§ 1926.951 Medical services and first aid.
(a) General. The employer shall provide medical services and first aid as required in § 1926.50.
(b) First-aid training. In addition to the requirements of § 1926.50, when employees are performing work on, or associated with, exposed lines or equipment energized at 50 volts or more, persons with first-aid training shall be available as follows:
(1) Field work. For field work involving two or more employees at a work location, at least two trained persons shall be available.
(2) Fixed work locations. For fixed work locations such as substations, the number of trained persons available shall be sufficient to ensure that each employee exposed to electric shock can be reached within 4 minutes by a trained person. However, where the existing number of employees is insufficient to meet this requirement (at a remote substation, for example), each employee at the work location shall be a trained employee.
§ 1926.952 Job briefing.
(a) Before each job—(1) Information provided by the employer. In assigning an employee or a group of employees to perform a job, the employer shall provide the employee in charge of the job with all available information that relates to the determination of existing characteristics and conditions required by § 1926.950(d).
(2) Briefing by the employee in charge. The employer shall ensure that the employee in charge conducts a job briefing that meets paragraphs (b), (c), and (d) of this section with the employees involved before they start each job.
(b) Subjects to be covered. The briefing shall cover at least the following subjects: Hazards associated with the job, work procedures involved, special precautions, energy-source controls, and personal protective equipment requirements.
(c) Number of briefings—(1) At least one before each day or shift. If the work or operations to be performed during the work day or shift are repetitive and similar, at least one job briefing shall be conducted before the start of the first job of each day or shift.
(2) Additional briefings. Additional job briefings shall be held if significant changes, which might affect the safety of the employees, occur during the course of the work.
(d) Extent of briefing—(1) Short discussion. A brief discussion is satisfactory if the work involved is routine and if the employees, by virtue of training and experience, can reasonably be expected to recognize and avoid the hazards involved in the job.
(2) Detailed discussion. A more extensive discussion shall be conducted:
(i) If the work is complicated or particularly hazardous, or
(ii) If the employee cannot be expected to recognize and avoid the hazards involved in the job.
Note to paragraph (d):
The briefing must address all the subjects listed in paragraph (b) of this section.
(e) Working alone. An employee working alone need not conduct a job briefing. However, the employer shall ensure that the tasks to be performed are planned as if a briefing were required.
§ 1926.953 Enclosed spaces.
(a) General. This section covers enclosed spaces that may be entered by employees. It does not apply to vented vaults if the employer makes a determination that the ventilation system is operating to protect employees before they enter the space. This section applies to routine entry into enclosed spaces. If, after the employer takes the precautions given in this section and in § 1926.965, the hazards remaining in the enclosed space endanger the life of an entrant or could interfere with an entrant's escape from the space, then entry into the enclosed space must meet the permit space entry requirements of subpart AA of this part. For routine entries where the hazards remaining in the enclosed space do not endanger the life of an entrant or interfere with an entrant's escape from the space, this section applies in lieu of the permit-space entry requirements contained in §§ 1926.1204 through 926.1211.
(b) Safe work practices. The employer shall ensure the use of safe work practices for entry into, and work in, enclosed spaces and for rescue of employees from such spaces.
(c) Training. Each employee who enters an enclosed space or who serves as an attendant shall be trained in the hazards of enclosed-space entry, in enclosed-space entry procedures, and in enclosed-space rescue procedures.
(d) Rescue equipment. Employers shall provide equipment to ensure the prompt and safe rescue of employees from the enclosed space.
(e) Evaluating potential hazards. Before any entrance cover to an enclosed space is removed, the employer shall determine whether it is safe to do so by checking for the presence of any atmospheric pressure or temperature differences and by evaluating whether there might be a hazardous atmosphere in the space. Any conditions making it unsafe to remove the cover shall be eliminated before the cover is removed.
Note to paragraph (e):
The determination called for in this paragraph may consist of a check of the conditions that might foreseeably be in the enclosed space. For example, the cover could be checked to see if it is hot and, if it is fastened in place, could be loosened gradually to release any residual pressure. An evaluation also needs to be made of whether conditions at the site could cause a hazardous atmosphere, such as an oxygen-deficient or flammable atmosphere, to develop within the space.
(f) Removing covers. When covers are removed from enclosed spaces, the opening shall be promptly guarded by a railing, temporary cover, or other barrier designed to prevent an accidental fall through the opening and to protect employees working in the space from objects entering the space.
(g) Hazardous atmosphere. Employees may not enter any enclosed space while it contains a hazardous atmosphere, unless the entry conforms to the confined spaces in construction standard in subpart AA of this part.
(h) Attendants. While work is being performed in the enclosed space, an attendant with first-aid training shall be immediately available outside the enclosed space to provide assistance if a hazard exists because of traffic patterns in the area of the opening used for entry. The attendant is not precluded from performing other duties outside the enclosed space if these duties do not distract the attendant from: Monitoring employees within the space or ensuring that it is safe for employees to enter and exit the space.
Note to paragraph (h):
See § 1926.965 for additional requirements on attendants for work in manholes and vaults.
(i) Calibration of test instruments. Test instruments used to monitor atmospheres in enclosed spaces shall be kept in calibration and shall have a minimum accuracy of ±10 percent.
(j) Testing for oxygen deficiency. Before an employee enters an enclosed space, the atmosphere in the enclosed space shall be tested for oxygen deficiency with a direct-reading meter or similar instrument, capable of collection and immediate analysis of data samples without the need for off-site evaluation. If continuous forced-air ventilation is provided, testing is not required provided that the procedures used ensure that employees are not exposed to the hazards posed by oxygen deficiency.
(k) Testing for flammable gases and vapors. Before an employee enters an enclosed space, the internal atmosphere shall be tested for flammable gases and vapors with a direct-reading meter or similar instrument capable of collection and immediate analysis of data samples without the need for off-site evaluation. This test shall be performed after the oxygen testing and ventilation required by paragraph (j) of this section demonstrate that there is sufficient oxygen to ensure the accuracy of the test for flammability.
(l) Ventilation, and monitoring for flammable gases or vapors. If flammable gases or vapors are detected or if an oxygen deficiency is found, forced-air ventilation shall be used to maintain oxygen at a safe level and to prevent a hazardous concentration of flammable gases and vapors from accumulating. A continuous monitoring program to ensure that no increase in flammable gas or vapor concentration above safe levels occurs may be followed in lieu of ventilation if flammable gases or vapors are initially detected at safe levels.
Note to paragraph (l):
See the definition of “hazardous atmosphere” for guidance in determining whether a specific concentration of a substance is hazardous.
(m) Specific ventilation requirements. If continuous forced-air ventilation is used, it shall begin before entry is made and shall be maintained long enough for the employer to be able to demonstrate that a safe atmosphere exists before employees are allowed to enter the work area. The forced-air ventilation shall be so directed as to ventilate the immediate area where employees are present within the enclosed space and shall continue until all employees leave the enclosed space.
(n) Air supply. The air supply for the continuous forced-air ventilation shall be from a clean source and may not increase the hazards in the enclosed space.
(o) Open flames. If open flames are used in enclosed spaces, a test for flammable gases and vapors shall be made immediately before the open flame device is used and at least once per hour while the device is used in the space. Testing shall be conducted more frequently if conditions present in the enclosed space indicate that once per hour is insufficient to detect hazardous accumulations of flammable gases or vapors.
Note to paragraph (o):
See the definition of “hazardous atmosphere” for guidance in determining whether a specific concentration of a substance is hazardous.
Note to § 1926.953:
Entries into enclosed spaces conducted in accordance with the permit space entry requirements of subpart AA of this part are considered as complying with this section.
[44 FR 8577, Feb. 9, 1979; 44 FR 20940, Apr. 6, 1979, as amended at 80 FR 25518, May 4, 2015]
§ 1926.954 Personal protective equipment.
(a) General. Personal protective equipment shall meet the requirements of subpart E of this part.
Note to paragraph (a):
Paragraph (d) of § 1926.95 sets employer payment obligations for the personal protective equipment required by this subpart, including, but not limited to, the fall protection equipment required by paragraph (b) of this section, the electrical protective equipment required by § 1926.960(c), and the flame-resistant and arc-rated clothing and other protective equipment required by § 1926.960(g).
(b) Fall protection—(1) Personal fall arrest systems. (i) Personal fall arrest systems shall meet the requirements of subpart M of this part.
(ii) Personal fall arrest equipment used by employees who are exposed to hazards from flames or electric arcs, as determined by the employer under § 1926.960(g)(1), shall be capable of passing a drop test equivalent to that required by paragraph (b)(2)(xii) of this section after exposure to an electric arc with a heat energy of 40±5 cal/cm 2.
(2) Work-positioning equipment. Body belts and positioning straps for work-positioning equipment shall meet the following requirements:
(i) Hardware for body belts and positioning straps shall meet the following requirements:
(A) Hardware shall be made of drop-forged steel, pressed steel, formed steel, or equivalent material.
(B) Hardware shall have a corrosion-resistant finish.
(C) Hardware surfaces shall be smooth and free of sharp edges.
(ii) Buckles shall be capable of withstanding an 8.9-kilonewton (2,000-pound-force) tension test with a maximum permanent deformation no greater than 0.4 millimeters (0.0156 inches).
(iii) D rings shall be capable of withstanding a 22-kilonewton (5,000-pound-force) tensile test without cracking or breaking.
(iv) Snaphooks shall be capable of withstanding a 22-kilonewton (5,000-pound-force) tension test without failure.
Note to paragraph (b)(2)(iv):
Distortion of the snaphook sufficient to release the keeper is considered to be tensile failure of a snaphook.
(v) Top grain leather or leather substitute may be used in the manufacture of body belts and positioning straps; however, leather and leather substitutes may not be used alone as a load-bearing component of the assembly.
(vi) Plied fabric used in positioning straps and in load-bearing parts of body belts shall be constructed in such a way that no raw edges are exposed and the plies do not separate.
(vii) Positioning straps shall be capable of withstanding the following tests:
(A) A dielectric test of 819.7 volts, AC, per centimeter (25,000 volts per foot) for 3 minutes without visible deterioration;
(B) A leakage test of 98.4 volts, AC, per centimeter (3,000 volts per foot) with a leakage current of no more than 1 mA;
Note to paragraphs (b)(2)(vii)(A) and (b)(2)(vii)(B):
Positioning straps that pass direct-current tests at equivalent voltages are considered as meeting this requirement.
(C) Tension tests of 20 kilonewtons (4,500 pounds-force) for sections free of buckle holes and of 15 kilonewtons (3,500 pounds-force) for sections with buckle holes;
(D) A buckle-tear test with a load of 4.4 kilonewtons (1,000 pounds-force); and
(E) A flammability test in accordance with Table V-1.
Table V-1—Flammability Test
Test method | Criteria for passing the test
Vertically suspend a 500-mm (19.7-inch) length of strapping supporting a 100-kg (220.5-lb) weight | Any flames on the positioning strap shall self extinguish.
Use a butane or propane burner with a 76-mm (3-inch) flame | The positioning strap shall continue to support the 100-kg (220.5-lb) mass.
Direct the flame to an edge of the strapping at a distance of 25 mm (1 inch).
Remove the flame after 5 seconds.
Wait for any flames on the positioning strap to stop burning.
(viii) The cushion part of the body belt shall contain no exposed rivets on the inside and shall be at least 76 millimeters (3 inches) in width.
(ix) Tool loops shall be situated on the body of a body belt so that the 100 millimeters (4 inches) of the body belt that is in the center of the back, measuring from D ring to D ring, is free of tool loops and any other attachments.
(x) Copper, steel, or equivalent liners shall be used around the bars of D rings to prevent wear between these members and the leather or fabric enclosing them.
(xi) Snaphooks shall be of the locking type meeting the following requirements:
(A) The locking mechanism shall first be released, or a destructive force shall be placed on the keeper, before the keeper will open.
(B) A force in the range of 6.7 N (1.5 lbf) to 17.8 N (4 lbf) shall be required to release the locking mechanism.
(C) With the locking mechanism released and with a force applied on the keeper against the face of the nose, the keeper may not begin to open with a force of 11.2 N (2.5 lbf) or less and shall begin to open with a maximum force of 17.8 N (4 lbf).
(xii) Body belts and positioning straps shall be capable of withstanding a drop test as follows:
(A) The test mass shall be rigidly constructed of steel or equivalent material with a mass of 100 kg (220.5 lbm). For work-positioning equipment used by employees weighing more than 140 kg (310 lbm) fully equipped, the test mass shall be increased proportionately (that is, the test mass must equal the mass of the equipped worker divided by 1.4).
(B) For body belts, the body belt shall be fitted snugly around the test mass and shall be attached to the test-structure anchorage point by means of a wire rope.
(C) For positioning straps, the strap shall be adjusted to its shortest length possible to accommodate the test and connected to the test-structure anchorage point at one end and to the test mass on the other end.
(D) The test mass shall be dropped an unobstructed distance of 1 meter (39.4 inches) from a supporting structure that will sustain minimal deflection during the test.
(E) Body belts shall successfully arrest the fall of the test mass and shall be capable of supporting the mass after the test.
(F) Positioning straps shall successfully arrest the fall of the test mass without breaking, and the arrest force may not exceed 17.8 kilonewtons (4,000 pounds-force). Additionally, snaphooks on positioning straps may not distort to such an extent that the keeper would release.
Note to paragraph (b)(2):
When used by employees weighing no more than 140 kg (310 lbm) fully equipped, body belts and positioning straps that conform to American Society of Testing and Materials Standard Specifications for Personal Climbing Equipment, ASTM F887-12 e1, are deemed to be in compliance with paragraph (b)(2) of this section.
(3) Care and use of personal fall protection equipment. (i) Work-positioning equipment shall be inspected before use each day to determine that the equipment is in safe working condition. Work-positioning equipment that is not in safe working condition may not be used.
Note to paragraph (b)(3)(i):
Appendix F to this subpart contains guidelines for inspecting work-positioning equipment.
(ii) Personal fall arrest systems shall be used in accordance with § 1926.502(d).
Note to paragraph (b)(3)(ii):
Fall protection equipment rigged to arrest falls is considered a fall arrest system and must meet the applicable requirements for the design and use of those systems. Fall protection equipment rigged for work positioning is considered work-positioning equipment and must meet the applicable requirements for the design and use of that equipment.
(iii) The employer shall ensure that employees use fall protection systems as follows:
(A) Each employee working from an aerial lift shall use a fall restraint system or a personal fall arrest system. Paragraph (b)(2)(v) of § 1926.453 does not apply.
(B) Except as provided in paragraph (b)(3)(iii)(C) of this section, each employee in elevated locations more than 1.2 meters (4 feet) above the ground on poles, towers, or similar structures shall use a personal fall arrest system, work-positioning equipment, or fall restraint system, as appropriate, if the employer has not provided other fall protection meeting subpart M of this part.
(C) Until March 31, 2015, a qualified employee climbing or changing location on poles, towers, or similar structures need not use fall protection equipment, unless conditions, such as, but not limited to, ice, high winds, the design of the structure (for example, no provision for holding on with hands), or the presence of contaminants on the structure, could cause the employee to lose his or her grip or footing. On and after April 1, 2015, each qualified employee climbing or changing location on poles, towers, or similar structures must use fall protection equipment unless the employer can demonstrate that climbing or changing location with fall protection is infeasible or creates a greater hazard than climbing or changing location without it.
Note 1 to paragraphs (b)(3)(iii)(B) and (b)(3)(iii)(C):
These paragraphs apply to structures that support overhead electric power transmission and distribution lines and equipment. They do not apply to portions of buildings, such as loading docks, or to electric equipment, such as transformers and capacitors. Subpart M of this part contains the duty to provide fall protection associated with walking and working surfaces.
Note 2 to paragraphs (b)(3)(iii)(B) and (b)(3)(iii)(C):
Until the employer ensures that employees are proficient in climbing and the use of fall protection under § 1926.950(b)(7), the employees are not considered “qualified employees” for the purposes of paragraphs (b)(3)(iii)(B) and (b)(3)(iii)(C) of this section. These paragraphs require unqualified employees (including trainees) to use fall protection any time they are more than 1.2 meters (4 feet) above the ground.
(iv) On and after April 1, 2015, work-positioning systems shall be rigged so that an employee can free fall no more than 0.6 meters (2 feet).
(v) Anchorages for work-positioning equipment shall be capable of supporting at least twice the potential impact load of an employee's fall, or 13.3 kilonewtons (3,000 pounds-force), whichever is greater.
Note to paragraph (b)(3)(v):
Wood-pole fall-restriction devices meeting American Society of Testing and Materials Standard Specifications for Personal Climbing Equipment, ASTM F887-12 e1, are deemed to meet the anchorage-strength requirement when they are used in accordance with manufacturers' instructions.
(vi) Unless the snaphook is a locking type and designed specifically for the following connections, snaphooks on work-positioning equipment may not be engaged:
(A) Directly to webbing, rope, or wire rope;
(B) To each other;
(C) To a D ring to which another snaphook or other connector is attached;
(D) To a horizontal lifeline; or
(E) To any object that is incompatibly shaped or dimensioned in relation to the snaphook such that accidental disengagement could occur should the connected object sufficiently depress the snaphook keeper to allow release of the object.
§ 1926.955 Portable ladders and platforms.
(a) General. Requirements for portable ladders contained in subpart X of this part apply in addition to the requirements of this section, except as specifically noted in paragraph (b) of this section.
(b) Special ladders and platforms. Portable ladders used on structures or conductors in conjunction with overhead line work need not meet § 1926.1053(b)(5)(i) and (b)(12). Portable ladders and platforms used on structures or conductors in conjunction with overhead line work shall meet the following requirements:
(1) Design load. In the configurations in which they are used, portable platforms shall be capable of supporting without failure at least 2.5 times the maximum intended load.
(2) Maximum load. Portable ladders and platforms may not be loaded in excess of the working loads for which they are designed.
(3) Securing in place. Portable ladders and platforms shall be secured to prevent them from becoming dislodged.
(4) Intended use. Portable ladders and platforms may be used only in applications for which they are designed.
(c) Conductive ladders. Portable metal ladders and other portable conductive ladders may not be used near exposed energized lines or equipment. However, in specialized high-voltage work, conductive ladders shall be used when the employer demonstrates that nonconductive ladders would present a greater hazard to employees than conductive ladders.
§ 1926.956 Hand and portable power equipment.
(a) General. Paragraph (b) of this section applies to electric equipment connected by cord and plug. Paragraph (c) of this section applies to portable and vehicle-mounted generators used to supply cord- and plug-connected equipment. Paragraph (d) of this section applies to hydraulic and pneumatic tools.
(b) Cord- and plug-connected equipment. Cord- and plug-connected equipment not covered by subpart K of this part shall comply with one of the following instead of § 1926.302(a)(1):
(1) The equipment shall be equipped with a cord containing an equipment grounding conductor connected to the equipment frame and to a means for grounding the other end of the conductor (however, this option may not be used where the introduction of the ground into the work environment increases the hazard to an employee); or
(2) The equipment shall be of the double-insulated type conforming to subpart K of this part; or
(3) The equipment shall be connected to the power supply through an isolating transformer with an ungrounded secondary of not more than 50 volts.
(c) Portable and vehicle-mounted generators. Portable and vehicle-mounted generators used to supply cord- and plug-connected equipment covered by paragraph (b) of this section shall meet the following requirements:
(1) Equipment to be supplied. The generator may only supply equipment located on the generator or the vehicle and cord- and plug-connected equipment through receptacles mounted on the generator or the vehicle.
(2) Equipment grounding. The non-current-carrying metal parts of equipment and the equipment grounding conductor terminals of the receptacles shall be bonded to the generator frame.
(3) Bonding the frame. For vehicle-mounted generators, the frame of the generator shall be bonded to the vehicle frame.
(4) Bonding the neutral conductor. Any neutral conductor shall be bonded to the generator frame.
(d) Hydraulic and pneumatic tools—(1) Hydraulic fluid in insulating tools. Paragraph (d)(1) of § 1926.302 does not apply to hydraulic fluid used in insulating sections of hydraulic tools.
(2) Operating pressure. Safe operating pressures for hydraulic and pneumatic tools, hoses, valves, pipes, filters, and fittings may not be exceeded.
Note to paragraph (d)(2):
If any hazardous defects are present, no operating pressure is safe, and the hydraulic or pneumatic equipment involved may not be used. In the absence of defects, the maximum rated operating pressure is the maximum safe pressure.
(3) Work near energized parts. A hydraulic or pneumatic tool used where it may contact exposed energized parts shall be designed and maintained for such use.
(4) Protection against vacuum formation. The hydraulic system supplying a hydraulic tool used where it may contact exposed live parts shall provide protection against loss of insulating value, for the voltage involved, due to the formation of a partial vacuum in the hydraulic line.
Note to paragraph (d)(4):
Use of hydraulic lines that do not have check valves and that have a separation of more than 10.7 meters (35 feet) between the oil reservoir and the upper end of the hydraulic system promotes the formation of a partial vacuum.
(5) Protection against the accumulation of moisture. A pneumatic tool used on energized electric lines or equipment, or used where it may contact exposed live parts, shall provide protection against the accumulation of moisture in the air supply.
(6) Breaking connections. Pressure shall be released before connections are broken, unless quick-acting, self-closing connectors are used.
(7) Leaks. Employers must ensure that employees do not use any part of their bodies to locate, or attempt to stop, a hydraulic leak.
(8) Hoses. Hoses may not be kinked.
§ 1926.957 Live-line tools.
(a) Design of tools. Live-line tool rods, tubes, and poles shall be designed and constructed to withstand the following minimum tests:
(1) Fiberglass-reinforced plastic. If the tool is made of fiberglass-reinforced plastic (FRP), it shall withstand 328,100 volts per meter (100,000 volts per foot) of length for 5 minutes, or
Note to paragraph (a)(1):
Live-line tools using rod and tube that meet ASTM F711-02 (2007), Standard Specification for Fiberglass-Reinforced Plastic (FRP) Rod and Tube Used in Live Line Tools, are deemed to comply with paragraph (a)(1) of this section.
(2) Wood. If the tool is made of wood, it shall withstand 246,100 volts per meter (75,000 volts per foot) of length for 3 minutes, or
(3) Equivalent tests. The tool shall withstand other tests that the employer can demonstrate are equivalent.
(b) Condition of tools—(1) Daily inspection. Each live-line tool shall be wiped clean and visually inspected for defects before use each day.
(2) Defects. If any defect or contamination that could adversely affect the insulating qualities or mechanical integrity of the live-line tool is present after wiping, the tool shall be removed from service and examined and tested according to paragraph (b)(3) of this section before being returned to service.
(3) Biennial inspection and testing. Live-line tools used for primary employee protection shall be removed from service every 2 years, and whenever required under paragraph (b)(2) of this section, for examination, cleaning, repair, and testing as follows:
(i) Each tool shall be thoroughly examined for defects.
(ii) If a defect or contamination that could adversely affect the insulating qualities or mechanical integrity of the live-line tool is found, the tool shall be repaired and refinished or shall be permanently removed from service. If no such defect or contamination is found, the tool shall be cleaned and waxed.
(iii) The tool shall be tested in accordance with paragraphs (b)(3)(iv) and (b)(3)(v) of this section under the following conditions:
(A) After the tool has been repaired or refinished; and
(B) After the examination if repair or refinishing is not performed, unless the tool is made of FRP rod or foam-filled FRP tube and the employer can demonstrate that the tool has no defects that could cause it to fail during use.
(iv) The test method used shall be designed to verify the tool's integrity along its entire working length and, if the tool is made of fiberglass-reinforced plastic, its integrity under wet conditions.
(v) The voltage applied during the tests shall be as follows:
(A) 246,100 volts per meter (75,000 volts per foot) of length for 1 minute if the tool is made of fiberglass, or
(B) 164,000 volts per meter (50,000 volts per foot) of length for 1 minute if the tool is made of wood, or
(C) Other tests that the employer can demonstrate are equivalent.
Note to paragraph (b):
Guidelines for the examination, cleaning, repairing, and in-service testing of live-line tools are specified in the Institute of Electrical and Electronics Engineers' IEEE Guide for Maintenance Methods on Energized Power Lines, IEEE Std 516-2009.
§ 1926.958 Materials handling and storage.
(a) General. Materials handling and storage shall comply with applicable material-handling and material-storage requirements in this part, including those in subparts N and CC of this part.
(b) Materials storage near energized lines or equipment—(1) Unrestricted areas. In areas to which access is not restricted to qualified persons only, materials or equipment may not be stored closer to energized lines or exposed energized parts of equipment than the following distances, plus a distance that provides for the maximum sag and side swing of all conductors and for the height and movement of material-handling equipment:
(i) For lines and equipment energized at 50 kilovolts or less, the distance is 3.05 meters (10 feet).
(ii) For lines and equipment energized at more than 50 kilovolts, the distance is 3.05 meters (10 feet) plus 0.10 meter (4 inches) for every 10 kilovolts over 50 kilovolts.
(2) Restricted areas. In areas restricted to qualified employees, materials may not be stored within the working space about energized lines or equipment.
Note to paragraph (b)(2):
Paragraph (b) of § 1926.966 specifies the size of the working space.
§ 1926.959 Mechanical equipment.
(a) General requirements—(1) Other applicable requirements. Mechanical equipment shall be operated in accordance with applicable requirements in this part, including subparts N, O, and CC of this part, except that § 1926.600(a)(6) does not apply to operations performed by qualified employees.
(2) Inspection before use. The critical safety components of mechanical elevating and rotating equipment shall receive a thorough visual inspection before use on each shift.
Note to paragraph (a)(2):
Critical safety components of mechanical elevating and rotating equipment are components for which failure would result in free fall or free rotation of the boom.
(3) Operator. The operator of an electric line truck may not leave his or her position at the controls while a load is suspended, unless the employer can demonstrate that no employee (including the operator) is endangered.
(b) Outriggers—(1) Extend outriggers. Mobile equipment, if provided with outriggers, shall be operated with the outriggers extended and firmly set, except as provided in paragraph (b)(3) of this section.
(2) Clear view. Outriggers may not be extended or retracted outside of the clear view of the operator unless all employees are outside the range of possible equipment motion.
(3) Operation without outriggers. If the work area or the terrain precludes the use of outriggers, the equipment may be operated only within its maximum load ratings specified by the equipment manufacturer for the particular configuration of the equipment without outriggers.
(c) Applied loads. Mechanical equipment used to lift or move lines or other material shall be used within its maximum load rating and other design limitations for the conditions under which the mechanical equipment is being used.
(d) Operations near energized lines or equipment—(1) Minimum approach distance. Mechanical equipment shall be operated so that the minimum approach distances, established by the employer under § 1926.960(c)(1)(i), are maintained from exposed energized lines and equipment. However, the insulated portion of an aerial lift operated by a qualified employee in the lift is exempt from this requirement if the applicable minimum approach distance is maintained between the uninsulated portions of the aerial lift and exposed objects having a different electrical potential.
(2) Observer. A designated employee other than the equipment operator shall observe the approach distance to exposed lines and equipment and provide timely warnings before the minimum approach distance required by paragraph (d)(1) of this section is reached, unless the employer can demonstrate that the operator can accurately determine that the minimum approach distance is being maintained.
(3) Extra precautions. If, during operation of the mechanical equipment, that equipment could become energized, the operation also shall comply with at least one of paragraphs (d)(3)(i) through (d)(3)(iii) of this section.
(i) The energized lines or equipment exposed to contact shall be covered with insulating protective material that will withstand the type of contact that could be made during the operation.
(ii) The mechanical equipment shall be insulated for the voltage involved. The mechanical equipment shall be positioned so that its uninsulated portions cannot approach the energized lines or equipment any closer than the minimum approach distances, established by the employer under § 1926.960(c)(1)(i).
(iii) Each employee shall be protected from hazards that could arise from mechanical equipment contact with energized lines or equipment. The measures used shall ensure that employees will not be exposed to hazardous differences in electric potential. Unless the employer can demonstrate that the methods in use protect each employee from the hazards that could arise if the mechanical equipment contacts the energized line or equipment, the measures used shall include all of the following techniques:
(A) Using the best available ground to minimize the time the lines or electric equipment remain energized,
(B) Bonding mechanical equipment together to minimize potential differences,
(C) Providing ground mats to extend areas of equipotential, and
(D) Employing insulating protective equipment or barricades to guard against any remaining hazardous electrical potential differences.
Note to paragraph (d)(3)(iii):
Appendix C to this subpart contains information on hazardous step and touch potentials and on methods of protecting employees from hazards resulting from such potentials.
§ 1926.960 Working on or near exposed energized parts.
(a) Application. This section applies to work on exposed live parts, or near enough to them to expose the employee to any hazard they present.
(b) General—(1) Qualified employees only. (i) Only qualified employees may work on or with exposed energized lines or parts of equipment.
(ii) Only qualified employees may work in areas containing unguarded, uninsulated energized lines or parts of equipment operating at 50 volts or more.
(2) Treat as energized. Electric lines and equipment shall be considered and treated as energized unless they have been deenergized in accordance with § 1926.961.
(3) At least two employees. (i) Except as provided in paragraph (b)(3)(ii) of this section, at least two employees shall be present while any employees perform the following types of work:
(A) Installation, removal, or repair of lines energized at more than 600 volts,
(B) Installation, removal, or repair of deenergized lines if an employee is exposed to contact with other parts energized at more than 600 volts,
(C) Installation, removal, or repair of equipment, such as transformers, capacitors, and regulators, if an employee is exposed to contact with parts energized at more than 600 volts,
(D) Work involving the use of mechanical equipment, other than insulated aerial lifts, near parts energized at more than 600 volts, and
(E) Other work that exposes an employee to electrical hazards greater than, or equal to, the electrical hazards posed by operations listed specifically in paragraphs (b)(3)(i)(A) through (b)(3)(i)(D) of this section.
(ii) Paragraph (b)(3)(i) of this section does not apply to the following operations:
(A) Routine circuit switching, when the employer can demonstrate that conditions at the site allow safe performance of this work,
(B) Work performed with live-line tools when the position of the employee is such that he or she is neither within reach of, nor otherwise exposed to contact with, energized parts, and
(C) Emergency repairs to the extent necessary to safeguard the general public.
(c) Live work—(1) Minimum approach distances. (i) The employer shall establish minimum approach distances no less than the distances computed by Table V-2 for ac systems or Table V-7 for dc systems.
(ii) No later than April 1, 2015, for voltages over 72.5 kilovolts, the employer shall determine the maximum anticipated per-unit transient overvoltage, phase-to-ground, through an engineering analysis or assume a maximum anticipated per-unit transient overvoltage, phase-to-ground, in accordance with Table V-8. When the employer uses portable protective gaps to control the maximum transient overvoltage, the value of the maximum anticipated per-unit transient overvoltage, phase-to-ground, must provide for five standard deviations between the statistical sparkover voltage of the gap and the statistical withstand voltage corresponding to the electrical component of the minimum approach distance. The employer shall make any engineering analysis conducted to determine maximum anticipated per-unit transient overvoltage available upon request to employees and to the Assistant Secretary or designee for examination and copying.
Note to paragraph (c)(1)(ii):
See appendix B to this subpart for information on how to calculate the maximum anticipated per-unit transient overvoltage, phase-to-ground, when the employer uses portable protective gaps to reduce maximum transient overvoltages.
(iii) The employer shall ensure that no employee approaches or takes any conductive object closer to exposed energized parts than the employer's established minimum approach distance, unless:
(A) The employee is insulated from the energized part (rubber insulating gloves or rubber insulating gloves and sleeves worn in accordance with paragraph (c)(2) of this section constitutes insulation of the employee from the energized part upon which the employee is working provided that the employee has control of the part in a manner sufficient to prevent exposure to uninsulated portions of the employee's body), or
(B) The energized part is insulated from the employee and from any other conductive object at a different potential, or
(C) The employee is insulated from any other exposed conductive object in accordance with the requirements for live-line barehand work in § 1926.964(c).
(2) Type of insulation. (i) When an employee uses rubber insulating gloves as insulation from energized parts (under paragraph (c)(1)(iii)(A) of this section), the employer shall ensure that the employee also uses rubber insulating sleeves. However, an employee need not use rubber insulating sleeves if:
(A) Exposed energized parts on which the employee is not working are insulated from the employee; and
(B) When installing insulation for purposes of paragraph (c)(2)(i)(A) of this section, the employee installs the insulation from a position that does not expose his or her upper arm to contact with other energized parts.
(ii) When an employee uses rubber insulating gloves or rubber insulating gloves and sleeves as insulation from energized parts (under paragraph (c)(1)(iii)(A) of this section), the employer shall ensure that the employee:
(A) Puts on the rubber insulating gloves and sleeves in a position where he or she cannot reach into the minimum approach distance, established by the employer under paragraph (c)(1) of this section; and
(B) Does not remove the rubber insulating gloves and sleeves until he or she is in a position where he or she cannot reach into the minimum approach distance, established by the employer under paragraph (c)(1) of this section.
(d) Working position—(1) Working from below. The employer shall ensure that each employee, to the extent that other safety-related conditions at the worksite permit, works in a position from which a slip or shock will not bring the employee's body into contact with exposed, uninsulated parts energized at a potential different from the employee's.
(2) Requirements for working without electrical protective equipment. When an employee performs work near exposed parts energized at more than 600 volts, but not more than 72.5 kilovolts, and is not wearing rubber insulating gloves, being protected by insulating equipment covering the energized parts, performing work using live-line tools, or performing live-line barehand work under § 1926.964(c), the employee shall work from a position where he or she cannot reach into the minimum approach distance, established by the employer under paragraph (c)(1) of this section.
(e) Making connections. The employer shall ensure that employees make connections as follows:
(1) Connecting. In connecting deenergized equipment or lines to an energized circuit by means of a conducting wire or device, an employee shall first attach the wire to the deenergized part;
(2) Disconnecting. When disconnecting equipment or lines from an energized circuit by means of a conducting wire or device, an employee shall remove the source end first; and
(3) Loose conductors. When lines or equipment are connected to or disconnected from energized circuits, an employee shall keep loose conductors away from exposed energized parts.
(f) Conductive articles. When an employee performs work within reaching distance of exposed energized parts of equipment, the employer shall ensure that the employee removes or renders nonconductive all exposed conductive articles, such as keychains or watch chains, rings, or wrist watches or bands, unless such articles do not increase the hazards associated with contact with the energized parts.
(g) Protection from flames and electric arcs—(1) Hazard assessment. The employer shall assess the workplace to identify employees exposed to hazards from flames or from electric arcs.
(2) Estimate of available heat energy. For each employee exposed to hazards from electric arcs, the employer shall make a reasonable estimate of the incident heat energy to which the employee would be exposed.
Note 1 to paragraph (g)(2):
Appendix E to this subpart provides guidance on estimating available heat energy. The Occupational Safety and Health Administration will deem employers following the guidance in appendix E to this subpart to be in compliance with paragraph (g)(2) of this section. An employer may choose a method of calculating incident heat energy not included in appendix E to this subpart if the chosen method reasonably predicts the incident energy to which the employee would be exposed.
Note 2 to paragraph (g)(2):
This paragraph does not require the employer to estimate the incident heat energy exposure for every job task performed by each employee. The employer may make broad estimates that cover multiple system areas provided the employer uses reasonable assumptions about the energy-exposure distribution throughout the system and provided the estimates represent the maximum employee exposure for those areas. For example, the employer could estimate the heat energy just outside a substation feeding a radial distribution system and use that estimate for all jobs performed on that radial system.
(3) Prohibited clothing. The employer shall ensure that each employee who is exposed to hazards from flames or electric arcs does not wear clothing that could melt onto his or her skin or that could ignite and continue to burn when exposed to flames or the heat energy estimated under paragraph (g)(2) of this section.
Note to paragraph (g)(3):
This paragraph prohibits clothing made from acetate, nylon, polyester, rayon and polypropylene, either alone or in blends, unless the employer demonstrates that the fabric has been treated to withstand the conditions that may be encountered by the employee or that the employee wears the clothing in such a manner as to eliminate the hazard involved.
(4) Flame-resistant clothing. The employer shall ensure that the outer layer of clothing worn by an employee, except for clothing not required to be arc rated under paragraphs (g)(5)(i) through (g)(5)(v) of this section, is flame resistant under any of the following conditions:
(i) The employee is exposed to contact with energized circuit parts operating at more than 600 volts,
(ii) An electric arc could ignite flammable material in the work area that, in turn, could ignite the employee's clothing,
(iii) Molten metal or electric arcs from faulted conductors in the work area could ignite the employee's clothing, or
Note to paragraph (g)(4)(iii):
This paragraph does not apply to conductors that are capable of carrying, without failure, the maximum available fault current for the time the circuit protective devices take to interrupt the fault.
(iv) The incident heat energy estimated under paragraph (g)(2) of this section exceeds 2.0 cal/cm 2.
(5) Arc rating. The employer shall ensure that each employee exposed to hazards from electric arcs wears protective clothing and other protective equipment with an arc rating greater than or equal to the heat energy estimated under paragraph (g)(2) of this section whenever that estimate exceeds 2.0 cal/cm 2. This protective equipment shall cover the employee's entire body, except as follows:
(i) Arc-rated protection is not necessary for the employee's hands when the employee is wearing rubber insulating gloves with protectors or, if the estimated incident energy is no more than 14 cal/cm 2, heavy-duty leather work gloves with a weight of at least 407 gm/m 2 (12 oz/yd 2),
(ii) Arc-rated protection is not necessary for the employee's feet when the employee is wearing heavy-duty work shoes or boots,
(iii) Arc-rated protection is not necessary for the employee's head when the employee is wearing head protection meeting § 1926.100(b)(2) if the estimated incident energy is less than 9 cal/cm 2 for exposures involving single-phase arcs in open air or 5 cal/cm 2 for other exposures,
(iv) The protection for the employee's head may consist of head protection meeting § 1926.100(b)(2) and a faceshield with a minimum arc rating of 8 cal/cm 2 if the estimated incident-energy exposure is less than 13 cal/cm 2 for exposures involving single-phase arcs in open air or 9 cal/cm 2 for other exposures, and
(v) For exposures involving single-phase arcs in open air, the arc rating for the employee's head and face protection may be 4 cal/cm 2 less than the estimated incident energy.
Note to paragraph (g):
See appendix E to this subpart for further information on the selection of appropriate protection.
(6) Dates. (i) The obligation in paragraph (g)(2) of this section for the employer to make reasonable estimates of incident energy commences January 1, 2015.
(ii) The obligation in paragraph (g)(4)(iv) of this section for the employer to ensure that the outer layer of clothing worn by an employee is flame-resistant when the estimated incident heat energy exceeds 2.0 cal/cm 2 commences April 1, 2015.
(iii) The obligation in paragraph (g)(5) of this section for the employer to ensure that each employee exposed to hazards from electric arcs wears the required arc-rated protective equipment commences April 1, 2015.
(h) Fuse handling. When an employee must install or remove fuses with one or both terminals energized at more than 300 volts, or with exposed parts energized at more than 50 volts, the employer shall ensure that the employee uses tools or gloves rated for the voltage. When an employee installs or removes expulsion-type fuses with one or both terminals energized at more than 300 volts, the employer shall ensure that the employee wears eye protection meeting the requirements of subpart E of this part, uses a tool rated for the voltage, and is clear of the exhaust path of the fuse barrel.
(i) Covered (noninsulated) conductors. The requirements of this section that pertain to the hazards of exposed live parts also apply when an employee performs work in proximity to covered (noninsulated) wires.
(j) Non-current-carrying metal parts. Non-current-carrying metal parts of equipment or devices, such as transformer cases and circuit-breaker housings, shall be treated as energized at the highest voltage to which these parts are exposed, unless the employer inspects the installation and determines that these parts are grounded before employees begin performing the work.
(k) Opening and closing circuits under load. (1) The employer shall ensure that devices used by employees to open circuits under load conditions are designed to interrupt the current involved.
(2) The employer shall ensure that devices used by employees to close circuits under load conditions are designed to safely carry the current involved.
Table V-3—Electrical Component of the Minimum Approach Distance (D; in Meters) at 5.1 to 72.5 kV
Nominal voltage (kV) phase-to-phase | Phase-to-ground exposure | Phase-to-phase exposure
D (m) | D (m)
5.1 to 15.0 | 0.04 | 0.07
15.1 to 36.0 | 0.16 | 0.28
36.1 to 46.0 | 0.23 | 0.37
46.1 to 72.5 | 0.39 | 0.59
Table V-4—Altitude Correction Factor
Altitude above sea level (m) | A
0 to 900 | 1.00
901 to 1,200 | 1.02
1,201 to 1,500 | 1.05
1,501 to 1,800 | 1.08
1,801 to 2,100 | 1.11
2,101 to 2,400 | 1.14
2,401 to 2,700 | 1.17
2,701 to 3,000 | 1.20
3,001 to 3,600 | 1.25
3,601 to 4,200 | 1.30
4,201 to 4,800 | 1.35
4,801 to 5,400 | 1.39
5,401 to 6,000 | 1.44
Table V-5—Alternative Minimum Approach Distances for Voltages of 72.5 kV and Less 1
Nominal voltage (kV) phase-to-phase | Distance
Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
0.050 0.300 2 | Avoid contact | Avoid contact
0.301 to 0.750 2 | 0.33 | 1.09 | 0.33 | 1.09
0.751 to 5.0 | 0.63 | 2.07 | 0.63 | 2.07
5.1 to 15.0 | 0.65 | 2.14 | 0.68 | 2.24
15.1 to 36.0 | 0.77 | 2.53 | 0.89 | 2.92
36.1 to 46.0 | 0.84 | 2.76 | 0.98 | 3.22
46.1 to 72.5 | 1.00 | 3.29 | 1.20 | 3.94
1 Employers may use the minimum approach distances in this table provided the worksite is at an elevation of 900 meters (3,000 feet) or less. If employees will be working at elevations greater than 900 meters (3,000 feet) above mean sea level, the employer shall determine minimum approach distances by multiplying the distances in this table by the correction factor in Table V-4 corresponding to the altitude of the work.
2 For single-phase systems, use voltage-to-ground.
Table V-6—Alternative Minimum Approach Distances for Voltages of More Than 72.5 kV 1 2 3
Voltage range phase to phase (kV) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
72.6 to 121.0 | 1.13 | 3.71 | 1.42 | 4.66
121.1 to 145.0 | 1.30 | 4.27 | 1.64 | 5.38
145.1 to 169.0 | 1.46 | 4.79 | 1.94 | 6.36
169.1 to 242.0 | 2.01 | 6.59 | 3.08 | 10.10
242.1 to 362.0 | 3.41 | 11.19 | 5.52 | 18.11
362.1 to 420.0 | 4.25 | 13.94 | 6.81 | 22.34
420.1 to 550.0 | 5.07 | 16.63 | 8.24 | 27.03
550.1 to 800.0 | 6.88 | 22.57 | 11.38 | 37.34
1 Employers may use the minimum approach distances in this table provided the worksite is at an elevation of 900 meters (3,000 feet) or less. If employees will be working at elevations greater than 900 meters (3,000 feet) above mean sea level, the employer shall determine minimum approach distances by multiplying the distances in this table by the correction factor in Table V-4 corresponding to the altitude of the work.
2 Employers may use the phase-to-phase minimum approach distances in this table provided that no insulated tool spans the gap and no large conductive object is in the gap.
3 The clear live-line tool distance shall equal or exceed the values for the indicated voltage ranges.
Table V-7—DC Live-Line Minimum Approach Distance (in Meters) With Overvoltage Factor 1
Maximum anticipated per-unit transient overvoltage | distance (m) maximum line-to-ground voltage (kV)
250 | 400 | 500 | 600 | 750
1.5 or less | 1.12 | 1.60 | 2.06 | 2.62 | 3.61
1.6 | 1.17 | 1.69 | 2.24 | 2.86 | 3.98
1.7 | 1.23 | 1.82 | 2.42 | 3.12 | 4.37
1.8 | 1.28 | 1.95 | 2.62 | 3.39 | 4.79
1 The distances specified in this table are for air, bare-hand, and live-line tool conditions. If employees will be working at elevations greater than 900 meters (3,000 feet) above mean sea level, the employer shall determine minimum approach distances by multiplying the distances in this table by the correction factor in Table V-4 corresponding to the altitude of the work.
Table V-8—Assumed Maximum Per-Unit Transient Overvoltage
Voltage range (kV) | Type of current (ac or dc) | Assumed maximum per-unit transient overvoltage
72.6 to 420.0 | ac | 3.5
420.1 to 550.0 | ac | 3.0
550.1 to 800.0 | ac | 2.5
250 to 750 | dc | 1.8
[79 FR 20696, Apr. 11, 2014, as amended at 79 FR 56962, Sept. 24, 2014; 80 FR 60040, Oct. 5, 2015]
§ 1926.961 Deenergizing lines and equipment for employee protection.
(a) Application. This section applies to the deenergizing of transmission and distribution lines and equipment for the purpose of protecting employees. Conductors and parts of electric equipment that have been deenergized under procedures other than those required by this section shall be treated as energized.
(b) General—(1) System operator. If a system operator is in charge of the lines or equipment and their means of disconnection, the employer shall designate one employee in the crew to be in charge of the clearance and shall comply with all of the requirements of paragraph (c) of this section in the order specified.
(2) No system operator. If no system operator is in charge of the lines or equipment and their means of disconnection, the employer shall designate one employee in the crew to be in charge of the clearance and to perform the functions that the system operator would otherwise perform under this section. All of the requirements of paragraph (c) of this section apply, in the order specified, except as provided in paragraph (b)(3) of this section.
(3) Single crews working with the means of disconnection under the control of the employee in charge of the clearance. If only one crew will be working on the lines or equipment and if the means of disconnection is accessible and visible to, and under the sole control of, the employee in charge of the clearance, paragraphs (c)(1), (c)(3), and (c)(5) of this section do not apply. Additionally, the employer does not need to use the tags required by the remaining provisions of paragraph (c) of this section.
(4) Multiple crews. If two or more crews will be working on the same lines or equipment, then:
(i) The crews shall coordinate their activities under this section with a single employee in charge of the clearance for all of the crews and follow the requirements of this section as if all of the employees formed a single crew, or
(ii) Each crew shall independently comply with this section and, if there is no system operator in charge of the lines or equipment, shall have separate tags and coordinate deenergizing and reenergizing the lines and equipment with the other crews.
(5) Disconnecting means accessible to general public. The employer shall render any disconnecting means that are accessible to individuals outside the employer's control (for example, the general public) inoperable while the disconnecting means are open for the purpose of protecting employees.
(c) Deenergizing lines and equipment—(1) Request to deenergize. The employee that the employer designates pursuant to paragraph (b) of this section as being in charge of the clearance shall make a request of the system operator to deenergize the particular section of line or equipment. The designated employee becomes the employee in charge (as this term is used in paragraph (c) of this section) and is responsible for the clearance.
(2) Open disconnecting means. The employer shall ensure that all switches, disconnectors, jumpers, taps, and other means through which known sources of electric energy may be supplied to the particular lines and equipment to be deenergized are open. The employer shall render such means inoperable, unless its design does not so permit, and then ensure that such means are tagged to indicate that employees are at work.
(3) Automatically and remotely controlled switches. The employer shall ensure that automatically and remotely controlled switches that could cause the opened disconnecting means to close are also tagged at the points of control. The employer shall render the automatic or remote control feature inoperable, unless its design does not so permit.
(4) Network protectors. The employer need not use the tags mentioned in paragraphs (c)(2) and (c)(3) of this section on a network protector for work on the primary feeder for the network protector's associated network transformer when the employer can demonstrate all of the following conditions:
(i) Every network protector is maintained so that it will immediately trip open if closed when a primary conductor is deenergized;
(ii) Employees cannot manually place any network protector in a closed position without the use of tools, and any manual override position is blocked, locked, or otherwise disabled; and
(iii) The employer has procedures for manually overriding any network protector that incorporate provisions for determining, before anyone places a network protector in a closed position, that: The line connected to the network protector is not deenergized for the protection of any employee working on the line; and (if the line connected to the network protector is not deenergized for the protection of any employee working on the line) the primary conductors for the network protector are energized.
(5) Tags. Tags shall prohibit operation of the disconnecting means and shall indicate that employees are at work.
(6) Test for energized condition. After the applicable requirements in paragraphs (c)(1) through (c)(5) of this section have been followed and the system operator gives a clearance to the employee in charge, the employer shall ensure that the lines and equipment are deenergized by testing the lines and equipment to be worked with a device designed to detect voltage.
(7) Install grounds. The employer shall ensure the installation of protective grounds as required by § 1926.962.
(8) Consider lines and equipment deenergized. After the applicable requirements of paragraphs (c)(1) through (c)(7) of this section have been followed, the lines and equipment involved may be considered deenergized.
(9) Transferring clearances. To transfer the clearance, the employee in charge (or the employee's supervisor if the employee in charge must leave the worksite due to illness or other emergency) shall inform the system operator and employees in the crew; and the new employee in charge shall be responsible for the clearance.
(10) Releasing clearances. To release a clearance, the employee in charge shall:
(i) Notify each employee under that clearance of the pending release of the clearance;
(ii) Ensure that all employees under that clearance are clear of the lines and equipment;
(iii) Ensure that all protective grounds protecting employees under that clearance have been removed; and
(iv) Report this information to the system operator and then release the clearance.
(11) Person releasing clearance. Only the employee in charge who requested the clearance may release the clearance, unless the employer transfers responsibility under paragraph (c)(9) of this section.
(12) Removal of tags. No one may remove tags without the release of the associated clearance as specified under paragraphs (c)(10) and (c)(11) of this section.
(13) Reenergizing lines and equipment. The employer shall ensure that no one initiates action to reenergize the lines or equipment at a point of disconnection until all protective grounds have been removed, all crews working on the lines or equipment release their clearances, all employees are clear of the lines and equipment, and all protective tags are removed from that point of disconnection.
§ 1926.962 Grounding for the protection of employees.
(a) Application. This section applies to grounding of transmission and distribution lines and equipment for the purpose of protecting employees. Paragraph (d) of this section also applies to protective grounding of other equipment as required elsewhere in this Subpart.
Note to paragraph (a):
This section covers grounding of transmission and distribution lines and equipment when this subpart requires protective grounding and whenever the employer chooses to ground such lines and equipment for the protection of employees.
(b) General. For any employee to work transmission and distribution lines or equipment as deenergized, the employer shall ensure that the lines or equipment are deenergized under the provisions of § 1926.961 and shall ensure proper grounding of the lines or equipment as specified in paragraphs (c) through (h) of this section. However, if the employer can demonstrate that installation of a ground is impracticable or that the conditions resulting from the installation of a ground would present greater hazards to employees than working without grounds, the lines and equipment may be treated as deenergized provided that the employer establishes that all of the following conditions apply:
(1) Deenergized. The employer ensures that the lines and equipment are deenergized under the provisions of § 1926.961.
(2) No possibility of contact. There is no possibility of contact with another energized source.
(3) No induced voltage. The hazard of induced voltage is not present.
(c) Equipotential zone. Temporary protective grounds shall be placed at such locations and arranged in such a manner that the employer can demonstrate will prevent each employee from being exposed to hazardous differences in electric potential.
Note to paragraph (c):
Appendix C to this subpart contains guidelines for establishing the equipotential zone required by this paragraph. The Occupational Safety and Health Administration will deem grounding practices meeting these guidelines as complying with paragraph (c) of this section.
(d) Protective grounding equipment—(1) Ampacity. (i) Protective grounding equipment shall be capable of conducting the maximum fault current that could flow at the point of grounding for the time necessary to clear the fault.
(ii) Protective grounding equipment shall have an ampacity greater than or equal to that of No. 2 AWG copper.
(2) Impedance. Protective grounds shall have an impedance low enough so that they do not delay the operation of protective devices in case of accidental energizing of the lines or equipment.
Note to paragraph (d):
American Society for Testing and Materials Standard Specifications for Temporary Protective Grounds to Be Used on De-Energized Electric Power Lines and Equipment, ASTM F855-09, contains guidelines for protective grounding equipment. The Institute of Electrical Engineers Guide for Protective Grounding of Power Lines, IEEE Std 1048-2003, contains guidelines for selecting and installing protective grounding equipment.
(e) Testing. The employer shall ensure that, unless a previously installed ground is present, employees test lines and equipment and verify the absence of nominal voltage before employees install any ground on those lines or that equipment.
(f) Connecting and removing grounds—(1) Order of connection. The employer shall ensure that, when an employee attaches a ground to a line or to equipment, the employee attaches the ground-end connection first and then attaches the other end by means of a live-line tool. For lines or equipment operating at 600 volts or less, the employer may permit the employee to use insulating equipment other than a live-line tool if the employer ensures that the line or equipment is not energized at the time the ground is connected or if the employer can demonstrate that each employee is protected from hazards that may develop if the line or equipment is energized.
(2) Order of removal. The employer shall ensure that, when an employee removes a ground, the employee removes the grounding device from the line or equipment using a live-line tool before he or she removes the ground-end connection. For lines or equipment operating at 600 volts or less, the employer may permit the employee to use insulating equipment other than a live-line tool if the employer ensures that the line or equipment is not energized at the time the ground is disconnected or if the employer can demonstrate that each employee is protected from hazards that may develop if the line or equipment is energized.
(g) Additional precautions. The employer shall ensure that, when an employee performs work on a cable at a location remote from the cable terminal, the cable is not grounded at the cable terminal if there is a possibility of hazardous transfer of potential should a fault occur.
(h) Removal of grounds for test. The employer may permit employees to remove grounds temporarily during tests. During the test procedure, the employer shall ensure that each employee uses insulating equipment, shall isolate each employee from any hazards involved, and shall implement any additional measures necessary to protect each exposed employee in case the previously grounded lines and equipment become energized.
§ 1926.963 Testing and test facilities.
(a) Application. This section provides for safe work practices for high-voltage and high-power testing performed in laboratories, shops, and substations, and in the field and on electric transmission and distribution lines and equipment. It applies only to testing involving interim measurements using high voltage, high power, or combinations of high voltage and high power, and not to testing involving continuous measurements as in routine metering, relaying, and normal line work.
Note to paragraph (a):
OSHA considers routine inspection and maintenance measurements made by qualified employees to be routine line work not included in the scope of this section, provided that the hazards related to the use of intrinsic high-voltage or high-power sources require only the normal precautions associated with routine work specified in the other paragraphs of this subpart. Two typical examples of such excluded test work procedures are “phasing-out” testing and testing for a “no-voltage” condition.
(b) General requirements—(1) Safe work practices. The employer shall establish and enforce work practices for the protection of each worker from the hazards of high-voltage or high-power testing at all test areas, temporary and permanent. Such work practices shall include, as a minimum, test area safeguarding, grounding, the safe use of measuring and control circuits, and a means providing for periodic safety checks of field test areas.
(2) Training. The employer shall ensure that each employee, upon initial assignment to the test area, receives training in safe work practices, with retraining provided as required by § 1926.950(b).
(c) Safeguarding of test areas—(1) Safeguarding. The employer shall provide safeguarding within test areas to control access to test equipment or to apparatus under test that could become energized as part of the testing by either direct or inductive coupling and to prevent accidental employee contact with energized parts.
(2) Permanent test areas. The employer shall guard permanent test areas with walls, fences, or other barriers designed to keep employees out of the test areas.
(3) Temporary test areas. In field testing, or at a temporary test site not guarded by permanent fences and gates, the employer shall ensure the use of one of the following means to prevent employees without authorization from entering:
(i) Distinctively colored safety tape supported approximately waist high with safety signs attached to it,
(ii) A barrier or barricade that limits access to the test area to a degree equivalent, physically and visually, to the barricade specified in paragraph (c)(3)(i) of this section, or
(iii) One or more test observers stationed so that they can monitor the entire area.
(4) Removal of safeguards. The employer shall ensure the removal of the safeguards required by paragraph (c)(3) of this section when employees no longer need the protection afforded by the safeguards.
(d) Grounding practices—(1) Establish and implement practices. The employer shall establish and implement safe grounding practices for the test facility.
(i) The employer shall maintain at ground potential all conductive parts accessible to the test operator while the equipment is operating at high voltage.
(ii) Wherever ungrounded terminals of test equipment or apparatus under test may be present, they shall be treated as energized until tests demonstrate that they are deenergized.
(2) Installation of grounds. The employer shall ensure either that visible grounds are applied automatically, or that employees using properly insulated tools manually apply visible grounds, to the high-voltage circuits after they are deenergized and before any employee performs work on the circuit or on the item or apparatus under test. Common ground connections shall be solidly connected to the test equipment and the apparatus under test.
(3) Isolated ground return. In high-power testing, the employer shall provide an isolated ground-return conductor system designed to prevent the intentional passage of current, with its attendant voltage rise, from occurring in the ground grid or in the earth. However, the employer need not provide an isolated ground-return conductor if the employer can demonstrate that both of the following conditions exist:
(i) The employer cannot provide an isolated ground-return conductor due to the distance of the test site from the electric energy source, and
(ii) The employer protects employees from any hazardous step and touch potentials that may develop during the test.
Note to paragraph (d)(3)(ii):
See appendix C to this subpart for information on measures that employers can take to protect employees from hazardous step and touch potentials.
(4) Equipment grounding conductors. For tests in which using the equipment grounding conductor in the equipment power cord to ground the test equipment would result in greater hazards to test personnel or prevent the taking of satisfactory measurements, the employer may use a ground clearly indicated in the test set-up if the employer can demonstrate that this ground affords protection for employees equivalent to the protection afforded by an equipment grounding conductor in the power supply cord.
(5) Grounding after tests. The employer shall ensure that, when any employee enters the test area after equipment is deenergized, a ground is placed on the high-voltage terminal and any other exposed terminals.
(i) Before any employee applies a direct ground, the employer shall discharge high capacitance equipment or apparatus through a resistor rated for the available energy.
(ii) A direct ground shall be applied to the exposed terminals after the stored energy drops to a level at which it is safe to do so.
(6) Grounding test vehicles. If the employer uses a test trailer or test vehicle in field testing, its chassis shall be grounded. The employer shall protect each employee against hazardous touch potentials with respect to the vehicle, instrument panels, and other conductive parts accessible to employees with bonding, insulation, or isolation.
(e) Control and measuring circuits—(1) Control wiring. The employer may not run control wiring, meter connections, test leads, or cables from a test area unless contained in a grounded metallic sheath and terminated in a grounded metallic enclosure or unless the employer takes other precautions that it can demonstrate will provide employees with equivalent safety.
(2) Instruments. The employer shall isolate meters and other instruments with accessible terminals or parts from test personnel to protect against hazards that could arise should such terminals and parts become energized during testing. If the employer provides this isolation by locating test equipment in metal compartments with viewing windows, the employer shall provide interlocks to interrupt the power supply when someone opens the compartment cover.
(3) Routing temporary wiring. The employer shall protect temporary wiring and its connections against damage, accidental interruptions, and other hazards. To the maximum extent possible, the employer shall keep signal, control, ground, and power cables separate from each other.
(4) Test observer. If any employee will be present in the test area during testing, a test observer shall be present. The test observer shall be capable of implementing the immediate deenergizing of test circuits for safety purposes.
(f) Safety check—(1) Before each test. Safety practices governing employee work at temporary or field test areas shall provide, at the beginning of each series of tests, for a routine safety check of such test areas.
(2) Conditions to be checked. The test operator in charge shall conduct these routine safety checks before each series of tests and shall verify at least the following conditions:
(i) Barriers and safeguards are in workable condition and placed properly to isolate hazardous areas;
(ii) System test status signals, if used, are in operable condition;
(iii) Clearly marked test-power disconnects are readily available in an emergency;
(iv) Ground connections are clearly identifiable;
(v) Personal protective equipment is provided and used as required by subpart E of this part and by this subpart; and
(vi) Proper separation between signal, ground, and power cables.
§ 1926.964 Overhead lines and live-line barehand work.
(a) General—(1) Application. This section provides additional requirements for work performed on or near overhead lines and equipment and for live-line barehand work.
(2) Checking structure before climbing. Before allowing employees to subject elevated structures, such as poles or towers, to such stresses as climbing or the installation or removal of equipment may impose, the employer shall ascertain that the structures are capable of sustaining the additional or unbalanced stresses. If the pole or other structure cannot withstand the expected loads, the employer shall brace or otherwise support the pole or structure so as to prevent failure.
Note to paragraph (a)(2):
Appendix D to this subpart contains test methods that employers can use in ascertaining whether a wood pole is capable of sustaining the forces imposed by an employee climbing the pole. This paragraph also requires the employer to ascertain that the pole can sustain all other forces imposed by the work employees will perform.
(3) Setting and moving poles. (i) When a pole is set, moved, or removed near an exposed energized overhead conductor, the pole may not contact the conductor.
(ii) When a pole is set, moved, or removed near an exposed energized overhead conductor, the employer shall ensure that each employee wears electrical protective equipment or uses insulated devices when handling the pole and that no employee contacts the pole with uninsulated parts of his or her body.
(iii) To protect employees from falling into holes used for placing poles, the employer shall physically guard the holes, or ensure that employees attend the holes, whenever anyone is working nearby.
(b) Installing and removing overhead lines. The following provisions apply to the installation and removal of overhead conductors or cable (overhead lines).
(1) Tension stringing method. When lines that employees are installing or removing can contact energized parts, the employer shall use the tension-stringing method, barriers, or other equivalent measures to minimize the possibility that conductors and cables the employees are installing or removing will contact energized power lines or equipment.
(2) Conductors, cables, and pulling and tensioning equipment. For conductors, cables, and pulling and tensioning equipment, the employer shall provide the protective measures required by § 1926.959(d)(3) when employees are installing or removing a conductor or cable close enough to energized conductors that any of the following failures could energize the pulling or tensioning equipment or the conductor or cable being installed or removed:
(i) Failure of the pulling or tensioning equipment,
(ii) Failure of the conductor or cable being pulled, or
(iii) Failure of the previously installed lines or equipment.
(3) Disable automatic-reclosing feature. If the conductors that employees are installing or removing cross over energized conductors in excess of 600 volts and if the design of the circuit-interrupting devices protecting the lines so permits, the employer shall render inoperable the automatic-reclosing feature of these devices.
(4) Induced voltage. (i) Before employees install lines parallel to existing energized lines, the employer shall make a determination of the approximate voltage to be induced in the new lines, or work shall proceed on the assumption that the induced voltage is hazardous.
(ii) Unless the employer can demonstrate that the lines that employees are installing are not subject to the induction of a hazardous voltage or unless the lines are treated as energized, temporary protective grounds shall be placed at such locations and arranged in such a manner that the employer can demonstrate will prevent exposure of each employee to hazardous differences in electric potential.
Note to paragraph (b)(4)(ii):
Appendix C to this subpart contains guidelines for protecting employees from hazardous differences in electric potential as required by this paragraph.
Note to paragraph (b)(4):
If the employer takes no precautions to protect employees from hazards associated with involuntary reactions from electric shock, a hazard exists if the induced voltage is sufficient to pass a current of 1 milliampere through a 500-ohm resistor. If the employer protects employees from injury due to involuntary reactions from electric shock, a hazard exists if the resultant current would be more than 6 milliamperes.
(5) Safe operating condition. Reel-handling equipment, including pulling and tensioning devices, shall be in safe operating condition and shall be leveled and aligned.
(6) Load ratings. The employer shall ensure that employees do not exceed load ratings of stringing lines, pulling lines, conductor grips, load-bearing hardware and accessories, rigging, and hoists.
(7) Defective pulling lines. The employer shall repair or replace defective pulling lines and accessories.
(8) Conductor grips. The employer shall ensure that employees do not use conductor grips on wire rope unless the manufacturer specifically designed the grip for this application.
(9) Communications. The employer shall ensure that employees maintain reliable communications, through two-way radios or other equivalent means, between the reel tender and the pulling-rig operator.
(10) Operation of pulling rig. Employees may operate the pulling rig only when it is safe to do so.
Note to paragraph (b)(10):
Examples of unsafe conditions include: employees in locations prohibited by paragraph (b)(11) of this section, conductor and pulling line hang-ups, and slipping of the conductor grip.
(11) Working under overhead operations. While a power-driven device is pulling the conductor or pulling line and the conductor or pulling line is in motion, the employer shall ensure that employees are not directly under overhead operations or on the crossarm, except as necessary for the employees to guide the stringing sock or board over or through the stringing sheave.
(c) Live-line barehand work. In addition to other applicable provisions contained in this subpart, the following requirements apply to live-line barehand work:
(1) Training. Before an employee uses or supervises the use of the live-line barehand technique on energized circuits, the employer shall ensure that the employee completes training conforming to § 1926.950(b) in the technique and in the safety requirements of paragraph (c) of this section.
(2) Existing conditions. Before any employee uses the live-line barehand technique on energized high-voltage conductors or parts, the employer shall ascertain the following information in addition to information about other existing conditions required by § 1926.950(d):
(i) The nominal voltage rating of the circuit on which employees will perform the work,
(ii) The clearances to ground of lines and other energized parts on which employees will perform the work, and
(iii) The voltage limitations of equipment employees will use.
(3) Insulated tools and equipment. (i) The employer shall ensure that the insulated equipment, insulated tools, and aerial devices and platforms used by employees are designed, tested, and made for live-line barehand work.
(ii) The employer shall ensure that employees keep tools and equipment clean and dry while they are in use.
(4) Disable automatic-reclosing feature. The employer shall render inoperable the automatic-reclosing feature of circuit-interrupting devices protecting the lines if the design of the devices permits.
(5) Adverse weather conditions. The employer shall ensure that employees do not perform work when adverse weather conditions would make the work hazardous even after the employer implements the work practices required by this subpart. Additionally, employees may not perform work when winds reduce the phase-to-phase or phase-to-ground clearances at the work location below the minimum approach distances specified in paragraph (c)(13) of this section, unless insulating guards cover the grounded objects and other lines and equipment.
Note to paragraph (c)(5):
Thunderstorms in the vicinity, high winds, snow storms, and ice storms are examples of adverse weather conditions that make live-line barehand work too hazardous to perform safely even after the employer implements the work practices required by this subpart.
(6) Bucket liners and electrostatic shielding. The employer shall provide and ensure that employees use a conductive bucket liner or other conductive device for bonding the insulated aerial device to the energized line or equipment.
(i) The employee shall be connected to the bucket liner or other conductive device by the use of conductive shoes, leg clips, or other means.
(ii) Where differences in potentials at the worksite pose a hazard to employees, the employer shall provide electrostatic shielding designed for the voltage being worked.
(7) Bonding the employee to the energized part. The employer shall ensure that, before the employee contacts the energized part, the employee bonds the conductive bucket liner or other conductive device to the energized conductor by means of a positive connection. This connection shall remain attached to the energized conductor until the employee completes the work on the energized circuit.
(8) Aerial-lift controls. Aerial lifts used for live-line barehand work shall have dual controls (lower and upper) as follows:
(i) The upper controls shall be within easy reach of the employee in the bucket. On a two-bucket-type lift, access to the controls shall be within easy reach of both buckets.
(ii) The lower set of controls shall be near the base of the boom and shall be designed so that they can override operation of the equipment at any time.
(9) Operation of lower controls. Lower (ground-level) lift controls may not be operated with an employee in the lift except in case of emergency.
(10) Check controls. The employer shall ensure that, before employees elevate an aerial lift into the work position, the employees check all controls (ground level and bucket) to determine that they are in proper working condition.
(11) Body of aerial lift truck. The employer shall ensure that, before employees elevate the boom of an aerial lift, the employees ground the body of the truck or barricade the body of the truck and treat it as energized.
(12) Boom-current test. The employer shall ensure that employees perform a boom-current test before starting work each day, each time during the day when they encounter a higher voltage, and when changed conditions indicate a need for an additional test.
(i) This test shall consist of placing the bucket in contact with an energized source equal to the voltage to be encountered for a minimum of 3 minutes.
(ii) The leakage current may not exceed 1 microampere per kilovolt of nominal phase-to-ground voltage.
(iii) The employer shall immediately suspend work from the aerial lift when there is any indication of a malfunction in the equipment.
(13) Minimum approach distance. The employer shall ensure that employees maintain the minimum approach distances, established by the employer under § 1926.960(c)(1)(i), from all grounded objects and from lines and equipment at a potential different from that to which the live-line barehand equipment is bonded, unless insulating guards cover such grounded objects and other lines and equipment.
(14) Approaching, leaving, and bonding to energized part. The employer shall ensure that, while an employee is approaching, leaving, or bonding to an energized circuit, the employee maintains the minimum approach distances, established by the employer under § 1926.960(c)(1)(i), between the employee and any grounded parts, including the lower boom and portions of the truck and between the employee and conductive objects energized at different potentials.
(15) Positioning bucket near energized bushing or insulator string. While the bucket is alongside an energized bushing or insulator string, the employer shall ensure that employees maintain the phase-to-ground minimum approach distances, established by the employer under § 1926.960(c)(1)(i), between all parts of the bucket and the grounded end of the bushing or insulator string or any other grounded surface.
(16) Handlines. The employer shall ensure that employees do not use handlines between the bucket and the boom or between the bucket and the ground. However, employees may use nonconductive-type handlines from conductor to ground if not supported from the bucket. The employer shall ensure that no one uses ropes used for live-line barehand work for other purposes.
(17) Passing objects to employee. The employer shall ensure that employees do not pass uninsulated equipment or material between a pole or structure and an aerial lift while an employee working from the bucket is bonded to an energized part.
(18) Nonconductive measuring device. A nonconductive measuring device shall be readily accessible to employees performing live-line barehand work to assist them in maintaining the required minimum approach distance.
(d) Towers and structures. The following requirements apply to work performed on towers or other structures that support overhead lines.
(1) Working beneath towers and structures. The employer shall ensure that no employee is under a tower or structure while work is in progress, except when the employer can demonstrate that such a working position is necessary to assist employees working above.
(2) Tag lines. The employer shall ensure that employees use tag lines or other similar devices to maintain control of tower sections being raised or positioned, unless the employer can demonstrate that the use of such devices would create a greater hazard to employees.
(3) Disconnecting load lines. The employer shall ensure that employees do not detach the loadline from a member or section until they safely secure the load.
(4) Adverse weather conditions. The employer shall ensure that, except during emergency restoration procedures, employees discontinue work when adverse weather conditions would make the work hazardous in spite of the work practices required by this subpart.
Note to paragraph (d)(4):
Thunderstorms in the vicinity, high winds, snow storms, and ice storms are examples of adverse weather conditions that make this work too hazardous to perform even after the employer implements the work practices required by this subpart.
§ 1926.965 Underground electrical installations.
(a) Application. This section provides additional requirements for work on underground electrical installations.
(b) Access. The employer shall ensure that employees use a ladder or other climbing device to enter and exit a manhole or subsurface vault exceeding 1.22 meters (4 feet) in depth. No employee may climb into or out of a manhole or vault by stepping on cables or hangers.
(c) Lowering equipment into manholes—(1) Hoisting equipment. Equipment used to lower materials and tools into manholes or vaults shall be capable of supporting the weight to be lowered and shall be checked for defects before use.
(2) Clear the area of employees. Before anyone lowers tools or material into the opening for a manhole or vault, each employee working in the manhole or vault shall be clear of the area directly under the opening.
(d) Attendants for manholes and vaults—(1) When required. While work is being performed in a manhole or vault containing energized electric equipment, an employee with first-aid training shall be available on the surface in the immediate vicinity of the manhole or vault entrance to render emergency assistance.
(2) Brief entries allowed. Occasionally, the employee on the surface may briefly enter a manhole or vault to provide nonemergency assistance.
Note 1 to paragraph (d)(2):
Paragraph (h) of 1926.953 may also require an attendant and does not permit this attendant to enter the manhole or vault.
Note 2 to paragraph (d)(2):
Paragraph (b)(1)(ii) of § 1926.960 requires employees entering manholes or vaults containing unguarded, uninsulated energized lines or parts of electric equipment operating at 50 volts or more to be qualified.
(3) Entry without attendant. For the purpose of inspection, housekeeping, taking readings, or similar work, an employee working alone may enter, for brief periods of time, a manhole or vault where energized cables or equipment are in service if the employer can demonstrate that the employee will be protected from all electrical hazards.
(4) Communications. The employer shall ensure that employees maintain reliable communications, through two-way radios or other equivalent means, among all employees involved in the job.
(e) Duct rods. The employer shall ensure that, if employees use duct rods, the employees install the duct rods in the direction presenting the least hazard to employees. The employer shall station an employee at the far end of the duct line being rodded to ensure that the employees maintain the required minimum approach distances.
(f) Multiple cables. When multiple cables are present in a work area, the employer shall identify the cable to be worked by electrical means, unless its identity is obvious by reason of distinctive appearance or location or by other readily apparent means of identification. The employer shall protect cables other than the one being worked from damage.
(g) Moving cables. Except when paragraph (h)(2) of this section permits employees to perform work that could cause a fault in an energized cable in a manhole or vault, the employer shall ensure that employees inspect energized cables to be moved for abnormalities.
(h) Protection against faults—(1) Cables with abnormalities. Where a cable in a manhole or vault has one or more abnormalities that could lead to a fault or be an indication of an impending fault, the employer shall deenergize the cable with the abnormality before any employee may work in the manhole or vault, except when service-load conditions and a lack of feasible alternatives require that the cable remain energized. In that case, employees may enter the manhole or vault provided the employer protects them from the possible effects of a failure using shields or other devices that are capable of containing the adverse effects of a fault. The employer shall treat the following abnormalities as indications of impending faults unless the employer can demonstrate that the conditions could not lead to a fault: Oil or compound leaking from cable or joints, broken cable sheaths or joint sleeves, hot localized surface temperatures of cables or joints, or joints swollen beyond normal tolerance.
(2) Work-related faults. If the work employees will perform in a manhole or vault could cause a fault in a cable, the employer shall deenergize that cable before any employee works in the manhole or vault, except when service-load conditions and a lack of feasible alternatives require that the cable remain energized. In that case, employees may enter the manhole or vault provided the employer protects them from the possible effects of a failure using shields or other devices that are capable of containing the adverse effects of a fault.
(i) Sheath continuity. When employees perform work on buried cable or on cable in a manhole or vault, the employer shall maintain metallic-sheath continuity, or the cable sheath shall be treated as energized.
§ 1926.966 Substations.
(a) Application. This section provides additional requirements for substations and for work performed in them.
(b) Access and working space. The employer shall provide and maintain sufficient access and working space about electric equipment to permit ready and safe operation and maintenance of such equipment by employees.
Note to paragraph (b):
American National Standard National Electrical Safety Code, ANSI/IEEE C2-2012 contains guidelines for the dimensions of access and working space about electric equipment in substations. Installations meeting the ANSI provisions comply with paragraph (b) of this section. The Occupational Safety and Health Administration will determine whether an installation that does not conform to this ANSI standard complies with paragraph (b) of this section based on the following criteria:
(1) Whether the installation conforms to the edition of ANSI C2 that was in effect when the installation was made;
(2) Whether the configuration of the installation enables employees to maintain the minimum approach distances, established by the employer under § 1926.960(c)(1)(i), while the employees are working on exposed, energized parts; and
(3) Whether the precautions taken when employees perform work on the installation provide protection equivalent to the protection provided by access and working space meeting ANSI/IEEE C2-2012.
(c) Draw-out-type circuit breakers. The employer shall ensure that, when employees remove or insert draw-out-type circuit breakers, the breaker is in the open position. The employer shall also render the control circuit inoperable if the design of the equipment permits.
(d) Substation fences. Conductive fences around substations shall be grounded. When a substation fence is expanded or a section is removed, fence sections shall be isolated, grounded, or bonded as necessary to protect employees from hazardous differences in electric potential.
Note to paragraph (d):
IEEE Std 80-2000, IEEE Guide for Safety in AC Substation Grounding, contains guidelines for protection against hazardous differences in electric potential.
(e) Guarding of rooms and other spaces containing electric supply equipment—(1) When to guard rooms and other spaces. Rooms and other spaces in which electric supply lines or equipment are installed shall meet the requirements of paragraphs (e)(2) through (e)(5) of this section under the following conditions:
(i) If exposed live parts operating at 50 to 150 volts to ground are within 2.4 meters (8 feet) of the ground or other working surface inside the room or other space,
(ii) If live parts operating at 151 to 600 volts to ground and located within 2.4 meters (8 feet) of the ground or other working surface inside the room or other space are guarded only by location, as permitted under paragraph (f)(1) of this section, or
(iii) If live parts operating at more than 600 volts to ground are within the room or other space, unless:
(A) The live parts are enclosed within grounded, metal-enclosed equipment whose only openings are designed so that foreign objects inserted in these openings will be deflected from energized parts, or
(B) The live parts are installed at a height, above ground and any other working surface, that provides protection at the voltage on the live parts corresponding to the protection provided by a 2.4-meter (8-foot) height at 50 volts.
(2) Prevent access by unqualified persons. Fences, screens, partitions, or walls shall enclose the rooms and other spaces so as to minimize the possibility that unqualified persons will enter.
(3) Restricted entry. Unqualified persons may not enter the rooms or other spaces while the electric supply lines or equipment are energized.
(4) Warning signs. The employer shall display signs at entrances to the rooms and other spaces warning unqualified persons to keep out.
(5) Entrances to rooms and other. The employer shall keep each entrance to a room or other space locked, unless the entrance is under the observation of a person who is attending the room or other space for the purpose of preventing unqualified employees from entering.
(f) Guarding of energized parts—(1) Type of guarding. The employer shall provide guards around all live parts operating at more than 150 volts to ground without an insulating covering unless the location of the live parts gives sufficient clearance (horizontal, vertical, or both) to minimize the possibility of accidental employee contact.
Note to paragraph (f)(1):
American National Standard National Electrical Safety Code, ANSI/IEEE C2-2002 contains guidelines for the dimensions of clearance distances about electric equipment in substations. Installations meeting the ANSI provisions comply with paragraph (f)(1) of this section. The Occupational Safety and Health Administration will determine whether an installation that does not conform to this ANSI standard complies with paragraph (f)(1) of this section based on the following criteria:
(1) Whether the installation conforms to the edition of ANSI C2 that was in effect when the installation was made;
(2) Whether each employee is isolated from energized parts at the point of closest approach; and
(3) Whether the precautions taken when employees perform work on the installation provide protection equivalent to the protection provided by horizontal and vertical clearances meeting ANSI/IEEE C2-2002.
(2) Maintaining guards during operation. Except for fuse replacement and other necessary access by qualified persons, the employer shall maintain guarding of energized parts within a compartment during operation and maintenance functions to prevent accidental contact with energized parts and to prevent dropped tools or other equipment from contacting energized parts.
(3) Temporary removal of guards. Before guards are removed from energized equipment, the employer shall install barriers around the work area to prevent employees who are not working on the equipment, but who are in the area, from contacting the exposed live parts.
(g) Substation entry—(1) Report upon entering. Upon entering an attended substation, each employee, other than employees regularly working in the station, shall report his or her presence to the employee in charge of substation activities to receive information on special system conditions affecting employee safety.
(2) Job briefing. The job briefing required by § 1926.952 shall cover information on special system conditions affecting employee safety, including the location of energized equipment in or adjacent to the work area and the limits of any deenergized work area.
§ 1926.967 Special conditions.
(a) Capacitors. The following additional requirements apply to work on capacitors and on lines connected to capacitors.
Note to paragraph (a):
See §§ 1926.961 and 1926.962 for requirements pertaining to the deenergizing and grounding of capacitor installations.
(1) Disconnect from energized source. Before employees work on capacitors, the employer shall disconnect the capacitors from energized sources and short circuit the capacitors. The employer shall ensure that the employee short circuiting the capacitors waits at least 5 minutes from the time of disconnection before applying the short circuit,
(2) Short circuiting units. Before employees handle the units, the employer shall short circuit each unit in series-parallel capacitor banks between all terminals and the capacitor case or its rack. If the cases of capacitors are on ungrounded substation racks, the employer shall bond the racks to ground.
(3) Short circuiting connected lines. The employer shall short circuit any line connected to capacitors before the line is treated as deenergized.
(b) Current transformer secondaries. The employer shall ensure that employees do not open the secondary of a current transformer while the transformer is energized. If the employer cannot deenergize the primary of the current transformer before employees perform work on an instrument, a relay, or other section of a current transformer secondary circuit, the employer shall bridge the circuit so that the current transformer secondary does not experience an open-circuit condition.
(c) Series streetlighting—(1) Applicable requirements. If the open-circuit voltage exceeds 600 volts, the employer shall ensure that employees work on series streetlighting circuits in accordance with § 1926.964 or § 1926.965, as appropriate.
(2) Opening a series loop. Before any employee opens a series loop, the employer shall deenergize the streetlighting transformer and isolate it from the source of supply or shall bridge the loop to avoid an open-circuit condition.
(d) Illumination. The employer shall provide sufficient illumination to enable the employee to perform the work safely.
Note to paragraph (d):
See § 1926.56, which requires specific levels of illumination.
(e) Protection against drowning—(1) Personal flotation devices. Whenever an employee may be pulled or pushed, or might fall, into water where the danger of drowning exists, the employer shall provide the employee with, and shall ensure that the employee uses, a personal flotation device meeting § 1926.106.
(2) Maintaining flotation devices in safe condition. The employer shall maintain each personal flotation device in safe condition and shall inspect each personal flotation device frequently enough to ensure that it does not have rot, mildew, water saturation, or any other condition that could render the device unsuitable for use.
(3) Crossing bodies of water. An employee may cross streams or other bodies of water only if a safe means of passage, such as a bridge, is available.
(f) Excavations. Excavation operations shall comply with subpart P of this part.
(g) Employee protection in public work areas—(1) Traffic control devices. Traffic-control signs and traffic-control devices used for the protection of employees shall meet § 1926.200(g)(2).
(2) Controlling traffic. Before employees begin work in the vicinity of vehicular or pedestrian traffic that may endanger them, the employer shall place warning signs or flags and other traffic-control devices in conspicuous locations to alert and channel approaching traffic.
(3) Barricades. The employer shall use barricades where additional employee protection is necessary.
(4) Excavated areas. The employer shall protect excavated areas with barricades.
(5) Warning lights. The employer shall display warning lights prominently at night.
(h) Backfeed. When there is a possibility of voltage backfeed from sources of cogeneration or from the secondary system (for example, backfeed from more than one energized phase feeding a common load), the requirements of § 1926.960 apply if employees will work the lines or equipment as energized, and the requirements of §§ 1926.961 and 1926.962 apply if employees will work the lines or equipment as deenergized.
