, 
fracture, sprain, or amputation. Illness includes both acute and chronic 
illnesses, such as, but not limited to, a skin disease, respiratory 
disorder, or poisoning.
    (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

[[Page 193]]

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; 69 FR 68804, Nov. 26, 
2004]



                        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:
    (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

[[Page 194]]

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 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

[[Page 195]]

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 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.

[[Page 196]]



                           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 inSec. 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.



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

[[Page 197]]

Sec.  1960.17 orSec. 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 
inSec. 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.
    (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

[[Page 198]]

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
    (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.

[[Page 199]]

    (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 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

[[Page 200]]

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 inSec. 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 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

[[Page 201]]

the agency for handling in accordance with procedures outlined inSec. 
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 inSec. 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 three 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.

[45 FR 69798, Oct. 21, 1980, as amended at 69 FR 68804, Nov. 26, 2004]



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.
    (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

[[Page 202]]

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
    (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

[[Page 203]]

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 inSec. 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 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.

[[Page 204]]

    (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 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.

[[Page 205]]



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 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.

[[Page 206]]



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 bySec. 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
    (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.

[[Page 207]]



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 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.

[[Page 208]]

    (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.



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.

[[Page 209]]

    (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: 69 FR 68804, Nov. 26, 2004, unless otherwise noted.



Sec.  1960.66  Purpose, scope and general provisions.

    (a) The purpose of this subpart is to establish uniform requirements 
for collecting and compiling 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.
    (b) Except as modified by this subpart, Federal agency injury and 
illness recording and reporting requirements shall comply with the 
requirements under 29 CFR Part 1904, subparts C, D, E, and G, except 
that the definition of ``establishment'' found in 29 CFR 1960.2(h) will 
remain applicable to Federal agencies.
    (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 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 recordkeeping and 
reporting forms provided by the Department of Labor. Because of the 
unique nature of the national recordkeeping program, Federal agencies 
must have recording and reporting requirements that are the same as 29 
CFR Part 1904 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 used by any Federal agency 
may be more stringent than, or supplemental to, the requirements of 29 
CFR Part 1904, but must not interfere with the agency's ability to 
provide the injury and illness information required by 29 CFR Part 1904.
    (e) 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.

    Note toSec. 1960.66: The recording or reporting of a work-related 
injury, illness or fatality does not constitute an admission that the 
Federal agency, or other individual was at fault or otherwise 
responsible for purposes of liability. Such recording or reporting does 
not constitute an admission of the existence of an employer/employee 
relationship between the individual recording the injury and the injured 
individual. The recording or reporting of any such injury, illness or 
fatality does not mean that an OSHA rule has been violated or that the 
individual in question is eligible for workers' compensation or any 
other benefits. The requirements of this

[[Page 210]]

part do not diminish or modify in any way a Federal agency's 
responsibilities to report or record injuries and illnesses as required 
by the Office of Workers' Compensation Programs under the Federal 
Employees' Compensation Act (FECA), 5 U.S.C. 8101 et seq.



Sec.  1960.67  Federal agency certification of the injury and illness
annual summary (OSHA 300-A or equivalent).

    As required by 29 CFR 1904.32, a company executive must certify that 
he or she has examined the OSHA 300 Log and that he or she believes, 
based on his or her knowledge of the process by which the information 
was recorded, that the annual summary is correct and complete. For 
Federal establishments, the person who performs the certification shall 
be one of the following:
    (a) The senior establishment management official,
    (b) The head of the Agency for which the senior establishment 
management official works, or
    (c) Any management official who is in the direct chain of command 
between the senior establishment management official and the head of the 
Agency.

    Note toSec. 1960.67: The requirement for certification of Federal 
agency injury and illness records in this section is necessary because 
the private sector position titles contained in 29 CFR part 1904 do not 
fit the Federal agency position titles for agency executives. The 
Federal officials listed in this section are intended to be the 
equivalent of the private sector officials who are required to certify 
records underSec. 1904.32(b)(4).



Sec.  1960.68  Prohibition against discrimination.

    Section 1904.36 of this chapter refers to Section 11(c) of the 
Occupational Safety and Health Act. For Federal agencies, the words 
``Section 11(c)'' shall be read as ``Executive Order 12196 Section 1-
201(f).''

    Note toSec. 1960.68: Section 11(c) of the Occupational Safety and 
Health Act only applies to private sector employers and the U.S. Postal 
Service. The corresponding prohibitions against discrimination 
applicable to Federal employers are contained in Section 1-201(f) of 
Executive Order 12196, 45 FR 12769, 3 CFR, 1980 Comp. p. 145.



Sec.  1960.69  Retention and updating of old forms.

    Federal agencies must retain copies of the recordkeeping records 
utilized under the system in effect prior to January 1, 2005 for five 
years following the year to which they relate and continue to provide 
access to the data as though these forms were the OSHA Form 300 Log and 
Form 301 Incident Report. Agencies are not required to update the old 
forms.



Sec.  1960.70  Reporting of serious accidents.

    Agencies must 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 named and location, and consequences, description of 
operation and the accident, causal factors, applicable standards and 
their effectiveness, and agency corrective/preventive actions.

    Note toSec. 1960.70: The requirements of this section are in 
addition to the requirements for reporting fatalities and multiple 
hospitalization incidents to OSHA under 29 CFR 1904.39.



Sec.  1960.71  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 must submit to the Secretary by January 1 of each 
year a report describing the agency's occupational safety and health 
program of the previous fiscal year and objectives for the current 
fiscal year. The report shall include a summary of the agency's self-
evaluation findings as required bySec. 1960.78(b).
    (2) The Secretary must provide the agencies with the guidelines and 
format for the reports at the time they are requested.
    (3) The agency reports will be used in preparing the Secretary's 
report to the President.
    (b) The Secretary will submit to the President by October 1 of each 
year a summary report of the status of the occupational safety and 
health of Federal

[[Page 211]]

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.



Sec.Sec. 1960.72-1960.74  [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;
    (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

[[Page 212]]

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 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

[[Page 213]]

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.
    (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,

[[Page 214]]

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.



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 inSec. 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 calendar 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,

[[Page 215]]

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 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

[[Page 216]]

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 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''

[[Page 217]]

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 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

[[Page 218]]

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?
    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

[[Page 219]]

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.

                         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

[[Page 220]]

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 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

[[Page 221]]

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 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.

[[Page 222]]

    (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 
inSec. 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.
    (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

[[Page 223]]

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 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.

[[Page 224]]



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 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 inSec. 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 inSec. 
1977.18, supra will be observed

[[Page 225]]

as to deferrals to findings of state agencies.



PART 1978_PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER
THE EMPLOYEE PROTECTION PROVISION OF THE SURFACE TRANSPORTATION 
ASSISTANCE ACT OF 1982--Table of Contents



  Subpart A_Complaints, Investigations, Findings and Preliminary Orders

Sec.
1978.100 Purpose and scope.
1978.101 Definitions.
1978.102 Obligations and prohibited acts.
1978.103 Filing of retaliation complaints.
1978.104 Investigation.
1978.105 Issuance of findings and preliminary orders.

                          Subpart B_Litigation

1978.106 Objections to the findings and the preliminary order and 
          request for a hearing.
1978.107 Hearings.
1978.108 Role of Federal agencies.
1978.109 Decision and orders of the administrative law judge.
1978.110 Decision and orders of the Administrative Review Board.

                   Subpart C_Miscellaneous Provisions

1978.111 Withdrawal of STAA complaints, objections, and petitions for 
          review; settlement.
1978.112 Judicial review.
1978.113 Judicial enforcement.
1978.114 District court jurisdiction of retaliation complaints under 
          STAA.
1978.115 Special circumstances; waiver of rules.

    Authority: 49 U.S.C. 31101 and 31105; Secretary of Labor's Order No. 
5-2007, 72 FR 31160 (June 5, 2007); Secretary of Labor's Order 1-2010 
(Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).

    Source: 75 FR 53553, Aug. 31, 2010, unless otherwise noted.



 Subpart A_Complaints, Investigations, Findings, and Preliminary Orders



Sec.  1978.100  Purpose and scope.

    (a) This part implements the procedures of the employee protection 
(whistleblower) provision of the Surface Transportation Assistance Act 
of 1982 (STAA), 49 U.S.C. 31105, as amended, which protects employees 
from retaliation because the employee has engaged in, or, in some 
circumstances is perceived to have engaged in, protected activity 
pertaining to commercial motor vehicle safety, health, or security 
matters.
    (b) This part establishes procedures pursuant to the statutory 
provision set forth above for the expeditious handling of retaliation 
complaints filed 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, investigations, 
issuance of findings and preliminary orders, objections to findings, 
litigation before administrative law judges (ALJs), post-hearing 
administrative review, withdrawals and settlements, and judicial review 
and enforcement.



Sec.  1978.101  Definitions.

    (a) Act means the Surface Transportation Assistance Act of 1982 
(STAA), as amended.
    (b) 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.
    (c) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (d) Commercial motor carrier means any person engaged in a business 
affecting commerce between States or between a State and a place outside 
thereof who owns or leases a commercial motor vehicle in connection with 
that business, or assigns employees to operate such a vehicle.
    (e) Commercial motor vehicle means a self-propelled or towed vehicle 
used on the highways in commerce principally to transport passengers or 
cargo, if the vehicle:
    (1) Has a gross vehicle weight rating or gross vehicle weight of at 
least 10,001 pounds, whichever is greater;
    (2) Is designed to transport more than ten passengers including the 
driver; or
    (3) Is used in transporting material found by the Secretary of 
Transportation to be hazardous under 49 U.S.C.