(i) Lasers. The employer shall install, adjust, and operate laser equipment in accordance with § 1926.54.
(j) Hydraulic fluids. Hydraulic fluids used for the insulated sections of equipment shall provide insulation for the voltage involved.
(k) Communication facilities—(1) Microwave transmission. (i) The employer shall ensure that no employee looks into an open waveguide or antenna connected to an energized microwave source.
(ii) If the electromagnetic-radiation level within an accessible area associated with microwave communications systems exceeds the radiation-protection guide specified by § 1910.97(a)(2) of this chapter, the employer shall post the area with warning signs containing the warning symbol described in § 1910.97(a)(3) of this chapter. The lower half of the warning symbol shall include the following statements, or ones that the employer can demonstrate are equivalent: “Radiation in this area may exceed hazard limitations and special precautions are required. Obtain specific instruction before entering.”
(iii) When an employee works in an area where the electromagnetic radiation could exceed the radiation-protection guide, the employer shall institute measures that ensure that the employee's exposure is not greater than that permitted by that guide. Such measures may include administrative and engineering controls and personal protective equipment.
(2) Power-line carrier. The employer shall ensure that employees perform power-line carrier work, including work on equipment used for coupling carrier current to power line conductors, in accordance with the requirements of this subpart pertaining to work on energized lines.
§ 1926.968 Definitions.
Attendant. An employee assigned to remain immediately outside the entrance to an enclosed or other space to render assistance as needed to employees inside the space.
Automatic circuit recloser. A self-controlled device for automatically interrupting and reclosing an alternating-current circuit, with a predetermined sequence of opening and reclosing followed by resetting, hold closed, or lockout.
Barricade. A physical obstruction such as tapes, cones, or A-frame type wood or metal structures that provides a warning about, and limits access to, a hazardous area.
Barrier. A physical obstruction that prevents contact with energized lines or equipment or prevents unauthorized access to a work area.
Bond. The electrical interconnection of conductive parts designed to maintain a common electric potential.
Bus. A conductor or a group of conductors that serve as a common connection for two or more circuits.
Bushing. An insulating structure that includes a through conductor or that provides a passageway for such a conductor, and that, when mounted on a barrier, insulates the conductor from the barrier for the purpose of conducting current from one side of the barrier to the other.
Cable. A conductor with insulation, or a stranded conductor with or without insulation and other coverings (single-conductor cable), or a combination of conductors insulated from one another (multiple-conductor cable).
Cable sheath. A conductive protective covering applied to cables.
Note to the definition of “cable sheath”:
A cable sheath may consist of multiple layers one or more of which is conductive.
Circuit. A conductor or system of conductors through which an electric current is intended to flow.
Clearance (between objects). The clear distance between two objects measured surface to surface.
Clearance (for work). Authorization to perform specified work or permission to enter a restricted area.
Communication lines. (See Lines; (1) Communication lines.)
Conductor. A material, usually in the form of a wire, cable, or bus bar, used for carrying an electric current.
Contract employer. An employer, other than a host employer, that performs work covered by subpart V of this part under contract.
Covered conductor. A conductor covered with a dielectric having no rated insulating strength or having a rated insulating strength less than the voltage of the circuit in which the conductor is used.
Current-carrying part. A conducting part intended to be connected in an electric circuit to a source of voltage. Non-current-carrying parts are those not intended to be so connected.
Deenergized. Free from any electrical connection to a source of potential difference and from electric charge; not having a potential that is different from the potential of the earth.
Note to the definition of “deenergized”:
The term applies only to current-carrying parts, which are sometimes energized (alive).
Designated employee (designated person). An employee (or person) who is assigned by the employer to perform specific duties under the terms of this subpart and who has sufficient knowledge of the construction and operation of the equipment, and the hazards involved, to perform his or her duties safely.
Electric line truck. A truck used to transport personnel, tools, and material for electric supply line work.
Electric supply equipment. Equipment that produces, modifies, regulates, controls, or safeguards a supply of electric energy.
Electric supply lines. (See “Lines; (2) Electric supply lines.”)
Electric utility. An organization responsible for the installation, operation, or maintenance of an electric supply system.
Enclosed space. A working space, such as a manhole, vault, tunnel, or shaft, that has a limited means of egress or entry, that is designed for periodic employee entry under normal operating conditions, and that, under normal conditions, does not contain a hazardous atmosphere, but may contain a hazardous atmosphere under abnormal conditions.
Note to the definition of “Enclosed space”.
The Occupational Safety and Health Administration does not consider spaces that are enclosed but not designed for employee entry under normal operating conditions to be enclosed spaces for the purposes of this subpart. Similarly, the Occupational Safety and Health Administration does not consider spaces that are enclosed and that are expected to contain a hazardous atmosphere to be enclosed spaces for the purposes of this subpart. Such spaces meet the definition of permit spaces in subpart AA of this part, and entry into them must conform to that standard.
Energized (alive, live). Electrically connected to a source of potential difference, or electrically charged so as to have a potential significantly different from that of earth in the vicinity.
Energy source. Any electrical, mechanical, hydraulic, pneumatic, chemical, nuclear, thermal, or other energy source that could cause injury to employees.
Entry (as used in § 1926.953). The action by which a person passes through an opening into an enclosed space. Entry includes ensuing work activities in that space and is considered to have occurred as soon as any part of the entrant's body breaks the plane of an opening into the space.
Equipment (electric). A general term including material, fittings, devices, appliances, fixtures, apparatus, and the like used as part of or in connection with an electrical installation.
Exposed, Exposed to contact (as applied to energized parts). Not isolated or guarded.
Fall restraint system. A fall protection system that prevents the user from falling any distance.
First-aid training. Training in the initial care, including cardiopulmonary resuscitation (which includes chest compressions, rescue breathing, and, as appropriate, other heart and lung resuscitation techniques), performed by a person who is not a medical practitioner, of a sick or injured person until definitive medical treatment can be administered.
Ground. A conducting connection, whether planned or unplanned, between an electric circuit or equipment and the earth, or to some conducting body that serves in place of the earth.
Grounded. Connected to earth or to some conducting body that serves in place of the earth.
Guarded. Covered, fenced, enclosed, or otherwise protected, by means of suitable covers or casings, barrier rails or screens, mats, or platforms, designed to minimize the possibility, under normal conditions, of dangerous approach or inadvertent contact by persons or objects.
Note to the definition of “guarded”:
Wires that are insulated, but not otherwise protected, are not guarded.
Hazardous atmosphere. An atmosphere that may expose employees to the risk of death, incapacitation, impairment of ability to self-rescue (that is, escape unaided from an enclosed space), injury, or acute illness from one or more of the following causes:
(1) Flammable gas, vapor, or mist in excess of 10 percent of its lower flammable limit (LFL);
(2) Airborne combustible dust at a concentration that meets or exceeds its LFL;
Note to the definition of “hazardous atmosphere” (2):
This concentration may be approximated as a condition in which the dust obscures vision at a distance of 1.52 meters (5 feet) or less.
(3) Atmospheric oxygen concentration below 19.5 percent or above 23.5 percent;
(4) Atmospheric concentration of any substance for which a dose or a permissible exposure limit is published in Subpart D, Occupational Health and Environmental Controls, or in Subpart Z, Toxic and Hazardous Substances, of this part and which could result in employee exposure in excess of its dose or permissible exposure limit;
Note to the definition of “hazardous atmosphere” (4):
An atmospheric concentration of any substance that is not capable of causing death, incapacitation, impairment of ability to self-rescue, injury, or acute illness due to its health effects is not covered by this provision.
(5) Any other atmospheric condition that is immediately dangerous to life or health.
Note to the Definition of “Hazardous Atmosphere” (5):
For air contaminants for which the Occupational Safety and Health Administration has not determined a dose or permissible exposure limit, other sources of information, such as Safety Data Sheets (SDS) that comply with the Hazard Communication Standard, § 1910.1200, published information, and internal documents can provide guidance in establishing acceptable atmospheric conditions.
High-power tests. Tests in which the employer uses fault currents, load currents, magnetizing currents, and line-dropping currents to test equipment, either at the equipment's rated voltage or at lower voltages.
High-voltage tests. Tests in which the employer uses voltages of approximately 1,000 volts as a practical minimum and in which the voltage source has sufficient energy to cause injury.
High wind. A wind of such velocity that one or more of the following hazards would be present:
(1) The wind could blow an employee from an elevated location,
(2) The wind could cause an employee or equipment handling material to lose control of the material, or
(3) The wind would expose an employee to other hazards not controlled by the standard involved.
Note to the definition of “high wind”:
The Occupational Safety and Health Administration normally considers winds exceeding 64.4 kilometers per hour (40 miles per hour), or 48.3 kilometers per hour (30 miles per hour) if the work involves material handling, as meeting this criteria, unless the employer takes precautions to protect employees from the hazardous effects of the wind.
Host employer. An employer that operates, or that controls the operating procedures for, an electric power generation, transmission, or distribution installation on which a contract employer is performing work covered by subpart V of this part.
Note to the definition of “host employer”:
The Occupational Safety and Health Administration will treat the electric utility or the owner of the installation as the host employer if it operates or controls operating procedures for the installation. If the electric utility or installation owner neither operates nor controls operating procedures for the installation, the Occupational Safety and Health Administration will treat the employer that the utility or owner has contracted with to operate or control the operating procedures for the installation as the host employer. In no case will there be more than one host employer.
Immediately dangerous to life or health (IDLH). Any condition that poses an immediate or delayed threat to life or that would cause irreversible adverse health effects or that would interfere with an individual's ability to escape unaided from a permit space.
Note to the definition of “immediately dangerous to life or health”:
Some materials—hydrogen fluoride gas and cadmium vapor, for example—may produce immediate transient effects that, even if severe, may pass without medical attention, but are followed by sudden, possibly fatal collapse 12-72 hours after exposure. The victim “feels normal” from recovery from transient effects until collapse. Such materials in hazardous quantities are considered to be “immediately” dangerous to life or health.
Insulated. Separated from other conducting surfaces by a dielectric (including air space) offering a high resistance to the passage of current.
Note to the definition of “insulated”:
When any object is said to be insulated, it is understood to be insulated for the conditions to which it normally is subjected. Otherwise, it is, for the purpose of this subpart, uninsulated.
Insulation (cable). Material relied upon to insulate the conductor from other conductors or conducting parts or from ground.
Isolated. Not readily accessible to persons unless special means for access are used.
Line-clearance tree trimming. The pruning, trimming, repairing, maintaining, removing, or clearing of trees, or the cutting of brush, that is within the following distance of electric supply lines and equipment:
(1) For voltages to ground of 50 kilovolts or less—3.05 meters (10 feet);
(2) For voltages to ground of more than 50 kilovolts—3.05 meters (10 feet) plus 0.10 meters (4 inches) for every 10 kilovolts over 50 kilovolts.
Lines—(1) Communication lines. The conductors and their supporting or containing structures which are used for public or private signal or communication service, and which operate at potentials not exceeding 400 volts to ground or 750 volts between any two points of the circuit, and the transmitted power of which does not exceed 150 watts. If the lines are operating at less than 150 volts, no limit is placed on the transmitted power of the system. Under certain conditions, communication cables may include communication circuits exceeding these limitations where such circuits are also used to supply power solely to communication equipment.
Note to the definition of “communication lines”:
Telephone, telegraph, railroad signal, data, clock, fire, police alarm, cable television, and other systems conforming to this definition are included. Lines used for signaling purposes, but not included under this definition, are considered as electric supply lines of the same voltage.
(2) Electric supply lines. Conductors used to transmit electric energy and their necessary supporting or containing structures. Signal lines of more than 400 volts are always supply lines within this subpart, and those of less than 400 volts are considered as supply lines, if so run and operated throughout.
Manhole. A subsurface enclosure that personnel may enter and that is used for installing, operating, and maintaining submersible equipment or cable.
Minimum approach distance. The closest distance an employee may approach an energized or a grounded object.
Note to the definition of “minimum approach distance”:
Paragraph (c)(1)(i) of § 1926.960 requires employers to establish minimum approach distances.
Personal fall arrest system. A system used to arrest an employee in a fall from a working level.
Qualified employee (qualified person). An employee (person) knowledgeable in the construction and operation of the electric power generation, transmission, and distribution equipment involved, along with the associated hazards.
Note 1 to the definition of “qualified employee (qualified person)”:
An employee must have the training required by § 1926.950(b)(2) to be a qualified employee.
Note 2 to the definition of “qualified employee (qualified person)”:
Except under § 1926.954(b)(3)(iii), an employee who is undergoing on-the-job training and who has demonstrated, in the course of such training, an ability to perform duties safely at his or her level of training and who is under the direct supervision of a qualified person is a qualified person for the performance of those duties.
Statistical sparkover voltage. A transient overvoltage level that produces a 97.72-percent probability of sparkover (that is, two standard deviations above the voltage at which there is a 50-percent probability of sparkover).
Statistical withstand voltage. A transient overvoltage level that produces a 0.14-percent probability of sparkover (that is, three standard deviations below the voltage at which there is a 50-percent probability of sparkover).
Switch. A device for opening and closing or for changing the connection of a circuit. In this subpart, a switch is manually operable, unless otherwise stated.
System operator. A qualified person designated to operate the system or its parts.
Vault. An enclosure, above or below ground, that personnel may enter and that is used for installing, operating, or maintaining equipment or cable.
Vented vault. A vault that has provision for air changes using exhaust-flue stacks and low-level air intakes operating on pressure and temperature differentials that provide for airflow that precludes a hazardous atmosphere from developing.
Voltage. The effective (root mean square, or rms) potential difference between any two conductors or between a conductor and ground. This subpart expresses voltages in nominal values, unless otherwise indicated. The nominal voltage of a system or circuit is the value assigned to a system or circuit of a given voltage class for the purpose of convenient designation. The operating voltage of the system may vary above or below this value.
Work-positioning equipment. A body belt or body harness system rigged to allow an employee to be supported on an elevated vertical surface, such as a utility pole or tower leg, and work with both hands free while leaning.
[79 FR 20696, Apr. 11, 2014, as amended at 79 FR 56962, Sept. 24, 2014; 80 FR 25518, May 4, 2015; 85 FR 8745, Feb. 18, 2020]
Appendix B to Subpart V of Part 1926 Working on Exposed Energized Parts
I. Introduction
Electric utilities design electric power generation, transmission, and distribution installations to meet National Electrical Safety Code (NESC), ANSI C2, requirements. Electric utilities also design transmission and distribution lines to limit line outages as required by system reliability criteria 1 and to withstand the maximum overvoltages impressed on the system. Conditions such as switching surges, faults, and lightning can cause overvoltages. Electric utilities generally select insulator design and lengths and the clearances to structural parts so as to prevent outages from contaminated line insulation and during storms. Line insulator lengths and structural clearances have, over the years, come closer to the minimum approach distances used by workers. As minimum approach distances and structural clearances converge, it is increasingly important that system designers and system operating and maintenance personnel understand the concepts underlying minimum approach distances.
1 Federal, State, and local regulatory bodies and electric utilities set reliability requirements that limit the number and duration of system outages.
The information in this appendix will assist employers in complying with the minimum approach-distance requirements contained in §§ 1926.960(c)(1) and 1926.964(c). Employers must use the technical criteria and methodology presented in this appendix in establishing minimum approach distances in accordance with § 1926.960(c)(1)(i) and Table V-2 and Table V-7. This appendix provides essential background information and technical criteria for the calculation of the required minimum approach distances for live-line work on electric power generation, transmission, and distribution installations.
Unless an employer is using the maximum transient overvoltages specified in Table V-8 for voltages over 72.5 kilovolts, the employer must use persons knowledgeable in the techniques discussed in this appendix, and competent in the field of electric transmission and distribution system design, to determine the maximum transient overvoltage.
II. General
A. Definitions. The following definitions from § 1926.968 relate to work on or near electric power generation, transmission, and distribution lines and equipment and the electrical hazards they present.
Exposed. . . . Not isolated or guarded.
Guarded. Covered, fenced, enclosed, or otherwise protected, by means of suitable covers or casings, barrier rails or screens, mats, or platforms, designed to minimize the possibility, under normal conditions, of dangerous approach or inadvertent contact by persons or objects.
Note to the definition of “guarded”:
Wires that are insulated, but not otherwise protected, are not guarded.
Insulated. Separated from other conducting surfaces by a dielectric (including air space) offering a high resistance to the passage of current.
Note to the definition of “insulated”:
When any object is said to be insulated, it is understood to be insulated for the conditions to which it normally is subjected. Otherwise, it is, for the purpose of this subpart, uninsulated.
Isolated. Not readily accessible to persons unless special means for access are used.
Statistical sparkover voltage. A transient overvoltage level that produces a 97.72-percent probability of sparkover (that is, two standard deviations above the voltage at which there is a 50-percent probability of sparkover).
Statistical withstand voltage. A transient overvoltage level that produces a 0.14-percent probability of sparkover (that is, three standard deviations below the voltage at which there is a 50-percent probability of sparkover).
B. Installations energized at 50 to 300 volts. The hazards posed by installations energized at 50 to 300 volts are the same as those found in many other workplaces. That is not to say that there is no hazard, but the complexity of electrical protection required does not compare to that required for high-voltage systems. The employee must avoid contact with the exposed parts, and the protective equipment used (such as rubber insulating gloves) must provide insulation for the voltages involved.
C. Exposed energized parts over 300 volts AC. Paragraph (c)(1)(i) of § 1926.960 requires the employer to establish minimum approach distances no less than the distances computed by Table V-2 for ac systems so that employees can work safely without risk of sparkover. 2
2 Sparkover is a disruptive electric discharge in which an electric arc forms and electric current passes through air.
Unless the employee is using electrical protective equipment, air is the insulating medium between the employee and energized parts. The distance between the employee and an energized part must be sufficient for the air to withstand the maximum transient overvoltage that can reach the worksite under the working conditions and practices the employee is using. This distance is the minimum air insulation distance, and it is equal to the electrical component of the minimum approach distance.
Normal system design may provide or include a means (such as lightning arrestors) to control maximum anticipated transient overvoltages, or the employer may use temporary devices (portable protective gaps) or measures (such as preventing automatic circuit breaker reclosing) to achieve the same result. Paragraph (c)(1)(ii) of § 1926.960 requires the employer to determine the maximum anticipated per-unit transient overvoltage, phase-to-ground, through an engineering analysis or assume a maximum anticipated per-unit transient overvoltage, phase-to-ground, in accordance with Table V-8, which specifies the following maximums for ac systems:
72.6 to 420.0 kilovolts | 3.5 per unit.
420.1 to 550.0 kilovolts | 3.0 per unit.
550.1 to 800.0 kilovolts | 2.5 per unit.
See paragraph IV.A.2, later in this appendix, for additional discussion of maximum transient overvoltages.
D. Types of exposures. Employees working on or near energized electric power generation, transmission, and distribution systems face two kinds of exposures: Phase-to-ground and phase-to-phase. The exposure is phase-to-ground: (1) With respect to an energized part, when the employee is at ground potential or (2) with respect to ground, when an employee is at the potential of the energized part during live-line barehand work. The exposure is phase-to-phase, with respect to an energized part, when an employee is at the potential of another energized part (at a different potential) during live-line barehand work.
III. Determination of Minimum Approach Distances for AC Voltages Greater Than 300 Volts
A. Voltages of 301 to 5,000 volts. Test data generally forms the basis of minimum air insulation distances. The lowest voltage for which sufficient test data exists is 5,000 volts, and these data indicate that the minimum air insulation distance at that voltage is 20 millimeters (1 inch). Because the minimum air insulation distance increases with increasing voltage, and, conversely, decreases with decreasing voltage, an assumed minimum air insulation distance of 20 millimeters will protect against sparkover at voltages of 301 to 5,000 volts. Thus, 20 millimeters is the electrical component of the minimum approach distance for these voltages.
B. Voltages of 5.1 to 72.5 kilovolts. For voltages from 5.1 to 72.5 kilovolts, the Occupational Safety and Health Administration bases the methodology for calculating the electrical component of the minimum approach distance on Institute of Electrical and Electronic Engineers (IEEE) Standard 4-1995, Standard Techniques for High-Voltage Testing. Table 1 lists the critical sparkover distances from that standard as listed in IEEE Std 516-2009, IEEE Guide for Maintenance Methods on Energized Power Lines.
Table 1—Sparkover Distance for Rod-to-Rod Gap
60 Hz rod-to-rod sparkover (kV peak) | Gap spacing from IEEE Std 4-1995 (cm)
25 | 2
36 | 3
46 | 4
53 | 5
60 | 6
70 | 8
79 | 10
86 | 12
95 | 14
104 | 16
112 | 18
120 | 20
143 | 25
167 | 30
192 | 35
218 | 40
243 | 45
270 | 50
322 | 60
Source: IEEE Std 516-2009.
To use this table to determine the electrical component of the minimum approach distance, the employer must determine the peak phase-to-ground transient overvoltage and select a gap from the table that corresponds to that voltage as a withstand voltage rather than a critical sparkover voltage. To calculate the electrical component of the minimum approach distance for voltages between 5 and 72.5 kilovolts, use the following procedure:
1. Divide the phase-to-phase voltage by the square root of 3 to convert it to a phase-to-ground voltage.
2. Multiply the phase-to-ground voltage by the square root of 2 to convert the rms value of the voltage to the peak phase-to-ground voltage.
3. Multiply the peak phase-to-ground voltage by the maximum per-unit transient overvoltage, which, for this voltage range, is 3.0, as discussed later in this appendix. This is the maximum phase-to-ground transient overvoltage, which corresponds to the withstand voltage for the relevant exposure. 3
3 The withstand voltage is the voltage at which sparkover is not likely to occur across a specified distance. It is the voltage taken at the 3σ point below the sparkover voltage, assuming that the sparkover curve follows a normal distribution.
4. Divide the maximum phase-to-ground transient overvoltage by 0.85 to determine the corresponding critical sparkover voltage. (The critical sparkover voltage is 3 standard deviations (or 15 percent) greater than the withstand voltage.)
5. Determine the electrical component of the minimum approach distance from Table 1 through interpolation.
Table 2 illustrates how to derive the electrical component of the minimum approach distance for voltages from 5.1 to 72.5 kilovolts, before the application of any altitude correction factor, as explained later.
Table 2—Calculating the Electrical Component of MAD—751 V to 72.5 kV
Step | Maximum system phase-to-phase voltage (kV)
15 | 36 | 46 | 72.5
1. Divide by √3 | 8.7 | 20.8 | 26.6 | 41.9
2. Multiply by √2 | 12.2 | 29.4 | 37.6 | 59.2
3. Multiply by 3.0 | 36.7 | 88.2 | 112.7 | 177.6
4. Divide by 0.85 | 43.2 | 103.7 | 132.6 | 208.9
5. Interpolate from Table 1 | 3 + (7.2/10) 1 | 14 + (8.7/9)*2 | 20 + (12.6/23)*5 | 35 + (16.9/26)*5
Electrical component of MAD (cm) | 3.72 | 15.93 | 22.74 | 38.25
C. Voltages of 72.6 to 800 kilovolts. For voltages of 72.6 kilovolts to 800 kilovolts, this subpart bases the electrical component of minimum approach distances, before the application of any altitude correction factor, on the following formula:
Equation 1—For voltages of 72.6 kV to 800 kV
D = 0.3048(C + a)VL-GT
Where:
D = Electrical component of the minimum approach distance in air in meters;
C = a correction factor associated with the variation of gap sparkover with voltage;
a = A factor relating to the saturation of air at system voltages of 345 kilovolts or higher; 4
4 Test data demonstrates that the saturation factor is greater than 0 at peak voltages of about 630 kilovolts. Systems operating at 345 kilovolts (or maximum system voltages of 362 kilovolts) can have peak maximum transient overvoltages exceeding 630 kilovolts. Table V-2 sets equations for calculating a based on peak voltage.
VL-G = Maximum system line-to-ground rms voltage in kilovolts—it should be the “actual” maximum, or the normal highest voltage for the range (for example, 10 percent above the nominal voltage); and
T = Maximum transient overvoltage factor in per unit.
In Equation 1, C is 0.01: (1) For phase-to-ground exposures that the employer can demonstrate consist only of air across the approach distance (gap) and (2) for phase-to-phase exposures if the employer can demonstrate that no insulated tool spans the gap and that no large conductive object is in the gap. Otherwise, C is 0.011.
In Equation 1, the term a varies depending on whether the employee's exposure is phase-to-ground or phase-to-phase and on whether objects are in the gap. The employer must use the equations in Table 3 to calculate a. Sparkover test data with insulation spanning the gap form the basis for the equations for phase-to-ground exposures, and sparkover test data with only air in the gap form the basis for the equations for phase-to-phase exposures. The phase-to-ground equations result in slightly higher values of a, and, consequently, produce larger minimum approach distances, than the phase-to-phase equations for the same value of VPeak.
In Equation 1, T is the maximum transient overvoltage factor in per unit. As noted earlier, § 1926.960(c)(1)(ii) requires the employer to determine the maximum anticipated per-unit transient overvoltage, phase-to-ground, through an engineering analysis or assume a maximum anticipated per-unit transient overvoltage, phase-to-ground, in accordance with Table V-8. For phase-to-ground exposures, the employer uses this value, called TL-G, as T in Equation 1. IEEE Std 516-2009 provides the following formula to calculate the phase-to-phase maximum transient overvoltage, TL-L, from TL-G:
TL-L = 1.35TL-G + 0.45.
For phase-to-phase exposures, the employer uses this value as T in Equation 1.
D. Provisions for inadvertent movement. The minimum approach distance must include an “adder” to compensate for the inadvertent movement of the worker relative to an energized part or the movement of the part relative to the worker. This “adder” must account for this possible inadvertent movement and provide the worker with a comfortable and safe zone in which to work. Employers must add the distance for inadvertent movement (called the “ergonomic component of the minimum approach distance”) to the electrical component to determine the total safe minimum approach distances used in live-line work.
The Occupational Safety and Health Administration based the ergonomic component of the minimum approach distance on response time-distance analysis. This technique uses an estimate of the total response time to a hazardous incident and converts that time to the distance traveled. For example, the driver of a car takes a given amount of time to respond to a “stimulus” and stop the vehicle. The elapsed time involved results in the car's traveling some distance before coming to a complete stop. This distance depends on the speed of the car at the time the stimulus appears and the reaction time of the driver.
In the case of live-line work, the employee must first perceive that he or she is approaching the danger zone. Then, the worker responds to the danger and must decelerate and stop all motion toward the energized part. During the time it takes to stop, the employee will travel some distance. This is the distance the employer must add to the electrical component of the minimum approach distance to obtain the total safe minimum approach distance.
At voltages from 751 volts to 72.5 kilovolts, 5 the electrical component of the minimum approach distance is smaller than the ergonomic component. At 72.5 kilovolts, the electrical component is only a little more than 0.3 meters (1 foot). An ergonomic component of the minimum approach distance must provide for all the worker's unanticipated movements. At these voltages, workers generally use rubber insulating gloves; however, these gloves protect only a worker's hands and arms. Therefore, the energized object must be at a safe approach distance to protect the worker's face. In this case, 0.61 meters (2 feet) is a sufficient and practical ergonomic component of the minimum approach distance.
5 For voltages of 50 to 300 volts, Table V-2 specifies a minimum approach distance of “avoid contact.” The minimum approach distance for this voltage range contains neither an electrical component nor an ergonomic component.
For voltages between 72.6 and 800 kilovolts, employees must use different work practices during energized line work. Generally, employees use live-line tools (hot sticks) to perform work on energized equipment. These tools, by design, keep the energized part at a constant distance from the employee and, thus, maintain the appropriate minimum approach distance automatically.
The location of the worker and the type of work methods the worker is using also influence the length of the ergonomic component of the minimum approach distance. In this higher voltage range, the employees use work methods that more tightly control their movements than when the workers perform work using rubber insulating gloves. The worker, therefore, is farther from the energized line or equipment and must be more precise in his or her movements just to perform the work. For these reasons, this subpart adopts an ergonomic component of the minimum approach distance of 0.31 m (1 foot) for voltages between 72.6 and 800 kilovolts.
Table 4 summarizes the ergonomic component of the minimum approach distance for various voltage ranges.
Table 4—Ergonomic Component of Minimum Approach Distance
Voltage range (kV) | Distance
m | ft
0.301 to 0.750 | 0.31 | 1.0
0.751 to 72.5 | 0.61 | 2.0
72.6 to 800 | 0.31 | 1.0
Note: The employer must add this distance to the electrical component of the minimum approach distance to obtain the full minimum approach distance.
The ergonomic component of the minimum approach distance accounts for errors in maintaining the minimum approach distance (which might occur, for example, if an employee misjudges the length of a conductive object he or she is holding), and for errors in judging the minimum approach distance. The ergonomic component also accounts for inadvertent movements by the employee, such as slipping. In contrast, the working position selected to properly maintain the minimum approach distance must account for all of an employee's reasonably likely movements and still permit the employee to adhere to the applicable minimum approach distance. (See Figure 1.) Reasonably likely movements include an employee's adjustments to tools, equipment, and working positions and all movements needed to perform the work. For example, the employee should be able to perform all of the following actions without straying into the minimum approach distance:
• Adjust his or her hardhat,
• maneuver a tool onto an energized part with a reasonable amount of overreaching or underreaching,
• reach for and handle tools, material, and equipment passed to him or her, and
• adjust tools, and replace components on them, when necessary during the work procedure.
The training of qualified employees required under § 1926.950, and the job planning and briefing required under § 1926.952, must address selection of a proper working position.
E. Miscellaneous correction factors. Changes in the air medium that forms the insulation influences the strength of an air gap. A brief discussion of each factor follows.
1. Dielectric strength of air. The dielectric strength of air in a uniform electric field at standard atmospheric conditions is approximately 3 kilovolts per millimeter. 6 The pressure, temperature, and humidity of the air, the shape, dimensions, and separation of the electrodes, and the characteristics of the applied voltage (wave shape) affect the disruptive gradient.
6 For the purposes of estimating arc length, Subpart V generally assumes a more conservative dielectric strength of 10 kilovolts per 25.4 millimeters, consistent with assumptions made in consensus standards such as the National Electrical Safety Code (IEEE C2-2012). The more conservative value accounts for variables such as electrode shape, wave shape, and a certain amount of overvoltage.
2. Atmospheric effect. The empirically determined electrical strength of a given gap is normally applicable at standard atmospheric conditions (20 °C, 101.3 kilopascals, 11 grams/cubic centimeter humidity). An increase in the density (humidity) of the air inhibits sparkover for a given air gap. The combination of temperature and air pressure that results in the lowest gap sparkover voltage is high temperature and low pressure. This combination of conditions is not likely to occur. Low air pressure, generally associated with high humidity, causes increased electrical strength. An average air pressure generally correlates with low humidity. Hot and dry working conditions normally result in reduced electrical strength. The equations for minimum approach distances in Table V-2 assume standard atmospheric conditions.
3. Altitude. The reduced air pressure at high altitudes causes a reduction in the electrical strength of an air gap. An employer must increase the minimum approach distance by about 3 percent per 300 meters (1,000 feet) of increased altitude for altitudes above 900 meters (3,000 feet). Table V-4 specifies the altitude correction factor that the employer must use in calculating minimum approach distances.
IV. Determining Minimum Approach Distances
A. Factors Affecting Voltage Stress at the Worksite
1. System voltage (nominal). The nominal system voltage range determines the voltage for purposes of calculating minimum approach distances. The employer selects the range in which the nominal system voltage falls, as given in the relevant table, and uses the highest value within that range in per-unit calculations.
2. Transient overvoltages. Operation of switches or circuit breakers, a fault on a line or circuit or on an adjacent circuit, and similar activities may generate transient overvoltages on an electrical system. Each overvoltage has an associated transient voltage wave shape. The wave shape arriving at the site and its magnitude vary considerably.
In developing requirements for minimum approach distances, the Occupational Safety and Health Administration considered the most common wave shapes and the magnitude of transient overvoltages found on electric power generation, transmission, and distribution systems. The equations in Table V-2 for minimum approach distances use per-unit maximum transient overvoltages, which are relative to the nominal maximum voltage of the system. For example, a maximum transient overvoltage value of 3.0 per unit indicates that the highest transient overvoltage is 3.0 times the nominal maximum system voltage.
3. Typical magnitude of overvoltages. Table 5 lists the magnitude of typical transient overvoltages.
Table 5—Magnitude of Typical Transient Overvoltages
Cause | Magnitude (per unit)
Energized 200-mile line without closing resistors | 3.5
Energized 200-mile line with one-step closing resistor | 2.1
Energized 200-mile line with multistep resistor | 2.5
Reclosing with trapped charge one-step resistor | 2.2
Opening surge with single restrike | 3.0
Fault initiation unfaulted phase | 2.1
Fault initiation adjacent circuit | 2.5
Fault clearing | 1.7 to 1.9
4. Standard deviation—air-gap withstand. For each air gap length under the same atmospheric conditions, there is a statistical variation in the breakdown voltage. The probability of breakdown against voltage has a normal (Gaussian) distribution. The standard deviation of this distribution varies with the wave shape, gap geometry, and atmospheric conditions. The withstand voltage of the air gap is three standard deviations (3σ) below the critical sparkover voltage. (The critical sparkover voltage is the crest value of the impulse wave that, under specified conditions, causes sparkover 50 percent of the time. An impulse wave of three standard deviations below this value, that is, the withstand voltage, has a probability of sparkover of approximately 1 in 1,000.)
5. Broken Insulators. Tests show reductions in the insulation strength of insulator strings with broken skirts. Broken units may lose up to 70 percent of their withstand capacity. Because an employer cannot determine the insulating capability of a broken unit without testing it, the employer must consider damaged units in an insulator to have no insulating value. Additionally, the presence of a live-line tool alongside an insulator string with broken units may further reduce the overall insulating strength. The number of good units that must be present in a string for it to be “insulated” as defined by § 1926.968 depends on the maximum overvoltage possible at the worksite.
B. Minimum Approach Distances Based on Known, Maximum-Anticipated Per-Unit Transient Overvoltages
1. Determining the minimum approach distance for AC systems. Under § 1926.960(c)(1)(ii), the employer must determine the maximum anticipated per-unit transient overvoltage, phase-to-ground, through an engineering analysis or must assume a maximum anticipated per-unit transient overvoltage, phase-to-ground, in accordance with Table V-8. When the employer conducts an engineering analysis of the system and determines that the maximum transient overvoltage is lower than specified by Table V-8, the employer must ensure that any conditions assumed in the analysis, for example, that employees block reclosing on a circuit or install portable protective gaps, are present during energized work. To ensure that these conditions are present, the employer may need to institute new live-work procedures reflecting the conditions and limitations set by the engineering analysis.
2. Calculation of reduced approach distance values. An employer may take the following steps to reduce minimum approach distances when the maximum transient overvoltage on the system (that is, the maximum transient overvoltage without additional steps to control overvoltages) produces unacceptably large minimum approach distances:
Step 1. Determine the maximum voltage (with respect to a given nominal voltage range) for the energized part.
Step 2. Determine the technique to use to control the maximum transient overvoltage. (See paragraphs IV.C and IV.D of this appendix.) Determine the maximum transient overvoltage that can exist at the worksite with that form of control in place and with a confidence level of 3σ . This voltage is the withstand voltage for the purpose of calculating the appropriate minimum approach distance.
Step 3. Direct employees to implement procedures to ensure that the control technique is in effect during the course of the work.
Step 4. Using the new value of transient overvoltage in per unit, calculate the required minimum approach distance from Table V-2.
C. Methods of Controlling Possible Transient Overvoltage Stress Found on a System
1. Introduction. There are several means of controlling overvoltages that occur on transmission systems. For example, the employer can modify the operation of circuit breakers or other switching devices to reduce switching transient overvoltages. Alternatively, the employer can hold the overvoltage to an acceptable level by installing surge arresters or portable protective gaps on the system. In addition, the employer can change the transmission system to minimize the effect of switching operations. Section 4.8 of IEEE Std 516-2009 describes various ways of controlling, and thereby reducing, maximum transient overvoltages.
2. Operation of circuit breakers. 7 The maximum transient overvoltage that can reach the worksite is often the result of switching on the line on which employees are working. Disabling automatic reclosing during energized line work, so that the line will not be reenergized after being opened for any reason, limits the maximum switching surge overvoltage to the larger of the opening surge or the greatest possible fault-generated surge, provided that the devices (for example, insertion resistors) are operable and will function to limit the transient overvoltage and that circuit breaker restrikes do not occur. The employer must ensure the proper functioning of insertion resistors and other overvoltage-limiting devices when the employer's engineering analysis assumes their proper operation to limit the overvoltage level. If the employer cannot disable the reclosing feature (because of system operating conditions), other methods of controlling the switching surge level may be necessary.
7 The detailed design of a circuit interrupter, such as the design of the contacts, resistor insertion, and breaker timing control, are beyond the scope of this appendix. The design of the system generally accounts for these features. This appendix only discusses features that can limit the maximum switching transient overvoltage on a system.
Transient surges on an adjacent line, particularly for double circuit construction, may cause a significant overvoltage on the line on which employees are working. The employer's engineering analysis must account for coupling to adjacent lines.
3. Surge arresters. The use of modern surge arresters allows a reduction in the basic impulse-insulation levels of much transmission system equipment. The primary function of early arresters was to protect the system insulation from the effects of lightning. Modern arresters not only dissipate lightning-caused transients, but may also control many other system transients caused by switching or faults.
The employer may use properly designed arresters to control transient overvoltages along a transmission line and thereby reduce the requisite length of the insulator string and possibly the maximum transient overvoltage on the line. 8
8 Surge arrester application is beyond the scope of this appendix. However, if the employer installs the arrester near the work site, the application would be similar to the protective gaps discussed in paragraph IV.D of this appendix.
4. Switching Restrictions. Another form of overvoltage control involves establishing switching restrictions, whereby the employer prohibits the operation of circuit breakers until certain system conditions are present. The employer restricts switching by using a tagging system, similar to that used for a permit, except that the common term used for this activity is a “hold-off” or “restriction.” These terms indicate that the restriction does not prevent operation, but only modifies the operation during the live-work activity.
D. Minimum Approach Distance Based on Control of Maximum Transient Overvoltage at the Worksite
When the employer institutes control of maximum transient overvoltage at the worksite by installing portable protective gaps, the employer may calculate the minimum approach distance as follows:
Step 1. Select the appropriate withstand voltage for the protective gap based on system requirements and an acceptable probability of gap sparkover. 9
9 The employer should check the withstand voltage to ensure that it results in a probability of gap flashover that is acceptable from a system outage perspective. (In other words, a gap sparkover will produce a system outage. The employer should determine whether such an outage will impact overall system performance to an acceptable degree.) In general, the withstand voltage should be at least 1.25 times the maximum crest operating voltage.
Step 2. Determine a gap distance that provides a withstand voltage 10 greater than or equal to the one selected in the first step. 11
10 The manufacturer of the gap provides, based on test data, the critical sparkover voltage for each gap spacing (for example, a critical sparkover voltage of 665 kilovolts for a gap spacing of 1.2 meters). The withstand voltage for the gap is equal to 85 percent of its critical sparkover voltage.
11 Switch steps 1 and 2 if the length of the protective gap is known.
Step 3. Use 110 percent of the gap's critical sparkover voltage to determine the phase-to-ground peak voltage at gap sparkover (VPPG Peak).
Step 4. Determine the maximum transient overvoltage, phase-to-ground, at the worksite from the following formula:
Step 5. Use this value of T 12 in the equation in Table V-2 to obtain the minimum approach distance. If the worksite is no more than 900 meters (3,000 feet) above sea level, the employer may use this value of T to determine the minimum approach distance from Table 7 through Table 14.
12 IEEE Std 516-2009 states that most employers add 0.2 to the calculated value of T as an additional safety factor.
Note:
All rounding must be to the next higher value (that is, always round up).
Sample protective gap calculations.
Problem: Employees are to perform work on a 500-kilovolt transmission line at sea level that is subject to transient overvoltages of 2.4 p.u. The maximum operating voltage of the line is 550 kilovolts. Determine the length of the protective gap that will provide the minimum practical safe approach distance. Also, determine what that minimum approach distance is.
Step 1. Calculate the smallest practical maximum transient overvoltage (1.25 times the crest phase-to-ground voltage): 13
13 To eliminate sparkovers due to minor system disturbances, the employer should use a withstand voltage no lower than 1.25 p.u. Note that this is a practical, or operational, consideration only. It may be feasible for the employer to use lower values of withstand voltage.
This value equals the withstand voltage of the protective gap.
Step 2. Using test data for a particular protective gap, select a gap that has a critical sparkover voltage greater than or equal to:
561kV ÷ 0.85 = 660kV
For example, if a protective gap with a 1.22-m (4.0-foot) spacing tested to a critical sparkover voltage of 665 kilovolts (crest), select this gap spacing.
Step 3. The phase-to-ground peak voltage at gap sparkover (VPPG Peak) is 110 percent of the value from the previous step:
665kV × 1.10 = 732kV
This value corresponds to the withstand voltage of the electrical component of the minimum approach distance.
Step 4. Use this voltage to determine the worksite value of T:
Step 5. Use this value of T in the equation in Table V-2 to obtain the minimum approach distance, or look up the minimum approach distance in Table 7 through Table 14:
MAD = 2.29m(7.6ft)
E. Location of Protective Gaps
1. Adjacent structures. The employer may install the protective gap on a structure adjacent to the worksite, as this practice does not significantly reduce the protection afforded by the gap.
2. Terminal stations. Gaps installed at terminal stations of lines or circuits provide a level of protection; however, that level of protection may not extend throughout the length of the line to the worksite. The use of substation terminal gaps raises the possibility that separate surges could enter the line at opposite ends, each with low enough magnitude to pass the terminal gaps without sparkover. When voltage surges occur simultaneously at each end of a line and travel toward each other, the total voltage on the line at the point where they meet is the arithmetic sum of the two surges. A gap installed within 0.8 km (0.5 mile) of the worksite will protect against such intersecting waves. Engineering studies of a particular line or system may indicate that employers can adequately protect employees by installing gaps at even more distant locations. In any event, unless using the default values for T from Table V-8, the employer must determine T at the worksite.
3. Worksite. If the employer installs protective gaps at the worksite, the gap setting establishes the worksite impulse insulation strength. Lightning strikes as far as 6 miles from the worksite can cause a voltage surge greater than the gap withstand voltage, and a gap sparkover can occur. In addition, the gap can sparkover from overvoltages on the line that exceed the withstand voltage of the gap. Consequently, the employer must protect employees from hazards resulting from any sparkover that could occur.
F. Disabling automatic reclosing. There are two reasons to disable the automatic-reclosing feature of circuit-interrupting devices while employees are performing live-line work:
• To prevent reenergization of a circuit faulted during the work, which could create a hazard or result in more serious injuries or damage than the injuries or damage produced by the original fault;
• To prevent any transient overvoltage caused by the switching surge that would result if the circuit were reenergized.
However, due to system stability considerations, it may not always be feasible to disable the automatic-reclosing feature.
V. Minimum Approach-Distance Tables
A. Legacy tables. Employers may use the minimum approach distances in Table 6 until March 31, 2015.
Table 6—Minimum Approach Distances Until March 31, 2015
Voltage range phase to phase (kV) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
2.1 to 15.0 | 0.64 | 2.1 | 0.61 | 2.0
15.1 to 35.0 | 0.71 | 2.3 | 0.71 | 2.3
35.1 to 46.0 | 0.76 | 2.5 | 0.76 | 2.5
46.1 to 72.5 | 0.91 | 3.0 | 0.91 | 3.0
72.6 to 121 | 1.02 | 3.3 | 1.37 | 4.5
138 to 145 | 1.07 | 3.5 | 1.52 | 5.0
161 to 169 | 1.12 | 3.7 | 1.68 | 5.5
230 to 242 | 1.52 | 5.0 | 2.54 | 8.3
345 to 362 * | 2.13 | 7.0 | 4.06 | 13.3
500 to 552 * | 3.35 | 11.0 | 6.10 | 20.0
700 to 765 * | 4.57 | 15.0 | 9.45 | 31.0
* The minimum approach distance may be the shortest distance between the energized part and the grounded surface.
B. Alternative minimum approach distances. Employers may use the minimum approach distances in Table 7 through Table 14 provided that the employer follows the notes to those tables.
Table 7—AC Minimum Approach Distances—72.6 to 121.0 kV
T (p.u.) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
1.5 | 0.67 | 2.2 | 0.84 | 2.8
1.6 | 0.69 | 2.3 | 0.87 | 2.9
1.7 | 0.71 | 2.3 | 0.90 | 3.0
1.8 | 0.74 | 2.4 | 0.93 | 3.1
1.9 | 0.76 | 2.5 | 0.96 | 3.1
2.0 | 0.78 | 2.6 | 0.99 | 3.2
2.1 | 0.81 | 2.7 | 1.01 | 3.3
2.2 | 0.83 | 2.7 | 1.04 | 3.4
2.3 | 0.85 | 2.8 | 1.07 | 3.5
2.4 | 0.88 | 2.9 | 1.10 | 3.6
2.5 | 0.90 | 3.0 | 1.13 | 3.7
2.6 | 0.92 | 3.0 | 1.16 | 3.8
2.7 | 0.95 | 3.1 | 1.19 | 3.9
2.8 | 0.97 | 3.2 | 1.22 | 4.0
2.9 | 0.99 | 3.2 | 1.24 | 4.1
3.0 | 1.02 | 3.3 | 1.27 | 4.2
3.1 | 1.04 | 3.4 | 1.30 | 4.3
3.2 | 1.06 | 3.5 | 1.33 | 4.4
3.3 | 1.09 | 3.6 | 1.36 | 4.5
3.4 | 1.11 | 3.6 | 1.39 | 4.6
3.5 | 1.13 | 3.7 | 1.42 | 4.7
Table 8—AC Minimum Approach Distances—121.1 to 145.0 kV
T (p.u.) | Phase-to-ground rxposure | Phase-to-phase rxposure
m | ft | m | ft
1.5 | 0.74 | 2.4 | 0.95 | 3.1
1.6 | 0.76 | 2.5 | 0.98 | 3.2
1.7 | 0.79 | 2.6 | 1.02 | 3.3
1.8 | 0.82 | 2.7 | 1.05 | 3.4
1.9 | 0.85 | 2.8 | 1.08 | 3.5
2.0 | 0.88 | 2.9 | 1.12 | 3.7
2.1 | 0.90 | 3.0 | 1.15 | 3.8
2.2 | 0.93 | 3.1 | 1.19 | 3.9
2.3 | 0.96 | 3.1 | 1.22 | 4.0
2.4 | 0.99 | 3.2 | 1.26 | 4.1
2.5 | 1.02 | 3.3 | 1.29 | 4.2
2.6 | 1.04 | 3.4 | 1.33 | 4.4
2.7 | 1.07 | 3.5 | 1.36 | 4.5
2.8 | 1.10 | 3.6 | 1.39 | 4.6
2.9 | 1.13 | 3.7 | 1.43 | 4.7
3.0 | 1.16 | 3.8 | 1.46 | 4.8
3.1 | 1.19 | 3.9 | 1.50 | 4.9
3.2 | 1.21 | 4.0 | 1.53 | 5.0
3.3 | 1.24 | 4.1 | 1.57 | 5.2
3.4 | 1.27 | 4.2 | 1.60 | 5.2
3.5 | 1.30 | 4.3 | 1.64 | 5.4
Table 9—AC Minimum Approach Distances—145.1 to 169.0 kV
T (p.u.) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
1.5 | 0.81 | 2.7 | 1.05 | 3.4
1.6 | 0.84 | 2.8 | 1.09 | 3.6
1.7 | 0.87 | 2.9 | 1.13 | 3.7
1.8 | 0.90 | 3.0 | 1.17 | 3.8
1.9 | 0.94 | 3.1 | 1.21 | 4.0
2.0 | 0.97 | 3.2 | 1.25 | 4.1
2.1 | 1.00 | 3.3 | 1.29 | 4.2
2.2 | 1.03 | 3.4 | 1.33 | 4.4
2.3 | 1.07 | 3.5 | 1.37 | 4.5
2.4 | 1.10 | 3.6 | 1.41 | 4.6
2.5 | 1.13 | 3.7 | 1.45 | 4.8
2.6 | 1.17 | 3.8 | 1.49 | 4.9
2.7 | 1.20 | 3.9 | 1.53 | 5.0
2.8 | 1.23 | 4.0 | 1.57 | 5.2
2.9 | 1.26 | 4.1 | 1.61 | 5.3
3.0 | 1.30 | 4.3 | 1.65 | 5.4
3.1 | 1.33 | 4.4 | 1.70 | 5.6
3.2 | 1.36 | 4.5 | 1.76 | 5.8
3.3 | 1.39 | 4.6 | 1.82 | 6.0
3.4 | 1.43 | 4.7 | 1.88 | 6.2
3.5 | 1.46 | 4.8 | 1.94 | 6.4
Table 10—AC Minimum Approach Distances—169.1 to 242.0 kV
T (p.u.) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
1.5 | 1.02 | 3.3 | 1.37 | 4.5
1.6 | 1.06 | 3.5 | 1.43 | 4.7
1.7 | 1.11 | 3.6 | 1.48 | 4.9
1.8 | 1.16 | 3.8 | 1.54 | 5.1
1.9 | 1.21 | 4.0 | 1.60 | 5.2
2.0 | 1.25 | 4.1 | 1.66 | 5.4
2.1 | 1.30 | 4.3 | 1.73 | 5.7
2.2 | 1.35 | 4.4 | 1.81 | 5.9
2.3 | 1.39 | 4.6 | 1.90 | 6.2
2.4 | 1.44 | 4.7 | 1.99 | 6.5
2.5 | 1.49 | 4.9 | 2.08 | 6.8
2.6 | 1.53 | 5.0 | 2.17 | 7.1
2.7 | 1.58 | 5.2 | 2.26 | 7.4
2.8 | 1.63 | 5.3 | 2.36 | 7.7
2.9 | 1.67 | 5.5 | 2.45 | 8.0
3.0 | 1.72 | 5.6 | 2.55 | 8.4
3.1 | 1.77 | 5.8 | 2.65 | 8.7
3.2 | 1.81 | 5.9 | 2.76 | 9.1
3.3 | 1.88 | 6.2 | 2.86 | 9.4
3.4 | 1.95 | 6.4 | 2.97 | 9.7
3.5 | 2.01 | 6.6 | 3.08 | 10.1
Table 11—AC Minimum Approach Distances—242.1 to 362.0 kV
T (p.u.) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
1.5 | 1.37 | 4.5 | 1.99 | 6.5
1.6 | 1.44 | 4.7 | 2.13 | 7.0
1.7 | 1.51 | 5.0 | 2.27 | 7.4
1.8 | 1.58 | 5.2 | 2.41 | 7.9
1.9 | 1.65 | 5.4 | 2.56 | 8.4
2.0 | 1.72 | 5.6 | 2.71 | 8.9
2.1 | 1.79 | 5.9 | 2.87 | 9.4
2.2 | 1.87 | 6.1 | 3.03 | 9.9
2.3 | 1.97 | 6.5 | 3.20 | 10.5
2.4 | 2.08 | 6.8 | 3.37 | 11.1
2.5 | 2.19 | 7.2 | 3.55 | 11.6
2.6 | 2.29 | 7.5 | 3.73 | 12.2
2.7 | 2.41 | 7.9 | 3.91 | 12.8
2.8 | 2.52 | 8.3 | 4.10 | 13.5
2.9 | 2.64 | 8.7 | 4.29 | 14.1
3.0 | 2.76 | 9.1 | 4.49 | 14.7
3.1 | 2.88 | 9.4 | 4.69 | 15.4
3.2 | 3.01 | 9.9 | 4.90 | 16.1
3.3 | 3.14 | 10.3 | 5.11 | 16.8
3.4 | 3.27 | 10.7 | 5.32 | 17.5
3.5 | 3.41 | 11.2 | 5.52 | 18.1
Table 12—AC Minimum Approach Distances—362.1 to 420.0 kV
T (p.u.) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
1.5 | 1.53 | 5.0 | 2.40 | 7.9
1.6 | 1.62 | 5.3 | 2.58 | 8.5
1.7 | 1.70 | 5.6 | 2.75 | 9.0
1.8 | 1.78 | 5.8 | 2.94 | 9.6
1.9 | 1.88 | 6.2 | 3.13 | 10.3
2.0 | 1.99 | 6.5 | 3.33 | 10.9
2.1 | 2.12 | 7.0 | 3.53 | 11.6
2.2 | 2.24 | 7.3 | 3.74 | 12.3
2.3 | 2.37 | 7.8 | 3.95 | 13.0
2.4 | 2.50 | 8.2 | 4.17 | 13.7
2.5 | 2.64 | 8.7 | 4.40 | 14.4
2.6 | 2.78 | 9.1 | 4.63 | 15.2
2.7 | 2.93 | 9.6 | 4.87 | 16.0
2.8 | 3.07 | 10.1 | 5.11 | 16.8
2.9 | 3.23 | 10.6 | 5.36 | 17.6
3.0 | 3.38 | 11.1 | 5.59 | 18.3
3.1 | 3.55 | 11.6 | 5.82 | 19.1
3.2 | 3.72 | 12.2 | 6.07 | 19.9
3.3 | 3.89 | 12.8 | 6.31 | 20.7
3.4 | 4.07 | 13.4 | 6.56 | 21.5
3.5 | 4.25 | 13.9 | 6.81 | 22.3
Table 13—AC Minimum Approach Distances—420.1 to 550.0 kV
T (p.u.) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
1.5 | 1.95 | 6.4 | 3.46 | 11.4
1.6 | 2.11 | 6.9 | 3.73 | 12.2
1.7 | 2.28 | 7.5 | 4.02 | 13.2
1.8 | 2.45 | 8.0 | 4.31 | 14.1
1.9 | 2.62 | 8.6 | 4.61 | 15.1
2.0 | 2.81 | 9.2 | 4.92 | 16.1
2.1 | 3.00 | 9.8 | 5.25 | 17.2
2.2 | 3.20 | 10.5 | 5.55 | 18.2
2.3 | 3.40 | 11.2 | 5.86 | 19.2
2.4 | 3.62 | 11.9 | 6.18 | 20.3
2.5 | 3.84 | 12.6 | 6.50 | 21.3
2.6 | 4.07 | 13.4 | 6.83 | 22.4
2.7 | 4.31 | 14.1 | 7.18 | 23.6
2.8 | 4.56 | 15.0 | 7.52 | 24.7
2.9 | 4.81 | 15.8 | 7.88 | 25.9
3.0 | 5.07 | 16.6 | 8.24 | 27.0
Table 14—AC Minimum Approach Distances—550.1 to 800.0 kV
T (p.u.) | Phase-to-ground exposure | Phase-to-phase exposure
m | ft | m | ft
1.5 | 3.16 | 10.4 | 5.97 | 19.6
1.6 | 3.46 | 11.4 | 6.43 | 21.1
1.7 | 3.78 | 12.4 | 6.92 | 22.7
1.8 | 4.12 | 13.5 | 7.42 | 24.3
1.9 | 4.47 | 14.7 | 7.93 | 26.0
2.0 | 4.83 | 15.8 | 8.47 | 27.8
2.1 | 5.21 | 17.1 | 9.02 | 29.6
2.2 | 5.61 | 18.4 | 9.58 | 31.4
2.3 | 6.02 | 19.8 | 10.16 | 33.3
2.4 | 6.44 | 21.1 | 10.76 | 35.3
2.5 | 6.88 | 22.6 | 11.38 | 37.3
Notes to Table 7 through Table 14:
1. The employer must determine the maximum anticipated per-unit transient overvoltage, phase-to-ground, through an engineering analysis, as required by § 1926.960(c)(1)(ii), or assume a maximum anticipated per-unit transient overvoltage, phase-to-ground, in accordance with Table V-8.
2. For phase-to-phase exposures, the employer must demonstrate that no insulated tool spans the gap and that no large conductive object is in the gap.
3. The worksite must be at an elevation of 900 meters (3,000 feet) or less above sea level.
[79 FR 20696, Apr. 11, 2014, as amended at 79 FR 56962, Sept. 24, 2014]
Appendix C to Subpart V of Part 1926 Protection From Hazardous Differences in Electric Potential
I. Introduction
Current passing through an impedance impresses voltage across that impedance. Even conductors have some, albeit low, value of impedance. Therefore, if a “grounded” 1 object, such as a crane or deenergized and grounded power line, results in a ground fault on a power line, voltage is impressed on that grounded object. The voltage impressed on the grounded object depends largely on the voltage on the line, on the impedance of the faulted conductor, and on the impedance to “true,” or “absolute,” ground represented by the object. If the impedance of the object causing the fault is relatively large, the voltage impressed on the object is essentially the phase-to-ground system voltage. However, even faults to grounded power lines or to well grounded transmission towers or substation structures (which have relatively low values of impedance to ground) can result in hazardous voltages. 2 In all cases, the degree of the hazard depends on the magnitude of the current through the employee and the time of exposure. This appendix discusses methods of protecting workers against the possibility that grounded objects, such as cranes and other mechanical equipment, will contact energized power lines and that deenergized and grounded power lines will become accidentally energized.
1 This appendix generally uses the term “grounded” only with respect to grounding that the employer intentionally installs, for example, the grounding an employer installs on a deenergized conductor. However, in this case, the term “grounded” means connected to earth, regardless of whether or not that connection is intentional.
2 Thus, grounding systems for transmission towers and substation structures should be designed to minimize the step and touch potentials involved.
II. Voltage-Gradient Distribution
A. Voltage-gradient distribution curve. Absolute, or true, ground serves as a reference and always has a voltage of 0 volts above ground potential. Because there is an impedance between a grounding electrode and absolute ground, there will be a voltage difference between the grounding electrode and absolute ground under ground-fault conditions. Voltage dissipates from the grounding electrode (or from the grounding point) and creates a ground potential gradient. The voltage decreases rapidly with increasing distance from the grounding electrode. A voltage drop associated with this dissipation of voltage is a ground potential. Figure 1 is a typical voltage-gradient distribution curve (assuming a uniform soil texture).
B. Step and touch potentials. Figure 1 also shows that workers are at risk from step and touch potentials. Step potential is the voltage between the feet of a person standing near an energized grounded object (the electrode). In Figure 1, the step potential is equal to the difference in voltage between two points at different distances from the electrode (where the points represent the location of each foot in relation to the electrode). A person could be at risk of injury during a fault simply by standing near the object.
Touch potential is the voltage between the energized grounded object (again, the electrode) and the feet of a person in contact with the object. In Figure 1, the touch potential is equal to the difference in voltage between the electrode (which is at a distance of 0 meters) and a point some distance away from the electrode (where the point represents the location of the feet of the person in contact with the object). The touch potential could be nearly the full voltage across the grounded object if that object is grounded at a point remote from the place where the person is in contact with it. For example, a crane grounded to the system neutral and that contacts an energized line would expose any person in contact with the crane or its uninsulated load line to a touch potential nearly equal to the full fault voltage.
Figure 2 illustrates step and touch potentials.
III. Protecting Workers From Hazardous Differences in Electrical Potential
A. Definitions. The following definitions apply to section III of this appendix:
Bond. The electrical interconnection of conductive parts designed to maintain a common electric potential.
Bonding cable (bonding jumper). A cable connected to two conductive parts to bond the parts together.
Cluster bar. A terminal temporarily attached to a structure that provides a means for the attachment and bonding of grounding and bonding cables to the structure.
Ground. A conducting connection between an electric circuit or equipment and the earth, or to some conducting body that serves in place of the earth.
Grounding cable (grounding jumper). A cable connected between a deenergized part and ground. Note that grounding cables carry fault current and bonding cables generally do not. A cable that bonds two conductive parts but carries substantial fault current (for example, a jumper connected between one phase and a grounded phase) is a grounding cable.
Ground mat (grounding grid). A temporarily or permanently installed metallic mat or grating that establishes an equipotential surface and provides connection points for attaching grounds.
B. Analyzing the hazard. The employer can use an engineering analysis of the power system under fault conditions to determine whether hazardous step and touch voltages will develop. The analysis should determine the voltage on all conductive objects in the work area and the amount of time the voltage will be present. Based on the this analysis, the employer can select appropriate measures and protective equipment, including the measures and protective equipment outlined in Section III of this appendix, to protect each employee from hazardous differences in electric potential. For example, from the analysis, the employer will know the voltage remaining on conductive objects after employees install bonding and grounding equipment and will be able to select insulating equipment with an appropriate rating, as described in paragraph III.C.2 of this appendix.
C. Protecting workers on the ground. The employer may use several methods, including equipotential zones, insulating equipment, and restricted work areas, to protect employees on the ground from hazardous differences in electrical potential.
1. An equipotential zone will protect workers within it from hazardous step and touch potentials. (See Figure 3.) Equipotential zones will not, however, protect employees located either wholly or partially outside the protected area. The employer can establish an equipotential zone for workers on the ground, with respect to a grounded object, through the use of a metal mat connected to the grounded object. The employer can use a grounding grid to equalize the voltage within the grid or bond conductive objects in the immediate work area to minimize the potential between the objects and between each object and ground. (Bonding an object outside the work area can increase the touch potential to that object, however.) Section III.D of this appendix discusses equipotential zones for employees working on deenergized and grounded power lines.
2. Insulating equipment, such as rubber gloves, can protect employees handling grounded equipment and conductors from hazardous touch potentials. The insulating equipment must be rated for the highest voltage that can be impressed on the grounded objects under fault conditions (rather than for the full system voltage).
3. Restricting employees from areas where hazardous step or touch potentials could arise can protect employees not directly involved in performing the operation. The employer must ensure that employees on the ground in the vicinity of transmission structures are at a distance where step voltages would be insufficient to cause injury. Employees must not handle grounded conductors or equipment likely to become energized to hazardous voltages unless the employees are within an equipotential zone or protected by insulating equipment.
D. Protecting employees working on deenergized and grounded power lines. This Section III.D of Appendix C establishes guidelines to help employers comply with requirements in § 1926.962 for using protective grounding to protect employees working on deenergized power lines. Section 1926.962 applies to grounding of transmission and distribution lines and equipment for the purpose of protecting workers. Paragraph (c) of § 1926.962 requires temporary protective grounds to be placed at such locations and arranged in such a manner that the employer can demonstrate will prevent exposure of each employee to hazardous differences in electric potential. 3 Sections III.D.1 and III.D.2 of this appendix provide guidelines that employers can use in making the demonstration required by § 1926.962(c). Section III.D.1 of this appendix provides guidelines on how the employer can determine whether particular grounding practices expose employees to hazardous differences in electric potential. Section III.D.2 of this appendix describes grounding methods that the employer can use in lieu of an engineering analysis to make the demonstration required by § 1926.962(c). The Occupational Safety and Health Administration will consider employers that comply with the criteria in this appendix as meeting § 1926.962(c).
3 The protective grounding required by § 1926.962 limits to safe values the potential differences between accessible objects in each employee's work environment. Ideally, a protective grounding system would create a true equipotential zone in which every point is at the same electric potential. In practice, current passing through the grounding and bonding elements creates potential differences. If these potential differences are hazardous, the employer may not treat the zone as an equipotential zone.
Finally, Section III.D.3 of this appendix discusses other safety considerations that will help the employer comply with other requirements in § 1926.962. Following these guidelines will protect workers from hazards that can occur when a deenergized and grounded line becomes energized.
1. Determining safe body current limits. This Section III.D.1 of Appendix C provides guidelines on how an employer can determine whether any differences in electric potential to which workers could be exposed are hazardous as part of the demonstration required by § 1926.962(c).
Institute of Electrical and Electronic Engineers (IEEE) Standard 1048-2003, IEEE Guide for Protective Grounding of Power Lines, provides the following equation for determining the threshold of ventricular fibrillation when the duration of the electric shock is limited:
where I is the current through the worker's body, and t is the duration of the current in seconds. This equation represents the ventricular fibrillation threshold for 95.5 percent of the adult population with a mass of 50 kilograms (110 pounds) or more. The equation is valid for current durations between 0.0083 to 3.0 seconds.
To use this equation to set safe voltage limits in an equipotential zone around the worker, the employer will need to assume a value for the resistance of the worker's body. IEEE Std 1048-2003 states that “total body resistance is usually taken as 1000 Ω for determining . . . body current limits.” However, employers should be aware that the impedance of a worker's body can be substantially less than that value. For instance, IEEE Std 1048-2003 reports a minimum hand-to-hand resistance of 610 ohms and an internal body resistance of 500 ohms. The internal resistance of the body better represents the minimum resistance of a worker's body when the skin resistance drops near zero, which occurs, for example, when there are breaks in the worker's skin, for instance, from cuts or from blisters formed as a result of the current from an electric shock, or when the worker is wet at the points of contact.
Employers may use the IEEE Std 1048-2003 equation to determine safe body current limits only if the employer protects workers from hazards associated with involuntary muscle reactions from electric shock (for example, the hazard to a worker from falling as a result of an electric shock). Moreover, the equation applies only when the duration of the electric shock is limited. If the precautions the employer takes, including those required by applicable standards, do not adequately protect employees from hazards associated with involuntary reactions from electric shock, a hazard exists if the induced voltage is sufficient to pass a current of 1 milliampere through a 500-ohm resistor. (The 500-ohm resistor represents the resistance of an employee. The 1-milliampere current is the threshold of perception.) Finally, if the employer protects employees from injury due to involuntary reactions from electric shock, but the duration of the electric shock is unlimited (that is, when the fault current at the work location will be insufficient to trip the devices protecting the circuit), a hazard exists if the resultant current would be more than 6 milliamperes (the recognized let-go threshold for workers 4 ).
4 Electric current passing through the body has varying effects depending on the amount of the current. At the let-go threshold, the current overrides a person's control over his or her muscles. At that level, an employee grasping an object will not be able to let go of the object. The let-go threshold varies from person to person; however, the recognized value for workers is 6 milliamperes.
2. Acceptable methods of grounding for employers that do not perform an engineering determination. The grounding methods presented in this section of this appendix ensure that differences in electric potential are as low as possible and, therefore, meet § 1926.962(c) without an engineering determination of the potential differences. These methods follow two principles: (i) The grounding method must ensure that the circuit opens in the fastest available clearing time, and (ii) the grounding method must ensure that the potential differences between conductive objects in the employee's work area are as low as possible.
Paragraph (c) of § 1926.962 does not require grounding methods to meet the criteria embodied in these principles. Instead, the paragraph requires that protective grounds be “placed at such locations and arranged in such a manner that the employer can demonstrate will prevent exposure of each employee to hazardous differences in electric potential.” However, when the employer's grounding practices do not follow these two principles, the employer will need to perform an engineering analysis to make the demonstration required by § 1926.962(c).
i. Ensuring that the circuit opens in the fastest available clearing time. Generally, the higher the fault current, the shorter the clearing times for the same type of fault. Therefore, to ensure the fastest available clearing time, the grounding method must maximize the fault current with a low impedance connection to ground. The employer accomplishes this objective by grounding the circuit conductors to the best ground available at the worksite. Thus, the employer must ground to a grounded system neutral conductor, if one is present. A grounded system neutral has a direct connection to the system ground at the source, resulting in an extremely low impedance to ground. In a substation, the employer may instead ground to the substation grid, which also has an extremely low impedance to the system ground and, typically, is connected to a grounded system neutral when one is present. Remote system grounds, such as pole and tower grounds, have a higher impedance to the system ground than grounded system neutrals and substation grounding grids; however, the employer may use a remote ground when lower impedance grounds are not available. In the absence of a grounded system neutral, substation grid, and remote ground, the employer may use a temporary driven ground at the worksite.
In addition, if employees are working on a three-phase system, the grounding method must short circuit all three phases. Short circuiting all phases will ensure faster clearing and lower the current through the grounding cable connecting the deenergized line to ground, thereby lowering the voltage across that cable. The short circuit need not be at the worksite; however, the employer must treat any conductor that is not grounded at the worksite as energized because the ungrounded conductors will be energized at fault voltage during a fault.
ii. Ensuring that the potential differences between conductive objects in the employee's work area are as low as possible. To achieve as low a voltage as possible across any two conductive objects in the work area, the employer must bond all conductive objects in the work area. This section of this appendix discusses how to create a zone that minimizes differences in electric potential between conductive objects in the work area.
The employer must use bonding cables to bond conductive objects, except for metallic objects bonded through metal-to-metal contact. The employer must ensure that metal-to-metal contacts are tight and free of contamination, such as oxidation, that can increase the impedance across the connection. For example, a bolted connection between metal lattice tower members is acceptable if the connection is tight and free of corrosion and other contamination. Figure 4 shows how to create an equipotential zone for metal lattice towers.
Wood poles are conductive objects. The poles can absorb moisture and conduct electricity, particularly at distribution and transmission voltages. Consequently, the employer must either: (1) Provide a conductive platform, bonded to a grounding cable, on which the worker stands or (2) use cluster bars to bond wood poles to the grounding cable. The employer must ensure that employees install the cluster bar below, and close to, the worker's feet. The inner portion of the wood pole is more conductive than the outer shell, so it is important that the cluster bar be in conductive contact with a metal spike or nail that penetrates the wood to a depth greater than or equal to the depth the worker's climbing gaffs will penetrate the wood. For example, the employer could mount the cluster bar on a bare pole ground wire fastened to the pole with nails or staples that penetrate to the required depth. Alternatively, the employer may temporarily nail a conductive strap to the pole and connect the strap to the cluster bar. Figure 5 shows how to create an equipotential zone for wood poles.
For underground systems, employers commonly install grounds at the points of disconnection of the underground cables. These grounding points are typically remote from the manhole or underground vault where employees will be working on the cable. Workers in contact with a cable grounded at a remote location can experience hazardous potential differences if the cable becomes energized or if a fault occurs on a different, but nearby, energized cable. The fault current causes potential gradients in the earth, and a potential difference will exist between the earth where the worker is standing and the earth where the cable is grounded. Consequently, to create an equipotential zone for the worker, the employer must provide a means of connecting the deenergized cable to ground at the worksite by having the worker stand on a conductive mat bonded to the deenergized cable. If the cable is cut, the employer must install a bond across the opening in the cable or install one bond on each side of the opening to ensure that the separate cable ends are at the same potential. The employer must protect the worker from any hazardous differences in potential any time there is no bond between the mat and the cable (for example, before the worker installs the bonds).
3. Other safety-related considerations. To ensure that the grounding system is safe and effective, the employer should also consider the following factors: 5
5 This appendix only discusses factors that relate to ensuring an equipotential zone for employees. The employer must consider other factors in selecting a grounding system that is capable of conducting the maximum fault current that could flow at the point of grounding for the time necessary to clear the fault, as required by § 1926.962(d)(1)(i). IEEE Std 1048-2003 contains guidelines for selecting and installing grounding equipment that will meet § 1926.962(d)(1)(i).
i. Maintenance of grounding equipment. It is essential that the employer properly maintain grounding equipment. Corrosion in the connections between grounding cables and clamps and on the clamp surface can increase the resistance of the cable, thereby increasing potential differences. In addition, the surface to which a clamp attaches, such as a conductor or tower member, must be clean and free of corrosion and oxidation to ensure a low-resistance connection. Cables must be free of damage that could reduce their current-carrying capacity so that they can carry the full fault current without failure. Each clamp must have a tight connection to the cable to ensure a low resistance and to ensure that the clamp does not separate from the cable during a fault.
ii. Grounding cable length and movement. The electromagnetic forces on grounding cables during a fault increase with increasing cable length. These forces can cause the cable to move violently during a fault and can be high enough to damage the cable or clamps and cause the cable to fail. In addition, flying cables can injure workers. Consequently, cable lengths should be as short as possible, and grounding cables that might carry high fault current should be in positions where the cables will not injure workers during a fault.
Appendix D to Subpart V of Part 1926 Methods of Inspecting and Testing Wood Poles
I. Introduction
When employees are to perform work on a wood pole, it is important to determine the condition of the pole before employees climb it. The weight of the employee, the weight of equipment to be installed, and other working stresses (such as the removal or retensioning of conductors) can lead to the failure of a defective pole or a pole that is not designed to handle the additional stresses. 1 For these reasons, it is essential that, before an employee climbs a wood pole, the employer ascertain that the pole is capable of sustaining the stresses of the work. The determination that the pole is capable of sustaining these stresses includes an inspection of the condition of the pole.
1 A properly guyed pole in good condition should, at a minimum, be able to handle the weight of an employee climbing it.
If the employer finds the pole to be unsafe to climb or to work from, the employer must secure the pole so that it does not fail while an employee is on it. The employer can secure the pole by a line truck boom, by ropes or guys, or by lashing a new pole alongside it. If a new one is lashed alongside the defective pole, employees should work from the new one.
II. Inspecting Wood Poles
A qualified employee should inspect wood poles for the following conditions: 2
2 The presence of any of these conditions is an indication that the pole may not be safe to climb or to work from. The employee performing the inspection must be qualified to make a determination as to whether it is safe to perform the work without taking additional precautions.
A. General condition. Buckling at the ground line or an unusual angle with respect to the ground may indicate that the pole has rotted or is broken.
B. Cracks. Horizontal cracks perpendicular to the grain of the wood may weaken the pole. Vertical cracks, although not normally considered to be a sign of a defective pole, can pose a hazard to the climber, and the employee should keep his or her gaffs away from them while climbing.
C. Holes. Hollow spots and woodpecker holes can reduce the strength of a wood pole.
D. Shell rot and decay. Rotting and decay are cutout hazards and possible indications of the age and internal condition of the pole.
E. Knots. One large knot or several smaller ones at the same height on the pole may be evidence of a weak point on the pole.
F. Depth of setting. Evidence of the existence of a former ground line substantially above the existing ground level may be an indication that the pole is no longer buried to a sufficient depth.
G. Soil conditions. Soft, wet, or loose soil around the base of the pole may indicate that the pole will not support any change in stress.
H. Burn marks. Burning from transformer failures or conductor faults could damage the pole so that it cannot withstand changes in mechanical stress.
III. Testing Wood Poles
The following tests, which are from § 1910.268(n)(3) of this chapter, are acceptable methods of testing wood poles:
A. Hammer test. Rap the pole sharply with a hammer weighing about 1.4 kg (3 pounds), starting near the ground line and continuing upwards circumferentially around the pole to a height of approximately 1.8 meters (6 feet). The hammer will produce a clear sound and rebound sharply when striking sound wood. Decay pockets will be indicated by a dull sound or a less pronounced hammer rebound. Also, prod the pole as near the ground line as possible using a pole prod or a screwdriver with a blade at least 127 millimeters (5 inches) long. If substantial decay is present, the pole is unsafe.
B. Rocking test. Apply a horizontal force to the pole and attempt to rock it back and forth in a direction perpendicular to the line. Exercise caution to avoid causing power lines to swing together. Apply the force to the pole either by pushing it with a pike pole or pulling the pole with a rope. If the pole cracks during the test, it is unsafe.
Appendix E to Subpart V of Part 1926 Protection From Flames and Electric Arcs
I. Introduction
Paragraph (g) of § 1926.960 addresses protecting employees from flames and electric arcs. This paragraph requires employers to: (1) Assess the workplace for flame and electric-arc hazards (paragraph (g)(1)); (2) estimate the available heat energy from electric arcs to which employees would be exposed (paragraph (g)(2)); (3) ensure that employees wear clothing that will not melt, or ignite and continue to burn, when exposed to flames or the estimated heat energy (paragraph (g)(3)); and (4) ensure that employees wear flame-resistant clothing 1 and protective clothing and other protective equipment that has an arc rating greater than or equal to the available heat energy under certain conditions (paragraphs (g)(4) and (g)(5)). This appendix contains information to help employers estimate available heat energy as required by § 1926.960(g)(2), select protective clothing and other protective equipment with an arc rating suitable for the available heat energy as required by § 1926.960(g)(5), and ensure that employees do not wear flammable clothing that could lead to burn injury as addressed by §§ 1926.960(g)(3) and (g)(4).
1 Flame-resistant clothing includes clothing that is inherently flame resistant and clothing chemically treated with a flame retardant. (See ASTM F1506-10a, Standard Performance Specification for Flame Resistant Textile Materials for Wearing Apparel for Use by Electrical Workers Exposed to Momentary Electric Arc and Related Thermal Hazards, and ASTM F1891-12 Standard Specification for Arc and Flame Resistant Rainwear.)
II. Assessing the Workplace for Flame and Electric-Arc Hazards
Paragraph (g)(1) of § 1926.960 requires the employer to assess the workplace to identify employees exposed to hazards from flames or from electric arcs. This provision ensures that the employer evaluates employee exposure to flames and electric arcs so that employees who face such exposures receive the required protection. The employer must conduct an assessment for each employee who performs work on or near exposed, energized parts of electric circuits.
A. Assessment Guidelines
Sources electric arcs. Consider possible sources of electric arcs, including:
• Energized circuit parts not guarded or insulated,
• Switching devices that produce electric arcs in normal operation,
• Sliding parts that could fault during operation (for example, rack-mounted circuit breakers), and
• Energized electric equipment that could fail (for example, electric equipment with damaged insulation or with evidence of arcing or overheating).
Exposure to flames. Identify employees exposed to hazards from flames. Factors to consider include:
• The proximity of employees to open flames, and
• For flammable material in the work area, whether there is a reasonable likelihood that an electric arc or an open flame can ignite the material.
Probability that an electric arc will occur. Identify employees exposed to electric-arc hazards. The Occupational Safety and Health Administration will consider an employee exposed to electric-arc hazards if there is a reasonable likelihood that an electric arc will occur in the employee's work area, in other words, if the probability of such an event is higher than it is for the normal operation of enclosed equipment. Factors to consider include:
• For energized circuit parts not guarded or insulated, whether conductive objects can come too close to or fall onto the energized parts,
• For exposed, energized circuit parts, whether the employee is closer to the part than the minimum approach distance established by the employer (as permitted by § 1926.960(c)(1)(iii)).
• Whether the operation of electric equipment with sliding parts that could fault during operation is part of the normal operation of the equipment or occurs during servicing or maintenance, and
• For energized electric equipment, whether there is evidence of impending failure, such as evidence of arcing or overheating.
B. Examples
Table 1 provides task-based examples of exposure assessments.
Table 1—Example Assessments for Various Tasks
Task | Is employee exposed to flame or electric-arc hazard?
Normal operation of enclosed equipment, such as closing or opening a switch | The employer properly installs and maintains enclosed equipment, and there is no evidence of impending failure | No.
There is evidence of arcing or overheating | Yes.
Parts of the equipment are loose or sticking, or the equipment otherwise exhibits signs of lack of maintenance | Yes.
Servicing electric equipment, such as racking in a circuit breaker or replacing a switch | Yes.
Inspection of electric equipment with exposed energized parts | The employee is not holding conductive objects and remains outside the minimum approach distance established by the employer | No.
The employee is holding a conductive object, such as a flashlight, that could fall or otherwise contact energized parts (irrespective of whether the employee maintains the minimum approach distance) | Yes.
The employee is closer than the minimum approach distance established by the employer (for example, when wearing rubber insulating gloves or rubber insulating gloves and sleeves) | Yes.
Using open flames, for example, in wiping cable splice sleeves | Yes.
III. Protection Against Burn Injury
A. Estimating Available Heat Energy
Calculation methods. Paragraph (g)(2) of § 1926.960 provides that, for each employee exposed to an electric-arc hazard, the employer must make a reasonable estimate of the heat energy to which the employee would be exposed if an arc occurs. Table 2 lists various methods of calculating values of available heat energy from an electric circuit. The Occupational Safety and Health Administration does not endorse any of these specific methods. Each method requires the input of various parameters, such as fault current, the expected length of the electric arc, the distance from the arc to the employee, and the clearing time for the fault (that is, the time the circuit protective devices take to open the circuit and clear the fault). The employer can precisely determine some of these parameters, such as the fault current and the clearing time, for a given system. The employer will need to estimate other parameters, such as the length of the arc and the distance between the arc and the employee, because such parameters vary widely.
Table 2—Methods of Calculating Incident Heat Energy From an Electric Arc
1. Standard for Electrical Safety Requirements for Employee Workplaces, NFPA 70E-2012, Annex D, “Sample Calculation of Flash Protection Boundary.”
2. Doughty, T.E., Neal, T.E., and Floyd II, H.L., “Predicting Incident Energy to Better Manage the Electric Arc Hazard on 600 V Power Distribution Systems,” Record of Conference Papers IEEE IAS 45th Annual Petroleum and Chemical Industry Conference, September 28—30, 1998.
3. Guide for Performing Arc-Flash Hazard Calculations, IEEE Std 1584-2002, 1584a--2004 (Amendment 1 to IEEE Std 1584-2002), and 1584b-2011 (Amendment 2: Changes to Clause 4 of IEEE Std 1584-2002). *
4. ARCPRO, a commercially available software program developed by Kinectrics, Toronto, ON, CA.
* This appendix refers to IEEE Std 1584-2002 with both amendments as IEEE Std 1584b-2011.
The amount of heat energy calculated by any of the methods is approximatelyinversely proportional to the square of the distance between the employee and the arc. In other words, if the employee is very close to the arc, the heat energy is very high; but if the employee is just a few more centimeters away, the heat energy drops substantially. Thus, estimating the distance from the arc to the employee is key to protecting employees.
The employer must select a method of estimating incident heat energy that provides a reasonable estimate of incident heat energy for the exposure involved. Table 3 shows which methods provide reasonable estimates for various exposures.
Table 3—Selecting a Reasonable Incident-Energy Calculation Method 1
Incident-energy calculation method | 600 V and Less 2 | 601 V to 15 kV 2 | More than 15 kV
1Φ | 3Φa | 3Φb | 1Φ | 3Φa | 3Φb | 1Φ | 3Φa | 3Φb
NFPA 70E-2012 Annex D (Lee equation) | Y-C | Y | N | Y-C | Y-C | N | N 3 | N 3 | N 3
Doughty, Neal, and Floyd | Y-C | Y | Y | N | N | N | N | N | N
IEEE Std 1584b-2011 | Y | Y | Y | Y | Y | Y | N | N | N
ARCPRO | Y | N | N | Y | N | N | Y | Y 4 | Y 4
Key:
1Φ: Single-phase arc in open air
3Φa: Three-phase arc in open air
3Φb: Three-phase arc in an enclosure (box)
Y: Acceptable; produces a reasonable estimate of incident heat energy from this type of electric arc
N: Not acceptable; does not produce a reasonable estimate of incident heat energy from this type of electric arc
Y-C: Acceptable; produces a reasonable, but conservative, estimate of incident heat energy from this type of electric arc.