[[Page 226]]

5103 and transported in a quantity requiring placarding under 
regulations prescribed under 49 U.S.C. 5103.
    (f) Complainant means the employee who filed a STAA whistleblower 
complaint or on whose behalf a complaint was filed.
    (g) Complaint, for purposes ofSec. 1978.102(b)(1) andSec. 
1978.102(e)(1), includes both written and oral complaints to employers 
and/or government agencies.
    (h) Employee means a driver of a commercial motor vehicle (including 
an independent contractor when personally operating a commercial motor 
vehicle), a mechanic, a freight handler, or an individual not an 
employer, who:
    (1) Directly affects commercial motor vehicle safety or security in 
the course of employment by a commercial motor carrier; and
    (2) Is not an employee of the United States Government, a State, or 
a political subdivision of a State acting in the course of employment.
    (i) Employer means a person engaged in a business affecting commerce 
that owns or leases a commercial motor vehicle in connection with that 
business, or assigns an employee to operate the vehicle in commerce, but 
does not include the Government, a State, or a political subdivision of 
a State.
    (j) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (k) Person means one or more individuals, partnerships, 
associations, corporations, business trusts, legal representatives or 
any other group of individuals.
    (l) Respondent means the person alleged to have violated 49 U.S.C. 
31105.
    (m) Secretary means the Secretary of Labor or persons to whom 
authority under the Act has been delegated.
    (n) State means a State of the United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the 
Northern Mariana Islands.
    (o) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.



Sec.  1978.102  Obligations and prohibited acts.

    (a) No person may discharge or otherwise retaliate against any 
employee with respect to the employee's compensation, terms, conditions, 
or privileges of employment because the employee engaged in any of the 
activities specified in paragraphs (b) or (c) of this section. In 
addition, no person may discharge or otherwise retaliate against any 
employee with respect to the employee's compensation, terms, conditions, 
or privileges of employment because a person acting pursuant to the 
employee's request engaged in any of the activities specified in 
paragraph (b) of this section.
    (b) It is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, or in any other 
manner retaliate against any employee because the employee or a person 
acting pursuant to the employee's request has:
    (1) Filed a complaint or begun a proceeding related to a violation 
of a commercial motor vehicle safety or security regulation, standard, 
or order; or
    (2) Testified or will testify at any proceeding related to a 
violation of a commercial motor vehicle safety or security regulation, 
standard, or order.
    (c) It is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, or in any other 
manner retaliate against any employee because the employee:
    (1) Refuses to operate a vehicle because:
    (i) The operation violates a regulation, standard, or order of the 
United States related to commercial motor vehicle safety, health, or 
security; or
    (ii) He or she has a reasonable apprehension of serious injury to 
himself or herself or the public because of the vehicle's hazardous 
safety or security condition;
    (2) Accurately reports hours on duty pursuant to Chapter 315 of 
Title 49 of the United States Code; or
    (3) Cooperates with a safety or security investigation by the 
Secretary of Transportation, the Secretary of Homeland Security, or the 
National Transportation Safety Board; or

[[Page 227]]

    (4) Furnishes information to the Secretary of Transportation, the 
Secretary of Homeland Security, the National Transportation Safety 
Board, or any Federal, State, or local regulatory or law enforcement 
agency as to the facts relating to any accident or incident resulting in 
injury or death to an individual or damage to property occurring in 
connection with commercial motor vehicle transportation.
    (d) No person may discharge or otherwise retaliate against any 
employee with respect to the employee's compensation, terms, conditions, 
or privileges of employment because the person perceives that the 
employee has engaged in any of the activities specified in paragraph (e) 
of this section.
    (e) It is a violation for any employer to intimidate, threaten, 
restrain, coerce, blacklist, discharge, discipline, or in any other 
manner retaliate against any employee because the employer perceives 
that:
    (1) The employee has filed or is about to file a complaint or has 
begun or is about to begin a proceeding related to a violation of a 
commercial motor vehicle safety or security regulation, standard or 
order;
    (2) The employee is about to cooperate with a safety or security 
investigation by the Secretary of Transportation, the Secretary of 
Homeland Security, or the National Transportation Safety Board; or
    (3) The employee has furnished or is about to furnish information to 
the Secretary of Transportation, the Secretary of Homeland Security, the 
National Transportation Safety Board, or any Federal, State, or local 
regulatory or law enforcement agency as to the facts relating to any 
accident or incident resulting in injury or death to an individual or 
damage to property occurring in connection with commercial motor vehicle 
transportation.
    (f) For purposes of this section, an employee's apprehension of 
serious injury is reasonable only if a reasonable individual in the 
circumstances then confronting the employee would conclude that the 
hazardous safety or security condition establishes a real danger of 
accident, injury or serious impairment to health. To qualify for 
protection, the employee must have sought from the employer, and been 
unable to obtain, correction of the hazardous safety or security 
conditions.



Sec.  1978.103  Filing of retaliation complaints.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by an employer in violation of STAA may file, or have 
filed by any person on the employee's behalf, a complaint alleging such 
retaliation.
    (b) Nature of Filing. No particular form of complaint is required. A 
complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If an employee is unable to file a complaint 
in English, OSHA will accept the complaint in any language.
    (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 180 days after an alleged violation 
occurs, an employee who believes that he or she has been retaliated 
against in violation of STAA may file, or have filed by any person on 
his or her behalf, a complaint alleging such retaliation. The date of 
the postmark, facsimile transmittal, e-mail communication, telephone 
call, hand-delivery, delivery to a third-party commercial carrier, or 
in-person filing at an OSHA office will be considered the date of 
filing. The time for filing a complaint may be tolled for reasons 
warranted by applicable case law.
    (e) Relationship to Section 11(c) complaints. A complaint filed 
under STAA alleging facts that would also constitute a violation of 
Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 
660(c), will be deemed to be a complaint under both STAA and Section 
11(c). Similarly, a complaint filed under Section 11(c) that alleges 
facts that would also constitute a violation of STAA will be deemed to 
be a complaint filed under both STAA and

[[Page 228]]

Section 11(c). Normal procedures and timeliness requirements under the 
respective statutes and regulations will be followed.



Sec.  1978.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing the respondent (or the respondent's legal counsel 
if respondent is represented by counsel) with a copy of the complaint, 
redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et 
seq., and other applicable confidentiality laws. The Assistant Secretary 
will also notify the respondent (or the respondent's legal counsel if 
respondent is represented by counsel) of the respondent's rights under 
paragraphs (b) and (f) of this section. The Assistant Secretary will 
provide a copy of the unredacted complaint to the complainant (or 
complainant's legal counsel, if complainant is represented by counsel) 
and to the Federal Motor Carrier Safety Administration.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to the 
agency that are responsive to the complainant's whistleblower complaint. 
Before providing such materials to the complainant, the agency will 
redact them in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, 
et seq., and other applicable confidentiality laws.
    (d) 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 title 
29 of the Code of Federal Regulations.
    (e)(1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity or, 
in circumstances covered by the Act, a perception of protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (2) 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, in 
circumstances covered by the Act, was perceived to have engaged in a 
protected activity;
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity, or, in 
circumstances covered by the Act, perceived the employee to have engaged 
in the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity or, in circumstances covered by the Act, the 
perception of protected activity, was a contributing factor in the 
adverse action.
    (3) 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 respondent knew or suspected that the employee 
engaged in protected activity (or, in circumstances covered by the Act, 
perceived the employee to have engaged in protected activity) and that 
the protected activity (or the perception thereof) was a contributing 
factor in the adverse action. The burden may be satisfied, for example, 
if the complainant shows that the adverse action took place shortly 
after the protected activity, giving rise to the inference that it was a 
contributing factor in the adverse action. If the required showing has 
not been made, the complainant (or the complainant's legal counsel if 
complainant is represented by counsel) will

[[Page 229]]

be so notified and the investigation will not commence.
    (4) 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 or will be discontinued if the 
respondent, pursuant to the procedures provided in this paragraph, 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of the complainant's protected 
activity or, when applicable, the perception thereof.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, the Assistant 
Secretary will proceed with the investigation. The investigation will 
proceed whenever it is necessary or appropriate to confirm or verify the 
information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for inSec. 1978.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the respondent has violated the 
Act and that preliminary reinstatement is warranted, the Assistant 
Secretary will again contact the respondent (or the respondent's legal 
counsel if respondent is represented by counsel) 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 respondent 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 respondent must present this evidence 
within ten business days of the Assistant Secretary's notification 
pursuant to this paragraph, or as soon thereafter as the Assistant 
Secretary and the respondent can agree, if the interests of justice so 
require.



Sec.  1978.105  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 
the filing of the complaint, written findings as to whether there is 
reasonable cause to believe that the respondent retaliated against the 
complainant in violation of STAA.
    (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 the relief prescribed in 
49 U.S.C. 31105(b)(3). Such order will include, where appropriate, a 
requirement that the respondent abate the violation; reinstatement of 
the complainant to his or her former position, together with the 
compensation, terms, conditions and privileges of the complainant's 
employment; payment of compensatory damages (backpay with interest and 
compensation for any special damages sustained as a result of the 
retaliation, including any litigation costs, expert witness fees, and 
reasonable attorney fees which the complainant has incurred); and 
payment of punitive damages up to $250,000.
    (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 (and each 
party's legal counsel if the party is represented by counsel). The 
findings and preliminary order will inform the parties of the right to 
object to the findings and/or the preliminary order and to request a 
hearing. The findings and preliminary order 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 complaint and a copy of the findings 
and/or order.

[[Page 230]]

    (c) The findings and the preliminary order will be effective 30 days 
after receipt by the respondent (or the respondent's legal counsel if 
the respondent is represented by counsel), or on the compliance date set 
forth in the preliminary order, whichever is later, unless an objection 
and/or request for a hearing has been timely filed as provided atSec. 
1978.106. However, the portion of any preliminary order requiring 
reinstatement will be effective immediately upon the respondent's 
receipt of the findings and preliminary order, regardless of any 
objections to the findings and/or order.



                          Subpart B_Litigation



Sec.  1978.106  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 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 toSec. 1978.105. The objections and 
request for a hearing must be in writing and state whether the 
objections are to the findings and/or the preliminary order. 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 will be filed with the Chief Administrative Law 
Judge, U.S. Department of Labor (800 K Street, NW., 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, the Assistant Secretary, and the Associate Solicitor for 
Occupational Safety and Health.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and 
preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Law 
Judges for a stay of the preliminary order of reinstatement. If no 
timely objection is filed with respect to either the findings or the 
preliminary order, the findings and preliminary order will become the 
final decision of the Secretary, not subject to judicial review.



Sec.  1978.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure and the rules of 
evidence for administrative hearings before the Office of Administrative 
Law Judges, codified at 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 an ALJ 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 de novo and on the record.
    (c) If both the complainant and the respondent object to the 
findings and/or order, the objections will be consolidated, and a single 
hearing will be conducted.



Sec.  1978.108  Role of Federal agencies.

    (a) (1) The complainant and the respondent will be parties in every 
proceeding. In any case in which the respondent objects to the findings 
or the preliminary order the Assistant Secretary ordinarily will be the 
prosecuting party. In any other cases, at the Assistant Secretary's 
discretion, the Assistant Secretary may participate as a party or 
participate as amicus curiae at any stage of the proceeding. This right 
to participate includes, but is not limited to, the right to petition 
for review of a decision of an ALJ, including a decision approving or 
rejecting a settlement agreement between the complainant and the 
respondent.
    (2) If the Assistant Secretary assumes the role of prosecuting party 
in accordance with paragraph (a)(1) of

[[Page 231]]

this section, he or she may, upon written notice to the appropriate 
adjudicatory body and the other parties, withdraw as the prosecuting 
party in the exercise of prosecutorial discretion. If the Assistant 
Secretary withdraws, the complainant will become the prosecuting party 
and the ALJ will issue appropriate orders to regulate the course of 
future proceedings.
    (3) Copies of documents in all cases, whether or not the Assistant 
Secretary is participating in the proceeding, must be sent to the 
Assistant Secretary, as well as all other parties. In all cases in which 
the Assistant Secretary is participating in the proceeding, copies of 
documents must also be sent to the Associate Solicitor for Occupational 
Safety and Health.
    (b) The Federal Motor Carrier Safety Administration, if interested 
in a proceeding, may participate as amicus curiae at any time in the 
proceeding, at its discretion. At the request of the Federal Motor 
Carrier Safety Administration, copies of all pleadings in a case must be 
sent to that agency, whether or not that agency is participating in the 
proceeding.



Sec.  1978.109  Decision and orders of the administrative law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may only be made if the complainant has 
demonstrated by a preponderance of the evidence that the protected 
activity, or, in circumstances covered by the Act, the perception of 
protected activity, was a contributing factor in the adverse action 
alleged in the complaint.
    (b) If the complainant or the Assistant Secretary has satisfied the 
burden set forth in the prior paragraph, relief may not be ordered if 
the respondent demonstrates by clear and convincing evidence that it 
would have taken the same adverse action in the absence of any protected 
activity or the perception thereof.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant toSec. 
1978.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, 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 ALJ will hear the case 
on the merits or dispose of the matter without a hearing if the facts 
and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the order must order the respondent to take appropriate affirmative 
action to abate the violation, including, where appropriate, 
reinstatement of the complainant to his or her former position, together 
with the compensation, terms, conditions, and privileges of the 
complainant's employment; payment of compensatory damages (backpay with 
interest and compensation for any special damages sustained as a result 
of the retaliation, including any litigation costs, expert witness fees, 
and reasonable attorney fees which the complainant may have incurred); 
and payment of punitive damages up to $250,000.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor for Occupational 
Safety and Health. Any ALJ'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 respondent. For ALJ 
decisions issued on or after the effective date of these rules, all 
other portions of the ALJ'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 (ARB).



Sec.  1978.110  Decision and orders of the Administrative Review Board.

    (a) The Assistant Secretary or any other party desiring to seek 
review, including judicial review, of a decision of

[[Page 232]]

the ALJ must file a written petition for review with the ARB, U.S. 
Department of Labor (200 Constitution Ave., NW., Washington, DC 20210), 
to which the Secretary has delegated the authority to act and issue 
final decisions under this part. Any ALJ decision issued on or after the 
effective date of these rules will become the final order of the 
Secretary unless, pursuant to this section, a timely petition for review 
is filed with the ARB and the ARB accepts the decision for review. The 
parties should identify in their petitions for review the legal 
conclusions or orders to which they object, or the objections will 
ordinarily be deemed waived. A petition must be filed within ten 
business days of the date of the decision of the ALJ. 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 ARB. Copies of 
the petition for review and all briefs must be served on the Assistant 
Secretary and, in cases in which the Assistant Secretary is a party, on 
the Associate Solicitor for Occupational Safety and Health.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final order 
of the Secretary 30 days after the filing of the petition unless the 
ARB, within that time, 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 ALJ will be inoperative unless and until the ARB issues 
an order adopting the decision, except that an order of reinstatement 
will be effective while review is conducted by the ARB unless the ARB 
grants a motion by the respondent to stay that order based on 
exceptional circumstances. The ARB will specify the terms under which 
any briefs are to be filed. The ARB will review the factual 
determinations of the ALJ under the substantial evidence standard. If no 
timely petition for review is filed, or the ARB denies review, the 
decision of the ALJ will become the final order of the Secretary. If no 
timely petition for review is filed, the resulting final order is not 
subject to judicial review.
    (c) The final decision of the ARB will be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be ten business 
days after the date of the decision of the ALJ, unless a motion for 
reconsideration has been filed with the ALJ in the interim, in which 
case the conclusion of the hearing is the date the motion for 
reconsideration is denied or ten business days after a new decision is 
issued. The ARB's final decision will be served upon all parties and the 
Chief Administrative Law Judge by mail. The final decision also will be 
served on the Assistant Secretary and on the Associate Solicitor for 
Occupational Safety and Health, even if the Assistant Secretary is not a 
party.
    (d) If the ARB concludes that the respondent has violated the law, 
the final order will order the respondent to take appropriate 
affirmative action to abate the violation, including, where appropriate, 
reinstatement of the complainant to his or her former position, together 
with the compensation, terms, conditions, and privileges of the 
complainant's employment; payment of compensatory damages (backpay with 
interest and compensation for any special damages sustained as a result 
of the retaliation, including any litigation costs, expert witness fees, 
and reasonable attorney fees the complainant may have incurred); and 
payment of punitive damages up to $250,000.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint.
    (f) Paragraphs (a) and (b) of this section apply to all cases in 
which the decision of the ALJ is issued on or after the effective date 
of these regulations.



                   Subpart C_Miscellaneous Provisions



Sec.  1978.111  Withdrawal of STAA complaints, objections,
and petitions for review; settlement.

    (a) At any time prior to the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, a

[[Page 233]]

complainant may withdraw his or her STAA complaint by filing a written 
withdrawal with the Assistant Secretary. The Assistant Secretary then 
will determine whether to approve the withdrawal. The Assistant 
Secretary will notify the respondent (or the respondent's legal counsel 
if respondent is represented by counsel) of the approval of any 
withdrawal. If the complaint is withdrawn because of settlement, the 
settlement must be submitted for approval in accordance with paragraph 
(d) of this section. After the filing of objections to the Assistant 
Secretary's findings and/or preliminary order, the complainant may not 
withdraw his or her complaint.
    (b) The Assistant Secretary may withdraw his or her findings and/or 
a preliminary order at any time before the expiration of the 30-day 
objection period described inSec. 1978.106, provided that no objection 
yet has been filed, and substitute new findings and/or a preliminary 
order. The date of the receipt of the substituted findings and/or order 
will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and 
preliminary order become final, a party may withdraw its objections to 
the Assistant Secretary's findings and/or preliminary order by filing a 
written withdrawal with the ALJ. If a case is on review with the ARB, a 
party may withdraw its petition for review of an ALJ's decision at any 
time before that decision becomes final by filing a written withdrawal 
with the ARB. The ALJ or the ARB, as the case may be, will determine 
whether to approve the withdrawal of the objections or the petition for 
review. If the ALJ approves a request to withdraw objections to the 
Assistant Secretary's findings and/or preliminary order, and there are 
no other pending objections, the Assistant Secretary's findings and 
preliminary order will become the final order of the Secretary. If the 
ARB approves a request to withdraw a petition for review of an ALJ 
decision, and there are no other pending petitions for review of that 
decision, the ALJ's decision will become the final order of the 
Secretary. If objections or a petition for review are withdrawn because 
of settlement, the settlement must be submitted for approval in 
accordance with paragraph (d) of this section.
    (d)(1) Investigative settlements. At any time after the filing of a 
STAA 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 respondent agree to a 
settlement. The Assistant Secretary's approval of a settlement reached 
by the respondent and the complainant demonstrates his or her consent 
and achieves the consent of all three parties.
    (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 ALJ if the case is before the ALJ or 
by the ARB, if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB as the case may be.
    (3) If, under paragraph (d)(1) or (d)(2) of this section, the 
respondent 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. In such circumstances, the Assistant 
Secretary will immediately notify the complainant (or the complainant's 
legal counsel if complainant is represented by counsel) that 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 will immediately notify all 
parties of his or her decision in writing and, if the case is before the 
ALJ or the ARB, a copy of the notice will be sent to the appropriate 
official in accordance withSec. 1978.108(a)(2).
    (e) Any settlement approved by the Assistant Secretary, the ALJ, or 
the ARB will constitute the final order of the Secretary and may be 
enforced pursuant toSec. 1978.113.

[[Page 234]]



Sec.  1978.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec.Sec. 1978.109 and 1978.110, 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.
    (b) A final order of the ARB will not be subject to judicial review 
in any criminal or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB to the appropriate court pursuant to the Federal Rules of 
Appellate Procedure and the local rules of such court.



Sec.  1978.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order of 
reinstatement or a final order, including one approving a settlement 
agreement as provided inSec. 1978.111, 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 have 
occurred.



Sec.  1978.114  District court jurisdiction of retaliation complaints
under STAA.

    (a) If there is no final order of the Secretary, 210 days have 
passed since 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 Assistant Secretary, the ALJ, or the 
ARB, depending upon where the proceeding is pending, a notice of his or 
her intention to file such complaint. The notice must be served on all 
parties to the proceeding. A copy of the notice must be served on OSHA's 
Regional Administrator, the Assistant Secretary, and the Associate 
Solicitor for Occupational Safety and Health. The complainant must file 
and serve a copy of the district court complaint on the above as soon as 
possible after the district court complaint has been filed with the 
court.