Notes: 1 Although the Occupational Safety and Health Administration will consider these methods reasonable for enforcement purposes when employers use the methods in accordance with this table, employers should be aware that the listed methods do not necessarily result in estimates that will provide full protection from internal faults in transformers and similar equipment or from arcs in underground manholes or vaults.
2 At these voltages, the presumption is that the arc is three-phase unless the employer can demonstrate that only one phase is present or that the spacing of the phases is sufficient to prevent a multiphase arc from occurring.
3 Although the Occupational Safety and Health Administration will consider this method acceptable for purposes of assessing whether incident energy exceeds 2.0 cal/cm 2, the results at voltages of more than 15 kilovolts are extremely conservative and unrealistic.
4The Occupational Safety and Health Administration will deem the results of this method reasonable when the employer adjusts them using the conversion factors for three-phase arcs in open air or in an enclosure, as indicated in the program's instructions.
Selecting a reasonable distance from the employee to the arc. In estimating available heat energy, the employer must make some reasonable assumptions about how far the employee will be from the electric arc. Table 4 lists reasonable distances from the employee to the electric arc. The distances in Table 4 are consistent with national consensus standards, such as the Institute of Electrical and Electronic Engineers' National Electrical Safety Code, ANSI/IEEE C2-2012, and IEEE Guide for Performing Arc-Flash Hazard Calculations, IEEE Std 1584b-2011. The employer is free to use other reasonable distances, but must consider equipment enclosure size and the working distance to the employee in selecting a distance from the employee to the arc. The Occupational Safety and Health Administration will consider a distance reasonable when the employer bases it on equipment size and working distance.
Table 4—Selecting a Reasonable Distance from the Employee to the Electric Arc
Class of equipment | Single-phase arc mm (inches) | Three-phase arc mm (inches)
Cable | NA * | 455 (18)
Low voltage MCCs and panelboards | NA | 455 (18)
Low-voltage switchgear | NA | 610 (24)
5-kV switchgear | NA | 910 (36)
15-kV switchgear | NA | 910 (36)
Single conductors in air (up to 46 kilovolts), work with rubber insulating gloves | 380 (15) | NA
Single conductors in air, work with live-line tools and live-line barehand work | MAD−(2 × kV × 2.54) (MAD−(2 × kV/10)) † | NA
* NA = not applicable.
† The terms in this equation are:
MAD = The applicable minimum approach distance, and
kV = The system voltage in kilovolts.
Selecting a reasonable arc gap. For a single-phase arc in air, the electric arc will almost always occur when an energized conductor approaches too close to ground. Thus, an employer can determine the arc gap, or arc length, for these exposures by the dielectric strength of air and the voltage on the line. The dielectric strength of air is approximately 10 kilovolts for every 25.4 millimeters (1 inch). For example, at 50 kilovolts, the arc gap would be 50 ÷ 10 × 25.4 (or 50 × 2.54), which equals 127 millimeters (5 inches).
For three-phase arcs in open air and in enclosures, the arc gap will generally be dependent on the spacing between parts energized at different electrical potentials. Documents such as IEEE Std 1584b-2011 provide information on these distances. Employers may select a reasonable arc gap from Table 5, or they may select any other reasonable arc gap based on sparkover distance or on the spacing between (1) live parts at different potentials or (2) live parts and grounded parts (for example, bus or conductor spacings in equipment). In any event, the employer must use an estimate that reasonably resembles the actual exposures faced by the employee.
Table 5—Selecting a Reasonable Arc Gap
Class of equipment | Single-phase arc mm (inches) | Three-phase arc mm 1 (inches)
Cable | NA 2 | 13 (0.5)
Low voltage MCCs and panelboards | NA | 25 (1.0)
Low-voltage switchgear | NA | 32 (1.25)
5-kV switchgear | NA | 104 (4.0)
15-kV switchgear | NA | 152 (6.0)
Single conductors in air, 15 kV and less | 51 (2.0) | Phase conductor spacings.
Single conductor in air, more than 15 kV | Voltage in kV × 2.54
(Voltage in kV × 0.1), but no less than 51 mm (2 inches) | Phase conductor spacings.
1 Source: IEEE Std 1584b-2011.
2 NA = not applicable.
Making estimates over multiple system areas. The employer need not estimate the heat-energy exposure for every job task performed by each employee. Paragraph (g)(2) of § 1926.960 permits the employer to make broad estimates that cover multiple system areas provided that: (1) The employer uses reasonable assumptions about the energy-exposure distribution throughout the system, and (2) the estimates represent the maximum exposure for those areas. For example, the employer can use the maximum fault current and clearing time to cover several system areas at once.
Incident heat energy for single-phase-to-ground exposures. Table 6 and Table 7 provide incident heat energy levels for open-air, phase-to-ground electric-arc exposures typical for overhead systems. 2 Table 6 presents estimates of available energy for employees using rubber insulating gloves to perform work on overhead systems operating at 4 to 46 kilovolts. The table assumes that the employee will be 380 millimeters (15 inches) from the electric arc, which is a reasonable estimate for rubber insulating glove work. Table 6 also assumes that the arc length equals the sparkover distance for the maximum transient overvoltage of each voltage range. 3 To use the table, an employer would use the voltage, maximum fault current, and maximum clearing time for a system area and, using the appropriate voltage range and fault-current and clearing-time values corresponding to the next higher values listed in the table, select the appropriate heat energy (4, 5, 8, or 12 cal/cm 2) from the table. For example, an employer might have a 12,470-volt power line supplying a system area. The power line can supply a maximum fault current of 8 kiloamperes with a maximum clearing time of 10 cycles. For rubber glove work, this system falls in the 4.0-to-15.0-kilovolt range; the next-higher fault current is 10 kA (the second row in that voltage range); and the clearing time is under 18 cycles (the first column to the right of the fault current column). Thus, the available heat energy for this part of the system will be 4 cal/cm 2 or less (from the column heading), and the employer could select protection with a 5-cal/cm 2 rating to meet § 1926.960(g)(5). Alternatively, an employer could select a base incident-energy value and ensure that the clearing times for each voltage range and fault current listed in the table do not exceed the corresponding clearing time specified in the table. For example, an employer that provides employees with arc-flash protective equipment rated at 8 cal/cm 2 can use the table to determine if any system area exceeds 8 cal/cm 2 by checking the clearing time for the highest fault current for each voltage range and ensuring that the clearing times do not exceed the values specified in the 8-cal/cm 2 column in the table.
2 The Occupational Safety and Health Administration used metric values to calculate the clearing times in Table 6 and Table 7. An employer may use English units to calculate clearing times instead even though the results will differ slightly.
3 The Occupational Safety and Health Administration based this assumption, which is more conservative than the arc length specified in Table 5, on Table 410-2 of the 2012 NESC.
Table 7 presents similar estimates for employees using live-line tools to perform work on overhead systems operating at voltages of 4 to 800 kilovolts. The table assumes that the arc length will be equal to the sparkover distance 4 and that the employee will be a distance from the arc equal to the minimum approach distance minus twice the sparkover distance.
4 The dielectric strength of air is about 10 kilovolts for every 25.4 millimeters (1 inch). Thus, the employer can estimate the arc length in millimeters to be the phase-to-ground voltage in kilovolts multiplied by 2.54 (or voltage (in kilovolts) × 2.54).
The employer will need to use other methods for estimating available heat energy in situations not addressed by Table 6 or Table 7. The calculation methods listed in Table 2 and the guidance provided in Table 3 will help employers do this. For example, employers can use IEEE Std 1584b-2011 to estimate the available heat energy (and to select appropriate protective equipment) for many specific conditions, including lower-voltage, phase-to-phase arc, and enclosed arc exposures.
Table 6—Incident Heat Energy for Various Fault Currents, Clearing Times, and Voltages of 4.0 to 46.0 kV: Rubber Insulating Glove Exposures Involving Phase-to-Ground Arcs in Open Air Only * † ‡
Voltage range (kV) ** | Fault current (kA) | Maximum clearing time (cycles)
4 cal/cm 2 | 5 cal/cm 2 | 8 cal/cm 2 | 12 cal/cm 2
4.0 to 15.0 | 5 | 46 | 58 | 92 | 138
10 | 18 | 22 | 36 | 54
15 | 10 | 12 | 20 | 30
20 | 6 | 8 | 13 | 19
15.1 to 25.0 | 5 | 28 | 34 | 55 | 83
10 | 11 | 14 | 23 | 34
15 | 7 | 8 | 13 | 20
20 | 4 | 5 | 9 | 13
25.1 to 36.0 | 5 | 21 | 26 | 42 | 62
10 | 9 | 11 | 18 | 26
15 | 5 | 6 | 10 | 16
20 | 4 | 4 | 7 | 11
36.1 to 46.0 | 5 | 16 | 20 | 32 | 48
10 | 7 | 9 | 14 | 21
15 | 4 | 5 | 8 | 13
20 | 3 | 4 | 6 | 9
Notes:
* This table is for open-air, phase-to-ground electric-arc exposures. It is not for phase-to-phase arcs or enclosed arcs (arc in a box).
† The table assumes that the employee will be 380 mm (15 in.) from the electric arc. The table also assumes the arc length to be the sparkover distance for the maximum transient overvoltage of each voltage range (see Appendix B to this subpart), as follows:
4.0 to 15.0 kV 51 mm (2 in.)
15.1 to 25.0 kV 102 mm (4 in.)
25.1 to 36.0 kV 152 mm (6 in.)
36.1 to 46.0 kV 229 mm (9 in.)
‡ The Occupational Safety and Health Administration calculated the values in this table using the ARCPRO method listed in Table 2.
** The voltage range is the phase-to-phase system voltage.
Table 7—Incident Heat Energy for Various Fault Currents, Clearing Times, and Voltages: Live-Line Tool Exposures Involving Phase-to-Ground Arcs in Open Air Only * † ‡ #
Voltage range (kV) ** | Fault current (kA) | Maximum clearing time (cycles)
4 cal/cm 2 | 5 cal/cm 2 | 8 cal/cm 2 | 12 cal/cm 2
4.0 to 15.0 | 5 | 197 | 246 | 394 | 591
10 | 73 | 92 | 147 | 220
15 | 39 | 49 | 78 | 117
20 | 24 | 31 | 49 | 73
15.1 to 25.0 | 5 | 197 | 246 | 394 | 591
10 | 75 | 94 | 150 | 225
15 | 41 | 51 | 82 | 122
20 | 26 | 33 | 52 | 78
25.1 to 36.0 | 5 | 138 | 172 | 275 | 413
10 | 53 | 66 | 106 | 159
15 | 30 | 37 | 59 | 89
20 | 19 | 24 | 38 | 58
36.1 to 46.0 | 5 | 129 | 161 | 257 | 386
10 | 51 | 64 | 102 | 154
15 | 29 | 36 | 58 | 87
20 | 19 | 24 | 38 | 57
46.1 to 72.5 | 20 | 18 | 23 | 36 | 55
30 | 10 | 13 | 20 | 30
40 | 6 | 8 | 13 | 19
50 | 4 | 6 | 9 | 13
72.6 to 121.0 | 20 | 10 | 12 | 20 | 30
30 | 6 | 7 | 11 | 17
40 | 4 | 5 | 7 | 11
50 | 3 | 3 | 5 | 8
121.1 to 145.0 | 20 | 12 | 15 | 24 | 35
30 | 7 | 9 | 15 | 22
40 | 5 | 6 | 10 | 15
50 | 4 | 5 | 8 | 11
145.1 to 169.0 | 20 | 12 | 15 | 24 | 36
30 | 7 | 9 | 15 | 22
40 | 5 | 7 | 10 | 16
50 | 4 | 5 | 8 | 12
169.1 to 242.0 | 20 | 13 | 17 | 27 | 40
30 | 8 | 10 | 17 | 25
40 | 6 | 7 | 12 | 17
50 | 4 | 5 | 9 | 13
242.1 to 362.0 | 20 | 25 | 32 | 51 | 76
30 | 16 | 19 | 31 | 47
40 | 11 | 14 | 22 | 33
50 | 8 | 10 | 16 | 25
362.1 to 420.0 | 20 | 12 | 15 | 25 | 37
30 | 8 | 10 | 15 | 23
40 | 5 | 7 | 11 | 16
50 | 4 | 5 | 8 | 12
420.1 to 550.0 | 20 | 23 | 29 | 47 | 70
30 | 14 | 18 | 29 | 43
40 | 10 | 13 | 20 | 30
50 | 8 | 9 | 15 | 23
550.1 to 800.0 | 20 | 25 | 31 | 50 | 75
30 | 15 | 19 | 31 | 46
40 | 11 | 13 | 21 | 32
50 | 8 | 10 | 16 | 24
Notes:
* This table is for open-air, phase-to-ground electric-arc exposures. It is not for phase-to-phase arcs or enclosed arcs (arc in a box).
† The table assumes the arc length to be the sparkover distance for the maximum phase-to-ground voltage of each voltage range (see Appendix B to this subpart). The table also assumes that the employee will be the minimum approach distance minus twice the arc length from the electric arc.
‡ The Occupational Safety and Health Administration calculated the values in this table using the ARCPRO method listed in Table 2.
# For voltages of more than 72.6 kV, employers may use this table only when the minimum approach distance established under § 1926.960(c)(1) is greater than or equal to the following values:
72.6 to 121.0 kV 1.02 m
121.1 to 145.0 kV 1.16 m
145.1 to 169.0 kV 1.30 m
169.1 to 242.0 kV 1.72 m
242.1 to 362.0 kV 2.76 m
362.1 to 420.0 kV 2.50 m
420.1 to 550.0 kV 3.62 m
550.1 to 800.0 kV 4.83 m
** The voltage range is the phase-to-phase system voltage.
B. Selecting Protective Clothing and Other Protective Equipment
Paragraph (g)(5) of § 1926.960 requires employers, in certain situations, to select protective clothing and other protective equipment with an arc rating that is greater than or equal to the incident heat energy estimated under § 1926.960(g)(2). Based on laboratory testing required by ASTM F1506-10a, the expectation is that protective clothing with an arc rating equal to the estimated incident heat energy will be capable of preventing second-degree burn injury to an employee exposed to that incident heat energy from an electric arc. Note that actual electric-arc exposures may be more or less severe than the estimated value because of factors such as arc movement, arc length, arcing from reclosing of the system, secondary fires or explosions, and weather conditions. Additionally, for arc rating based on the fabric's arc thermal performance value 5 (ATPV), a worker exposed to incident energy at the arc rating has a 50-percent chance of just barely receiving a second-degree burn. Therefore, it is possible (although not likely) that an employee will sustain a second-degree (or worse) burn wearing clothing conforming to § 1926.960(g)(5) under certain circumstances. However, reasonable employer estimates and maintaining appropriate minimum approach distances for employees should limit burns to relatively small burns that just barely extend beyond the epidermis (that is, just barely a second-degree burn). Consequently, protective clothing and other protective equipment meeting § 1926.960(g)(5) will provide an appropriate degree of protection for an employee exposed to electric-arc hazards.
5 ASTM F1506-10a defines “arc thermal performance value” as “the incident energy on a material or a multilayer system of materials that results in a 50% probability that sufficient heat transfer through the tested specimen is predicted to cause the onset of a second-degree skin burn injury based on the Stoll [footnote] curve, cal/cm 2.” The footnote to this definition reads: “Derived from: Stoll, A.M., and Chianta, M.A., `Method and Rating System for Evaluations of Thermal Protection,' Aerospace Medicine, Vol 40, 1969, pp. 1232-1238 and Stoll A.M., and Chianta, M.A., `Heat Transfer through Fabrics as Related to Thermal Injury,' Transactions—New York Academy of Sciences, Vol 33(7), Nov. 1971, pp. 649-670.”
Paragraph (g)(5) of § 1926.960 does not require arc-rated protection for exposures of 2 cal/cm 2 or less. Untreated cotton clothing will reduce a 2-cal/cm 2 exposure below the 1.2- to 1.5-cal/cm 2 level necessary to cause burn injury, and this material should not ignite at such low heat energy levels. Although § 1926.960(g)(5) does not require clothing to have an arc rating when exposures are 2 cal/cm 2 or less, § 1926.960(g)(4) requires the outer layer of clothing to be flame resistant under certain conditions, even when the estimated incident heat energy is less than 2 cal/cm 2, as discussed later in this appendix. Additionally, it is especially important to ensure that employees do not wear undergarments made from fabrics listed in the note to § 1926.960(g)(3) even when the outer layer is flame resistant or arc rated. These fabrics can melt or ignite easily when an electric arc occurs. Logos and name tags made from non-flame-resistant material can adversely affect the arc rating or the flame-resistant characteristics of arc-rated or flame-resistant clothing. Such logos and name tags may violate § 1926.960(g)(3), (g)(4), or (g)(5).
Paragraph (g)(5) of § 1926.960 requires that arc-rated protection cover the employee's entire body, with limited exceptions for the employee's hands, feet, face, and head. Paragraph (g)(5)(i) of § 1926.960 provides that arc-rated protection is not necessary for the employee's hands under the following conditions:
For any estimated incident heat energy | When the employee is wearing rubber insulating gloves with protectors
If the estimated incident heat energy does not exceed 14 cal/cm 2 | When the employee is wearing heavy-duty leather work gloves with a weight of at least 407 gm/m 2 (12 oz/yd 2)
Paragraph (g)(5)(ii) of § 1926.960 provides that arc-rated protection is not necessary for the employee's feet when the employee is wearing heavy-duty work shoes or boots. Finally, § 1926.960(g)(5)(iii), (g)(5)(iv), and (g)(5)(v) require arc-rated head and face protection as follows:
Exposure | Minimum head and face protection
None * | Arc-rated faceshield with a minimum rating of 8 cal/cm 2 * | Arc-rated hood or faceshield with balaclava
Single-phase, open air | 2-8 cal/cm 2 | 9-12 cal/cm 2 | 13 cal/ 2 or higher.†
Three-phase | 2-4 cal/cm 2 | 5-8 cal/cm 2 | 9 cal/cm 2 or higher.‡
* These ranges assume that employees are wearing hardhats meeting the specifications in § 1910.135 or § 1926.100(b)(2), as applicable.
† The arc rating must be a minimum of 4 cal/cm 2 less than the estimated incident energy. Note that § 1926.960(g)(5)(v) permits this type of head and face protection, with a minimum arc rating of 4 cal/cm 2 less than the estimated incident energy, at any incident energy level.
‡ Note that § 1926.960(g)(5) permits this type of head and face protection at any incident energy level.
IV. Protection Against Ignition
Paragraph (g)(3) of § 1926.960 prohibits clothing that could melt onto an employee's skin or that could ignite and continue to burn when exposed to flames or to the available heat energy estimated by the employer under § 1926.960(g)(2). Meltable fabrics, such as acetate, nylon, polyester, and polypropylene, even in blends, must be avoided. When these fibers melt, they can adhere to the skin, thereby transferring heat rapidly, exacerbating burns, and complicating treatment. These outcomes can result even if the meltable fabric is not directly next to the skin. The remainder of this section focuses on the prevention of ignition.
Paragraph (g)(5) of § 1926.960 generally requires protective clothing and other protective equipment with an arc rating greater than or equal to the employer's estimate of available heat energy. As explained earlier in this appendix, untreated cotton is usually acceptable for exposures of 2 cal/cm 2 or less. 6 If the exposure is greater than that, the employee generally must wear flame-resistant clothing with a suitable arc rating in accordance with § 1926.960(g)(4) and (g)(5). However, even if an employee is wearing a layer of flame-resistant clothing, there are circumstances under which flammable layers of clothing would be uncovered, and an electric arc could ignite them. For example, clothing ignition is possible if the employee is wearing flammable clothing under the flame-resistant clothing and the underlayer is uncovered because of an opening in the flame-resistant clothing. Thus, for purposes of § 1926.960(g)(3), it is important for the employer to consider the possibility of clothing ignition even when an employee is wearing flame-resistant clothing with a suitable arc rating.
6 See § 1926.960(g)(4)(i), (g)(4)(ii), and (g)(4)(iii) for conditions under which employees must wear flame-resistant clothing as the outer layer of clothing even when the incident heat energy does not exceed 2 cal/cm 2.
Under § 1926.960(g)(3), employees may not wear flammable clothing in conjunction with flame-resistant clothing if the flammable clothing poses an ignition hazard. 7 Although outer flame-resistant layers may not have openings that expose flammable inner layers, when an outer flame-resistant layer would be unable to resist breakopen, 8 the next (inner) layer must be flame-resistant if it could ignite.
7 Paragraph (g)(3) of § 1926.960 prohibits clothing that could ignite and continue to burn when exposed to the heat energy estimated under paragraph (g)(2) of that section.
8 Breakopen occurs when a hole, tear, or crack develops in the exposed fabric such that the fabric no longer effectively blocks incident heat energy.
Non-flame-resistant clothing can ignite even when the heat energy from an electric arc is insufficient to ignite the clothing. For example, nearby flames can ignite an employee's clothing; and, even in the absence of flames, electric arcs pose ignition hazards beyond the hazard of ignition from incident energy under certain conditions. In addition to requiring flame-resistant clothing when the estimated incident energy exceeds 2.0 cal/cm 2, § 1926.960(g)(4) requires flame-resistant clothing when: The employee is exposed to contact with energized circuit parts operating at more than 600 volts (§ 1926.960(g)(4)(i)), an electric arc could ignite flammable material in the work area that, in turn, could ignite the employee's clothing (§ 1926.960(g)(4)(ii)), and molten metal or electric arcs from faulted conductors in the work area could ignite the employee's clothing (§ 1926.960(g)(4)(iii)). For example, grounding conductors can become a source of heat energy if they cannot carry fault current without failure. The employer must consider these possible sources of electric arcs 9 in determining whether the employee's clothing could ignite under § 1926.960(g)(4)(iii).
9 Static wires and pole grounds are examples of grounding conductors that might not be capable of carrying fault current without failure. Grounds that can carry the maximum available fault current are not a concern, and employers need not consider such grounds a possible electric arc source.
Appendix F to Subpart V of Part 1926 Work-Positioning Equipment Inspection Guidelines
I. Body Belts
Inspect body belts to ensure that:
A. The hardware has no cracks, nicks, distortion, or corrosion;
B. No loose or worn rivets are present;
C. The waist strap has no loose grommets;
D. The fastening straps are not 100-percent leather; and
E. No worn materials that could affect the safety of the user are present.
II. Positioning Straps
Inspect positioning straps to ensure that:
A. The warning center of the strap material is not exposed;
B. No cuts, burns, extra holes, or fraying of strap material is present;
C. Rivets are properly secured;
D. Straps are not 100-percent leather; and
E. Snaphooks do not have cracks, burns, or corrosion.
III. Climbers
Inspect pole and tree climbers to ensure that:
A. Gaffs are at least as long as the manufacturer's recommended minimums (generally 32 and 51 millimeters (1.25 and 2.0 inches) for pole and tree climbers, respectively, measured on the underside of the gaff);
Note:
Gauges are available to assist in determining whether gaffs are long enough and shaped to easily penetrate poles or trees.
B. Gaffs and leg irons are not fractured or cracked;
C. Stirrups and leg irons are free of excessive wear;
D. Gaffs are not loose;
E. Gaffs are free of deformation that could adversely affect use;
F. Gaffs are properly sharpened; and
G. There are no broken straps or buckles.
Appendix G to Subpart V of Part 1926 Reference Documents
The references contained in this appendix provide information that can be helpful in understanding and complying with the requirements contained in Subpart V of this part. The national consensus standards referenced in this appendix contain detailed specifications that employers may follow in complying with the more performance-based requirements of Subpart V of this part. Except as specifically noted in Subpart V of this part, however, the Occupational Safety and Health Administration will not necessarily deem compliance with the national consensus standards to be compliance with the provisions of Subpart V of this part.
ANSI/SIA A92.2-2009, American National Standard for Vehicle-Mounted Elevating and Rotating Aerial Devices.
ANSI Z133-2012, American National Standard Safety Requirements for Arboricultural Operations—Pruning, Trimming, Repairing, Maintaining, and Removing Trees, and Cutting Brush.
ANSI/IEEE Std 935-1989, IEEE Guide on Terminology for Tools and Equipment to Be Used in Live Line Working.
ASME B20.1-2012, Safety Standard for Conveyors and Related Equipment.
ASTM D120-09, Standard Specification for Rubber Insulating Gloves.
ASTM D149-09 (2013), Standard Test Method for Dielectric Breakdown Voltage and Dielectric Strength of Solid Electrical Insulating Materials at Commercial Power Frequencies.
ASTM D178-01 (2010), Standard Specification for Rubber Insulating Matting.
ASTM D1048-12, Standard Specification for Rubber Insulating Blankets.
ASTM D1049-98 (2010), Standard Specification for Rubber Insulating Covers.
ASTM D1050-05 (2011), Standard Specification for Rubber Insulating Line Hose.
ASTM D1051-08, Standard Specification for Rubber Insulating Sleeves.
ASTM F478-09, Standard Specification for In-Service Care of Insulating Line Hose and Covers.
ASTM F479-06 (2011), Standard Specification for In-Service Care of Insulating Blankets.
ASTM F496-08, Standard Specification for In-Service Care of Insulating Gloves and Sleeves.
ASTM F711-02 (2007), Standard Specification for Fiberglass-Reinforced Plastic (FRP) Rod and Tube Used in Live Line Tools.
ASTM F712-06 (2011), Standard Test Methods and Specifications for Electrically Insulating Plastic Guard Equipment for Protection of Workers.
ASTM F819-10, Standard Terminology Relating to Electrical Protective Equipment for Workers.
ASTM F855-09, Standard Specifications for Temporary Protective Grounds to Be Used on De-energized Electric Power Lines and Equipment.
ASTM F887-12 e1, Standard Specifications for Personal Climbing Equipment.
ASTM F914/F914M-10, Standard Test Method for Acoustic Emission for Aerial Personnel Devices Without Supplemental Load Handling Attachments.
ASTM F1116-03 (2008), Standard Test Method for Determining Dielectric Strength of Dielectric Footwear.
ASTM F1117-03 (2008), Standard Specification for Dielectric Footwear.
ASTM F1236-96 (2012), Standard Guide for Visual Inspection of Electrical Protective Rubber Products.
ASTM F1430/F1430M-10, Standard Test Method for Acoustic Emission Testing of Insulated and Non-Insulated Aerial Personnel Devices with Supplemental Load Handling Attachments.
ASTM F1505-10, Standard Specification for Insulated and Insulating Hand Tools.
ASTM F1506-10a, Standard Performance Specification for Flame Resistant and Arc Rated Textile Materials for Wearing Apparel for Use by Electrical Workers Exposed to Momentary Electric Arc and Related Thermal Hazards.
ASTM F1564-13, Standard Specification for Structure-Mounted Insulating Work Platforms for Electrical Workers.
ASTM F1701-12, Standard Specification for Unused Polypropylene Rope with Special Electrical Properties.
ASTM F1742-03 (2011), Standard Specification for PVC Insulating Sheeting.
ASTM F1796-09, Standard Specification for High Voltage Detectors—Part 1 Capacitive Type to be Used for Voltages Exceeding 600 Volts AC.
ASTM F1797-09 ε 1, Standard Test Method for Acoustic Emission Testing of Insulated and Non-Insulated Digger Derricks.
ASTM F1825-03 (2007), Standard Specification for Clampstick Type Live Line Tools.
ASTM F1826-00 (2011), Standard Specification for Live Line and Measuring Telescoping Tools.
ASTM F1891-12, Standard Specification for Arc and Flame Resistant Rainwear.
ASTM F1958/F1958M-12, Standard Test Method for Determining the Ignitability of Non-flame-Resistant Materials for Clothing by Electric Arc Exposure Method Using Mannequins.
ASTM F1959/F1959M-12, Standard Test Method for Determining the Arc Rating of Materials for Clothing.
IEEE Stds 4-1995, 4a-2001 (Amendment to IEEE Standard Techniques for High-Voltage Testing), IEEE Standard Techniques for High-Voltage Testing.
IEEE Std 62-1995, IEEE Guide for Diagnostic Field Testing of Electric Power Apparatus—Part 1: Oil Filled Power Transformers, Regulators, and Reactors.
IEEE Std 80-2000, Guide for Safety in AC Substation Grounding.
IEEE Std 100-2000, The Authoritative Dictionary of IEEE Standards Terms Seventh Edition.
IEEE Std 516-2009, IEEE Guide for Maintenance Methods on Energized Power Lines.
IEEE Std 524-2003, IEEE Guide to the Installation of Overhead Transmission Line Conductors.
IEEE Std 957-2005, IEEE Guide for Cleaning Insulators.
IEEE Std 1048-2003, IEEE Guide for Protective Grounding of Power Lines.
IEEE Std 1067-2005, IEEE Guide for In-Service Use, Care, Maintenance, and Testing of Conductive Clothing for Use on Voltages up to 765 kV AC and ±750 kV DC.
IEEE Std 1307-2004, IEEE Standard for Fall Protection for Utility Work.
IEEE Stds 1584-2002, 1584a-2004 (Amendment 1 to IEEE Std 1584-2002), and 1584b-2011 (Amendment 2: Changes to Clause 4 of IEEE Std 1584-2002), IEEE Guide for Performing Arc-Flash Hazard Calculations.
IEEE C2-2012, National Electrical Safety Code.
NFPA 70E-2012, Standard for Electrical Safety in the Workplace.
Subpart W Rollover Protective Structures; Overhead Protection
Authority: 40 U.S.C. 3701; 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 1-2012 (77 FR 3912), as applicable.
§ 1926.1000 Scope.
(a) Coverage. This subpart applies to the following types of material handling equipment: All rubber-tired, self-propelled scrapers, rubber-tired front-end loaders, rubber-tired dozers, wheel-type agricultural and industrial tractors, crawler tractors, crawler-type loaders, and motor graders, with or without attachments, that are used in construction work. This subpart also applies to compactors and rubber-tired skid-steer equipment, with or without attachments, manufactured after July 15, 2019, that are used in construction work. This subpart does not apply to sideboom pipelaying tractors.
(b) Equipment manufactured before July 15, 2019. Material handling equipment described in paragraph (a) of this section (excluding compactors and rubber-tired skid-steer equipment) manufactured before July 15, 2019, shall be equipped with rollover protective structures that meet the minimum performance standards prescribed in § 1926.1001(b), as applicable. Agricultural and industrial tractors used in construction shall be equipped with rollover protective structures that meet the minimum performance standards prescribed in § 1926.1002(b), as applicable. When overhead protection is provided on agricultural and industrial tractors, the overhead protection shall meet the minimum performance standards prescribed in § 1926.1003(b), as applicable.
(c) Equipment manufactured on or after July 15, 2019. Material handling machinery described in paragraph (a) of this section manufactured on or after July 15, 2019, shall be equipped with rollover protective structures that meet the minimum performance standards prescribed in § 1926.1001(c). Agricultural and industrial tractors used in construction shall be equipped with rollover protective structures that meet the minimum performance standards prescribed in § 1926.1002(c). When overhead protection is provided on agricultural and industrial tractors, the overhead protection shall meet the minimum performance standards prescribed in § 1926.1003(c).
(d) Remounting. ROPS removed for any reason, shall be remounted with equal quality, or better, bolts or welding as required for the original mounting.
(e) Labeling. Each ROPS shall have the following information permanently affixed to the structure:
(1) Manufacturer or fabricator's name and address;
(2) ROPS model number, if any;
(3) Machine make, model, or series number that the structure is designed to fit.
(f) Machines meeting certain existing governmental requirements. Any machine in use, equipped with rollover protective structures, shall be deemed in compliance with this section if it meets the rollover protective structure requirements of the State of California, the U.S. Army Corps of Engineers, or the Bureau of Reclamation of the U.S. Department of the Interior in effect on April 5, 1972. The requirements in effect are:
(1) State of California: Construction Safety Orders, issued by the Department of Industrial Relations pursuant to Division 5, Labor Code, § 6312, State of California.
(2) U.S. Army Corps of Engineers: General Safety Requirements, EM-385-1-1 (March 1967).
(3) Bureau of Reclamation, U.S. Department of the Interior: Safety and Health Regulations for Construction. Part II (September 1971).
[44 FR 8577, Feb. 9, 1979; 44 FR 20940, Apr. 6, 1979, as amended at 84 FR 21577, May 14, 2019]
§ 1926.1001 Minimum performance criteria for rollover protective structures for designated scrapers, loaders, dozers, graders, crawler tractors, compactors, and rubber-tired skid steer equipment.
(a) General. This section prescribes minimum performance criteria for roll-over protective structures (ROPS) for rubber-tired self-propelled scrapers; rubber-tired front end loaders and rubber-tired dozers; crawler tractors and crawler-type loaders, motor graders, compactors, and rubber-tired skid steer equipment.
(b) Equipment manufactured before July 15, 2019. For equipment listed in paragraph (a) of this section (excluding compactors and rubber-tired skid steer equipment) manufactured before July 15, 2019, the protective frames shall conform to the following Society of Automotive Engineers Recommended Practices as applicable: SAE J320a, Minimum Performance Criteria for Roll-Over Protective Structure for Rubber-Tired, Self-Propelled Scrapers; SAE J394, Minimum Performance Criteria for Roll-Over Protective Structure for Rubber-Tired Front End Loaders and Rubber-Tired Dozers; SAE J395, Minimum Performance Criteria for Roll-Over Protective Structure for Crawler Tractors and Crawler-Type Loaders; SAE J396, Minimum Performance Criteria for Roll-Over Protective Structure for Motor Graders; and SAE J397, Critical Zone Characteristics and Dimensions for Operators of Construction and Industrial Machinery, as applicable (each incorporated by reference, see § 1926.6), or comply with the consensus standard (ISO 3471:2008) listed in paragraph (c) of this section.
(c) Equipment manufactured on or after July 15, 2019. For equipment listed in paragraph (a) of this section manufactured on or after July 15, 2019, the protective frames shall meet the test and performance requirements of the International Organization for Standardization (ISO) standard ISO 3471:2008 Earth-Moving Machinery—Roll-over protective structures—Laboratory tests and performance requirements (incorporated by reference, see § 1926.6).
[84 FR 21578, May 14, 2019]
§ 1926.1002 Protective frames (roll-over protective structures, known as ROPS) for wheel-type agricultural and industrial tractors used in construction.
(a) General. This section sets forth requirements for frames used to protect operators of wheel-type agricultural and industrial tractors used in construction work that will minimize the possibility of operator injury resulting from accidental upsets during normal operation. See paragraph (e) of this section for definitions of agricultural and industrial tractors.
(b) Equipment manufactured before July 15, 2019. For equipment manufactured before July 15, 2019, the protective frames shall meet the test and performance requirements of the Society of Automotive Engineers Standard J334a, Protective Frame Test Procedures and Performance Requirements and J168, Protective enclosures-test procedures and performance requirements, as applicable (incorporated by reference, see § 1926.6), or comply with the consensus standard (ISO 5700:2013) listed in paragraph (c) of this section.
(c) Equipment manufactured on or after July 15, 2019. For equipment manufactured on or after July 15, 2019, the protective frames shall meet the test and performance requirements of the International Organization for Standardization (ISO) standard ISO 5700:2013, Tractors for agriculture and forestry—Roll-over protective structures—static test method and acceptance conditions or ISO 3471:2008 Earth-Moving Machinery—Roll-over protective structures—Laboratory tests and performance requirements (incorporated by reference, see § 1926.6).
(d) Overhead protection requirements. For overhead protection requirements, see § 1926.1003.
(e) Definitions applicable to this section. (1) “Agricultural tractor” means a wheel-type vehicle of more than 20 engine horsepower, used in construction work, that is designed to furnish the power to pull, propel, or drive implements. (SAE standard J333a-1970 (“Operator protection for wheel-type agricultural and industrial tractors”) defines “agricultural tractor” as a “wheel-type vehicle of more than 20 engine horsepower designed to furnish the power to pull, carry, propel, or drive implements that are designed for agricultural usage.” Since this part 1926 applies only to construction work, the SAE definition of “agricultural tractor” is adopted for purposes of this subpart.)
(2) “Industrial tractor” means that class of wheel-type tractors of more than 20 engine horsepower (other than rubber-tired loaders and dozers described in 29 CFR 1926.1001), used in operations such as landscaping, construction services, loading, digging, grounds keeping, and highway maintenance.
[70 FR 76985, Dec. 29, 2005, as amended at 71 FR 41129, July 20, 2006; 84 FR 21578, May 14, 2019]
§ 1926.1003 Overhead protection for operators of agricultural and industrial tractors used in construction.
(a) General. This section sets forth requirements for overhead protection used to protect operators of wheel-type agricultural and industrial tractors used in construction work that will minimize the possibility of operator injury resulting from overhead objects such as flying or falling objection, and from the cover itself in the event of accidental upset.
(b) Equipment manufactured before July 15, 2019. When overhead protection is provided on wheel-type agricultural and industrial tractors manufactured before July 15, 2019, the overhead protection shall be designed and installed according to the requirements contained in the test and performance requirements of Society of Automotive Engineers Standard J167, Protective Frame with Overhead Protection-Test Procedures and Performance Requirements, which pertains to overhead protection requirements (incorporated by reference, see § 1926.6) or comply with the consensus standard (ISO 27850:2013) listed in paragraph (c) of this section.
(c) Equipment manufactured on or after July 15, 2019. When overhead protection is provided on wheel-type agricultural and industrial tractors manufactured on or after July 15, 2019, the overhead protection shall be designed and installed according to the requirements contained in the test and performance requirements of the International Organization for Standardization (ISO) standard ISO 27850:2013, Tractors for agriculture and forestry—Falling object protective structures—Test procedures and performance requirements, which pertains to overhead protection requirements (incorporated by reference, see § 1926.6).
(d) Site clearing. In the case of machines to which § 1926.604 (relating to site clearing) also applies, the overhead protection may be either the type of protection provided in § 1926.604, or the type of protection provided by this section.
[84 FR 21578, May 14, 2019]
Subpart X Stairways and Ladders
Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 1-90 (55 FR 9033), 5-2007 (72 FR 31159), or 1-2012 (77 FR 3912), as applicable; and 29 CFR Part 1911.
Source: 55 FR 47687, Nov. 14, 1990, unless otherwise noted.
§ 1926.1050 Scope, application, and definitions applicable to this subpart.
(a) Scope and application. This subpart applies to all stairways and ladders used in construction, alteration, repair (including painting and decorating), and demolition workplaces covered under 29 CFR part 1926, and also sets forth, in specified circumstances, when ladders and stairways are required to be provided. Additional requirements for ladders used on or with scaffolds are contained in subpart L—Scaffolds. This subpart does not apply to integral components of equipment covered by subpart CC. Subpart CC exclusively sets forth the circumstances when ladders and stairways must be provided on equipment covered by subpart CC.
(b) Definitions. Cleat means a ladder crosspiece of rectangular cross section placed on edge upon which a person may step while ascending or descending a ladder.
Double-cleat ladder means a ladder similar in construction to a single-cleat ladder, but with a center rail to allow simultaneous two-way traffic for employees ascending or descending.
Equivalent means alternative designs, materials, or methods that the employer can demonstrate will provide an equal or greater degree of safety for employees than the method or item specified in the standard.
Extension trestle ladder means a self-supporting portable ladder, adjustable in length, consisting of a trestle ladder base and a vertically adjustable extension section, with a suitable means for locking the ladders together.
Failure means load refusal, breakage, or separation of component parts. Load refusal is the point where the structural members lose their ability to carry the loads.
Fixed ladder means a ladder that cannot be readily moved or carried because it is an integral part of a building or structure. A side-step fixed ladder is a fixed ladder that requires a person getting off at the top to step to the side of the ladder side rails to reach the landing. A through fixed ladder is a fixed ladder that requires a person getting off at the top to step between the side rails of the ladder to reach the landing.
Handrail means a rail used to provide employees with a handhold for support.
Individual-rung/step ladders means ladders without a side rail or center rail support. Such ladders are made by mounting individual steps or rungs directly to the side or wall of the structure.
Job-made ladder means a ladder that is fabricated by employees, typically at the construction site, and is not commercially manufactured. This definition does not apply to any individual-rung/step ladders.
Ladder stand. A mobile fixed size self-supporting ladder consisting of a wide flat tread ladder in the form of stairs. The assenbly may include handrails.
Lower levels means those areas to which an employee can fall from a stairway or ladder. Such areas include ground levels, floors, roofs, ramps, runways, excavations, pits, tanks, material, water, equipment, and similar surfaces. It does not include the surface from which the employee falls.
Maximum intended load means the total load of all employees, equipment, tools, materials, transmitted loads, and other loads anticipated to be applied to a ladder component at any one time.
Nosing means that portion of a tread projecting beyond the face of the riser immediately below.
Point of access means all areas used by employees for work-related passage from one area or level to another. Such open areas include doorways, 1passageways, stairway openings, studded walls, and various other permanent or temporary openings used for such travel.
Portable ladder means a ladder that can be readily moved or carried.
Riser height means the vertical distance from the top of a tread to the top of the next higher tread or platform/landing or the distance from the top of a platform/landing to the top of the next higher tread or platform/landing.
Side-step fixed ladder. See “Fixed ladder.”
Single-cleat ladder means a ladder consisting of a pair of side rails, connected together by cleats, rungs, or steps.
Single-rail ladder means a portable ladder with rungs, cleats, or steps mounted on a single rail instead of the normal two rails used on most other ladders.
Spiral stairway means a series of steps attached to a vertical pole and progressing upward in a winding fashion within a cylindrical space.
Stairrail system means a vertical barrier erected along the unprotected sides and edges of a stariway to prevent employees from falling to lower levels. The top surface of a stairrail system may also be a “handrail.”
Step stool (ladder type) means a self-supporting, foldable, portable ladder, nonadjustable in length, 32 inches or less in overall size, with flat steps and without a pail shelf, designed to be climbed on the ladder top cap as well as all steps. The side rails may continue above the top cap.
Through fixed ladder. See “Fixed ladder.”
Tread depth means the horizontal distance from front to back of a tread (excluding nosing, if any).
Unprotected sides and edges means any side or edge (except at entrances to points of access) of a stairway where there is no stairrail system or wall 36 inches (.9 m) or more in height, and any side or edge (except at entrances to points of access) of a stairway landing, or ladder platform where there is no wall or guardrail system 39 inches (1 m) or more in height.
[55 FR 47687, Nov. 14, 1990; 56 FR 2585, Jan. 23, 1991, as amended at 58 FR 35184, June 30, 1993; 75 FR 48135, Aug. 9, 2010]
§ 1926.1051 General requirements.
(a) A stairway or ladder shall be provided at all personnel points of access where there is a break in elevation of 19 inches (48 cm) or more, and no ramp, runway, sloped embankment, or personnel hoist is provided.
(1) Employees shall not use any spiral stairways that will not be a permanent part of the structure on which construction work is being performed.
(2) A double-cleated ladder or two or more separate ladders shall be provided when ladders are the only mean of access or exit from a working area for 25 or more employees, or when a ladder is to serve simultaneous two-way traffic.
(3) When a building or structure has only one point of access between levels, that point of access shall be kept clear to permit free passage of employees. When work must be performed or equipment must be used such that free passage at that point of access is restricted, a second point of access shall be provided and used.
(4) When a building or structure has two or more points of access between levels, at least one point of access shall be kept clear to permit free passage of employees.
(b) Employers shall provide and install all stairway and ladder fall protection systems required by this subpart and shall comply with all other pertinent requirements of this subpart before employees begin the work that necessitates the installation and use of stairways, ladders, and their respective fall protection systems.
§ 1926.1052 Stairways.
(a) General. The following requirements apply to all stairways as indicated:
(1) Stairways that will not be a permanent part of the structure on which construction work is being performed shall have landings of not less than 30 inches (76 cm) in the direction of travel and extend at least 22 inches (56 cm) in width at every 12 feet (3.7 m) or less of vertical rise.
(2) Stairs shall be installed between 30° and 50° from horizontal.
(3) Riser height and tread depth shall be uniform within each flight of stairs, including any foundation structure used as one or more treads of the stairs. Variations in riser height or tread depth shall not be over 1/4-inch (0.6 cm) in any stairway system.
(4) Where doors or gates open directly on a stairway, a platform shall be provided, and the swing of the door shall not reduce the effective width of the platform to less than 20 inches (51 cm).
(5) Metal pan landings and metal pan treads, when used, shall be secured in place before filling with concrete or other material.
(6) All parts of stairways shall be free of hazardous projections, such as protruding nails.
(7) Slippery conditions on stairways shall be eliminated before the stairways are used to reach other levels.
(b) Temporary service. The following requirements apply to all stairways as indicated:
(1) Except during stairway construction, foot traffic is prohibited on stairways with pan stairs where the treads and/or landings are to be filled in with concrete or other material at a later date, unless the stairs are temporarily fitted with wood or other solid material at least to the top edge of each pan. Such temporary treads and landings shall be replaced when worn below the level of the top edge of the pan.
(2) Except during stairway construction, foot traffic is prohibited on skeleton metal stairs where permanent treads and/or landings are to be installed at a later date, unless the stairs are fitted with secured temporary treads and landings long enough to cover the entire tread and/or landing area.
(3) Treads for temporary service shall be made of wood or other solid material, and shall be installed the full width and depth of the stair.
(c) Stairrails and handrails. The following requirements apply to all stairways as indicated:
(1) Stairways having four or more risers or rising more than 30 inches (76 cm), whichever is less, shall be equipped with:
(i) At least one handrail; and
(ii) One stairrail system along each unprotected side or edge.
Note:
When the top edge of a stairrail system also serves as a handrail, paragraph (c)(7) of this section applies.
(2) Winding and spiral stairways shall be equipped with a handrail offset sufficiently to prevent walking on those portions of the stairways where the tread width is less than 6 inches (15 cm).
(3) The height of stairrails shall be as follows:
(i) Stairrails installed after March 15, 1991, shall be not less than 36 inches (91.5 cm) from the upper surface of the stairrail system to the surface of the tread, in line with the face of the riser at the forward edge of the tread.
(ii) Stairrails installed before March 15, 1991, shall be not less than 30 inches (76 cm) nor more than 34 inches (86 cm) from the upper surface of the stairrail system to the surface of the tread, in line with the face of the riser at the forward edge of the tread.
(4) Midrails, screens, mesh, intermediate vertical members, or equivalent intermediate structural members, shall be provided between the top rail of the stairrail system and the stairway steps.
(i) Midrails, when used, shall be located at a height midway between the top edge of the stairrail system and the stairway steps.
(ii) Screens or mesh, when used, shall extend from the top rail to the stairway step, and along the entire opening between top rail supports.
(iii) When intermediate vertical members, such as balusters, are used between posts, they shall be not more than 19 inches (48 cm) apart.
(iv) Other structural members, when used, shall be installed such that there are no openings in the stairrail system that are more than 19 inches (48 cm) wide.
(5) Handrails and the top rails of stairrail systems shall be capable of withstanding, without failure, a force of at least 200 pounds (890 n) applied within 2 inches (5 cm) of the top edge, in any downward or outward direction, at any point along the top edge.
(6) The height of handrails shall be not more than 37 inches (94 cm) nor less than 30 inches (76 cm) from the upper surface of the handrail to the surface of the tread, in line with the face of the riser at the forward edge of the tread.
(7) When the top edge of a stairrail system also serves as a handrail, the height of the top edge shall be not more than 37 inches (94 cm) nor less than 36 inches (91.5 cm) from the upper surface of the stairrail system to the surface of the tread, in line with the face of the riser at the forward edge of the tread.
(8) Stairrail systems and handrails shall be so surfaced as to prevent injury to employees from punctures or lacerations, and to prevent snagging of clothing.
(9) Handrails shall provide an adequate handhold for employees grasping them to avoid falling.
(10) The ends of stairrail systems and handrails shall be constructed so as not to constitute a projection hazard.
(11) Handrails that will not be a permanent part of the structure being built shall have a minimum clearance of 3 inches (8 cm) between the handrail and walls, stairrail systems, and other objects.
(12) Unprotected sides and edges of stairway landings shall be provided with guardrail systems. Guardrail system criteria are contained in subpart M of this part.
[55 FR 47687, Nov. 14, 1990; 56 FR 2585, Jan. 23, 1991; 56 FR 5061, Feb. 7, 1991; 56 FR 41794, Aug. 23, 1991]
§ 1926.1053 Ladders.
(a) General. The following requirements apply to all ladders as indicated, including job-made ladders.
(1) Ladders shall be capable of supporting the following loads without failure:
(i) Each self-supporting portable ladder: At least four times the maximum intended load, except that each extra-heavy-duty type 1A metal or plastic ladder shall sustain at least 3.3 times the maximum intended load. The ability of a ladder to sustain the loads indicated in this paragraph shall be determined by applying or transmitting the requisite load to the ladder in a downward vertical direction. Ladders built and tested in conformance with the applicable provisions of appendix A of this subpart will be deemed to meet this requirement.
(ii) Each portable ladder that is not self-supporting: At least four times the maximum intended load, except that each extra-heavy-duty type 1A metal or plastic ladders shall sustain at least 3.3 times the maximum intended load. The ability of a ladder to sustain the loads indicated in this paragraph shall be determined by applying or transmitting the requisite load to the ladder in a downward vertical direction when the ladder is placed at an angle of 75 1/2 degrees from the horizontal. Ladders built and tested in conformance with the applicable provisions of appendix A will be deemed to meet this requirement.
(iii) Each fixed ladder: At least two loads of 250 pounds (114 kg) each, concentrated between any two consecutive attachments (the number and position of additional concentrated loads of 250 pounds (114 kg) each, determined from anticipated usage of the ladder, shall also be included), plus anticipated loads caused by ice buildup, winds, rigging, and impact loads resulting from the use of ladder safety devices. Each step or rung shall be capable of supporting a single concentrated load of at least 250 pounds (114 kg) applied in the middle of the step or rung. Ladders built in conformance with the applicable provisions of appendix A will be deemed to meet this requirement.
(2) Ladder rungs, cleats, and steps shall be parallel, level, and uniformly spaced when the ladder is in position for use.
(3)(i) Rungs, cleats, and steps of portable ladders (except as provided below) and fixed ladders (including individual-rung/step ladders) shall be spaced not less than 10 inches (25 cm) apart, nor more than 14 inches (36 cm) apart, as measured between center lines of the rungs, cleats, and steps.
(ii) Rungs, cleats, and steps of step stools shall be not less than 8 inches (20 cm) apart, nor more than 12 inches (31 cm) apart, as measured between center lines of the rungs, cleats, and steps.
(iii) Rungs, cleats, and steps of the base section of extension trestle ladders shall not be less than 8 inches (20 cm) nor more than 18 inches (46 cm) apart, as measured between center lines of the rungs, cleats, and steps. The rung spacing on the extension section of the extension trestle ladder shall be not less than 6 inches (15 cm) nor more than 12 inches (31 cm), as measured between center lines of the rungs, cleats, and steps.
(4)(i) The minimum clear distance between the sides of individual-rung/step ladders and the minimum clear distance between the side rails of other fixed ladders shall be 16 inches (41 cm).
(ii) The minimum clear distance between side rails for all portable ladders shall be 11 1/2 inches (29 cm).
(5) The rungs of individual-rung/step ladders shall be shaped such that employees' feet cannot slide off the end of the rungs.
(6)(i) The rungs and steps of fixed metal ladders manufactured after March 15, 1991, shall be corrugated, knurled, dimpled, coated with skid-resistant material, or otherwise treated to minimize slipping.
(ii) The rungs and steps of portable metal ladders shall be corrugated, knurled, dimpled, coated with skid-resistant material, or otherwise treated to minimize slipping.
(7) Ladders shall not be tied or fastened together to provide longer sections unless they are specifically designed for such use.
(8) A metal spreader or locking device shall be provided on each stepladder to hold the front and back sections in an open position when the ladder is being used.
(9) When splicing is required to obtain a given length of side rail, the resulting side rail must be at least equivalent in strength to a one-piece side rail made of the same material.
(10) Except when portable ladders are used to gain access to fixed ladders (such as those on utility towers, billboards, and other structures where the bottom of the fixed ladder is elevated to limit access), when two or more separate ladders are used to reach an elevated work area, the ladders shall be offset with a platform or landing between the ladders. (The requirements to have guardrail systems with toeboards for falling object and overhead protection on platforms and landings are set forth in subpart M of this part.)
(11) Ladder components shall be surfaced so as to prevent injury to an employee from punctures or lacerations, and to prevent snagging of clothing.
(12) Wood ladders shall not be coated with any opaque covering, except for identification or warning labels which may be placed on one face only of a side rail.
(13) The minimum perpendicular clearance between fixed ladder rungs, cleats, and steps, and any obstruction behind the ladder shall be 7 inches (18 cm), except in the case of an elevator pit ladder, for which a minimum perpendicular clearance of 4 1/2 inches (11 cm) is required.
(14) The minimum perpendicular clearance between the center line of fixed ladder rungs, cleats, and steps, and any obstruction on the climbing side of the ladder shall be 30 inches (76 cm), except as provided in paragraph (a)(15) of this section.
(15) When unavoidable obstructions are encountered, the minimum perpendicular clearance between the centerline of fixed ladder rungs, cleats, and steps, and the obstruction on the climbing side of the ladder may be reduced to 24 inches (61 cm), provided that a deflection device is installed to guide employees around the obstruction.
(16) Through fixed ladders at their point of access/egress shall have a step-across distance of not less than 7 inches (18 cm) nor more than 12 inches (30 cm) as measured from the centerline of the steps or rungs to the nearest edge of the landing area. If the normal step-across distance exceeds 12 inches (30 cm), a landing platform shall be provided to reduce the distance to the specified limit.
(17) Fixed ladders without cages or wells shall have a clear width to the nearest permanent object of at least 15 inches (38 cm) on each side of the centerline of the ladder.
(18) Fixed ladders shall be provided with cages, wells, ladder safety devices, or self-retracting lifelines where the length of climb is less than 24 feet (7.3 m) but the top of the ladder is at a distance greater than 24 feet (7.3 m) above lower levels.
(19) Where the total length of a climb equals or exceeds 24 feet (7.3 m), fixed ladders shall be equipped with one of the following:
(i) Ladder safety devices; or
(ii) Self-retracting lifelines, and rest platforms at intervals not to exceed 150 feet (45.7 m); or
(iii) A cage or well, and multiple ladder sections, each ladder section not to exceed 50 feet (15.2 m) in length. Ladder sections shall be offset from adjacent sections, and landing platforms shall be provided at maximum intervals of 50 feet (15.2 m).
(20) Cages for fixed ladders shall conform to all of the following:
(i) Horizontal bands shall be fastened to the side rails of rail ladders, or directly to the structure, building, or equipment for individual-rung ladders;
(ii) Vertical bars shall be on the inside of the horizontal bands and shall be fastened to them;
(iii) Cages shall extend not less than 27 inches (68 cm), or more than 30 inches (76 cm) from the centerline of the step or rung (excluding the flare at the bottom of the cage), and shall not be less than 27 inches (68 cm) in width;
(iv) The inside of the cage shall be clear of projections;
(v) Horizontal bands shall be spaced not more than 4 feet (1.2 m) on center vertically;
(vi) Vertical bars shall be spaced at intervals not more than 9 1/2 inches (24 cm) on center horizontally;
(vii) The bottom of the cage shall be at a level not less than 7 feet (2.1 m) nor more than 8 feet (2.4 m) above the point of access to the bottom of the ladder. The bottom of the cage shall be flared not less than 4 inches (10 cm) all around within the distance between the bottom horizontal band and the next higher band;
(viii) The top of the cage shall be a minimum of 42 inches (1.1 m) above the top of the platform, or the point of access at the top of the ladder, with provision for access to the platform or other point of access.
(21) Wells for fixed ladders shall conform to all of the following:
(i) They shall completely encircle the ladder;
(ii) They shall be free of projections;
(iii) Their inside face on the climbing side of the ladder shall extend not less than 27 inches (68 cm) nor more than 30 inches (76 cm) from the centerline of the step or rung;
(iv) The inside clear width shall be at least 30 inches (76 cm);
(v) The bottom of the wall on the access side shall start at a level not less than 7 feet (2.1 m) nor more than 8 feet (2.4 m) above the point of access to the bottom of the ladder.
(22) Ladder safety devices, and related support systems, for fixed ladders shall conform to all of the following:
(i) They shall be capable of withstanding without failure a drop test consisting of an 18-inch (41 cm) drop of a 500-pound (226 kg) weight;
(ii) They shall permit the employee using the device to ascend or descend without continually having to hold, push or pull any part of the device, leaving both hands free for climbing;
(iii) They shall be activated within 2 feet (.61 m) after a fall occurs, and limit the descending velocity of an employee to 7 feet/sec. (2.1 m/sec.) or less;
(iv) The connection between the carrier or lifeline and the point of attachment to the body belt or harness shall not exceed 9 inches (23 cm) in length.
(23) The mounting of ladder safety devices for fixed ladders shall conform to the following:
(i) Mountings for rigid carriers shall be attached at each end of the carrier, with intermediate mountings, as necessary, spaced along the entire length of the carrier, to provide the strength necessary to stop employees' falls.
(ii) Mountings for flexible carriers shall be attached at each end of the carrier. When the system is exposed to wind, cable guides for flexible carriers shall be installed at a minimum spacing of 25 feet (7.6 m) and maximum spacing of 40 feet (12.2 m) along the entire length of the carrier, to prevent wind damage to the system.
(iii) The design and installation of mountings and cable guides shall not reduce the design strength of the ladder.
(24) The side rails of through or side-step fixed ladders shall extend 42 inches (1.1 m) above the top of the access level or landing platform served by the ladder. For a parapet ladder, the access level shall be the roof if the parapet is cut to permit passage through the parapet; if the parapet is continuous, the access level shall be the top of the parapet.
(25) For through-fixed-ladder extensions, the steps or rungs shall be omitted from the extension and the extension of the side rails shall be flared to provide not less than 24 inches (61 cm) nor more than 30 inches (76 cm) clearance between side rails. Where ladder safety devices are provided, the maximum clearance between side rails of the extensions shall not exceed 36 inches (91 cm).
(26) For side-step fixed ladders, the side rails and the steps or rungs shall be continuous in the extension.
(27) Individual-rung/step ladders, except those used where their access openings are covered with manhole covers or hatches, shall extend at least 42 inches (1.1 m) above an access level or landing platform either by the continuation of the rung spacings as horizontal grab bars or by providing vertical grab bars that shall have the same lateral spacing as the vertical legs of the rungs.
(b) Use. The following requirements apply to the use of all ladders, including job-made ladders, except as otherwise indicated:
(1) When portable ladders are used for access to an upper landing surface, the ladder side rails shall extend at least 3 feet (.9 m) above the upper landing surface to which the ladder is used to gain access; or, when such an extension is not possible because of the ladder's length, then the ladder shall be secured at its top to a rigid support that will not deflect, and a grasping device, such as a grabrail, shall be provided to assist employees in mounting and dismounting the ladder. In no case shall the extension be such that ladder deflection under a load would, by itself, cause the ladder to slip off its support.
(2) Ladders shall be maintained free of oil, grease, and other slipping hazards.
(3) Ladders shall not be loaded beyond the maximum intended load for which they were built, nor beyond their manufacturer's rated capacity.
(4) Ladders shall be used only for the purpose for which they were designed.
(5)(i) Non-self-supporting ladders shall be used at an angle such that the horizontal distance from the top support to the foot of the ladder is approximately one-quarter of the working length of the ladder (the distance along the ladder between the foot and the top support).
(ii) Wood job-made ladders with spliced side rails shall be used at an angle such that the horizontal distance is one-eighth the working length of the ladder.
(iii) Fixed ladders shall be used at a pitch no greater than 90 degrees from the horizontal, as measured to the back side of the ladder.
(6) Ladders shall be used only on stable and level surfaces unless secured to prevent accidental displacement.
(7) Ladders shall not be used on slippery surfaces unless secured or provided with slip-resistant feet to prevent accidental displacement. Slip-resistant feet shall not be used as a substitute for care in placing, lashing, or holding a ladder that is used upon slippery surfaces including, but not limited to, flat metal or concrete surfaces that are constructed so they cannot be prevented from becoming slippery.
(8) Ladders placed in any location where they can be displaced by workplace activities or traffic, such as in passageways, doorways, or driveways, shall be secured to prevent accidental displacement, or a barricade shall be used to keep the activities or traffic away from the ladder.
(9) The area around the top and bottom of ladders shall be kept clear.
(10) The top of a non-self-supporting ladder shall be placed with the two rails supported equally unless it is equipped with a single support attachment.
(11) Ladders shall not be moved, shifted, or extended while occupied.
(12) Ladders shall have nonconductive siderails if they are used where the employee or the ladder could contact exposed energized electrical equipment, except as provided in § 1926.955(b) and (c) of this part.
(13) The top or top step of a stepladder shall not be used as a step.
(14) Cross-bracing on the rear section of stepladders shall not be used for climbing unless the ladders are designed and provided with steps for climbing on both front and rear sections.
(15) Ladders shall be inspected by a competent person for visible defects on a periodic basis and after any occurrence that could affect their safe use.
(16) Portable ladders with structural defects, such as, but not limited to, broken or missing rungs, cleats, or steps, broken or split rails, corroded components, or other faulty or defective components, shall either be immediately marked in a manner that readily identifies them as defective, or be tagged with “Do Not Use” or similar language, and shall be withdrawn from service until repaired.
(17) Fixed ladders with structural defects, such as, but not limited to, broken or missing rungs, cleats, or steps, broken or split rails, or corroded components, shall be withdrawn from service until repaired. The requirement to withdraw a defective ladder from service is satisfied if the ladder is either:
(i) Immediately tagged with “Do Not Use” or similar language,
(ii) Marked in a manner that readily identifies it as defective;
(iii) Or blocked (such as with a plywood attachment that spans several rungs).
(18) Ladder repairs shall restore the ladder to a condition meeting its original design criteria, before the ladder is returned to use.
(19) Single-rail ladders shall not be used.
(20) When ascending or descending a ladder, the user shall face the ladder.
(21) Each employee shall use at least one hand to grasp the ladder when progressing up and/or down the ladder.
(22) An employee shall not carry any object or load that could cause the employee to lose balance and fall.
[55 FR 47687, Nov. 14, 1990; 56 FR 2585, Jan. 23, 1991, as amended at 56 FR 41794, Aug. 23, 1991; 79 FR 20743, Apr. 11, 2014]
§§ 1926.1054-1926.1059 [Reserved]
§ 1926.1060 Training requirements.
The following training provisions clarify the requirements of § 1926.21(b)(2), regarding the hazards addressed in subpart X.
(a) The employer shall provide a training program for each employee using ladders and stairways, as necessary. The program shall enable each employee to recognize hazards related to ladders and stairways, and shall train each employee in the procedures to be followed to minimize these hazards.
(1) The employer shall ensure that each employee has been trained by a competent person in the following areas, as applicable:
(i) The nature of fall hazards in the work area;
(ii) The correct procedures for erecting, maintaining, and disassembling the fall protection systems to be used;
(iii) The proper construction, use, placement, and care in handling of all stairways and ladders;
(iv) The maximum intended load-carrying capacities of ladders used; and
(v) The standards contained in this subpart.
(b) Retraining shall be provided for each employee as necessary so that the employee maintains the understanding and knowledge acquired through compliance with this section.
Appendix A to Subpart X of Part 1926 Ladders
This appendix serves as a non-mandatory guideline to assist employers in complying with the ladder loading and strength requirements of § 1926.1053(a)(1). A ladder designed and built in accordance with the applicable national consensus standards, as set forth below, will be considered to meet the requirements of § 1926.1053(a)(1):
• Manufactured portable wood ladders: American National Standards Institute (ANSI) A14.1-1982—American National Standard for Ladders-Portable Wood-Safety Requirements.
• Manufactured portable metal ladders: ANSI A14.2-1982—American National Standard for Ladders—Portable Metal-Safety Requirements.
• Manufactured fixed ladders: ANSI A14.3-1984—American National Standard for Ladders-Fixed-Safety Requirements.
• Job-made ladders: ANSI A14.4-1979—Safety Requirements for Job-Made Ladders.
• Plastic ladders: ANSI A14.5-1982—American National Standard for Ladders-Portable Reinforced Plastic-Safety Requirements.
Subpart Y Diving
Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Sec. 107, Contract Work Hours and Safety Standards Act (the Construction Safety Standards Act) (40 U.S.C. 333); Sec. 41, Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941); 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), 3-2000 (65 FR 50017) or 5-2002 (67 FR 65008) as applicable; and 29 CFR part 1911.
Source: 58 FR 35184, June 30, 1993, unless otherwise noted.
20 General
§ 1926.1071 Scope and application.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.401 of this chapter.
[61 FR 31432, June 20, 1996]
§ 1926.1072 Definitions.
Note:
The provisions applicable to construction work under this section are identical to those set forth at § 1910.402 of this chapter.
[61 FR 31432, June 20, 1996]
21 Personnel Requirements
§ 1926.1076 Qualifications of dive team.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.410 of this chapter.
[61 FR 31432, June 20, 1996]
22 General Operations Procedures
§ 1926.1080 Safe practices manual.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.420 of this chapter.
[61 FR 31432, June 20, 1996]
§ 1926.1081 Pre-dive procedures.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.421 of this chapter.
[61 FR 31432, June 20, 1996]
§ 1926.1082 Procedures during dive.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.422 of this chapter.
[61 FR 31432, June 20, 1996]
§ 1926.1083 Post-dive procedures.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.423 of this chapter.
[61 FR 31432, June 20, 1996]
23 Specific Operations Procedures
§ 1926.1084 SCUBA diving.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.424 of this chapter.
[61 FR 31432, June 20, 1996]
§ 1926.1085 Surface-supplied air diving.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.425 of this chapter.
[61 FR 31432, June 20, 1996]
§ 1926.1086 Mixed-gas diving.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.426 of this chapter.
[61 FR 31432, June 20, 1996]
§ 1926.1087 Liveboating.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.427 of this chapter.
[61 FR 31432, June 20, 1996]
24 Equipment Procedures and Requirements
§ 1926.1090 Equipment.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.430 of this chapter.
[61 FR 31432, June 20, 1996]
25 Recordkeeping
§ 1926.1091 Recordkeeping requirements.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.440 of this chapter.
[61 FR 31432, June 20, 1996]
Appendix A to Subpart Y of Part 1926 Examples of Conditions Which May Restrict or Limit Exposure to Hyperbaric Conditions
Note:
The requirements applicable to construction work under this appendix A are identical to those set forth at appendix A to Subpart T of part 1910 of this chapter.
[61 FR 31432, June 20, 1996]
Appendix B to Subpart Y of Part 1926 Guidelines for Scientific Diving
Note:
The requirements applicable to construction work under this appendix B are identical to those set forth at appendix B to subpart T of part 1910 of this chapter.
[61 FR 31433, June 20, 1996]
Subpart Z Toxic and Hazardous Substances
Authority: 40 U.S.C. 3704; 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), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912) as applicable; and 29 CFR part 1911. Section 1926.1102 not issued under 29 U.S.C. 655 or 29 CFR part 1911; also issued under 5 U.S.C. 553.
§ 1926.1100 [Reserved]
§ 1926.1101 Asbestos.
(a) Scope and application. This section regulates asbestos exposure in all work as defined in 29 CFR 1910.12(b), including but not limited to the following:
(1) Demolition or salvage of structures where asbestos is present;
(2) Removal or encapsulation of materials containing asbestos;
(3) Construction, alteration, repair, maintenance, or renovation of structures, substrates, or portions thereof, that contain asbestos;
(4) Installation of products containing asbestos;
(5) Asbestos spill/emergency cleanup; and
(6) Transportation, disposal, storage, containment of and housekeeping activities involving asbestos or products containing asbestos, on the site or location at which construction activities are performed.
(7) Coverage under this standard shall be based on the nature of the work operation involving asbestos exposure.
(8) This section does not apply to asbestos-containing asphalt roof coatings, cements and mastics.
(b) Definitions.
Aggressive method means removal or disturbance of building material by sanding, abrading, grinding or other method that breaks, crumbles, or disintegrates intact ACM.
Amended water means water to which surfactant (wetting agent) has been added to increase the ability of the liquid to penetrate ACM.
Asbestos includes chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, and any of these minerals that has been chemically treated and/or altered. For purposes of this standard, “asbestos” includes PACM, as defined below.
Asbestos-containing material (ACM), means any material containing more than one percent asbestos.
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.
Authorized person means any person authorized by the employer and required by work duties to be present in regulated areas.
Building/facility owner is the legal entity, including a lessee, which exercises control over management and record keeping functions relating to a building and/or facility in which activities covered by this standard take place.
Certified Industrial Hygienist (CIH) means one certified in the practice of industrial hygiene by the American Board of Industrial Hygiene.
Class I asbestos work means activities involving the removal of TSI and surfacing ACM and PACM.
Class II asbestos work means activities involving the removal of ACM which is not thermal system insulation or surfacing material. This includes, but is not limited to, the removal of asbestos-containing wallboard, floor tile and sheeting, roofing and siding shingles, and construction mastics.
Class III asbestos work means repair and maintenance operations, where “ACM”, including TSI and surfacing ACM and PACM, is likely to be disturbed.
Class IV asbestos work means maintenance and custodial activities during which employees contact but do not disturb ACM or PACM and activities to clean up dust, waste and debris resulting from Class I, II, and III activities.
Clean room means an uncontaminated room having facilities for the storage of employees' street clothing and uncontaminated materials and equipment.
Closely resemble means that the major workplace conditions which have contributed to the levels of historic asbestos exposure, are no more protective than conditions of the current workplace.
Competent person means, in addition to the definition in 29 CFR 1926.32 (f), one who is capable of identifying existing asbestos hazards in the workplace and selecting the appropriate control strategy for asbestos exposure, who has the authority to take prompt corrective measures to eliminate them, as specified in 29 CFR 1926.32(f): in addition, for Class I and Class II work who is specially trained in a training course which meets the criteria of EPA's Model Accreditation Plan (40 CFR part 763) for supervisor, or its equivalent and, for Class III and Class IV work, who is trained in a manner consistent with EPA requirements for training of local education agency maintenance and custodial staff as set forth at 40 CFR 763.92 (a)(2).
Critical barrier means one or more layers of plastic sealed over all openings into a work area or any other similarly placed physical barrier sufficient to prevent airborne asbestos in a work area from migrating to an adjacent area.
Decontamination area means an enclosed area adjacent and connected to the regulated area and consisting of an equipment room, shower area, and clean room, which is used for the decontamination of workers, materials, and equipment that are contaminated with asbestos.
Demolition means the wrecking or taking out of any load-supporting structural member and any related razing, removing, or stripping of asbestos products.
Director means the Director, National Institute for Occupational Safety and Health, U.S. Department of Health and Human Services, or designee.
Disturbance means activities that disrupt the matrix of ACM or PACM, crumble or pulverize ACM or PACM, or generate visible debris from ACM or PACM. In no event shall the amount of ACM or PACM so disturbed exceed that which can be contained in one glove bag or waste bag which shall not exceed 60 inches in length and width.
Employee exposure means that exposure to airborne asbestos that would occur if the employee were not using respiratory protective equipment.
Equipment room (change room) means a contaminated room located within the decontamination area that is supplied with impermeable bags or containers for the disposal of contaminated protective clothing and equipment.
Fiber means a particulate form of asbestos, 5 micrometers or longer, with a length-to-diameter ratio of at least 3 to 1.
Glovebag means not more than a 60 × 60 inch impervious plastic bag-like enclosure affixed around an asbestos-containing material, with glove-like appendages through which material and tools may be handled.
High-efficiency particulate air (HEPA) filter means a filter capable of trapping and retaining at least 99.97 percent of all mono-dispersed particles of 0.3 micrometers in diameter.
Homogeneous area means an area of surfacing material or thermal system insulation that is uniform in color and texture.
Industrial hygienist means a professional qualified by education, training, and experience to anticipate, recognize, evaluate and develop controls for occupational health hazards.
Intact means that the ACM has not crumbled, been pulverized, or otherwise deteriorated so that the asbestos is no longer likely to be bound with its matrix.
Modification for purposes of paragraph (g)(6)(ii), means a changed or altered procedure, material or component of a control system, which replaces a procedure, material or component of a required system. Omitting a procedure or component, or reducing or diminishing the stringency or strength of a material or component of the control system is not a “modification” for purposes of paragraph (g)(6) of this section.
Negative Initial Exposure Assessment means a demonstration by the employer, which complies with the criteria in paragraph (f)(2)(iii) of this section, that employee exposure during an operation is expected to be consistently below the PELs.
PACM means “presumed asbestos containing material”.
Presumed Asbestos Containing Material means thermal system insulation and surfacing material found in buildings constructed no later than 1980. The designation of a material as “PACM” may be rebutted pursuant to paragraph (k)(5) of this section.
Project Designer means a person who has successfully completed the training requirements for an abatement project designer established by 40 U.S.C. 763.90(g).
Regulated area means: an area established by the employer to demarcate areas where Class I, II, and III asbestos work is conducted, and any adjoining area where debris and waste from such asbestos work accumulate; and a work area within which airborne concentrations of asbestos, exceed or there is a reasonable possibility they may exceed the permissible exposure limit. Requirements for regulated areas are set out in paragraph (e) of this section.
Removal means all operations where ACM and/or PACM is taken out or stripped from structures or substrates, and includes demolition operations.
Renovation means the modifying of any existing structure, or portion thereof.
Repair means overhauling, rebuilding, reconstructing, or reconditioning of structures or substrates, including encapsulation or other repair of ACM or PACM attached to structures or substrates.
Surfacing material means material that is sprayed, troweled-on or otherwise applied to surfaces (such as acoustical plaster on ceilings and fireproofing materials on structural members, or other materials on surfaces for acoustical, fireproofing, and other purposes).
Surfacing ACM means surfacing material which contains more than 1% asbestos.
Thermal system insulation (TSI) means ACM applied to pipes, fittings, boilers, breeching, tanks, ducts or other structural components to prevent heat loss or gain.
Thermal system insulation ACM is thermal system insulation which contains more than 1% asbestos.
(c) Permissible exposure limits (PELS)—(1) Time-weighted average limit (TWA). The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.1 fiber per cubic centimeter of air as an eight (8) hour time-weighted average (TWA), as determined by the method prescribed in appendix A to this section, or by an equivalent method.
(2) Excursion limit. The employer shall ensure that no employee is exposed to an airborne concentration of asbestos in excess of 1.0 fiber per cubic centimeter of air (1 f/cc) as averaged over a sampling period of thirty (30) minutes, as determined by the method prescribed in appendix A to this section, or by an equivalent method.
(d) Multi-employer worksites. (1) On multi-employer worksites, an employer performing work requiring the establishment of a regulated area shall inform other employers on the site of the nature of the employer's work with asbestos and/or PACM, of the existence of and requirements pertaining to regulated areas, and the measures taken to ensure that employees of such other employers are not exposed to asbestos.
(2) Asbestos hazards at a multi-employer work site shall be abated by the contractor who created or controls the source of asbestos contamination. For example, if there is a significant breach of an enclosure containing Class I work, the employer responsible for erecting the enclosure shall repair the breach immediately.
(3) In addition, all employers of employees exposed to asbestos hazards shall comply with applicable protective provisions to protect their employees. For example, if employees working immediately adjacent to a Class I asbestos job are exposed to asbestos due to the inadequate containment of such job, their employer shall either remove the employees from the area until the enclosure breach is repaired; or perform an initial exposure assessment pursuant to (f) of this section.
(4) All employers of employees working adjacent to regulated areas established by another employer on a multi-employer work-site, shall take steps on a daily basis to ascertain the integrity of the enclosure and/or the effectiveness of the control method relied on by the primary asbestos contractor to assure that asbestos fibers do not migrate to such adjacent areas.
(5) All general contractors on a construction project which includes work covered by this standard shall be deemed to exercise general supervisory authority over the work covered by this standard, even though the general contractor is not qualified to serve as the asbestos “competent person” as defined by paragraph (b) of this section. As supervisor of the entire project, the general contractor shall ascertain whether the asbestos contractor is in compliance with this standard, and shall require such contractor to come into compliance with this standard when necessary.
(e) Regulated areas. (1) All Class I, II and III asbestos work shall be conducted within regulated areas. All other operations covered by this standard shall be conducted within a regulated area where airborne concentrations of asbestos exceed, or there is a reasonable possibility they may exceed a PEL. Regulated areas shall comply with the requirements of paragraphs (2), (3),(4) and (5) of this section.
(2) Demarcation. The regulated area shall be demarcated in any manner that minimizes the number of persons within the area and protects persons outside the area from exposure to airborne asbestos. Where critical barriers or negative pressure enclosures are used, they may demarcate the regulated area. Signs shall be provided and displayed pursuant to the requirements of paragraph (k)(7) of this section.
(3) Access. Access to regulated areas shall be limited to authorized persons and to persons authorized by the Act or regulations issued pursuant thereto.
(4) Respirators. All persons entering a regulated area where employees are required pursuant to paragraph (h)(1) of this section to wear respirators shall be supplied with a respirator selected in accordance with paragraph (h)(3) of this section.
(5) Prohibited activities. The employer shall ensure that employees do not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in the regulated area.
(6) Competent Persons. The employer shall ensure that all asbestos work performed within regulated areas is supervised by a competent person, as defined in paragraph (b) of this section. The duties of the competent person are set out in paragraph (o) of this section.
(f) Exposure assessments and monitoring—(1) General monitoring criteria. (i) Each employer who has a workplace or work operation where exposure monitoring is required under this section shall perform monitoring to determine accurately the airborne concentrations of asbestos to which employees may be exposed.
(ii) Determinations of employee exposure shall be made from breathing zone air samples that are representative of the 8-hour TWA and 30-minute short-term exposures of each employee.
(iii) Representative 8-hour TWA employee exposure shall be determined on the basis of one or more samples representing full-shift exposure for employees in each work area. Representative 30-minute short-term employee exposures shall be determined on the basis of one or more samples representing 30 minute exposures associated with operations that are most likely to produce exposures above the excursion limit for employees in each work area.
(2) Initial Exposure Assessment. (i) Each employer who has a workplace or work operation covered by this standard shall ensure that a “competent person” conducts an exposure assessment immediately before or at the initiation of the operation to ascertain expected exposures during that operation or workplace. The assessment must be completed in time to comply with requirements which are triggered by exposure data or the lack of a “negative exposure assessment,” and to provide information necessary to assure that all control systems planned are appropriate for that operation and will work properly.
(ii) Basis of Initial Exposure Assessment: Unless a negative exposure assessment has been made pursuant to paragraph (f)(2)(iii) of this section, the initial exposure assessment shall, if feasible, be based on monitoring conducted pursuant to paragraph (f)(1)(iii) of this section. The assessment shall take into consideration both the monitoring results and all observations, information or calculations which indicate employee exposure to asbestos, including any previous monitoring conducted in the workplace, or of the operations of the employer which indicate the levels of airborne asbestos likely to be encountered on the job. For Class I asbestos work, until the employer conducts exposure monitoring and documents that employees on that job will not be exposed in excess of the PELs, or otherwise makes a negative exposure assessment pursuant to paragraph (f)(2)(iii) of this section, the employer shall presume that employees are exposed in excess of the TWA and excursion limit.
(iii) Negative Exposure Assessment: For any one specific asbestos job which will be performed by employees who have been trained in compliance with the standard, the employer may demonstrate that employee exposures will be below the PELs by data which conform to the following criteria;
(A) Objective data demonstrating that the product or material containing asbestos minerals or the activity involving such product or material cannot release airborne fibers in concentrations exceeding the TWA and excursion limit under those work conditions having the greatest potential for releasing asbestos; or
(B) Where the employer has monitored prior asbestos jobs for the PEL and the excursion limit within 12 months of the current or projected job, the monitoring and analysis were performed in compliance with the asbestos standard in effect; and the data were obtained during work operations conducted under workplace conditions “closely resembling” the processes, type of material, control methods, work practices, and environmental conditions used and prevailing in the employer's current operations, the operations were conducted by employees whose training and experience are no more extensive than that of employees performing the current job, and these data show that under the conditions prevailing and which will prevail in the current workplace there is a high degree of certainty that employee exposures will not exceed the TWA and excursion limit; or
(C) The results of initial exposure monitoring of the current job made from breathing zone air samples that are representative of the 8-hour TWA and 30-minute short-term exposures of each employee covering operations which are most likely during the performance of the entire asbestos job to result in exposures over the PELs.
(3) Periodic monitoring—(i) Class I and II operations. The employer shall conduct daily monitoring that is representative of the exposure of each employee who is assigned to work within a regulated area who is performing Class I or II work, unless the employer pursuant to (f)(2)(iii) of this section, has made a negative exposure assessment for the entire operation.
(ii) All operations under the standard other than Class I and II operations. The employer shall conduct periodic monitoring of all work where exposures are expected to exceed a PEL, at intervals sufficient to document the validity of the exposure prediction.
(iii) Exception: When all employees required to be monitored daily are equipped with supplied-air respirators operated in the pressure demand mode, or other positive pressure mode, the employer may dispense with the daily monitoring required by this paragraph. However, employees performing Class I work using a control method which is not listed in paragraph (g)(4)(i), (ii), or (iii) of this section or using a modification of a listed control method, shall continue to be monitored daily even if they are equipped with supplied-air respirators.
(4) Termination of monitoring. (i) If the periodic monitoring required by paragraph (f)(3) of this section reveals that employee exposures, as indicated by statistically reliable measurements, are below the permissible exposure limit and excursion limit the employer may discontinue monitoring for those employees whose exposures are represented by such monitoring.
(ii) Additional monitoring. Notwithstanding the provisions of paragraph (f) (2) and (3), and (f)(4) of this section, the employer shall institute the exposure monitoring required under paragraph (f)(3) of this section whenever there has been a change in process, control equipment, personnel or work practices that may result in new or additional exposures above the permissible exposure limit and/or excursion limit or when the employer has any reason to suspect that a change may result in new or additional exposures above the permissible exposure limit and/or excursion limit. Such additional monitoring is required regardless of whether a “negative exposure assessment” was previously produced for a specific job.