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 ALJ or the ARB on review may, upon 
application, after three days notice to all parties, waive any rule or 
issue such orders as justice or the administration of STAA 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.
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.

[[Page 235]]



  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 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

[[Page 236]]

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.



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) ofSec. 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;

[[Page 237]]

    (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 inSec. 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 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,

[[Page 238]]

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 atSec. 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) ofSec. 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 
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

[[Page 239]]

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 an investigation pursuant toSec. 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

[[Page 240]]

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 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

[[Page 241]]

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 inSec. 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 toSec. 1979.113.



Sec.  1979.112  Judicial review.

    (a) Within 60 days after the issuance of a final order by the Board 
underSec. 1979.110, 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.  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.

[[Page 242]]



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 RETALIATION COMPLAINTS UNDER
SECTION 806 OF THE SARBANES-OXLEY ACT OF 2002, AS AMENDED--
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 retaliation complaints.
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 retaliation complaints.
1980.115 Special circumstances; waiver of rules.

    Authority: 18 U.S.C. 1514A, as amended by the Dodd-Frank Wall Street 
Reform and Consumer Protection Act of 2010, Pub. L. 111-203 (July 21, 
2010); Secretary of Labor's Order No. 4-2010 (Sept. 2, 2010), 75 FR 
55355 (Sept. 10, 2010); Secretary of Labor's Order No. 1-2010 (Jan. 15, 
2010), 75 FR 3924 (Jan. 25, 2010).

    Source: 76 FR 68092, Nov. 3, 2011, 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, as amended by the Dodd-Frank Wall Street Reform and 
Consumer Protection Act of 2010, enacted into law July 21, 2010. 
Sarbanes-Oxley provides for employee protection from retaliation by 
companies, their subsidiaries and affiliates, officers, employees, 
contractors, subcontractors, and agents 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. Sarbanes-Oxley also provides for 
employee protection from retaliation by nationally recognized 
statistical rating organizations, their officers, employees, 
contractors, subcontractors or agents because the employee has engaged 
in protected activity.
    (b) This part establishes procedures pursuant to Sarbanes-Oxley for 
the expeditious handling of retaliation complaints made by employees, or 
by persons acting on their behalf. These rules, together with those 
codified at 29 CFR part 18, set forth the 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, 
withdrawals, and settlements.



Sec.  1980.101  Definitions.

    As used in this part:
    (a) Act means section 806 of the Corporate and Criminal Fraud 
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 
2002, Pub. L. 107-204, July 30, 2002, codified at 18 U.S.C. 1514A, as 
amended by the Dodd-Frank

[[Page 243]]

Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203, 
July 21, 2010.
    (b) 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.
    (c) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (d) 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) 
or any company required to file reports under section 15(d) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o(d)) including any 
subsidiary or affiliate whose financial information is included in the 
consolidated financial statements of such company.
    (e) Complainant means the employee who filed a complaint under the 
Act or on whose behalf a complaint was filed.
    (f) Covered person means any company, including any subsidiary or 
affiliate whose financial information is included in the consolidated 
financial statements of such company, or any nationally recognized 
statistical rating organization, or any officer, employee, contractor, 
subcontractor, or agent of such company or nationally recognized 
statistical rating organization.
    (g) Employee means an individual presently or formerly working for a 
covered person, an individual applying to work for a covered person, or 
an individual whose employment could be affected by a covered person.
    (h) Nationally recognized statistical rating organization means a 
credit rating agency under 15 U.S.C. 78c(61) that:
    (1) Issues credit ratings certified by qualified institutional 
buyers, in accordance with 15 U.S.C. 78o-7(a)(1)(B)(ix), with respect 
to:
    (i) Financial institutions, brokers, or dealers;
    (ii) Insurance companies;
    (iii) Corporate issuers;
    (iv) Issuers of asset-backed securities (as that term is defined in 
section 1101(c) of part 229 of title 17, Code of Federal Regulations, as 
in effect on September 29, 2006);
    (v) Issuers of government securities, municipal securities, or 
securities issued by a foreign government; or
    (vi) A combination of one or more categories of obligors described 
in any of paragraphs (h)(1)(i) through (v) of this section; and
    (2) Is registered under 15 U.S.C. 78o-7.
    (i) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (j) Person means one or more individuals, partnerships, 
associations, companies, corporations, business trusts, legal 
representatives or any group of persons.
    (k) Respondent means the person named in the complaint who is 
alleged to have violated the Act.
    (l) Secretary means the Secretary of Labor or persons to whom 
authority under the Act has been delegated.
    (m) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.



Sec.  1980.102  Obligations and prohibited acts.

    (a) No covered person may discharge, demote, suspend, threaten, 
harass or in any other manner retaliate against, including, but not 
limited to, intimidating, threatening, restraining, coercing, 
blacklisting or disciplining, 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, has engaged in any of the activities specified in paragraphs 
(b)(1) and (2) of this section.
    (b) An employee is protected against retaliation (as described in 
paragraph (a) of this section) by a covered person for 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

[[Page 244]]

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.

[76 FR 68092, Nov. 3, 2011, as amended at 76 FR 78151, Dec. 16, 2011]



Sec.  1980.103  Filing of retaliation complaints.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by a covered person in violation of the Act may file, 
or have filed on the employee's behalf, a complaint alleging such 
retaliation.
    (b) Nature of filing. No particular form of complaint is required. A 
complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If the complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (c) Place of filing. The complaint should be filed with the OSHA 
office 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 180 days after an alleged violation of 
the Act occurs or after the date on which the employee became aware of 
the alleged violation of the Act, any employee who believes that he or 
she has been retaliated against in violation of the Act may file, or 
have filed on the employee's behalf, a complaint alleging such 
retaliation. The date of the postmark, facsimile transmittal, email 
communication, telephone call, hand-delivery, delivery to a third-party 
commercial carrier, or in-person filing at an OSHA office will be 
considered the date of filing. The time for filing a complaint may be 
tolled for reasons warranted by applicable case law.



Sec.  1980.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing a copy of the complaint, redacted, if necessary, 
in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other 
applicable confidentiality laws, and will also notify the respondent of 
its rights under paragraphs (b) and (f) of this section and paragraph 
(e) ofSec. 1980.110. The Assistant Secretary will provide a copy of 
the unredacted complaint to the complainant (or complainant's legal 
counsel, if complainant is represented by counsel) and to the Securities 
and Exchange Commission.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to the 
agency that are responsive to the complainant's whistleblower complaint. 
Before providing such materials to the complainant, the agency will 
redact them, if necessary, in accordance with the Privacy Act of 1974, 5 
U.S.C. 552a, and other applicable confidentiality laws. The agency will 
also provide the complainant with an opportunity to respond to such 
submissions.

[[Page 245]]

    (d) 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)(1) A complaint will be dismissed unless the complainant has made 
a prima facie showing that protected activity was a contributing factor 
in the adverse action alleged in the complaint.
    (2) 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;
    (ii) The respondent knew or suspected that the employee engaged in 
the protected activity;
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity was a contributing factor in the adverse action.
    (3) 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 respondent knew or suspected that the employee 
engaged in protected activity and that the protected activity was a 
contributing factor in the adverse action. The burden may be 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 (or the complainant's legal 
counsel, if complainant is represented by counsel) will be so notified 
and the investigation will not commence.
    (4) Notwithstanding a finding that a complainant has made a prima 
facie showing, as required by this section, an investigation of the 
complaint shall not be conducted or will be discontinued if the 
respondent demonstrates by clear and convincing evidence that it would 
have taken the same adverse action in the absence of the complainant's 
protected activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set forth in the prior paragraph, the Assistant 
Secretary will proceed with the investigation. The investigation will 
proceed whenever it is necessary or appropriate to confirm or verify the 
information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for inSec. 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 respondent has violated the 
Act and that preliminary reinstatement is warranted, the Assistant 
Secretary will again contact the respondent (or the respondent's legal 
counsel, if respondent is represented by counsel) 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 complainant will also receive a copy of 
the materials that must be provided to the respondent under this 
paragraph. Before providing such materials to the complainant, the 
agency will redact them, if necessary, in accordance with the Privacy 
Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. 
The respondent 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 respondent will present this evidence within 10 business 
days of the Assistant Secretary's notification pursuant to this 
paragraph, or as soon afterwards as the Assistant Secretary and the 
respondent can agree, if the interests of justice so require.

[[Page 246]]



Sec.  1980.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary shall issue, within 60 days 
of filing of the complaint, written findings as to whether or not there 
is reasonable cause to believe that the respondent has retaliated 
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 shall 
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 reinstatement with the same seniority 
status that the complainant would have had but for the retaliation; back 
pay with interest; and compensation for any special damages sustained as 
a result of the retaliation, including litigation costs, expert witness 
fees, and reasonable attorney's fees. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily.
    (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 where appropriate, the preliminary order will 
be sent by certified mail, return receipt requested, to all parties of 
record (and each party's legal counsel if the party is represented by 
counsel). The findings, and where appropriate, the preliminary order 
will inform the parties of the right to object to the findings and/or 
order and to request a hearing, and of the right of the respondent to 
request an award of attorney's fees not exceeding $1,000 from the 
administrative law judge (ALJ) regardless of whether the respondent has 
filed objections, if the complaint was frivolous or brought in bad 
faith. The findings, and where appropriate, the preliminary order, 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/or order.
    (c) The findings and any preliminary order will be effective 30 days 
after receipt by the respondent (or the respondent's legal counsel if 
the respondent is represented by counsel), or on the compliance date set 
forth in the preliminary order, whichever is later, unless an objection 
and/or a request for hearing has been timely filed as provided atSec. 
1980.106. However, the portion of any preliminary order requiring 
reinstatement will be effective immediately upon the respondent's 
receipt of the findings and the preliminary order, regardless of any 
objections to the findings and/or the 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 respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney's fees under the Act, 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 toSec. 1980.105(b). The objections, 
request for a hearing, and/or request for attorney's fees must be in 
writing and state whether the objections are 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 email 
communication is considered 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, the 
Assistant Secretary, and the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will

[[Page 247]]

be stayed, except for the portion requiring preliminary reinstatement, 
which shall not be automatically stayed. The portion of the preliminary 
order requiring reinstatement will be effective immediately upon the 
respondent's receipt of the findings and preliminary order, regardless 
of any objections to the order. The respondent may file a motion with 
the Office of Administrative Law Judges for a stay of the Assistant 
Secretary's preliminary order of reinstatement, which shall be granted 
only based on exceptional circumstances. If no timely objection is filed 
with respect to either the findings or the preliminary order, the 
findings and/or preliminary order shall 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 of Part 18 of this title.
    (b) Upon receipt of an objection and request for hearing, the Chief 
Administrative Law Judge will promptly assign the case to an ALJ 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 de novo, on the record. Administrative law 
judges have broad discretion to limit discovery in order to expedite the 
hearing.
    (c) If both the complainant and the respondent 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 respondent will be parties in every 
proceeding. At the Assistant Secretary's discretion, the Assistant 
Secretary may participate as a party or as amicus curiae at any time at 
any stage of the proceedings. This right to participate includes, but is 
not limited to, the right to petition for review of a decision of an 
ALJ, including a decision approving or rejecting a settlement agreement 
between the complainant and the respondent.
    (2) Copies of documents 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, as well as all other parties.
    (b) The Securities and Exchange Commission, if interested in a 
proceeding, may participate as amicus curiae at any time in the 
proceeding, at the Commission's discretion. At the request of the 
Securities and Exchange Commission, copies of all pleadings in a case 
must be sent to the Commission, whether or not the Commission is 
participating in the proceeding.



Sec.  1980.109  Decision and orders of the administrative
law judge.

    (a) The decision of the ALJ will contain appropriate findings, 
conclusions, and an order pertaining to the remedies provided in 
paragraph (d) of this section, as appropriate. A determination that a 
violation has occurred may be made only if the complainant has 
demonstrated by a preponderance of the evidence that protected activity 
was a contributing factor in the adverse action alleged in the 
complaint.
    (b) If the complainant has satisfied the burden set forth in the 
prior paragraph, relief may not be ordered if the respondent 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of any protected activity.
    (c) Neither the Assistant Secretary's determination to dismiss a 
complaint without completing an investigation pursuant toSec. 
1980.104(e) nor the Assistant Secretary's determination to proceed with 
an investigation is subject to review by the ALJ, and a complaint

[[Page 248]]

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 ALJ will 
hear the case on the merits or dispose of the matter without a hearing 
if the facts and circumstances warrant.
    (d)(1) If the ALJ concludes that the respondent has violated the 
law, the order will provide all relief necessary to make the employee 
whole, including reinstatement with the same seniority status that the 
complainant would have had but for the retaliation; back pay with 
interest; and compensation for any special damages sustained as a result 
of the retaliation, including litigation costs, expert witness fees, and 
reasonable attorney's fees. Interest on back pay will be calculated 
using the interest rate applicable to underpayment of taxes under 26 
U.S.C. 6621 and will be compounded daily.
    (2) If the ALJ determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the request 
of the respondent, the ALJ determines that a complaint was frivolous or 
was brought in bad faith, the judge may award to the respondent a 
reasonable attorney's fee, not exceeding $1,000.
    (e) The decision will be served upon all parties to the proceeding, 
the Assistant Secretary, and the Associate Solicitor, Division of Fair 
Labor Standards, U.S. Department of Labor. Any ALJ'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 respondent. All other portions of the ALJ's order will be effective 
10 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 ALJ, or a respondent 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, U.S. Department of Labor (ARB), which has been delegated the 
authority to act for the Secretary and issue final decisions under this 
part. The decision of the ALJ will become the final order of the 
Secretary unless, pursuant to this section, a petition for review is 
timely filed with the ARB, and the ARB accepts the petition for review. 
The parties should identify in their petitions for review the legal 
conclusions or orders to which they object, or the objections may be 
deemed waived. A petition must be filed within 10 business days of the 
date of the decision of the ALJ. The date of the postmark, facsimile 
transmittal, or email 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 ARB. 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.
    (b) If a timely petition for review is filed pursuant to paragraph 
(a) of this section, the decision of the ALJ will become the final order 
of the Secretary unless the ARB, 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 ALJ will be inoperative unless and until the ARB issues an order 
adopting the decision, except that a preliminary order of reinstatement 
will be effective while review is conducted by the ARB, unless the ARB 
grants a motion by the respondent to stay the order based on exceptional 
circumstances. The ARB will specify the terms under which any briefs are 
to be filed. The ARB will review the factual determinations of the ALJ 
under the substantial evidence standard. If no timely petition for 
review is filed, or the ARB denies review, the decision of the ALJ will 
become the final order of the Secretary. If no timely petition for 
review is filed, the

[[Page 249]]

resulting final order is not subject to judicial review.
    (c) The final decision of the ARB shall be issued within 120 days of 
the conclusion of the hearing, which will be deemed to be 10 business 
days after the date of the decision of the ALJ unless a motion for 
reconsideration has been filed with the ALJ in the interim. The ARB's 
final decision will be served upon all parties and the Chief 
Administrative Law Judge by mail. 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, even if the Assistant Secretary is not a party.
    (d) If the ARB concludes that the respondent has violated the law, 
the final order will include all relief necessary to make the 
complainant whole, including reinstatement with the same seniority 
status that the complainant would have had but for the retaliation; back 
pay with interest; and compensation for any special damages sustained as 
a result of the retaliation, including litigation costs, expert witness 
fees, and reasonable attorney's fees. Interest on back pay will be 
calculated using the interest rate applicable to underpayment of taxes 
under 26 U.S.C. 6621 and will be compounded daily.
    (e) If the ARB determines that the respondent has not violated the 
law, an order will be issued denying the complaint. If, upon the request 
of the respondent, the ARB determines that a complaint was frivolous or 
was brought in bad faith, the ARB may award to the respondent a 
reasonable attorney's 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 Assistant 
Secretary's findings and/or preliminary order, a complainant may 
withdraw his or her complaint by notifying the Assistant Secretary, 
orally or in writing, of his or her withdrawal. The Assistant Secretary 
then will confirm in writing the complainant's desire to withdraw and 
determine whether to approve the withdrawal. The Assistant Secretary 
will notify the parties (and each party's legal counsel if the party is 
represented by counsel) of the approval of any withdrawal. If the 
complaint is withdrawn because of settlement, the settlement must be 
submitted for approval in accordance with paragraph (d) of this section. 
A complainant may not withdraw his or her complaint after the filing of 
objections to the Assistant Secretary's findings and/or preliminary 
order.
    (b) The Assistant Secretary may withdraw his or her findings and/or 
preliminary order at any time before the expiration of the 30-day 
objection period described inSec. 1980.106, provided that no objection 
has yet been filed, and substitute new findings and/or preliminary 
order. The date of the receipt of the substituted findings and/or order 
will begin a new 30-day objection period.
    (c) At any time before the Assistant Secretary's findings and/or 
order become final, a party may withdraw its objections to the Assistant 
Secretary's findings and/or order by filing a written withdrawal with 
the ALJ. If the case is on review with the ARB, a party may withdraw its 
petition for review of an ALJ's decision at any time before that 
decision becomes final by filing a written withdrawal with the ARB. The 
ALJ or the ARB, as the case may be, will determine whether to approve 
the withdrawal of the objections or the petition for review. If the ALJ 
approves a request to withdraw objections to the Assistant Secretary's 
findings or order, and there are no other pending objections, the 
Assistant Secretary's findings and order will become the final order of 
the Secretary. If the ARB approves a request to withdraw a petition for 
review of an ALJ decision, and there are no other pending petitions for 
review of that decision, the ALJ's decision will become the final order 
of the Secretary. If objections or a petition for review are withdrawn 
because of settlement, the settlement must be submitted for approval 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

[[Page 250]]

operation of law, the case may be settled if the Assistant Secretary, 
the complainant and the respondent agree to a settlement. The Assistant 
Secretary's approval of a settlement reached by the respondent and the 
complainant demonstrates his or her consent and achieves the consent of 
all three parties.
    (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 ALJ if the case is before the judge, 
or by the ARB if the ARB has accepted the case for review. A copy of the 
settlement will be filed with the ALJ or the ARB, as the case may be.
    (e) Any settlement approved by the Assistant Secretary, the ALJ, or 
the ARB, will constitute the final order of the Secretary and may be 
enforced pursuant toSec. 1980.113.



Sec.  1980.112  Judicial review.

    (a) Within 60 days after the issuance of a final order under 
Sec.Sec. 1980.109 and 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.
    (b) A final order of the ARB is not subject to judicial review in 
any criminal or other civil proceeding.
    (c) If a timely petition for review is filed, the record of a case, 
including the record of proceedings before the ALJ, will be transmitted 
by the ARB to the appropriate court pursuant to the Federal Rules of 
Appellate Procedure and the local rules of such court.



Sec.  1980.113  Judicial enforcement.

    Whenever any person has failed to comply with a preliminary order of 
reinstatement, or a final order, including one approving a settlement 
agreement, issued under the Act, 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. In such civil actions, 
the district court will have jurisdiction to grant all appropriate 
relief, including, but not limited to, injunctive relief and 
compensatory damages, including:
    (a) Reinstatement with the same seniority status that the employee 
would have had, but for the discharge or retaliation;
    (b) The amount of back pay, with interest; and
    (c) Compensation for any special damages sustained as a result of 
the discharge or retaliation, including litigation costs, expert witness 
fees, and reasonable attorney's fees.



Sec.  1980.114  District court jurisdiction of retaliation complaints.

    (a) If the Secretary 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. A party to 
an action brought under this paragraph shall be entitled to trial by 
jury.
    (b) Within seven days after filing a complaint in Federal court, a 
complainant must file with the Assistant Secretary, the ALJ, or the ARB, 
depending on where the proceeding is pending, a copy of the file-stamped 
complaint. A copy of the complaint also must be served on the Regional 
Administrator, the Assistant Secretary, Occupational Safety and Health 
Administration, and on the Associate Solicitor, Division of Fair Labor 
Standards, U.S. Department of Labor.