(5) Employee notification of monitoring results. The employer must, as soon as possible but no later than 5 working days after the receipt of the results of any monitoring performed under this section, notify each affected employee of these results either individually in writing or by posting the results in an appropriate location that is accessible to employees.
(6) Observation of monitoring. (i) The employer shall provide affected employees and their designated representatives an opportunity to observe any monitoring of employee exposure to asbestos conducted in accordance with this section.
(ii) When observation of the monitoring of employee exposure to asbestos requires entry into an area where the use of protective clothing or equipment is required, the observer shall be provided with and be required to use such clothing and equipment and shall comply with all other applicable safety and health procedures.
(g) Methods of compliance. (1) Engineering controls and work practices for all operations covered by this section. The employer shall use the following engineering controls and work practices in all operations covered by this section, regardless of the levels of exposure:
(i) Vacuum cleaners equipped with HEPA filters to collect all debris and dust containing ACM and PACM, except as provided in paragraph (g)(8)(ii) of this section in the case of roofing material.
(ii) Wet methods, or wetting agents, to control employee exposures during asbestos handling, mixing, removal, cutting, application, and cleanup, except where employers demonstrate that the use of wet methods is infeasible due to for example, the creation of electrical hazards, equipment malfunction, and, in roofing, except as provided in paragraph (g)(8)(ii) of this section; and
(iii) Prompt clean-up and disposal of wastes and debris contaminated with asbestos in leak-tight containers except in roofing operations, where the procedures specified in paragraph (g)(8)(ii) of this section apply.
(2) In addition to the requirements of paragraph (g)(1) of this section, the employer shall use the following control methods to achieve compliance with the TWA permissible exposure limit and excursion limit prescribed by paragraph (c) of this section;
(i) Local exhaust ventilation equipped with HEPA filter dust collection systems;
(ii) Enclosure or isolation of processes producing asbestos dust;
(iii) Ventilation of the regulated area to move contaminated air away from the breathing zone of employees and toward a filtration or collection device equipped with a HEPA filter;
(iv) Use of other work practices and engineering controls that the Assistant Secretary can show to be feasible.
(v) Wherever the feasible engineering and work practice controls described above are not sufficient to reduce employee exposure to or below the permissible exposure limit and/or excursion limit prescribed in paragraph (c) of this section, the employer shall use them to reduce employee exposure to the lowest levels attainable by these controls and shall supplement them by the use of respiratory protection that complies with the requirements of paragraph (h) of this section.
(3) Prohibitions. The following work practices and engineering controls shall not be used for work related to asbestos or for work which disturbs ACM or PACM, regardless of measured levels of asbestos exposure or the results of initial exposure assessments:
(i) High-speed abrasive disc saws that are not equipped with point of cut ventilator or enclosures with HEPA filtered exhaust air.
(ii) Compressed air used to remove asbestos, or materials containing asbestos, unless the compressed air is used in conjunction with an enclosed ventilation system designed to capture the dust cloud created by the compressed air.
(iii) Dry sweeping, shoveling or other dry clean-up of dust and debris containing ACM and PACM.
(iv) Employee rotation as a means of reducing employee exposure to asbestos.
(4) Class I Requirements. In addition to the provisions of paragraphs (g) (1) and (2) of this section, the following engineering controls and work practices and procedures shall be used.
(i) All Class I work, including the installation and operation of the control system shall be supervised by a competent person as defined in paragraph (b) of this section;
(ii) For all Class I jobs involving the removal of more than 25 linear or 10 square feet of thermal system insulation or surfacing material; for all other Class I jobs, where the employer cannot produce a negative exposure assessment pursuant to paragraph (f)(2)(iii) of this section, or where employees are working in areas adjacent to the regulated area, while the Class I work is being performed, the employer shall use one of the following methods to ensure that airborne asbestos does not migrate from the regulated area:
(A) Critical barriers shall be placed over all the openings to the regulated area, except where activities are performed outdoors; or
(B) The employer shall use another barrier or isolation method which prevents the migration of airborne asbestos from the regulated area, as verified by perimeter area surveillance during each work shift at each boundary of the regulated area, showing no visible asbestos dust; and perimeter area monitoring showing that clearance levels contained in 40 CFR part 763, subpt. E, of the EPA Asbestos in Schools Rule are met, or that perimeter area levels, measured by Phase Contrast Microscopy (PCM) are no more than background levels representing the same area before the asbestos work began. The results of such monitoring shall be made known to the employer no later than 24 hours from the end of the work shift represented by such monitoring. Exception: For work completed outdoors where employees are not working in areas adjacent to the regulated areas, this paragraph (g)(4)(ii) is satisfied when the specific control methods in paragraph (g)(5) of this section are used.
(iii) For all Class I jobs, HVAC systems shall be isolated in the regulated area by sealing with a double layer of 6 mil plastic or the equivalent;
(iv) For all Class I jobs, impermeable dropcloths shall be placed on surfaces beneath all removal activity;
(v) For all Class I jobs, all objects within the regulated area shall be covered with impermeable dropcloths or plastic sheeting which is secured by duct tape or an equivalent.
(vi) For all Class I jobs where the employer cannot produce a negative exposure assessment, or where exposure monitoring shows that a PEL is exceeded, the employer shall ventilate the regulated area to move contaminated air away from the breathing zone of employees toward a HEPA filtration or collection device.
(5) Specific control methods for Class I work. In addition, Class I asbestos work shall be performed using one or more of the following control methods pursuant to the limitations stated below:
(i) Negative Pressure Enclosure (NPE) systems: NPE systems may be used where the configuration of the work area does not make the erection of the enclosure infeasible, with the following specifications and work practices.
(A) Specifications:
(1) The negative pressure enclosure (NPE) may be of any configuration,
(2) At least 4 air changes per hour shall be maintained in the NPE,
(3) A minimum of −0.02 column inches of water pressure differential, relative to outside pressure, shall be maintained within the NPE as evidenced by manometric measurements,
(4) The NPE shall be kept under negative pressure throughout the period of its use, and
(5) Air movement shall be directed away from employees performing asbestos work within the enclosure, and toward a HEPA filtration or a collection device.
(B) Work Practices:
(1) Before beginning work within the enclosure and at the beginning of each shift, the NPE shall be inspected for breaches and smoke-tested for leaks, and any leaks sealed.
(2) Electrical circuits in the enclosure shall be deactivated, unless equipped with ground-fault circuit interrupters.
(ii) Glove bag systems may be used to remove PACM and/or ACM from straight runs of piping and elbows and other connections with the following specifications and work practices:
(A) Specifications:
(1) Glovebags shall be made of 6 mil thick plastic and shall be seamless at the bottom.
(2) Glovebags used on elbows and other connections must be designed for that purpose and used without modifications.
(B) Work Practices:
(1) Each glovebag shall be installed so that it completely covers the circumference of pipe or other structure where the work is to be done.
(2) Glovebags shall be smoke-tested for leaks and any leaks sealed prior to use.
(3) Glovebags may be used only once and may not be moved.
(4) Glovebags shall not be used on surfaces whose temperature exceeds 150 °F.
(5) Prior to disposal, glovebags shall be collapsed by removing air within them using a HEPA vacuum.
(6) Before beginning the operation, loose and friable material adjacent to the glovebag/box operation shall be wrapped and sealed in two layers of six mil plastic or otherwise rendered intact,
(7) Where system uses attached waste bag, such bag shall be connected to collection bag using hose or other material which shall withstand pressure of ACM waste and water without losing its integrity:
(8) Sliding valve or other device shall separate waste bag from hose to ensure no exposure when waste bag is disconnected:
(9) At least two persons shall perform Class I glovebag removal operations.
(iii) Negative Pressure Glove Bag Systems. Negative pressure glove bag systems may be used to remove ACM or PACM from piping.
(A) Specifications: In addition to specifications for glove bag systems above, negative pressure glove bag systems shall attach HEPA vacuum systems or other devices to bag to prevent collapse during removal.
(B) Work Practices: (1) The employer shall comply with the work practices for glove bag systems in paragraph (g)(5)(ii)(B)(4) of this section.
(2) The HEPA vacuum cleaner or other device used to prevent collapse of bag during removal shall run continually during the operation until it is completed at which time the bag shall be collapsed prior to removal of the bag from the pipe.
(3) Where a separate waste bag is used along with a collection bag and discarded after one use, the collection bag may be reused if rinsed clean with amended water before reuse.
(iv) Negative Pressure Glove Box Systems: Negative pressure glove boxes may be used to remove ACM or PACM from pipe runs with the following specifications and work practices.
(A) Specifications:
(1) Glove boxes shall be constructed with rigid sides and made from metal or other material which can withstand the weight of the ACM and PACM and water used during removal:
(2) A negative pressure generator shall be used to create negative pressure in the system:
(3) An air filtration unit shall be attached to the box:
(4) The box shall be fitted with gloved apertures:
(5) An aperture at the base of the box shall serve as a bagging outlet for waste ACM and water:
(6) A back-up generator shall be present on site:
(7) Waste bags shall consist of 6 mil thick plastic double-bagged before they are filled or plastic thicker than 6 mil.
(B) Work practices:
(1) At least two persons shall perform the removal:
(2) The box shall be smoke-tested for leaks and any leaks sealed prior to each use.
(3) Loose or damaged ACM adjacent to the box shall be wrapped and sealed in two layers of 6 mil plastic prior to the job, or otherwise made intact prior to the job.
(4) A HEPA filtration system shall be used to maintain pressure barrier in box.
(v) Water Spray Process System. A water spray process system may be used for removal of ACM and PACM from cold line piping if, employees carrying out such process have completed a 40-hour separate training course in its use, in addition to training required for employees performing Class I work. The system shall meet the following specifications and shall be performed by employees using the following work practices.
(A) Specifications:
(1) Piping shall be surrounded on 3 sides by rigid framing,
(2) A 360 degree water spray, delivered through nozzles supplied by a high pressure separate water line, shall be formed around the piping.
(3) The spray shall collide to form a fine aerosol which provides a liquid barrier between workers and the ACM and PACM.
(B) Work Practices:
(1) The system shall be run for at least 10 minutes before removal begins.
(2) All removal shall take place within the water barrier.
(3) The system shall be operated by at least three persons, one of whom shall not perform removal, but shall check equipment, and ensure proper operation of the system.
(4) After removal, the ACM and PACM shall be bagged while still inside the water barrier.
(vi) A small walk-in enclosure which accommodates no more than two persons (mini-enclosure) may be used if the disturbance or removal can be completely contained by the enclosure with the following specifications and work practices.
(A) Specifications:
(1) The fabricated or job-made enclosure shall be constructed of 6 mil plastic or equivalent:
(2) The enclosure shall be placed under negative pressure by means of a HEPA filtered vacuum or similar ventilation unit:
(B) Work practices:
(1) Before use, the mini-enclosure shall be inspected for leaks and smoke-tested to detect breaches, and any breaches sealed.
(2) Before reuse, the interior shall be completely washed with amended water and HEPA-vacuumed.
(3) During use, air movement shall be directed away from the employee's breathing zone within the mini-enclosure.
(6) Alternative control methods for Class I work. Class I work may be performed using a control method which is not referenced in paragraph (g)(5) of this section, or which modifies a control method referenced in paragraph (g)(5)of this section, if the following provisions are complied with:
(i) The control method shall enclose, contain or isolate the processes or source of airborne asbestos dust, or otherwise capture or redirect such dust before it enters the breathing zone of employees.
(ii) A certified industrial hygienist or licensed professional engineer who is also qualified as a project designer as defined in paragraph (b) of this section, shall evaluate the work area, the projected work practices and the engineering controls and shall certify in writing that the planned control method is adequate to reduce direct and indirect employee exposure to below the PELs under worst-case conditions of use, and that the planned control method will prevent asbestos contamination outside the regulated area, as measured by clearance sampling which meets the requirements of EPA's Asbestos in Schools rule issued under AHERA, or perimeter monitoring which meets the criteria in paragraph (g)(4)(ii)(B) of this section.
(A) Where the TSI or surfacing material to be removed is 25 linear or 10 square feet or less , the evaluation required in paragraph (g)(6) of this section may be performed by a “competent person”, and may omit consideration of perimeter or clearance monitoring otherwise required.
(B) The evaluation of employee exposure required in paragraph (g)(6) of this section, shall include and be based on sampling and analytical data representing employee exposure during the use of such method under worst-case conditions and by employees whose training and experience are equivalent to employees who are to perform the current job.
(7) Work practices and engineering controls for Class II work. (i) All Class II work shall be supervised by a competent person as defined in paragraph (b) of this section.
(ii) For all indoor Class II jobs, where the employer has not produced a negative exposure assessment pursuant to paragraph (f)(2)(iii) of this section, or where during the job, changed conditions indicate there may be exposure above the PEL or where the employer does not remove the ACM in a substantially intact state, the employer shall use one of the following methods to ensure that airborne asbestos does not migrate from the regulated area;
(A) Critical barriers shall be placed over all openings to the regulated area; or,
(B) The employer shall use another barrier or isolation method which prevents the migration of airborne asbestos from the regulated area, as verified by perimeter area monitoring or clearance monitoring which meets the criteria set out in paragraph (g)(4)(ii)(B) of this section.
(C) Impermeable dropcloths shall be placed on surfaces beneath all removal activity;
(iii) [Reserved]
(iv) All Class II asbestos work shall be performed using the work practices and requirements set out above in paragraph (g)(1) (i) through (g)(1)(iii) of this section.
(8) Additional Controls for Class II work. Class II asbestos work shall also be performed by complying with the work practices and controls designated for each type of asbestos work to be performed, set out in this paragraph. Where more than one control method may be used for a type of asbestos work, the employer may choose one or a combination of designated control methods. Class II work also may be performed using a method allowed for Class I work, except that glove bags and glove boxes are allowed if they fully enclose the Class II material to be removed.
(i) For removing vinyl and asphalt flooring materials which contain ACM or for which in buildings constructed no later than 1980, the employer has not verified the absence of ACM pursuant to paragraph (g)(8)(i)(I) of this section. The employer shall ensure that employees comply with the following work practices and that employees are trained in these practices pursuant to paragraph (k)(9):
(A) Flooring or its backing shall not be sanded.
(B) Vacuums equipped with HEPA filter, disposable dust bag, and metal floor tool (no brush) shall be used to clean floors.
(C) Resilient sheeting shall be removed by cutting with wetting of the snip point and wetting during delamination. Rip-up of resilient sheet floor material is prohibited.
(D) All scraping of residual adhesive and/or backing shall be performed using wet methods.
(E) Dry sweeping is prohibited.
(F) Mechanical chipping is prohibited unless performed in a negative pressure enclosure which meets the requirements of paragraph (g)(5)(i) of this section.
(G) Tiles shall be removed intact, unless the employer demonstrates that intact removal is not possible.
(H) When tiles are heated and can be removed intact, wetting may be omitted.
(I) Resilient flooring material including associated mastic and backing shall be assumed to be asbestos-containing unless an industrial hygienist determines that it is asbestos-free using recognized analytical techniques.
(ii) For removing roofing material which contains ACM the employer shall ensure that the following work practices are followed:
(A) Roofing material shall be removed in an intact state to the extent feasible.
(B) Wet methods shall be used to remove roofing materials that are not intact, or that will be rendered not intact during removal, unless such wet methods are not feasible or will create safety hazards.
(C) Cutting machines shall be continuously misted during use, unless a competent person determines that misting substantially decreases worker safety.
(D) When removing built-up roofs with asbestos-containing roofing felts and an aggregate surface using a power roof cutter, all dust resulting from the cutting operation shall be collected by a HEPA dust collector, or shall be HEPA vacuumed by vacuuming along the cut line. When removing built-up roofs with asbestos-containing roofing felts and a smooth surface using a power roof cutter, the dust resulting from the cutting operation shall be collected either by a HEPA dust collector or HEPA vacuuming along the cut line, or by gently sweeping and then carefully and completely wiping up the still-wet dust and debris left along the cut line. The dust and debris shall be immediately bagged or placed in covered containers.
(E) Asbestos-containing material that has been removed from a roof shall not be dropped or thrown to the ground. Unless the material is carried or passed to the ground by hand, it shall be lowered to the ground via covered, dust-tight chute, crane or hoist:
(1) Any ACM that is not intact shall be lowered to the ground as soon as is practicable, but in any event no later than the end of the work shift. While the material remains on the roof it shall either be kept wet, placed in an impermeable waste bag, or wrapped in plastic sheeting.
(2) Intact ACM shall be lowered to the ground as soon as is practicable, but in any event no later than the end of the work shift.
(F) Upon being lowered, unwrapped material shall be transferred to a closed receptacle in such manner so as to preclude the dispersion of dust.
(G) Roof level heating and ventilation air intake sources shall be isolated or the ventilation system shall be shut down.
(H) Notwithstanding any other provision of this section, removal or repair of sections of intact roofing less than 25 square feet in area does not require use of wet methods or HEPA vacuuming as long as manual methods which do not render the material non-intact are used to remove the material and no visible dust is created by the removal method used. In determining whether a job involves less than 25 square feet, the employer shall include all removal and repair work performed on the same roof on the same day.
(iii) When removing cementitious asbestos-containing siding and shingles or transite panels containing ACM on building exteriors (other than roofs, where paragraph (g)(8)(ii) of this section applies) the employer shall ensure that the following work practices are followed:
(A) Cutting, abrading or breaking siding, shingles, or transite panels, shall be prohibited unless the employer can demonstrate that methods less likely to result in asbestos fiber release cannot be used.
(B) Each panel or shingle shall be sprayed with amended water prior to removal.
(C) Unwrapped or unbagged panels or shingles shall be immediately lowered to the ground via covered dust-tight chute, crane or hoist, or placed in an impervious waste bag or wrapped in plastic sheeting and lowered to the ground no later than the end of the work shift.
(D) Nails shall be cut with flat, sharp instruments.
(iv) When removing gaskets containing ACM, the employer shall ensure that the following work practices are followed:
(A) If a gasket is visibly deteriorated and unlikely to be removed intact, removal shall be undertaken within a glovebag as described in paragraph (g)(5)(ii) of this section.
(B) [Reserved]
(C) The gasket shall be immediately placed in a disposal container.
(D) Any scraping to remove residue must be performed wet.
(v) When performing any other Class II removal of asbestos containing material for which specific controls have not been listed in paragraph (g)(8)(i) through (iv) of this section, the employer shall ensure that the following work practices are complied with.
(A) The material shall be thoroughly wetted with amended water prior to and during its removal.
(B) The material shall be removed in an intact state unless the employer demonstrates that intact removal is not possible.
(C) Cutting, abrading or breaking the material shall be prohibited unless the employer can demonstrate that methods less likely to result in asbestos fiber release are not feasible.
(D) Asbestos-containing material removed, shall be immediately bagged or wrapped, or kept wetted until transferred to a closed receptacle, no later than the end of the work shift.
(vi) Alternative Work Practices and Controls. Instead of the work practices and controls listed in paragraph (g)(8) (i) through (v) of this section, the employer may use different or modified engineering and work practice controls if the following provisions are complied with.
(A) The employer shall demonstrate by data representing employee exposure during the use of such method under conditions which closely resemble the conditions under which the method is to be used, that employee exposure will not exceed the PELs under any anticipated circumstances.
(B) A competent person shall evaluate the work area, the projected work practices and the engineering controls, and shall certify in writing, that the different or modified controls are adequate to reduce direct and indirect employee exposure to below the PELs under all expected conditions of use and that the method meets the requirements of this standard. The evaluation shall include and be based on data representing employee exposure during the use of such method under conditions which closely resemble the conditions under which the method is to be used for the current job, and by employees whose training and experience are equivalent to employees who are to perform the current job.
(9) Work Practices and Engineering Controls for Class III asbestos work. Class III asbestos work shall be conducted using engineering and work practice controls which minimize the exposure to employees performing the asbestos work and to bystander employees.
(i) The work shall be performed using wet methods.
(ii) To the extent feasible, the work shall be performed using local exhaust ventilation.
(iii) Where the disturbance involves drilling, cutting, abrading, sanding, chipping, breaking, or sawing of thermal system insulation or surfacing material, the employer shall use impermeable dropcloths, and shall isolate the operation using mini-enclosures or glove bag systems pursuant to paragraph (g)(5) of this section or another isolation method.
(iv) Where the employer does not produce a “negative exposure assessment” for a job, or where monitoring results show the PEL has been exceeded, the employer shall contain the area using impermeable dropcloths and plastic barriers or their equivalent, or shall isolate the operation using a control system listed in and in compliance with paragraph (g)(5) of this section.
(v) Employees performing Class III jobs, which involve the disturbance of thermal system insulation or surfacing material, or where the employer does not produce a “negative exposure assessment” or where monitoring results show a PEL has been exceeded, shall wear respirators which are selected, used and fitted pursuant to provisions of paragraph (h) of this section.
(10) Class IV asbestos work. Class IV asbestos jobs shall be conducted by employees trained pursuant to the asbestos awareness training program set out in paragraph (k)(9) of this section. In addition, all Class IV jobs shall be conducted in conformity with the requirements set out in paragraph (g)(1) of this section, mandating wet methods, HEPA vacuums, and prompt clean up of debris containing ACM or PACM.
(i) Employees cleaning up debris and waste in a regulated area where respirators are required shall wear respirators which are selected, used and fitted pursuant to provisions of paragraph (h) of this section.
(ii) Employers of employees who clean up waste and debris in, and employers in control of, areas where friable thermal system insulation or surfacing material is accessible, shall assume that such waste and debris contain asbestos.
(11) Alternative methods of compliance for installation, removal, repair, and maintenance of certain roofing and pipeline coating materials. Notwithstanding any other provision of this section, an employer who complies with all provisions of this paragraph (g)(11) when installing, removing, repairing, or maintaining intact pipeline asphaltic wrap, or roof flashings which contain asbestos fibers encapsulated or coated by bituminous or resinous compounds shall be deemed to be in compliance with this section. If an employer does not comply with all provisions of this paragraph (g)(11) or if during the course of the job the material does not remain intact, the provisions of paragraph (g)(8) of this section apply instead of this paragraph (g)(11).
(i) Before work begins and as needed during the job, a competent person who is capable of identifying asbestos hazards in the workplace and selecting the appropriate control strategy for asbestos exposure, and who has the authority to take prompt corrective measures to eliminate such hazards, shall conduct an inspection of the worksite and determine that the roofing material is intact and will likely remain intact.
(ii) All employees performing work covered by this paragraph (g)(11) shall be trained in a training program that meets the requirements of paragraph (k)(9)(viii) of this section.
(iii) The material shall not be sanded, abraded, or ground. Manual methods which do not render the material non-intact shall be used.
(iv) Material that has been removed from a roof shall not be dropped or thrown to the ground. Unless the material is carried or passed to the ground by hand, it shall be lowered to the ground via covered, dust-tight chute, crane or hoist. All such material shall be removed from the roof as soon as is practicable, but in any event no later than the end of the work shift.
(v) Where roofing products which have been labeled as containing asbestos pursuant to paragraph (k)(8) of this section are installed on non-residential roofs during operations covered by this paragraph (g)(11), the employer shall notify the building owner of the presence and location of such materials no later than the end of the job.
(vi) All removal or disturbance of pipeline asphaltic wrap shall be performed using wet methods.
(h) Respiratory protection—(1) General. For employees who use respirators required by this section, the employer must provide each employee an appropriate respirator that complies with the requirements of this paragraph. Respirators must be used during:
(i) Class I asbestos work.
(ii) Class II asbestos work when ACM is not removed in a substantially intact state.
(iii) Class II and III asbestos work that is not performed using wet methods, except for removal of ACM from sloped roofs when a negative-exposure assessment has been conducted and ACM is removed in an intact state.
(iv) Class II and III asbestos work for which a negative-exposure assessment has not been conducted.
(v) Class III asbestos work when TSI or surfacing ACM or PACM is being disturbed.
(vi) Class IV asbestos work performed within regulated areas where employees who are performing other work are required to use respirators.
(vii) Work operations covered by this section for which employees are exposed above the TWA or excursion limit.
(viii) Emergencies.
(2) Respirator program. (i) The employer must implement a respiratory protection program in accordance with § 1910.134 (b) through (d) (except (d)(1)(iii)), and (f) through (m), which covers each employee required by this section to use a respirator.
(ii) No employee shall be assigned to asbestos work that requires respirator use if, based on their most recent medical examination, the examining physician determines that the employee will be unable to function normally while using a respirator, or that the safety or health of the employee or other employees will be impaired by the employee's respirator use. Such employees must be assigned to another job or given the opportunity to transfer to a different position that they can perform. If such a transfer position is available, it must be with the same employer, in the same geographical area, and with the same seniority, status, rate of pay, and other job benefits the employee had just prior to such transfer.
(3) Respirator selection. (i) Employers must:
(A) Select, and provide to employees, the appropriate respirators specified in paragraph (d)(3)(i)(A) of 29 CFR 1910.134; however, employers must not select or use filtering facepiece respirators for use against asbestos fibers.
(B) Provide HEPA filters for powered and non-powered air-purifying respirators.
(ii) Employers must provide an employee with tight-fitting, powered air-purifying respirator (PAPR) instead of a negative pressure respirator selected according to paragraph (h)(3)(i)(A) of this standard when the employee chooses to use a PAPR and it provides adequate protection to the employee.
(iii) Employers must provide employees with an air-purifying half mask respirator, other than a filtering facepiece respirator, whenever the employees perform:
(A) Class II or Class III asbestos work for which no negative exposure assessment is available.
(B) Class III asbestos work involving disturbance of TSI or surfacing ACM or PACM.
(iv) Employers must provide employees with:
(A) A tight-fitting powered air-purifying respirator or a full facepiece, supplied-air respirator operated in the pressure-demand mode and equipped with either HEPA egress cartridges or an auxiliary positive-pressure, self-contained breathing apparatus (SCBA) whenever the employees are in a regulated area performing Class I asbestos work for which a negative exposure assessment is not available and the exposure assessment indicates that the exposure level will be at or below 1 f/cc as an 8-hour time-weighted average (TWA).
(B) A full facepiece supplied-air respirator operated in the pressure-demand mode and equipped with an auxiliary positive-pressure SCBA whenever the employees are in a regulated area performing Class I asbestos work for which a negative exposure assessment is not available and the exposure assessment indicates that the exposure level will be above 1 f/cc as an 8-hour TWA.
(i) Protective clothing—(1) General. The employer shall provide or require the use of protective clothing, such as coveralls or similar whole-body clothing, head coverings, gloves, and foot coverings for any employee exposed to airborne concentrations of asbestos that exceed the TWA and/or excursion limit prescribed in paragraph (c) of this section, or for which a required negative exposure assessment is not produced, or for any employee performing Class I operations which involve the removal of over 25 linear or 10 square feet of TSI or surfacing ACM and PACM.
(2) Laundering. (i) The employer shall ensure that laundering of contaminated clothing is done so as to prevent the release of airborne asbestos in excess of the TWA or excursion limit prescribed in paragraph (c) of this section.
(ii) Any employer who gives contaminated clothing to another person for laundering shall inform such person of the requirement in paragraph (i)(2)(i) of this section to effectively prevent the release of airborne asbestos in excess of the TWA and excursion limit prescribed in paragraph (c) of this section.
(3) Contaminated clothing. Contaminated clothing shall be transported in sealed impermeable bags, or other closed, impermeable containers, and be labeled in accordance with paragraph (k) of this section.
(4) Inspection of protective clothing. (i) The competent person shall examine worksuits worn by employees at least once per workshift for rips or tears that may occur during performance of work.
(ii) When rips or tears are detected while an employee is working, rips and tears shall be immediately mended, or the worksuit shall be immediately replaced.
(j) Hygiene facilities and practices for employees. (1) Requirements for employees performing Class I asbestos jobs involving over 25 linear or 10 square feet of TSI or surfacing ACM and PACM.
(i) Decontamination areas. The employer shall establish a decontamination area that is adjacent and connected to the regulated area for the decontamination of such employees. The decontamination area shall consist of an equipment room, shower area, and clean room in series. The employer shall ensure that employees enter and exit the regulated area through the decontamination area.
(A) Equipment room. The equipment room shall be supplied with impermeable, labeled bags and containers for the containment and disposal of contaminated protective equipment.
(B) Shower area. Shower facilities shall be provided which comply with 29 CFR 1910.141(d)(3), unless the employer can demonstrate that they are not feasible. The showers shall be adjacent both to the equipment room and the clean room, unless the employer can demonstrate that this location is not feasible. Where the employer can demonstrate that it is not feasible to locate the shower between the equipment room and the clean room, or where the work is performed outdoors, the employers shall ensure that employees:
(1) Remove asbestos contamination from their worksuits in the equipment room using a HEPA vacuum before proceeding to a shower that is not adjacent to the work area; or
(2) Remove their contaminated worksuits in the equipment room, then don clean worksuits, and proceed to a shower that is not adjacent to the work area.
(C) Clean change room. The clean room shall be equipped with a locker or appropriate storage container for each employee's use. When the employer can demonstrate that it is not feasible to provide a clean change area adjacent to the work area or where the work is performed outdoors, the employer may permit employees engaged in Class I asbestos jobs to clean their protective clothing with a portable HEPA-equipped vacuum before such employees leave the regulated area. Following showering, such employees however must then change into street clothing in clean change areas provided by the employer which otherwise meet the requirements of this section.
(ii) Decontamination area entry procedures. The employer shall ensure that employees:
(A) Enter the decontamination area through the clean room;
(B) Remove and deposit street clothing within a locker provided for their use; and
(C) Put on protective clothing and respiratory protection before leaving the clean room.
(D) Before entering the regulated area, the employer shall ensure that employees pass through the equipment room.
(iii) Decontamination area exit procedures. The employer shall ensure that:
(A) Before leaving the regulated area, employees shall remove all gross contamination and debris from their protective clothing.
(B) Employees shall remove their protective clothing in the equipment room and deposit the clothing in labeled impermeable bags or containers.
(C) Employees shall not remove their respirators in the equipment room.
(D) Employees shall shower prior to entering the clean room.
(E) After showering, employees shall enter the clean room before changing into street clothes.
(iv) Lunch Areas. Whenever food or beverages are consumed at the worksite where employees are performing Class I asbestos work, the employer shall provide lunch areas in which the airborne concentrations of asbestos are below the permissible exposure limit and/or excursion limit.
(2) Requirements for Class I work involving less than 25 linear or 10 square feet of TSI or surfacing ACM and PACM, and for Class II and Class III asbestos work operations where exposures exceed a PEL or where there is no negative exposure assessment produced before the operation.
(i) The employer shall establish an equipment room or area that is adjacent to the regulated area for the decontamination of employees and their equipment which is contaminated with asbestos which shall consist of an area covered by an impermeable drop cloth on the floor or horizontal working surface.
(ii) The area must be of sufficient size as to accommodate cleaning of equipment and removing personal protective equipment without spreading contamination beyond the area (as determined by visible accumulations).
(iii) Work clothing must be cleaned with a HEPA vacuum before it is removed.
(iv) All equipment and surfaces of containers filled with ACM must be cleaned prior to removing them from the equipment room or area.
(v) The employer shall ensure that employees enter and exit the regulated area through the equipment room or area.
(3) Requirements for Class IV work. Employers shall ensure that employees performing Class IV work within a regulated area comply with the hygiene practice required of employees performing work which has a higher classification within that regulated area. Otherwise employers of employees cleaning up debris and material which is TSI or surfacing ACM or identified as PACM shall provide decontamination facilities for such employees which are required by paragraph (j)(2) of this section.
(4) Smoking in work areas. The employer shall ensure that employees do not smoke in work areas where they are occupationally exposed to asbestos because of activities in that work area.
(k) Communication of hazards—(1) Hazard communication. (i) This section applies to the communication of information concerning asbestos hazards in construction activities to facilitate compliance with this standard. Most asbestos-related construction activities involve previously installed building materials. Building owners often are the only and/or best sources of information concerning them. Therefore, they, along with employers of potentially exposed employees, are assigned specific information conveying and retention duties under this section. Installed Asbestos Containing Building Material. Employers and building owners shall identify TSI and sprayed or troweled on surfacing materials in buildings as asbestos-containing, unless they determine in compliance with paragraph (k)(5) of this section that the material is not asbestos-containing. Asphalt and vinyl flooring material installed no later than 1980 must also be considered as asbestos containing unless the employer, pursuant to paragraph (g)(8)(i)(I) of this section determines that it is not asbestos-containing. If the employer/building owner has actual knowledge, or should have known through the exercise of due diligence, that other materials are asbestos-containing, they too must be treated as such. When communicating information to employees pursuant to this standard, owners and employers shall identify “PACM” as ACM. Additional requirements relating to communication of asbestos work on multi-employer worksites are set out in paragraph (d) of this section.
(ii) The employer shall include asbestos in the program established to comply with the Hazard Communication Standard (HCS) (§ 1910.1200). The employer shall ensure that each employee has access to labels on containers of asbestos and safety data sheets, and is trained in accordance with the provisions of HCS and paragraphs (k)(9) and (10) of this section. The employer shall provide information on at least the following hazards: Cancer and lung effects.
(2) Duties of building and facility owners. (i) Before work subject to this standard is begun, building and facility owners shall determine the presence, location, and quantity of ACM and/or PACM at the work site pursuant to paragraph (k)(1)(i) of this section.
(ii) Building and/or facility owners shall notify the following persons of the presence, location and quantity of ACM or PACM, at the work sites in their buildings and facilities. Notification either shall be in writing, or shall consist of a personal communication between the owner and the person to whom notification must be given or their authorized representatives:
(A) Prospective employers applying or bidding for work whose employees reasonably can be expected to work in or adjacent to areas containing such material;
(B) Employees of the owner who will work in or adjacent to areas containing such material:
(C) On multi-employer worksites, all employers of employees who will be performing work within or adjacent to areas containing such materials;
(D) Tenants who will occupy areas containing such material.
(3) Duties of employers whose employees perform work subject to this standard in or adjacent to areas containing ACM and PACM. Building/facility owners whose employees perform such work shall comply with these provisions to the extent applicable.
(i) Before work in areas containing ACM and PACM is begun; employers shall identify the presence, location, and quantity of ACM, and/or PACM therein pursuant to paragraph (k)(1)(i) of this section.
(ii) Before work under this standard is performed employers of employees who will perform such work shall inform the following persons of the location and quantity of ACM and/or PACM present in the area and the precautions to be taken to insure that airborne asbestos is confined to the area.
(A) Owners of the building/facility;
(B) Employees who will perform such work and employers of employees who work and/or will be working in adjacent areas.
(iii) Within 10 days of the completion of such work, the employer whose employees have performed work subject to this standard, shall inform the building/facility owner and employers of employees who will be working in the area of the current location and quantity of PACM and/or ACM remaining in the area and final monitoring results, if any.
(4) In addition to the above requirements, all employers who discover ACM and/or PACM on a worksite shall convey information concerning the presence, location and quantity of such newly discovered ACM and/or PACM to the owner and to other employers of employees working at the work site, within 24 hours of the discovery.
(5) Criteria to rebut the designation of installed material as PACM. (i) At any time, an employer and/or building owner may demonstrate, for purposes of this standard, that PACM does not contain asbestos. Building owners and/or employers are not required to communicate information about the presence of building material for which such a demonstration pursuant to the requirements of paragraph (k)(5)(ii) of this section has been made. However, in all such cases, the information, data and analysis supporting the determination that PACM does not contain asbestos, shall be retained pursuant to paragraph (n) of this section.
(ii) An employer or owner may demonstrate that PACM does not contain more than 1% asbestos by the following: (A) Having a completed inspection conducted pursuant to the requirements of AHERA (40 CFR part 763, subpart E) which demonstrates that the material is not ACM; or
(B) Performing tests of the material containing PACM which demonstrate that no ACM is present in the material. Such tests shall include analysis of bulk samples collected in the manner described in 40 CFR 763.86. The tests, evaluation and sample collection shall be conducted by an accredited inspector or by a CIH. Analysis of samples shall be performed by persons or laboratories with proficiency demonstrated by current successful participation in a nationally recognized testing program such as the National Voluntary Laboratory Accreditation Program (NVLAP) or the National Institute for Standards and Technology (NIST) or the Round Robin for bulk samples administered by the American Industrial Hygiene Association (AIHA) or an equivalent nationally-recognized round robin testing program.
(iii) The employer and/or building owner may demonstrate that flooring material including associated mastic and backing does not contain asbestos, by a determination of an industrial hygienist based upon recognized analytical techniques showing that the material is not ACM.
(6) At the entrance to mechanical rooms/areas in which employees reasonably can be expected to enter and which contain ACM and/or PACM, the building owner shall post signs which identify the material which is present, its location, and appropriate work practices which, if followed, will ensure that ACM and/or PACM will not be disturbed. The employer shall ensure, to the extent feasible, that employees who come in contact with these signs can comprehend them. Means to ensure employee comprehension may include the use of foreign languages, pictographs, graphics, and awareness training.
(7) Signs. (i) Warning signs that demarcate the regulated area shall be provided and displayed at each location where a regulated area is required to be established by paragraph (e) of this section. Signs shall be posted at such a distance from such a location that an employee may read the signs and take necessary protective steps before entering the area marked by the signs.
(ii) (A) The warning signs required by paragraph (k)(7) of this section shall bear the following information.
DANGER ASBESTOS MAY CAUSE CANCER CAUSES DAMAGE TO LUNGS AUTHORIZED PERSONNEL ONLY
(B) In addition, where the use of respirators and protective clothing is required in the regulated area under this section, the warning signs shall include the following:
WEAR RESPIRATORY PROTECTION AND PROTECTIVE CLOTHING IN THIS AREA
(C) Prior to June 1, 2016, employers may use the following legend in lieu of that specified in paragraph (k)(7)(ii)(A) of this section:
DANGER ASBESTOS CANCER AND LUNG DISEASE HAZARD AUTHORIZED PERSONNEL ONLY
(D) Prior to June 1, 2016, employers may use the following legend in lieu of that specified in paragraph (k)(7)(ii)(B) of this section:
RESPIRATORS AND PROTECTIVE CLOTHING ARE REQUIRED IN THIS AREA
(iii) The employer shall ensure that employees working in and contiguous to regulated areas comprehend the warning signs required to be posted by paragraph (k)(7)(i) of this section. Means to ensure employee comprehension may include the use of foreign languages, pictographs and graphics.
(8) Labels. (i) Labels shall be affixed to all products containing asbestos and to all containers containing such products, including waste containers. Where feasible, installed asbestos products shall contain a visible label.
(ii) The employer shall ensure that such labels comply with paragraphs (k) of this section.
(iii) The employer shall ensure that labels of bags or containers of protective clothing and equipment, scrap, waste, and debris containing asbestos fibers bear the following information:
DANGER CONTAINS ASBESTOS FIBERS MAY CAUSE CANCER CAUSES DAMAGE TO LUNGS DO NOT BREATHE DUST AVOID CREATING DUST
(iv) (A) Prior to June 1, 2015, employers may include the following information on raw materials, mixtures or labels of bags or containers of protective clothing and equipment, scrap, waste, and debris containing asbestos fibers in lieu of the labeling requirements in paragraphs (k)(8)(ii) and (k)(8)(iii) of this section:
DANGER CONTAINS ASBESTOS FIBERS AVOID CREATING DUST CANCER AND LUNG DISEASE HAZARD
(B) Labels shall also contain a warning statement against breathing asbestos fibers.
(v) [Reserved]
(vi) The provisions for labels required by paragraphs (k)(8)(i) through (k)(8)(iii) of this section do not apply where:
(A) Asbestos fibers have been modified by a bonding agent, coating, binder, or other material, provided that the manufacturer can demonstrate that, during any reasonably foreseeable use, handling, storage, disposal, processing, or transportation, no airborne concentrations of asbestos fibers in excess of the permissible exposure limit and/or excursion limit will be released, or
(B) Asbestos is present in a product in concentrations less than 1.0 percent.
(vii) When a building owner or employer identifies previously installed PACM and/or ACM, labels or signs shall be affixed or posted so that employees will be notified of what materials contain PACM and/or ACM. The employer shall attach such labels in areas where they will clearly be noticed by employees who are likely to be exposed, such as at the entrance to mechanical room/areas. Signs required by paragraph (k)(6) of this section may be posted in lieu of labels so long as they contain information required for labelling. The employer shall ensure, to the extent feasible, that employees who come in contact with these signs or labels can comprehend them. Means to ensure employee comprehension may include the use of foreign languages, pictographs, graphics, and awareness training.
(9) Employee Information and Training. (i) The employer shall train each employee who is likely to be exposed in excess of a PEL, and each employee who performs Class I through IV asbestos operations, in accordance with the requirements of this section. Such training shall be conducted at no cost to the employee. The employer shall institute a training program and ensure employee participation in the program.
(ii) Training shall be provided prior to or at the time of initial assignment and at least annually thereafter.
(iii) Training for Class I operations and for Class II operations that require the use of critical barriers (or equivalent isolation methods) and/or negative pressure enclosures under this section shall be the equivalent in curriculum, training method and length to the EPA Model Accreditation Plan (MAP) asbestos abatement workers training (40 CFR part 763, subpart E, appendix C).
(iv) Training for other Class II work.
(A) For work with asbestos containing roofing materials, flooring materials, siding materials, ceiling tiles, or transite panels, training shall include at a minimum all the elements included in paragraph (k)(9)(viii) of this section and in addition, the specific work practices and engineering controls set forth in paragraph (g) of this section which specifically relate to that category. Such course shall include “hands-on” training and shall take at least 8 hours.
(B) An employee who works with more than one of the categories of material specified in paragraph (k)(9)(iv)(A) of this section shall receive training in the work practices applicable to each category of material that the employee removes and each removal method that the employee uses.
(C) For Class II operations not involving the categories of material specified in paragraph (k)(9)(iv)(A) of this section, training shall be provided which shall include at a minimum all the elements included in paragraph (k)(9)(viii) of this section and in addition, the specific work practices and engineering controls set forth in paragraph (g) of this section which specifically relate to the category of material being removed, and shall include “hands-on” training in the work practices applicable to each category of material that the employee removes and each removal method that the employee uses.
(v) Training for Class III employees shall be consistent with EPA requirements for training of local education agency maintenance and custodial staff as set forth at 40 CFR 763.92(a)(2). Such a course shall also include “hands-on” training and shall take at least 16 hours. Exception: For Class III operations for which the competent person determines that the EPA curriculum does not adequately cover the training needed to perform that activity, training shall include as a minimum all the elements included in paragraph (k)(9)(viii) of this section and in addition, the specific work practices and engineering controls set forth in paragraph (g) of this section which specifically relate to that activity, and shall include “hands-on” training in the work practices applicable to each category of material that the employee disturbs.
(vi) Training for employees performing Class IV operations shall be consistent with EPA requirements for training of local education agency maintenance and custodial staff as set forth at 40 CFR 763.92(a)(1). Such a course shall include available information concerning the locations of thermal system insulation and surfacing ACM/PACM, and asbestos-containing flooring material, or flooring material where the absence of asbestos has not yet been certified; and instruction in recognition of damage, deterioration, and delamination of asbestos containing building materials. Such course shall take at least 2 hours.
(vii) Training for employees who are likely to be exposed in excess of the PEL and who are not otherwise required to be trained under paragraph (k)(9)(iii) through (vi) of this section, shall meet the requirements of paragraph (k)(9)(viii) of this section.
(viii) The training program shall be conducted in a manner that the employee is able to understand. In addition to the content required by provisions in paragraphs (k)(9)(iii) through (vi) of this section, the employer shall ensure that each such employee is informed of the following:
(A) Methods of recognizing asbestos, including the requirement in paragraph (k)(1) of this section to presume that certain building materials contain asbestos;
(B) The health effects associated with asbestos exposure;
(C) The relationship between smoking and asbestos in producing lung cancer;
(D) The nature of operations that could result in exposure to asbestos, the importance of necessary protective controls to minimize exposure including, as applicable, engineering controls, work practices, respirators, housekeeping procedures, hygiene facilities, protective clothing, decontamination procedures, emergency procedures, and waste disposal procedures, and any necessary instruction in the use of these controls and procedures; where Class III and IV work will be or is performed, the contents of EPA 20T-2003, “Managing Asbestos In-Place” July 1990 or its equivalent in content;
(E) The purpose, proper use, fitting instructions, and limitations of respirators as required by 29 CFR 1910.134;
(F) The appropriate work practices for performing the asbestos job;
(G) Medical surveillance program requirements;
(H) The content of this standard including appendices;
(I) The names, addresses and phone numbers of public health organizations which provide information, materials and/or conduct programs concerning smoking cessation. The employer may distribute the list of such organizations contained in appendix J to this section, to comply with this requirement; and
(J) The requirements for posting signs and affixing labels and the meaning of the required legends for such signs and labels.
(10) Access to training materials. (i) The employer shall make readily available to affected employees without cost, written materials relating to the employee training program, including a copy of this regulation.
(ii) The employer shall provide to the Assistant Secretary and the Director, upon request, all information and training materials relating to the employee information and training program.
(iii) The employer shall inform all employees concerning the availability of self-help smoking cessation program material. Upon employee request, the employer shall distribute such material, consisting of NIH Publication No, 89-1647, or equivalent self-help material, which is approved or published by a public health organization listed in appendix J to this section.
(l) Housekeeping—(1) Vacuuming. Where vacuuming methods are selected, HEPA filtered vacuuming equipment must be used. The equipment shall be used and emptied in a manner that minimizes the reentry of asbestos into the workplace.
(2) Waste disposal. Asbestos waste, scrap, debris, bags, containers, equipment, and contaminated clothing consigned for disposal shall be collected and disposed of in sealed, labeled, impermeable bags or other closed, labeled, impermeable containers except in roofing operations, where the procedures specified in paragraph (g)(8)(ii) of this section apply.
(3) Care of asbestos-containing flooring material. (i) All vinyl and asphalt flooring material shall be maintained in accordance with this paragraph unless the building/facility owner demonstrates, pursuant to paragraph (g)(8)(i)(I) of this section that the flooring does not contain asbestos.
(ii) Sanding of flooring material is prohibited.
(iii) Stripping of finishes shall be conducted using low abrasion pads at speeds lower than 300 rpm and wet methods.
(iv) Burnishing or dry buffing may be performed only on flooring which has sufficient finish so that the pad cannot contact the flooring material.
(4) Waste and debris and accompanying dust in an area containing accessible thermal system insulation or surfacing ACM/PACM or visibly deteriorated ACM:
(i) Shall not be dusted or swept dry, or vacuumed without using a HEPA filter;
(ii) Shall be promptly cleaned up and disposed of in leak tight containers.
(m) Medical surveillance— (1) General—(i) Employees covered. (A) The employer shall institute a medical surveillance program for all employees who for a combined total of 30 or more days per year are engaged in Class I, II and III work or are exposed at or above a permissible exposure limit. For purposes of this paragraph, any day in which a worker engages in Class II or Class III operations or a combination thereof on intact material for one hour or less (taking into account the entire time spent on the removal operation, including cleanup) and, while doing so, adheres fully to the work practices specified in this standard, shall not be counted.
(B) For employees otherwise required by this standard to wear a negative pressure respirator, employers shall ensure employees are physically able to perform the work and use the equipment. This determination shall be made under the supervision of a physician.
(ii) Examination. (A) The employer shall ensure that all medical examinations and procedures are performed by or under the supervision of a licensed physician, and are provided at no cost to the employee and at a reasonable time and place.
(B) Persons other than such licensed physicians who administer the pulmonary function testing required by this section shall complete a training course in spirometry sponsored by an appropriate academic or professional institution.
(2) Medical examinations and consultations—(i) Frequency. The employer shall make available medical examinations and consultations to each employee covered under paragraph (m)(1)(i) of this section on the following schedules:
(A) Prior to assignment of the employee to an area where negative-pressure respirators are worn;
(B) When the employee is assigned to an area where exposure to asbestos may be at or above the permissible exposure limit for 30 or more days per year, or engage in Class I, II, or III work for a combined total of 30 or more days per year, a medical examination must be given within 10 working days following the thirtieth day of exposure;
(C) And at least annually thereafter.
(D) If the examining physician determines that any of the examinations should be provided more frequently than specified, the employer shall provide such examinations to affected employees at the frequencies specified by the physician.
(E) Exception: No medical examination is required of any employee if adequate records show that the employee has been examined in accordance with this paragraph within the past 1-year period.
(ii) Content. Medical examinations made available pursuant to paragraphs (m)(2)(i)(A) through (m)(2)(i)(C) of this section shall include:
(A) A medical and work history with special emphasis directed to the pulmonary, cardiovascular, and gastrointestinal systems.
(B) On initial examination, the standardized questionnaire contained in part 1 of appendix D to this section, and, on annual examination, the abbreviated standardized questionnaire contained in part 2 of appendix D to this section.
(C) A physical examination directed to the pulmonary and gastrointestinal systems, including a 14- by 17-inch or other reasonably-sized standard film or digital posterior-anterior chest X-ray to be administered at the discretion of the physician, and pulmonary function tests of forced vital capacity (FVC) and forced expiratory volume at one second (FEV1). Classification of all chest X-rays shall be conducted in accordance with appendix E to this section.
(D) Any other examinations or tests deemed necessary by the examining physician.
(3) Information provided to the physician. The employer shall provide the following information to the examining physician:
(i) A copy of this standard and Appendices D, E, and I to this section;
(ii) A description of the affected employee's duties as they relate to the employee's exposure;
(iii) The employee's representative exposure level or anticipated exposure level;
(iv) A description of any personal protective and respiratory equipment used or to be used; and
(v) Information from previous medical examinations of the affected employee that is not otherwise available to the examining physician.
(4) Physician's written opinion. (i) The employer shall obtain a written opinion from the examining physician. This written opinion shall contain the results of the medical examination and shall include:
(A) The physician's opinion as to whether the employee has any detected medical conditions that would place the employee at an increased risk of material health impairment from exposure to asbestos;
(B) Any recommended limitations on the employee or on the use of personal protective equipment such as respirators; and
(C) A statement that the employee has been informed by the physician of the results of the medical examination and of any medical conditions that may result from asbestos exposure.
(D) A statement that the employee has been informed by the physician of the increased risk of lung cancer attributable to the combined effect of smoking and asbestos exposure.
(ii) The employer shall instruct the physician not to reveal in the written opinion given to the employer specific findings or diagnoses unrelated to occupational exposure to asbestos.
(iii) The employer shall provide a copy of the physician's written opinion to the affected employee within 30 days from its receipt.
(n) Recordkeeping—(1) Objective data relied on pursuant to paragraph (f) to this section. (i) Where the employer has relied on objective data that demonstrates that products made from or containing asbestos or the activity involving such products or material are not capable of releasing fibers of asbestos in concentrations at or above the permissible exposure limit and/or excursion limit under the expected conditions of processing, use, or handling to satisfy the requirements of paragraph (f), the employer shall establish and maintain an accurate record of objective data reasonably relied upon in support of the exemption.
(ii) The record shall include at least the following information:
(A) The product qualifying for exemption;
(B) The source of the objective data;
(C) The testing protocol, results of testing, and/or analysis of the material for the release of asbestos;
(D) A description of the operation exempted and how the data support the exemption; and
(E) Other data relevant to the operations, materials, processing, or employee exposures covered by the exemption.
(iii) The employer shall maintain this record for the duration of the employer's reliance upon such objective data.
(2) Exposure measurements. (i) The employer shall keep an accurate record of all measurements taken to monitor employee exposure to asbestos as prescribed in paragraph (f) of this section. NOTE: The employer may utilize the services of competent organizations such as industry trade associations and employee associations to maintain the records required by this section.
(ii) This record shall include at least the following information:
(A) The date of measurement;
(B) The operation involving exposure to asbestos that is being monitored;
(C) Sampling and analytical methods used and evidence of their accuracy;
(D) Number, duration, and results of samples taken;
(E) Type of protective devices worn, if any; and
(F) Name and exposure of the employees whose exposures are represented.
(iii) The employer shall maintain this record for at least thirty (30) years, in accordance with § 1910.1020 of this chapter
(3) Medical surveillance. (i) The employer shall establish and maintain an accurate record for each employee subject to medical surveillance by paragraph (m) of this section, in accordance with § 1910.1020 of this chapter.
(ii) The record shall include at least the following information:
(A) The name of the employee;
(B) A copy of the employee's medical examination results, including the medical history, questionnaire responses, results of any tests, and physician's recommendations.
(C) Physician's written opinions;
(D) Any employee medical complaints related to exposure to asbestos; and
(E) A copy of the information provided to the physician as required by paragraph (m) of this section.
(iii) The employer shall ensure that this record is maintained for the duration of employment plus thirty (30) years, in accordance with § 1910.1020 of this chapter.
(4) Training records. The employer shall maintain all employee training records for one (1) year beyond the last date of employment by that employer.
(5) Data to Rebut PACM. Where the building owner and employer have relied on data to demonstrate that PACM is not asbestos-containing, such data shall be maintained for as long as they are relied upon to rebut the presumption.
(6) Records of required notifications. Where the building owner has communicated and received information concerning the identification, location and quantity of ACM and PACM, written records of such notifications and their content shall be maintained by the building owner for the duration of ownership and shall be transferred to successive owners of such buildings/facilities.
(7) Availability. (i) The employer, upon written request, shall make all records required to be maintained by this section available to the Assistant Secretary and the Director for examination and copying.
(ii) The employer must comply with the requirements concerning availability of records set forth in 29 CFR 1910.1020.
(8) Transfer of records. The employer must comply with the requirements concerning transfer of records set forth in 29 CFR 1910.1020(h).
(o) Competent person—(1) General. On all construction worksites covered by this standard, the employer shall designate a competent person, having the qualifications and authorities for ensuring worker safety and health required by subpart C, General Safety and Health Provisions for Construction (29 CFR 1926.20 through 1926.32).
(2) Required inspections by the competent person. Section 1926.20(b)(2) which requires health and safety prevention programs to provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons, is incorporated.
(3) Additional inspections. In addition, the competent person shall make frequent and regular inspections of the job sites, in order to perform the duties set out below in paragraph (o)(3)(i) of this section. For Class I jobs, on-site inspections shall be made at least once during each work shift, and at any time at employee request. For Class II, III, and IV jobs, on-site inspections shall be made at intervals sufficient to assess whether conditions have changed, and at any reasonable time at employee request.
(i) On all worksites where employees are engaged in Class I or II asbestos work, the competent person designated in accordance with paragraph (e)(6) of this section shall perform or supervise the following duties, as applicable:
(A) Set up the regulated area, enclosure, or other containment;
(B) Ensure (by on-site inspection) the integrity of the enclosure or containment;
(C) Set up procedures to control entry to and exit from the enclosure and/or area;
(D) Supervise all employee exposure monitoring required by this section and ensure that it is conducted as required by paragraph (f) of this section;
(E) Ensure that employees working within the enclosure and/or using glove bags wear respirators and protective clothing as required by paragraphs (h) and (i) of this section;
(F) Ensure through on-site supervision, that employees set up, use, and remove engineering controls, use work practices and personal protective equipment in compliance with all requirements;
(G) Ensure that employees use the hygiene facilities and observe the decontamination procedures specified in paragraph (j) of this section;
(H) Ensure that through on-site inspection, engineering controls are functioning properly and employees are using proper work practices; and,
(I) Ensure that notification requirement in paragraph (k) of this section are met.
(ii) [Reserved]
(4) Training for the competent person. (i) For Class I and II asbestos work the competent person shall be trained in all aspects of asbestos removal and handling, including: abatement, installation, removal and handling; the contents of this standard; the identification of asbestos; removal procedures, where appropriate; and other practices for reducing the hazard. Such training shall be obtained in a comprehensive course for supervisors that meets the criteria of EPA's Model Accreditation Plan (40 CFR part 763, subpart E, appendix C), such as a course conducted by an EPA-approved or state-approved training provider, certified by EPA or a state, or a course equivalent in stringency, content, and length.
(ii) For Class III and IV asbestos work, the competent person shall be trained in aspects of asbestos handling appropriate for the nature of the work, to include procedures for setting up glove bags and mini-enclosures, practices for reducing asbestos exposures, use of wet methods, the contents of this standard, and the identification of asbestos. Such training shall include successful completion of a course that is consistent with EPA requirements for training of local education agency maintenance and custodial staff as set forth at 40 CFR 763.92(a)(2), or its equivalent in stringency, content and length. Competent persons for Class III and IV work, may also be trained pursuant to the requirements of paragraph (o)(4)(i) of this section.
(p) Appendices. (1) Appendices A, D, and E to this section are incorporated as part of this section and the contents of these appendices are mandatory.
(2) Appendices B, F, H, I, J, and K to this section are informational and are not intended to create any additional obligations not otherwise imposed or to detract from any existing obligations.
Appendix A to § 1926.1101—OSHA Reference Method—Mandatory
This mandatory appendix specifies the procedure for analyzing air samples for asbestos and specifies quality control procedures that must be implemented by laboratories performing the analysis. The sampling and analytical methods described below represent the elements of the available monitoring methods (such as appendix B of this regulation, the most current version of the OSHA method ID-160, or the most current version of the NIOSH Method 7400). All employers who are required to conduct air monitoring under paragraph (f) of the standard are required to utilize analytical laboratories that use this procedure, or an equivalent method, for collecting and analyzing samples.
Sampling and Analytical Procedure
1. The sampling medium for air samples shall be mixed cellulose ester filter membranes. These shall be designated by the manufacturer as suitable for asbestos counting. See below for rejection of blanks.
2. The preferred collection device shall be the 25-mm diameter cassette with an open-faced 50-mm electrically conductive extension cowl. The 37-mm cassette may be used if necessary but only if written justification for the need to use the 37-mm filter cassette accompanies the sample results in the employee's exposure monitoring record. Do not reuse or reload cassettes for asbestos sample collection.
3. An air flow rate between 0.5 liter/min and 2.5 liters/min shall be selected for the 25/mm cassette. If the 37-mm cassette is used, an air flow rate between 1 liter/min and 2.5 liters/min shall be selected.
4. Where possible, a sufficient air volume for each air sample shall be collected to yield between 100 and 1,300 fibers per square millimeter on the membrane filter. If a filter darkens in appearance or if loose dust is seen on the filter, a second sample shall be started.
5. Ship the samples in a rigid container with sufficient packing material to prevent dislodging the collected fibers. Packing material that has a high electrostatic charge on its surface (e.g., expanded polystyrene) cannot be used because such material can cause loss of fibers to the sides of the cassette.
6. Calibrate each personal sampling pump before and after use with a representative filter cassette installed between the pump and the calibration devices.
7. Personal samples shall be taken in the “breathing zone” of the employee (i.e., attached to or near the collar or lapel near the worker's face).
8. Fiber counts shall be made by positive phase contrast using a microscope with an 8 to 10× eyepiece and a 40 to 45× objective for a total magnification of approximately 400× and a numerical aperture of 0.65 to 0.75. The microscope shall also be fitted with a green or blue filter.
9. The microscope shall be fitted with a Walton-Beckett eyepiece graticule calibrated for a field diameter of 100 micrometers (±2 micrometers).
10. The phase-shift detection limit of the microscope shall be about 3 degrees measured using the HSE phase shift test slide as outlined below.
a. Place the test slide on the microscope stage and center it under the phase objective.
b. Bring the blocks of grooved lines into focus.
Note:
The slide consists of seven sets of grooved lines (ca. 20 grooves to each block) in descending order of visibility from sets 1 to 7, seven being the least visible. The requirements for asbestos counting are that the microscope optics must resolve the grooved lines in set 3 completely, although they may appear somewhat faint, and that the grooved lines in sets 6 and 7 must be invisible. Sets 4 and 5 must be at least partially visible but may vary slightly in visibility between microscopes. A microscope that fails to meet these requirements has either too low or too high a resolution to be used for asbestos counting.
c. If the image deteriorates, clean and adjust the microscope optics. If the problem persists, cosult the microscope manufacturer.
11. Each set of samples taken will include 10% field blanks or a minimum of 2 field blanks. These blanks must come from the same lot as the filters used for sample collection. The field blank results shall be averaged and subtracted from the analytical results before reporting. A set consists of any sample or group of samples for which an evaluation for this standard must be made. Any samples represented by a field blank having a fiber count in excess of the detection limit of the method being used shall be rejected.
12. The samples shall be mounted by the acetone/triacetin method or a method with an equivalent index of refraction and similar clarity.
13. Observe the following counting rules.
a. Count only fibers equal to or longer than 5 micrometers. Measure the length of curved fibers along the curve.
b. In the absence of other information, count all particles as asbestos, that have a length-to-width ratio (aspect ratio) of 3:1 or greater.
c. Fibers lying entirely within the boundary of the Walton-Beckett graticule field shall receive a count of 1. Fibers crossing the boundary once, having one end within the circle, shall receive the count of one half ( 1/2). Do not count any fiber that crosses the graticule boundary more than once. Reject and do not count any other fibers even though they may be visible outside the graticule area.
d. Count bundles of fibers as one fiber unless individual fibers can be identified by observing both ends of an individual fiber.
e. Count enough graticule fields to yield 100 fibers. Count a minimum of 20 fields; stop counting at 100 fields regardless of fiber count.
14. Blind recounts shall be conducted at the rate of 10 percent.
Quality Control Procedures
1. Intralaboratory program. Each laboratory and/or each company with more than one microscopist counting slides shall establish a statistically designed quality assurance program involving blind recounts and comparisons between microscopists to monitor the variability of counting by each microscopist and between microscopists. In a company with more than one laboratory, the program shall include all laboratories, and shall also evaluate the laboratory-to-laboratory variability.
2a. Interlaboratory program. Each laboratory analyzing asbestos samples for compliance determination shall implement an interlaboratory quality assurance program that, as a minimum, includes participation of at least two other independent laboratories. Each laboratory shall participate in round robin testing at least once every 6 months with at least all the other laboratories in its interlaboratory quality assurance group. Each laboratory shall submit slides typical of its own workload for use in this program. The round robin shall be designed and results analyzed using appropriate statistical methodology.
b. All laboratories should also participate in a national sample testing scheme such as the Proficiency Analytical Testing Program (PAT), or the Asbestos Registry sponsored by the American Industrial Hygiene Association (AIHA).
3. All individuals performing asbestos analysis must have taken the NIOSH course for sampling and evaluating airborne asbestos dust or an equivalent course.
4. When the use of different microscopes contributes to differences between counters and laboratories, the effect of the different microscope shall be evaluated and the microscope shall be replaced, as necessary.
5. Current results of these quality assurance programs shall be posted in each laboratory to keep the microscopists informed.
Appendix B to § 1926.1101—Sampling and Analysis (Non-Mandatory)
Matrix Air:
OSHA Permissible Exposure Limits:
Time Weighted Average | 0.1 fiber/cc
Excursion Level (30 minutes) | 1.0 fiber/cc
Collection Procedure:
A known volume of air is drawn through a 25-mm diameter cassette containing a mixed-cellulose ester filter. The cassette must be equipped with an electrically conductive 50-mm extension cowl. The sampling time and rate are chosen to give a fiber density of between 100 to 1,300 fibers/mm2 on the filter.
Recommended Sampling Rate | 0.5 to 5.0 liters/minute (L/min)
Recommended Air Volumes:
Minimum | 25 L
Maximum | 2,400 L
Analytical Procedure:
A portion of the sample filter is cleared and prepared for asbestos fiber counting by Phase Contrast Microscopy (PCM) at 400X.
Commercial manufacturers and products mentioned in this method are for descriptive use only and do not constitute endorsements by USDOL-OSHA. Similar products from other sources can be substituted.
1. Introduction
This method describes the collection of airborne asbestos fibers using calibrated sampling pumps with mixed-cellulose ester (MCE) filters and analysis by phase contrast microscopy (PCM). Some terms used are unique to this method and are defined below: Asbestos: A term for naturally occurring fibrous minerals. Asbestos includes chrysotile, crocidolite, amosite (cummingtonite-grunerite asbestos), tremolite asbestos, actinolite asbestos, anthophyllite asbestos, and any of these minerals that have been chemically treated and/or altered. The precise chemical formulation of each species will vary with the location from which it was mined. Nominal compositions are listed:
Chrysotile | Mg3 Si2 O5(OH)4
Crocidolite | Na2 Fe3 2 + Fe2 3 + Si8 O22(OH)2
Amosite | (Mg,Fe)7 Si8 O22(OH)2
Tremolite-actinolite | Ca2(Mg,Fe)5 Si8 O22(OH)2
Anthophyllite | (Mg,Fe)7 Si8 O22(OH)2
Asbestos Fiber: A fiber of asbestos which meets the criteria specified below for a fiber.
Aspect Ratio: The ratio of the length of a fiber to it's diameter (e.g. 3:1, 5:1 aspect ratios).
Cleavage Fragments: Mineral particles formed by comminution of minerals, especially those characterized by parallel sides and a moderate aspect ratio (usually less than 20:1).
Detection Limit: The number of fibers necessary to be 95% certain that the result is greater than zero.
Differential Counting: The term applied to the practice of excluding certain kinds of fibers from the fiber count because they do not appear to be asbestos.
Fiber: A particle that is 5 µm or longer, with a length-to-width ratio of 3 to 1 or longer.
Field: The area within the graticule circle that is superimposed on the microscope image.
Set: The samples which are taken, submitted to the laboratory, analyzed, and for which, interim or final result reports are generated.
Tremolite, Anthophyllite, and Actinolite: The non-asbestos form of these minerals which meet the definition of a fiber. It includes any of these minerals that have been chemically treated and/or altered.
Walton-Beckett Graticule: An eyepiece graticule specifically designed for asbestos fiber counting. It consists of a circle with a projected diameter of 100 ±2 µm (area of about 0.00785 mm 2) with a crosshair having tic-marks at 3-µm intervals in one direction and 5-µm in the orthogonal direction. There are marks around the periphery of the circle to demonstrate the proper sizes and shapes of fibers. This design is reproduced in Figure 1. The disk is placed in one of the microscope eyepieces so that the design is superimposed on the field of view.
1.1. History
Early surveys to determine asbestos exposures were conducted using impinger counts of total dust with the counts expressed as million particles per cubic foot. The British Asbestos Research Council recommended filter membrane counting in 1969. In July 1969, the Bureau of Occupational Safety and Health published a filter membrane method for counting asbestos fibers in the United States. This method was refined by NIOSH and published as P & CAM 239. On May 29, 1971, OSHA specified filter membrane sampling with phase contrast counting for evaluation of asbestos exposures at work sites in the United States. The use of this technique was again required by OSHA in 1986. Phase contrast microscopy has continued to be the method of choice for the measurement of occupational exposure to asbestos.
1.2. Principle
Air is drawn through a MCE filter to capture airborne asbestos fibers. A wedge shaped portion of the filter is removed, placed on a glass microscope slide and made transparent. A measured area (field) is viewed by PCM. All the fibers meeting defined criteria for asbestos are counted and considered a measure of the airborne asbestos concentration.
1.3. Advantages and Disadvantages
There are four main advantages of PCM over other methods:
(1) The technique is specific for fibers. Phase contrast is a fiber counting technique which excludes non-fibrous particles from the analysis.
(2) The technique is inexpensive and does not require specialized knowledge to carry out the analysis for total fiber counts.
(3) The analysis is quick and can be performed on-site for rapid determination of air concentrations of asbestos fibers.
(4) The technique has continuity with historical epidemiological studies so that estimates of expected disease can be inferred from long-term determinations of asbestos exposures.
The main disadvantage of PCM is that it does not positively identify asbestos fibers. Other fibers which are not asbestos may be included in the count unless differential counting is performed. This requires a great deal of experience to adequately differentiate asbestos from non-asbestos fibers. Positive identification of asbestos must be performed by polarized light or electron microscopy techniques. A further disadvantage of PCM is that the smallest visible fibers are about 0.2 µm in diameter while the finest asbestos fibers may be as small as 0.02 µm in diameter. For some exposures, substantially more fibers may be present than are actually counted.
1.4. Workplace Exposure
Asbestos is used by the construction industry in such products as shingles, floor tiles, asbestos cement, roofing felts, insulation and acoustical products. Non-construction uses include brakes, clutch facings, paper, paints, plastics, and fabrics. One of the most significant exposures in the workplace is the removal and encapsulation of asbestos in schools, public buildings, and homes. Many workers have the potential to be exposed to asbestos during these operations.
About 95% of the asbestos in commercial use in the United States is chrysotile. Crocidolite and amosite make up most of the remainder. Anthophyllite and tremolite or actinolite are likely to be encountered as contaminants in various industrial products.
1.5. Physical Properties
Asbestos fiber possesses a high tensile strength along its axis, is chemically inert, non-combustible, and heat resistant. It has a high electrical resistance and good sound absorbing properties. It can be weaved into cables, fabrics or other textiles, and also matted into asbestos papers, felts, or mats.
2. Range and Detection Limit
2.1. The ideal counting range on the filter is 100 to 1,300 fibers/mm 2. With a Walton-Beckett graticule this range is equivalent to 0.8 to 10 fibers/field. Using NIOSH counting statistics, a count of 0.8 fibers/field would give an approximate coefficient of variation (CV) of 0.13.
2.2. The detection limit for this method is 4.0 fibers per 100 fields or 5.5 fibers/mm 2. This was determined using an equation to estimate the maximum CV possible at a specific concentration (95% confidence) and a Lower Control Limit of zero. The CV value was then used to determine a corresponding concentration from historical CV vs fiber relationships. As an example:
Lower Control Limit (95% Confidence) = AC—1.645(CV)(AC) Where: AC = Estimate of the airborne fiber concentration (fibers/cc) Setting the Lower Control Limit = 0 and solving for CV: 0 = AC—1.645(CV)(AC) CV = 0.61
This value was compared with CV vs. count curves. The count at which CV = 0.61 for Leidel-Busch counting statistics or for an OSHA Salt Lake Technical Center (OSHA-SLTC) CV curve (see appendix A for further information) was 4.4 fibers or 3.9 fibers per 100 fields, respectively. Although a lower detection limit of 4 fibers per 100 fields is supported by the OSHA-SLTC data, both data sets support the 4.5 fibers per 100 fields value.
3. Method Performance—Precision and Accuracy
Precision is dependent upon the total number of fibers counted and the uniformity of the fiber distribution on the filter. A general rule is to count at least 20 and not more than 100 fields. The count is discontinued when 100 fibers are counted, provided that 20 fields have already been counted. Counting more than 100 fibers results in only a small gain in precision. As the total count drops below 10 fibers, an accelerated loss of precision is noted.
At this time, there is no known method to determine the absolute accuracy of the asbestos analysis. Results of samples prepared through the Proficiency Analytical Testing (PAT) Program and analyzed by the OSHA-SLTC showed no significant bias when compared to PAT reference values. The PAT samples were analyzed from 1987 to 1989 (N = 36) and the concentration range was from 120 to 1,300 fibers/mm 2.
4. Interferences
Fibrous substances, if present, may interfere with asbestos analysis.
Some common fibers are:
fiberglass anhydrite plant fibers perlite veins gypsum some synthetic fibers membrane structures sponge spicules diatoms microorganisms wollastonite
The use of electron microscopy or optical tests such as polarized light, and dispersion staining may be used to differentiate these materials from asbestos when necessary.
5. Sampling 5.1. Equipment
5.1.1. Sample assembly (The assembly is shown in Figure 3). Conductive filter holder consisting of a 25-mm diameter, 3-piece cassette having a 50-mm long electrically conductive extension cowl. Backup pad, 25-mm, cellulose. Membrane filter, mixed-cellulose ester (MCE), 25-mm, plain, white, 0.4 to 1.2-µm pore size.
Notes:
(a) DO NOT RE-USE CASSETTES.
(b) Fully conductive cassettes are required to reduce fiber loss to the sides of the cassette due to electrostatic attraction.
(c) Purchase filters which have been selected by the manufacturer for asbestos counting or analyze representative filters for fiber background before use. Discard the filter lot if more than 4 fibers/100 fields are found.
(d) To decrease the possibility of contamination, the sampling system (filter-backup pad-cassette) for asbestos is usually preassembled by the manufacturer.
(e) Other cassettes, such as the Bell-mouth, may be used within the limits of their validation.
5.1.2. Gel bands for sealing cassettes.
5.1.3. Sampling pump.
Each pump must be a battery operated, self-contained unit small enough to be placed on the monitored employee and not interfere with the work being performed. The pump must be capable of sampling at the collection rate for the required sampling time.
5.1.4. Flexible tubing, 6-mm bore.
5.1.5. Pump calibration.
Stopwatch and bubble tube/burette or electronic meter.
5.2. Sampling Procedure
5.2.1. Seal the point where the base and cowl of each cassette meet with a gel band or tape.
5.2.2. Charge the pumps completely before beginning.
5.2.3. Connect each pump to a calibration cassette with an appropriate length of 6-mm bore plastic tubing. Do not use luer connectors—the type of cassette specified above has built-in adapters.
5.2.4. Select an appropriate flow rate for the situation being monitored. The sampling flow rate must be between 0.5 and 5.0 L/min for personal sampling and is commonly set between 1 and 2 L/min. Always choose a flow rate that will not produce overloaded filters.
5.2.5. Calibrate each sampling pump before and after sampling with a calibration cassette in-line (Note: This calibration cassette should be from the same lot of cassettes used for sampling). Use a primary standard (e.g. bubble burette) to calibrate each pump. If possible, calibrate at the sampling site.
Note:
If sampling site calibration is not possible, environmental influences may affect the flow rate. The extent is dependent on the type of pump used. Consult with the pump manufacturer to determine dependence on environmental influences. If the pump is affected by temperature and pressure changes, correct the flow rate using the formula shown in the section “Sampling Pump Flow Rate Corrections” at the end of this appendix.
5.2.6. Connect each pump to the base of each sampling cassette with flexible tubing. Remove the end cap of each cassette and take each air sample open face. Assure that each sample cassette is held open side down in the employee's breathing zone during sampling. The distance from the nose/mouth of the employee to the cassette should be about 10 cm. Secure the cassette on the collar or lapel of the employee using spring clips or other similar devices.
5.2.7. A suggested minimum air volume when sampling to determine TWA compliance is 25 L. For Excursion Limit (30 min sampling time) evaluations, a minimum air volume of 48 L is recommended.
5.2.8. The most significant problem when sampling for asbestos is overloading the filter with non-asbestos dust. Suggested maximum air sample volumes for specific environments are:
Environment | Air Vol. (L)
Asbestos removal operations (visible dust) | 100.
Asbestos removal operations (little dust) | 240.
Office environments | 400 to 2,400.
CAUTION: Do not overload the filter with dust. High levels of non-fibrous dust particles may obscure fibers on the filter and lower the count or make counting impossible. If more than about 25 to 30% of the field area is obscured with dust, the result may be biased low. Smaller air volumes may be necessary when there is excessive non-asbestos dust in the air.
While sampling, observe the filter with a small flashlight. If there is a visible layer of dust on the filter, stop sampling, remove and seal the cassette, and replace with a new sampling assembly. The total dust loading should not exceed 1 mg.
5.2.9. Blank samples are used to determine if any contamination has occurred during sample handling. Prepare two blanks for the first 1 to 20 samples. For sets containing greater than 20 samples, prepare blanks as 10% of the samples. Handle blank samples in the same manner as air samples with one exception: Do not draw any air through the blank samples. Open the blank cassette in the place where the sample cassettes are mounted on the employee. Hold it open for about 30 seconds. Close and seal the cassette appropriately. Store blanks for shipment with the sample cassettes.
5.2.10. Immediately after sampling, close and seal each cassette with the base and plastic plugs. Do not touch or puncture the filter membrane as this will invalidate the analysis.
5.2.11 Attach and secure a sample seal around each sample cassette in such a way as to assure that the end cap and base plugs cannot be removed without destroying the seal. Tape the ends of the seal together since the seal is not long enough to be wrapped end-to-end. Also wrap tape around the cassette at each joint to keep the seal secure.
5.3.1. Send the samples to the laboratory with paperwork requesting asbestos analysis. List any known fibrous interferences present during sampling on the paperwork. Also, note the workplace operation(s) sampled.
5.3.2. Secure and handle the samples in such that they will not rattle during shipment nor be exposed to static electricity. Do not ship samples in expanded polystyrene peanuts, vermiculite, paper shreds, or excelsior. Tape sample cassettes to sheet bubbles and place in a container that will cushion the samples in such a manner that they will not rattle.
5.3.3. To avoid the possibility of sample contamination, always ship bulk samples in separate mailing containers.
6. Analysis 6.1. Safety Precautions
6.1.1. Acetone is extremely flammable and precautions must be taken not to ignite it. Avoid using large containers or quantities of acetone. Transfer the solvent in a ventilated laboratory hood. Do not use acetone near any open flame. For generation of acetone vapor, use a spark free heat source.
6.1.2. Any asbestos spills should be cleaned up immediately to prevent dispersal of fibers. Prudence should be exercised to avoid contamination of laboratory facilities or exposure of personnel to asbestos. Asbestos spills should be cleaned up with wet methods and/or a High Efficiency Particulate-Air (HEPA) filtered vacuum.
CAUTION: Do not use a vacuum without a HEPA filter—It will disperse fine asbestos fibers in the air.
6.2. Equipment
6.2.1. Phase contrast microscope with binocular or trinocular head.
6.2.2. Widefield or Huygenian 10X eyepieces (NOTE: The eyepiece containing the graticule must be a focusing eyepiece. Use a 40X phase objective with a numerical aperture of 0.65 to 0.75).
6.2.3. Kohler illumination (if possible) with green or blue filter.
6.2.4. Walton-Beckett Graticule, type G-22 with 100 ±2 µm projected diameter.
6.2.5. Mechanical stage. A rotating mechanical stage is convenient for use with polarized light.
6.2.6. Phase telescope.
6.2.7. Stage micrometer with 0.01-mm subdivisions.
6.2.8. Phase-shift test slide, mark II (Available from PTR optics Ltd., and also McCrone).
6.2.9. Precleaned glass slides, 25 mm × 75 mm. One end can be frosted for convenience in writing sample numbers, etc., or paste-on labels can be used.
6.2.10. Cover glass #1 1/2.
6.2.11. Scalpel (#10, curved blade).
6.2.12. Fine tipped forceps.
6.2.13. Aluminum block for clearing filter (see appendix D and Figure 4).
6.2.14. Automatic adjustable pipette, 100- to 500-µL.
6.2.15. Micropipette, 5 µL.
6.3. Reagents
6.3.1. Acetone (HPLC grade).
6.3.2. Triacetin (glycerol triacetate).
6.3.3. Lacquer or nail polish.
6.4. Standard Preparation
A way to prepare standard asbestos samples of known concentration has not been developed. It is possible to prepare replicate samples of nearly equal concentration. This has been performed through the PAT program. These asbestos samples are distributed by the AIHA to participating laboratories.
Since only about one-fourth of a 25-mm sample membrane is required for an asbestos count, any PAT sample can serve as a “standard” for replicate counting.
6.5. Sample Mounting
Note:
See Safety Precautions in Section 6.1. before proceeding. The objective is to produce samples with a smooth (non-grainy) background in a medium with a refractive index of approximately 1.46. The technique below collapses the filter for easier focusing and produces permanent mounts which are useful for quality control and interlaboratory comparison.
An aluminum block or similar device is required for sample preparation.
6.5.1. Heat the aluminum block to about 70 °C. The hot block should not be used on any surface that can be damaged by either the heat or from exposure to acetone.
6.5.2. Ensure that the glass slides and cover glasses are free of dust and fibers.
6.5.3. Remove the top plug to prevent a vacuum when the cassette is opened. Clean the outside of the cassette if necessary. Cut the seal and/or tape on the cassette with a razor blade. Very carefully separate the base from the extension cowl, leaving the filter and backup pad in the base.
6.5.4. With a rocking motion cut a triangular wedge from the filter using the scalpel. This wedge should be one-sixth to one-fourth of the filter. Grasp the filter wedge with the forceps on the perimeter of the filter which was clamped between the cassette pieces. DO NOT TOUCH the filter with your finger. Place the filter on the glass slide sample side up. Static electricity will usually keep the filter on the slide until it is cleared.
6.5.5. Place the tip of the micropipette containing about 200 µL acetone into the aluminum block. Insert the glass slide into the receiving slot in the aluminum block. Inject the acetone into the block with slow, steady pressure on the plunger while holding the pipette firmly in place. Wait 3 to 5 seconds for the filter to clear, then remove the pipette and slide from the aluminum block.
6.5.6. Immediately (less than 30 seconds) place 2.5 to 3.5 µL of triacetin on the filter (NOTE: Waiting longer than 30 seconds will result in increased index of refraction and decreased contrast between the fibers and the preparation. This may also lead to separation of the cover slip from the slide).
6.5.7. Lower a cover slip gently onto the filter at a slight angle to reduce the possibility of forming air bubbles. If more than 30 seconds have elapsed between acetone exposure and triacetin application, glue the edges of the cover slip to the slide with lacquer or nail polish.
6.5.8. If clearing is slow, warm the slide for 15 min on a hot plate having a surface temperature of about 50 °C to hasten clearing. The top of the hot block can be used if the slide is not heated too long.
6.5.9. Counting may proceed immediately after clearing and mounting are completed.
6.6. Sample Analysis
Completely align the microscope according to the manufacturer's instructions. Then, align the microscope using the following general alignment routine at the beginning of every counting session and more often if necessary.
6.6.1. Alignment
(1) Clean all optical surfaces. Even a small amount of dirt can significantly degrade the image.
(2) Rough focus the objective on a sample.
(3) Close down the field iris so that it is visible in the field of view. Focus the image of the iris with the condenser focus. Center the image of the iris in the field of view.
(4) Install the phase telescope and focus on the phase rings. Critically center the rings. Misalignment of the rings results in astigmatism which will degrade the image.
(5) Place the phase-shift test slide on the microscope stage and focus on the lines. The analyst must see line set 3 and should see at least parts of 4 and 5 but, not see line set 6 or 6. A microscope/microscopist combination which does not pass this test may not be used.
6.6.2. Counting Fibers
(1) Place the prepared sample slide on the mechanical stage of the microscope. Position the center of the wedge under the objective lens and focus upon the sample.