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 ALJ or the ARB on review may, upon 
application, after three days notice to all parties, waive any rule or 
issue any orders that justice or the administration of the Act requires.

[[Page 251]]



PART 1981_PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS
UNDER SECTION 6 OF THE PIPELINE SAFETY IMPROVEMENT ACT OF 2002--
Table of Contents



 Subpart A_Complaints, Investigations, Findings, and Preliminary Orders

Sec.
1981.100 Purpose and scope.
1981.101 Definitions.
1981.102 Obligations and prohibited acts.
1981.103 Filing of discrimination complaint.
1981.104 Investigation.
1981.105 Issuance of findings and preliminary orders.

                          Subpart B_Litigation

1981.106 Objections to the findings and the preliminary order and 
          request for a hearing.
1981.107 Hearings.
1981.108 Role of Federal agencies.
1981.109 Decision and orders of the administrative law judge.
1981.110 Decision and orders of the Administrative Review Board.

                   Subpart C_Miscellaneous Provisions

1981.111 Withdrawal of complaints, objections, and findings; settlement.
1981.112 Judicial review.
1981.113 Judicial enforcement.
1981.114 Special circumstances; waiver of rules.

    Authority: 49 U.S.C. 60129; Secretary of Labor's Order 5-2002, 67 FR 
65008 (October 22, 2002).

    Source: 69 FR 17591, Apr. 5, 2004, unless otherwise noted.



 Subpart A_Complaints, Investigations, Findings, and Preliminary Orders



Sec.  1981.100  Purpose and scope.

    (a) This part implements procedures under section 6 of the Pipeline 
Safety Improvement Act of 2002, 49 U.S.C. 60129 (``the Pipeline Safety 
Act''), which provides for employee protection from discrimination by a 
person owning or operating a pipeline facility or a contractor or 
subcontractor of such person because the employee has engaged in 
protected activity pertaining to a violation or alleged violation of any 
order, regulation, or standard under chapter 601, subtitle VIII of title 
49 of the United States Code or any other provision of Federal law 
relating to pipeline safety.
    (b) This part establishes procedures pursuant to the Pipeline Safety 
Act 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 the Pipeline Safety Act, 
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.  1981.101  Definitions.

    ``Act'' or ``Pipeline Safety Act'' means section 6 of the Pipeline 
Safety Improvement Act of 2002, Public Law No. 107-355, December 17, 
2002, 49 U.S.C. 60129.
    ``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.
    ``Employee'' means an individual presently or formerly working for a 
person owning or operating a pipeline facility or a contractor or 
subcontractor of such a person, an individual applying to work for a 
person owning or operating a pipeline facility or a contractor or 
subcontractor of such a person, or an individual whose employment could 
be affected by a person owning or operating a pipeline facility or a 
contractor or subcontractor of such a person.
    ``Employer'' means a person owning or operating a pipeline facility 
or a contractor or subcontractor of such a person.
    ``Gas pipeline facility'' includes a pipeline, a right of way, a 
facility, a building, or equipment used in transporting gas or treating 
gas during its transportation.
    ``Hazardous liquid pipeline facility'' includes a pipeline, a right 
of way, a facility, a building, or equipment used or

[[Page 252]]

intended to be used in transporting hazardous liquid.
    ``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 a corporation, company, association, firm, 
partnership, joint stock company, an individual, a State, a 
municipality, and a trustee, receiver, assignee, or personal 
representative of a person.
    ``Pipeline facility'' means a gas pipeline facility and a hazardous 
liquid pipeline facility.
    ``Secretary'' means the Secretary of Labor or persons to whom 
authority under the Act has been delegated.



Sec.  1981.102  Obligations and prohibited acts.

    (a) No employer 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 any of the 
activities specified in paragraphs (b)(1) through (5) of this section.
    (b) It is a violation of the Act for any employer 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 or cause 
to be provided to the employer or the Federal Government, information 
relating to any violation or alleged violation of any order, regulation, 
or standard under chapter 601, subtitle VIII of title 49 of the United 
States Code or any other Federal law relating to pipeline safety;
    (2) Refused to engage in any practice made unlawful by chapter 601, 
in subtitle VIII of title 49 of the United States Code or any other 
Federal law relating to pipeline safety, if the employee has identified 
the alleged illegality to the employer;
    (3) Provided, caused to be provided, or is about to provide or cause 
to be provided, testimony before Congress or at any Federal or State 
proceeding regarding any provision (or proposed provision) of chapter 
601, subtitle VIII of title 49 of the United States Code or any other 
Federal law relating to pipeline safety, or testimony in any proceeding 
under chapter 601, subtitle VIII of title 49 of the United States Code 
or any other Federal law relating to pipeline safety, or a proceeding 
for the administration or enforcement of any requirement imposed under 
chapter 601, subtitle VIII of title 49 of the United States Code or any 
other Federal law relating to pipeline safety;
    (4) Commenced, caused to be commenced, or is about to commence or 
cause to be commenced a proceeding under chapter 601, subtitle VIII of 
title 49 of the United States Code or any other Federal law relating to 
pipeline safety, or a proceeding for the administration or enforcement 
of any requirement imposed under chapter 601, subtitle VIII of title 49 
of the United States Code or any other Federal law relating to pipeline 
safety; or
    (5) Assisted or participated or is about to assist or participate in 
any manner in such a proceeding or in any other action to carry out the 
purposes of chapter 601, subtitle VIII of title 49 of the United States 
Code or any other Federal law relating to pipeline safety.
    (c) This part shall have no application to any employee of an 
employer who, acting without direction from the employer (or such 
employer's agent), deliberately causes a violation of any requirement 
relating to pipeline safety under chapter 601, subtitle VIII of title 49 
of the United States Code or any other Federal law.



Sec.  1981.103  Filing of discrimination complaint.

    (a) Who may file. An employee who believes that he or she has been 
discriminated against by an employer 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

[[Page 253]]

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 180 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 the Pipeline Safety Act 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), will be deemed to be a complaint filed under both the 
Pipeline Safety Act and section 11(c). Similarly, a complaint filed 
under section 11(c) that alleges facts that would constitute a violation 
of the Pipeline Safety Act will be deemed to be a complaint filed under 
both the Pipeline Safety Act and section 11(c). Normal procedures and 
timeliness requirements for investigations under the respective laws and 
regulations will be followed.



Sec.  1981.104  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) ofSec. 1981.110. A copy 
of the notice to the named person will also be provided to the 
Department of Transportation.
    (b) A complaint of alleged violation shall 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 shall not be conducted if the named person,

[[Page 254]]

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 part 70 of title 29 of the Code of 
Federal Regulations.
    (e) Prior to the issuance of findings and a preliminary order as 
provided for inSec. 1981.105, 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 his or her position, 
and to present legal and factual arguments. The named person will 
present this evidence within 10 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.  1981.105  Issuance of findings and preliminary orders.

    (a) After considering all the relevant information collected during 
the investigation, the Assistant Secretary shall 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 shall 
accompany the findings with a preliminary order providing relief to the 
complainant. The preliminary order shall 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

[[Page 255]]

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 will be effective 60 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 atSec. 1981.106. 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.  1981.106  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 60 days of receipt of the findings and preliminary 
order pursuant to paragraph (b) ofSec. 1981.105. 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 
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, which shall not be automatically stayed. 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. The 
named person may file a motion with the Office of Administrative Law 
Judges for stay of the Assistant Secretary's preliminary 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.  1981.107  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 de novo, on the record. Administrative law 
judges 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 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.

[[Page 256]]



Sec.  1981.108  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 as amicus curiae at any time at 
any stage of 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 approving or rejecting a 
settlement agreement between the complainant and the named person.
    (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 Secretary of Transportation may participate as amicus curiae 
at any time in the proceedings, at the Secretary of Transportation's 
discretion. At the request of the Secretary of Transportation, copies of 
all pleadings in a case must be sent to the Secretary of Transportation, 
whether or not the Secretary of Transportation is participating in the 
proceeding.



Sec.  1981.109  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 toSec. 1981.104(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 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 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 will be 
effective immediately upon receipt of the decision by the named person, 
and will not be stayed by the filing of a timely petition for review 
with the Administrative Review Board. All other portions of the judge's 
order will be effective 10 business days after the date of the decision 
unless a timely petition for review has been filed with the 
Administrative Review Board.



Sec.  1981.110  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

[[Page 257]]

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 10 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 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, unless the Board grants a motion to stay the 
order. 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 90 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 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 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 attorney's fee, not exceeding $1,000.



                   Subpart C_Miscellaneous Provisions



Sec.  1981.111  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 to approve the 
withdrawal. The Assistant Secretary will notify the named

[[Page 258]]

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 60-day 
objection period described inSec. 1981.106, 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 60-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 to approve the withdrawal. 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 toSec. 1981.113.



Sec.  1981.112  Judicial review.

    (a) Within 60 days after the issuance of a final order by the Board 
(Secretary) underSec. 1981.110, 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.  1981.113  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.  1981.114  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, 
waive any rule or issue any orders that justice or the administration of 
the Act requires.

[[Page 259]]



    PART 1982_PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
    UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT OF 2007, ENACTED
    AS SECTION 1413 OF THE IMPLEMENTING RECOMMENDATIONS OF THE 9/11 
    COMMISSION ACT OF 2007, AND THE FEDERAL RAILROAD SAFETY ACT, AS 
    AMENDED BY SECTION 1521 OF THE IMPLEMENTING RECOMMENDATIONS OF 
    THE 9/11 COMMISSION ACT OF 2007--Table of Contents



  Subpart A_Complaints, Investigations, Findings and Preliminary Orders

Sec.
1982.100 Purpose and scope.
1982.101 Definitions.
1982.102 Obligations and prohibited acts.
1982.103 Filing of retaliation complaints.
1982.104 Investigation.
1982.105 Issuance of findings and preliminary orders.

                          Subpart B_Litigation

1982.106 Objections to the findings and the preliminary order and 
          request for a hearing.
1982.107 Hearings.
1982.108 Role of Federal agencies.
1982.109 Decision and orders of the administrative law judge.
1982.110 Decision and orders of the Administrative Review Board.

                   Subpart C_Miscellaneous Provisions

1982.111 Withdrawal of complaints, objections, and petitions for review; 
          settlement.
1982.112 Judicial review.
1982.113 Judicial enforcement.
1982.114 District court jurisdiction of retaliation complaints.
1982.115 Special circumstances; waiver of rules.

    Authority: 6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary of Labor's 
Order No. 5-2007, 72 FR 31160 (June 5, 2007); Secretary of Labor's Order 
No. 1-2010 (Jan. 15, 2010), 75 FR 3924-01 (Jan. 25, 2010).

    Source: 75 FR 53527, Aug. 31, 2010, unless otherwise noted.



  Subpart A_Complaints, Investigations, Findings and Preliminary Orders



Sec.  1982.100  Purpose and scope.

    (a) This part implements procedures of NTSSA, 6 U.S.C. 1142, and 
FRSA, 49 U.S.C. 20109, as amended. NTSSA provides for employee 
protection from retaliation because the employee has engaged in 
protected activity pertaining to public transportation safety or 
security (or, in circumstances covered by the statutes, the employee is 
perceived to have engaged or to be about to engage in protected 
activity). FRSA provides for employee protection from retaliation 
because the employee has engaged in protected activity pertaining to 
railroad safety or security (or, in circumstances covered by the 
statutes, the employee is perceived to have engaged or to be about to 
engage in protected activity), has requested medical or first aid 
treatment, or has followed orders or a treatment plan of a treating 
physician.
    (b) This part establishes procedures pursuant to NTSSA and FRSA for 
the expeditious handling of retaliation complaints filed by employees, 
or by persons acting on their behalf. These rules, together with those 
codified at 29 CFR part 18, set forth the procedures for submission of 
complaints under NTSSA or FRSA, 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.  1982.101  Definitions.

    (a) 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 NTSSA or FRSA.
    (b) Business days means days other than Saturdays, Sundays, and 
Federal holidays.
    (c) Complainant means the employee who filed a NTSSA or FRSA 
complaint or on whose behalf a complaint was filed.
    (d) Employee means an individual presently or formerly working for, 
an individual applying to work for, or an

[[Page 260]]

individual whose employment could be affected by a public transportation 
agency or a railroad carrier, or a contractor or subcontractor of a 
public transportation agency or a railroad carrier.
    (e) FRSA means Section 1521 of the Implementing Recommendations of 
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, as 
further amended by Public Law 110-432, October, 16, 2008, codified at 49 
U.S.C. 20109.
    (f) NTSSA means Section 1413 of the Implementing Recommendations of 
the 9/11 Commission Act of 2007, Public Law 110-053, August 3, 2007, 
codified at 6 U.S.C. 1142.
    (g) OSHA means the Occupational Safety and Health Administration of 
the United States Department of Labor.
    (h) Public transportation means transportation by a conveyance that 
provides regular and continuous general or special transportation to the 
public, but does not include school buses, charter, or intercity bus 
transportation or intercity passenger rail transportation provided by 
Amtrak.
    (i) Public transportation agency means a publicly owned operator of 
public transportation eligible to receive Federal assistance under 49 
U.S.C. chapter 53.
    (j) Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways, including commuter or other 
short-haul railroad passenger service in a metropolitan or suburban area 
and commuter railroad service that was operated by the Consolidated Rail 
Corporation on January 1, 1979 and high speed ground transportation 
systems that connect metropolitan areas, without regard to whether those 
systems use new technologies not associated with traditional railroads, 
but does not include rapid transit operations in an urban area that are 
not connected to the general railroad system of transportation.
    (k) Railroad carrier means a person providing railroad 
transportation.
    (l) Respondent means the person alleged to have violated NTSSA or 
FRSA.
    (m) Secretary means the Secretary of Labor or person to whom 
authority under NTSSA or FRSA has been delegated.
    (n) Any future statutory amendments that affect the definition of a 
term or terms listed in this section will apply in lieu of the 
definition stated herein.



Sec.  1982.102  Obligations and prohibited acts.

    (a) National Transit Systems Security Act. (1) A public 
transportation agency, contractor, or subcontractor of such agency, or 
officer or employee of such agency shall not discharge, demote, suspend, 
reprimand, or in any other way discriminate against, including but not 
limited to intimidating, threatening, restraining, coercing, 
blacklisting, or disciplining an employee if such discrimination is due, 
in whole or in part, to the employee's lawful, good faith act done, or 
perceived by the employer to have been done or about to be done--
    (i) To provide information, directly cause information to be 
provided, or otherwise directly assist in any investigation regarding 
any conduct which the employee reasonably believes constitutes a 
violation of any Federal law, rule, or regulation relating to public 
transportation safety or security, or fraud, waste, or abuse of Federal 
grants or other public funds intended to be used for public 
transportation safety or security, if the information or assistance is 
provided to, or an investigation stemming from the provided information 
is conducted by--
    (A) A Federal, State or local regulatory or law enforcement agency 
(including an office of the Inspector General under the Inspector 
General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));
    (B) Any Member of Congress, any Committee of Congress, or the 
Government Accountability Office; or
    (C) A person with supervisory authority over the employee or such 
other person who has the authority to investigate, discover, or 
terminate the misconduct;
    (ii) To refuse to violate or assist in the violation of any Federal 
law, rule, or regulation relating to public transportation safety or 
security;

[[Page 261]]

    (iii) To file a complaint or directly cause to be brought a 
proceeding related to the enforcement of this section or to testify in 
that proceeding;
    (iv) To cooperate with a safety or security investigation by the 
Secretary of Transportation, the Secretary of Homeland Security, or the 
National Transportation Safety Board; or
    (v) To furnish information to the Secretary of Transportation, the 
Secretary of Homeland Security, the National Transportation Safety 
Board, or any Federal, State, or local regulatory or law enforcement 
agency as to the facts relating to any accident or incident resulting in 
injury or death to an individual or damage to property occurring in 
connection with public transportation.
    (2)(i) A public transportation agency, contractor, or subcontractor 
of such agency, or officer or employee of such agency shall not 
discharge, demote, suspend, reprimand, or in any other way discriminate 
against, including but not limited to intimidating, threatening, 
restraining, coercing, blacklisting, or disciplining an employee for--
    (A) Reporting a hazardous safety or security condition;
    (B) Refusing to work when confronted by a hazardous safety or 
security condition related to the performance of the employee's duties, 
if the conditions described in paragraph (a)(2)(ii) of this section 
exist; or
    (C) Refusing to authorize the use of any safety- or security-related 
equipment, track, or structures, if the employee is responsible for the 
inspection or repair of the equipment, track, or structures, when the 
employee believes that the equipment, track, or structures are in a 
hazardous safety or security condition, if the conditions described in 
paragraph (a)(2)(ii) of this section exist.
    (ii) A refusal is protected under paragraph (a)(2)(i)(B) and (C) of 
this section if--
    (A) The refusal is made in good faith and no reasonable alternative 
to the refusal is available to the employee;
    (B) A reasonable individual in the circumstances then confronting 
the employee would conclude that--
    (1) The hazardous condition presents an imminent danger of death or 
serious injury; and
    (2) The urgency of the situation does not allow sufficient time to 
eliminate the danger without such refusal; and
    (C) The employee, where possible, has notified the public 
transportation agency of the existence of the hazardous condition and 
the intention not to perform further work, or not to authorize the use 
of the hazardous equipment, track, or structures, unless the condition 
is corrected immediately or the equipment, track, or structures are 
repaired properly or replaced.
    (iii) In paragraph (a)(2)(ii) of this section, only paragraph 
(a)(2)(ii)(A) shall apply to security personnel, including transit 
police, employed or utilized by a public transportation agency to 
protect riders, equipment, assets, or facilities.
    (b) Federal Railroad Safety Act. (1) A railroad carrier engaged in 
interstate or foreign commerce, a contractor or a subcontractor of such 
a railroad carrier, or an officer or employee of such a railroad 
carrier, may not discharge, demote, suspend, reprimand, or in any other 
way discriminate against, including but not limited to intimidating, 
threatening, restraining, coercing, blacklisting, or disciplining an 
employee if such discrimination is due, in whole or in part, to the 
employee's lawful, good faith act done, or perceived by the employer to 
have been done or about to be done--
    (i) To provide information, directly cause information to be 
provided, or otherwise directly assist in any investigation regarding 
any conduct which the employee reasonably believes constitutes a 
violation of any Federal law, rule, or regulation relating to railroad 
safety or security, or gross fraud, waste, or abuse of Federal grants or 
other public funds intended to be used for railroad safety or security, 
if the information or assistance is provided to or an investigation 
stemming from the provided information is conducted by--
    (A) A Federal, State, or local regulatory or law enforcement agency 
(including an office of the Inspector General under the Inspector 
General Act of 1978 (5 U.S.C. App.; Pub. L. 95-452));

[[Page 262]]