(2) Start counting from one end of the wedge and progress along a radial line to the other end (count in either direction from perimeter to wedge tip). Select fields randomly, without looking into the eyepieces, by slightly advancing the slide in one direction with the mechanical stage control.
(3) Continually scan over a range of focal planes (generally the upper 10 to 15 µm of the filter surface) with the fine focus control during each field count. Spend at least 5 to 15 seconds per field.
(4) Most samples will contain asbestos fibers with fiber diameters less than 1 µm. Look carefully for faint fiber images. The small diameter fibers will be very hard to see. However, they are an important contribution to the total count.
(5) Count only fibers equal to or longer than 5 µm. Measure the length of curved fibers along the curve.
(6) Count fibers which have a length to width ratio of 3:1 or greater.
(7) Count all the fibers in at least 20 fields. Continue counting until either 100 fibers are counted or 100 fields have been viewed; whichever occurs first. Count all the fibers in the final field.
(8) Fibers lying entirely within the boundary of the Walton-Beckett graticule field shall receive a count of 1. Fibers crossing the boundary once, having one end within the circle shall receive a count of 1/2. Do not count any fiber that crosses the graticule boundary more than once. Reject and do not count any other fibers even though they may be visible outside the graticule area. If a fiber touches the circle, it is considered to cross the line.
(9) Count bundles of fibers as one fiber unless individual fibers can be clearly identified and each individual fiber is clearly not connected to another counted fiber. See Figure 1 for counting conventions.
(10) Record the number of fibers in each field in a consistent way such that filter non-uniformity can be assessed.
(11) Regularly check phase ring alignment.
(12) When an agglomerate (mass of material) covers more than 25% of the field of view, reject the field and select another. Do not include it in the number of fields counted.
(13) Perform a “blind recount” of 1 in every 10 filter wedges (slides). Re-label the slides using a person other than the original counter.
6.7. Fiber Identification
As previously mentioned in Section 1.3., PCM does not provide positive confirmation of asbestos fibers. Alternate differential counting techniques should be used if discrimination is desirable. Differential counting may include primary discrimination based on morphology, polarized light analysis of fibers, or modification of PCM data by Scanning Electron or Transmission Electron Microscopy.
A great deal of experience is required to routinely and correctly perform differential counting. It is discouraged unless it is legally necessary. Then, only if a fiber is obviously not asbestos should it be excluded from the count. Further discussion of this technique can be found in reference 8.10.
If there is a question whether a fiber is asbestos or not, follow the rule:
“WHEN IN DOUBT, COUNT.”
6.8. Analytical Recommendations—Quality Control System
6.8.1. All individuals performing asbestos analysis must have taken the NIOSH course for sampling and evaluating airborne asbestos or an equivalent course.
6.8.2. Each laboratory engaged in asbestos counting shall set up a slide trading arrangement with at least two other laboratories in order to compare performance and eliminate inbreeding of error. The slide exchange occurs at least semiannually. The round robin results shall be posted where all analysts can view individual analyst's results.
6.8.3. Each laboratory engaged in asbestos counting shall participate in the Proficiency Analytical Testing Program, the Asbestos Analyst Registry or equivalent.
6.8.4. Each analyst shall select and count prepared slides from a “slide bank”. These are quality assurance counts. The slide bank shall be prepared using uniformly distributed samples taken from the workload. Fiber densities should cover the entire range routinely analyzed by the laboratory. These slides are counted blind by all counters to establish an original standard deviation. This historical distribution is compared with the quality assurance counts. A counter must have 95% of all quality control samples counted within three standard deviations of the historical mean. This count is then integrated into a new historical mean and standard deviation for the slide.
The analyses done by the counters to establish the slide bank may be used for an interim quality control program if the data are treated in a proper statistical fashion.
7. Calculations
7.1. Calculate the estimated airborne asbestos fiber concentration on the filter sample using the following formula:
where: AC = Airborne fiber concentration FB = Total number of fibers greater than 5 µm counted FL = Total number of fields counted on the filter BFB = Total number of fibers greater than 5 µm counted in the blank BFL = Total number of fields counted on the blank ECA = Effective collecting area of filter (385 mm 2 nominal for a 25-mm filter.) FR = Pump flow rate (L/min) MFA = Microscope count field area (mm 2). This is 0.00785 mm 2 for a Walton-Beckett Graticule. T = Sample collection time (min) 1,000 = Conversion of L to cc
Note:
The collection area of a filter is seldom equal to 385 mm 2. It is appropriate for laboratories to routinely monitor the exact diameter using an inside micrometer. The collection area is calculated according to the formula:
Area = †(d/2) 2
7.2. Short-Cut Calculation
Since a given analyst always has the same interpupillary distance, the number of fields per filter for a particular analyst will remain constant for a given size filter. The field size for that analyst is constant (i.e. the analyst is using an assigned microscope and is not changing the reticle).
For example, if the exposed area of the filter is always 385 mm 2 and the size of the field is always 0.00785 mm 2 the number of fields per filter will always be 49,000. In addition it is necessary to convert liters of air to cc. These three constants can then be combined such that ECA/(1,000 × MFA) = 49. The previous equation simplifies to:
7.3. Recount Calculations
As mentioned in step 13 of Section 6.6.2., a “blind recount” of 10% of the slides is performed. In all cases, differences will be observed between the first and second counts of the same filter wedge. Most of these differences will be due to chance alone, that is, due to the random variability (precision) of the count method. Statistical recount criteria enables one to decide whether observed differences can be explained due to chance alone or are probably due to systematic differences between analysts, microscopes, or other biasing factors.
The following recount criterion is for a pair of counts that estimate AC in fibers/cc. The criterion is given at the type-I error level. That is, there is 5% maximum risk that we will reject a pair of counts for the reason that one might be biased, when the large observed difference is really due to chance.
Reject a pair of counts if:
Where: AC1 = lower estimated airborne fiber concentration AC2 = higher estimated airborne fiber concentration ACavg = average of the two concentration estimates CVFB = CV for the average of the two concentration estimates
If a pair of counts are rejected by this criterion then, recount the rest of the filters in the submitted set. Apply the test and reject any other pairs failing the test. Rejection shall include a memo to the industrial hygienist stating that the sample failed a statistical test for homogeneity and the true air concentration may be significantly different than the reported value.
7.4. Reporting Results
Report results to the industrial hygienist as fibers/cc. Use two significant figures. If multiple analyses are performed on a sample, an average of the results is to be reported unless any of the results can be rejected for cause.
8. References
8.1. Dreesen, W.C., et al., U.S. Public Health Service: A Study of Asbestosis in the Asbestos Textile Industry (Public Health Bulletin No. 241), U.S. Treasury Dept., Washington, DC, 1938.
8.2. Asbestos Research Council: The Measurement of Airborne Asbestos Dust by the Membrane Filter Method (Technical Note), Asbestos Research Council, Rockdale, Lancashire, Great Britain, 1969.
8.3. Bayer, S.G., Zumwalde, R.D., Brown, T.A., Equipment and Procedure for Mounting Millipore Filters and Counting Asbestos Fibers by Phase Contrast Microscopy, Bureau of Occupational Health, U.S. Dept. of Health, Education and Welfare, Cincinnati, OH, 1969.
8.4. NIOSH Manual of Analytical Methods, 2nd ed., Vol. 1 (DHEW/NIOSH Pub. No. 77-157-A). National Institute for Occupational Safety and Health, Cincinnati, OH, 1977. pp. 239-1—239-21.
8.5. Asbestos, Code of Federal Regulations 29 CFR 1910.1001. 1971.
8.6. Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actinolite. Final Rule, Federal Register 51:119 (20 June 1986). pp. 22612-22790.
8.7. Asbestos, Tremolite, Anthophyllite, and Actinolite, Code of Federal Regulations 1910.1001. 1988. pp. 711-752.
8.8. Criteria for a Recommended Standard—Occupational Exposure to Asbestos (DHEW/NIOSH Pub. No. HSM 72-10267), National Institute for Occupational Safety and Health, NIOSH, Cincinnati, OH, 1972. pp. III-1—III-24.
8.9. Leidel, N.A., Bayer, S.G., Zumwalde, R.D., Busch, K.A., USPHS/NIOSH Membrane Filter Method for Evaluating Airborne Asbestos Fibers (DHEW/NIOSH Pub. No. 79-127). National Institute for Occupational Safety and Health, Cincinnati, OH, 1979.
8.10. Dixon, W.C., Applications of Optical Microscopy in Analysis of Asbestos and Quartz, Analytical Techniques in Occupational Health Chemistry, edited by D.D. Dollberg and A.W. Verstuyft. Wash. DC: American Chemical Society, (ACS Symposium Series 120) 1980. pp. 13-41.
Quality Control
The OSHA asbestos regulations require each laboratory to establish a quality control program. The following is presented as an example of how the OSHA-SLTC constructed its internal CV curve as part of meeting this requirement. Data is from 395 samples collected during OSHA compliance inspections and analyzed from October 1980 through April 1986.
Each sample was counted by 2 to 5 different counters independently of one another. The standard deviation and the CV statistic was calculated for each sample. This data was then plotted on a graph of CV vs. fibers/mm 2. A least squares regression was performed using the following equation:
CV = antilog10[A(log10(x)) 2 + B(log10(x)) + C] where: x = the number of fibers/mm 2
Application of least squares gave:
A = 0.182205 B = 0.973343 C = 0.327499
Using these values, the equation becomes:
CV = antilog10[0.182205(log10(x)) 2 −0.973343(log10(x)) + 0.327499] Sampling Pump Flow Rate Corrections
This correction is used if a difference greater than 5% in ambient temperature and/or pressure is noted between calibration and sampling sites and the pump does not compensate for the differences.
Where: Qact = actual flow rate Qcal = calibrated flow rate (if a rotameter was used, the rotameter value) Pcal = uncorrected air pressure at calibration Pact = uncorrected air pressure at sampling site Tact = temperature at sampling site (K) Tcal = temperature at calibration (K) Walton-Beckett Graticule
When ordering the Graticule for asbestos counting, specify the exact disc diameter needed to fit the ocular of the microscope and the diameter (mm) of the circular counting area. Instructions for measuring the dimensions necessary are listed:
(1) Insert any available graticule into the focusing eyepiece and focus so that the graticule lines are sharp and clear.
(2) Align the microscope.
(3) Place a stage micrometer on the microscope object stage and focus the microscope on the graduated lines.
(4) Measure the magnified grid length, PL (µm), using the stage micrometer.
(5) Remove the graticule from the microscope and measure its actual grid length, AL (mm). This can be accomplished by using a mechanical stage fitted with verniers, or a jeweler's loupe with a direct reading scale.
(6) Let D = 100 µm. Calculate the circle diameter, dc (mm), for the Walton-Beckett graticule and specify the diameter when making a purchase:
Example:If PL = 108 µm, AL = 2.93 mm and D = 100 µm, then,
(7) Each eyepiece-objective-reticle combination on the microscope must be calibrated. Should any of the three be changed (by zoom adjustment, disassembly, replacement, etc.), the combination must be recalibrated. Calibration may change if interpupillary distance is changed.
Measure the field diameter, D (acceptable range: 100 ±2 µm) with a stage micrometer upon receipt of the graticule from the manufacturer. Determine the field area (mm 2).
Field Area = †(D/2) 2 If D = 100 µm = 0.1 mm, then Field Area = †(0.1 mm/2) 2 = 0.00785 mm 2
The Graticule is available from: Graticules Ltd., Morley Road, Tonbridge TN9 IRN, Kent, England (Telephone 011-44-732-359061). Also available from PTR Optics Ltd., 145 Newton Street, Waltham, MA 02154 [telephone (617) 891-6000] or McCrone Accessories and Components, 2506 S. Michigan Ave., Chicago, IL 60616 [phone (312)-842-7100]. The graticule is custom made for each microscope.
Counts for the Fibers in the Figure
Structure No. | Count | Explanation
1 to 6 | 1 | Single fibers all contained within the Circle.
7 | 1/2 | Fiber crosses circle once.
8 | 0 | Fiber too short.
9 | 2 | Two crossing fibers.
10 | 0 | Fiber outside graticule.
11 | 0 | Fiber crosses graticule twice.
12 | 1/2 | Although split, fiber only crosses once.
Appendix C to § 1926.1101 [Reserved]
Appendix E to § 1926.1101—Classification of Chest X-Rays—Mandatory
(a) Chest X-rays shall be classified in accordance with the Guidelines for the use of the ILO International Classification of Radiographs of Pneumoconioses (revised edition 2011) (incorporated by reference, see § 1926.6), and recorded on a classification form following the format of the CDC/NIOSH (M) 2.8 form. As a minimum, the content within the bold lines of this form (items 1 through 4) shall be included. This form is not to be submitted to NIOSH.
(b) All X-rays shall be classified only by a B-Reader, a board eligible/certified radiologist, or an experienced physician with known expertise in pneumoconioses.
(c) Whenever classifying chest X-ray film, the physician shall have immediately available for reference a complete set of the ILO standard format radiographs provided for use with the Guidelines for the use of the ILO International Classification of Radiographs of Pneumoconioses (revised edition 2011).
(d) Whenever classifying digitally-acquired chest X-rays, the physician shall have immediately available for reference a complete set of ILO standard digital chest radiographic images provided for use with the Guidelines for the Use of the ILO International Classification of Radiographs of Pneumoconioses (revised edition 2011). Classification of digitally-acquired chest X-rays shall be based on the viewing of images displayed as electronic copies and shall not be based on the viewing of hard copy printed transparencies of images.
Appendix F to § 1926.1101—Work Practices and Engineering Controls for Class I Asbestos Operations (Non-Mandatory)
This is a non-mandatory appendix to the asbestos standards for construction and for shipyards. It describes criteria and procedures for erecting and using negative pressure enclosures for Class I Asbestos Work, when NPEs are used as an allowable control method to comply with paragraph (g)(5)(i) of this section. Many small and variable details are involved in the erection of a negative pressure enclosure. OSHA and most participants in the rulemaking agreed that only the major, more performance oriented criteria should be made mandatory. These criteria are set out in paragraph (g) of this section. In addition, this appendix includes these mandatory specifications and procedures in its guidelines in order to make this appendix coherent and helpful. The mandatory nature of the criteria which appear in the regulatory text is not changed because they are included in this “non-mandatory” appendix. Similarly, the additional criteria and procedures included as guidelines in the appendix, do not become mandatory because mandatory criteria are also included in these comprehensive guidelines.
In addition, none of the criteria, both mandatory and recommended, are meant to specify or imply the need for use of patented or licensed methods or equipment. Recommended specifications included in this attachment should not discourage the use of creative alternatives which can be shown to reliably achieve the objectives of negative-pressure enclosures.
Requirements included in this appendix, cover general provisions to be followed in all asbestos jobs, provisions which must be followed for all Class I asbestos jobs, and provisions governing the construction and testing of negative pressure enclosures. The first category includes the requirement for use of wet methods, HEPA vacuums, and immediate bagging of waste; Class I work must conform to the following provisions:
• oversight by competent person
• use of critical barriers over all openings to work area
• isolation of HVAC systems
• use of impermeable dropcloths and coverage of all objects within regulated areas
In addition, more specific requirements for NPEs include:
• maintenance of −0.02 inches water gauge within enclosure
• manometric measurements
• air movement away from employees performing removal work
• smoke testing or equivalent for detection of leaks and air direction
• deactivation of electrical circuits, if not provided with ground-fault circuit interrupters.
Planning the Project
The standard requires that an exposure assessment be conducted before the asbestos job is begun [§ 1926.1101 (f)(1)]. Information needed for that assessment, includes data relating to prior similar jobs, as applied to the specific variables of the current job. The information needed to conduct the assessment will be useful in planning the project, and in complying with any reporting requirements under this standard, when significant changes are being made to a control system listed in the standard, [see also those of USEPA (40 CFR 61, subpart M). Thus, although the standard does not explicitly require the preparation of a written asbestos removal plan, the usual constituents of such a plan, i.e., a description of the enclosure, the equipment, and the procedures to be used throughout the project, must be determined before the enclosure can be erected. The following information should be included in the planning of the system:
A physical description of the work area; A description of the approximate amount of material to be removed; A schedule for turning off and sealing existing ventilation systems; Personnel hygiene procedures; A description of personal protective equipment and clothing to be worn by employees; A description of the local exhaust ventilation systems to be used and how they are to be tested; A description of work practices to be observed by employees; An air monitoring plan; A description of the method to be used to transport waste material; and The location of the dump site. Materials and Equipment Necessary for Asbestos Removal
Although individual asbestos removal projects vary in terms of the equipment required to accomplish the removal of the materials, some equipment and materials are common to most asbestos removal operations.
Plastic sheeting used to protect horizontal surfaces, seal HVAC openings or to seal vertical openings and ceilings should have a minimum thickness of 6 mils. Tape or other adhesive used to attach plastic sheeting should be of sufficient adhesive strength to support the weight of the material plus all stresses encountered during the entire duration of the project without becoming detached from the surface.
Other equipment and materials which should be available at the beginning of each project are:
—HEPA Filtered Vacuum is essential for cleaning the work area after the asbestos has been removed. It should have a long hose capable of reaching out-of-the-way places, such as areas above ceiling tiles, behind pipes, etc. —Portable air ventilation systems installed to provide the negative air pressure and air removal from the enclosure must be equipped with a HEPA filter. The number and capacity of units required to ventilate an enclosure depend on the size of the area to be ventilated. The filters for these systems should be designed in such a manner that they can be replaced when the air flow volume is reduced by the build-up of dust in the filtration material. Pressure monitoring devices with alarms and strip chart recorders attached to each system to indicate the pressure differential and the loss due to dust buildup on the filter are recommended. —Water sprayers should be used to keep the asbestos material as saturated as possible during removal; the sprayers will provide a fine mist that minimizes the impact of the spray on the material. —Water used to saturate the asbestos containing material can be amended by adding at least 15 milliliters ( 1/4 ounce) of wetting agent in 1 liter (1 pint) of water. An example of a wetting agent is a 50/50 mixture of polyoxyethylene ether and polyoxyethylene polyglycol ester. —Backup power supplies are recommended, especially for ventilation systems. —Shower and bath water should be with mixed hot and cold water faucets. Water that has been used to clean personnel or equipment should either be filtered or be collected and discarded as asbestos waste. Soap and shampoo should be provided to aid in removing dust from the workers' skin and hair. —See paragraphs (h) and (i) of this section for appropriate respiratory protection and protective clothing. —See paragraph (k) of this section for required signs and labels. Preparing the Work Area
Disabling HVAC Systems: The power to the heating, ventilation, and air conditioning systems that service the restricted area must be deactivated and locked off. All ducts, grills, access ports, windows and vents must be sealed off with two layers of plastic to prevent entrainment of contaminated air.
Operating HVAC Systems in the Restricted Area: If components of a HVAC system located in the restricted area are connected to a system that will service another zone during the project, the portion of the duct in the restricted area must be sealed and pressurized. Necessary precautions include caulking the duct joints, covering all cracks and openings with two layers of sheeting, and pressurizing the duct throughout the duration of the project by restricting the return air flow. The power to the fan supplying the positive pressure should be locked “on” to prevent pressure loss.
Sealing Elevators: If an elevator shaft is located in the restricted area, it should be either shut down or isolated by sealing with two layers of plastic sheeting. The sheeting should provide enough slack to accommodate the pressure changes in the shaft without breaking the air-tight seal.
Removing Mobile Objects: All movable objects should be cleaned and removed from the work area before an enclosure is constructed unless moving the objects creates a hazard. Mobile objects will be assumed to be contaminated and should be either cleaned with amended water and a HEPA vacuum and then removed from the area or wrapped and then disposed of as hazardous waste.
Cleaning and Sealing Surfaces: After cleaning with water and a HEPA vacuum, surfaces of stationary objects should be covered with two layers of plastic sheeting. The sheeting should be secured with duct tape or an equivalent method to provide a tight seal around the object.
Bagging Waste: In addition to the requirement for immediate bagging of waste for disposal, it is further recommended that the waste material be double-bagged and sealed in plastic bags designed for asbestos disposal. The bags should be stored in a waste storage area that can be controlled by the workers conducting the removal. Filters removed from air handling units and rubbish removed from the area are to be bagged and handled as hazardous waste.
Constructing the Enclosure
The enclosure should be constructed to provide an air-tight seal around ducts and openings into existing ventilation systems and around penetrations for electrical conduits, telephone wires, water lines, drain pipes, etc. Enclosures should be both airtight and watertight except for those openings designed to provide entry and/or air flow control.
Size: An enclosure should be the minimum volume to encompass all of the working surfaces yet allow unencumbered movement by the worker(s), provide unrestricted air flow past the worker(s), and ensure walking surfaces can be kept free of tripping hazards.
Shape: The enclosure may be any shape that optimizes the flow of ventilation air past the worker(s).
Structural Integrity: The walls, ceilings and floors must be supported in such a manner that portions of the enclosure will not fall down during normal use.
Openings: It is not necessary that the structure be airtight; openings may be designed to direct air flow. Such openings should be located at a distance from active removal operations. They should be designed to draw air into the enclosure under all anticipated circumstances. In the event that negative pressure is lost, they should be fitted with either HEPA filters to trap dust or automatic trap doors that prevent dust from escaping the enclosure. Openings for exits should be controlled by an airlock or a vestibule.
Barrier Supports: Frames should be constructed to support all unsupported spans of sheeting.
Sheeting: Walls, barriers, ceilings, and floors should be lined with two layers of plastic sheeting having a thickness of at least 6 mil.
Seams: Seams in the sheeting material should be minimized to reduce the possibilities of accidental rips and tears in the adhesive or connections. All seams in the sheeting should overlap, be staggered and not be located at corners or wall-to-floor joints. Areas Within an Enclosure: Each enclosure consists of a work area, a decontamination area, and waste storage area. The work area where the asbestos removal operations occur should be separated from both the waste storage area and the contamination control area by physical curtains, doors, and/or airflow patterns that force any airborne contamination back into the work area.
See paragraph (j) of this section for requirements for hygiene facilities.
During egress from the work area, each worker should step into the equipment room, clean tools and equipment, and remove gross contamination from clothing by wet cleaning and HEPA vacuuming. Before entering the shower area, foot coverings, head coverings, hand coverings, and coveralls are removed and placed in impervious bags for disposal or cleaning. Airline connections from airline respirators with HEPA disconnects and power cables from powered air-purifying respirators (PAPRs) will be disconnected just prior to entering the shower room.
Establishing Negative Pressure Within the Enclosure
Negative Pressure: Air is to be drawn into the enclosure under all anticipated conditions and exhausted through a HEPA filter for 24 hours a day during the entire duration of the project.
Air Flow Tests: Air flow patterns will be checked before removal operations begin, at least once per operating shift and any time there is a question regarding the integrity of the enclosure. The primary test for air flow is to trace air currents with smoke tubes or other visual methods. Flow checks are made at each opening and at each doorway to demonstrate that air is being drawn into the enclosure and at each worker's position to show that air is being drawn away from the breathing zone.
Monitoring Pressure Within the Enclosure: After the initial air flow patterns have been checked, the static pressure must be monitored within the enclosure. Monitoring may be made using manometers, pressure gauges, or combinations of these devices. It is recommended that they be attached to alarms and strip chart recorders at points identified by the design engineer.
Corrective Actions: If the manometers or pressure gauges demonstrate a reduction in pressure differential below the required level, work should cease and the reason for the change investigated and appropriate changes made. The air flow patterns should be retested before work begins again.
Pressure Differential: The design parameters for static pressure differentials between the inside and outside of enclosures typically range from 0.02 to 0.10 inches of water gauge, depending on conditions. All zones inside the enclosure must have less pressure than the ambient pressure outside of the enclosure (−0.02 inches water gauge differential). Design specifications for the differential vary according to the size, configuration, and shape of the enclosure as well as ambient and mechanical air pressure conditions around the enclosure.
Air Flow Patterns: The flow of air past each worker shall be enhanced by positioning the intakes and exhaust ports to remove contaminated air from the worker's breathing zone, by positioning HEPA vacuum cleaners to draw air from the worker's breathing zone, by forcing relatively uncontaminated air past the worker toward an exhaust port, or by using a combination of methods to reduce the worker's exposure.
Air Handling Unit Exhaust: The exhaust plume from air handling units should be located away from adjacent personnel and intakes for HVAC systems.
Air Flow Volume: The air flow volume (cubic meters per minute) exhausted (removed) from the workplace must exceed the amount of makeup air supplied to the enclosure. The rate of air exhausted from the enclosure should be designed to maintain a negative pressure in the enclosure and air movement past each worker. The volume of air flow removed from the enclosure should replace the volume of the container at every 5 to 15 minutes. Air flow volume will need to be relatively high for large enclosures, enclosures with awkward shapes, enclosures with multiple openings, and operations employing several workers in the enclosure.
Air Flow Velocity: At each opening, the air flow velocity must visibly “drag” air into the enclosure. The velocity of air flow within the enclosure must be adequate to remove airborne contamination from each worker's breathing zone without disturbing the asbestos-containing material on surfaces.
Airlocks: Airlocks are mechanisms on doors and curtains that control the air flow patterns in the doorways. If air flow occurs, the patterns through doorways must be such that the air flows toward the inside of the enclosure. Sometimes vestibules, double doors, or double curtains are used to prevent air movement through the doorways. To use a vestibule, a worker enters a chamber by opening the door or curtain and then closing the entry before opening the exit door or curtain.
Airlocks should be located between the equipment room and shower room, between the shower room and the clean room, and between the waste storage area and the outside of the enclosure. The air flow between adjacent rooms must be checked using smoke tubes or other visual tests to ensure the flow patterns draw air toward the work area without producing eddies.
Monitoring for Airborne Concentrations
In addition to the breathing zone samples taken as outlined in paragraph (f) of this section, samples of air should be taken to demonstrate the integrity of the enclosure, the cleanliness of the clean room and shower area, and the effectiveness of the HEPA filter. If the clean room is shown to be contaminated, the room must be relocated to an uncontaminated area.
Samples taken near the exhaust of portable ventilation systems must be done with care.
General Work Practices
Preventing dust dispersion is the primary means of controlling the spread of asbestos within the enclosure. Whenever practical, the point of removal should be isolated, enclosed, covered, or shielded from the workers in the area. Waste asbestos containing materials must be bagged during or immediately after removal; the material must remain saturated until the waste container is sealed.
Waste material with sharp points or corners must be placed in hard air-tight containers rather than bags.
Whenever possible, large components should be sealed in plastic sheeting and removed intact.
Bags or containers of waste will be moved to the waste holding area, washed, and wrapped in a bag with the appropriate labels.
Cleaning the Work Area
Surfaces within the work area should be kept free of visible dust and debris to the extent feasible. Whenever visible dust appears on surfaces, the surfaces within the enclosure must be cleaned by wiping with a wet sponge, brush, or cloth and then vacuumed with a HEPA vacuum.
All surfaces within the enclosure should be cleaned before the exhaust ventilation system is deactivated and the enclosure is disassembled. An approved encapsulant may be sprayed onto areas after the visible dust has been removed.
Appendix G to § 1926.1101 [Reserved]
Appendix H to § 1926.1101—Substance Technical Information for Asbestos. Non-Mandatory I. Substance Identification
A. Substance: “Asbestos” is the name of a class of magnesium-silicate minerals that occur in fibrous form. Minerals that are included in this group are chrysotile, crocidolite, amosite, anthophyllite asbestos, tremolite asbestos, and actinolite asbestos.
B. Asbestos is and was used in the manufacture of heat-resistant clothing, automotive brake and clutch linings, and a variety of building materials including floor tiles, roofing felts, ceiling tiles, asbestos-cement pipe and sheet, and fire-resistant drywall. Asbestos is also present in pipe and boiler insulation materials and in sprayed-on materials located on beams, in crawlspaces, and between walls.
C. The potential for an asbestos-containing product to release breathable fibers depends largely on its degree of friability. Friable means that the material can be crumbled with hand pressure and is therefore likely to emit fibers. The fibrous fluffy sprayed-on materials used for fireproofing, insulation, or sound proofing are considered to be friable, and they readily release airborne fibers if disturbed. Materials such as vinyl-asbestos floor tile or roofing felt are considered non-friable if intact and generally do not emit airborne fibers unless subjected to sanding, sawing and other aggressive operations. Asbestos-cement pipe or sheet can emit airborne fibers if the materials are cut or sawed, or if they are broken.
D. Permissible exposure: Exposure to airborne asbestos fibers may not exceed 0.1 fibers per cubic centimeter of air (0.1 f/cc) averaged over the 8-hour workday, and 1 fiber per cubic centimeter of air (1.0 f/cc) averaged over a 30 minute work period.
II. Health Hazard Data
A. Asbestos can cause disabling respiratory disease and various types of cancers if the fibers are inhaled. Inhaling or ingesting fibers from contaminated clothing or skin can also result in these diseases. The symptoms of these diseases generally do not appear for 20 or more years after initial exposure.
B. Exposure to asbestos has been shown to cause lung cancer, mesothelioma, and cancer of the stomach and colon. Mesothelioma is a rare cancer of the thin membrane lining of the chest and abdomen. Symptoms of mesothelioma include shortness of breath, pain in the walls of the chest, and/or abdominal pain.
III. Respirators and Protective Clothing
A. Respirators: You are required to wear a respirator when performing tasks that result in asbestos exposure that exceeds the permissible exposure limit (PEL) of 0.1 f/cc and when performing certain designated operations. Air-purifying respirators equipped with a high-efficiency particulate air (HEPA) filter can be used where airborne asbestos fiber concentrations do not exceed 1.0 f/cc; otherwise, more protective respirators such as air-supplied, positive-pressure, full facepiece respirators must be used. Disposable respirators or dust masks are not permitted to be used for asbestos work. For effective protection, respirators must fit your face and head snugly. Your employer is required to conduct a fit test when you are first assigned a respirator and every 6 months thereafter. Respirators should not be loosened or removed in work situations where their use is required.
B. Protective Clothing: You are required to wear protective clothing in work areas where asbestos fiber concentrations exceed the permissible exposure limit (PEL) of 0.1 f/cc.
IV. Disposal Procedures and Clean-up
A. Wastes that are generated by processes where asbestos is present include:
1. Empty asbestos shipping containers.
2. Process wastes such as cuttings, trimmings, or reject materials.
3. Housekeeping waste from wet-sweeping or HEPA-vacuuming.
4. Asbestos fireproofing or insulating material that is removed from buildings.
5. Asbestos-containing building products removed during building renovation or demolition.
6. Contaminated disposable protective clothing.
B. Empty shipping bags can be flattened under exhaust hoods and packed into airtight containers for disposal. Empty shipping drums are difficult to clean and should be sealed.
C. Vacuum bags or disposable paper filters should not be cleaned, but should be sprayed with a fine water mist and placed into a labeled waste container.
D. Process waste and housekeeping waste should be wetted with water or a mixture of water and surfactant prior to packaging in disposable containers.
E. Asbestos-containing material that is removed from buildings must be disposed of in leak-tight 6-mil plastic bags, plastic-lined cardboard containers, or plastic-lined metal containers. These wastes, which are removed while wet, should be sealed in containers before they dry out to minimize the release of asbestos fibers during handling.
V. Access to Information
A. Each year, your employer is required to inform you of the information contained in this standard and appendices for asbestos. In addition, your employer must instruct you in the proper work practices for handling asbestos-containing materials, and the correct use of protective equipment.
B. Your employer is required to determine whether you are being exposed to asbestos. Your employer must treat exposure to thermal system insulation and sprayed-on and troweled-on surfacing material as asbestos exposure, unless results of laboratory analysis show that the material does not contain asbestos. You or your representative has the right to observe employee measurements and to record the results obtained. Your employer is required to inform you of your exposure, and, if you are exposed above the permissible exposure limit, he or she is required to inform you of the actions that are being taken to reduce your exposure to within the permissible limit.
C. Your employer is required to keep records of your exposures and medical examinations. These exposure records must be kept for at least thirty (30) years. Medical records must be kept for the period of your employment plus thirty (30) years.
D. Your employer is required to release your exposure and medical records to your physician or designated representative upon your written request.
Appendix I to § 1926.1101—Medical Surveillance Guidelines for Asbestos, Non-Mandatory I. Route of Entry
Inhalation, ingestion.
II. Toxicology
Clinical evidence of the adverse effects associated with exposure to asbestos is present in the form of several well-conducted epidemiological studies of occupationally exposed workers, family contacts of workers, and persons living near asbestos mines. These studies have shown a definite association between exposure to asbestos and an increased incidence of lung cancer, pleural and peritoneal mesothelioma, gastrointestinal cancer, and asbestosis. The latter is a disabling fibrotic lung disease that is caused only by exposure to asbestos. Exposure to asbestos has also been associated with an increased incidence of esophageal, kidney, laryngeal, pharyngeal, and buccal cavity cancers. As with other known chronic occupational diseases, disease associated with asbestos generally appears about 20 years following the first occurrence of exposure: There are no known acute effects associated with exposure to asbestos.
Epidemiological studies indicate that the risk of lung cancer among exposed workers who smoke cigarettes is greatly increased over the risk of lung cancer among non-exposed smokers or exposed nonsmokers. These studies suggest that cessation of smoking will reduce the risk of lung cancer for a person exposed to asbestos but will not reduce it to the same level of risk as that existing for an exposed worker who has never smoked.
III. Signs and Symptoms of Exposure-Related Disease
The signs and symptoms of lung cancer or gastrointestinal cancer induced by exposure to asbestos are not unique, except that a chest X-ray of an exposed patient with lung cancer may show pleural plaques, pleural calcification, or pleural fibrosis, and may also show asbestosis (i.e., small irregular parenchymal opacities). Symptoms characteristic of mesothelioma include shortness of breath, pain in the chest or abdominal pain. Mesothelioma has a much longer average latency period compared with lung cancer (40 years versus 15-20 years), and mesothelioma is therefore more likely to be found among workers who were first exposed to asbestos at an early age. Mesothelioma is a fatal disease.
Asbestosis is pulmonary fibrosis caused by the accumulation of asbestos fibers in the lungs. Symptoms include shortness of breath, coughing, fatigue, and vague feelings of sickness. When the fibrosis worsens, shortness of breath occurs even at rest. The diagnosis of asbestosis is most commonly based on a history of exposure to asbestos, the presence of characteristic radiologic abnormalities, end-inspiratory crackles (rales), and other clinical features of fibrosing lung disease. Pleural plaques and thickening may be observed on chest X-rays. Asbestosis is often a progressive disease even in the absence of continued exposure, although this appears to be a highly individualized characteristic. In severe cases, death may be caused by respiratory or cardiac failure.
IV. Surveillance and Preventive Considerations
As noted above, exposure to asbestos has been linked to an increased risk of lung cancer, mesothelioma, gastrointestinal cancer, and asbestosis among occupationally exposed workers. Adequate screening tests to determine an employee's potential for developing serious chronic diseases, such as a cancer, from exposure to asbestos do not presently exist. However, some tests, particularly chest X-rays and pulmonary function tests, may indicate that an employee has been overexposed to asbestos increasing his or her risk of developing exposure related chronic diseases. It is important for the physician to become familiar with the operating conditions in which occupational exposure to asbestos is likely to occur. This is particularly important in evaluating medical and work histories and in conducting physical examinations. When an active employee has been identified as having been overexposed to asbestos measures taken by the employer to eliminate or mitigate further exposure should also lower the risk of serious long-term consequences.
The employer is required to institute a medical surveillance program for all employees who are or will be exposed to asbestos at or above the permissible exposure limit (0.1 fiber per cubic centimeter of air). All examinations and procedures must be performed by or under the supervision of a licensed physician, at a reasonable time and place, and at no cost to the employee.
Although broad latitude is given to the physician in prescribing specific tests to be included in the medical surveillance program, OSHA requires inclusion of the following elements in the routine examination:
(i) Medical and work histories with special emphasis directed to symptoms of the respiratory system, cardiovascular system, and digestive tract.
(ii) Completion of the respiratory disease questionnaire contained in appendix D.
(iii) A physical examination including a chest X-ray and pulmonary function test that includes measurement of the employee's forced vital capacity (FVC) and forced expiratory volume at one second (FEV1).
(iv) Any laboratory or other test that the examining physician deems by sound medical practice to be necessary.
The employer is required to make the prescribed tests available at least annually to those employees covered; more often than specified if recommended by the examining physician; and upon termination of employment.
The employer is required to provide the physician with the following information: A copy of this standard and appendices; a description of the employee's duties as they relate to asbestos exposure; the employee's representative level of exposure to asbestos; a description of any personal protective and respiratory equipment used; and information from previous medical examinations of the affected employee that is not otherwise available to the physician. Making this information available to the physician will aid in the evaluation of the employee's health in relation to assigned duties and fitness to wear personal protective equipment, if required.
The employer is required to obtain a written opinion from the examining physician containing the results of the medical examination; the physician's opinion as to whether the employee has any detected medical conditions that would place the employee at an increased risk of exposure-related disease; any recommended limitations on the employee or on the use of personal protective equipment; and a statement that the employee has been informed by the physician of the results of the medical examination and of any medical conditions related to asbestos exposure that require further explanation or treatment. This written opinion must not reveal specific findings or diagnoses unrelated to exposure to asbestos, and a copy of the opinion must be provided to the affected employee.
Appendix J to § 1926.1101—Smoking Cessation Program Information for Asbestos—Non-Mandatory
The following organizations provide smoking cessation information.
1. The National Cancer Institute operates a toll-free Cancer Information Service (CIS) with trained personnel to help you. Call 1-800-4-CANCER * to reach the CIS office serving your area, or write: Office of Cancer Communications, National Cancer Institute, National Institutes of Health, Building 31 Room 10A24, Bethesda, Maryland 20892.
2. American Cancer Society, 3340 Peachtree Road, N.E., Atlanta, Georgia 30026, (404) 320-3333
The American Cancer Society (ACS) is a voluntary organization composed of 58 divisions and 3,100 local units. Through “The Great American Smokeout” in November, the annual Cancer Crusade in April, and numerous educational materials, ACS helps people learn about the health hazards of smoking and become successful ex-smokers.
3. American Heart Association, 7320 Greenville Avenue, Dallas, Texas 75231, (214) 750-5300
The American Heart Association (AHA) is a voluntary organization with 130,000 members (physicians, scientists, and laypersons) in 55 state and regional groups. AHA produces a variety of publications and audiovisual materials about the effects of smoking on the heart. AHA also has developed a guidebook for incorporating a weight-control component into smoking cessation programs.
4. American Lung Association, 1740 Broadway, New York, New York 10019, (212) 245-8000
A voluntary organization of 7,500 members (physicians, nurses, and laypersons), the American Lung Association (ALA) conducts numerous public information programs about the health effects of smoking. ALA has 59 state and 85 local units. The organization actively supports legislation and information campaigns for non-smokers' rights and provides help for smokers who want to quit, for example, through “Freedom From Smoking,” a self-help smoking cessation program.
5. Office on Smoking and Health, U.S. Department of Health and Human Services, 5600 Fishers Lane, Park Building, Room 110, Rockville, Maryland 20857
The Office on Smoking and Health (OSH) is the Department of Health and Human Services' lead agency in smoking control. OSH has sponsored distribution of publications on smoking-related topics, such as free flyers on relapse after initial quitting, helping a friend or family member quit smoking, the health hazards of smoking, and the effects of parental smoking on teenagers.
* In Hawaii, on Oahu call 524-1234 (call collect from neighboring islands),
Spanish-speaking staff members are available during daytime hours to callers from the following areas: California, Florida, Georgia, Illinois, New Jersey (area code 201), New York, and Texas. Consult your local telephone directory for listings of local chapters.
Appendix K to § 1926.1101—Polarized Light Microscopy of Asbestos (Non-Mandatory) Method number: ID-191 Matrix: Bulk Collection Procedure: Collect approximately 1 to 2 grams of each type of material and place into separate 20 mL scintillation vials. Analytical Procedure: A portion of each separate phase is analyzed by gross examination, phase-polar examination, and central stop dispersion microscopy.
Commercial manufacturers and products mentioned in this method are for descriptive use only and do not constitute endorsements by USDOL-OSHA. Similar products from other sources may be substituted.
1. Introduction
This method describes the collection and analysis of asbestos bulk materials by light microscopy techniques including phase- polar illumination and central-stop dispersion microscopy. Some terms unique to asbestos analysis are defined below:
Amphibole: A family of minerals whose crystals are formed by long, thin units which have two thin ribbons of double chain silicate with a brucite ribbon in between. The shape of each unit is similar to an “I beam”. Minerals important in asbestos analysis include cummingtonite-grunerite, crocidolite, tremolite-actinolite and anthophyllite.
Asbestos: A term for naturally occurring fibrous minerals. Asbestos includes chrysotile, cummingtonite-grunerite asbestos (amosite), anthophyllite asbestos, tremolite asbestos, crocidolite, actinolite asbestos and any of these minerals which have been chemically treated or altered. The precise chemical formulation of each species varies with the location from which it was mined. Nominal compositions are listed:
Chrysotile | Mg3 Si2 O5(OH)4
Crocidolite (Riebeckite asbestos) | Na2 Fe32 + Fe23 + Si8 O22(OH)2
Cummingtonite-Grunerite asbestos (Amosite) | (Mg,Fe)7 Si8 O22(OH)2
Tremolite-Actinolite asbestos | Ca2(Mg,Fe)5 Si8 O22(OH)2
Anthophyllite asbestos | (Mg,Fe)7 Si8 O22(OH)2
Asbestos Fiber: A fiber of asbestos meeting the criteria for a fiber. (See section 3.5. of this Appendix)
Aspect Ratio: The ratio of the length of a fiber to its diameter usually defined as “length : width”, e.g. 3:1.
Brucite: A sheet mineral with the composition Mg(OH)2.
Central Stop Dispersion Staining (microscope): This is a dark field microscope technique that images particles using only light refracted by the particle, excluding light that travels through the particle unrefracted. This is usually accomplished with a McCrone objective or other arrangement which places a circular stop with apparent aperture equal to the objective aperture in the back focal plane of the microscope.
Cleavage Fragments: Mineral particles formed by the comminution of minerals, especially those characterized by relatively parallel sides and moderate aspect ratio.
Differential Counting: The term applied to the practice of excluding certain kinds of fibers from a phase contrast asbestos count because they are not asbestos.
Fiber: A particle longer than or equal to 5 µm with a length to width ratio greater than or equal to 3:1. This may include cleavage fragments. (see section 3.5 of this appendix).
Phase Contrast: Contrast obtained in the microscope by causing light scattered by small particles to destructively interfere with unscattered light, thereby enhancing the visibility of very small particles and particles with very low intrinsic contrast.
Phase Contrast Microscope: A microscope configured with a phase mask pair to create phase contrast. The technique which uses this is called Phase Contrast Microscopy (PCM).
Phase-Polar Analysis: This is the use of polarized light in a phase contrast microscope. It is used to see the same size fibers that are visible in air filter analysis. Although fibers finer than 1 µm are visible, analysis of these is inferred from analysis of larger bundles that are usually present.
Phase-Polar Microscope: The phase-polar microscope is a phase contrast microscope which has an analyzer, a polarizer, a first order red plate and a rotating phase condenser all in place so that the polarized light image is enhanced by phase contrast.
Sealing Encapsulant: This is a product which can be applied, preferably by spraying, onto an asbestos surface which will seal the surface so that fibers cannot be released.
Serpentine: A mineral family consisting of minerals with the general composition Mg3(Si2 O5(OH)4 having the magnesium in brucite layer over a silicate layer. Minerals important in asbestos analysis included in this family are chrysotile, lizardite, antigorite.
1.1. History
Light microscopy has been used for well over 100 years for the determination of mineral species. This analysis is carried out using specialized polarizing microscopes as well as bright field microscopes. The identification of minerals is an on-going process with many new minerals described each year. The first recorded use of asbestos was in Finland about 2500 B.C. where the material was used in the mud wattle for the wooden huts the people lived in as well as strengthening for pottery. Adverse health aspects of the mineral were noted nearly 2000 years ago when Pliny the Younger wrote about the poor health of slaves in the asbestos mines. Although known to be injurious for centuries, the first modern references to its toxicity were by the British Labor Inspectorate when it banned asbestos dust from the workplace in 1898. Asbestosis cases were described in the literature after the turn of the century. Cancer was first suspected in the mid 1930's and a causal link to mesothelioma was made in 1965. Because of the public concern for worker and public safety with the use of this material, several different types of analysis were applied to the determination of asbestos content. Light microscopy requires a great deal of experience and craft. Attempts were made to apply less subjective methods to the analysis. X-ray diffraction was partially successful in determining the mineral types but was unable to separate out the fibrous portions from the non-fibrous portions. Also, the minimum detection limit for asbestos analysis by X-ray diffraction (XRD) is about 1%. Differential Thermal Analysis (DTA) was no more successful. These provide useful corroborating information when the presence of asbestos has been shown by microscopy; however, neither can determine the difference between fibrous and non-fibrous minerals when both habits are present. The same is true of Infrared Absorption (IR).
When electron microscopy was applied to asbestos analysis, hundreds of fibers were discovered present too small to be visible in any light microscope. There are two different types of electron microscope used for asbestos analysis: Scanning Electron Microscope (SEM) and Transmission Electron Microscope (TEM). Scanning Electron Microscopy is useful in identifying minerals. The SEM can provide two of the three pieces of information required to identify fibers by electron microscopy: morphology and chemistry. The third is structure as determined by Selected Area Electron Diffraction—SAED which is performed in the TEM. Although the resolution of the SEM is sufficient for very fine fibers to be seen, accuracy of chemical analysis that can be performed on the fibers varies with fiber diameter in fibers of less than 0.2 µm diameter. The TEM is a powerful tool to identify fibers too small to be resolved by light microscopy and should be used in conjunction with this method when necessary. The TEM can provide all three pieces of information required for fiber identification. Most fibers thicker than 1 µm can adequately be defined in the light microscope. The light microscope remains as the best instrument for the determination of mineral type. This is because the minerals under investigation were first described analytically with the light microscope. It is inexpensive and gives positive identification for most samples analyzed. Further, when optical techniques are inadequate, there is ample indication that alternative techniques should be used for complete identification of the sample.
1.2. Principle
Minerals consist of atoms that may be arranged in random order or in a regular arrangement. Amorphous materials have atoms in random order while crystalline materials have long range order. Many materials are transparent to light, at least for small particles or for thin sections. The properties of these materials can be investigated by the effect that the material has on light passing through it. The six asbestos minerals are all crystalline with particular properties that have been identified and cataloged. These six minerals are anisotropic. They have a regular array of atoms, but the arrangement is not the same in all directions. Each major direction of the crystal presents a different regularity. Light photons travelling in each of these main directions will encounter different electrical neighborhoods, affecting the path and time of travel. The techniques outlined in this method use the fact that light traveling through fibers or crystals in different directions will behave differently, but predictably. The behavior of the light as it travels through a crystal can be measured and compared with known or determined values to identify the mineral species. Usually, Polarized Light Microscopy (PLM) is performed with strain-free objectives on a bright-field microscope platform. This would limit the resolution of the microscope to about 0.4 µm. Because OSHA requires the counting and identification of fibers visible in phase contrast, the phase contrast platform is used to visualize the fibers with the polarizing elements added into the light path. Polarized light methods cannot identify fibers finer than about 1 µm in diameter even though they are visible. The finest fibers are usually identified by inference from the presence of larger, identifiable fiber bundles. When fibers are present, but not identifiable by light microscopy, use either SEM or TEM to determine the fiber identity.
1.3. Advantages and Disadvantages
The advantages of light microcopy are:
(a) Basic identification of the materials was first performed by light microscopy and gross analysis. This provides a large base of published information against which to check analysis and analytical technique.
(b) The analysis is specific to fibers. The minerals present can exist in asbestiform, fibrous, prismatic, or massive varieties all at the same time. Therefore, bulk methods of analysis such as X-ray diffraction, IR analysis, DTA, etc. are inappropriate where the material is not known to be fibrous.
(c) The analysis is quick, requires little preparation time, and can be performed on-site if a suitably equipped microscope is available.
The disadvantages are:
(a) Even using phase-polar illumination, not all the fibers present may be seen. This is a problem for very low asbestos concentrations where agglomerations or large bundles of fibers may not be present to allow identification by inference.
(b) The method requires a great degree of sophistication on the part of the microscopist. An analyst is only as useful as his mental catalog of images. Therefore, a microscopist's accuracy is enhanced by experience. The mineralogical training of the analyst is very important. It is the basis on which subjective decisions are made.
(c) The method uses only a tiny amount of material for analysis. This may lead to sampling bias and false results (high or low). This is especially true if the sample is severely inhomogeneous.
(d) Fibers may be bound in a matrix and not distinguishable as fibers so identification cannot be made.
1.4. Method Performance
1.4.1. This method can be used for determination of asbestos content from 0 to 100% asbestos. The detection limit has not been adequately determined, although for selected samples, the limit is very low, depending on the number of particles examined. For mostly homogeneous, finely divided samples, with no difficult fibrous interferences, the detection limit is below 1%. For inhomogeneous samples (most samples), the detection limit remains undefined. NIST has conducted proficiency testing of laboratories on a national scale. Although each round is reported statistically with an average, control limits, etc., the results indicate a difficulty in establishing precision especially in the low concentration range. It is suspected that there is significant bias in the low range especially near 1%. EPA tried to remedy this by requiring a mandatory point counting scheme for samples less than 10%. The point counting procedure is tedious, and may introduce significant biases of its own. It has not been incorporated into this method.
1.4.2. The precision and accuracy of the quantitation tests performed in this method are unknown. Concentrations are easier to determine in commercial products where asbestos was deliberately added because the amount is usually more than a few percent. An analyst's results can be “calibrated” against the known amounts added by the manufacturer. For geological samples, the degree of homogeneity affects the precision.
1.4.3. The performance of the method is analyst dependent. The analyst must choose carefully and not necessarily randomly the portions for analysis to assure that detection of asbestos occurs when it is present. For this reason, the analyst must have adequate training in sample preparation, and experience in the location and identification of asbestos in samples. This is usually accomplished through substantial on-the-job training as well as formal education in mineralogy and microscopy.
1.5. Interferences
Any material which is long, thin, and small enough to be viewed under the microscope can be considered an interference for asbestos. There are literally hundreds of interferences in workplaces. The techniques described in this method are normally sufficient to eliminate the interferences. An analyst's success in eliminating the interferences depends on proper training.
Asbestos minerals belong to two mineral families: the serpentines and the amphiboles. In the serpentine family, the only common fibrous mineral is chrysotile. Occasionally, the mineral antigorite occurs in a fibril habit with morphology similar to the amphiboles. The amphibole minerals consist of a score of different minerals of which only five are regulated by federal standard: amosite, crocidolite, anthophyllite asbestos, tremolite asbestos and actinolite asbestos. These are the only amphibole minerals that have been commercially exploited for their fibrous properties; however, the rest can and do occur occasionally in asbestiform habit.
In addition to the related mineral interferences, other minerals common in building material may present a problem for some microscopists: gypsum, anhydrite, brucite, quartz fibers, talc fibers or ribbons, wollastonite, perlite, attapulgite, etc. Other fibrous materials commonly present in workplaces are: fiberglass, mineral wool, ceramic wool, refractory ceramic fibers, kevlar, nomex, synthetic fibers, graphite or carbon fibers, cellulose (paper or wood) fibers, metal fibers, etc.
Matrix embedding material can sometimes be a negative interference. The analyst may not be able to easily extract the fibers from the matrix in order to use the method. Where possible, remove the matrix before the analysis, taking careful note of the loss of weight. Some common matrix materials are: vinyl, rubber, tar, paint, plant fiber, cement, and epoxy. A further negative interference is that the asbestos fibers themselves may be either too small to be seen in Phase contrast Microscopy (PCM) or of a very low fibrous quality, having the appearance of plant fibers. The analyst's ability to deal with these materials increases with experience.
1.6. Uses and Occupational Exposure
Asbestos is ubiquitous in the environment. More than 40% of the land area of the United States is composed of minerals which may contain asbestos. Fortunately, the actual formation of great amounts of asbestos is relatively rare. Nonetheless, there are locations in which environmental exposure can be severe such as in the Serpentine Hills of California.
There are thousands of uses for asbestos in industry and the home. Asbestos abatement workers are the most current segment of the population to have occupational exposure to great amounts of asbestos. If the material is undisturbed, there is no exposure. Exposure occurs when the asbestos-containing material is abraded or otherwise disturbed during maintenance operations or some other activity. Approximately 95% of the asbestos in place in the United States is chrysotile.
Amosite and crocidolite make up nearly all the difference. Tremolite and anthophyllite make up a very small percentage. Tremolite is found in extremely small amounts in certain chrysotile deposits. Actinolite exposure is probably greatest from environmental sources, but has been identified in vermiculite containing, sprayed-on insulating materials which may have been certified as asbestos-free.
1.7. Physical and Chemical Properties
The nominal chemical compositions for the asbestos minerals were given in Section 1. Compared to cleavage fragments of the same minerals, asbestiform fibers possess a high tensile strength along the fiber axis. They are chemically inert, non-combustible, and heat resistant. Except for chrysotile, they are insoluble in Hydrochloric acid (HCl). Chrysotile is slightly soluble in HCl. Asbestos has high electrical resistance and good sound absorbing characteristics. It can be woven into cables, fabrics or other textiles, or matted into papers, felts, and mats.
1.8. Toxicology (This section is for Information Only and Should Not Be Taken as OSHA Policy)
Possible physiologic results of respiratory exposure to asbestos are mesothelioma of the pleura or peritoneum, interstitial fibrosis, asbestosis, pneumoconiosis, or respiratory cancer. The possible consequences of asbestos exposure are detailed in the NIOSH Criteria Document or in the OSHA Asbestos Standards 29 CFR 1910.1001 and 29 CFR 1926.1101 and 29 CFR 1915.1001.
2. Sampling Procedure 2.1. Equipment for sampling
(a) Tube or cork borer sampling device
(b) Knife
(c) 20 mL scintillation vial or similar vial
(d) Sealing encapsulant
2.2. Safety Precautions
Asbestos is a known carcinogen. Take care when sampling. While in an asbestos-containing atmosphere, a properly selected and fit-tested respirator should be worn. Take samples in a manner to cause the least amount of dust. Follow these general guidelines:
(a) Do not make unnecessary dust.
(b) Take only a small amount (1 to 2 g).
(c) Tightly close the sample container.
(d) Use encapsulant to seal the spot where the sample was taken, if necessary.
2.3. Sampling Procedure
Samples of any suspect material should be taken from an inconspicuous place. Where the material is to remain, seal the sampling wound with an encapsulant to eliminate the potential for exposure from the sample site. Microscopy requires only a few milligrams of material. The amount that will fill a 20 mL scintillation vial is more than adequate. Be sure to collect samples from all layers and phases of material. If possible, make separate samples of each different phase of the material. This will aid in determining the actual hazard. DO NOT USE ENVELOPES, PLASTIC OR PAPER BAGS OF ANY KIND TO COLLECT SAMPLES. The use of plastic bags presents a contamination hazard to laboratory personnel and to other samples. When these containers are opened, a bellows effect blows fibers out of the container onto everything, including the person opening the container.
If a cork-borer type sampler is available, push the tube through the material all the way, so that all layers of material are sampled. Some samplers are intended to be disposable. These should be capped and sent to the laboratory. If a non-disposable cork borer is used, empty the contents into a scintillation vial and send to the laboratory. Vigorously and completely clean the cork borer between samples.
2.4 Shipment
Samples packed in glass vials must not touch or they might break in shipment.
(a) Seal the samples with a sample seal over the end to guard against tampering and to identify the sample.
(b) Package the bulk samples in separate packages from the air samples. They may cross-contaminate each other and will invalidate the results of the air samples.
(c) Include identifying paperwork with the samples, but not in contact with the suspected asbestos.
(d) To maintain sample accountability, ship the samples by certified mail, overnight express, or hand carry them to the laboratory.
3. Analysis
The analysis of asbestos samples can be divided into two major parts: sample preparation and microscopy. Because of the different asbestos uses that may be encountered by the analyst, each sample may need different preparation steps. The choices are outlined below. There are several different tests that are performed to identify the asbestos species and determine the percentage. They will be explained below.
3.1. Safety
(a) Do not create unnecessary dust. Handle the samples in HEPA-filter equipped hoods. If samples are received in bags, envelopes or other inappropriate container, open them only in a hood having a face velocity at or greater than 100 fpm. Transfer a small amount to a scintillation vial and only handle the smaller amount.
(b) Open samples in a hood, never in the open lab area.
(c) Index of refraction oils can be toxic. Take care not to get this material on the skin. Wash immediately with soap and water if this happens.
(d) Samples that have been heated in the muffle furnace or the drying oven may be hot. Handle them with tongs until they are cool enough to handle.
(e) Some of the solvents used, such as THF (tetrahydrofuran), are toxic and should only be handled in an appropriate fume hood and according to instructions given in the Safety Data Sheet (SDS).
3.2. Equipment
(a) Phase contrast microscope with 10x, 16x and 40x objectives, 10x wide-field eyepieces, G-22 Walton-Beckett graticule, Whipple disk, polarizer, analyzer and first order red or gypsum plate, 100 Watt illuminator, rotating position condenser with oversize phase rings, central stop dispersion objective, Kohler illumination and a rotating mechanical stage.
(b) Stereo microscope with reflected light illumination, transmitted light illumination, polarizer, analyzer and first order red or gypsum plate, and rotating stage.
(c) Negative pressure hood for the stereo microscope
(d) Muffle furnace capable of 600 °C
(e) Drying oven capable of 50-150 °C
(f) Aluminum specimen pans
(g) Tongs for handling samples in the furnace
(h) High dispersion index of refraction oils (Special for dispersion staining.)
n = 1.550 n = 1.585 n = 1.590 n = 1.605 n = 1.620 n = 1.670 n = 1.680 n = 1.690
(i) A set of index of refraction oils from about n = 1.350 to n = 2.000 in n = 0.005 increments. (Standard for Becke line analysis.)
(j) Glass slides with painted or frosted ends 1 × 3 inches 1mm (thick, precleaned.
(k) Cover Slips 22 × 22 mm, #1 1/2
(l) Paper clips or dissection needles
(m) Hand grinder
(n) Scalpel with both #10 and #11 blades
(o) 0.1 molar HCl
(p) Decalcifying solution (Baxter Scientific Products) Ethylenediaminetetraacetic Acid,
Tetrasodium 0.7 g/l Sodium Potassium Tartrate 8.0 mg/liter Hydrochloric Acid 99.2 g/liter Sodium Tartrate 0.14 g/liter
(q) Tetrahydrofuran (THF)
(r) Hotplate capable of 60 °C
(s) Balance
(t) Hacksaw blade
(u) Ruby mortar and pestle
3.3. Sample Pre-Preparation
Sample preparation begins with pre-preparation which may include chemical reduction of the matrix, heating the sample to dryness or heating in the muffle furnace. The end result is a sample which has been reduced to a powder that is sufficiently fine to fit under the cover slip. Analyze different phases of samples separately, e.g., tile and the tile mastic should be analyzed separately as the mastic may contain asbestos while the tile may not.
(a) Wet Samples
Samples with a high water content will not give the proper dispersion colors and must be dried prior to sample mounting. Remove the lid of the scintillation vial, place the bottle in the drying oven and heat at 100 °C to dryness (usually about 2 h). Samples which are not submitted to the lab in glass must be removed and placed in glass vials or aluminum weighing pans before placing them in the drying oven.
(b) Samples With Organic Interference—Muffle Furnace
These may include samples with tar as a matrix, vinyl asbestos tile, or any other organic that can be reduced by heating. Remove the sample from the vial and weigh in a balance to determine the weight of the submitted portion. Place the sample in a muffle furnace at 500 °C for 1 to 2 h or until all obvious organic material has been removed. Retrieve, cool and weigh again to determine the weight loss on ignition. This is necessary to determine the asbestos content of the submitted sample, because the analyst will be looking at a reduced sample.
Note:
Heating above 600 °C will cause the sample to undergo a structural change which, given sufficient time, will convert the chrysotile to forsterite. Heating even at lower temperatures for 1 to 2 h may have a measurable effect on the optical properties of the minerals. If the analyst is unsure of what to expect, a sample of standard asbestos should be heated to the same temperature for the same length of time so that it can be examined for the proper interpretation.
(c) Samples With Organic Interference—THF
Vinyl asbestos tile is the most common material treated with this solvent, although, substances containing tar will sometimes yield to this treatment. Select a portion of the material and then grind it up if possible. Weigh the sample and place it in a test tube. Add sufficient THF to dissolve the organic matrix. This is usually about 4 to 5 mL. Remember, THF is highly flammable. Filter the remaining material through a tared silver membrane, dry and weigh to determine how much is left after the solvent extraction. Further process the sample to remove carbonate or mount directly.
(d) Samples With Carbonate Interference
Carbonate material is often found on fibers and sometimes must be removed in order to perform dispersion microscopy. Weigh out a portion of the material and place it in a test tube. Add a sufficient amount of 0.1 M HCl or decalcifying solution in the tube to react all the carbonate as evidenced by gas formation; i.e., when the gas bubbles stop, add a little more solution. If no more gas forms, the reaction is complete. Filter the material out through a tared silver membrane, dry and weigh to determine the weight lost.
3.4. Sample Preparation
Samples must be prepared so that accurate determination can be made of the asbestos type and amount present. The following steps are carried out in the low-flow hood (a low-flow hood has less than 50 fpm flow):
(1) If the sample has large lumps, is hard, or cannot be made to lie under a cover slip, the grain size must be reduced. Place a small amount between two slides and grind the material between them or grind a small amount in a clean mortar and pestle. The choice of whether to use an alumina, ruby, or diamond mortar depends on the hardness of the material. Impact damage can alter the asbestos mineral if too much mechanical shock occurs. (Freezer mills can completely destroy the observable crystallinity of asbestos and should not be used). For some samples, a portion of material can be shaved off with a scalpel, ground off with a hand grinder or hack saw blade.
The preparation tools should either be disposable or cleaned thoroughly. Use vigorous scrubbing to loosen the fibers during the washing. Rinse the implements with copious amounts of water and air-dry in a dust-free environment.
(2) If the sample is powder or has been reduced as in (1) above, it is ready to mount. Place a glass slide on a piece of optical tissue and write the identification on the painted or frosted end. Place two drops of index of refraction medium n = 1.550 on the slide. (The medium n = 1.550 is chosen because it is the matching index for chrysotile. Dip the end of a clean paper-clip or dissecting needle into the droplet of refraction medium on the slide to moisten it. Then dip the probe into the powder sample. Transfer what sticks on the probe to the slide. The material on the end of the probe should have a diameter of about 3 mm for a good mount. If the material is very fine, less sample may be appropriate. For non-powder samples such as fiber mats, forceps should be used to transfer a small amount of material to the slide. Stir the material in the medium on the slide, spreading it out and making the preparation as uniform as possible. Place a cover-slip on the preparation by gently lowering onto the slide and allowing it to fall “trapdoor” fashion on the preparation to push out any bubbles. Press gently on the cover slip to even out the distribution of particulate on the slide. If there is insufficient mounting oil on the slide, one or two drops may be placed near the edge of the coverslip on the slide. Capillary action will draw the necessary amount of liquid into the preparation. Remove excess oil with the point of a laboratory wiper.
Treat at least two different areas of each phase in this fashion. Choose representative areas of the sample. It may be useful to select particular areas or fibers for analysis. This is useful to identify asbestos in severely inhomogeneous samples.
When it is determined that amphiboles may be present, repeat the above process using the appropriate high-dispersion oils until an identification is made or all six asbestos minerals have been ruled out. Note that percent determination must be done in the index medium 1.550 because amphiboles tend to disappear in their matching mediums.
3.5. Analytical procedure
Note:
This method presumes some knowledge of mineralogy and optical petrography.
The analysis consists of three parts: The determination of whether there is asbestos present, what type is present and the determination of how much is present. The general flow of the analysis is:
(1) Gross examination.
(2) Examination under polarized light on the stereo microscope.
(3) Examination by phase-polar illumination on the compound phase microscope.
(4) Determination of species by dispersion stain. Examination by Becke line analysis may also be used; however, this is usually more cumbersome for asbestos determination.
(5) Difficult samples may need to be analyzed by SEM or TEM, or the results from those techniques combined with light microscopy for a definitive identification.
Identification of a particle as asbestos requires that it be asbestiform. Description of particles should follow the suggestion of Campbell. (Figure 1)
For the purpose of regulation, the mineral must be one of the six minerals covered and must be in the asbestos growth habit. Large specimen samples of asbestos generally have the gross appearance of wood. Fibers are easily parted from it. Asbestos fibers are very long compared with their widths. The fibers have a very high tensile strength as demonstrated by bending without breaking. Asbestos fibers exist in bundles that are easily parted, show longitudinal fine structure and may be tufted at the ends showing “bundle of sticks” morphology. In the microscope some of these properties may not be observable. Amphiboles do not always show striations along their length even when they are asbestos. Neither will they always show tufting. They generally do not show a curved nature except for very long fibers. Asbestos and asbestiform minerals are usually characterized in groups by extremely high aspect ratios (greater than 100:1). While aspect ratio analysis is useful for characterizing populations of fibers, it cannot be used to identify individual fibers of intermediate to short aspect ratio. Observation of many fibers is often necessary to determine whether a sample consists of “cleavage fragments” or of asbestos fibers.
Most cleavage fragments of the asbestos minerals are easily distinguishable from true asbestos fibers. This is because true cleavage fragments usually have larger diameters than 1 µm. Internal structure of particles larger than this usually shows them to have no internal fibrillar structure. In addition, cleavage fragments of the monoclinic amphiboles show inclined extinction under crossed polars with no compensator. Asbestos fibers usually show extinction at zero degrees or ambiguous extinction if any at all. Morphologically, the larger cleavage fragments are obvious by their blunt or stepped ends showing prismatic habit. Also, they tend to be acicular rather than filiform.
Where the particles are less than 1 µm in diameter and have an aspect ratio greater than or equal to 3:1, it is recommended that the sample be analyzed by SEM or TEM if there is any question whether the fibers are cleavage fragments or asbestiform particles.
Care must be taken when analyzing by electron microscopy because the interferences are different from those in light microscopy and may structurally be very similar to asbestos. The classic interference is between anthophyllite and biopyribole or intermediate fiber. Use the same morphological clues for electron microscopy as are used for light microscopy, e.g. fibril splitting, internal longitudinal striation, fraying, curvature, etc.
(1) Gross examination:
Examine the sample, preferably in the glass vial. Determine the presence of any obvious fibrous component. Estimate a percentage based on previous experience and current observation. Determine whether any pre-preparation is necessary. Determine the number of phases present. This step may be carried out or augmented by observation at 6 to 40 × under a stereo microscope.
(2) After performing any necessary pre-preparation, prepare slides of each phase as described above. Two preparations of the same phase in the same index medium can be made side-by-side on the same glass for convenience. Examine with the polarizing stereo microscope. Estimate the percentage of asbestos based on the amount of birefringent fiber present.
(3) Examine the slides on the phase-polar microscopes at magnifications of 160 and 400 × . Note the morphology of the fibers. Long, thin, very straight fibers with little curvature are indicative of fibers from the amphibole family. Curved, wavy fibers are usually indicative of chrysotile. Estimate the percentage of asbestos on the phase-polar microscope under conditions of crossed polars and a gypsum plate. Fibers smaller than 1.0 µm in thickness must be identified by inference to the presence of larger, identifiable fibers and morphology. If no larger fibers are visible, electron microscopy should be performed. At this point, only a tentative identification can be made. Full identification must be made with dispersion microscopy. Details of the tests are included in the appendices.
(4) Once fibers have been determined to be present, they must be identified. Adjust the microscope for dispersion mode and observe the fibers. The microscope has a rotating stage, one polarizing element, and a system for generating dark-field dispersion microscopy (see Section 4.6. of this appendix). Align a fiber with its length parallel to the polarizer and note the color of the Becke lines. Rotate the stage to bring the fiber length perpendicular to the polarizer and note the color. Repeat this process for every fiber or fiber bundle examined. The colors must be consistent with the colors generated by standard asbestos reference materials for a positive identification. In n = 1.550, amphiboles will generally show a yellow to straw-yellow color indicating that the fiber indices of refraction are higher than the liquid. If long, thin fibers are noted and the colors are yellow, prepare further slides as above in the suggested matching liquids listed below:
Type of asbestos | Index of refraction
Chrysotile | n = 1.550.
Amosite | n = 1.670 or 1.680.
Crocidolite | n = 1.690.
Anthophyllite | n = 1.605 and 1.620.
Tremolite | n = 1.605 and 1.620.
Actinolite | n = 1.620.
Where more than one liquid is suggested, the first is preferred; however, in some cases this liquid will not give good dispersion color. Take care to avoid interferences in the other liquid; e.g., wollastonite in n = 1.620 will give the same colors as tremolite. In n = 1.605 wollastonite will appear yellow in all directions. Wollastonite may be determined under crossed polars as it will change from blue to yellow as it is rotated along its fiber axis by tapping on the cover slip. Asbestos minerals will not change in this way.
Determination of the angle of extinction may, when present, aid in the determination of anthophyllite from tremolite. True asbestos fibers usually have 0° extinction or ambiguous extinction, while cleavage fragments have more definite extinction.
Continue analysis until both preparations have been examined and all present species of asbestos are identified. If there are no fibers present, or there is less than 0.1% present, end the analysis with the minimum number of slides (2).
(5) Some fibers have a coating on them which makes dispersion microscopy very difficult or impossible. Becke line analysis or electron microscopy may be performed in those cases. Determine the percentage by light microscopy. TEM analysis tends to overestimate the actual percentage present.
(6) Percentage determination is an estimate of occluded area, tempered by gross observation. Gross observation information is used to make sure that the high magnification microscopy does not greatly over- or under- estimate the amount of fiber present. This part of the analysis requires a great deal of experience. Satisfactory models for asbestos content analysis have not yet been developed, although some models based on metallurgical grain-size determination have found some utility. Estimation is more easily handled in situations where the grain sizes visible at about 160 × are about the same and the sample is relatively homogeneous.
View all of the area under the cover slip to make the percentage determination. View the fields while moving the stage, paying attention to the clumps of material. These are not usually the best areas to perform dispersion microscopy because of the interference from other materials. But, they are the areas most likely to represent the accurate percentage in the sample. Small amounts of asbestos require slower scanning and more frequent analysis of individual fields.
Report the area occluded by asbestos as the concentration. This estimate does not generally take into consideration the difference in density of the different species present in the sample. For most samples this is adequate. Simulation studies with similar materials must be carried out to apply microvisual estimation for that purpose and is beyond the scope of this procedure.
(7) Where successive concentrations have been made by chemical or physical means, the amount reported is the percentage of the material in the “as submitted” or original state. The percentage determined by microscopy is multiplied by the fractions remaining after pre-preparation steps to give the percentage in the original sample. For example:
Step 1. 60% remains after heating at 550 °C for 1 h. Step 2. 30% of the residue of step 1 remains after dissolution of carbonate in 0.1 m HCl. Step 3. Microvisual estimation determines that 5% of the sample is chrysotile asbestos.
The reported result is:
R = (Microvisual result in percent) × (Fraction remaining after step 2) × (Fraction remaining of original sample after step 1) R = (5) × (.30) × (.60) = 0.9%
(8) Report the percent and type of asbestos present. For samples where asbestos was identified, but is less than 1.0%, report “Asbestos present, less than 1.0%.” There must have been at least two observed fibers or fiber bundles in the two preparations to be reported as present. For samples where asbestos was not seen, report as “None Detected.”
Auxiliary Information
Because of the subjective nature of asbestos analysis, certain concepts and procedures need to be discussed in more depth. This information will help the analyst understand why some of the procedures are carried out the way they are.
4.1. Light
Light is electromagnetic energy. It travels from its source in packets called quanta. It is instructive to consider light as a plane wave. The light has a direction of travel. Perpendicular to this and mutually perpendicular to each other, are two vector components. One is the magnetic vector and the other is the electric vector. We shall only be concerned with the electric vector. In this description, the interaction of the vector and the mineral will describe all the observable phenomena. From a light source such a microscope illuminator, light travels in all different direction from the filament.
In any given direction away from the filament, the electric vector is perpendicular to the direction of travel of a light ray. While perpendicular, its orientation is random about the travel axis. If the electric vectors from all the light rays were lined up by passing the light through a filter that would only let light rays with electric vectors oriented in one direction pass, the light would then be POLARIZED.
Polarized light interacts with matter in the direction of the electric vector. This is the polarization direction. Using this property it is possible to use polarized light to probe different materials and identify them by how they interact with light.
The speed of light in a vacuum is a constant at about 2.99 × 10 8 m/s. When light travels in different materials such as air, water, minerals or oil, it does not travel at this speed. It travels slower. This slowing is a function of both the material through which the light is traveling and the wavelength or frequency of the light. In general, the more dense the material, the slower the light travels. Also, generally, the higher the frequency, the slower the light will travel. The ratio of the speed of light in a vacuum to that in a material is called the index of refraction (n). It is usually measured at 589 nm (the sodium D line). If white light (light containing all the visible wavelengths) travels through a material, rays of longer wavelengths will travel faster than those of shorter wavelengths, this separation is called dispersion. Dispersion is used as an identifier of materials as described in Section 4.6.
4.2. Material Properties
Materials are either amorphous or crystalline. The difference between these two descriptions depends on the positions of the atoms in them. The atoms in amorphous materials are randomly arranged with no long range order. An example of an amorphous material is glass. The atoms in crystalline materials, on the other hand, are in regular arrays and have long range order. Most of the atoms can be found in highly predictable locations. Examples of crystalline material are salt, gold, and the asbestos minerals.
It is beyond the scope of this method to describe the different types of crystalline materials that can be found, or the full description of the classes into which they can fall. However, some general crystallography is provided below to give a foundation to the procedures described.
With the exception of anthophyllite, all the asbestos minerals belong to the monoclinic crystal type. The unit cell is the basic repeating unit of the crystal and for monoclinic crystals can be described as having three unequal sides, two 90° angles and one angle not equal to 90°. The orthorhombic group, of which anthophyllite is a member has three unequal sides and three 90° angles. The unequal sides are a consequence of the complexity of fitting the different atoms into the unit cell. Although the atoms are in a regular array, that array is not symmetrical in all directions. There is long range order in the three major directions of the crystal. However, the order is different in each of the three directions. This has the effect that the index of refraction is different in each of the three directions. Using polarized light, we can investigate the index of refraction in each of the directions and identify the mineral or material under investigation. The indices α, β, and γ are used to identify the lowest, middle, and highest index of refraction respectively. The x direction, associated with α is called the fast axis. Conversely, the z direction is associated with γ and is the slow direction. Crocidolite has α along the fiber length making it “length-fast”. The remainder of the asbestos minerals have the γ axis along the fiber length. They are called “length-slow”. This orientation to fiber length is used to aid in the identification of asbestos.
4.3. Polarized Light Technique
Polarized light microscopy as described in this section uses the phase-polar microscope described in Section 3.2. A phase contrast microscope is fitted with two polarizing elements, one below and one above the sample. The polarizers have their polarization directions at right angles to each other. Depending on the tests performed, there may be a compensator between these two polarizing elements. A compensator is a piece of mineral with known properties that “compensates” for some deficiency in the optical train. Light emerging from a polarizing element has its electric vector pointing in the polarization direction of the element. The light will not be subsequently transmitted through a second element set at a right angle to the first element. Unless the light is altered as it passes from one element to the other, there is no transmission of light.
4.4. Angle of Extinction
Crystals which have different crystal regularity in two or three main directions are said to be anisotropic. They have a different index of refraction in each of the main directions. When such a crystal is inserted between the crossed polars, the field of view is no longer dark but shows the crystal in color. The color depends on the properties of the crystal. The light acts as if it travels through the crystal along the optical axes. If a crystal optical axis were lined up along one of the polarizing directions (either the polarizer or the analyzer) the light would appear to travel only in that direction, and it would blink out or go dark. The difference in degrees between the fiber direction and the angle at which it blinks out is called the angle of extinction. When this angle can be measured, it is useful in identifying the mineral. The procedure for measuring the angle of extinction is to first identify the polarization direction in the microscope. A commercial alignment slide can be used to establish the polarization directions or use anthophyllite or another suitable mineral. This mineral has a zero degree angle of extinction and will go dark to extinction as it aligns with the polarization directions. When a fiber of anthophyllite has gone to extinction, align the eyepiece reticle or graticule with the fiber so that there is a visual cue as to the direction of polarization in the field of view. Tape or otherwise secure the eyepiece in this position so it will not shift.
After the polarization direction has been identified in the field of view, move the particle of interest to the center of the field of view and align it with the polarization direction. For fibers, align the fiber along this direction. Note the angular reading of the rotating stage. Looking at the particle, rotate the stage until the fiber goes dark or “blinks out”. Again note the reading of the stage. The difference in the first reading and the second is an angle of extinction.
The angle measured may vary as the orientation of the fiber changes about its long axis. Tables of mineralogical data usually report the maximum angle of extinction. Asbestos forming minerals, when they exhibit an angle of extinction, usually do show an angle of extinction close to the reported maximum, or as appropriate depending on the substitution chemistry.
4.5. Crossed Polars with Compensator
When the optical axes of a crystal are not lined up along one of the polarizing directions (either the polarizer or the analyzer) part of the light travels along one axis and part travels along the other visible axis. This is characteristic of birefringent materials.
The color depends on the difference of the two visible indices of refraction and the thickness of the crystal. The maximum difference available is the difference between the α and the γ axes. This maximum difference is usually tabulated as the birefringence of the crystal.
For this test, align the fiber at 45° to the polarization directions in order to maximize the contribution to each of the optical axes. The colors seen are called retardation colors. They arise from the recombination of light which has traveled through the two separate directions of the crystal. One of the rays is retarded behind the other since the light in that direction travels slower. On recombination, some of the colors which make up white light are enhanced by constructive interference and some are suppressed by destructive interference. The result is a color dependent on the difference between the indices and the thickness of the crystal. The proper colors, thicknesses, and retardations are shown on a Michel-Levy chart. The three items, retardation, thickness and birefringence are related by the following relationship:
R = t(nγ−nα) R = retardation, t = crystal thickness in µm, and nα,γ = indices of refraction.
Examination of the equation for asbestos minerals reveals that the visible colors for almost all common asbestos minerals and fiber sizes are shades of gray and black. The eye is relatively poor at discriminating different shades of gray. It is very good at discriminating different colors. In order to compensate for the low retardation, a compensator is added to the light train between the polarization elements. The compensator used for this test is a gypsum plate of known thickness and birefringence. Such a compensator when oriented at 45° to the polarizer direction, provides a retardation of 530 nm of the 530 nm wavelength color. This enhances the red color and gives the background a characteristic red to red-magenta color. If this “full-wave” compensator is in place when the asbestos preparation is inserted into the light train, the colors seen on the fibers are quite different. Gypsum, like asbestos has a fast axis and a slow axis. When a fiber is aligned with its fast axis in the same direction as the fast axis of the gypsum plate, the ray vibrating in the slow direction is retarded by both the asbestos and the gypsum. This results in a higher retardation than would be present for either of the two minerals. The color seen is a second order blue. When the fiber is rotated 90° using the rotating stage, the slow direction of the fiber is now aligned with the fast direction of the gypsum and the fast direction of the fiber is aligned with the slow direction of the gypsum. Thus, one ray vibrates faster in the fast direction of the gypsum, and slower in the slow direction of the fiber; the other ray will vibrate slower in the slow direction of the gypsum and faster in the fast direction of the fiber. In this case, the effect is subtractive and the color seen is a first order yellow. As long as the fiber thickness does not add appreciably to the color, the same basic colors will be seen for all asbestos types except crocidolite. In crocidolite the colors will be weaker, may be in the opposite directions, and will be altered by the blue absorption color natural to crocidolite. Hundreds of other materials will give the same colors as asbestos, and therefore, this test is not definitive for asbestos. The test is useful in discriminating against fiberglass or other amorphous fibers such as some synthetic fibers. Certain synthetic fibers will show retardation colors different than asbestos; however, there are some forms of polyethylene and aramid which will show morphology and retardation colors similar to asbestos minerals. This test must be supplemented with a positive identification test when birefringent fibers are present which can not be excluded by morphology. This test is relatively ineffective for use on fibers less than 1 µm in diameter. For positive confirmation TEM or SEM should be used if no larger bundles or fibers are visible.
4.6. Dispersion Staining
Dispersion microscopy or dispersion staining is the method of choice for the identification of asbestos in bulk materials. Becke line analysis is used by some laboratories and yields the same results as does dispersion staining for asbestos and can be used in lieu of dispersion staining. Dispersion staining is performed on the same platform as the phase-polar analysis with the analyzer and compensator removed. One polarizing element remains to define the direction of the light so that the different indices of refraction of the fibers may be separately determined. Dispersion microscopy is a dark-field technique when used for asbestos. Particles are imaged with scattered light. Light which is unscattered is blocked from reaching the eye either by the back field image mask in a McCrone objective or a back field image mask in the phase condenser. The most convenient method is to use the rotating phase condenser to move an oversized phase ring into place. The ideal size for this ring is for the central disk to be just larger than the objective entry aperture as viewed in the back focal plane. The larger the disk, the less scattered light reaches the eye. This will have the effect of diminishing the intensity of dispersion color and will shift the actual color seen. The colors seen vary even on microscopes from the same manufacturer. This is due to the different bands of wavelength exclusion by different mask sizes. The mask may either reside in the condenser or in the objective back focal plane. It is imperative that the analyst determine by experimentation with asbestos standards what the appropriate colors should be for each asbestos type. The colors depend also on the temperature of the preparation and the exact chemistry of the asbestos. Therefore, some slight differences from the standards should be allowed. This is not a serious problem for commercial asbestos uses. This technique is used for identification of the indices of refraction for fibers by recognition of color. There is no direct numerical readout of the index of refraction. Correlation of color to actual index of refraction is possible by referral to published conversion tables. This is not necessary for the analysis of asbestos. Recognition of appropriate colors along with the proper morphology are deemed sufficient to identify the commercial asbestos minerals. Other techniques including SEM, TEM, and XRD may be required to provide additional information in order to identify other types of asbestos.