    (B) Any Member of Congress, any committee of Congress, or the 
Government Accountability Office; or
    (C) A person with supervisory authority over the employee or such 
other person who has the authority to investigate, discover, or 
terminate the misconduct;
    (ii) To refuse to violate or assist in the violation of any Federal 
law, rule, or regulation relating to railroad safety or security;
    (iii) To file a complaint, or directly cause to be brought a 
proceeding related to the enforcement of 49 U.S.C. part A of subtitle V 
or, as applicable to railroad safety or security, 49 U.S.C. chapter 51 
or 57, or to testify in that proceeding;
    (iv) To notify, or attempt to notify, the railroad carrier or the 
Secretary of Transportation of a work-related personal injury or work-
related illness of an employee;
    (v) To cooperate with a safety or security investigation by the 
Secretary of Transportation, the Secretary of Homeland Security, or the 
National Transportation Safety Board;
    (vi) To furnish information to the Secretary of Transportation, the 
Secretary of Homeland Security, the National Transportation Safety 
Board, or any Federal, State, or local regulatory or law enforcement 
agency as to the facts relating to any accident or incident resulting in 
injury or death to an individual or damage to property occurring in 
connection with railroad transportation; or
    (vii) To accurately report hours on duty pursuant to 49 U.S.C. 
chapter 211.
    (2)(i) A railroad carrier engaged in interstate or foreign commerce, 
or an officer or employee of such a railroad carrier, shall not 
discharge, demote, suspend, reprimand, or in any other way discriminate 
against, including but not limited to intimidating, threatening, 
restraining, coercing, blacklisting, or disciplining an employee for--
    (A) Reporting, in good faith, a hazardous safety or security 
condition;
    (B) Refusing to work when confronted by a hazardous safety or 
security condition related to the performance of the employee's duties, 
if the conditions described in paragraph (b)(2)(ii) of this section 
exist; or
    (C) Refusing to authorize the use of any safety-related equipment, 
track, or structures, if the employee is responsible for the inspection 
or repair of the equipment, track, or structures, when the employee 
believes that the equipment, track, or structures are in a hazardous 
safety or security condition, if the conditions described in paragraph 
(b)(2)(ii) of this section exist.
    (ii) A refusal is protected under paragraphs (b)(2)(i)(B) and (C) of 
this section if--
    (A) The refusal is made in good faith and no reasonable alternative 
to the refusal is available to the employee;
    (B) A reasonable individual in the circumstances then confronting 
the employee would conclude that--
    (1) The hazardous condition presents an imminent danger of death or 
serious injury; and
    (2) The urgency of the situation does not allow sufficient time to 
eliminate the danger without such refusal; and
    (C) The employee, where possible, has notified the railroad carrier 
of the existence of the hazardous condition and the intention not to 
perform further work, or not to authorize the use of the hazardous 
equipment, track, or structures, unless the condition is corrected 
immediately or the equipment, track, or structures are repaired properly 
or replaced.
    (iii) In paragraph (b)(2)(ii) of this section, only paragraph 
(b)(2)(ii)(A) shall apply to security personnel employed by a railroad 
carrier to protect individuals and property transported by railroad.
    (3) A railroad carrier engaged in interstate or foreign commerce, a 
contractor or a subcontractor of such a railroad carrier, or an officer 
or employee of such a railroad carrier may not discipline, or threaten 
discipline to, an employee for requesting medical or first aid 
treatment, or for following orders or a treatment plan of a treating 
physician, except that--
    (i) A railroad carrier's refusal to permit an employee to return to 
work following medical treatment shall not be considered a violation of 
FRSA if the refusal is pursuant to Federal Railroad Administration 
medical standards for

[[Page 263]]

fitness of duty or, if there are no pertinent Federal Railroad 
Administration standards, a carrier's medical standards for fitness for 
duty.
    (ii) For purposes of this paragraph, the term ``discipline'' means 
to bring charges against a person in a disciplinary proceeding, suspend, 
terminate, place on probation, or make note of reprimand on an 
employee's record.



Sec.  1982.103  Filing of retaliation complaints.

    (a) Who may file. An employee who believes that he or she has been 
retaliated against by an employer in violation of NTSSA or FRSA may 
file, or have filed by any person on the employee's behalf, a complaint 
alleging such retaliation.
    (b) Nature of filing. No particular form of complaint is required. A 
complaint may be filed orally or in writing. Oral complaints will be 
reduced to writing by OSHA. If a complainant is unable to file the 
complaint in English, OSHA will accept the complaint in any language.
    (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 180 days after an alleged violation of 
NTSSA or FRSA occurs, an employee who believes that he or she has been 
retaliated against in violation of NTSSA or FRSA may file, or have filed 
by any person on the employee's behalf, a complaint alleging such 
retaliation. The date of the postmark, facsimile transmittal, e-mail 
communication, telephone call, hand-delivery, delivery to a third-party 
commercial carrier, or in-person filing at an OSHA office will be 
considered the date of filing. The time for filing a complaint may be 
tolled for reasons warranted by applicable case law.



Sec.  1982.104  Investigation.

    (a) Upon receipt of a complaint in the investigating office, the 
Assistant Secretary will notify the respondent of the filing of the 
complaint by providing a copy of the complaint, redacted, if necessary, 
in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and 
other applicable confidentiality laws, and will also notify the 
respondent of its rights under paragraphs (b) and (f) of this section 
and paragraph (e) ofSec. 1982.110. The Assistant Secretary will 
provide a copy of the unredacted complaint to the complainant (or to the 
complainant's legal counsel, if complainant is represented by counsel), 
and to the Federal Railroad Administration, the Federal Transit 
Administration, or the Transportation Security Administration as 
appropriate.
    (b) Within 20 days of receipt of the notice of the filing of the 
complaint provided under paragraph (a) of this section, the respondent 
may submit to the Assistant Secretary a written statement and any 
affidavits or documents substantiating its position. Within the same 20 
days, the respondent may request a meeting with the Assistant Secretary 
to present its position.
    (c) Throughout the investigation, the agency will provide to the 
complainant (or the complainant's legal counsel if complainant is 
represented by counsel) a copy of all of respondent's submissions to the 
agency that are responsive to the complainant's whistleblower complaint. 
Before providing such materials to the complainant, the agency will 
redact them, if necessary, in accordance with the Privacy Act of 1974, 5 
U.S.C. 552a, et seq., and other applicable confidentiality laws.
    (d) 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 title 
29 of the Code of Federal Regulations.
    (e)(1) A complaint of alleged violation will be dismissed unless the 
complainant has made a prima facie showing that protected activity was a 
contributing factor in the adverse action alleged in the complaint.

[[Page 264]]

    (2) 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, in 
circumstances covered by the statutes, was perceived to have engaged or 
to be about to engage in protected activity);
    (ii) The respondent knew or suspected, actually or constructively, 
that the employee engaged in the protected activity (or, in 
circumstances covered by the statutes, perceived the employee to have 
engaged or to be about to engage in protected activity);
    (iii) The employee suffered an adverse action; and
    (iv) The circumstances were sufficient to raise the inference that 
the protected activity (or perception thereof) was a contributing factor 
in the adverse action.
    (3) 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 respondent knew or suspected that the employee 
engaged in protected activity (or, in circumstances covered by the 
statutes, perceived the employee to have engaged or to be about to 
engage in protected activity), and that the protected activity (or 
perception thereof) was a contributing factor in the adverse action. The 
burden may be satisfied, for example, if the complaint shows that the 
adverse action took place shortly after the protected activity, giving 
rise to the inference that it was a contributing factor in the adverse 
action. If the required showing has not been made, the complainant (or 
the complainant's legal counsel if complainant is represented by 
counsel) will be so notified and the investigation will not commence.
    (4) 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 or will be discontinued if the 
respondent, pursuant to the procedures provided in this paragraph, 
demonstrates by clear and convincing evidence that it would have taken 
the same adverse action in the absence of the complainant's protected 
activity.
    (5) If the respondent fails to make a timely response or fails to 
satisfy the burden set for in the prior paragraph, the Assistant 
Secretary will proceed with the investigation. The investigation will 
proceed whenever it is necessary or appropriate to confirm or verify the 
information provided by the respondent.
    (f) Prior to the issuance of findings and a preliminary order as 
provided for inSec. 1982.105, if the Assistant Secretary has 
reasonable cause, on the basis of information gathered under the 
procedures of this part, to believe that the respondent has violated 
NTSSA or FRSA and that preliminary reinstatement is warranted, the 
Assistant Secretary will again contact the respondent (or the 
respondent's legal counsel if respondent is represented by counsel) 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 respondent 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 respondent 
will present this evidence within 10 business days of the Assistant 
Secretary's notification pursuant to this paragraph, or as soon 
thereafter as the Assistant Secretary and the respondent can agree, if 
the interests of justice so require.



Sec.  1982.105  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

[[Page 265]]

complaint, written findings as to whether or not there is reasonable 
cause to believe that the respondent has retaliated against the 
complainant in violation of NTSSA or FRSA.
    (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 respondent 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; payment of compensatory damages, 
including, at the request of the complainant, the aggregate amount of 
all costs and expenses (including attorney's and expert witness fees) 
reasonably incurred. It may also include payment of punitive damages up 
to $250,000.
    (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 (and each 
party's legal counsel if the party is represented by counsel). The 
findings and, where appropriate, the preliminary order will inform the 
parties of the right to object to the findings and/or order and to 
request a hearing, and of the right of the respondent under NTSSA to 
request attorney's fees not exceeding $1,000 from the administrative law 
judge (``ALJ'') regardless of whether the respondent has filed 
objections, if the respondent alleges that the complaint was frivolous 
or brought in bad faith, and will also 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/or 
order.
    (c) The findings and the preliminary order will be effective 30 days 
after receipt by the respondent (or the respondent's legal counsel if 
the respondent is represented by counsel) or on the compliance date set 
forth in the preliminary order, whichever is later, unless an objection 
and/or a request for a hearing has been timely filed as provided at 
Sec.  1982.106. However, the portion of any preliminary order requiring 
reinstatement will be effective immediately upon the respondent's 
receipt of the findings and preliminary order, regardless of any 
objections to the findings and/or order.



                          Subpart B_Litigation



Sec.  1982.106  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 respondent alleging that the 
complaint was frivolous or brought in bad faith who seeks an award of 
attorney's fees up to $1,000 under NTSSA, 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) ofSec. 
1982.105. The objections, request for a hearing, and/or request for 
attorney's fees must in writing and state whether the objections are 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 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, the Assistant Secretary, and the Associate 
Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
    (b) If a timely objection is filed, all provisions of the 
preliminary order will be stayed, except for the portion requiring 
preliminary reinstatement, which will not be automatically stayed. The 
portion of the preliminary order requiring reinstatement will be 
effective immediately upon the respondent's receipt of the findings and

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preliminary order, regardless of any objections to the order. The 
respondent may file a motion with the Office of Administrative Judges 
for a stay of the Assistant Secretary's preliminary order of 
reinstatement. If no timely objection is filed with respect to either 
the findings or the preliminary order, the findings or preliminary order 
will become the final decision of the Secretary, not subject to judicial 
review.



Sec.  1982.107  Hearings.

    (a) Except as provided in this part, proceedings will be conducted 
in accordance with the rules of practice and procedure, and the rules of 
evidence, for administrative hearings before the Office of 
Administrative Law Judges, codified at 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 de novo and on the