Make a preparation in the suspected matching high dispersion oil, e.g., n = 1.550 for chrysotile. Perform the preliminary tests to determine whether the fibers are birefringent or not. Take note of the morphological character. Wavy fibers are indicative of chrysotile while long, straight, thin, frayed fibers are indicative of amphibole asbestos. This can aid in the selection of the appropriate matching oil. The microscope is set up and the polarization direction is noted as in Section 4.4. Align a fiber with the polarization direction. Note the color. This is the color parallel to the polarizer. Then rotate the fiber rotating the stage 90° so that the polarization direction is across the fiber. This is the perpendicular position. Again note the color. Both colors must be consistent with standard asbestos minerals in the correct direction for a positive identification of asbestos. If only one of the colors is correct while the other is not, the identification is not positive. If the colors in both directions are bluish-white, the analyst has chosen a matching index oil which is higher than the correct matching oil, e.g. the analyst has used n = 1.620 where chrysotile is present. The next lower oil (Section 3.5.) should be used to prepare another specimen. If the color in both directions is yellow-white to straw-yellow-white, this indicates that the index of the oil is lower than the index of the fiber, e.g. the preparation is in n = 1.550 while anthophyllite is present. Select the next higher oil (Section 3.5.) and prepare another slide. Continue in this fashion until a positive identification of all asbestos species present has been made or all possible asbestos species have been ruled out by negative results in this test. Certain plant fibers can have similar dispersion colors as asbestos. Take care to note and evaluate the morphology of the fibers or remove the plant fibers in pre-preparation. Coating material on the fibers such as carbonate or vinyl may destroy the dispersion color. Usually, there will be some outcropping of fiber which will show the colors sufficient for identification. When this is not the case, treat the sample as described in Section 3.3. and then perform dispersion staining. Some samples will yield to Becke line analysis if they are coated or electron microscopy can be used for identification.
5. References 5.1. Crane, D.T., Asbestos in Air, OSHA method ID160, Revised November 1992. 5.2. Ford, W.E., Dana's Textbook of Mineralogy; Fourth Ed.; John Wiley and Son, New York, 1950, p. vii. 5.3. Selikoff, I.J., Lee, D.H.K., Asbestos and Disease, Academic Press, New York, 1978, pp. 3,20. 5.4. Women Inspectors of Factories. Annual Report for 1898, H.M. Statistical Office, London, p. 170 (1898). 5.5. Selikoff,.I.J., Lee, D.H.K., Asbestos and Disease, Academic Press, New York, 1978, pp. 26,30. 5.6. Campbell, W.J., et al, Selected Silicate Minerals and Their Asbestiform Varieties, United States Department of the Interior, Bureau of Mines, Information Circular 8751, 1977. 5.7. Asbestos, Code of Federal Regulations, 29 CFR 1910.1001 and 29 CFR 1926.58. 5.8. National Emission Standards for Hazardous Air Pollutants; Asbestos NESHAP Revision, Federal Register, Vol. 55, No. 224, 20 November 1990, p. 48410. 5.9. Ross, M. The Asbestos Minerals: Definitions, Description, Modes of Formation, Physical and Chemical Properties and Health Risk to the Mining Community, Nation Bureau of Standards Special Publication, Washington, DC, 1977. 5.10. Lilis, R., Fibrous Zeolites and Endemic Mesothelioma in Cappadocia, Turkey, J. Occ Medicine, 1981, 23,(8),548-550. 5.11. Occupational Exposure to Asbestos—1972, U.S. Department of Health Education and Welfare, Public Health Service, Center for Disease Control, National Institute for Occupational Safety and Health, HSM-72-10267. 5.12. Campbell,W.J., et al, Relationship of Mineral Habit to Size Characteristics for Tremolite Fragments and Fibers, United States Department of the Interior, Bureau of Mines, Information Circular 8367, 1979. 5.13. Mefford, D., DCM Laboratory, Denver, private communication, July 1987. 5.14. Deer, W.A., Howie, R.A., Zussman, J., Rock Forming Minerals, Longman, Thetford, UK, 1974. 5.15. Kerr, P.F., Optical Mineralogy; Third Ed. McGraw-Hill, New York, 1959. 5.16. Veblen, D.R. (Ed.), Amphiboles and Other Hydrous Pyriboles—Mineralogy, Reviews in Mineralogy, Vol 9A, Michigan, 1982, pp 1-102. 5.17. Dixon, W.C., Applications of Optical Microscopy in the Analysis of Asbestos and Quartz, ACS Symposium Series, No. 120, Analytical Techniques in Occupational Health Chemistry, 1979. 5.18. Polarized Light Microscopy, McCrone Research Institute, Chicago, 1976. 5.19. Asbestos Identification, McCrone Research Institute, G & G printers, Chicago, 1987. 5.20. McCrone, W.C., Calculation of Refractive Indices from Dispersion Staining Data, The Microscope, No 37, Chicago, 1989. 5.21. Levadie, B. (Ed.), Asbestos and Other Health Related Silicates, ASTM Technical Publication 834, ASTM, Philadelphia 1982. 5.22. Steel, E. and Wylie, A., Riordan, P.H. (Ed.), Mineralogical Characteristics of Asbestos, Geology of Asbestos Deposits, pp. 93-101, SME-AIME, 1981. 5.23. Zussman, J., The Mineralogy of Asbestos, Asbestos: Properties, Applications and Hazards, pp. 45-67 Wiley, 1979.
[51 FR 22756, June 20, 1986]
Editorial Note:For Federal Register citations affecting § 1926.1101, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.
§ 1926.1102 Coal tar pitch volatiles; interpretation of term.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1002 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1103 13 carcinogens (4-Nitrobiphenyl, etc.).
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1104 alpha-Naphthylamine.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1105 [Reserved]
§ 1926.1106 Methyl chloromethyl ether.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1107 3,3′-Dichlorobenzidiene (and its salts).
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1108 bis-Chloromethyl ether.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1109 beta-Naphthylamine.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1110 Benzidine.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1111 4-Aminodiphenyl.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1112 Ethyleneimine.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1113 beta-Propiolactone.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1114 2-Acetylaminofluorene.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1115 4-Dimethylaminoazobenzene.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1116 N-Nitrosodimethylamine.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1003 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1117 Vinyl chloride.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1017 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1118 Inorganic arsenic.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1018 of this chapter.
[61 FR 31433, June 20, 1996]
§ 1926.1124 Beryllium.
(a) Scope and application. (1) This standard applies to occupational exposure to beryllium in all forms, compounds, and mixtures in construction, except those articles and materials exempted by paragraphs (a)(2) and (a)(3) of this standard.
(2) This standard does not apply to articles, as defined in the Hazard Communication standard (HCS) (29 CFR 1910.1200(c)), that contain beryllium and that the employer does not process.
(3) This standard does not apply to materials containing less than 0.1% beryllium by weight where the employer has objective data demonstrating that employee exposure to beryllium will remain below the action level as an 8-hour TWA under any foreseeable conditions.
(b) Definitions. As used in this standard:
Action level means a concentration of airborne beryllium of 0.1 micrograms per cubic meter of air (µg/m 3) calculated as an 8-hour time-weighted average (TWA).
Airborne exposure and airborne exposure to beryllium mean the exposure to airborne beryllium that would occur if the employee were not using a respirator.
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, United States Department of Labor, or designee.
Beryllium lymphocyte proliferation test (BeLPT) means the measurement of blood lymphocyte proliferation in a laboratory test when lymphocytes are challenged with a soluble beryllium salt.
Beryllium sensitization means a response in the immune system of a specific individual who has been exposed to beryllium. There are no associated physical or clinical symptoms and no illness or disability with beryllium sensitization alone, but the response that occurs through beryllium sensitization can enable the immune system to recognize and react to beryllium. While not every beryllium-sensitized person will develop chronic beryllium disease (CBD), beryllium sensitization is essential for development of CBD.
CBD diagnostic center means a medical diagnostic center that has a pulmonologist or pulmonary specialist on staff and on-site facilities to perform a clinical evaluation for the presence of chronic beryllium disease (CBD). The CBD diagnostic center must have the capacity to perform pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. The CBD diagnostic center must also have the capacity to transfer BAL samples to a laboratory for appropriate diagnostic testing within 24 hours. The pulmonologist or pulmonary specialist must be able to interpret the biopsy pathology and the BAL diagnostic test results.
Chronic beryllium disease (CBD) means a chronic granulomatous lung disease caused by inhalation of airborne beryllium by an individual who is beryllium-sensitized.
Competent person means an individual who is capable of identifying existing and foreseeable beryllium hazards in the workplace and who has authorization to take prompt corrective measures to eliminate or minimize them. The competent person must have the knowledge, ability, and authority necessary to fulfill the responsibilities set forth in paragraph (e) of this standard.
Confirmed positive means the person tested has had two abnormal BeLPT test results, an abnormal and a borderline test result, or three borderline test results from tests conducted within a 3-year period. It also means the result of a more reliable and accurate test indicating a person has been identified as having beryllium sensitization.
Director means the Director of the National Institute for Occupational Safety and Health (NIOSH), U.S. Department of Health and Human Services, or designee.
Objective data means information, such as air monitoring data from industry-wide surveys or calculations based on the composition of a substance, demonstrating airborne exposure to beryllium associated with a particular product or material or a specific process, task, or activity. The data must reflect workplace conditions closely resembling or with a higher airborne exposure potential than the processes, types of material, control methods, work practices, and environmental conditions in the employer's current operations.
Physician or other licensed health care professional (PLHCP) means an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows the individual to independently provide or be delegated the responsibility to provide some or all of the health care services required by paragraph (k) of this standard.
This standard means this beryllium standard, 29 CFR 1926.1124.
(c) Permissible Exposure Limits (PELs)—(1) Time-weighted average (TWA) PEL. The employer must ensure that no employee is exposed to an airborne concentration of beryllium in excess of 0.2 µg/m 3 calculated as an 8-hour TWA.
(2) Short-term exposure limit (STEL). The employer must ensure that no employee is exposed to an airborne concentration of beryllium in excess of 2.0 µg/m 3 as determined over a sampling period of 15 minutes.
(d) Exposure assessment—(1) General. The employer must assess the airborne exposure of each employee who is or may reasonably be expected to be exposed to airborne beryllium in accordance with either the performance option in paragraph (d)(2) or the scheduled monitoring option in paragraph (d)(3) of this standard.
(2) Performance option. The employer must assess the 8-hour TWA exposure and the 15-minute short-term exposure for each employee on the basis of any combination of air monitoring data and objective data sufficient to accurately characterize airborne exposure to beryllium.
(3) Scheduled monitoring option. (i) The employer must perform initial monitoring to assess the 8-hour TWA exposure for each employee on the basis of one or more personal breathing zone air samples that reflect the airborne exposure of employees on each shift, for each job classification, and in each work area.
(ii) The employer must perform initial monitoring to assess the short-term exposure from 15-minute personal breathing zone air samples measured in operations that are likely to produce airborne exposure above the STEL for each work shift, for each job classification, and in each work area.
(iii) Where several employees perform the same tasks on the same shift and in the same work area, the employer may sample a representative fraction of these employees in order to meet the requirements of paragraph (d)(3). In representative sampling, the employer must sample the employee(s) expected to have the highest airborne exposure to beryllium.
(iv) If initial monitoring indicates that airborne exposure is below the action level and at or below the STEL, the employer may discontinue monitoring for those employees whose airborne exposure is represented by such monitoring.
(v) Where the most recent exposure monitoring indicates that airborne exposure is at or above the action level but at or below the TWA PEL, the employer must repeat such monitoring within six months of the most recent monitoring.
(vi) Where the most recent exposure monitoring indicates that airborne exposure is above the TWA PEL, the employer must repeat such monitoring within three months of the most recent 8-hour TWA exposure monitoring.
(vii) Where the most recent (non-initial) exposure monitoring indicates that airborne exposure is below the action level, the employer must repeat such monitoring within six months of the most recent monitoring until two consecutive measurements, taken 7 or more days apart, are below the action level, at which time the employer may discontinue 8-hour TWA exposure monitoring for those employees whose exposure is represented by such monitoring, except as otherwise provided in paragraph (d)(4) of this standard.
(viii) Where the most recent exposure monitoring indicates that airborne exposure is above the STEL, the employer must repeat such monitoring within three months of the most recent short-term exposure monitoring until two consecutive measurements, taken 7 or more days apart, are below the STEL, at which time the employer may discontinue short-term exposure monitoring for those employees whose exposure is represented by such monitoring, except as otherwise provided in paragraph (d)(4) of this standard.
(4) Reassessment of exposure. The employer must reassess airborne exposure whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional airborne exposure at or above the action level or STEL, or when the employer has any reason to believe that new or additional airborne exposure at or above the action level or STEL has occurred.
(5) Methods of sample analysis. The employer must ensure that all air monitoring samples used to satisfy the monitoring requirements of paragraph (d) of this standard are evaluated by a laboratory that can measure beryllium to an accuracy of plus or minus 25 percent within a statistical confidence level of 95 percent for airborne concentrations at or above the action level.
(6) Employee notification of assessment results. (i) Within 15 working days after completing an exposure assessment in accordance with paragraph (d) of this standard, the employer must notify each employee whose airborne exposure is represented by the assessment of the results of that assessment individually in writing or post the results in an appropriate location that is accessible to each of these employees.
(ii) Whenever an exposure assessment indicates that airborne exposure is above the TWA PEL or STEL, the employer must describe in the written notification the corrective action being taken to reduce airborne exposure to or below the exposure limit(s) exceeded where feasible corrective action exists but had not been implemented when the monitoring was conducted.
(7) Observation of monitoring. (i) The employer must provide an opportunity to observe any exposure monitoring required by this standard to each employee whose airborne exposure is measured or represented by the monitoring and each employee's representative(s).
(ii) When observation of monitoring requires entry into an area where the use of personal protective clothing or equipment (which may include respirators) is required, the employer must provide each observer with appropriate personal protective clothing and equipment at no cost to the observer.
(iii) The employer must ensure that each observer follows all other applicable safety and health procedures.
(e) Competent person. Wherever employees are, or can reasonably be expected to be, exposed to airborne beryllium at levels above the TWA PEL or STEL, the employer must designate a competent person to
(1) Make frequent and regular inspections of job sites, materials, and equipment;
(2) Implement the written exposure control plan under paragraph (f) of this standard;
(3) Ensure that all employees use respiratory protection in accordance with paragraph (g) of this standard; and
(4) Ensure that all employees use personal protective clothing and equipment in accordance with paragraph (h) of this standard.
(f) Methods of compliance—(1) Written exposure control plan. (i) The employer must establish, implement, and maintain a written exposure control plan, which must contain:
(A) A list of operations and job titles reasonably expected to involve exposure to beryllium;
(B) A list of engineering controls, work practices, and respiratory protection required by paragraph (f)(2) of this standard;
(C) A list of personal protective clothing and equipment required by paragraph (h) of this standard;
(D) Procedures used to restrict access to work areas when airborne exposures are, or can reasonably be expected to be, above the TWA PEL or STEL, to minimize the number of employees exposed to airborne beryllium and their level of exposure, including exposures generated by other employers or sole proprietors;
(E) Procedures used to ensure the integrity of each containment used to minimize exposures to employees outside the containment; and
(F) Procedures for removing, cleaning, and maintaining personal protective clothing and equipment in accordance with paragraph (h) of this standard.
(ii) The employer must review and evaluate the effectiveness of each written exposure control plan at least annually and update it, as necessary, when:
(A) Any change in production processes, materials, equipment, personnel, work practices, or control methods results, or can reasonably be expected to result, in new or additional airborne exposure to beryllium;
(B) The employer is notified that an employee is eligible for medical removal in accordance with paragraph (l)(1) of this standard, referred for evaluation at a CBD diagnostic center, or shows signs or symptoms associated with exposure to beryllium; or
(C) The employer has any reason to believe that new or additional airborne exposure is occurring or will occur.
(iii) The employer must make a copy of the written exposure control plan accessible to each employee who is, or can reasonably be expected to be, exposed to airborne beryllium in accordance with OSHA's Access to Employee Exposure and Medical Records (Records Access) standard (29 CFR 1910.1020(e)).
(2) Engineering and work practice controls. The employer must use engineering and work practice controls to reduce and maintain employee airborne exposure to beryllium to or below the TWA PEL and STEL, unless the employer can demonstrate that such controls are not feasible. Wherever the employer demonstrates that it is not feasible to reduce airborne exposure to or below the PELs with engineering and work practice controls, the employer must implement and maintain engineering and work practice controls to reduce airborne exposure to the lowest levels feasible and supplement these controls by using respiratory protection in accordance with paragraph (g) of this standard.
(3) Prohibition of rotation. The employer must not rotate employees to different jobs to achieve compliance with the PELs.
(g) Respiratory protection—(1) General. The employer must provide respiratory protection at no cost to the employee and ensure that each employee uses respiratory protection:
(i) During periods necessary to install or implement feasible engineering and work practice controls where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL;
(ii) During operations, including maintenance and repair activities and non-routine tasks, when engineering and work practice controls are not feasible and airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL;
(iii) During operations for which an employer has implemented all feasible engineering and work practice controls when such controls are not sufficient to reduce airborne exposure to or below the TWA PEL or STEL; and
(iv) When an employee who is eligible for medical removal under paragraph (l)(1) chooses to remain in a job with airborne exposure at or above the action level, as permitted by paragraph (l)(2)(ii) of this standard.
(2) Respiratory protection program. Where this standard requires an employer to provide respiratory protection, the selection and use of such respiratory protection must be in accordance with the Respiratory Protection standard (29 CFR 1910.134).
(3) The employer must provide at no cost to the employee a powered air-purifying respirator (PAPR) instead of a negative pressure respirator when:
(i) Respiratory protection is required by this standard;
(ii) An employee entitled to such respiratory protection requests a PAPR; and
(iii) The PAPR provides adequate protection to the employee in accordance with paragraph (g)(2) of this standard.
(h) Personal protective clothing and equipment—(1) Provision and use. Where airborne exposure exceeds, or can reasonably be expected to exceed, the TWA PEL or STEL, the employer must provide at no cost, and ensure that each employee uses, appropriate personal protective clothing and equipment in accordance with the written exposure control plan required under paragraph (f)(1) of this standard and OSHA's Personal Protective and Life Saving Equipment standards for construction (subpart E of this part).
(2) Removal of personal protective clothing and equipment. (i) The employer must ensure that each employee removes all personal protective clothing and equipment required by this standard at the end of the work shift or at the completion of all tasks involving beryllium, whichever comes first.
(ii) The employer must ensure that personal protective clothing and equipment required by this standard is not removed in a manner that disperses beryllium into the air, and is removed as specified in the written exposure control plan required by paragraph (f)(1) of this standard.
(iii) The employer must ensure that no employee with reasonably expected exposure above the TWA PEL or STEL removes personal protective clothing and equipment required by this standard from the workplace unless it has been cleaned in accordance with paragraph (h)(3)(ii) of this standard.
(3) Cleaning and replacement. (i) The employer must ensure that all reusable personal protective clothing and equipment required by this standard is cleaned, laundered, repaired, and replaced as needed to maintain its effectiveness.
(ii) The employer must ensure that beryllium is not removed from personal protective clothing and equipment required by this standard by blowing, shaking, or any other means that disperses beryllium into the air.
(i) [Reserved]
(j) Housekeeping. (1) When cleaning up dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL, the employer must ensure the use of methods that minimize the likelihood and level of airborne exposure.
(2) The employer must not allow dry sweeping or brushing for cleaning up dust resulting from operations that cause, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL unless methods that minimize the likelihood and level of airborne exposure are not safe or effective.
(3) The employer must not allow the use of compressed air for cleaning where the use of compressed air causes, or can reasonably be expected to cause, airborne exposure above the TWA PEL or STEL.
(4) Where employees use dry sweeping, brushing, or compressed air to clean, the employer must provide, and ensure that each employee uses, respiratory protection and personal protective clothing and equipment in accordance with paragraphs (g) and (h) of this standard.
(5) The employer must ensure that cleaning equipment is handled and maintained in a manner that minimizes the likelihood and level of airborne exposure and the re-entrainment of airborne beryllium in the workplace.
(k) Medical surveillance—(1) General. (i) The employer must make medical surveillance required by this paragraph available at no cost to the employee, and at a reasonable time and place, to each employee:
(A) Who is or is reasonably expected to be exposed at or above the action level for more than 30 days per year;
(B) Who shows signs or symptoms of CBD or other beryllium-related health effects; or
(C) Whose most recent written medical opinion required by paragraph (k)(6) or (k)(7) recommends periodic medical surveillance.
(ii) The employer must ensure that all medical examinations and procedures required by this standard are performed by, or under the direction of, a licensed physician.
(2) Frequency. The employer must provide a medical examination:
(i) Within 30 days after determining that:
(A) An employee meets the criteria of paragraph (k)(1)(i)(A), unless the employee has received a medical examination, provided in accordance with this standard, within the last two years; or
(B) An employee meets the criteria of paragraph (k)(1)(i)(B) of this standard.
(ii) At least every two years thereafter for each employee who continues to meet the criteria of paragraph (k)(1)(i)(A), (B), or (C) of this standard.
(iii) At the termination of employment for each employee who meets any of the criteria of paragraph (k)(1)(i) of this standard at the time the employee's employment terminates, unless an examination has been provided in accordance with this standard during the six months prior to the date of termination.
(3) Contents of examination. (i) The employer must ensure that the PLHCP conducting the examination advises the employee of the risks and benefits of participating in the medical surveillance program and the employee's right to opt out of any or all parts of the medical examination.
(ii) The employer must ensure that the employee is offered a medical examination that includes:
(A) A medical and work history, with emphasis on past and present exposure to beryllium, smoking history, and any history of respiratory system dysfunction;
(B) A physical examination with emphasis on the respiratory system;
(C) A physical examination for skin rashes;
(D) Pulmonary function tests, performed in accordance with the guidelines established by the American Thoracic Society including forced vital capacity (FVC) and forced expiratory volume in one second (FEV1);
(E) A standardized BeLPT or equivalent test, upon the first examination and at least every two years thereafter, unless the employee is confirmed positive. If the results of the BeLPT are other than normal, a follow-up BeLPT must be offered within 30 days, unless the employee has been confirmed positive. Samples must be analyzed in a laboratory certified under the College of American Pathologists/Clinical Laboratory Improvement Amendments (CLIA) guidelines to perform the BeLPT.
(F) A low dose computed tomography (LDCT) scan, when recommended by the PLHCP after considering the employee's history of exposure to beryllium along with other risk factors, such as smoking history, family medical history, sex, age, and presence of existing lung disease; and
(G) Any other test deemed appropriate by the PLHCP.
(4) Information provided to the PLHCP. The employer must ensure that the examining PLHCP (and the agreed-upon CBD diagnostic center, if an evaluation is required under paragraph (k)(7) of this standard) has a copy of this standard and must provide the following information, if known:
(i) A description of the employee's former and current duties that relate to the employee's exposure to beryllium;
(ii) The employee's former and current levels of airborne exposure;
(iii) A description of any personal protective clothing and equipment, including respirators, used by the employee, including when and for how long the employee has used that personal protective clothing and equipment; and
(iv) Information from records of employment-related medical examinations previously provided to the employee, currently within the control of the employer, after obtaining written consent from the employee.
(5) Licensed physician's written medical report for the employee. The employer must ensure that the employee receives a written medical report from the licensed physician within 45 days of the examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard) and that the PLHCP explains the results of the examination to the employee. The written medical report must contain:
(i) A statement indicating the results of the medical examination, including the licensed physician's opinion as to whether the employee has:
(A) Any detected medical condition, such as CBD or beryllium sensitization (i.e., the employee is confirmed positive, as defined in paragraph (b) of this standard), that may place the employee at increased risk from further airborne exposure, and
(B) Any medical conditions related to airborne exposure that require further evaluation or treatment.
(ii) Any recommendations on:
(A) The employee's use of respirators, protective clothing, or equipment; or
(B) Limitations on the employee's airborne exposure to beryllium.
(iii) If the employee is confirmed positive or diagnosed with CBD or if the licensed physician otherwise deems it appropriate, the written report must also contain a referral for an evaluation at a CBD diagnostic center.
(iv) If the employee is confirmed positive or diagnosed with CBD the written report must also contain a recommendation for continued periodic medical surveillance.
(v) If the employee is confirmed positive or diagnosed with CBD the written report must also contain a recommendation for medical removal from airborne exposure to beryllium, as described in paragraph (l).
(6) Licensed physician's written medical opinion for the employer. (i) The employer must obtain a written medical opinion from the licensed physician within 45 days of the medical examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard). The written medical opinion must contain only the following:
(A) The date of the examination;
(B) A statement that the examination has met the requirements of this standard;
(C) Any recommended limitations on the employee's use of respirators, protective clothing, or equipment; and
(D) A statement that the PLHCP has explained the results of the medical examination to the employee, including any tests conducted, any medical conditions related to airborne exposure that require further evaluation or treatment, and any special provisions for use of personal protective clothing or equipment;
(ii) If the employee provides written authorization, the written opinion must also contain any recommended limitations on the employee's airborne exposure to beryllium.
(iii) If the employee is confirmed positive or diagnosed with CBD or if the licensed physician otherwise deems it appropriate, and the employee provides written authorization, the written opinion must also contain a referral for an evaluation at a CBD diagnostic center.
(iv) If the employee is confirmed positive or diagnosed with CBD and the employee provides written authorization, the written opinion must also contain a recommendation for continued periodic medical surveillance.
(v) If the employee is confirmed positive or diagnosed with CBD and the employee provides written authorization, the written opinion must also contain a recommendation for medical removal from airborne exposure to beryllium, as described in paragraph (l).
(vi) The employer must ensure that each employee receives a copy of the written medical opinion described in paragraph (k)(6) of this standard within 45 days of any medical examination (including any follow-up BeLPT required under paragraph (k)(3)(ii)(E) of this standard) performed for that employee.
(7) CBD diagnostic center. (i) The employer must provide an evaluation at no cost to the employee at a CBD diagnostic center that is mutually agreed upon by the employer and the employee. The evaluation at the CBD diagnostic center must be scheduled within 30 days, and must occur within a reasonable time, of:
(A) The employer's receipt of a physician's written medical opinion to the employer that recommends referral to a CBD diagnostic center; or
(B) The employee presenting to the employer a physician's written medical report indicating that the employee has been confirmed positive or diagnosed with CBD, or recommending referral to a CBD diagnostic center.
(ii) The employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee.
(iii) The employer must ensure that the employee receives a written medical report from the CBD diagnostic center that contains all the information required in paragraphs (k)(5)(i), (ii), (iv), and (v) of this standard and that the PLHCP explains the results of the examination to the employee within 30 days of the examination.
(iv) The employer must obtain a written medical opinion from the CBD diagnostic center within 30 days of the medical examination. The written medical opinion must contain only the information in paragraph (k)(6)(i) of this standard, as applicable, unless the employee provides written authorization to release additional information. If the employee provides written authorization, the written opinion must also contain the information from paragraphs (k)(6)(ii), (iv), and (v), if applicable.
(v) The employer must ensure that each employee receives a copy of the written medical opinion from the CBD diagnostic center described in paragraph (k)(7) of this standard within 30 days of any medical examination performed for that employee.
(vi) After an employee has received the initial clinical evaluation at a CBD diagnostic center described in paragraph (k)(7)(i) of this standard, the employee may choose to have any subsequent medical examinations for which the employee is eligible under paragraph (k) of this standard performed at a CBD diagnostic center mutually agreed upon by the employer and the employee, and the employer must provide such examinations at no cost to the employee.
(l) Medical removal. (1) An employee is eligible for medical removal, if the employee works in a job with airborne exposure at or above the action level and either:
(i) The employee provides the employer with:
(A) A written medical report indicating a confirmed positive finding or CBD diagnosis; or
(B) A written medical report recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(5)(v) or (k)(7)(ii) of this standard; or
(ii) The employer receives a written medical opinion recommending removal from airborne exposure to beryllium in accordance with paragraph (k)(6)(v) or (k)(7)(iii) of this standard.
(2) If an employee is eligible for medical removal, the employer must provide the employee with the employee's choice of:
(i) Removal as described in paragraph (l)(3) of this standard; or
(ii) Remaining in a job with airborne exposure at or above the action level, provided that the employer provides, and ensures that the employee uses, respiratory protection that complies with paragraph (g) of this standard whenever airborne exposures are at or above the action level.
(3) If the employee chooses removal:
(i) If a comparable job is available where airborne exposures to beryllium are below the action level, and the employee is qualified for that job or can be trained within one month, the employer must remove the employee to that job. The employer must maintain for six months from the time of removal the employee's base earnings, seniority, and other rights and benefits that existed at the time of removal.
(ii) If comparable work is not available, the employer must maintain the employee's base earnings, seniority, and other rights and benefits that existed at the time of removal for six months or until such time that comparable work described in paragraph (l)(3)(i) becomes available, whichever comes first.
(4) The employer's obligation to provide medical removal protection benefits to a removed employee shall be reduced to the extent that the employee receives compensation for earnings lost during the period of removal from a publicly or employer-funded compensation program, or receives income from another employer made possible by virtue of the employee's removal.
(m) Communication of hazards—(1) General. (i) Chemical manufacturers, importers, distributors, and employers must comply with all requirements of the HCS (29 CFR 1910.1200) for beryllium.
(ii) Employers must include beryllium in the hazard communication program established to comply with the HCS. Employers must ensure that each employee has access to labels on containers of beryllium and to safety data sheets, and is trained in accordance with the requirements of the HCS (29 CFR 1910.1200) and paragraph (m)(4) of this standard.
(2) Employee information and training. (i) For each employee who has, or can reasonably be expected to have, airborne exposure to beryllium:
(A) The employer must provide information and training in accordance with the HCS (29 CFR 1910.1200(h));
(B) The employer must provide initial training to each employee by the time of initial assignment; and
(C) The employer must repeat the training required under this standard annually for each employee.
(ii) The employer must ensure that each employee who is, or can reasonably be expected to be, exposed to airborne beryllium can demonstrate knowledge and understanding of the following:
(A) The health hazards associated with exposure to beryllium, including the signs and symptoms of CBD;
(B) The written exposure control plan, with emphasis on the specific nature of operations that could result in airborne exposure, especially airborne exposure above the TWA PEL or STEL;
(C) The purpose, proper selection, fitting, proper use, and limitations of personal protective clothing and equipment, including respirators;
(D) Measures employees can take to protect themselves from exposure to beryllium;
(E) The purpose and a description of the medical surveillance program required by paragraph (k) of this standard including risks and benefits of each test to be offered;
(F) The purpose and a description of the medical removal protection provided under paragraph (l) of this standard;
(G) The contents of the standard; and
(H) The employee's right of access to records under the Records Access standard (29 CFR 1910.1020).
(iii) When a workplace change (such as modification of equipment, tasks, or procedures) results in new or increased airborne exposure that exceeds, or can reasonably be expected to exceed, either the TWA PEL or the STEL, the employer must provide additional training to those employees affected by the change in airborne exposure.
(iv) The employer must make a copy of this standard and its appendices readily available at no cost to each employee and designated employee representative(s).
(n) Recordkeeping—(1) Air monitoring data. (i) The employer must make and maintain a record of all exposure measurements taken to assess airborne exposure as prescribed in paragraph (d) of this standard.
(ii) This record must include at least the following information:
(A) The date of measurement for each sample taken;
(B) The task that is being monitored;
(C) The sampling and analytical methods used and evidence of their accuracy;
(D) The number, duration, and results of samples taken;
(E) The type of personal protective clothing and equipment, including respirators, worn by monitored employees at the time of monitoring; and
(F) The name and job classification of each employee represented by the monitoring, indicating which employees were actually monitored.
(iii) The employer must ensure that exposure records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).
(2) Objective data. (i) Where an employer uses objective data to satisfy the exposure assessment requirements under paragraph (d)(2) of this standard, the employer must make and maintain a record of the objective data relied upon.
(ii) This record must include at least the following information:
(A) The data relied upon;
(B) The beryllium-containing material in question;
(C) The source of the objective data;
(D) A description of the process, task, or activity on which the objective data were based; and
(E) Other data relevant to the process, task, activity, material, or airborne exposure on which the objective data were based.
(iii) The employer must ensure that objective data are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).
(3) Medical surveillance. (i) The employer must make and maintain a record for each employee covered by medical surveillance under paragraph (k) of this standard.
(ii) The record must include the following information about each employee:
(A) Name and job classification;
(B) A copy of all licensed physicians' written medical opinions for each employee; and
(C) A copy of the information provided to the PLHCP as required by paragraph (k)(4) of this standard.
(iii) The employer must ensure that medical records are maintained and made available in accordance with the Records Access standard (29 CFR 1910.1020).
(4) Training. (i) At the completion of any training required by this standard, the employer must prepare a record that indicates the name and job classification of each employee trained, the date the training was completed, and the topic of the training.
(ii) This record must be maintained for three years after the completion of training.
(5) Access to records. Upon request, the employer must make all records maintained as a requirement of this standard available for examination and copying to the Assistant Secretary, the Director, each employee, and each employee's designated representative(s) in accordance the Records Access standard (29 CFR 1910.1020).
(6) Transfer of records. The employer must comply with the requirements involving transfer of records set forth in the Records Access standard (29 CFR 1910.1020).
(o) Dates—(1) Effective date. This standard shall become effective March 10, 2017.
(2) Compliance dates. (i) All obligations contained in paragraph (c) of this standard commence and become enforceable on March 12, 2018; and
(ii) All other obligations of this standard commence and become enforceable on September 30, 2020.
[82 FR 2751, Jan. 9, 2017, as amended at 84 FR 51400, Sept. 30, 2019; 85 FR 53997, Aug. 31, 2020; 86 FR 11120, Feb. 24, 2021]
§ 1926.1126 Chromium (VI).
(a) Scope. (1) This standard applies to occupational exposures to chromium (VI) in all forms and compounds in construction, except:
(2) Exposures that occur in the application of pesticides regulated by the Environmental Protection Agency or another Federal government agency (e.g., the treatment of wood with preservatives);
(3) Exposures to portland cement; or
(4) Where the employer has objective data demonstrating that a material containing chromium or a specific process, operation, or activity involving chromium cannot release dusts, fumes, or mists of chromium (VI) in concentrations at or above 0.5 µgm/m 3 as an 8-hour time-weighted average (TWA) under any expected conditions of use.
(b) Definitions. For the purposes of this section the following definitions apply:
Action level means a concentration of airborne chromium (VI) of 2.5 micrograms per cubic meter of air (2.5 µgm/m 3) calculated as an 8-hour time-weighted average (TWA).
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.
Chromium (VI) [hexavalent chromium or Cr(VI)] means chromium with a valence of positive six, in any form and in any compound.
Director means the Director of the National Institute for Occupational Safety and Health (NIOSH), U.S. Department of Health and Human Services, or designee.
Emergency means any occurrence that results, or is likely to result, in an uncontrolled release of chromium (VI). If an incidental release of chromium (VI) can be controlled at the time of release by employees in the immediate release area, or by maintenance personnel, it is not an emergency.
Employee exposure means the exposure to airborne chromium (VI) that would occur if the employee were not using a respirator.
High-efficiency particulate air [HEPA] filter means a filter that is at least 99.97 percent efficient in removing mono-dispersed particles of 0.3 micrometers in diameter or larger.
Historical monitoring data means data from chromium (VI) monitoring conducted prior to May 30, 2006, obtained during work operations conducted under workplace conditions closely resembling the processes, types of material, control methods, work practices, and environmental conditions in the employer's current operations.
Objective data means information such as air monitoring data from industry-wide surveys or calculations based on the composition or chemical and physical properties of a substance demonstrating the employee exposure to chromium (VI) associated with a particular product or material or a specific process, operation, or activity. The data must reflect workplace conditions closely resembling the processes, types of material, control methods, work practices, and environmental conditions in the employer's current operations.
Physician or other licensed health care professional [PLHCP] is an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently provide or be delegated the responsibility to provide some or all of the particular health care services required by paragraph (i) of this section.
This section means this § 1926.1126 chromium (VI) standard.
(c) Permissible exposure limit (PEL). The employer shall ensure that no employee is exposed to an airborne concentration of chromium (VI) in excess of 5 micrograms per cubic meter of air (5 µgm/m 3), calculated as an 8-hour time-weighted average (TWA).
(d) Exposure determination—(1) General. Each employer who has a workplace or work operation covered by this section shall determine the 8-hour TWA exposure for each employee exposed to chromium (VI). This determination shall be made in accordance with either paragraph (d)(2) or paragraph (d)(3) of this section.
(2) Scheduled monitoring option. (i) The employer shall perform initial monitoring to determine the 8-hour TWA exposure for each employee on the basis of a sufficient number of personal breathing zone air samples to accurately characterize full shift exposure on each shift, for each job classification, in each work area. Where an employer does representative sampling instead of sampling all employees in order to meet this requirement, the employer shall sample the employee(s) expected to have the highest chromium (VI) exposures.
(ii) If initial monitoring indicates that employee exposures are below the action level, the employer may discontinue monitoring for those employees whose exposures are represented by such monitoring.
(iii) If monitoring reveals employee exposures to be at or above the action level, the employer shall perform periodic monitoring at least every six months.
(iv) If monitoring reveals employee exposures to be above the PEL, the employer shall perform periodic monitoring at least every three months.
(v) If periodic monitoring indicates that employee exposures are below the action level, and the result is confirmed by the result of another monitoring taken at least seven days later, the employer may discontinue the monitoring for those employees whose exposures are represented by such monitoring.
(vi) The employer shall perform additional monitoring when there has been any change in the production process, raw materials, equipment, personnel, work practices, or control methods that may result in new or additional exposures to chromium (VI), or when the employer has any reason to believe that new or additional exposures have occurred.
(3) Performance-oriented option. The employer shall determine the 8-hour TWA exposure for each employee on the basis of any combination of air monitoring data, historical monitoring data, or objective data sufficient to accurately characterize employee exposure to chromium (VI).
(4) Employee notification of determination results. (i) Within 5 work days after making an exposure determination in accordance with paragraph (d)(2) or paragraph (d)(3) of this section, the employer shall individually notify each affected employee in writing of the results of that determination or post the results in an appropriate location accessible to all affected employees.
(ii) Whenever the exposure determination indicates that employee exposure is above the PEL, the employer shall describe in the written notification the corrective action being taken to reduce employee exposure to or below the PEL.
(5) Accuracy of measurement. Where air monitoring is performed to comply with the requirements of this section, the employer shall use a method of monitoring and analysis that can measure chromium (VI) to within an accuracy of plus or minus 25 percent (±25%) and can produce accurate measurements to within a statistical confidence level of 95 percent for airborne concentrations at or above the action level.
(6) Observation of monitoring. (i) Where air monitoring is performed to comply with the requirements of this section, the employer shall provide affected employees or their designated representatives an opportunity to observe any monitoring of employee exposure to chromium (VI).
(ii) When observation of monitoring requires entry into an area where the use of protective clothing or equipment is required, the employer shall provide the observer with clothing and equipment and shall assure that the observer uses such clothing and equipment and complies with all other applicable safety and health procedures.
(e) Methods of compliance—(1) Engineering and work practice controls. (i) Except as permitted in paragraph (e)(1)(ii) of this section, the employer shall use engineering and work practice controls to reduce and maintain employee exposure to chromium (VI) to or below the PEL unless the employer can demonstrate that such controls are not feasible. Wherever feasible engineering and work practice controls are not sufficient to reduce employee exposure to or below the PEL, the employer shall use them to reduce employee exposure to the lowest levels achievable, and shall supplement them by the use of respiratory protection that complies with the requirements of paragraph (f) of this section.
(ii) Where the employer can demonstrate that a process or task does not result in any employee exposure to chromium (VI) above the PEL for 30 or more days per year (12 consecutive months), the requirement to implement engineering and work practice controls to achieve the PEL does not apply to that process or task.
(2) Prohibition of rotation. The employer shall not rotate employees to different jobs to achieve compliance with the PEL.
(f) Respiratory protection—(1) General. Where respiratory protection is required by this section, the employer must provide each employee an appropriate respirator that complies with the requirements of this paragraph. Respiratory protection is required during:
(i) Periods necessary to install or implement feasible engineering and work practice controls;
(ii) Work operations, such as maintenance and repair activities, for which engineering and work practice controls are not feasible;
(iii) Work operations for which an employer has implemented all feasible engineering and work practice controls and such controls are not sufficient to reduce exposures to or below the PEL;
(iv) Work operations where employees are exposed above the PEL for fewer than 30 days per year, and the employer has elected not to implement engineering and work practice controls to achieve the PEL; or
(v) Emergencies.
(2) Respiratory protection program. Where respirator use is required by this section, the employer shall institute a respiratory protection program in accordance with § 1910.134, which covers each employee required to use a respirator.
(g) Protective work clothing and equipment—(1) Provision and use. Where a hazard is present or is likely to be present from skin or eye contact with chromium (VI), the employer shall provide appropriate personal protective clothing and equipment at no cost to employees, and shall ensure that employees use such clothing and equipment.
(2) Removal and storage. (i) The employer shall ensure that employees remove all protective clothing and equipment contaminated with chromium (VI) at the end of the work shift or at the completion of their tasks involving chromium (VI) exposure, whichever comes first.
(ii) The employer shall ensure that no employee removes chromium (VI)-contaminated protective clothing or equipment from the workplace, except for those employees whose job it is to launder, clean, maintain, or dispose of such clothing or equipment.
(iii) When contaminated protective clothing or equipment is removed for laundering, cleaning, maintenance, or disposal, the employer shall ensure that it is stored and transported in sealed, impermeable bags or other closed, impermeable containers.
(iv) The employer shall ensure that bags or containers of contaminated protective clothing or equipment that are removed from change rooms for laundering, cleaning, maintenance, or disposal shall be labeled in accordance with the requirements of the Hazard Communication Standard, § 1910.1200.
(3) Cleaning and replacement. (i) The employer shall clean, launder, repair and replace all protective clothing and equipment required by this section as needed to maintain its effectiveness.
(ii) The employer shall prohibit the removal of chromium (VI) from protective clothing and equipment by blowing, shaking, or any other means that disperses chromium (VI) into the air or onto an employee's body.
(iii) The employer shall inform any person who launders or cleans protective clothing or equipment contaminated with chromium (VI) of the potentially harmful effects of exposure to chromium (VI) and that the clothing and equipment should be laundered or cleaned in a manner that minimizes skin or eye contact with chromium (VI) and effectively prevents the release of airborne chromium (VI) in excess of the PEL.
(h) Hygiene areas and practices—(1) General. Where protective clothing and equipment is required, the employer shall provide change rooms in conformance with 29 CFR 1926.51 Where skin contact with chromium (VI) occurs, the employer shall provide washing facilities in conformance with 29 CFR 1926.51. Eating and drinking areas provided by the employer shall also be in conformance with § 1926.51.
(2) Change rooms. The employer shall assure that change rooms are equipped with separate storage facilities for protective clothing and equipment and for street clothes, and that these facilities prevent cross-contamination.
(3) Washing facilities. (i) The employer shall provide readily accessible washing facilities capable of removing chromium (VI) from the skin, and shall ensure that affected employees use these facilities when necessary.
(ii) The employer shall ensure that employees who have skin contact with chromium (VI) wash their hands and faces at the end of the work shift and prior to eating, drinking, smoking, chewing tobacco or gum, applying cosmetics, or using the toilet.
(4) Eating and drinking areas. (i) Whenever the employer allows employees to consume food or beverages at a worksite where chromium (VI) is present, the employer shall ensure that eating and drinking areas and surfaces are maintained as free as practicable of chromium (VI).
(ii) The employer shall ensure that employees do not enter eating and drinking areas with protective work clothing or equipment unless surface chromium (VI) has been removed from the clothing and equipment by methods that do not disperse chromium (VI) into the air or onto an employee's body.
(5) Prohibited activities. The employer shall ensure that employees do not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in areas where skin or eye contact with chromium (VI) occurs; or carry the products associated with these activities, or store such products in these areas.
(i) Medical surveillance—(1) General. (i) The employer shall make medical surveillance available at no cost to the employee, and at a reasonable time and place, for all employees:
(A) Who are or may be occupationally exposed to chromium (VI) at or above the action level for 30 or more days a year;
(B) Experiencing signs or symptoms of the adverse health effects associated with chromium (VI) exposure; or
(C) Exposed in an emergency.
(ii) The employer shall assure that all medical examinations and procedures required by this section are performed by or under the supervision of a PLHCP.
(2) Frequency. The employer shall provide a medical examination:
(i) Within 30 days after initial assignment, unless the employee has received a chromium (VI) related medical examination that meets the requirements of this paragraph within the last twelve months;
(ii) Annually;
(iii) Within 30 days after a PLHCP's written medical opinion recommends an additional examination;
(iv) Whenever an employee shows signs or symptoms of the adverse health effects associated with chromium (VI) exposure;
(v) Within 30 days after exposure during an emergency which results in an uncontrolled release of chromium (VI); or
(vi) At the termination of employment, unless the last examination that satisfied the requirements of paragraph (i) of this section was less than six months prior to the date of termination.
(3) Contents of examination. A medical examination consists of:
(i) A medical and work history, with emphasis on: past, present, and anticipated future exposure to chromium (VI); any history of respiratory system dysfunction; any history of asthma, dermatitis, skin ulceration, or nasal septum perforation; and smoking status and history;
(ii) A physical examination of the skin and respiratory tract; and
(iii) Any additional tests deemed appropriate by the examining PLHCP.
(4) Information provided to the PLHCP. The employer shall ensure that the examining PLHCP has a copy of this standard, and shall provide the following information:
(i) A description of the affected employee's former, current, and anticipated duties as they relate to the employee's occupational exposure to chromium (VI);
(ii) The employee's former, current, and anticipated levels of occupational exposure to chromium (VI);
(iii) A description of any personal protective equipment used or to be used by the employee, including when and for how long the employee has used that equipment; and
(iv) Information from records of employment-related medical examinations previously provided to the affected employee, currently within the control of the employer.
(5) PLHCP's written medical opinion. (i) The employer shall obtain a written medical opinion from the PLHCP, within 30 days for each medical examination performed on each employee, which contains:
(A) The PLHCP's opinion as to whether the employee has any detected medical condition(s) that would place the employee at increased risk of material impairment to health from further exposure to chromium (VI);
(B) Any recommended limitations upon the employee's exposure to chromium (VI) or upon the use of personal protective equipment such as respirators;
(C) A statement that the PLHCP has explained to the employee the results of the medical examination, including any medical conditions related to chromium (VI) exposure that require further evaluation or treatment, and any special provisions for use of protective clothing or equipment.
(ii) The PLHCP shall not reveal to the employer specific findings or diagnoses unrelated to occupational exposure to chromium (VI).
(iii) The employer shall provide a copy of the PLHCP's written medical opinion to the examined employee within two weeks after receiving it.
(j) Communication of chromium (VI) hazards to employees—(1) Hazard communication. The employer shall include chromium (VI) in the program established to comply with the Hazard Communication Standard (HCS) (§ 1910.1200). The employer shall ensure that each employee has access to labels on containers of chromium and safety data sheets, and is trained in accordance with the provisions of § 1910.1200 and paragraph (j)(2) of this section. The employer shall provide information on at least the following hazards: Cancer; eye irritation; and skin sensitization.
(2) Employee information and training. (i) The employer shall ensure that each employee can demonstrate knowledge of at least the following:
(A) The contents of this section; and
(B) The purpose and a description of the medical surveillance program required by paragraph (i) of this section.
(ii) The employer shall make a copy of this section readily available without cost to all affected employees.
(k) Recordkeeping—(1) Air monitoring data. (i) The employer shall maintain an accurate record of all air monitoring conducted to comply with the requirements of this section.
(ii) This record shall include at least the following information:
(A) The date of measurement for each sample taken;
(B) The operation involving exposure to chromium (VI) that is being monitored;
(C) Sampling and analytical methods used and evidence of their accuracy;
(D) Number, duration, and the results of samples taken;
(E) Type of personal protective equipment, such as respirators worn; and
(F) Name and job classification of all employees represented by the monitoring, indicating which employees were actually monitored.
(iii) The employer shall ensure that exposure records are maintained and made available in accordance with 29 CFR 1910.1020.
(2) Historical monitoring data. (i) Where the employer has relied on historical monitoring data to determine exposure to chromium (VI), the employer shall establish and maintain an accurate record of the historical monitoring data relied upon.
(ii) The record shall include information that reflects the following conditions:
(A) The data were collected using methods that meet the accuracy requirements of paragraph (d)(5) of this section;
(B) The processes and work practices that were in use when the historical monitoring data were obtained are essentially the same as those to be used during the job for which exposure is being determined;
(C) The characteristics of the chromium (VI) containing material being handled when the historical monitoring data were obtained are the same as those on the job for which exposure is being determined;
(D) Environmental conditions prevailing when the historical monitoring data were obtained are the same as those on the job for which exposure is being determined; and
(E) Other data relevant to the operations, materials, processing, or employee exposures covered by the exception.
(iii) The employer shall ensure that historical exposure records are maintained and made available in accordance with 29 CFR 1910.1020.
(3) Objective data. (i) The employer shall maintain an accurate record of all objective data relied upon to comply with the requirements of this section.
(ii) This record shall include at least the following information:
(A) The chromium containing material in question;
(B) The source of the objective data;
(C) The testing protocol and results of testing, or analysis of the material for the release of chromium (VI);
(D) A description of the process, operation, or activity and how the data support the determination; and
(E) Other data relevant to the process, operation, activity, material, or employee exposures.
(iii) The employer shall ensure that objective data are maintained and made available in accordance with 29 CFR 1910.1020.
(4) Medical surveillance. (i) The employer shall establish and maintain an accurate record for each employee covered by medical surveillance under paragraph (i) of this section.
(ii) The record shall include the following information about the employee:
(A) Name;
(B) A copy of the PLHCP's written opinions;
(C) A copy of the information provided to the PLHCP as required by paragraph (i)(4) of this section.
(iii) The employer shall ensure that medical records are maintained and made available in accordance with 29 CFR 1910.1020.
(l) Dates. (1) For employers with 20 or more employees, all obligations of this section, except engineering controls required by paragraph (e) of this section, commence November 27, 2006.
(2) For employers with 19 or fewer employees, all obligations of this section, except engineering controls required by paragraph (e) of this section, commence May 30, 2007.
(3) For all employers, engineering controls required by paragraph (e) of this section shall be implemented no later than May 31, 2010.
[71 FR 10382, Feb. 28, 2006, as amended at 73 FR 75589, Dec. 12, 2008; 75 FR 12686, Mar. 17, 2010; 77 FR 17895, Mar. 26, 2012]
§ 1926.1127 Cadmium.
(a) Scope. This standard applies to all occupational exposures to cadmium and cadmium compounds, in all forms, in all construction work where an employee may potentially be exposed to cadmium. Construction work is defined as work involving construction, alteration and/or repair, including but not limited to the following:
(1) Wrecking, demolition or salvage of structures where cadmium or materials containing cadmium are present;
(2) Use of cadmium containing-paints and cutting, brazing, burning, grinding or welding on surfaces that were painted with cadmium-containing paints;
(3) Construction, alteration, repair, maintenance, or renovation of structures, substrates, or portions thereof, that contain cadmium, or materials containing cadmium;
(4) Cadmium welding; cutting and welding cadmium-plated steel; brazing or welding with cadmium alloys;
(5) Installation of products containing cadmium;
(6) Electrical grounding with cadmium welding, or electrical work using cadmium-coated conduit;
(7) Maintaining or retrofitting cadmium-coated equipment;
(8) Cadmium contamination/emergency cleanup; and
(9) Transportation, disposal, storage, or containment of cadmium or materials containing cadmium on the site or location at which construction activities are performed.
(b) Definitions.
Action level (AL) is defined as an airborne concentration of cadmium of 2.5 micrograms per cubic meter of air (2.5 µg/m 3), calculated as an 8-hour time-weighted average (TWA).
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.
Authorized person means any person authorized by the employer and required by work duties to be present in regulated areas or any person authorized by the OSH Act or regulations issued under it to be in regulated areas.
Competent person, in accordance with 29 CFR 1926.32(f), means a person designated by the employer to act on the employer's behalf who is capable of identifying existing and potential cadmium hazards in the workplace and the proper methods to control them in order to protect workers, and has the authority necessary to take prompt corrective measures to eliminate or control such hazards. The duties of a competent person include at least the following: Determining prior to the performance of work whether cadmium is present in the workplace; establishing, where necessary, regulated areas and assuring that access to and from those areas is limited to authorized employees; assuring the adequacy of any employee exposure monitoring required by this standard; assuring that all employees exposed to air cadmium levels above the PEL wear appropriate personal protective equipment and are trained in the use of appropriate methods of exposure control; assuring that proper hygiene facilities are provided and that workers are trained to use those facilities; and assuring that the engineering controls required by this standard are implemented, maintained in proper operating condition, and functioning properly.
Director means the Director of the National Institute for Occupational Safety and Health (NIOSH), U.S. Department of Health and Human Services, or designee.
Employee exposure and similar language referring to the air cadmium level to which an employee is exposed means the exposure to airborne cadmium that would occur if the employee were not using respiratory protective equipment.
Final medical determination is the written medical opinion of the employee's health status by the examining physician under paragraphs (l)(3)-(12) of this section or, if multiple physician review under paragraph (l)(13) of this section or the alternative physician determination under paragraph (l)(14) of this section is invoked, it is the final, written medical finding, recommendation or determination that emerges from that process.
High-efficiency Particulate Air [HEPA] filter means a filter capable of trapping and retaining at least 99.97 percent of mono-dispersed particles of 0.3 micrometers in diameter.
Regulated area means an area demarcated by the employer where an employee's exposure to airborne concentrations of cadmium exceeds, or can reasonably be expected to exceed the permissible exposure limit (PEL).
This section means this cadmium standard.
(c) Permissible Exposure Limit (PEL). The employer shall assure that no employee is exposed to an airborne concentration of cadmium in excess of five micrograms per cubic meter of air (5 µg/m 3), calculated as an eight-hour time-weighted average exposure (TWA).
(d) Exposure Monitoring—(1) General. (i) Prior to the performance of any construction work where employees may be potentially exposed to cadmium, the employer shall establish the applicability of this standard by determining whether cadmium is present in the workplace and whether there is the possibility that employee exposures will be at or above the action level. The employer shall designate a competent person who shall make this determination. Investigation and material testing techniques shall be used, as appropriate, in the determination. Investigation shall include a review of relevant plans, past reports, Safety Data Sheets (SDS), and other available records, and consultations with the property owner and discussions with appropriate individuals and agencies.
(ii) Where cadmium has been determined to be present in the workplace, and it has been determined that there is a possibility the employee's exposure will be at or above the action level, the competent person shall identify employees potentially exposed to cadmium at or above the action level.
(iii) Determinations of employee exposure shall be made from breathing-zone air samples that reflect the monitored employee's regular, daily 8-hour TWA exposure to cadmium.
(iv) Eight-hour TWA exposures shall be determined for each employee on the basis of one or more personal breathing-zone air samples reflecting full shift exposure on each shift, for each job classification, in each work area. Where several employees perform the same job tasks, in the same job classification, on the same shift, in the same work area, and the length, duration, and level of cadmium exposures are similar, an employer may sample a representative fraction of the employees instead of all employees in order to meet this requirement. In representative sampling, the employer shall sample the employee(s) expected to have the highest cadmium exposures.
(2) Specific. (i) Initial monitoring. Except as provided for in paragraph (d)(2)(iii) of this section, where a determination conducted under paragraph (d)(1)(i) of this section shows the possibility of employee exposure to cadmium at or above the action level, the employer shall conduct exposure monitoring as soon as practicable that is representative of the exposure for each employee in the workplace who is or may be exposed to cadmium at or above the action level.
(ii) In addition, if the employee periodically performs tasks that may expose the employee to a higher concentration of airborne cadmium, the employee shall be monitored while performing those tasks.
(iii) Where the employer has objective data, as defined in paragraph (n)(2) of this section, demonstrating that employee exposure to cadmium will not exceed airborne concentrations at or above the action level under the expected conditions of processing, use, or handling, the employer may rely upon such data instead of implementing initial monitoring.
(iv) Where a determination conducted under paragraphs (d)(1) or (d)(2) of this section is made that a potentially exposed employee is not exposed to airborne concentrations of cadmium at or above the action level, the employer shall make a written record of such determination. The record shall include at least the monitoring data developed under paragraphs (d)(2)(i)-(iii) of this section, where applicable, and shall also include the date of determination, and the name of each employee.
(3) Monitoring frequency (periodic monitoring). (i) If the initial monitoring or periodic monitoring reveals employee exposures to be at or above the action level, the employer shall monitor at a frequency and pattern needed to assure that the monitoring results reflect with reasonable accuracy the employee's typical exposure levels, given the variability in the tasks performed, work practices, and environmental conditions on the job site, and to assure the adequacy of respiratory selection and the effectiveness of engineering and work practice controls.
(ii) If the initial monitoring or the periodic monitoring indicates that employee exposures are below the action level and that result is confirmed by the results of another monitoring taken at least seven days later, the employer may discontinue the monitoring for those employees whose exposures are represented by such monitoring.
(4) Additional monitoring. The employer also shall institute the exposure monitoring required under paragraphs (d)(2)(i) and (d)(3) of this section whenever there has been a change in the raw materials, equipment, personnel, work practices, or finished products that may result in additional employees being exposed to cadmium at or above the action level or in employees already exposed to cadmium at or above the action level being exposed above the PEL, or whenever the employer or competent person has any reason to suspect that any other change might result in such further exposure.
(5) Employee notification of monitoring results. (i) The employer must, as soon as possible but no later than 5 working days after the receipt of the results of any monitoring performed under this section, notify each affected employee of these results either individually in writing or by posting the results in an appropriate location that is accessible to employees.
(ii) Wherever monitoring results indicate that employee exposure exceeds the PEL, the employer shall include in the written notice a statement that the PEL has been exceeded and a description of the corrective action being taken by the employer to reduce employee exposure to or below the PEL.
(6) Accuracy of measurement. The employer shall use a method of monitoring and analysis that has an accuracy of not less than plus or minus 25 percent (±25%), with a confidence level of 95 percent, for airborne concentrations of cadmium at or above the action level and the permissible exposure limit.
(e) Regulated areas—(1) Establishment. The employer shall establish a regulated area wherever an employee's exposure to airborne concentrations of cadmium is, or can reasonably be expected to be in excess of the permissible exposure limit (PEL).
(2) Demarcation. Regulated areas shall be demarcated from the rest of the workplace in any manner that adequately establishes and alerts employees of the boundaries of the regulated area, including employees who are or may be incidentally in the regulated areas, and that protects persons outside the area from exposure to airborne concentrations of cadmium in excess of the PEL.
(3) Access. Access to regulated areas shall be limited to authorized persons.
(4) Provision of respirators. Each person entering a regulated area shall be supplied with and required to use a respirator, selected in accordance with paragraph (g)(2) of this section.
(5) Prohibited activities. The employer shall assure that employees do not eat, drink, smoke, chew tobacco or gum, or apply cosmetics in regulated areas, or carry the products associated with any of these activities into regulated areas or store such products in those areas.
(f) Methods of compliance—(1) Compliance hierarchy. (i) Except as specified in paragraph (f)(1)(ii) of this section, the employer shall implement engineering and work practice controls to reduce and maintain employee exposure to cadmium at or below the PEL, except to the extent that the employer can demonstrate that such controls are not feasible.
(ii) The requirement to implement engineering controls to achieve the PEL does not apply where the employer demonstrates the following:
(A) The employee is only intermittently exposed; and
(B) The employee is not exposed above the PEL on 30 or more days per year (12 consecutive months).
(iii) Wherever engineering and work practice controls are not sufficient to reduce employee exposure to or below the PEL, the employer nonetheless shall implement such controls to reduce exposures to the lowest levels achievable. The employer shall supplement such controls with respiratory protection that complies with the requirements of paragraph (g) of this section and the PEL.
(iv) The employer shall not use employee rotation as a method of compliance.
(2) Specific operations—(i) Abrasive blasting. Abrasive blasting on cadmium or cadmium-containing materials shall be conducted in a manner that will provide adequate protection.
(ii) Heating cadmium and cadmium-containing materials. Welding, cutting, and other forms of heating of cadmium or cadmium-containing materials shall be conducted in accordance with the requirements of 29 CFR 1926.353 and 29 CFR 1926.354, where applicable.
(3) Prohibitions. (i) High speed abrasive disc saws and similar abrasive power equipment shall not be used for work on cadmium or cadmium-containing materials unless they are equipped with appropriate engineering controls to minimize emissions, if the exposure levels are above the PEL.
(ii) Materials containing cadmium shall not be applied by spray methods, if exposures are above the PEL, unless employees are protected with supplied-air respirators with full facepiece, hood, helmet, suit, operated in positive pressure mode and measures are instituted to limit overspray and prevent contamination of adjacent areas.
(4) Mechanical ventilation. (i) When ventilation is used to control exposure, measurements that demonstrate the effectiveness of the system in controlling exposure, such as capture velocity, duct velocity, or static pressure shall be made as necessary to maintain its effectiveness.
(ii) Measurements of the system's effectiveness in controlling exposure shall be made as necessary within five working days of any change in production, process, or control that might result in a significant increase in employee exposure to cadmium.
(iii) Recirculation of air. If air from exhaust ventilation is recirculated into the workplace, the system shall have a high efficiency filter and be monitored to assure effectiveness.
(iv) Procedures shall be developed and implemented to minimize employee exposure to cadmium when maintenance of ventilation systems and changing of filters is being conducted.
(5) Compliance program. (i) Where employee exposure to cadmium exceeds the PEL and the employer is required under paragraph (f)(1) of this section to implement controls to comply with the PEL, prior to the commencement of the job the employer shall establish and implement a written compliance program to reduce employee exposure to or below the PEL. To the extent that engineering and work practice controls cannot reduce exposures to or below the PEL, the employer shall include in the written compliance program the use of appropriate respiratory protection to achieve compliance with the PEL.
(ii) Written compliance programs shall be reviewed and updated as often and as promptly as necessary to reflect significant changes in the employer's compliance status or significant changes in the lowest air cadmium level that is technologically feasible.
(iii) A competent person shall review the comprehensive compliance program initially and after each change.
(iv) Written compliance programs shall be provided upon request for examination and copying to the Assistant Secretary, the Director, affected employees, and designated employee representatives.
(g) Respirator protection—(1) General. For employees who use respirators required by this section, the employer must provide each employee an appropriate respirator that complies with the requirements of this paragraph. Respirators must be used during:
(i) Periods necessary to install or implement feasible engineering and work-practice controls when employee exposures exceed the PEL.
(ii) Maintenance and repair activities, and brief or intermittent work operations, for which employee exposures exceed the PEL and engineering and work-practice controls are not feasible or are not required.
(iii) Work operations in the regulated areas specified in paragraph (e) of this section.
(iv) Work operations for which the employer has implemented all feasible engineering and work-practice controls, and such controls are not sufficient to reduce employee exposures to or below the PEL.
(v) Work operations for which an employee, who is exposed to cadmium at or above the action level, requests a respirator.
(vi) Work operations for which engineering controls are not required by paragraph (f)(1)(ii) of this section to reduce employee exposures that exceed the PEL.
(vii) Emergencies.
(2) Respirator program. (i) The employer must implement a respiratory protection program in accordance with § 1910.134 (b) through (d) (except (d)(1)(iii)), and (f) through (m), which covers each employee required by this section to use a respirator.
(ii) If an employee exhibits breathing difficulty during fit testing or respirator use, the employer must provide the employee with a medical examination in accordance with paragraph (l)(6)(ii) of this section to determine if the employee can use a respirator while performing the required duties.
(iii) No employee must use a respirator when, based on their most recent medical examination, the examining physician determines that the employee will be unable to continue to function normally while using a respirator. If the physician determines the employee must be limited in, or removed from, their current job because of the employee's inability to use a respirator, the job limitation or removal must be conducted in accordance with paragraphs (l) (11) and (12) of this section.
(3) Respirator selection. (i) Employers must:
(A) Select, and provide to employees, the appropriate respirators specified in paragraph (d)(3)(i)(A) of 29 CFR 1910.134.
(B) Provide employees with full facepiece respirators when they experience eye irritation.
(C) Provide HEPA filters for powered and non-powered air-purifying respirators.
(ii) The employer must provide a powered air-purifying respirator instead of a negative-pressure respirator when an employee entitled to a respirator chooses to use this type of respirator and such a respirator will provide adequate protection to the employee.
(h) Emergency situations. The employer shall develop and implement a written plan for dealing with emergency situations involving substantial releases of airborne cadmium. The plan shall include provisions for the use of appropriate respirators and personal protective equipment. In addition, employees not essential to correcting the emergency situation shall be restricted from the area and normal operations halted in that area until the emergency is abated.
(i) Protective work clothing and equipment—(1) Provision and use. If an employee is exposed to airborne cadmium above the PEL or where skin or eye irritation is associated with cadmium exposure at any level, the employer shall provide at no cost to the employee, and assure that the employee uses, appropriate protective work clothing and equipment that prevents contamination of the employee and the employee's garments. Protective work clothing and equipment includes, but is not limited to:
(i) Coveralls or similar full-body work clothing;
(ii) Gloves, head coverings, and boots or foot coverings; and
(iii) Face shields, vented goggles, or other appropriate protective equipment that complies with 29 CFR 1910.133.
(2) Removal and storage. (i) The employer shall assure that employees remove all protective clothing and equipment contaminated with cadmium at the completion of the work shift and do so only in change rooms provided in accordance with paragraph (j)(1) of this section.
(ii) The employer shall assure that no employee takes cadmium-contaminated protective clothing or equipment from the workplace, except for employees authorized to do so for purposes of laundering, cleaning, maintaining, or disposing of cadmium-contaminated protective clothing and equipment at an appropriate location or facility away from the workplace.
(iii) The employer shall assure that contaminated protective clothing and equipment, when removed for laundering, cleaning, maintenance, or disposal, is placed and stored in sealed, impermeable bags or other closed, impermeable containers that are designed to prevent dispersion of cadmium dust.
(iv) The employer shall ensure that containers of contaminated protective clothing and equipment that are to be taken out of the change rooms or the workplace for laundering, cleaning, maintenance or disposal shall bear labels in accordance with paragraph (m)(3)(ii) of this section.
(3) Cleaning, replacement, and disposal. (i) The employer shall provide the protective clothing and equipment required by paragraph (i)(1) of this section in a clean and dry condition as often as necessary to maintain its effectiveness, but in any event at least weekly. The employer is responsible for cleaning and laundering the protective clothing and equipment required by this paragraph to maintain its effectiveness and is also responsible for disposing of such clothing and equipment.
(ii) The employer also is responsible for repairing or replacing required protective clothing and equipment as needed to maintain its effectiveness. When rips or tears are detected while an employee is working they shall be immediately mended, or the worksuit shall be immediately replaced.
(iii) The employer shall prohibit the removal of cadmium from protective clothing and equipment by blowing, shaking, or any other means that disperses cadmium into the air.
(iv) The employer shall assure that any laundering of contaminated clothing or cleaning of contaminated equipment in the workplace is done in a manner that prevents the release of airborne cadmium in excess of the permissible exposure limit prescribed in paragraph (c) of this section.
(v) The employer shall inform any person who launders or cleans protective clothing or equipment contaminated with cadmium of the potentially harmful effects of exposure to cadmium, and that the clothing and equipment should be laundered or cleaned in a manner to effectively prevent the release of airborne cadmium in excess of the PEL.
(j) Hygiene areas and practices—(1) General. For employees whose airborne exposure to cadmium is above the PEL, the employer shall provide clean change rooms, handwashing facilities, showers, and lunchroom facilities that comply with 29 CFR 1926.51.
(2) Change rooms. The employer shall assure that change rooms are equipped with separate storage facilities for street clothes and for protective clothing and equipment, which are designed to prevent dispersion of cadmium and contamination of the employee's street clothes.
(3) Showers and handwashing facilities. (i) The employer shall assure that employees whose airborne exposure to cadmium is above the PEL shower during the end of the work shift.
(ii) The employer shall assure that employees who are exposed to cadmium above the PEL wash their hands and faces prior to eating, drinking, smoking, chewing tobacco or gum, or applying cosmetics.
(4) Lunchroom facilities. (i) The employer shall assure that the lunchroom facilities are readily accessible to employees, that tables for eating are maintained free of cadmium, and that no employee in a lunchroom facility is exposed at any time to cadmium at or above a concentration of 2.5 µg/m 3.
(ii) The employer shall assure that employees do not enter lunchroom facilities with protective work clothing or equipment unless surface cadmium has been removed from the clothing and equipment by HEPA vacuuming or some other method that removes cadmium dust without dispersing it.
(k) Housekeeping. (1) All surfaces shall be maintained as free as practicable of accumulations of cadmium.
(2) All spills and sudden releases of material containing cadmium shall be cleaned up as soon as possible.
(3) Surfaces contaminated with cadmium shall, wherever possible, be cleaned by vacuuming or other methods that minimize the likelihood of cadmium becoming airborne.
(4) HEPA-filtered vacuuming equipment or equally effective filtration methods shall be used for vacuuming. The equipment shall be used and emptied in a manner that minimizes the reentry of cadmium into the workplace.
(5) Shoveling, dry or wet sweeping, and brushing may be used only where vacuuming or other methods that minimize the likelihood of cadmium becoming airborne have been tried and found not to be effective.
(6) Compressed air shall not be used to remove cadmium from any surface unless the compressed air is used in conjunction with a ventilation system designed to capture the dust cloud created by the compressed air.
(7) Waste, scrap, debris, bags, and containers, personal protective equipment and clothing contaminated with cadmium and consigned for disposal shall be collected and disposed of in sealed impermeable bags or other closed, impermeable containers. These bags and containers shall be labeled in accordance with paragraph (m)(3)(ii) of this section.
(l) Medical Surveillance—(1) General—(i) Scope—(A) Currently exposed—The employer shall institute a medical surveillance program for all employees who are or may be exposed at or above the action level and all employees who perform the following tasks, operations or jobs: Electrical grounding with cadmium welding; cutting, brazing, burning, grinding or welding on surfaces that were painted with cadmium-containing paints; electrical work using cadmium-coated conduit; use of cadmium containing paints; cutting and welding cadmium-plated steel; brazing or welding with cadmium alloys; fusing of reinforced steel by cadmium welding; maintaining or retrofitting cadmium-coated equipment; and, wrecking and demolition where cadmium is present. A medical surveillance program will not be required if the employer demonstrates that the employee:
(1) Is not currently exposed by the employer to airborne concentrations of cadmium at or above the action level on 30 or more days per year (twelve consecutive months); and,
(2) Is not currently exposed by the employer in those tasks on 30 or more days per year (twelve consecutive months).
(B) Previously exposed. The employer shall also institute a medical surveillance program for all employees who might previously have been exposed to cadmium by the employer prior to the effective date of this standard in tasks specified under paragraph (l)(1)(i)(A) of this section, unless the employer demonstrates that the employee did not in the years prior to the effective date of this section work in those tasks for the employer with exposure to cadmium for an aggregated total of more than 12 months.
(ii) To determine an employee's fitness for using a respirator, the employer shall provide the limited medical examination specified in paragraph (l)(6) of this section.
(iii) The employer shall assure that all medical examinations and procedures required by this section are performed by or under the supervision of a licensed physician, who has read and is familiar with the health effects section of appendix A to this section, the regulatory text of this section, the protocol for sample handling and lab selection in appendix F to this section, and the questionnaire of appendix D to this section.
(iv) The employer shall provide the medical surveillance required by this section, including multiple physician review under paragraph (l)(13) of this section without cost to employees, and at a time and place that is reasonable and convenient to employees.
(v) The employer shall assure that the collecting and handling of biological samples of cadmium in urine (CdU), cadmium in blood (CdB), and beta-2 microglobulin in urine (β2-M) taken from employees under this section is done in a manner that assures their reliability and that analysis of biological samples of cadmium in urine (CdU), cadmium in blood (CdB), and beta-2 microglobulin in urine (β2-M) taken from employees under this section is performed in laboratories with demonstrated proficiency to perform the particular analysis. (See appendix F to this section.)
(2) Initial Examination. (i) For employees covered by medical surveillance under paragraph (l)(1)(i) of this section, the employer shall provide an initial medical examination. The examination shall be provided to those employees within 30 days after initial assignment to a job with exposure to cadmium or no later than 90 days after the effective date of this section, whichever date is later.
(ii) The initial medical examination shall include:
(A) A detailed medical and work history, with emphasis on: Past, present, and anticipated future exposure to cadmium; any history of renal, cardiovascular, respiratory, hematopoietic, reproductive, and/or musculo-skeletal system dysfunction; current usage of medication with potential nephrotoxic side-effects; and smoking history and current status; and
(B) Biological monitoring that includes the following tests:
(1) Cadmium in urine (CdU), standardized to grams of creatinine (g/Cr);
(2) Beta-2 microglobulin in urine (β2-M), standardized to grams of creatinine (g/Cr), with pH specified, as described in appendix F to this section; and
(3) Cadmium in blood (CdB), standardized to liters of whole blood (lwb).
(iii) Recent Examination: An initial examination is not required to be provided if adequate records show that the employee has been examined in accordance with the requirements of paragraph (l)(2)(ii) of this section within the past 12 months. In that case, such records shall be maintained as part of the employee's medical record and the prior exam shall be treated as if it were an initial examination for the purposes of paragraphs (l)(3) and (4) of this section.
(3) Actions triggered by initial biological monitoring. (i) If the results of the biological monitoring tests in the initial examination show the employee's CdU level to be at or below 3 µg/g Cr, β2-M level to be at or below 300 µg/g Cr and CdB level to be at or below 5 µg/lwb, then:
(A) For employees who are subject to medical surveillance under paragraphs (l)(1)(i)(A) of this section because of current or anticipated exposure to cadmium, the employer shall provide the minimum level of periodic medical surveillance in accordance with the requirements in paragraph (l)(4)(i) of this section; and
(B) For employees who are subject to medical surveillance under paragraph (l)(1)(i)(B) of this section because of prior but not current exposure, the employer shall provide biological monitoring for CdU, B2-M, and CdB one year after the initial biological monitoring and then the employer shall comply with the requirements of paragraph (l)(4)(vi) of this section.
(ii) For all employees who are subject to medical surveillance under paragraph (l)(1)(i) of this section, if the results of the initial biological monitoring tests show the level of CdU to exceed 3 µg/g Cr, the level of β2-M to be in excess of 300 µg/g Cr, or the level of CdB to be in excess of 5 µg/lwb, the employer shall:
(A) Within two weeks after receipt of biological monitoring results, reassess the employee's occupational exposure to cadmium as follows:
(1) Reassess the employee's work practices and personal hygiene;
(2) Reevaluate the employee's respirator use, if any, and the respirator program;
(3) Review the hygiene facilities;
(4) Reevaluate the maintenance and effectiveness of the relevant engineering controls;
(5) Assess the employee's smoking history and status;
(B) Within 30 days after the exposure reassessment, specified in paragraph (l)(3)(ii)(A) of this section, take reasonable steps to correct any deficiencies found in the reassessment that may be responsible for the employee's excess exposure to cadmium; and,
(C) Within 90 days after receipt of biological monitoring results, provide a full medical examination to the employee in accordance with the requirements of paragraph (l)(4)(ii) of this section. After completing the medical examination, the examining physician shall determine in a written medical opinion whether to medically remove the employee. If the physician determines that medical removal is not necessary, then until the employee's CdU level falls to or below 3 µg/g Cr, β2-M level falls to or below 300 µg/g Cr and CdB level falls to or below 5 µg/lwb, the employer shall:
(1) Provide biological monitoring in accordance with paragraph (l)(2)(ii)(B) of this section on a semiannual basis; and
(2) Provide annual medical examinations in accordance with paragraph (l)(4)(ii) of this section.
(iii) For all employees who are subject to medical surveillance under paragraph (l)(1)(i) of this section, if the results of the initial biological monitoring tests show the level of CdU to be in excess of 15 µg/g Cr, or the level of CdB to be in excess of 15 µg/lwb, or the level of β2-M to be in excess of 1,500 µg/g Cr, the employer shall comply with the requirements of paragraphs (l)(3)(ii)(A)-(B) of this section. Within 90 days after receipt of biological monitoring results, the employer shall provide a full medical examination to the employee in accordance with the requirements of paragraph (l)(4)(ii) of this section. After completing the medical examination, the examining physician shall determine in a written medical opinion whether to medically remove the employee. However, if the initial biological monitoring results and the biological monitoring results obtained during the medical examination both show that: CdU exceeds 15 µg/g Cr; or CdB exceeds 15 µg/lwb; or β2-M exceeds 1500 µg/g Cr, and in addition CdU exceeds 3 µg/g Cr or CdB exceeds 5 µg/liter of whole blood, then the physician shall medically remove the employee from exposure to cadmium at or above the action level. If the second set of biological monitoring results obtained during the medical examination does not show that a mandatory removal trigger level has been exceeded, then the employee is not required to be removed by the mandatory provisions of this paragraph. If the employee is not required to be removed by the mandatory provisions of this paragraph or by the physician's determination, then until the employee's CdU level falls to or below 3 µg/g Cr, β2-M level falls to or below 300 µg/g Cr and CdB level falls to or below 5 µg/lwb, the employer shall:
(A) Periodically reassess the employee's occupational exposure to cadmium;
(B) Provide biological monitoring in accordance with paragraph (l)(2)(ii)(B) of this section on a quarterly basis; and
(C) Provide semiannual medical examinations in accordance with paragraph (l)(4)(ii) of this section.
(iv) For all employees to whom medical surveillance is provided, beginning on January 1, 1999, and in lieu of paragraph (l)(3)(iii) of this section, whenever the results of initial biological monitoring tests show the employee's CdU level to be in excess of 7 µg/g Cr, or β2-M level to be in excess of 750 µg/g Cr, or CdB level to be in excess of 10 µg/lwb, the employer shall comply with the requirements of paragraphs (l)(3)(ii)(A)-(B) of this section. Within 90 days after receipt of biological monitoring results, the employer shall provide a full medical examination to the employee in accordance with the requirements of paragraph (l)(4)(ii) of this section. After completing the medical examination, the examining physician shall determine in a written medical opinion whether to medically remove the employee. However, if the initial biological monitoring results and the biological monitoring results obtained during the medical examination both show that: CdU exceeds 7 µg/g Cr; or CdB exceeds 10 µg/lwb; or β2-M exceeds 750 µg/g Cr, and in addition CdU exceeds 3 µg/g Cr or CdB exceeds 5 µg/liter of whole blood, then the physician shall medically remove the employee from exposure to cadmium at or above the action level. If the second set of biological monitoring results obtained during the medical examination does not show that a mandatory removal trigger level has been exceeded, then the employee is not required to be removed by the mandatory provisions of this paragraph. If the employee is not required to be removed by the mandatory provisions of this paragraph or by the physician's determination, then until the employee's CdU level falls to or below 3 µg/g Cr, β2-M level falls to or below 300 µg/g Cr and CdB level falls to or below 5 µg/lwb, the employer shall:
(A) Periodically reassess the employee's occupational exposure to cadmium;
(B) Provide biological monitoring in accordance with paragraph (l)(2)(ii)(B) of this section on a quarterly basis; and
(C) Provide semiannual medical examinations in accordance with paragraph (l)(4)(ii) of this section.
(4) Periodic medical surveillance. (i) For each employee who is covered by medical surveillance under paragraph (l)(1)(i)(A) of this section because of current or anticipated exposure to cadmium, the employer shall provide at least the minimum level of periodic medical surveillance, which consists of periodic medical examinations and periodic biological monitoring. A periodic medical examination shall be provided within one year after the initial examination required by paragraph (l)(2) of this section and thereafter at least biennially. Biological sampling shall be provided at least annually either as part of a periodic medical examination or separately as periodic biological monitoring.
(ii) The periodic medical examination shall include:
(A) A detailed medical and work history, or update thereof, with emphasis on: Past, present and anticipated future exposure to cadmium; smoking history and current status; reproductive history; current use of medications with potential nephrotoxic side-effects; any history of renal, cardiovascular, respiratory, hematopoietic, and/or musculo-skeletal system dysfunction; and as part of the medical and work history, for employees who wear respirators, questions 3-11 and 25-32 in appendix D to this section;
(B) A complete physical examination with emphasis on: blood pressure, the respiratory system, and the urinary system;
(C) A 14 inch by 17 inch or other reasonably-sized standard film or digital posterior-anterior chest X-ray (after the initial X-ray, the frequency of chest X-rays is to be determined by the examining physician);
(D) Pulmonary function tests, including forced vital capacity (FVC) and forced expiratory volume at 1 second (FEV1);
(E) Biological monitoring, as required in paragraph (l)(2)(ii)(B) of this section;
(F) Blood analysis, in addition to the analysis required under paragraph (l)(2)(ii)(B) of this section, including blood urea nitrogen, complete blood count, and serum creatinine;
(G) Urinalysis, in addition to the analysis required under paragraph (l)(2)(ii)(B) of this section, including the determination of albumin, glucose, and total and low molecular weight proteins;
(H) For males over 40 years old, prostate palpation, or other at least as effective diagnostic test(s), and;
(I) Any additional tests or procedures deemed appropriate by the examining physician.
(iii) Periodic biological monitoring shall be provided in accordance with paragraph (l)(2)(ii)(B) of this section.
(iv) If the results of periodic biological monitoring or the results of biological monitoring performed as part of the periodic medical examination show the level of the employee's CdU, β2-M, or CdB to be in excess of the levels specified in paragraphs (l)(3)(ii) or (iii) of this section; or beginning on January 1, 1999, in excess of the levels specified in paragraphs (l)(3)(ii) or (iv), the employer shall take the appropriate actions specified in paragraphs (l)(3)(ii)-(iv) of this section, respectively.
(v) For previously exposed employees under paragraph (l)(1)(i)(B) of this section:
(A) If the employee's levels of CdU did not exceed 3 µg/g Cr, CdB did not exceed 5 µg/lwb, and β2-M did not exceed 300 µg/g Cr in the initial biological monitoring tests, and if the results of the followup biological monitoring required by paragraph (l)(3)(i)(B) of this section one year after the initial examination confirm the previous results, the employer may discontinue all periodic medical surveillance for that employee.
(B) If the initial biological monitoring results for CdU, CdB, or β2-M were in excess of the levels specified in paragraph (l)(3)(i) of this section, but subsequent biological monitoring results required by paragraph (l)(3)(ii)-(iv) of this section show that the employee's CdU levels no longer exceed 3 µg/g Cr, CdB levels no longer exceed 5 µg/lwb, and β2-M levels no longer exceed 300 µg/g Cr, the employer shall provide biological monitoring for CdU, CdB, and β2-M one year after these most recent biological monitoring results. If the results of the followup biological monitoring specified in this paragraph, confirm the previous results, the employer may discontinue all periodic medical surveillance for that employee.
(C) However, if the results of the follow-up tests specified in paragraph (l)(4)(v)(A) or (B) of this section indicate that the level of the employee's CdU, β2-M, or CdB exceeds these same levels, the employer is required to provide annual medical examinations in accordance with the provisions of paragraph (l)(4)(ii) of this section until the results of biological monitoring are consistently below these levels or the examining physician determines in a written medical opinion that further medical surveillance is not required to protect the employee's health.
(vi) A routine, biennial medical examination is not required to be provided in accordance with paragraphs (l)(3)(i) and (l)(4) of this section if adequate medical records show that the employee has been examined in accordance with the requirements of paragraph (l)(4)(ii) of this section within the past 12 months. In that case, such records shall be maintained by the employer as part of the employee's medical record, and the next routine, periodic medical examination shall be made available to the employee within two years of the previous examination.
(5) Actions triggered by medical examinations. (i) If the results of a medical examination carried out in accordance with this section indicate any laboratory or clinical finding consistent with cadmium toxicity that does not require employer action under paragraphs (l)(2), (3) or (4) of this section, the employer shall take the following steps and continue to take them until the physician determines that they are no longer necessary.
(A) Periodically reassess: The employee's work practices and personal hygiene; the employee's respirator use, if any; the employee's smoking history and status; the respiratory protection program; the hygiene facilities; the maintenance and effectiveness of the relevant engineering controls; and take all reasonable steps to correct the deficiencies found in the reassessment that may be responsible for the employee's excess exposure to cadmium.
(B) Provide semi-annual medical reexaminations to evaluate the abnormal clinical sign(s) of cadmium toxicity until the results are normal or the employee is medically removed; and
(C) Where the results of tests for total proteins in urine are abnormal, provide a more detailed medical evaluation of the toxic effects of cadmium on the employee's renal system.
(6) Examination for respirator use. (i) To determine an employee's fitness for respirator use, the employer shall provide a medical examination that includes the elements specified in paragraph (l)(6)(i)(A)-(D) of this section. This examination shall be provided prior to the employee's being assigned to a job that requires the use of a respirator or no later than 90 days after this section goes into effect, whichever date is later, to any employee without a medical examination within the preceding 12 months that satisfies the requirements of this paragraph.
(A) A detailed medical and work history, or update thereof, with emphasis on: past exposure to cadmium; smoking history and current status; any history of renal, cardiovascular, respiratory, hematopoietic, and/or musculo-skeletal system dysfunction; a description of the job for which the respirator is required; and questions 3-11 and 25-32 in appendix D;
(B) A blood pressure test;
(C) Biological monitoring of the employee's levels of CdU, CdB and β2-M in accordance with the requirements of paragraph (l)(2)(ii)(B) of this section, unless such results already have been obtained within the twelve months; and
(D) Any other test or precedure that the examining physician deems appropriate.
(ii) After reviewing all the information obtained from the medical examination required in paragraph (l)(6)(i) of this section, the physician shall determine whether the employee is fit to wear a respirator.
(iii) Whenever an employee has exhibited difficulty in breathing during a respirator fit test or during use of a respirator, the employer, as soon as possible, shall provide the employee with a periodic medical examination in accordance with paragraph (l)(4)(ii) of this section to determine the employee's fitness to wear a respirator.
(iv) Where the results of the examination required under paragraphs (l)(6)(i), (ii), or (iii) of this section are abnormal, medical limitation or prohibition of respirator use shall be considered. If the employee is allowed to wear a respirator, the employee's ability to continue to do so shall be periodically evaluated by a physician.
(7) Emergency Examinations. (i) In addition to the medical surveillance required in paragraphs (l)(2)-(6) of this section, the employer shall provide a medical examination as soon as possible to any employee who may have been acutely exposed to cadmium because of an emergency.
(ii) The examination shall include the requirements of paragraph (l)(4)(ii), of this section, with emphasis on the respiratory system, other organ systems considered appropriate by the examining physician, and symptoms of acute overexposure, as identified in paragraphs II(B)(1)-(2) and IV of appendix A of this section.
(8) Termination of employment examination. (i) At termination of employment, the employer shall provide a medical examination in accordance with paragraph (l)(4)(ii) of this section, including a chest X-ray where necessary, to any employee to whom at any prior time the employer was required to provide medical surveillance under paragraph (l)(1)(i) or (l)(7) of this section. However, if the last examination satisfied the requirements of paragraph (l)(4)(ii) of this section and was less than six months prior to the date of termination, no further examination is required unless otherwise specified in paragraph (l)(3) or (l)(5) of this section;
(ii) In addition, if the employer has discontinued all periodic medical surveillance under paragraph (l)(4)(v) of this section, no termination of employment medical examination is required.
(9) Information provided to the physician. The employer shall provide the following information to the examining physician:
(i) A copy of this standard and appendices;
(ii) A description of the affected employee's former, current, and anticipated duties as they relate to the employee's occupational exposure to cadmium;
(iii) The employee's former, current, and anticipated future levels of occupational exposure to cadmium;
(iv) A description of any personal protective equipment, including respirators, used or to be used by the employee, including when and for how long the employee has used that equipment; and
(v) Relevant results of previous biological monitoring and medical examinations.
(10) Physician's written medical opinion. (i) The employer shall promptly obtain a written, medical opinion from the examining physician for each medical examination performed on each employee. This written opinion shall contain:
(A) The physician's diagnosis for the employee;
(B) The physician's opinion as to whether the employee has any detected medical condition(s) that would place the employee at increased risk of material impairment to health from further exposure to cadmium, including any indications of potential cadmium toxicity;
(C) The results of any biological or other testing or related evaluations that directly assess the employee's absorption of cadmium;
(D) Any recommended removal from, or limitation on the activities or duties of the employee or on the employee's use of personal protective equipment, such as respirators;
(E) A statement that the physician has clearly and carefully explained to the employee the results of the medical examination, including all biological monitoring results and any medical conditions related to cadmium exposure that require further evaluation or treatment, and any limitation on the employee's diet or use of medications.
(ii) The employer shall promptly obtain a copy of the results of any biological monitoring provided by an employer to an employee independently of a medical examination under paragraphs (l)(2) and (l)(4) of this section, and, in lieu of a written medical opinion, an explanation sheet explaining those results.
(iii) The employer shall instruct the physician not to reveal orally or in the written medical opinion given to the employer specific findings or diagnoses unrelated to occupational exposure to cadmium.
(11) Medical Removal Protection (MRP)—(i) General. (A) The employer shall temporarily remove an employee from work where there is excess exposure to cadmium on each occasion that medical removal is required under paragraphs (l)(3), (l)(4), or (l)(6) of this section and on each occasion that a physician determines in a written medical opinion that the employee should be removed from such exposure. The physician's determination may be based on biological monitoring results, inability to wear a respirator, evidence of illness, other signs or symptoms of cadmium-related dysfunction or disease, or any other reason deemed medically sufficient by the physician.
(B) The employer shall medically remove an employee in accordance with paragraph (l)(11) of this section regardless of whether at the time of removal a job is available into which the removed employee may be transferred.
(C) Whenever an employee is medically removed under paragraph (l)(11) of this section, the employer shall transfer the removed employee to a job where the exposure to cadmium is within the permissible levels specified in that paragraph as soon as one becomes available.
(D) For any employee who is medically removed under the provisions of paragraph (l)(11)(i) of this section, the employer shall provide follow-up medical examinations semi-annually until, in a written medical opinion, the examining physician determines that either the employee may be returned to his/her former job status or the employee must be permanently removed from excess cadmium exposure.
(E) The employer may not return an employee who has been medically removed for any reason to his/her former job status until a physician determines in a written medical opinion that continued medical removal is no longer necessary to protect the employee's health.
(ii) Where an employee is found unfit to wear a respirator under paragraph (l)(6)(ii) of this section, the employer shall remove the employee from work where exposure to cadmium is above the PEL.
(iii) Where removal is based upon any reason other than the employee's inability to wear a respirator, the employer shall remove the employee from work where exposure to cadmium is at or above the action level.
(iv) Except as specified in paragraph (l)(11)(v) of this section, no employee who was removed because his/her level of CdU, CdB and/or β2-M exceeded the trigger levels in paragraph (l)(3) or (l)(4) of this section may be returned to work with exposure to cadmium at or above the action level until the employee's levels of CdU fall to or below 3 µg/g Cr, CdB fall to or below 5 µg/lwb, and β2-M fall to or below 300 µg/g Cr.
(v) However, when in the examining physician's opinion continued exposure to cadmium will not pose an increased risk to the employee's health and there are special circumstances that make continued medical removal an inappropriate remedy, the physician shall fully discuss these matters with the employee, and then in a written determination may return a worker to his/her former job status despite what would otherwise be unacceptably high biological monitoring results. Thereafter and until such time as the employee's biological monitoring results have decreased to levels where he/she could have been returned to his/her former job status, the returned employee shall continue medical surveillance as if he/she were still on medical removal. Until such time, the employee is no longer subject to mandatory medical removal. Subsequent questions regarding the employee's medical removal shall be decided solely by a final medical determination.
(vi) Where an employer, although not required by this section to do so, removes an employee from exposure to cadmium or otherwise places limitations on an employee due to the effects of cadmium exposure on the employee's medical condition, the employer shall provide the same medical removal protection benefits to that employee under paragraph (l)(12) of this section as would have been provided had the removal been required under paragraph (l)(11) of this section.
(12) Medical removal protection benefits. (i) The employer shall provide medical removal protection benefits to an employee for up to a maximum of 18 months each time, and while the employee is temporarily medically removed under paragraph (l)(11) of this section.
(ii) For purposes of this section, the requirement that the employer provide medical removal protection benefits means that the employer shall maintain the total normal earnings, seniority, and all other employee rights and benefits of the removed employee, including the employee's right to his/her former job status, as if the employee had not been removed from the employee's job or otherwise medically limited.
(iii) Where, after 18 months on medical removal because of elevated biological monitoring results, the employee's monitoring results have not declined to a low enough level to permit the employee to be returned to his/her former job status:
(A) The employer shall make available to the employee a medical examination pursuant to this section in order to obtain a final medical determination as to whether the employee may be returned to his/her former job status or must be permanently removed from excess cadmium exposure; and
(B) The employer shall assure that the final medical determination indicates whether the employee may be returned to his/her former job status and what steps, if any, should be taken to protect the employee's health;
(iv) The employer may condition the provision of medical removal protection benefits upon the employee's participation in medical surveillance provided in accordance with this section.
(13) Multiple physician review. (i) If the employer selects the initial physician to conduct any medical examination or consultation provided to an employee under this section, the employee may designate a second physician to:
(A) Review any findings, determinations, or recommendations of the initial physician; and
(B) Conduct such examinations, consultations, and laboratory tests as the second physician deems necessary to facilitate this review.
(ii) The employer shall promptly notify an employee of the right to seek a second medical opinion after each occasion that an initial physician provided by the employer conducts a medical examination or consultation pursuant to this section. The employer may condition its participation in, and payment for, multiple physician review upon the employee doing the following within fifteen (15) days after receipt of this notice, or receipt of the initial physician's written opinion, whichever is later:
(A) Informing the employer that he or she intends to seek a medical opinion; and
(B) Initiating steps to make an appointment with a second physician.
(iii) If the findings, determinations, or recommendations of the second physician differ from those of the initial physician, then the employer and the employee shall assure that efforts are made for the two physicians to resolve any disagreement.
(iv) If the two physicians have been unable to quickly resolve their disagreement, then the employer and the employee, through their respective physicians, shall designate a third physician to:
(A) Review any findings, determinations, or recommendations of the other two physicians; and
(B) Conduct such examinations, consultations, laboratory tests, and discussions with the other two physicians as the third physician deems necessary to resolve the disagreement among them.
(v) The employer shall act consistently with the findings, determinations, and recommendations of the third physician, unless the employer and the employee reach an agreement that is consistent with the recommendations of at least one of the other two physicians.
(14) Alternate physician determination. The employer and an employee or designated employee representative may agree upon the use of any alternate form of physician determination in lieu of the multiple physician review provided by paragraph (l)(13) of this section, so long as the alternative is expeditious and at least as protective of the employee.
(15) Information the employer must provide the employee. (i) The employer shall provide a copy of the physician's written medical opinion to the examined employee within five working days after receipt thereof.
(ii) The employer shall provide the employee with a copy of the employee's biological monitoring results and an explanation sheet explaining the results within five working days after receipt thereof.
(iii) Within 30 days after a request by an employee, the employer shall provide the employee with the information the employer is required to provide the examining physician under paragraph (l)(9) of this section.
(16) Reporting. In addition to other medical events that are required to be reported on the OSHA Form No. 200, the employer shall report any abnormal condition or disorder caused by occupational exposure to cadmium associated with employment as specified in Chapter (V)(E) of the Reporting Guidelines for Occupational Injuries and Illnesses.
(m) Communication of cadmium hazards to employees—(1) Hazard communication. The employer shall include cadmium in the program established to comply with the Hazard Communication Standard (HCS) (§ 1910.1200). The employer shall ensure that each employee has access to labels on containers of cadmium and safety data sheets, and is trained in accordance with the provisions of HCS and paragraph (m)(4) of this section. The employer shall provide information on at least the following hazards: Cancer; lung effects; kidney effects; and acute toxicity effects.
(2) Warning signs. (i) Warning signs shall be provided and displayed in regulated areas. In addition, warning signs shall be posted at all approaches to regulated areas so that an employee may read the signs and take necessary protective steps before entering the area.
(ii) Warning signs required by paragraph (m)(2)(i) of this section shall bear the following legend:
DANGER CADMIUM MAY CAUSE CANCER CAUSES DAMAGE TO LUNGS AND KIDNEYS WEAR RESPIRATORY PROTECTION IN THIS AREA AUTHORIZED PERSONNEL ONLY
(iii) The employer shall ensure that signs required by this paragraph (m)(2) are illuminated, cleaned, and maintained as necessary so that the legend is readily visible.
(iv) Prior to June 1, 2016, employers may use the following legend in lieu of that specified in paragraph (m)(2)(ii) of this section:
DANGER CADMIUM CANCER HAZARD CAN CAUSE LUNG AND KIDNEY DISEASE AUTHORIZED PERSONNEL ONLY RESPIRATORS REQUIRED IN THIS AREA
(3) Warning labels. (i) Shipping and storage containers containing cadmium or cadmium compounds shall bear appropriate warning labels, as specified in paragraph (m)(1) of this section.
(ii) The warning labels for containers of cadmium-contaminated protective clothing, equipment, waste, scrap, or debris shall include at least the following information:
DANGER CONTAINS CADMIUM MAY CAUSE CANCER CAUSES DAMAGE TO LUNGS AND KIDNEYS AVOID CREATING DUST
(iii) Where feasible, installed cadmium products shall have a visible label or other indication that cadmium is present.
(iv) Prior to June 1, 2015, employers may include the following information on shipping and storage containers containing cadmium, cadmium compounds, or cadmium-contaminated clothing, equipment, waste, scrap, or debris in lieu of the labeling requirements specified in paragraphs (m)(3)(i) and (m)(3)(ii) of this section:
DANGER CONTAINS CADMIUM CANCER HAZARD AVOID CREATING DUST CAN CAUSE LUNG AND KIDNEY DISEASE
(4) Employee information and training. (i) The employer shall train each employee who is potentially exposed to cadmium in accordance with the requirements of this section. The employer shall institute a training program, ensure employee participation in the program, and maintain a record of the contents of the training program.
(ii) Training shall be provided prior to or at the time of initial assignment to a job involving potential exposure to cadmium and at least annually thereafter.
(iii) The employer shall make the training program understandable to the employee and shall assure that each employee is informed of the following:
(A) The health hazards associated with cadmium exposure, with special attention to the information incorporated in appendix A to this section;
(B) The quantity, location, manner of use, release, and storage of cadmium in the workplace and the specific nature of operations that could result in exposure to cadmium, especially exposures above the PEL;
(C) The engineering controls and work practices associated with the employee's job assignment;
(D) The measures employees can take to protect themselves from exposure to cadmium, including modification of such habits as smoking and personal hygiene, and specific procedures the employer has implemented to protect employees from exposure to cadmium such as appropriate work practices, emergency procedures, and the provision of personal protective equipment;
(E) The purpose, proper selection, fitting, proper use, and limitations of respirators and protective clothing;
(F) The purpose and a description of the medical surveillance program required by paragraph (l) of this section;
(G) The contents of this section and its appendices, and,
(H) The employee's rights of access to records under § 1926.33(g) (1) and (2).
(iv) Additional access to information and training program and materials.
(A) The employer shall make a copy of this section and its appendices readily available to all affected employees and shall provide a copy without cost if requested.
(B) Upon request, the employer shall provide to the Assistant Secretary or the Director all materials relating to the employee information and the training program.
(5) Multi-employer workplace. In a multi-employer workplace, an employer who produces, uses, or stores cadmium in a manner that may expose employees of other employers to cadmium shall notify those employers of the potential hazard in accordance with paragraph (e) of the hazard communication standard for construction, 29 CFR 1926.59.
(n) Recordkeeping—(1) Exposure monitoring. (i) The employer shall establish and keep an accurate record of all air monitoring for cadmium in the workplace.
(ii) This record shall include at least the following information:
(A) The monitoring date, shift, duration, air volume, and results in terms of an 8-hour TWA of each sample taken, and if cadmium is not detected, the detection level;
(B) The name and job classification of all employees monitored and of all other employees whose exposures the monitoring result is intended to represent, including, where applicable, a description of how it was determined that the employee's monitoring result could be taken to represent other employee's exposures;
(C) A description of the sampling and analytical methods used and evidence of their accuracy;
(D) The type of respiratory protective device, if any, worn by the monitored employee and by any other employee whose exposure the monitoring result is intended to represent;
(E) A notation of any other conditions that might have affected the monitoring results.
(F) Any exposure monitoring or objective data that were used and the levels.
(iii) The employer shall maintain this record for at least thirty (30) years, in accordance with § 1910.1020 of this chapter.
(iv) The employer shall also provide a copy of the results of an employee's air monitoring prescribed in paragraph (d) of this section to an industry trade association and to the employee's union, if any, or, if either of such associations or unions do not exist, to another comparable organization that is competent to maintain such records and is reasonably accessible to employers and employees in the industry.
(2) Objective data for exemption from requirement for initial monitoring. (i) For purposes of this section, objective data are information demonstrating that a particular product or material containing cadmium or a specific process, operation, or activity involving cadmium cannot release dust or fumes in concentrations at or above the action level even under the worst-case release conditions. Objective data can be obtained from an industry-wide study or from laboratory product test results from manufacturers of cadmium-containing products or materials. The data the employer uses from an industry-wide survey must be obtained under workplace conditions closely resembling the processes, types of material, control methods, work practices and environmental conditions in the employer's current operations.
(ii) The employer shall maintain the record for at least 30 years of the objective data relied upon.
(3) Medical surveillance. (i) The employer shall establish and maintain an accurate record for each employee covered by medical surveillance under paragraph (l)(1)(i) of this section.
(ii) The record shall include at least the following information about the employee:
(A) Name and description of duties;
(B) A copy of the physician's written opinions and of the explanation sheets for biological monitoring results;
(C) A copy of the medical history, and the results of any physical examination and all test results that are required to be provided by this section, including biological tests, X-rays, pulmonary function tests, etc., or that have been obtained to further evaluate any condition that might be related to cadmium exposure;
(D) The employee's medical symptoms that might be related to exposure to cadmium; and
(E) A copy of the information provided to the physician as required by paragraph (l)(9) of this section.
(iii) The employer shall assure that this record is maintained for the duration of employment plus thirty (30) years, in accordance with § 1910.1020 of this chapter.
(iv) At the employee's request, the employer shall promptly provide a copy of the employee's medical record, or update as appropriate, to a medical doctor or a union specified by the employee.
(4) Availability. (i) Except as otherwise provided for in this section, access to all records required to be maintained by paragraphs (n)(1) through (3) of this section shall be in accordance with the provisions of 29 CFR 1910.1020.
(ii) Within 15 days after a request, the employer shall make an employee's medical records required to be kept by paragraph (n)(3) of this section available for examination and copying to the subject employee, to designated representatives, to anyone having the specific written consent of the subject employee, and after the employee's death or incapacitation, to the employee's family members.
(o) Observation of monitoring—(1) Employee observation. The employer shall provide affected employees or their designated representatives an opportunity to observe any monitoring of employee exposure to cadmium.
(2) Observation procedures. When observation of monitoring requires entry into an area where the use of protective clothing or equipment is required, the employer shall provide the observer with that clothing and equipment and shall assure that the observer uses such clothing and equipment and complies with all other applicable safety and health procedures.
(p) [Reserved]
(q) Appendices. Except where portions of appendices A, B, D, E, and F to this section are expressly incorporated in requirements of this section, these appendices are purely informational and are not intended to create any additional obligations not otherwise imposed or to detract from any existing obligations.
Appendix A to § 1926.1127—Substance Safety Data Sheet
Note:
The requirements applicable to construction work under this appendix A are identical to those set forth in appendix A to § 1910.1027 of this chapter.
Appendix B to § 1926.1127—Substance Technical Guidelines for Cadmium
Note:
The requirements applicable to construction work under this appendix B are identical to those set forth in appendix B to § 1910.1027 of this chapter.
Appendix C to § 1926.1127 [Reserved]
Appendix D to § 1926.1127—Occupational Health History Interview With Reference to Cadmium Exposure
Note:
The requirements applicable to construction work under this appendix D are identical to those set forth in appendix D to § 1910.1027 of this chapter.
Appendix E to § 1926.1127—Cadmium in Workplace Atmospheres
Note:
The requirements applicable to construction work under this appendix E are identical to those set forth in appendix E to § 1910.1027 of this chapter.
Appendix F to § 1926.1127—Nonmandatory Protocol for Biological Monitoring
Note:
The requirements applicable to construction work under this appendix F are identical to those set forth in appendix F to § 1910.1027 of this chapter.
[57 FR 42452, Sept. 14, 1992, as amended at 57 FR 49272, Oct. 30, 1992; 58 FR 21787, Apr. 23, 1993. Redesignated and amended at 59 FR 215, Jan. 3, 1994; 61 FR 5510, Feb. 13, 1996; 61 FR 31433, 31434, June 20, 1996; 63 FR 1298, Jan. 8, 1998; 70 FR 1144, Jan. 5, 2005; 71 FR 16675, Apr. 3, 2006; 71 FR 50192, Aug. 24, 2006; 73 FR 75589, Dec. 12, 2008; 76 FR 33612, June 8, 2011; 77 FR 17895, Mar. 26, 2012; 84 FR 21597, May 14, 2019; 85 FR 8746, Feb. 18, 2020]
§ 1926.1128 Benzene.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1028 of this chapter.
[61 FR 31434, June 20, 1996]
§ 1926.1129 [Reserved]
§ 1926.1144 1,2-dibromo-3-chloropropane.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1044 of this chapter.
[61 FR 31434, June 20, 1996]
§ 1926.1145 Acrylonitrile.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1045 of this chapter.
[61 FR 31434, June 20, 1996]
§ 1926.1147 Ethylene oxide.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1047 of this chapter.
[61 FR 31434, June 20, 1996]
§ 1926.1148 Formaldehyde.
Note:
The requirements applicable to construction work under this section are identical to those set forth at § 1910.1048 of this chapter.
[61 FR 31434, June 20, 1996]
§ 1926.1152 Methylene chloride.
Note:
The requirements applicable to construction employment under this section are identical to those set forth at 29 CFR 1910.1052.
[62 FR 1619, Jan. 10, 1997]
§ 1926.1153 Respirable crystalline silica.
(a) Scope and application. This section applies to all occupational exposures to respirable crystalline silica in construction work, except where employee exposure will remain below 25 micrograms per cubic meter of air (25 µg/m 3) as an 8-hour time-weighted average (TWA) under any foreseeable conditions.
(b) Definitions. For the purposes of this section the following definitions apply:
Action level means a concentration of airborne respirable crystalline silica of 25 µg/m 3, calculated as an 8-hour TWA.
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.
Director means the Director of the National Institute for Occupational Safety and Health (NIOSH), U.S. Department of Health and Human Services, or designee.
Competent person means an individual who is capable of identifying existing and foreseeable respirable crystalline silica hazards in the workplace and who has authorization to take prompt corrective measures to eliminate or minimize them. The competent person must have the knowledge and ability necessary to fulfill the responsibilities set forth in paragraph (g) of this section.
Employee exposure means the exposure to airborne respirable crystalline silica that would occur if the employee were not using a respirator.
High-efficiency particulate air [HEPA] filter means a filter that is at least 99.97 percent efficient in removing mono-dispersed particles of 0.3 micrometers in diameter.
Objective data means information, such as air monitoring data from industry-wide surveys or calculations based on the composition of a substance, demonstrating employee exposure to respirable crystalline silica associated with a particular product or material or a specific process, task, or activity. The data must reflect workplace conditions closely resembling or with a higher exposure potential than the processes, types of material, control methods, work practices, and environmental conditions in the employer's current operations.
Physician or other licensed health care professional [PLHCP] means an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently provide or be delegated the responsibility to provide some or all of the particular health care services required by paragraph (h) of this section.
Respirable crystalline silica means quartz, cristobalite, and/or tridymite contained in airborne particles that are determined to be respirable by a sampling device designed to meet the characteristics for respirable-particle-size-selective samplers specified in the International Organization for Standardization (ISO) 7708:1995: Air Quality—Particle Size Fraction Definitions for Health-Related Sampling.
Specialist means an American Board Certified Specialist in Pulmonary Disease or an American Board Certified Specialist in Occupational Medicine.
This section means this respirable crystalline silica standard, 29 CFR 1926.1153.
(c) Specified exposure control methods. (1) For each employee engaged in a task identified on Table 1, the employer shall fully and properly implement the engineering controls, work practices, and respiratory protection specified for the task on Table 1, unless the employer assesses and limits the exposure of the employee to respirable crystalline silica in accordance with paragraph (d) of this section.
Table 1—Specified Exposure Control Methods When Working With Materials Containing Crystalline Silica
Equipment/task | Engineering and work practice control methods | Required respiratory protection and minimum assigned protection factor (APF)
≤4 hours/shift | >4 hours/shift
(i) Stationary masonry saws | Use saw equipped with integrated water delivery system that continuously feeds water to the blade | None | None.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
(ii) Handheld power saws (any blade diameter) | Use saw equipped with integrated water delivery system that continuously feeds water to the blade
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions:
—When used outdoors | None | APF 10.
—When used indoors or in an enclosed area | APF 10 | APF 10.
(iii) Handheld power saws for cutting fiber-cement board (with blade diameter of 8 inches or less) | For tasks performed outdoors only: Use saw equipped with commercially available dust collection system Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions | None | None.
Dust collector must provide the air flow recommended by the tool manufacturer, or greater, and have a filter with 99% or greater efficiency
(iv) Walk-behind saws | Use saw equipped with integrated water delivery system that continuously feeds water to the blade
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions:
—When used outdoors | None | None.
—When used indoors or in an enclosed area | APF 10 | APF 10.
(v) Drivable saws | For tasks performed outdoors only:
Use saw equipped with integrated water delivery system that continuously feeds water to the blade | None | None.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
(vi) Rig-mounted core saws or drills | Use tool equipped with integrated water delivery system that supplies water to cutting surface | None | None.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
(vii) Handheld and stand-mounted drills (including impact and rotary hammer drills) | Use drill equipped with commercially available shroud or cowling with dust collection system | None | None.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
Dust collector must provide the air flow recommended by the tool manufacturer, or greater, and have a filter with 99% or greater efficiency and a filter-cleaning mechanism
Use a HEPA-filtered vacuum when cleaning holes
(viii) Dowel drilling rigs for concrete | For tasks performed outdoors only:
Use shroud around drill bit with a dust collection system. Dust collector must have a filter with 99% or greater efficiency and a filter-cleaning mechanism | APF 10 | APF 10.
Use a HEPA-filtered vacuum when cleaning holes
(ix) Vehicle-mounted drilling rigs for rock and concrete | Use dust collection system with close capture hood or shroud around drill bit with a low-flow water spray to wet the dust at the discharge point from the dust collector | None | None.
OR
Operate from within an enclosed cab and use water for dust suppression on drill bit | None | None.
(x) Jackhammers and handheld powered chipping tools | Use tool with water delivery system that supplies a continuous stream or spray of water at the point of impact:
—When used outdoors | None | APF 10.
—When used indoors or in an enclosed area | APF 10 | APF 10.
OR
Use tool equipped with commercially available shroud and dust collection system
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
Dust collector must provide the air flow recommended by the tool manufacturer, or greater, and have a filter with 99% or greater efficiency and a filter-cleaning mechanism:
—When used outdoors | None | APF 10.
—When used indoors or in an enclosed area | APF 10 | APF 10.
(xi) Handheld grinders for mortar removal (i.e., tuckpointing) | Use grinder equipped with commercially available shroud and dust collection system | APF 10 | APF 25.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
Dust collector must provide 25 cubic feet per minute (cfm) or greater of airflow per inch of wheel diameter and have a filter with 99% or greater efficiency and a cyclonic pre-separator or filter-cleaning mechanism
(xii) Handheld grinders for uses other than mortar removal | For tasks performed outdoors only: Use grinder equipped with integrated water delivery system that continuously feeds water to the grinding surface | None | None.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
OR
Use grinder equipped with commercially available shroud and dust collection system
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
Dust collector must provide 25 cubic feet per minute (cfm) or greater of airflow per inch of wheel diameter and have a filter with 99% or greater efficiency and a cyclonic pre-separator or filter-cleaning mechanism:
—When used outdoors | None | None.
—When used indoors or in an enclosed area | None | APF 10.
(xiii) Walk-behind milling machines and floor grinders | Use machine equipped with integrated water delivery system that continuously feeds water to the cutting surface | None | None.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
OR
Use machine equipped with dust collection system recommended by the manufacturer | None | None.
Operate and maintain tool in accordance with manufacturer's instructions to minimize dust emissions
Dust collector must provide the air flow recommended by the manufacturer, or greater, and have a filter with 99% or greater efficiency and a filter-cleaning mechanism
When used indoors or in an enclosed area, use a HEPA-filtered vacuum to remove loose dust in between passes
(xiv) Small drivable milling machines (less than half-lane) | Use a machine equipped with supplemental water sprays designed to suppress dust. Water must be combined with a surfactant | None | None.
Operate and maintain machine to minimize dust emissions
(xv) Large drivable milling machines (half-lane and larger) | For cuts of any depth on asphalt only: Use machine equipped with exhaust ventilation on drum enclosure and supplemental water sprays designed to suppress dust | None | None.
Operate and maintain machine to minimize dust emissions
For cuts of four inches in depth or less on any substrate:
Use machine equipped with exhaust ventilation on drum enclosure and supplemental water sprays designed to suppress dust | None | None.
Operate and maintain machine to minimize dust emissions
OR
Use a machine equipped with supplemental water spray designed to suppress dust. Water must be combined with a surfactant | None | None.
Operate and maintain machine to minimize dust emissions
(xvi) Crushing machines | Use equipment designed to deliver water spray or mist for dust suppression at crusher and other points where dust is generated (e.g., hoppers, conveyers, sieves/sizing or vibrating components, and discharge points) | None | None.
Operate and maintain machine in accordance with manufacturer's instructions to minimize dust emissions
Use a ventilated booth that provides fresh, climate-controlled air to the operator, or a remote control station
(xvii) Heavy equipment and utility vehicles used to abrade or fracture silica-containing materials (e.g., hoe-ramming, rock ripping) or used during demolition activities involving silica-containing materials | Operate equipment from within an enclosed cab When employees outside of the cab are engaged in the task, apply water and/or dust suppressants as necessary to minimize dust emissions | None None | None. None.
(xviii) Heavy equipment and utility vehicles for tasks such as grading and excavating but not including: Demolishing, abrading, or fracturing silica-containing materials | Apply water and/or dust suppressants as necessary to minimize dust emissions OR | None | None.
When the equipment operator is the only employee engaged in the task, operate equipment from within an enclosed cab | None | None.
(2) When implementing the control measures specified in Table 1, each employer shall:
(i) For tasks performed indoors or in enclosed areas, provide a means of exhaust as needed to minimize the accumulation of visible airborne dust;
(ii) For tasks performed using wet methods, apply water at flow rates sufficient to minimize release of visible dust;
(iii) For measures implemented that include an enclosed cab or booth, ensure that the enclosed cab or booth:
(A) Is maintained as free as practicable from settled dust;
(B) Has door seals and closing mechanisms that work properly;
(C) Has gaskets and seals that are in good condition and working properly;
(D) Is under positive pressure maintained through continuous delivery of fresh air;
(E) Has intake air that is filtered through a filter that is 95% efficient in the 0.3-10.0 µm range (e.g., MERV-16 or better); and
(F) Has heating and cooling capabilities.
(3) Where an employee performs more than one task on Table 1 during the course of a shift, and the total duration of all tasks combined is more than four hours, the required respiratory protection for each task is the respiratory protection specified for more than four hours per shift. If the total duration of all tasks on Table 1 combined is less than four hours, the required respiratory protection for each task is the respiratory protection specified for less than four hours per shift.
(d) Alternative exposure control methods. For tasks not listed in Table 1, or where the employer does not fully and properly implement the engineering controls, work practices, and respiratory protection described in Table 1:
(1) Permissible exposure limit (PEL). The employer shall ensure that no employee is exposed to an airborne concentration of respirable crystalline silica in excess of 50 µg/m 3, calculated as an 8-hour TWA.
(2) Exposure assessment—(i) General. The employer shall assess the exposure of each employee who is or may reasonably be expected to be exposed to respirable crystalline silica at or above the action level in accordance with either the performance option in paragraph (d)(2)(ii) or the scheduled monitoring option in paragraph (d)(2)(iii) of this section.
(ii) Performance option. The employer shall assess the 8-hour TWA exposure for each employee on the basis of any combination of air monitoring data or objective data sufficient to accurately characterize employee exposures to respirable crystalline silica.
(iii) Scheduled monitoring option. (A) The employer shall perform initial monitoring to assess the 8-hour TWA exposure for each employee on the basis of one or more personal breathing zone air samples that reflect the exposures of employees on each shift, for each job classification, in each work area. Where several employees perform the same tasks on the same shift and in the same work area, the employer may sample a representative fraction of these employees in order to meet this requirement. In representative sampling, the employer shall sample the employee(s) who are expected to have the highest exposure to respirable crystalline silica.
(B) If initial monitoring indicates that employee exposures are below the action level, the employer may discontinue monitoring for those employees whose exposures are represented by such monitoring.
(C) Where the most recent exposure monitoring indicates that employee exposures are at or above the action level but at or below the PEL, the employer shall repeat such monitoring within six months of the most recent monitoring.
(D) Where the most recent exposure monitoring indicates that employee exposures are above the PEL, the employer shall repeat such monitoring within three months of the most recent monitoring.
(E) Where the most recent (non-initial) exposure monitoring indicates that employee exposures are below the action level, the employer shall repeat such monitoring within six months of the most recent monitoring until two consecutive measurements, taken seven or more days apart, are below the action level, at which time the employer may discontinue monitoring for those employees whose exposures are represented by such monitoring, except as otherwise provided in paragraph (d)(2)(iv) of this section.
(iv) Reassessment of exposures. The employer shall reassess exposures whenever a change in the production, process, control equipment, personnel, or work practices may reasonably be expected to result in new or additional exposures at or above the action level, or when the employer has any reason to believe that new or additional exposures at or above the action level have occurred.
(v) Methods of sample analysis. The employer shall ensure that all samples taken to satisfy the monitoring requirements of paragraph (d)(2) of this section are evaluated by a laboratory that analyzes air samples for respirable crystalline silica in accordance with the procedures in appendix A to this section.
(vi) Employee notification of assessment results. (A) Within five working days after completing an exposure assessment in accordance with paragraph (d)(2) of this section, the employer shall individually notify each affected employee in writing of the results of that assessment or post the results in an appropriate location accessible to all affected employees.
(B) Whenever an exposure assessment indicates that employee exposure is above the PEL, the employer shall describe in the written notification the corrective action being taken to reduce employee exposure to or below the PEL.
(vii) Observation of monitoring. (A) Where air monitoring is performed to comply with the requirements of this section, the employer shall provide affected employees or their designated representatives an opportunity to observe any monitoring of employee exposure to respirable crystalline silica.
(B) When observation of monitoring requires entry into an area where the use of protective clothing or equipment is required for any workplace hazard, the employer shall provide the observer with protective clothing and equipment at no cost and shall ensure that the observer uses such clothing and equipment.
(3) Methods of compliance—(i) Engineering and work practice controls. The employer shall use engineering and work practice controls to reduce and maintain employee exposure to respirable crystalline silica to or below the PEL, unless the employer can demonstrate that such controls are not feasible. Wherever such feasible engineering and work practice controls are not sufficient to reduce employee exposure to or below the PEL, the employer shall nonetheless use them to reduce employee exposure to the lowest feasible level and shall supplement them with the use of respiratory protection that complies with the requirements of paragraph (e) of this section.
(ii) Abrasive blasting. In addition to the requirements of paragraph (d)(3)(i) of this section, the employer shall comply with other OSHA standards, when applicable, such as 29 CFR 1926.57 (Ventilation), where abrasive blasting is conducted using crystalline silica-containing blasting agents, or where abrasive blasting is conducted on substrates that contain crystalline silica.
(e) Respiratory protection—(1) General. Where respiratory protection is required by this section, the employer must provide each employee an appropriate respirator that complies with the requirements of this paragraph and 29 CFR 1910.134. Respiratory protection is required:
(i) Where specified by Table 1 of paragraph (c) of this section; or
(ii) For tasks not listed in Table 1, or where the employer does not fully and properly implement the engineering controls, work practices, and respiratory protection described in Table 1:
(A) Where exposures exceed the PEL during periods necessary to install or implement feasible engineering and work practice controls;
(B) Where exposures exceed the PEL during tasks, such as certain maintenance and repair tasks, for which engineering and work practice controls are not feasible; and
(C) During tasks for which an employer has implemented all feasible engineering and work practice controls and such controls are not sufficient to reduce exposures to or below the PEL.
(2) Respiratory protection program. Where respirator use is required by this section, the employer shall institute a respiratory protection program in accordance with 29 CFR 1910.134.
(3) Specified exposure control methods. For the tasks listed in Table 1 in paragraph (c) of this section, if the employer fully and properly implements the engineering controls, work practices, and respiratory protection described in Table 1, the employer shall be considered to be in compliance with paragraph (e)(1) of this section and the requirements for selection of respirators in 29 CFR 1910.134(d)(1)(iii) and (d)(3) with regard to exposure to respirable crystalline silica.
(f) Housekeeping. (1) The employer shall not allow dry sweeping or dry brushing where such activity could contribute to employee exposure to respirable crystalline silica unless wet sweeping, HEPA-filtered vacuuming or other methods that minimize the likelihood of exposure are not feasible.
(2) The employer shall not allow compressed air to be used to clean clothing or surfaces where such activity could contribute to employee exposure to respirable crystalline silica unless:
(i) The compressed air is used in conjunction with a ventilation system that effectively captures the dust cloud created by the compressed air; or
(ii) No alternative method is feasible.
(g) Written exposure control plan. (1) The employer shall establish and implement a written exposure control plan that contains at least the following elements:
(i) A description of the tasks in the workplace that involve exposure to respirable crystalline silica;
(ii) A description of the engineering controls, work practices, and respiratory protection used to limit employee exposure to respirable crystalline silica for each task;
(iii) A description of the housekeeping measures used to limit employee exposure to respirable crystalline silica; and
(iv) A description of the procedures used to restrict access to work areas, when necessary, to minimize the number of employees exposed to respirable crystalline silica and their level of exposure, including exposures generated by other employers or sole proprietors.
(2) The employer shall review and evaluate the effectiveness of the written exposure control plan at least annually and update it as necessary.
(3) The employer shall make the written exposure control plan readily available for examination and copying, upon request, to each employee covered by this section, their designated representatives, the Assistant Secretary and the Director.
(4) The employer shall designate a competent person to make frequent and regular inspections of job sites, materials, and equipment to implement the written exposure control plan.
(h) Medical surveillance—(1) General. (i) The employer shall make medical surveillance available at no cost to the employee, and at a reasonable time and place, for each employee who will be required under this section to use a respirator for 30 or more days per year.
(ii) The employer shall ensure that all medical examinations and procedures required by this section are performed by a PLHCP as defined in paragraph (b) of this section.
(2) Initial examination. The employer shall make available an initial (baseline) medical examination within 30 days after initial assignment, unless the employee has received a medical examination that meets the requirements of this section within the last three years. The examination shall consist of:
(i) A medical and work history, with emphasis on: Past, present, and anticipated exposure to respirable crystalline silica, dust, and other agents affecting the respiratory system; any history of respiratory system dysfunction, including signs and symptoms of respiratory disease (e.g., shortness of breath, cough, wheezing); history of tuberculosis; and smoking status and history;
(ii) A physical examination with special emphasis on the respiratory system;
(iii) A chest X-ray (a single posteroanterior radiographic projection or radiograph of the chest at full inspiration recorded on either film (no less than 14 x 17 inches and no more than 16 x 17 inches) or digital radiography systems), interpreted and classified according to the International Labour Office (ILO) International Classification of Radiographs of Pneumoconioses by a NIOSH-certified B Reader;
(iv) A pulmonary function test to include forced vital capacity (FVC) and forced expiratory volume in one second (FEV1) and FEV1/FVC ratio, administered by a spirometry technician with a current certificate from a NIOSH-approved spirometry course;
(v) Testing for latent tuberculosis infection; and
(vi) Any other tests deemed appropriate by the PLHCP.
(3) Periodic examinations. The employer shall make available medical examinations that include the procedures described in paragraph (h)(2) of this section (except paragraph (h)(2)(v)) at least every three years, or more frequently if recommended by the PLHCP.
(4) Information provided to the PLHCP. The employer shall ensure that the examining PLHCP has a copy of this standard, and shall provide the PLHCP with the following information:
(i) A description of the employee's former, current, and anticipated duties as they relate to the employee's occupational exposure to respirable crystalline silica;
(ii) The employee's former, current, and anticipated levels of occupational exposure to respirable crystalline silica;
(iii) A description of any personal protective equipment used or to be used by the employee, including when and for how long the employee has used or will use that equipment; and
(iv) Information from records of employment-related medical examinations previously provided to the employee and currently within the control of the employer.
(5) PLHCP's written medical report for the employee. The employer shall ensure that the PLHCP explains to the employee the results of the medical examination and provides each employee with a written medical report within 30 days of each medical examination performed. The written report shall contain:
(i) A statement indicating the results of the medical examination, including any medical condition(s) that would place the employee at increased risk of material impairment to health from exposure to respirable crystalline silica and any medical conditions that require further evaluation or treatment;
(ii) Any recommended limitations on the employee's use of respirators;
(iii) Any recommended limitations on the employee's exposure to respirable crystalline silica; and
(iv) A statement that the employee should be examined by a specialist (pursuant to paragraph (h)(7) of this section) if the chest X-ray provided in accordance with this section is classified as 1/0 or higher by the B Reader, or if referral to a specialist is otherwise deemed appropriate by the PLHCP.
(6) PLHCP's written medical opinion for the employer. (i) The employer shall obtain a written medical opinion from the PLHCP within 30 days of the medical examination. The written opinion shall contain only the following:
(A) The date of the examination;
(B) A statement that the examination has met the requirements of this section; and
(C) Any recommended limitations on the employee's use of respirators.
(ii) If the employee provides written authorization, the written opinion shall also contain either or both of the following:
(A) Any recommended limitations on the employee's exposure to respirable crystalline silica;
(B) A statement that the employee should be examined by a specialist (pursuant to paragraph (h)(7) of this section) if the chest X-ray provided in accordance with this section is classified as 1/0 or higher by the B Reader, or if referral to a specialist is otherwise deemed appropriate by the PLHCP.
(iii) The employer shall ensure that each employee receives a copy of the written medical opinion described in paragraph (h)(6)(i) and (ii) of this section within 30 days of each medical examination performed.
(7) Additional examinations. (i) If the PLHCP's written medical opinion indicates that an employee should be examined by a specialist, the employer shall make available a medical examination by a specialist within 30 days after receiving the PLHCP's written opinion.
(ii) The employer shall ensure that the examining specialist is provided with all of the information that the employer is obligated to provide to the PLHCP in accordance with paragraph (h)(4) of this section.
(iii) The employer shall ensure that the specialist explains to the employee the results of the medical examination and provides each employee with a written medical report within 30 days of the examination. The written report shall meet the requirements of paragraph (h)(5) (except paragraph (h)(5)(iv)) of this section.
(iv) The employer shall obtain a written opinion from the specialist within 30 days of the medical examination. The written opinion shall meet the requirements of paragraph (h)(6) (except paragraph (h)(6)(i)(B) and (ii)(B)) of this section.
(i) Communication of respirable crystalline silica hazards to employees—(1) Hazard communication. The employer shall include respirable crystalline silica in the program established to comply with the hazard communication standard (HCS) (29 CFR 1910.1200). The employer shall ensure that each employee has access to labels on containers of crystalline silica and safety data sheets, and is trained in accordance with the provisions of HCS and paragraph (i)(2) of this section. The employer shall ensure that at least the following hazards are addressed: Cancer, lung effects, immune system effects, and kidney effects.
(2) Employee information and training. (i) The employer shall ensure that each employee covered by this section can demonstrate knowledge and understanding of at least the following:
(A) The health hazards associated with exposure to respirable crystalline silica;
(B) Specific tasks in the workplace that could result in exposure to respirable crystalline silica;
(C) Specific measures the employer has implemented to protect employees from exposure to respirable crystalline silica, including engineering controls, work practices, and respirators to be used;
(D) The contents of this section;
(E) The identity of the competent person designated by the employer in accordance with paragraph (g)(4) of this section; and
(F) The purpose and a description of the medical surveillance program required by paragraph (h) of this section.
(ii) The employer shall make a copy of this section readily available without cost to each employee covered by this section.
(j) Recordkeeping—(1) Air monitoring data. (i) The employer shall make and maintain an accurate record of all exposure measurements taken to assess employee exposure to respirable crystalline silica, as prescribed in paragraph (d)(2) of this section.
(ii) This record shall include at least the following information:
(A) The date of measurement for each sample taken;
(B) The task monitored;
(C) Sampling and analytical methods used;
(D) Number, duration, and results of samples taken;
(E) Identity of the laboratory that performed the analysis;
(F) Type of personal protective equipment, such as respirators, worn by the employees monitored; and
(G) Name and job classification of all employees represented by the monitoring, indicating which employees were actually monitored.
(iii) The employer shall ensure that exposure records are maintained and made available in accordance with 29 CFR 1910.1020.
(2) Objective data. (i) The employer shall make and maintain an accurate record of all objective data relied upon to comply with the requirements of this section.
(ii) This record shall include at least the following information:
(A) The crystalline silica-containing material in question;
(B) The source of the objective data;
(C) The testing protocol and results of testing;
(D) A description of the process, task, or activity on which the objective data were based; and
(E) Other data relevant to the process, task, activity, material, or exposures on which the objective data were based.
(iii) The employer shall ensure that objective data are maintained and made available in accordance with 29 CFR 1910.1020.
(3) Medical surveillance. (i) The employer shall make and maintain an accurate record for each employee covered by medical surveillance under paragraph (h) of this section.
(ii) The record shall include the following information about the employee:
(A) Name;
(B) A copy of the PLHCPs' and specialists' written medical opinions; and
(C) A copy of the information provided to the PLHCPs and specialists.
(iii) The employer shall ensure that medical records are maintained and made available in accordance with 29 CFR 1910.1020.
(k) Dates. (1) This section shall become effective June 23, 2016.
(2) All obligations of this section, except requirements for methods of sample analysis in paragraph (d)(2)(v), shall commence June 23, 2017.
(3) Requirements for methods of sample analysis in paragraph (d)(2)(v) of this section commence June 23, 2018.
Appendix A to § 1926.1153—Methods of Sample Analysis
This This appendix specifies the procedures for analyzing air samples for respirable crystalline silica, as well as the quality control procedures that employers must ensure that laboratories use when performing an analysis required under 29 CFR 1926.1153 (d)(2)(v). Employers must ensure that such a laboratory:
1. Evaluates all samples using the procedures specified in one of the following analytical methods: OSHA ID-142; NMAM 7500; NMAM 7602; NMAM 7603; MSHA P-2; or MSHA P-7;
2. Is accredited to ANS/ISO/IEC Standard 17025:2005 with respect to crystalline silica analyses by a body that is compliant with ISO/IEC Standard 17011:2004 for implementation of quality assessment programs;
3. Uses the most current National Institute of Standards and Technology (NIST) or NIST traceable standards for instrument calibration or instrument calibration verification;
4. Implements an internal quality control (QC) program that evaluates analytical uncertainty and provides employers with estimates of sampling and analytical error;
5. Characterizes the sample material by identifying polymorphs of respirable crystalline silica present, identifies the presence of any interfering compounds that might affect the analysis, and makes any corrections necessary in order to obtain accurate sample analysis; and
6. Analyzes quantitatively for crystalline silica only after confirming that the sample matrix is free of uncorrectable analytical interferences, corrects for analytical interferences, and uses a method that meets the following performance specifications:
6.1 Each day that samples are analyzed, performs instrument calibration checks with standards that bracket the sample concentrations;
6.2 Uses five or more calibration standard levels to prepare calibration curves and ensures that standards are distributed through the calibration range in a manner that accurately reflects the underlying calibration curve; and
6.3 Optimizes methods and instruments to obtain a quantitative limit of detection that represents a value no higher than 25 percent of the PEL based on sample air volume.
Appendix B to § 1926.1153—Medical Surveillance Guidelines Introduction
The purpose of this Appendix is to provide medical information and recommendations to aid physicians and other licensed health care professionals (PLHCPs) regarding compliance with the medical surveillance provisions of the respirable crystalline silica standard (29 CFR 1926.1153). Appendix B is for informational and guidance purposes only and none of the statements in Appendix B should be construed as imposing a mandatory requirement on employers that is not otherwise imposed by the standard.
Medical screening and surveillance allow for early identification of exposure-related health effects in individual employee and groups of employees, so that actions can be taken to both avoid further exposure and prevent or address adverse health outcomes. Silica-related diseases can be fatal, encompass a variety of target organs, and may have public health consequences when considering the increased risk of a latent tuberculosis (TB) infection becoming active. Thus, medical surveillance of silica-exposed employees requires that PLHCPs have a thorough knowledge of silica-related health effects.
This Appendix is divided into seven sections. Section 1 reviews silica-related diseases, medical responses, and public health responses. Section 2 outlines the components of the medical surveillance program for employees exposed to silica. Section 3 describes the roles and responsibilities of the PLHCP implementing the program and of other medical specialists and public health professionals. Section 4 provides a discussion of considerations, including confidentiality. Section 5 provides a list of additional resources and Section 6 lists references. Section 7 provides sample forms for the written medical report for the employee, the written medical opinion for the employer and the written authorization.
1. Recognition of Silica-Related Diseases
1.1. Overview. The term “silica” refers specifically to the compound silicon dioxide (SiO2). Silica is a major component of sand, rock, and mineral ores. Exposure to fine (respirable size) particles of crystalline forms of silica is associated with adverse health effects, such as silicosis, lung cancer, chronic obstructive pulmonary disease (COPD), and activation of latent TB infections. Exposure to respirable crystalline silica can occur in industry settings such as foundries, abrasive blasting operations, paint manufacturing, glass and concrete product manufacturing, brick making, china and pottery manufacturing, manufacturing of plumbing fixtures, and many construction activities including highway repair, masonry, concrete work, rock drilling, and tuck-pointing. New uses of silica continue to emerge. These include countertop manufacturing, finishing, and installation (Kramer et al. 2012; OSHA 2015) and hydraulic fracturing in the oil and gas industry (OSHA 2012).
Silicosis is an irreversible, often disabling, and sometimes fatal fibrotic lung disease. Progression of silicosis can occur despite removal from further exposure. Diagnosis of silicosis requires a history of exposure to silica and radiologic findings characteristic of silica exposure. Three different presentations of silicosis (chronic, accelerated, and acute) have been defined. Accelerated and acute silicosis are much less common than chronic silicosis. However, it is critical to recognize all cases of accelerated and acute silicosis because these are life-threatening illnesses and because they are caused by substantial overexposures to respirable crystalline silica. Although any case of silicosis indicates a breakdown in prevention, a case of acute or accelerated silicosis implies current high exposure and a very marked breakdown in prevention.
In addition to silicosis, employees exposed to respirable crystalline silica, especially those with accelerated or acute silicosis, are at increased risks of contracting active TB and other infections (ATS 1997; Rees and Murray 2007). Exposure to respirable crystalline silica also increases an employee's risk of developing lung cancer, and the higher the cumulative exposure, the higher the risk (Steenland et al. 2001; Steenland and Ward 2014). Symptoms for these diseases and other respirable crystalline silica-related diseases are discussed below.
1.2. Chronic Silicosis. Chronic silicosis is the most common presentation of silicosis and usually occurs after at least 10 years of exposure to respirable crystalline silica. The clinical presentation of chronic silicosis is:
1.2.1. Symptoms—shortness of breath and cough, although employees may not notice any symptoms early in the disease. Constitutional symptoms, such as fever, loss of appetite and fatigue, may indicate other diseases associated with silica exposure, such as TB infection or lung cancer. Employees with these symptoms should immediately receive further evaluation and treatment.
1.2.2. Physical Examination—may be normal or disclose dry rales or rhonchi on lung auscultation.
1.2.3. Spirometry—may be normal or may show only a mild restrictive or obstructive pattern.
1.2.4. Chest X-ray—classic findings are small, rounded opacities in the upper lung fields bilaterally. However, small irregular opacities and opacities in other lung areas can also occur. Rarely, “eggshell calcifications” in the hilar and mediastinal lymph nodes are seen.
1.2.5. Clinical Course—chronic silicosis in most cases is a slowly progressive disease. Under the respirable crystalline silica standard, the PLHCP is to recommend that employees with a 1/0 category X-ray be referred to an American Board Certified Specialist in Pulmonary Disease or Occupational Medicine. The PLHCP and/or Specialist should counsel employees regarding work practices and personal habits that could affect employees' respiratory health.
1.3. Accelerated Silicosis. Accelerated silicosis generally occurs within 5-10 years of exposure and results from high levels of exposure to respirable crystalline silica. The clinical presentation of accelerated silicosis is:
1.3.1. Symptoms—shortness of breath, cough, and sometimes sputum production. Employees with exposure to respirable crystalline silica, and especially those with accelerated silicosis, are at high risk for activation of TB infections, atypical mycobacterial infections, and fungal superinfections. Constitutional symptoms, such as fever, weight loss, hemoptysis (coughing up blood), and fatigue may herald one of these infections or the onset of lung cancer.
1.3.2. Physical Examination—rales, rhonchi, or other abnormal lung findings in relation to illnesses present. Clubbing of the digits, signs of heart failure, and cor pulmonale may be present in severe lung disease.
1.3.3. Spirometry—restrictive or mixed restrictive/obstructive pattern.
1.3.4. Chest X-ray—small rounded and/or irregular opacities bilaterally. Large opacities and lung abscesses may indicate infections, lung cancer, or progression to complicated silicosis, also termed progressive massive fibrosis.
1.3.5. Clinical Course—accelerated silicosis has a rapid, severe course. Under the respirable crystalline silica standard, the PLHCP can recommend referral to a Board Certified Specialist in either Pulmonary Disease or Occupational Medicine, as deemed appropriate, and referral to a Specialist is recommended whenever the diagnosis of accelerated silicosis is being considered.
1.4. Acute Silicosis. Acute silicosis is a rare disease caused by inhalation of extremely high levels of respirable crystalline silica particles. The pathology is similar to alveolar proteinosis with lipoproteinaceous material accumulating in the alveoli. Acute silicosis develops rapidly, often, within a few months to less than 2 years of exposure, and is almost always fatal. The clinical presentation of acute silicosis is as follows:
1.4.1. Symptoms—sudden, progressive, and severe shortness of breath. Constitutional symptoms are frequently present and include fever, weight loss, fatigue, productive cough, hemoptysis (coughing up blood), and pleuritic chest pain.
1.4.2. Physical Examination—dyspnea at rest, cyanosis, decreased breath sounds, inspiratory rales, clubbing of the digits, and fever.
1.4.3. Spirometry—restrictive or mixed restrictive/obstructive pattern.
1.4.4. Chest X-ray—diffuse haziness of the lungs bilaterally early in the disease. As the disease progresses, the “ground glass” appearance of interstitial fibrosis will appear.
1.4.5. Clinical Course—employees with acute silicosis are at especially high risk of TB activation, nontuberculous mycobacterial infections, and fungal superinfections. Acute silicosis is immediately life-threatening. The employee should be urgently referred to a Board Certified Specialist in Pulmonary Disease or Occupational Medicine for evaluation and treatment. Although any case of silicosis indicates a breakdown in prevention, a case of acute or accelerated silicosis implies a profoundly high level of silica exposure and may mean that other employees are currently exposed to dangerous levels of silica.
1.5. COPD. COPD, including chronic bronchitis and emphysema, has been documented in silica-exposed employees, including those who do not develop silicosis. Periodic spirometry tests are performed to evaluate each employee for progressive changes consistent with the development of COPD. In addition to evaluating spirometry results of individual employees over time, PLHCPs may want to be aware of general trends in spirometry results for groups of employees from the same workplace to identify possible problems that might exist at that workplace. (See Section 2 of this Appendix on Medical Surveillance for further discussion.) Heart disease may develop secondary to lung diseases such as COPD. A recent study by Liu et al. 2014 noted a significant exposure-response trend between cumulative silica exposure and heart disease deaths, primarily due to pulmonary heart disease, such as cor pulmonale.
1.6. Renal and Immune System. Silica exposure has been associated with several types of kidney disease, including glomerulonephritis, nephrotic syndrome, and end stage renal disease requiring dialysis. Silica exposure has also been associated with other autoimmune conditions, including progressive systemic sclerosis, systemic lupus erythematosus, and rheumatoid arthritis. Studies note an association between employees with silicosis and serologic markers for autoimmune diseases, including antinuclear antibodies, rheumatoid factor, and immune complexes (Jalloul and Banks 2007; Shtraichman et al. 2015).
1.7. TB and Other Infections. Silica-exposed employees with latent TB are 3 to 30 times more likely to develop active pulmonary TB infection (ATS 1997; Rees and Murray 2007). Although respirable crystalline silica exposure does not cause TB infection, individuals with latent TB infection are at increased risk for activation of disease if they have higher levels of respirable crystalline silica exposure, greater profusion of radiographic abnormalities, or a diagnosis of silicosis. Demographic characteristics, such as immigration from some countries, are associated with increased rates of latent TB infection. PLHCPs can review the latest Centers for Disease Control and Prevention (CDC) information on TB incidence rates and high risk populations online (See Section 5 of this Appendix). Additionally, silica-exposed employees are at increased risk for contracting nontuberculous mycobacterial infections, including Mycobacterium avium-intracellulare and Mycobacterium kansaii.
1.8. Lung Cancer. The National Toxicology Program has listed respirable crystalline silica as a known human carcinogen since 2000 (NTP 2014). The International Agency for Research on Cancer (2012) has also classified silica as Group 1 (carcinogenic to humans). Several studies have indicated that the risk of lung cancer from exposure to respirable crystalline silica and smoking is greater than additive (Brown 2009; Liu et al. 2013). Employees should be counseled on smoking cessation.
2. Medical Surveillance
PLHCPs who manage silica medical surveillance programs should have a thorough understanding of the many silica-related diseases and health effects outlined in Section 1 of this Appendix. At each clinical encounter, the PLHCP should consider silica-related health outcomes, with particular vigilance for acute and accelerated silicosis. In this Section, the required components of medical surveillance under the respirable crystalline silica standard are reviewed, along with additional guidance and recommendations for PLHCPs performing medical surveillance examinations for silica-exposed employees.
2.1. History.
2.1.1. The respirable crystalline silica standard requires the following: A medical and work history, with emphasis on: Past, present, and anticipated exposure to respirable crystalline silica, dust, and other agents affecting the respiratory system; any history of respiratory system dysfunction, including signs and symptoms of respiratory disease (e.g., shortness of breath, cough, wheezing); history of TB; and smoking status and history.
2.1.2. Further, the employer must provide the PLHCP with the following information:
2.1.2.1. A description of the employee's former, current, and anticipated duties as they relate to the employee's occupational exposure to respirable crystalline silica;
2.1.2.2. The employee's former, current, and anticipated levels of occupational exposure to respirable crystalline silica;
2.1.2.3. A description of any personal protective equipment used or to be used by the employee, including when and for how long the employee has used or will use that equipment; and
2.1.2.4. Information from records of employment-related medical examinations previously provided to the employee and currently within the control of the employer.
2.1.3. Additional guidance and recommendations: A history is particularly important both in the initial evaluation and in periodic examinations. Information on past and current medical conditions (particularly a history of kidney disease, cardiac disease, connective tissue disease, and other immune diseases), medications, hospitalizations and surgeries may uncover health risks, such as immune suppression, that could put an employee at increased health risk from exposure to silica. This information is important when counseling the employee on risks and safe work practices related to silica exposure.
2.2. Physical Examination.
2.2.1. The respirable crystalline silica standard requires the following: A physical examination, with special emphasis on the respiratory system. The physical examination must be performed at the initial examination and every three years thereafter.
2.2.2. Additional guidance and recommendations: Elements of the physical examination that can assist the PHLCP include: An examination of the cardiac system, an extremity examination (for clubbing, cyanosis, edema, or joint abnormalities), and an examination of other pertinent organ systems identified during the history.
2.3. TB Testing.
2.3.1. The respirable crystalline silica standard requires the following: Baseline testing for TB on initial examination.
2.3.2. Additional guidance and recommendations:
2.3.2.1. Current CDC guidelines (See Section 5 of this Appendix) should be followed for the application and interpretation of Tuberculin skin tests (TST). The interpretation and documentation of TST reactions should be performed within 48 to 72 hours of administration by trained PLHCPs.
2.3.2.2. PLHCPs may use alternative TB tests, such as interferon-γ release assays (IGRAs), if sensitivity and specificity are comparable to TST (Mazurek et al. 2010; Slater et al. 2013). PLHCPs can consult the current CDC guidelines for acceptable tests for latent TB infection.
2.3.2.3. The silica standard allows the PLHCP to order additional tests or test at a greater frequency than required by the standard, if deemed appropriate. Therefore, PLHCPs might perform periodic (e.g., annual) TB testing as appropriate, based on employees' risk factors. For example, according to the American Thoracic Society (ATS), the diagnosis of silicosis or exposure to silica for 25 years or more are indications for annual TB testing (ATS 1997). PLHCPs should consult the current CDC guidance on risk factors for TB (See Section 5 of this Appendix).
2.3.2.4. Employees with positive TB tests and those with indeterminate test results should be referred to the appropriate agency or specialist, depending on the test results and clinical picture. Agencies, such as local public health departments, or specialists, such as a pulmonary or infectious disease specialist, may be the appropriate referral. Active TB is a nationally notifiable disease. PLHCPs should be aware of the reporting requirements for their region. All States have TB Control Offices that can be contacted for further information. (See Section 5 of this Appendix for links to CDC's TB resources and State TB Control Offices.)
2.3.2.5. The following public health principles are key to TB control in the U.S. (ATS-CDC-IDSA 2005):
(1) Prompt detection and reporting of persons who have contracted active TB;
(2) Prevention of TB spread to close contacts of active TB cases;
(3) Prevention of active TB in people with latent TB through targeted testing and treatment; and
(4) Identification of settings at high risk for TB transmission so that appropriate infection-control measures can be implemented.
2.4. Pulmonary Function Testing.
2.4.1. The respirable crystalline silica standard requires the following: Pulmonary function testing must be performed on the initial examination and every three years thereafter. The required pulmonary function test is spirometry and must include forced vital capacity (FVC), forced expiratory volume in one second (FEV1), and FEV1/FVC ratio. Testing must be administered by a spirometry technician with a current certificate from a National Institute for Occupational Health and Safety (NIOSH)-approved spirometry course.
2.4.2. Additional guidance and recommendations: Spirometry provides information about individual respiratory status and can be used to track an employee's respiratory status over time or as a surveillance tool to follow individual and group respiratory function. For quality results, the ATS and the American College of Occupational and Environmental Medicine (ACOEM) recommend use of the third National Health and Nutrition Examination Survey (NHANES III) values, and ATS publishes recommendations for spirometry equipment (Miller et al. 2005; Townsend 2011; Redlich et al. 2014). OSHA's publication, Spirometry Testing in Occupational Health Programs: Best Practices for Healthcare Professionals, provides helpful guidance (See Section 5 of this Appendix). Abnormal spirometry results may warrant further clinical evaluation and possible recommendations for limitations on the employee's exposure to respirable crystalline silica.
2.5. Chest X-ray.
2.5.1. The respirable crystalline silica standard requires the following: A single posteroanterior (PA) radiographic projection or radiograph of the chest at full inspiration recorded on either film (no less than 14 x 17 inches and no more than 16 x 17 inches) or digital radiography systems. A chest X-ray must be performed on the initial examination and every three years thereafter. The chest X-ray must be interpreted and classified according to the International Labour Office (ILO) International Classification of Radiographs of Pneumoconioses by a NIOSH-certified B Reader.
Chest radiography is necessary to diagnose silicosis, monitor the progression of silicosis, and identify associated conditions such as TB. If the B reading indicates small opacities in a profusion of 1/0 or higher, the employee is to receive a recommendation for referral to a Board Certified Specialist in Pulmonary Disease or Occupational Medicine.
2.5.2. Additional guidance and recommendations: Medical imaging has largely transitioned from conventional film-based radiography to digital radiography systems. The ILO Guidelines for the Classification of Pneumoconioses has historically provided film-based chest radiography as a referent standard for comparison to individual exams. However, in 2011, the ILO revised the guidelines to include a digital set of referent standards that were derived from the prior film-based standards. To assist in assuring that digitally-acquired radiographs are at least as safe and effective as film radiographs, NIOSH has prepared guidelines, based upon accepted contemporary professional recommendations (See Section 5 of this Appendix). Current research from Laney et al. 2011 and Halldin et al. 2014 validate the use of the ILO digital referent images. Both studies conclude that the results of pneumoconiosis classification using digital references are comparable to film-based ILO classifications. Current ILO guidance on radiography for pneumoconioses and B-reading should be reviewed by the PLHCP periodically, as needed, on the ILO or NIOSH Web sites (See Section 5 of this Appendix).
2.6. Other Testing. Under the respirable crystalline silica standards, the PLHCP has the option of ordering additional testing he or she deems appropriate. Additional tests can be ordered on a case-by-case basis depending on individual signs or symptoms and clinical judgment. For example, if an employee reports a history of abnormal kidney function tests, the PLHCP may want to order a baseline renal function tests (e.g., serum creatinine and urinalysis). As indicated above, the PLHCP may order annual TB testing for silica-exposed employees who are at high risk of developing active TB infections. Additional tests that PLHCPs may order based on findings of medical examinations include, but is not limited to, chest computerized tomography (CT) scan for lung cancer or COPD, testing for immunologic diseases, and cardiac testing for pulmonary-related heart disease, such as cor pulmonale.
3. Roles and Responsibilities
3.1. PLHCP. The PLHCP designation refers to “an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently provide or be delegated the responsibility to provide some or all of the particular health care services required” by the respirable crystalline silica standard. The legally permitted scope of practice for the PLHCP is determined by each State. PLHCPs who perform clinical services for a silica medical surveillance program should have a thorough knowledge of respirable crystalline silica-related diseases and symptoms. Suspected cases of silicosis, advanced COPD, or other respiratory conditions causing impairment should be promptly referred to a Board Certified Specialist in Pulmonary Disease or Occupational Medicine.
Once the medical surveillance examination is completed, the employer must ensure that the PLHCP explains to the employee the results of the medical examination and provides the employee with a written medical report within 30 days of the examination. The written medical report must contain a statement indicating the results of the medical examination, including any medical condition(s) that would place the employee at increased risk of material impairment to health from exposure to respirable crystalline silica and any medical conditions that require further evaluation or treatment. In addition, the PLHCP's written medical report must include any recommended limitations on the employee's use of respirators, any recommended limitations on the employee's exposure to respirable crystalline silica, and a statement that the employee should be examined by a Board Certified Specialist in Pulmonary Disease or Occupational medicine if the chest X-ray is classified as 1/0 or higher by the B Reader, or if referral to a Specialist is otherwise deemed appropriate by the PLHCP.
The PLHCP should discuss all findings and test results and any recommendations regarding the employee's health, worksite safety and health practices, and medical referrals for further evaluation, if indicated. In addition, it is suggested that the PLHCP offer to provide the employee with a complete copy of their examination and test results, as some employees may want this information for their own records or to provide to their personal physician or a future PLHCP. Employees are entitled to access their medical records.
Under the respirable crystalline silica standard, the employer must ensure that the PLHCP provides the employer with a written medical opinion within 30 days of the employee examination, and that the employee also gets a copy of the written medical opinion for the employer within 30 days. The PLHCP may choose to directly provide the employee a copy of the written medical opinion. This can be particularly helpful to employees, such as construction employees, who may change employers frequently. The written medical opinion can be used by the employee as proof of up-to-date medical surveillance. The following lists the elements of the written medical report for the employee and written medical opinion for the employer. (Sample forms for the written medical report for the employee, the written medical opinion for the employer, and the written authorization are provided in Section 7 of this Appendix.)
3.1.1. The written medical report for the employee must include the following information:
3.1.1.1. A statement indicating the results of the medical examination, including any medical condition(s) that would place the employee at increased risk of material impairment to health from exposure to respirable crystalline silica and any medical conditions that require further evaluation or treatment;
3.1.1.2. Any recommended limitations upon the employee's use of a respirator;
3.1.1.3. Any recommended limitations on the employee's exposure to respirable crystalline silica; and
3.1.1.4. A statement that the employee should be examined by a Board Certified Specialist in Pulmonary Disease or Occupational Medicine, where the standard requires or where the PLHCP has determined such a referral is necessary. The standard requires referral to a Board Certified Specialist in Pulmonary Disease or Occupational Medicine for a chest X-ray B reading indicating small opacities in a profusion of 1/0 or higher, or if the PHLCP determines that referral to a Specialist is necessary for other silica-related findings.
3.1.2. The PLHCP's written medical opinion for the employer must include only the following information:
3.1.2.1. The date of the examination;
3.1.2.2. A statement that the examination has met the requirements of this section; and
3.1.2.3. Any recommended limitations on the employee's use of respirators.
3.1.2.4. If the employee provides the PLHCP with written authorization, the written opinion for the employer shall also contain either or both of the following:
(1) Any recommended limitations on the employee's exposure to respirable crystalline silica; and
(2) A statement that the employee should be examined by a Board Certified Specialist in Pulmonary Disease or Occupational Medicine if the chest X-ray provided in accordance with this section is classified as 1/0 or higher by the B Reader, or if referral to a Specialist is otherwise deemed appropriate.
3.1.2.5. In addition to the above referral for abnormal chest X-ray, the PLHCP may refer an employee to a Board Certified Specialist in Pulmonary Disease or Occupational Medicine for other findings of concern during the medical surveillance examination if these findings are potentially related to silica exposure.
3.1.2.6. Although the respirable crystalline silica standard requires the employer to ensure that the PLHCP explains the results of the medical examination to the employee, the standard does not mandate how this should be done. The written medical opinion for the employer could contain a statement that the PLHCP has explained the results of the medical examination to the employee.
3.2. Medical Specialists. The silica standard requires that all employees with chest X-ray B readings of 1/0 or higher be referred to a Board Certified Specialist in Pulmonary Disease or Occupational Medicine. If the employee has given written authorization for the employer to be informed, then the employer shall make available a medical examination by a Specialist within 30 days after receiving the PLHCP's written medical opinion.
3.2.1. The employer must provide the following information to the Board Certified Specialist in Pulmonary Disease or Occupational Medicine:
3.2.1.1. A description of the employee's former, current, and anticipated duties as they relate to the employee's occupational exposure to respirable crystalline silica;
3.2.1.2. The employee's former, current, and anticipated levels of occupational exposure to respirable crystalline silica;
3.2.1.3. A description of any personal protective equipment used or to be used by the employee, including when and for how long the employee has used or will use that equipment; and
3.2.1.4. Information from records of employment-related medical examinations previously provided to the employee and currently within the control of the employer.
3.2.2. The PLHCP should make certain that, with written authorization from the employee, the Board Certified Specialist in Pulmonary Disease or Occupational Medicine has any other pertinent medical and occupational information necessary for the specialist's evaluation of the employee's condition.
3.2.3. Once the Board Certified Specialist in Pulmonary Disease or Occupational Medicine has evaluated the employee, the employer must ensure that the Specialist explains to the employee the results of the medical examination and provides the employee with a written medical report within 30 days of the examination. The employer must also ensure that the Specialist provides the employer with a written medical opinion within 30 days of the employee examination. (Sample forms for the written medical report for the employee, the written medical opinion for the employer and the written authorization are provided in Section 7 of this Appendix.)
3.2.4. The Specialist's written medical report for the employee must include the following information:
3.2.4.1. A statement indicating the results of the medical examination, including any medical condition(s) that would place the employee at increased risk of material impairment to health from exposure to respirable crystalline silica and any medical conditions that require further evaluation or treatment;
3.2.4.2. Any recommended limitations upon the employee's use of a respirator; and
3.2.4.3. Any recommended limitations on the employee's exposure to respirable crystalline silica.
3.2.5. The Specialist's written medical opinion for the employer must include the following information:
3.2.5.1. The date of the examination; and
3.2.5.2. Any recommended limitations on the employee's use of respirators.
3.2.5.3. If the employee provides the Board Certified Specialist in Pulmonary Disease or Occupational Medicine with written authorization, the written medical opinion for the employer shall also contain any recommended limitations on the employee's exposure to respirable crystalline silica.
3.2.5.4. Although the respirable crystalline silica standard requires the employer to ensure that the Board Certified Specialist in Pulmonary Disease or Occupational Medicine explains the results of the medical examination to the employee, the standard does not mandate how this should be done. The written medical opinion for the employer could contain a statement that the Specialist has explained the results of the medical examination to the employee.
3.2.6. After evaluating the employee, the Board Certified Specialist in Pulmonary Disease or Occupational Medicine should provide feedback to the PLHCP as appropriate, depending on the reason for the referral. OSHA believes that because the PLHCP has the primary relationship with the employer and employee, the Specialist may want to communicate his or her findings to the PLHCP and have the PLHCP simply update the original medical report for the employee and medical opinion for the employer. This is permitted under the standard, so long as all requirements and time deadlines are met.
3.3. Public Health Professionals. PLHCPs might refer employees or consult with public health professionals as a result of silica medical surveillance. For instance, if individual cases of active TB are identified, public health professionals from state or local health departments may assist in diagnosis and treatment of individual cases and may evaluate other potentially affected persons, including coworkers. Because silica-exposed employees are at increased risk of progression from latent to active TB, treatment of latent infection is recommended. The diagnosis of active TB, acute or accelerated silicosis, or other silica-related diseases and infections should serve as sentinel events suggesting high levels of exposure to silica and may require consultation with the appropriate public health agencies to investigate potentially similarly exposed coworkers to assess for disease clusters. These agencies include local or state health departments or OSHA. In addition, NIOSH can provide assistance upon request through their Health Hazard Evaluation program. (See Section 5 of this Appendix)
4. Confidentiality and Other Considerations
The information that is provided from the PLHCP to the employee and employer under the medical surveillance section of OSHA's respirable crystalline silica standard differs from that of medical surveillance requirements in previous OSHA standards. The standard requires two separate written communications, a written medical report for the employee and a written medical opinion for the employer. The confidentiality requirements for the written medical opinion are more stringent than in past standards. For example, the information the PLHCP can (and must) include in his or her written medical opinion for the employer is limited to: The date of the examination, a statement that the examination has met the requirements of this section, and any recommended limitations on the employee's use of respirators. If the employee provides written authorization for the disclosure of any limitations on the employee's exposure to respirable crystalline silica, then the PLHCP can (and must) include that information in the written medical opinion for the employer as well. Likewise, with the employee's written authorization, the PLHCP can (and must) disclose the PLHCP's referral recommendation (if any) as part of the written medical opinion for the employer. However, the opinion to the employer must not include information regarding recommended limitations on the employee's exposure to respirable crystalline silica or any referral recommendations without the employee's written authorization.
The standard also places limitations on the information that the Board Certified Specialist in Pulmonary Disease or Occupational Medicine can provide to the employer without the employee's written authorization. The Specialist's written medical opinion for the employer, like the PLHCP's opinion, is limited to (and must contain): The date of the examination and any recommended limitations on the employee's use of respirators. If the employee provides written authorization, the written medical opinion can (and must) also contain any limitations on the employee's exposure to respirable crystalline silica.
The PLHCP should discuss the implication of signing or not signing the authorization with the employee (in a manner and language that he or she understands) so that the employee can make an informed decision regarding the written authorization and its consequences. The discussion should include the risk of ongoing silica exposure, personal risk factors, risk of disease progression, and possible health and economic consequences. For instance, written authorization is required for a PLHCP to advise an employer that an employee should be referred to a Board Certified Specialist in Pulmonary Disease or Occupational Medicine for evaluation of an abnormal chest X-ray (B-reading 1/0 or greater). If an employee does not sign an authorization, then the employer will not know and cannot facilitate the referral to a Specialist and is not required to pay for the Specialist's examination. In the rare case where an employee is diagnosed with acute or accelerated silicosis, co-workers are likely to be at significant risk of developing those diseases as a result of inadequate controls in the workplace. In this case, the PLHCP and/or Specialist should explain this concern to the affected employee and make a determined effort to obtain written authorization from the employee so that the PLHCP and/or Specialist can contact the employer.
Finally, without written authorization from the employee, the PLHCP and/or Board Certified Specialist in Pulmonary Disease or Occupational Medicine cannot provide feedback to an employer regarding control of workplace silica exposure, at least in relation to an individual employee. However, the regulation does not prohibit a PLHCP and/or Specialist from providing an employer with general recommendations regarding exposure controls and prevention programs in relation to silica exposure and silica-related illnesses, based on the information that the PLHCP receives from the employer such as employees' duties and exposure levels. Recommendations may include increased frequency of medical surveillance examinations, additional medical surveillance components, engineering and work practice controls, exposure monitoring and personal protective equipment. For instance, more frequent medical surveillance examinations may be a recommendation to employers for employees who do abrasive blasting with silica because of the high exposures associated with that operation.
ACOEM's Code of Ethics and discussion is a good resource to guide PLHCPs regarding the issues discussed in this section (See Section 5 of this Appendix).
5. Resources
5.1. American College of Occupational and Environmental Medicine (ACOEM):
ACOEM Code of Ethics. Accessed at:http://www.acoem.org/codeofconduct.aspx Raymond, L.W. and Wintermeyer, S. (2006) ACOEM evidenced-based statement on medical surveillance of silica-exposed workers: Medical surveillance of workers exposed to crystalline silica. J Occup Environ Med, 48, 95-101.
5.2. Center for Disease Control and Prevention (CDC)
Tuberculosis Web page: http://www.cdc.gov/tb/default.htm State TB Control Offices Web page: http://www.cdc.gov/tb/links/tboffices.htm Tuberculosis Laws and Policies Web page: http://www.cdc.gov/tb/programs/laws/default.htm CDC. (2013). Latent Tuberculosis Infection: A Guide for Primary Health Care Providers. Accessed at: http://www.cdc.gov/tb/publications/ltbi/pdf/targetedltbi.pdf
5.3. International Labour Organization
International Labour Office (ILO). (2011) Guidelines for the use of the ILO International Classification of Radiographs of Pneumoconioses, Revised edition 2011. Occupational Safety and Health Series No. 22: http://www.ilo.org/safework/info/publications/WCMS_168260/lang-en/index.htm
5.4. National Institute of Occupational Safety and Health (NIOSH)
NIOSH B Reader Program Web page. (Information on interpretation of X-rays for silicosis and a list of certified B-readers). Accessed at: http://www.cdc.gov/niosh/topics/chestradiography/breader-info.html NIOSH Guideline (2011). Application of Digital Radiography for the Detection and Classification of Pneumoconiosis. NIOSH publication number 2011-198. Accessed at: http://www.cdc.gov/niosh/docs/2011-198/ NIOSH Hazard Review (2002), Health Effects of Occupational Exposure to Respirable Crystalline Silica. NIOSH publication number 2002-129: Accessed at http://www.cdc.gov/niosh/docs/2002-129/ NIOSH Health Hazard Evaluations Programs. (Information on the NIOSH Health Hazard Evaluation (HHE) program, how to request an HHE and how to look up an HHE report). Accessed at: http://www.cdc.gov/niosh/hhe/
5.5. National Industrial Sand Association:
Occupational Health Program for Exposure to Crystalline Silica in the Industrial Sand Industry. National Industrial Sand Association, 2nd ed. 2010. Can be ordered at: http://www.sand.org/silica-occupational-health-program
5.6. Occupational Safety and Health Administration (OSHA)
Contacting OSHA: http://www.osha.gov/html/Feed_Back.html OSHA's Clinicians Web page. (OSHA resources, regulations and links to help clinicians navigate OSHA's Web site and aid clinicians in caring for workers.) Accessed at: http://www.osha.gov/dts/oom/clinicians/index.html OSHA's Safety and Health Topics Web page on Silica. Accessed at: http://www.osha.gov/dsg/topics/silicacrystalline/index.html OSHA (2013). Spirometry Testing in Occupational Health Programs: Best Practices for Healthcare Professionals. (OSHA 3637-03 2013). Accessed at: http://www.osha.gov/Publications/OSHA3637.pdf OSHA/NIOSH (2011). Spirometry: OSHA/NIOSH Spirometry InfoSheet (OSHA 3415-1-11). (Provides guidance to employers). Accessed at http://www.osha.gov/Publications/osha3415.pdf OSHA/NIOSH (2011) Spirometry: OSHA/NIOSH Spirometry Worker Info. (OSHA 3418-3-11). Accessed at http://www.osha.gov/Publications/osha3418.pdf
5.7. Other
Steenland, K. and Ward E. (2014). Silica: A lung carcinogen. CA Cancer J Clin, 64, 63-69. (This article reviews not only silica and lung cancer but also all the known silica-related health effects. Further, the authors provide guidance to clinicians on medical surveillance of silica-exposed workers and worker counselling on safety practices to minimize silica exposure.) 6. References American Thoracic Society (ATS). Medical Section of the American Lung Association (1997). Adverse effects of crystalline silica exposure. Am J Respir Crit Care Med, 155, 761-765. American Thoracic Society (ATS), Centers for Disease Control (CDC), Infectious Diseases Society of America (IDSA) (2005). Controlling Tuberculosis in the United States. Morbidity and Mortality Weekly Report (MMWR), 54(RR12), 1-81. Accessed at: http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5412a1.htm Brown, T. (2009). Silica exposure, smoking, silicosis and lung cancer—complex interactions. Occupational Medicine, 59, 89-95. Halldin, C.N., Petsonk, E.L., and Laney, A.S. (2014). Validation of the International Labour Office digitized standard images for recognition and classification of radiographs of pneumoconiosis. Acad Radiol, 21, 305-311. International Agency for Research on Cancer. (2012). Monographs on the evaluation of carcinogenic risks to humans: Arsenic, Metals, Fibers, and Dusts Silica Dust, Crystalline, in the Form of Quartz or Cristobalite. A Review of Human Carcinogens. Volume 100 C. Geneva, Switzerland: World Health Organization. Jalloul, A.S. and Banks D.E. (2007). Chapter 23. The health effects of silica exposure. In: Rom, W.N. and Markowitz, S.B. (Eds). Environmental and Occupational Medicine, 4th edition. Lippincott, Williams and Wilkins, Philadelphia, 365-387. Kramer, M.R., Blanc, P.D., Fireman, E., Amital, A., Guber, A., Rahman, N.A., and Shitrit, D. (2012). Artifical stone silicosis: Disease resurgence among artificial stone workers. Chest, 142, 419-424. Laney, A.S., Petsonk, E.L., and Attfield, M.D. (2011). Intramodality and intermodality comparisons of storage phosphor computed radiography and conventional film-screen radiography in the recognition of small pneumonconiotic opacities. Chest, 140, 1574-1580. Liu, Y., Steenland, K., Rong, Y., Hnizdo, E., Huang, X., Zhang, H., Shi, T., Sun, Y., Wu, T., and Chen, W. (2013). Exposure-response analysis and risk assessment for lung cancer in relationship to silica exposure: A 44-year cohort study of 34,018 workers. Am J Epi, 178, 1424-1433. Liu, Y., Rong, Y., Steenland, K., Christiani, D.C., Huang, X., Wu, T., and Chen, W. (2014). Long-term exposure to crystalline silica and risk of heart disease mortality. Epidemiology, 25, 689-696. Mazurek, G.H., Jereb, J., Vernon, A., LoBue, P., Goldberg, S., Castro, K. (2010). Updated guidelines for using interferon gamma release assays to detect Mycobacterium tuberculosis infection—United States. Morbidity and Mortality Weekly Report (MMWR), 59(RR05), 1-25. Miller, M.R., Hankinson, J., Brusasco, V., Burgos, F., Casaburi, R., Coates, A., Crapo, R., Enright, P., van der Grinten, C.P., Gustafsson, P., Jensen, R., Johnson, D.C., MacIntyre, N., McKay, R., Navajas, D., Pedersen, O.F., Pellegrino, R., Viegi, G., and Wanger, J. (2005). American Thoracic Society/European Respiratory Society (ATS/ERS) Task Force: Standardisation of Spirometry. Eur Respir J, 26, 319-338. National Toxicology Program (NTP) (2014). Report on Carcinogens, Thirteenth Edition. Silica, Crystalline (respirable Size). Research Triangle Park, NC: U.S. Department of Health and Human Services, Public Health Service. http://ntp.niehs.nih.gov/ntp/roc/content/profiles/silica.pdf Occupational Safety and Health Administration/National Institute for Occupational Safety and Health (OSHA/NIOSH) (2012). Hazard Alert. Worker exposure to silica during hydraulic fracturing. Occupational Safety and Health Administration/National Institute for Occupational Safety and Health (OSHA/NIOSH) (2015). Hazard alert. Worker exposure to silica during countertop manufacturing, finishing, and installation. (OSHA-HA-3768-2015). Redlich, C.A., Tarlo, S.M., Hankinson, J.L., Townsend, M.C, Eschenbacher, W.L., Von Essen, S.G., Sigsgaard, T., Weissman, D.N. (2014). Official American Thoracic Society technical standards: Spirometry in the occupational setting. Am J Respir Crit Care Med; 189, 984-994. Rees, D. and Murray, J. (2007). Silica, silicosis and tuberculosis. Int J Tuberc Lung Dis, 11(5), 474-484. Shtraichman, O., Blanc, P.D., Ollech, J.E., Fridel, L., Fuks, L., Fireman, E., and Kramer, M.R. (2015). Outbreak of autoimmune disease in silicosis linked to artificial stone. Occup Med, 65, 444-450. Slater, M.L., Welland, G., Pai, M., Parsonnet, J., and Banaei, N. (2013). Challenges with QuantiFERON-TB gold assay for large-scale, routine screening of U.S. healthcare workers. Am J Respir Crit Care Med, 188,1005-1010. Steenland, K., Mannetje, A., Boffetta, P., Stayner, L., Attfield, M., Chen, J., Dosemeci, M., DeKlerk, N., Hnizdo, E., Koskela, R., and Checkoway, H. (2001). International Agency for Research on Cancer. Pooled exposure-response analyses and risk assessment for lung cancer in 10 cohorts of silica-exposed workers: An IARC multicentre study. Cancer Causes Control, 12(9): 773-84. Steenland, K. and Ward E. (2014). Silica: A lung carcinogen. CA Cancer J Clin, 64, 63-69. Townsend, M.C. ACOEM Guidance Statement. (2011). Spirometry in the occupational health setting—2011 Update. J Occup Environ Med, 53, 569-584. 7. Sample Forms
Three sample forms are provided. The first is a sample written medical report for the employee. The second is a sample written medical opinion for the employer. And the third is a sample written authorization form that employees sign to clarify what information the employee is authorizing to be released to the employer.
[81 FR 16876, Mar. 25, 2016]
Subpart AA Confined Spaces in Construction
Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 1-2012 (77 FR 3912); and 29 CFR part 1911.
Source: 80 FR 25518, May 4, 2015, unless otherwise noted.
§ 1926.1200 [Reserved]
§ 1926.1201 Scope.
(a) This standard sets forth requirements for practices and procedures to protect employees engaged in construction activities at a worksite with one or more confined spaces, subject to the exceptions in paragraph (b) of this section.
Note to paragraph (a).
Examples of locations where confined spaces may occur include, but are not limited to, the following: Bins; boilers; pits (such as elevator, escalator, pump, valve or other equipment); manholes (such as sewer, storm drain, electrical, communication, or other utility); tanks (such as fuel, chemical, water, or other liquid, solid or gas); incinerators; scrubbers; concrete pier columns; sewers; transformer vaults; heating, ventilation, and air-conditioning (HVAC) ducts; storm drains; water mains; precast concrete and other pre-formed manhole units; drilled shafts; enclosed beams; vessels; digesters; lift stations; cesspools; silos; air receivers; sludge gates; air preheaters; step up transformers; turbines; chillers; bag houses; and/or mixers/reactors.
(b) Exceptions. This standard does not apply to:
(1) Construction work regulated by subpart P of this part (Excavations).
(2) Construction work regulated by subpart S of this part (Underground Construction, Caissons, Cofferdams and Compressed Air).
(3) Construction work regulated by subpart Y of this part (Diving).
(c) Where this standard applies and there is a provision that addresses a confined space hazard in another applicable OSHA standard, the employer must comply with both that requirement and the applicable provisions of this standard.
§ 1926.1202 Definitions.
The following terms are defined for the purposes of this subpart only:
Acceptable entry conditions means the conditions that must exist in a permit space, before an employee may enter that space, to ensure that employees can safely enter into, and safely work within, the space.
Attendant means an individual stationed outside one or more permit spaces who assesses the status of authorized entrants and who must perform the duties specified in § 1926.1209.
Authorized entrant means an employee who is authorized by the entry supervisor to enter a permit space.
Barrier means a physical obstruction that blocks or limits access.
Blanking or blinding means the absolute closure of a pipe, line, or duct by the fastening of a solid plate (such as a spectacle blind or a skillet blind) that completely covers the bore and that is capable of withstanding the maximum pressure of the pipe, line, or duct with no leakage beyond the plate.
Competent person means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has the authorization to take prompt corrective measures to eliminate them.
Confined space means a space that:
(1) Is large enough and so configured that an employee can bodily enter it;
(2) Has limited or restricted means for entry and exit; and
(3) Is not designed for continuous employee occupancy.
Control means the action taken to reduce the level of any hazard inside a confined space using engineering methods (for example, by ventilation), and then using these methods to maintain the reduced hazard level. Control also refers to the engineering methods used for this purpose. Personal protective equipment is not a control.
Controlling Contractor is the employer that has overall responsibility for construction at the worksite.
Note to the definition of “Controlling Contractor”.
If the controlling contractor owns or manages the property, then it is both a controlling employer and a host employer.
Double block and bleed means the closure of a line, duct, or pipe by closing and locking or tagging two in-line valves and by opening and locking or tagging a drain or vent valve in the line between the two closed valves.
Early-warning system means the method used to alert authorized entrants and attendants that an engulfment hazard may be developing. Examples of early-warning systems include, but are not limited to: Alarms activated by remote sensors; and lookouts with equipment for immediately communicating with the authorized entrants and attendants.
Emergency means any occurrence (including any failure of power, hazard control or monitoring equipment) or event, internal or external, to the permit space that could endanger entrants.
Engulfment means the surrounding and effective capture of a person by a liquid or finely divided (flowable) solid substance that can be aspirated to cause death by filling or plugging the respiratory system or that can exert enough force on the body to cause death by strangulation, constriction, crushing, or suffocation.
Entry means the action by which any part of a person passes through an opening into a permit-required confined space. Entry includes ensuing work activities in that space and is considered to have occurred as soon as any part of the entrant's body breaks the plane of an opening into the space, whether or not such action is intentional or any work activities are actually performed in the space.
Entry Employer means any employer who decides that an employee it directs will enter a permit space.
Note to the definition of “Entry Employer”.
An employer cannot avoid the duties of the standard merely by refusing to decide whether its employees will enter a permit space, and OSHA will consider the failure to so decide to be an implicit decision to allow employees to enter those spaces if they are working in the proximity of the space.
Entry permit (permit) means the written or printed document that is provided by the employer who designated the space a permit space to allow and control entry into a permit space and that contains the information specified in § 1926.1206.
Entry rescue occurs when a rescue service enters a permit space to rescue one or more employees.
Entry supervisor means the qualified person (such as the employer, foreman, or crew chief) responsible for determining if acceptable entry conditions are present at a permit space where entry is planned, for authorizing entry and overseeing entry operations, and for terminating entry as required by this standard.
Note to the definition of “Entry supervisor”
An entry supervisor also may serve as an attendant or as an authorized entrant, as long as that person is trained and equipped as required by this standard for each role he or she fills. Also, the duties of entry supervisor may be passed from one individual to another during the course of an entry operation.
Hazard means a physical hazard or hazardous atmosphere. See definitions below.
Hazardous atmosphere means an atmosphere that may expose employees to the risk of death, incapacitation, impairment of ability to self-rescue (that is, escape unaided from a permit space), injury, or acute illness from one or more of the following causes:
(1) Flammable gas, vapor, or mist in excess of 10 percent of its lower flammable limit (LFL);
(2) Airborne combustible dust at a concentration that meets or exceeds its LFL;
Note to paragraph (2) of the definition of “Hazardous atmosphere”.
This concentration may be approximated as a condition in which the combustible dust obscures vision at a distance of 5 feet (1.52 meters) or less.
(3) Atmospheric oxygen concentration below 19.5 percent or above 23.5 percent;
(4) Atmospheric concentration of any substance for which a dose or a permissible exposure limit is published in subpart D of this part (Occupational Health and Environmental Control), or in subpart Z of this part (Toxic and Hazardous Substances), and which could result in employee exposure in excess of its dose or permissible exposure limit;
Note to paragraph (4) of the definition of “Hazardous atmosphere”.
An atmospheric concentration of any substance that is not capable of causing death, incapacitation, impairment of ability to self-rescue, injury, or acute illness due to its health effects is not covered by this definition.
(5) Any other atmospheric condition that is immediately dangerous to life or health.
Note to paragraph (5) of the definition of “Hazardous atmosphere”.
For air contaminants for which OSHA has not determined a dose or permissible exposure limit, other sources of information, such as Safety Data Sheets that comply with the Hazard Communication Standard, § 1926.59, published information, and internal documents can provide guidance in establishing acceptable atmospheric conditions.
Host employer means the employer that owns or manages the property where the construction work is taking place.
Note to the definition of “Host employer”.
If the owner of the property on which the construction activity occurs has contracted with an entity for the general management of that property, and has transferred to that entity the information specified in § 1926.1203(h)(1), OSHA will treat the contracted management entity as the host employer for as long as that entity manages the property. Otherwise, OSHA will treat the owner of the property as the host employer. In no case will there be more than one host employer.
Hot work means operations capable of providing a source of ignition (for example, riveting, welding, cutting, burning, and heating).
Immediately dangerous to life or health (IDLH) means any condition that would interfere with an individual's ability to escape unaided from a permit space and that poses a threat to life or that would cause irreversible adverse health effects.
Note to the definition of “Immediately dangerous to life or health”.
Some materials—hydrogen fluoride gas and cadmium vapor, for example—may produce immediate transient effects that, even if severe, may pass without medical attention, but are followed by sudden, possibly fatal collapse 12-72 hours after exposure. The victim “feels normal” after recovery from transient effects until collapse. Such materials in hazardous quantities are considered to be “immediately” dangerous to life or health.
Inerting means displacing the atmosphere in a permit space by a noncombustible gas (such as nitrogen) to such an extent that the resulting atmosphere is noncombustible.
Note to the definition of “Intering”.
This procedure produces an IDLH oxygen-deficient atmosphere.
Isolate or isolation means the process by which employees in a confined space are completely protected against the release of energy and material into the space, and contact with a physical hazard, by such means as: Blanking or blinding; misaligning or removing sections of lines, pipes, or ducts; a double block and bleed system; lockout or tagout of all sources of energy; blocking or disconnecting all mechanical linkages; or placement of barriers to eliminate the potential for employee contact with a physical hazard.
Limited or restricted means for entry or exit means a condition that has a potential to impede an employee's movement into or out of a confined space. Such conditions include, but are not limited to, trip hazards, poor illumination, slippery floors, inclining surfaces and ladders.
Line breaking means the intentional opening of a pipe, line, or duct that is or has been carrying flammable, corrosive, or toxic material, an inert gas, or any fluid at a volume, pressure, or temperature capable of causing injury.
Lockout means the placement of a lockout device on an energy isolating device, in accordance with an established procedure, ensuring that the energy isolating device and the equipment being controlled cannot be operated until the lockout device is removed.
Lower flammable limit or lower explosive limit means the minimum concentration of a substance in air needed for an ignition source to cause a flame or explosion.
Monitor or monitoring means the process used to identify and evaluate the hazards after an authorized entrant enters the space. This is a process of checking for changes that is performed in a periodic or continuous manner after the completion of the initial testing or evaluation of that space.
Non-entry rescue occurs when a rescue service, usually the attendant, retrieves employees in a permit space without entering the permit space.
Non-permit confined space means a confined space that meets the definition of a confined space but does not meet the requirements for a permit-required confined space, as defined in this subpart.
Oxygen deficient atmosphere means an atmosphere containing less than 19.5 percent oxygen by volume.
Oxygen enriched atmosphere means an atmosphere containing more than 23.5 percent oxygen by volume.
Permit-required confined space (permit space) means a confined space that has one or more of the following characteristics:
(1) Contains or has a potential to contain a hazardous atmosphere;
(2) Contains a material that has the potential for engulfing an entrant;
(3) Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross-section; or
(4) Contains any other recognized serious safety or health hazard.
Permit-required confined space program (permit space program) means the employer's overall program for controlling, and, where appropriate, for protecting employees from, permit space hazards and for regulating employee entry into permit spaces.
Physical hazard means an existing or potential hazard that can cause death or serious physical damage. Examples include, but are not limited to: Explosives (as defined by paragraph (n) of § 1926.914, definition of “explosive”); mechanical, electrical, hydraulic and pneumatic energy; radiation; temperature extremes; engulfment; noise; and inwardly converging surfaces. Physical hazard also includes chemicals that can cause death or serious physical damage through skin or eye contact (rather than through inhalation).
Prohibited condition means any condition in a permit space that is not allowed by the permit during the period when entry is authorized. A hazardous atmosphere is a prohibited condition unless the employer can demonstrate that personal protective equipment (PPE) will provide effective protection for each employee in the permit space and provides the appropriate PPE to each employee.
Qualified person means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training, and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or the project.
Representative permit space means a mock-up of a confined space that has entrance openings that are similar to, and is of similar size, configuration, and accessibility to, the permit space that authorized entrants enter.
Rescue means retrieving, and providing medical assistance to, one or more employees who are in a permit space.
Rescue service means the personnel designated to rescue employees from permit spaces.
Retrieval system means the equipment (including a retrieval line, chest or full body harness, wristlets or anklets, if appropriate, and a lifting device or anchor) used for non-entry rescue of persons from permit spaces.
Serious physical damage means an impairment or illness in which a body part is made functionally useless or is substantially reduced in efficiency. Such impairment or illness may be permanent or temporary and includes, but is not limited to, loss of consciousness, disorientation, or other immediate and substantial reduction in mental efficiency. Injuries involving such impairment would usually require treatment by a physician or other licensed health-care professional.
Tagout means:
(1) Placement of a tagout device on a circuit or equipment that has been deenergized, in accordance with an established procedure, to indicate that the circuit or equipment being controlled may not be operated until the tagout device is removed; and
(2) The employer ensures that:
(i) Tagout provides equivalent protection to lockout; or
(ii) That lockout is infeasible and the employer has relieved, disconnected, restrained and otherwise rendered safe stored (residual) energy.
Test or testing means the process by which the hazards that may confront entrants of a permit space are identified and evaluated. Testing includes specifying the tests that are to be performed in the permit space.
Note to the definition of “Test or testing”.
Testing enables employers both to devise and implement adequate control measures for the protection of authorized entrants and to determine if acceptable entry conditions are present immediately prior to, and during, entry.
Ventilate or ventilation means controlling a hazardous atmosphere using continuous forced-air mechanical systems that meet the requirements of § 1926.57 (Ventilation).
§ 1926.1203 General requirements.
(a) Before it begins work at a worksite, each employer must ensure that a competent person identifies all confined spaces in which one or more of the employees it directs may work, and identifies each space that is a permit space, through consideration and evaluation of the elements of that space, including testing as necessary.
(b) If the workplace contains one or more permit spaces, the employer who identifies, or who receives notice of, a permit space must:
(1) Inform exposed employees by posting danger signs or by any other equally effective means, of the existence and location of, and the danger posed by, each permit space; and
Note to paragraph (b)(1).
A sign reading “DANGER—PERMIT-REQUIRED CONFINED SPACE, DO NOT ENTER” or using other similar language would satisfy the requirement for a sign.
(2) Inform, in a timely manner and in a manner other than posting, its employees' authorized representatives and the controlling contractor of the existence and location of, and the danger posed by, each permit space.
(c) Each employer who identifies, or receives notice of, a permit space and has not authorized employees it directs to work in that space must take effective measures to prevent those employees from entering that permit space, in addition to complying with all other applicable requirements of this standard.
(d) If any employer decides that employees it directs will enter a permit space, that employer must have a written permit space program that complies with § 1926.1204 implemented at the construction site. The written program must be made available prior to and during entry operations for inspection by employees and their authorized representatives.
(e) An employer may use the alternate procedures specified in paragraph (e)(2) of this section for entering a permit space only under the conditions set forth in paragraph (e)(1) of this section.
(1) An employer whose employees enter a permit space need not comply with §§ 1926.1204 through 1206 and §§ 1926.1208 through 1211, provided that all of the following conditions are met:
(i) The employer can demonstrate that all physical hazards in the space are eliminated or isolated through engineering controls so that the only hazard posed by the permit space is an actual or potential hazardous atmosphere;
(ii) The employer can demonstrate that continuous forced air ventilation alone is sufficient to maintain that permit space safe for entry, and that, in the event the ventilation system stops working, entrants can exit the space safely;
(iii) The employer develops monitoring and inspection data that supports the demonstrations required by paragraphs (e)(1)(i) and (ii) of this section;
(iv) If an initial entry of the permit space is necessary to obtain the data required by paragraph (e)(1)(iii) of this section, the entry is performed in compliance with §§ 1926.1204 through 1926.1211;
(v) The determinations and supporting data required by paragraphs (e)(1)(i), (ii), and (iii) of this section are documented by the employer and are made available to each employee who enters the permit space under the terms of paragraph (e) of this section or to that employee's authorized representative; and
(vi) Entry into the permit space under the terms of paragraph (e)(1) of this section is performed in accordance with the requirements of paragraph (e)(2) of this section.
Note to paragraph (e)(1).
See paragraph (g) of this section for reclassification of a permit space after all hazards within the space have been eliminated.
(2) The following requirements apply to entry into permit spaces that meet the conditions set forth in paragraph (e)(1) of this section:
(i) Any conditions making it unsafe to remove an entrance cover must be eliminated before the cover is removed.
(ii) When entrance covers are removed, the opening must be immediately guarded by a railing, temporary cover, or other temporary barrier that will prevent an accidental fall through the opening and that will protect each employee working in the space from foreign objects entering the space.
(iii) Before an employee enters the space, the internal atmosphere must be tested, with a calibrated direct-reading instrument, for oxygen content, for flammable gases and vapors, and for potential toxic air contaminants, in that order. Any employee who enters the space, or that employee's authorized representative, must be provided an opportunity to observe the pre-entry testing required by this paragraph.
(iv) No hazardous atmosphere is permitted within the space whenever any employee is inside the space.
(v) Continuous forced air ventilation must be used, as follows:
(A) An employee must not enter the space until the forced air ventilation has eliminated any hazardous atmosphere;
(B) The forced air ventilation must be so directed as to ventilate the immediate areas where an employee is or will be present within the space and must continue until all employees have left the space;
(C) The air supply for the forced air ventilation must be from a clean source and must not increase the hazards in the space.
(vi) The atmosphere within the space must be continuously monitored unless the entry employer can demonstrate that equipment for continuous monitoring is not commercially available or periodic monitoring is sufficient. If continuous monitoring is used, the employer must ensure that the monitoring equipment has an alarm that will notify all entrants if a specified atmospheric threshold is achieved, or that an employee will check the monitor with sufficient frequency to ensure that entrants have adequate time to escape. If continuous monitoring is not used, periodic monitoring is required. All monitoring must ensure that the continuous forced air ventilation is preventing the accumulation of a hazardous atmosphere. Any employee who enters the space, or that employee's authorized representative, must be provided with an opportunity to observe the testing required by this paragraph (e)(2)(vi).
(vii) If a hazard is detected during entry:
(A) Each employee must leave the space immediately;
(B) The space must be evaluated to determine how the hazard developed; and
(C) The employer must implement measures to protect employees from the hazard before any subsequent entry takes place.
(viii) The employer must ensure a safe method of entering and exiting the space. If a hoisting system is used, it must be designed and manufactured for personnel hoisting; however, a job-made hoisting system is permissible if it is approved for personnel hoisting by a registered professional engineer, in writing, prior to use.
(ix) The employer must verify that the space is safe for entry and that the pre-entry measures required by paragraph (e)(2) of this section have been taken, through a written certification that contains the date, the location of the space, and the signature of the person providing the certification. The certification must be made before entry and must be made available to each employee entering the space or to that employee's authorized representative.
(f) When there are changes in the use or configuration of a non-permit confined space that might increase the hazards to entrants, or some indication that the initial evaluation of the space may not have been adequate, each entry employer must have a competent person reevaluate that space and, if necessary, reclassify it as a permit-required confined space.
(g) A space classified by an employer as a permit-required confined space may only be reclassified as a non-permit confined space when a competent person determines that all of the applicable requirements in paragraphs (g)(1) through (4) of this section have been met:
(1) If the permit space poses no actual or potential atmospheric hazards and if all hazards within the space are eliminated or isolated without entry into the space (unless the employer can demonstrate that doing so without entry is infeasible), the permit space may be reclassified as a non-permit confined space for as long as the non-atmospheric hazards remain eliminated or isolated;
(2) The entry employer must eliminate or isolate the hazards without entering the space, unless it can demonstrate that this is infeasible. If it is necessary to enter the permit space to eliminate or isolate hazards, such entry must be performed under §§ 1926.1204 through 1926.1211. If testing and inspection during that entry demonstrate that the hazards within the permit space have been eliminated or isolated, the permit space may be reclassified as a non-permit confined space for as long as the hazards remain eliminated or isolated;
Note to paragraph (g)(2).
Control of atmospheric hazards through forced air ventilation does not constitute elimination or isolation of the hazards. Paragraph (e) of this section covers permit space entry where the employer can demonstrate that forced air ventilation alone will control all hazards in the space.
(3) The entry employer must document the basis for determining that all hazards in a permit space have been eliminated or isolated, through a certification that contains the date, the location of the space, and the signature of the person making the determination. The certification must be made available to each employee entering the space or to that employee's authorized representative; and
(4) If hazards arise within a permit space that has been reclassified as a non-permit space under paragraph (g) of this section, each employee in the space must exit the space. The entry employer must then reevaluate the space and reclassify it as a permit space as appropriate in accordance with all other applicable provisions of this standard.
(h) Permit space entry communication and coordination. (1) Before entry operations begin, the host employer must provide the following information, if it has it, to the controlling contractor:
(i) The location of each known permit space;
(ii) The hazards or potential hazards in each space or the reason it is a permit space; and
(iii) Any precautions that the host employer or any previous controlling contractor or entry employer implemented for the protection of employees in the permit space.
(2) Before entry operations begin, the controlling contractor must:
(i) Obtain the host employer's information about the permit space hazards and previous entry operations; and
(ii) Provide the following information to each entity entering a permit space and any other entity at the worksite whose activities could foreseeably result in a hazard in the permit space:
(A) The information received from the host employer;
(B) Any additional information the controlling contractor has about the subjects listed in paragraph (h)(1) of this section; and
(C) The precautions that the host employer, controlling contractor, or other entry employers implemented for the protection of employees in the permit spaces.
(3) Before entry operations begin, each entry employer must:
(i) Obtain all of the controlling contractor's information regarding permit space hazards and entry operations; and
(ii) Inform the controlling contractor of the permit space program that the entry employer will follow, including any hazards likely to be confronted or created in each permit space.
(4) The controlling contractor and entry employer(s) must coordinate entry operations when:
(i) More than one entity performs permit space entry at the same time; or
(ii) Permit space entry is performed at the same time that any activities that could foreseeably result in a hazard in the permit space are performed.
(5) After entry operations:
(i) The controlling contractor must debrief each entity that entered a permit space regarding the permit space program followed and any hazards confronted or created in the permit space(s) during entry operations;
(ii) The entry employer must inform the controlling contractor in a timely manner of the permit space program followed and of any hazards confronted or created in the permit space(s) during entry operations; and
(iii) The controlling contractor must apprise the host employer of the information exchanged with the entry entities pursuant to this subparagraph.
Note to paragraph (h).
Unless a host employer or controlling contractor has or will have employees in a confined space, it is not required to enter any confined space to collect the information specified in this paragraph (h).
(i) If there is no controlling contractor present at the worksite, the requirements for, and role of, controlling contactors in this section must be fulfilled by the host employer or other employer who arranges to have employees of another employer perform work that involves permit space entry.
§ 1926.1204 Permit-required confined space program.
Each entry employer must:
(a) Implement the measures necessary to prevent unauthorized entry;
(b) Identify and evaluate the hazards of permit spaces before employees enter them;
(c) Develop and implement the means, procedures, and practices necessary for safe permit space entry operations, including, but not limited to, the following:
(1) Specifying acceptable entry conditions;
(2) Providing each authorized entrant or that employee's authorized representative with the opportunity to observe any monitoring or testing of permit spaces;
(3) Isolating the permit space and physical hazard(s) within the space;
(4) Purging, inerting, flushing, or ventilating the permit space as necessary to eliminate or control atmospheric hazards;
Note to paragraph (c)(4).
When an employer is unable to reduce the atmosphere below 10 percent LFL, the employer may only enter if the employer inerts the space so as to render the entire atmosphere in the space non-combustible, and the employees use PPE to address any other atmospheric hazards (such as oxygen deficiency), and the employer eliminates or isolates all physical hazards in the space.
(5) Determining that, in the event the ventilation system stops working, the monitoring procedures will detect an increase in atmospheric hazard levels in sufficient time for the entrants to safely exit the permit space;
(6) Providing pedestrian, vehicle, or other barriers as necessary to protect entrants from external hazards;
(7) Verifying that conditions in the permit space are acceptable for entry throughout the duration of an authorized entry, and ensuring that employees are not allowed to enter into, or remain in, a permit space with a hazardous atmosphere unless the employer can demonstrate that personal protective equipment (PPE) will provide effective protection for each employee in the permit space and provides the appropriate PPE to each employee; and
(8) Eliminating any conditions (for example, high pressure) that could make it unsafe to remove an entrance cover.
(d) Provide the following equipment (specified in paragraphs (d)(1) through (9) of this section) at no cost to each employee, maintain that equipment properly, and ensure that each employee uses that equipment properly:
(1) Testing and monitoring equipment needed to comply with paragraph (e) of this section;
(2) Ventilating equipment needed to obtain acceptable entry conditions;
(3) Communications equipment necessary for compliance with §§ 1926.1208(c) and 1926.1209(e), including any necessary electronic communication equipment for attendants assessing entrants' status in multiple spaces;
(4) Personal protective equipment insofar as feasible engineering and work-practice controls do not adequately protect employees;
Note to paragraph (d)(4).
The requirements of subpart E of this part and other PPE requirements continue to apply to the use of PPE in a permit space. For example, if employees use respirators, then the respirator requirements in § 1926.103 (Respiratory protection) must be met.
(5) Lighting equipment that meets the minimum illumination requirements in § 1926.56, that is approved for the ignitable or combustible properties of the specific gas, vapor, dust, or fiber that will be present, and that is sufficient to enable employees to see well enough to work safely and to exit the space quickly in an emergency;
(6) Barriers and shields as required by paragraph (c)(4) of this section;
(7) Equipment, such as ladders, needed for safe ingress and egress by authorized entrants;
(8) Rescue and emergency equipment needed to comply with paragraph (i) of this section, except to the extent that the equipment is provided by rescue services; and
(9) Any other equipment necessary for safe entry into, safe exit from, and rescue from, permit spaces.
(e) Evaluate permit space conditions in accordance with the following paragraphs (e)(1) through (6) of this section when entry operations are conducted:
(1) Test conditions in the permit space to determine if acceptable entry conditions exist before changes to the space's natural ventilation are made, and before entry is authorized to begin, except that, if an employer demonstrates that isolation of the space is infeasible because the space is large or is part of a continuous system (such as a sewer), the employer must:
(i) Perform pre-entry testing to the extent feasible before entry is authorized; and,
(ii) If entry is authorized, continuously monitor entry conditions in the areas where authorized entrants are working, except that employers may use periodic monitoring in accordance with paragraph (e)(2) of this section for monitoring an atmospheric hazard if they can demonstrate that equipment for continuously monitoring that hazard is not commercially available;
(iii) Provide an early-warning system that continuously monitors for non-isolated engulfment hazards. The system must alert authorized entrants and attendants in sufficient time for the authorized entrants to safely exit the space.
(2) Continuously monitor atmospheric hazards unless the employer can demonstrate that the equipment for continuously monitoring a hazard is not commercially available or that periodic monitoring is of sufficient frequency to ensure that the atmospheric hazard is being controlled at safe levels. If continuous monitoring is not used, periodic monitoring is required with sufficient frequency to ensure that acceptable entry conditions are being maintained during the course of entry operations;
(3) When testing for atmospheric hazards, test first for oxygen, then for combustible gases and vapors, and then for toxic gases and vapors;
(4) Provide each authorized entrant or that employee's authorized representative an opportunity to observe the pre-entry and any subsequent testing or monitoring of permit spaces;
(5) Reevaluate the permit space in the presence of any authorized entrant or that employee's authorized representative who requests that the employer conduct such reevaluation because there is some indication that the evaluation of that space may not have been adequate; and
(6) Immediately provide each authorized entrant or that employee's authorized representative with the results of any testing conducted in accordance with this section.
(f) Provide at least one attendant outside the permit space into which entry is authorized for the duration of entry operations:
(1) Attendants may be assigned to more than one permit space provided the duties described in § 1926.1209 can be effectively performed for each permit space.
(2) Attendants may be stationed at any location outside the permit space as long as the duties described in § 1926.1209 can be effectively performed for each permit space to which the attendant is assigned.
(g) If multiple spaces are to be assigned to a single attendant, include in the permit program the means and procedures to enable the attendant to respond to an emergency affecting one or more of those permit spaces without distraction from the attendant's responsibilities under § 1926.1209;
(h) Designate each person who is to have an active role (as, for example, authorized entrants, attendants, entry supervisors, or persons who test or monitor the atmosphere in a permit space) in entry operations, identify the duties of each such employee, and provide each such employee with the training required by § 1926.1207;
(i) Develop and implement procedures for summoning rescue and emergency services (including procedures for summoning emergency assistance in the event of a failed non-entry rescue), for rescuing entrants from permit spaces, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue;
(j) Develop and implement a system for the preparation, issuance, use, and cancellation of entry permits as required by this standard, including the safe termination of entry operations under both planned and emergency conditions;
(k) Develop and implement procedures to coordinate entry operations, in consultation with the controlling contractor, when employees of more than one employer are working simultaneously in a permit space or elsewhere on the worksite where their activities could, either alone or in conjunction with the activities within a permit space, foreseeably result in a hazard within the confined space, so that employees of one employer do not endanger the employees of any other employer;
(l) Develop and implement procedures (such as closing off a permit space and canceling the permit) necessary for concluding the entry after entry operations have been completed;
(m) Review entry operations when the measures taken under the permit space program may not protect employees and revise the program to correct deficiencies found to exist before subsequent entries are authorized; and
Note to paragraph (m).
Examples of circumstances requiring the review of the permit space program include, but are not limited to: Any unauthorized entry of a permit space, the detection of a permit space hazard not covered by the permit, the detection of a condition prohibited by the permit, the occurrence of an injury or near-miss during entry, a change in the use or configuration of a permit space, and employee complaints about the effectiveness of the program.
(n) Review the permit space program, using the canceled permits retained under § 1926.1205(f), within 1 year after each entry and revise the program as necessary to ensure that employees participating in entry operations are protected from permit space hazards.
Note to paragraph (n).
Employers may perform a single annual review covering all entries performed during a 12-month period. If no entry is performed during a 12-month period, no review is necessary.
§ 1926.1205 Permitting process.
(a) Before entry is authorized, each entry employer must document the completion of measures required by § 1926.1204(c) by preparing an entry permit.
(b) Before entry begins, the entry supervisor identified on the permit must sign the entry permit to authorize entry.
(c) The completed permit must be made available at the time of entry to all authorized entrants or their authorized representatives, by posting it at the entry portal or by any other equally effective means, so that the entrants can confirm that pre-entry preparations have been completed.
(d) The duration of the permit may not exceed the time required to complete the assigned task or job identified on the permit in accordance with § 1926.1206(b).
(e) The entry supervisor must terminate entry and take the following action when any of the following apply:
(1) Cancel the entry permit when the entry operations covered by the entry permit have been completed; or
(2) Suspend or cancel the entry permit and fully reassess the space before allowing reentry when a condition that is not allowed under the entry permit arises in or near the permit space and that condition is temporary in nature and does not change the configuration of the space or create any new hazards within it; and
(3) Cancel the entry permit when a condition that is not allowed under the entry permit arises in or near the permit space and that condition is not covered by paragraph (e)(2) of this section.
(f) The entry employer must retain each canceled entry permit for at least 1 year to facilitate the review of the permit-required confined space program required by § 1926.1204(n). Any problems encountered during an entry operation must be noted on the pertinent permit so that appropriate revisions to the permit space program can be made.
§ 1926.1206 Entry permit.
The entry permit that documents compliance with this section and authorizes entry to a permit space must identify:
(a) The permit space to be entered;
(b) The purpose of the entry;
(c) The date and the authorized duration of the entry permit;
(d) The authorized entrants within the permit space, by name or by such other means (for example, through the use of rosters or tracking systems) as will enable the attendant to determine quickly and accurately, for the duration of the permit, which authorized entrants are inside the permit space;
Note to paragraph (d).
This requirement may be met by inserting a reference on the entry permit as to the means used, such as a roster or tracking system, to keep track of the authorized entrants within the permit space.
(e) Means of detecting an increase in atmospheric hazard levels in the event the ventilation system stops working;
(f) Each person, by name, currently serving as an attendant;
(g) The individual, by name, currently serving as entry supervisor, and the signature or initials of each entry supervisor who authorizes entry;
(h) The hazards of the permit space to be entered;
(i) The measures used to isolate the permit space and to eliminate or control permit space hazards before entry;
Note to paragraph (i).
Those measures can include, but are not limited to, the lockout or tagging of equipment and procedures for purging, inerting, ventilating, and flushing permit spaces.
(j) The acceptable entry conditions;
(k) The results of tests and monitoring performed under § 1926.1204(e), accompanied by the names or initials of the testers and by an indication of when the tests were performed;
(l) The rescue and emergency services that can be summoned and the means (such as the equipment to use and the numbers to call) for summoning those services;
(m) The communication procedures used by authorized entrants and attendants to maintain contact during the entry;
(n) Equipment, such as personal protective equipment, testing equipment, communications equipment, alarm systems, and rescue equipment, to be provided for compliance with this standard;
(o) Any other information necessary, given the circumstances of the particular confined space, to ensure employee safety; and
(p) Any additional permits, such as for hot work, that have been issued to authorize work in the permit space.
§ 1926.1207 Training.
(a) The employer must provide training to each employee whose work is regulated by this standard, at no cost to the employee, and ensure that the employee possesses the understanding, knowledge, and skills necessary for the safe performance of the duties assigned under this standard. This training must result in an understanding of the hazards in the permit space and the methods used to isolate, control or in other ways protect employees from these hazards, and for those employees not authorized to perform entry rescues, in the dangers of attempting such rescues.
(b) Training required by this section must be provided to each affected employee:
(1) In both a language and vocabulary that the employee can understand;
(2) Before the employee is first assigned duties under this standard;
(3) Before there is a change in assigned duties;
(4) Whenever there is a change in permit space entry operations that presents a hazard about which an employee has not previously been trained; and
(5) Whenever there is any evidence of a deviation from the permit space entry procedures required by § 1926.1204(c) or there are inadequacies in the employee's knowledge or use of these procedures.
(c) The training must establish employee proficiency in the duties required by this standard and must introduce new or revised procedures, as necessary, for compliance with this standard.
(d) The employer must maintain training records to show that the training required by paragraphs (a) through (c) of this section has been accomplished. The training records must contain each employee's name, the name of the trainers, and the dates of training. The documentation must be available for inspection by employees and their authorized representatives, for the period of time the employee is employed by that employer.
§ 1926.1208 Duties of authorized entrants.
The entry employer must ensure that all authorized entrants:
(a) Are familiar with and understand the hazards that may be faced during entry, including information on the mode, signs or symptoms, and consequences of the exposure;
(b) Properly use equipment as required by § 1926.1204(d);
(c) Communicate with the attendant as necessary to enable the attendant to assess entrant status and to enable the attendant to alert entrants of the need to evacuate the space as required by § 1926.1209(f);
(d) Alert the attendant whenever:
(1) There is any warning sign or symptom of exposure to a dangerous situation; or
(2) The entrant detects a prohibited condition; and
(e) Exit from the permit space as quickly as possible whenever:
(1) An order to evacuate is given by the attendant or the entry supervisor;
(2) There is any warning sign or symptom of exposure to a dangerous situation;
(3) The entrant detects a prohibited condition; or
(4) An evacuation alarm is activated.
§ 1926.1209 Duties of attendants.
The entry employer must ensure that each attendant:
(a) Is familiar with and understands the hazards that may be faced during entry, including information on the mode, signs or symptoms, and consequences of the exposure;
(b) Is aware of possible behavioral effects of hazard exposure in authorized entrants;
(c) Continuously maintains an accurate count of authorized entrants in the permit space and ensures that the means used to identify authorized entrants under § 1926.1206(d) accurately identifies who is in the permit space;
(d) Remains outside the permit space during entry operations until relieved by another attendant;
Note to paragraph (d).
Once an attendant has been relieved by another attendant, the relieved attendant may enter a permit space to attempt a rescue when the employer's permit space program allows attendant entry for rescue and the attendant has been trained and equipped for rescue operations as required by § 1926.1211(a).
(e) Communicates with authorized entrants as necessary to assess entrant status and to alert entrants of the need to evacuate the space under § 1926.1208(e);
(f) Assesses activities and conditions inside and outside the space to determine if it is safe for entrants to remain in the space and orders the authorized entrants to evacuate the permit space immediately under any of the following conditions:
(1) If there is a prohibited condition;
(2) If the behavioral effects of hazard exposure are apparent in an authorized entrant;
(3) If there is a situation outside the space that could endanger the authorized entrants; or
(4) If the attendant cannot effectively and safely perform all the duties required under this section;
(g) Summons rescue and other emergency services as soon as the attendant determines that authorized entrants may need assistance to escape from permit space hazards;
(h) Takes the following actions when unauthorized persons approach or enter a permit space while entry is underway:
(1) Warns the unauthorized persons that they must stay away from the permit space;
(2) Advises the unauthorized persons that they must exit immediately if they have entered the permit space; and
(3) Informs the authorized entrants and the entry supervisor if unauthorized persons have entered the permit space;
(i) Performs non-entry rescues as specified by the employer's rescue procedure; and
(j) Performs no duties that might interfere with the attendant's primary duty to assess and protect the authorized entrants.
§ 1926.1210 Duties of entry supervisors.
The entry employer must ensure that each entry supervisor:
(a) Is familiar with and understands the hazards that may be faced during entry, including information on the mode, signs or symptoms, and consequences of the exposure;
(b) Verifies, by checking that the appropriate entries have been made on the permit, that all tests specified by the permit have been conducted and that all procedures and equipment specified by the permit are in place before endorsing the permit and allowing entry to begin;
(c) Terminates the entry and cancels or suspends the permit as required by § 1926.1205(e);
(d) Verifies that rescue services are available and that the means for summoning them are operable, and that the employer will be notified as soon as the services become unavailable;
(e) Removes unauthorized individuals who enter or who attempt to enter the permit space during entry operations; and
(f) Determines, whenever responsibility for a permit space entry operation is transferred, and at intervals dictated by the hazards and operations performed within the space, that entry operations remain consistent with terms of the entry permit and that acceptable entry conditions are maintained.
§ 1926.1211 Rescue and emergency services.
(a) An employer who designates rescue and emergency services, pursuant to § 1926.1204(i), must:
(1) Evaluate a prospective rescuer's ability to respond to a rescue summons in a timely manner, considering the hazard(s) identified;
Note to paragraph (a)(1).
What will be considered timely will vary according to the specific hazards involved in each entry. For example, § 1926.103 (Respiratory protection) requires that employers provide a standby person or persons capable of immediate action to rescue employee(s) wearing respiratory protection while in work areas defined as IDLH atmospheres.
(2) Evaluate a prospective rescue service's ability, in terms of proficiency with rescue-related tasks and equipment, to function appropriately while rescuing entrants from the particular permit space or types of permit spaces identified;
(3) Select a rescue team or service from those evaluated that:
(i) Has the capability to reach the victim(s) within a time frame that is appropriate for the permit space hazard(s) identified;
(ii) Is equipped for, and proficient in, performing the needed rescue services;
(iii) Agrees to notify the employer immediately in the event that the rescue service becomes unavailable;
(4) Inform each rescue team or service of the hazards they may confront when called on to perform rescue at the site; and
(5) Provide the rescue team or service selected with access to all permit spaces from which rescue may be necessary so that the rescue team or service can develop appropriate rescue plans and practice rescue operations.
(b) An employer whose employees have been designated to provide permit space rescue and/or emergency services must take the following measures and provide all equipment and training at no cost to those employees:
(1) Provide each affected employee with the personal protective equipment (PPE) needed to conduct permit space rescues safely and train each affected employee so the employee is proficient in the use of that PPE;
(2) Train each affected employee to perform assigned rescue duties. The employer must ensure that such employees successfully complete the training required and establish proficiency as authorized entrants, as provided by §§ 1926.1207 and 1926.1208;
(3) Train each affected employee in basic first aid and cardiopulmonary resuscitation (CPR). The employer must ensure that at least one member of the rescue team or service holding a current certification in basic first aid and CPR is available; and
(4) Ensure that affected employees practice making permit space rescues before attempting an actual rescue, and at least once every 12 months, by means of simulated rescue operations in which they remove dummies, manikins, or actual persons from the actual permit spaces or from representative permit spaces, except practice rescue is not required where the affected employees properly performed a rescue operation during the last 12 months in the same permit space the authorized entrant will enter, or in a similar permit space. Representative permit spaces must, with respect to opening size, configuration, and accessibility, simulate the types of permit spaces from which rescue is to be performed.
(c) Non-entry rescue is required unless the retrieval equipment would increase the overall risk of entry or would not contribute to the rescue of the entrant. The employer must designate an entry rescue service whenever non-entry rescue is not selected. Whenever non-entry rescue is selected, the entry employer must ensure that retrieval systems or methods are used whenever an authorized entrant enters a permit space, and must confirm, prior to entry, that emergency assistance would be available in the event that non-entry rescue fails. Retrieval systems must meet the following requirements:
(1) Each authorized entrant must use a chest or full body harness, with a retrieval line attached at the center of the entrant's back near shoulder level, above the entrant's head, or at another point which the employer can establish presents a profile small enough for the successful removal of the entrant. Wristlets or anklets may be used in lieu of the chest or full body harness if the employer can demonstrate that the use of a chest or full body harness is infeasible or creates a greater hazard and that the use of wristlets or anklets is the safest and most effective alternative.
(2) The other end of the retrieval line must be attached to a mechanical device or fixed point outside the permit space in such a manner that rescue can begin as soon as the rescuer becomes aware that rescue is necessary. A mechanical device must be available to retrieve personnel from vertical type permit spaces more than 5 feet (1.52 meters) deep.
(3) Equipment that is unsuitable for retrieval must not be used, including, but not limited to, retrieval lines that have a reasonable probability of becoming entangled with the retrieval lines used by other authorized entrants, or retrieval lines that will not work due to the internal configuration of the permit space.
(d) If an injured entrant is exposed to a substance for which a Safety Data Sheet (SDS) or other similar written information is required to be kept at the worksite, that SDS or written information must be made available to the medical facility treating the exposed entrant.
§ 1926.1212 Employee participation.
(a) Employers must consult with affected employees and their authorized representatives on the development and implementation of all aspects of the permit space program required by § 1926.1203.
(b) Employers must make available to each affected employee and his/her authorized representatives all information required to be developed by this standard.
§ 1926.1213 Provision of documents to Secretary.
For each document required to be retained in this standard, the retaining employer must make the document available on request to the Secretary of Labor or the Secretary's designee.
BB Subpart BB [Reserved]
Subpart CC Cranes and Derricks in Construction
Authority: 40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 5-2007 (72 FR 31159) or 1-2012 (77 FR 3912), as applicable; and 29 CFR Part 1911.
Source: 75 FR 48135, Aug. 9, 2010, unless otherwise noted.
§ 1926.1400 Scope.
(a) This standard applies to power-operated equipment, when used in construction, that can hoist, lower and horizontally move a suspended load. Such equipment includes, but is not limited to: Articulating cranes (such as knuckle-boom cranes); crawler cranes; floating cranes; cranes on barges; locomotive cranes; mobile cranes (such as wheel-mounted, rough-terrain, all-terrain, commercial truck-mounted, and boom truck cranes); multi-purpose machines when configured to hoist and lower (by means of a winch or hook) and horizontally move a suspended load; industrial cranes (such as carry-deck cranes); dedicated pile drivers; service/mechanic trucks with a hoisting device; a crane on a monorail; tower cranes (such as a fixed jib, i.e., “hammerhead boom”), luffing boom and self-erecting); pedestal cranes; portal cranes; overhead and gantry cranes; straddle cranes; sideboom cranes; derricks; and variations of such equipment. However, items listed in paragraph (c) of this section are excluded from the scope of this standard.
(b) Attachments. This standard applies to equipment included in paragraph (a) of this section when used with attachments. Such attachments, whether crane-attached or suspended include, but are not limited to: Hooks, magnets, grapples, clamshell buckets, orange peel buckets, concrete buckets, drag lines, personnel platforms, augers or drills and pile driving equipment.
(c) Exclusions. This subpart does not cover:
(1) Machinery included in paragraph (a) of this section while it has been converted or adapted for a non-hoisting/lifting use. Such conversions/adaptations include, but are not limited to, power shovels, excavators and concrete pumps.
(2) Power shovels, excavators, wheel loaders, backhoes, loader backhoes, track loaders. This machinery is also excluded when used with chains, slings or other rigging to lift suspended loads.
(3) Automotive wreckers and tow trucks when used to clear wrecks and haul vehicles.
(4) Digger derricks when used for augering holes for poles carrying electric or telecommunication lines, placing and removing the poles, and for handling associated materials for installation on, or removal from, the poles, or when used for any other work subject to subpart V of this part. To be eligible for this exclusion, digger-derrick use in work subject to subpart V of this part must comply with all of the provisions of that subpart, and digger-derrick use in construction work for telecommunication service (as defined at § 1910.268(s)(40)) must comply with all of the provisions of § 1910.268.
(5) Machinery originally designed as vehicle-mounted aerial devices (for lifting personnel) and self-propelled elevating work platforms.
(6) Telescopic/hydraulic gantry systems.
(7) Stacker cranes.
(8) Powered industrial trucks (forklifts), except when configured to hoist and lower (by means of a winch or hook) and horizontally move a suspended load.
(9) Mechanic's truck with a hoisting device when used in activities related to equipment maintenance and repair.
(10) Machinery that hoists by using a come-a-long or chainfall.
(11) Dedicated drilling rigs.
(12) Gin poles when used for the erection of communication towers.
(13) Tree trimming and tree removal work.
(14) Anchor handling or dredge-related operations with a vessel or barge using an affixed A-frame.
(15) Roustabouts.
(16) Helicopter cranes.
(17) Material delivery. (i) Articulating/knuckle-boom truck cranes that deliver material to a construction site when used to transfer materials from the truck crane to the ground, without arranging the materials in a particular sequence for hoisting.
(ii) Articulating/knuckle-boom truck cranes that deliver material to a construction site when the crane is used to transfer building supply sheet goods or building supply packaged materials from the truck crane onto a structure, using a fork/cradle at the end of the boom, but only when the truck crane is equipped with a properly functioning automatic overload prevention device. Such sheet goods or packaged materials include, but are not limited to: Sheets of sheet rock, sheets of plywood, bags of cement, sheets or packages of roofing shingles, and rolls of roofing felt.
(iii) This exclusion does not apply when:
(A) The articulating/knuckle-boom crane is used to hold, support or stabilize the material to facilitate a construction activity, such as holding material in place while it is attached to the structure;
(B) The material being handled by the articulating/knuckle-boom crane is a prefabricated component. Such prefabricated components include, but are not limited to: Precast concrete members or panels, roof trusses (wooden, cold-formed metal, steel, or other material), prefabricated building sections such as, but not limited to: Floor panels, wall panels, roof panels, roof structures, or similar items;
(C) The material being handled by the crane is a structural steel member (for example, steel joists, beams, columns, steel decking (bundled or unbundled) or a component of a systems-engineered metal building (as defined in 29 CFR 1926 subpart R).
(D) The activity is not specifically excluded under § 1400(c)(17)(i) and (ii).
(18) Flash-butt welding trucks. Flash-butt welding trucks or other roadway maintenance machines not equipped with any hoisting device other than that used to suspend and move a welding device or workhead assembly. For purposes of this paragraph (c)(18), the terms flash-butt welding truck and roadway maintenance machine refer to railroad equipment that meets the definition of “roadway maintenance machine” in 49 CFR 214.7 and is used only for railroad track work.
(d) All sections of this subpart CC apply to the equipment covered by this standard unless specified otherwise.
(e) The duties of controlling entities under this subpart include, but are not limited to, the duties specified in §§ 1926.1402(c), 1926.1402(e) and 1926.1424(b).
(f) Where provisions of this standard direct an operator, crewmember, or other employee to take certain actions, the employer must establish, effectively communicate to the relevant persons, and enforce, work rules to ensure compliance with such provisions.
(g) For work covered by subpart V of this part, compliance with § 1926.959 is deemed compliance with §§ 1926.1407 through 1926.1411.
(h) Section 1926.1402 does not apply to cranes designed for use on railroad tracks, when used on railroad tracks that are part of the general railroad system of transportation that is regulated pursuant to the Federal Railroad Administration under 49 CFR part 213, and that comply with applicable Federal Railroad Administration requirements. See § 1926.1402(f).
[75 FR 48135, Aug. 9, 2010, as amended at 78 FR 32116, May 29, 2013; 79 FR 20743, Apr. 11, 2014; 85 FR 57122, Sept. 15, 2020]
§ 1926.1401 Definitions.
A/D director (Assembly/Disassembly director) means an individual who meets this subpart's requirements for an A/D director, irrespective of the person's formal job title or whether the person is non-management or management personnel.
Articulating crane means a crane whose boom consists of a series of folding, pin connected structural members, typically manipulated to extend or retract by power from hydraulic cylinders.
Assembly/Disassembly means the assembly and/or disassembly of equipment covered under this standard. With regard to tower cranes, “erecting and climbing” replaces the term “assembly,” and “dismantling” replaces the term “disassembly.” Regardless of whether the crane is initially erected to its full height or is climbed in stages, the process of increasing the height of the crane is an erection process.
Assist crane means a crane used to assist in assembling or disassembling a crane.
Attachments means any device that expands the range of tasks that can be done by the equipment. Examples include, but are not limited to: An auger, drill, magnet, pile-driver, and boom-attached personnel platform.
Audible signal means a signal made by a distinct sound or series of sounds. Examples include, but are not limited to, sounds made by a bell, horn, or whistle.
Blocking (also referred to as “cribbing”) is wood or other material used to support equipment or a component and distribute loads to the ground. It is typically used to support lattice boom sections during assembly/disassembly and under outrigger and stabilizer floats.
Boatswain's chair means a single-point adjustable suspension scaffold consisting of a seat or sling (which may be incorporated into a full body harness) designed to support one employee in a sitting position.
Bogie means “travel bogie,” which is defined below.
Boom (equipment other than tower crane) means an inclined spar, strut, or other long structural member which supports the upper hoisting tackle on a crane or derrick. Typically, the length and vertical angle of the boom can be varied to achieve increased height or height and reach when lifting loads. Booms can usually be grouped into general categories of hydraulically extendible, cantilevered type, latticed section, cable supported type or articulating type.
Boom (tower cranes): On tower cranes, if the “boom” (i.e., principal horizontal structure) is fixed, it is referred to as a jib; if it is moveable up and down, it is referred to as a boom.
Boom angle indicator means a device which measures the angle of the boom relative to horizontal.
Boom hoist limiting device includes boom hoist disengaging device, boom hoist shut-off, boom hoist disconnect, boom hoist hydraulic relief, boom hoist kick-outs, automatic boom stop device, or derricking limiter. This type of device disengages boom hoist power when the boom reaches a predetermined operating angle. It also sets brakes or closes valves to prevent the boom from lowering after power is disengaged.
Boom length indicator indicates the length of the permanent part of the boom (such as ruled markings on the boom) or, as in some computerized systems, the length of the boom with extensions/attachments.
Boom stop includes boom stops, (belly straps with struts/standoff), telescoping boom stops, attachment boom stops, and backstops. These devices restrict the boom from moving above a certain maximum angle and toppling over backward.
Boom suspension system means a system of pendants, running ropes, sheaves, and other hardware which supports the boom tip and controls the boom angle.
Builder means the builder/constructor of equipment.
Center of gravity: The center of gravity of any object is the point in the object around which its weight is evenly distributed. If you could put a support under that point, you could balance the object on the support.
Certified welder means a welder who meets nationally recognized certification requirements applicable to the task being performed.
Climbing means the process in which a tower crane is raised to a new working height, either by adding additional tower sections to the top of the crane (top climbing), or by a system in which the entire crane is raised inside the structure (inside climbing).
Come-a-long means a mechanical device typically consisting of a chain or cable attached at each end that is used to facilitate movement of materials through leverage.
Competent person means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.
Controlled load lowering means lowering a load by means of a mechanical hoist drum device that allows a hoisted load to be lowered with maximum control using the gear train or hydraulic components of the hoist mechanism. Controlled load lowering requires the use of the hoist drive motor, rather than the load hoist brake, to lower the load.
Controlling entity means an employer that is a prime contractor, general contractor, construction manager or any other legal entity which has the overall responsibility for the construction of the project—its planning, quality and completion.
Counterweight means a weight used to supplement the weight of equipment in providing stability for lifting loads by counterbalancing those loads.
Crane/derrick includes all equipment covered by this subpart.
Crawler crane means equipment that has a type of base mounting which incorporates a continuous belt of sprocket driven track.
Crossover points means locations on a wire rope which is spooled on a drum where one layer of rope climbs up on and crosses over the previous layer. This takes place at each flange of the drum as the rope is spooled onto the drum, reaches the flange, and begins to wrap back in the opposite direction.
Dedicated channel means a line of communication assigned by the employer who controls the communication system to only one signal person and crane/derrick or to a coordinated group of cranes/derricks/signal person(s).
Dedicated pile-driver is a machine that is designed to function exclusively as a pile-driver. These machines typically have the ability to both hoist the material that will be pile-driven and to pile-drive that material.
Dedicated spotter (power lines): To be considered a dedicated spotter, the requirements of § 1926.1428 (Signal person qualifications) must be met and his/her sole responsibility is to watch the separation between the power line and the equipment, load line and load (including rigging and lifting accessories), and ensure through communication with the operator that the applicable minimum approach distance is not breached.
Directly under the load means a part or all of an employee is directly beneath the load.
Dismantling includes partial dismantling (such as dismantling to shorten a boom or substitute a different component).
Drum rotation indicator means a device on a crane or hoist which indicates in which direction and at what relative speed a particular hoist drum is turning.
Electrical contact occurs when a person, object, or equipment makes contact or comes in close proximity with an energized conductor or equipment that allows the passage of current.
Employer-made equipment means floating cranes/derricks designed and built by an employer for the employer's own use.
Encroachment is where any part of the crane, load line or load (including rigging and lifting accessories) breaches a minimum clearance distance that this subpart requires to be maintained from a power line.
Equipment means equipment covered by this subpart.
Equipment criteria means instructions, recommendations, limitations and specifications.
Fall protection equipment means guardrail systems, safety net systems, personal fall arrest systems, positioning device systems or fall restraint systems.
Fall restraint system means a fall protection system that prevents the user from falling any distance. The system is comprised of either a body belt or body harness, along with an anchorage, connectors and other necessary equipment. The other components typically include a lanyard, and may also include a lifeline and other devices.
Fall zone means the area (including but not limited to the area directly beneath the load) in which it is reasonably foreseeable that partially or completely suspended materials could fall in the event of an accident.
Flange points are points of contact between rope and drum flange where the rope changes layers.
Floating cranes/derricks means equipment designed by the manufacturer (or employer) for marine use by permanent attachment to a barge, pontoons, vessel or other means of flotation.
For example means “one example, although there are others.”
Free fall (of the load line) means that only the brake is used to regulate the descent of the load line (the drive mechanism is not used to drive the load down faster or retard its lowering).
Free surface effect is the uncontrolled transverse movement of liquids in compartments which reduce a vessel's transverse stability.
Hoist means a mechanical device for lifting and lowering loads by winding a line onto or off a drum.
Hoisting is the act of raising, lowering or otherwise moving a load in the air with equipment covered by this standard. As used in this standard, “hoisting” can be done by means other than wire rope/hoist drum equipment.
Include/including means “including, but not limited to.”
Insulating link/device means an insulating device listed, labeled, or accepted by a Nationally Recognized Testing Laboratory in accordance with 29 CFR 1910.7.
Jib stop (also referred to as a jib backstop), is the same type of device as a boom stop but is for a fixed or luffing jib.
Land crane/derrick is equipment not originally designed by the manufacturer for marine use by permanent attachment to barges, pontoons, vessels, or other means of floatation.
List means the angle of inclination about the longitudinal axis of a barge, pontoons, vessel or other means of floatation.
Load refers to the object(s) being hoisted and/or the weight of the object(s); both uses refer to the object(s) and the load-attaching equipment, such as, the load block, ropes, slings, shackles, and any other ancillary attachment.
Load moment (or rated capacity) indicator means a system which aids the equipment operator by sensing (directly or indirectly) the overturning moment on the equipment, i.e., load multiplied by radius. It compares this lifting condition to the equipment's rated capacity, and indicates to the operator the percentage of capacity at which the equipment is working. Lights, bells, or buzzers may be incorporated as a warning of an approaching overload condition.
Load moment (or rated capacity) limiter means a system which aids the equipment operator by sensing (directly or indirectly) the overturning moment on the equipment, i.e., load multiplied by radius. It compares this lifting condition to the equipment's rated capacity, and when the rated capacity is reached, it shuts off power to those equipment functions which can increase the severity of loading on the equipment, e.g., hoisting, telescoping out, or luffing out. Typically, those functions which decrease the severity of loading on the equipment remain operational, e.g., lowering, telescoping in, or luffing in.
Locomotive crane means a crane mounted on a base or car equipped for travel on a railroad track.
Luffing jib limiting device is similar to a boom hoist limiting device, except that it limits the movement of the luffing jib.
Marine hoisted personnel transfer device means a device, such as a “transfer net,” that is designed to protect the employees being hoisted during a marine transfer and to facilitate rapid entry into and exit from the device. Such devices do not include boatswain's chairs when hoisted by equipment covered by this standard.
Marine worksite means a construction worksite located in, on or above the water.
Mobile crane means a lifting device incorporating a cable suspended latticed boom or hydraulic telescopic boom designed to be moved between operating locations by transport over the road.
Moving point-to-point means the times during which an employee is in the process of going to or from a work station.
Multi-purpose machine means a machine that is designed to be configured in various ways, at least one of which allows it to hoist (by means of a winch or hook) and horizontally move a suspended load. For example, a machine that can rotate and can be configured with removable forks/tongs (for use as a forklift) or with a winch pack, jib (with a hook at the end) or jib used in conjunction with a winch. When configured with the forks/tongs, it is not covered by this subpart. When configured with a winch pack, jib (with a hook at the end) or jib used in conjunction with a winch, it is covered by this subpart.
Nationally recognized accrediting agency is an organization that, due to its independence and expertise, is widely recognized as competent to accredit testing organizations. Examples of such accrediting agencies include, but are not limited to, the National Commission for Certifying Agencies and the American National Standards Institute.
Nonconductive means that, because of the nature and condition of the materials used, and the conditions of use (including environmental conditions and condition of the material), the object in question has the property of not becoming energized (that is, it has high dielectric properties offering a high resistance to the passage of current under the conditions of use).
Operational aids are devices that assist the operator in the safe operation of the crane by providing information or automatically taking control of a crane function. These include, but are not limited to, the devices listed in § 1926.1416 (“listed operational aids”).
Operational controls means levers, switches, pedals and other devices for controlling equipment operation.
Operator means a person who is operating the equipment.
Overhead and gantry cranes includes overhead/bridge cranes, semigantry, cantilever gantry, wall cranes, storage bridge cranes, launching gantry cranes, and similar equipment, irrespective of whether it travels on tracks, wheels, or other means.
Paragraph refers to a paragraph in the same section of this subpart that the word “paragraph” is used, unless otherwise specified.
Pendants includes both wire and bar types. Wire type: A fixed length of wire rope with mechanical fittings at both ends for pinning segments of wire rope together. Bar type: Instead of wire rope, a bar is used. Pendants are typically used in a latticed boom crane system to easily change the length of the boom suspension system without completely changing the rope on the drum when the boom length is increased or decreased.
Personal fall arrest system means a system used to arrest an employee in a fall from a working level. It consists of an anchorage, connectors, a body harness and may include a lanyard, deceleration device, lifeline, or suitable combination of these.
Portal crane is a type of crane consisting of a rotating upperstructure, hoist machinery, and boom mounted on top of a structural gantry which may be fixed in one location or have travel capability. The gantry legs or columns usually have portal openings in between to allow passage of traffic beneath the gantry.
Power lines means electric transmission and distribution lines.
Procedures include, but are not limited to: Instructions, diagrams, recommendations, warnings, specifications, protocols and limitations.
Proximity alarm is a device that provides a warning of proximity to a power line and that has been listed, labeled, or accepted by a Nationally Recognized Testing Laboratory in accordance with 29 CFR 1910.7.
Qualified evaluator (not a third party) means a person employed by the signal person's employer who has demonstrated that he/she is competent in accurately assessing whether individuals meet the Qualification Requirements in this subpart for a signal person.
Qualified evaluator (third party) means an entity that, due to its independence and expertise, has demonstrated that it is competent in accurately assessing whether individuals meet the Qualification Requirements in this subpart for a signal person.
Qualified person means a person who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, successfully demonstrated the ability to solve/resolve problems relating to the subject matter, the work, or the project.
Qualified rigger is a rigger who meets the criteria for a qualified person.
Range control limit device is a device that can be set by an equipment operator to limit movement of the boom or jib tip to a plane or multiple planes.
Range control warning device is a device that can be set by an equipment operator to warn that the boom or jib tip is at a plane or multiple planes.
Rated capacity means the maximum working load permitted by the manufacturer under specified working conditions. Such working conditions typically include a specific combination of factors such as equipment configuration, radii, boom length, and other parameters of use.
Rated capacity indicator: See load moment indicator.
Rated capacity limiter: See load moment limiter.
Repetitive pickup points refer to, when operating on a short cycle operation, the rope being used on a single layer and being spooled repetitively over a short portion of the drum.
Running wire rope means a wire rope that moves over sheaves or drums.
Runway means a firm, level surface designed, prepared and designated as a path of travel for the weight and configuration of the crane being used to lift and travel with the crane suspended platform. An existing surface may be used as long as it meets these criteria.
Section means a section of this subpart, unless otherwise specified.
Sideboom crane means a track-type or wheel-type tractor having a boom mounted on the side of the tractor, used for lifting, lowering or transporting a load suspended on the load hook. The boom or hook can be lifted or lowered in a vertical direction only.
Special hazard warnings means warnings of site-specific hazards (for example, proximity of power lines).
Stability (flotation device) means the tendency of a barge, pontoons, vessel or other means of flotation to return to an upright position after having been inclined by an external force.
Standard Method means the protocol in appendix A of this subpart for hand signals.
Such as means “such as, but not limited to.”
Superstructure: See Upperworks.
Tagline means a rope (usually fiber) attached to a lifted load for purposes of controlling load spinning and pendular motions or used to stabilize a bucket or magnet during material handling operations.
Tender means an individual responsible for monitoring and communicating with a diver.
Tilt up or tilt down operation means raising/lowering a load from the horizontal to vertical or vertical to horizontal.
Tower crane is a type of lifting structure which utilizes a vertical mast or tower to support a working boom (jib) in an elevated position. Loads are suspended from the working boom. While the working boom may be of the fixed type (horizontal or angled) or have luffing capability, it can always rotate to swing loads, either by rotating on the top of the tower (top slewing) or by the rotation of the tower (bottom slewing). The tower base may be fixed in one location or ballasted and moveable between locations. Mobile cranes that are configured with luffing jib and/or tower attachments are not considered tower cranes under this section.
Travel bogie (tower cranes) is an assembly of two or more axles arranged to permit vertical wheel displacement and equalize the loading on the wheels.
Trim means angle of inclination about the transverse axis of a barge, pontoons, vessel or other means of floatation.
Two blocking means a condition in which a component that is uppermost on the hoist line such as the load block, hook block, overhaul ball, or similar component, comes in contact with the boom tip, fixed upper block or similar component. This binds the system and continued application of power can cause failure of the hoist rope or other component.
Unavailable procedures means procedures that are no longer available from the manufacturer, or have never been available, from the manufacturer.
Upperstructure: See Upperworks.
Upperworks means the revolving frame of equipment on which the operating machinery (and many cases the engine) are mounted along with the operator's cab. The counterweight is typically supported on the rear of the upperstructure and the boom or other front end attachment is mounted on the front.
Up to means “up to and including.”
Wire rope means a flexible rope constructed by laying steel wires into various patterns of multi-wired strands around a core system to produce a helically wound rope.
§ 1926.1402 Ground conditions.
(a) Definitions. (1) “Ground conditions” means the ability of the ground to support the equipment (including slope, compaction, and firmness).
(2) “Supporting materials” means blocking, mats, cribbing, marsh buggies (in marshes/wetlands), or similar supporting materials or devices.
(b) The equipment must not be assembled or used unless ground conditions are firm, drained, and graded to a sufficient extent so that, in conjunction (if necessary) with the use of supporting materials, the equipment manufacturer's specifications for adequate support and degree of level of the equipment are met. The requirement for the ground to be drained does not apply to marshes/wetlands.
(c) The controlling entity must:
(1) Ensure that ground preparations necessary to meet the requirements in paragraph (b) of this section are provided.
(2) Inform the user of the equipment and the operator of the location of hazards beneath the equipment set-up area (such as voids, tanks, utilities) if those hazards are identified in documents (such as site drawings, as-built drawings, and soil analyses) that are in the possession of the controlling entity (whether at the site or off-site) or the hazards are otherwise known to that controlling entity.
(d) If there is no controlling entity for the project, the requirement in paragraph (c)(1) of this section must be met by the employer that has authority at the site to make or arrange for ground preparations needed to meet paragraph (b) of this section.
(e) If the A/D director or the operator determines that ground conditions do not meet the requirements in paragraph (b) of this section, that person's employer must have a discussion with the controlling entity regarding the ground preparations that are needed so that, with the use of suitable supporting materials/devices (if necessary), the requirements in paragraph (b) of this section can be met.
(f) This section does not apply to cranes designed for use on railroad tracks when used on railroad tracks that are part of the general railroad system of transportation that is regulated pursuant to the Federal Railroad Administration under 49 CFR part 213 and that comply with applicable Federal Railroad Administration requirements.
§ 1926.1403 Assembly/Disassembly—selection of manufacturer or employer procedures.
When assembling or disassembling equipment (or attachments), the employer must comply with all applicable manufacturer prohibitions and must comply with either:
(a) Manufacturer procedures applicable to assembly and disassembly, or
(b) Employer procedures for assembly and disassembly. Employer procedures may be used only where the employer can demonstrate that the procedures used meet the requirements in § 1926.1406.
Note:
The employer must follow manufacturer procedures when an employer uses synthetic slings during assembly or disassembly rigging. (See § 1926.1404(r).)
§ 1926.1404 Assembly/Disassembly—general requirements (applies to all assembly and disassembly operations).
(a) Supervision—competent-qualified person. (1) Assembly/disassembly must be directed by a person who meets the criteria for both a competent person and a qualified person, or by a competent person who is assisted by one or more qualified persons (“A/D director”).
(2) Where the assembly/disassembly is being performed by only one person, that person must meet the criteria for both a competent person and a qualified person. For purposes of this standard, that person is considered the A/D director.
(b) Knowledge of procedures. The A/D director must understand the applicable assembly/disassembly procedures.
(c) Review of procedures. The A/D director must review the applicable assembly/disassembly procedures immediately prior to the commencement of assembly/disassembly unless the A/D director understands the procedures and has applied them to the same type and configuration of equipment (including accessories, if any).
(d) Crew instructions. (1) Before commencing assembly/disassembly operations, the A/D director must ensure that the crew members understand all of the following:
(i) Their tasks.
(ii) The hazards associated with their tasks.
(iii) The hazardous positions/locations that they need to avoid.
(2) During assembly/disassembly operations, before a crew member takes on a different task, or when adding new personnel during the operations, the requirements in paragraphs (d)(1)(i) through (d)(1)(iii) of this section must be met.
(e) Protecting assembly/disassembly crew members out of operator view. (1) Before a crew member goes to a location that is out of view of the operator and is either in, on, or under the equipment, or near the equipment (or load) where the crew member could be injured by movement of the equipment (or load), the crew member must inform the operator that he/she is going to that location.
(2) Where the operator knows that a crew member went to a location covered by paragraph (e)(1) of this section, the operator must not move any part of the equipment (or load) until the operator is informed in accordance with a pre-arranged system of communication that the crew member is in a safe position.
(f) Working under the boom, jib or other components. (1) When pins (or similar devices) are being removed, employees must not be under the boom, jib, or other components, except where the requirements of paragraph (f)(2) of this section are met.
(2) Exception. Where the employer demonstrates that site constraints require one or more employees to be under the boom, jib, or other components when pins (or similar devices) are being removed, the A/D director must implement procedures that minimize the risk of unintended dangerous movement and minimize the duration and extent of exposure under the boom. (See Non-mandatory appendix B of this subpart for an example.)
(g) Capacity limits. During all phases of assembly/disassembly, rated capacity limits for loads imposed on the equipment, equipment components (including rigging), lifting lugs and equipment accessories, must not be exceeded for the equipment being assembled/disassembled.
(h) Addressing specific hazards. The A/D director supervising the assembly/disassembly operation must address the hazards associated with the operation, which include:
(1) Site and ground bearing conditions. Site and ground conditions must be adequate for safe assembly/disassembly operations and to support the equipment during assembly/disassembly (see § 1926.1402 for ground condition requirements).
(2) Blocking material. The size, amount, condition and method of stacking the blocking must be sufficient to sustain the loads and maintain stability.
(3) Proper location of blocking. When used to support lattice booms or components, blocking must be appropriately placed to:
(i) Protect the structural integrity of the equipment, and
(ii) Prevent dangerous movement and collapse.
(4) Verifying assist crane loads. When using an assist crane, the loads that will be imposed on the assist crane at each phase of assembly/disassembly must be verified in accordance with § 1926.1417(o)(3) before assembly/disassembly begins.
(5) Boom and jib pick points. The point(s) of attachment of rigging to a boom (or boom sections or jib or jib sections) must be suitable for preventing structural damage and facilitating safe handling of these components.
(6) Center of gravity. (i) The center of gravity of the load must be identified if that is necessary for the method used for maintaining stability.
(ii) Where there is insufficient information to accurately identify the center of gravity, measures designed to prevent unintended dangerous movement resulting from an inaccurate identification of the center of gravity must be used. (See Non-mandatory appendix B of this subpart for an example.)
(7) Stability upon pin removal. The boom sections, boom suspension systems (such as gantry A-frames and jib struts), and components must be rigged or supported to maintain stability upon the removal of the pins.
(8) Snagging. Suspension ropes and pendants must not be allowed to catch on the boom or jib connection pins or cotter pins (including keepers and locking pins).
(9) Struck by counterweights. The potential for unintended movement from inadequately supported counterweights and from hoisting counterweights.
(10) Boom hoist brake failure. Each time reliance is to be placed on the boom hoist brake to prevent boom movement during assembly/disassembly, the brake must be tested prior to such reliance to determine if it is sufficient to prevent boom movement. If it is not sufficient, a boom hoist pawl, other locking device/back-up braking device, or another method of preventing dangerous movement of the boom (such as blocking or using an assist crane) from a boom hoist brake failure must be used.
(11) Loss of backward stability. Backward stability before swinging the upperworks, travel, and when attaching or removing equipment components.
(12) Wind speed and weather. The effect of wind speed and weather on the equipment.
(i) [Reserved]
(j) Cantilevered boom sections. Manufacturer limitations on the maximum amount of boom supported only by cantilevering must not be exceeded. Where these are unavailable, a registered professional engineer familiar with the type of equipment involved must determine in writing this limitation, which must not be exceeded.
(k) Weight of components. The weight of each of the components must be readily available.
(l) [Reserved]
(m) Components and configuration. (1) The selection of components, and configuration of the equipment, that affect the capacity or safe operation of the equipment must be in accordance with:
(i) Manufacturer instructions, prohibitions, limitations, and specifications. Where these are unavailable, a registered professional engineer familiar with the type of equipment involved must approve, in writing, the selection and configuration of components; or
(ii) Approved modifications that meet the requirements of § 1926.1434 (Equipment modifications).
(2) Post-assembly inspection. Upon completion of assembly, the equipment must be inspected to ensure compliance with paragraph (m)(1) of this section (see § 1926.1412(c) for post-assembly inspection requirements).
(n) [Reserved]
(o) Shipping pins. Reusable shipping pins, straps, links, and similar equipment must be removed. Once they are removed they must either be stowed or otherwise stored so that they do not present a falling object hazard.
(p) Pile driving. Equipment used for pile driving must not have a jib attached during pile driving operations.
(q) Outriggers and stabilizers. When the load to be handled and the operating radius require the use of outriggers or stabilizers, or at any time when outriggers or stabilizers are used, all of the following requirements must be met (except as otherwise indicated):
(1) The outriggers or stabilizers must be either fully extended or, if manufacturer procedures permit, deployed as specified in the load chart.
(2) The outriggers must be set to remove the equipment weight from the wheels, except for locomotive cranes (see paragraph (q)(6) of this section for use of outriggers on locomotive cranes). This provision does not apply to stabilizers.
(3) When outrigger floats are used, they must be attached to the outriggers. When stabilizer floats are used, they must be attached to the stabilizers.
(4) Each outrigger or stabilizer must be visible to the operator or to a signal person during extension and setting.
(5) Outrigger and stabilizer blocking must:
(i) Meet the requirements in paragraphs (h)(2) and (h)(3) of this section.
(ii) Be placed only under the outrigger or stabilizer float/pad of the jack or, where the outrigger or stabilizer is designed without a jack, under the outer bearing surface of the extended outrigger or stabilizer beam.
(6) For locomotive cranes, when using outriggers or stabilizers to handle loads, the manufacturer's procedures must be followed. When lifting loads without using outriggers or stabilizers, the manufacturer's procedures must be met regarding truck wedges or screws.
(r) Rigging. In addition to following the requirements in 29 CFR 1926.251 and other requirements in this and other standards applicable to rigging, when rigging is used for assembly/disassembly, the employer must ensure that:
(1) The rigging work is done by a qualified rigger.
(2) Synthetic slings are protected from: Abrasive, sharp or acute edges, and configurations that could cause a reduction of the sling's rated capacity, such as distortion or localized compression.
Note:
Requirements for the protection of wire rope slings are contained in 29 CFR 1926.251(c)(9).
(3) When synthetic slings are used, the synthetic sling manufacturer's instructions, limitations, specifications and recommendations must be followed.
§ 1926.1405 Disassembly—additional requirements for dismantling of booms and jibs (applies to both the use of manufacturer procedures and employer procedures).
Dismantling (including dismantling for changing the length of) booms and jibs.
(a) None of the pins in the pendants are to be removed (partly or completely) when the pendants are in tension.
(b) None of the pins (top or bottom) on boom sections located between the pendant attachment points and the crane/derrick body are to be removed (partly or completely) when the pendants are in tension.
(c) None of the pins (top or bottom) on boom sections located between the uppermost boom section and the crane/derrick body are to be removed (partly or completely) when the boom is being supported by the uppermost boom section resting on the ground (or other support).
(d) None of the top pins on boom sections located on the cantilevered portion of the boom being removed (the portion being removed ahead of the pendant attachment points) are to be removed (partly or completely) until the cantilevered section to be removed is fully supported.
§ 1926.1406 Assembly/Disassembly—employer procedures—general requirements.
(a) When using employer procedures instead of manufacturer procedures for assembly/disassembly, the employer must ensure that the procedures:
(1) Prevent unintended dangerous movement, and prevent collapse, of any part of the equipment.
(2) Provide adequate support and stability of all parts of the equipment.
(3) Position employees involved in the assembly/disassembly operation so that their exposure to unintended movement or collapse of part or all of the equipment is minimized.
(b) Qualified person. Employer procedures must be developed by a qualified person.
§ 1926.1407 Power line safety (up to 350 kV)—assembly and disassembly.
(a) Before assembling or disassembling equipment, the employer must determine if any part of the equipment, load line, or load (including rigging and lifting accessories) could get, in the direction or area of assembly/disassembly, closer than 20 feet to a power line during the assembly/disassembly process. If so, the employer must meet the requirements in Option (1), Option (2), or Option (3) of this section, as follows:
(1) Option (1)—Deenergize and ground. Confirm from the utility owner/operator that the power line has been deenergized and visibly grounded at the worksite.
(2) Option (2)—20 foot clearance. Ensure that no part of the equipment, load line or load (including rigging and lifting accessories), gets closer than 20 feet to the power line by implementing the measures specified in paragraph (b) of this section.
(3) Option (3)—Table A clearance. (i) Determine the line's voltage and the minimum clearance distance permitted under Table A (see § 1926.1408).
(ii) Determine if any part of the equipment, load line, or load (including rigging and lifting accessories), could get closer than the minimum clearance distance to the power line permitted under Table A (see § 1926.1408). If so, then the employer must follow the requirements in paragraph (b) of this section to ensure that no part of the equipment, load line, or load (including rigging and lifting accessories), gets closer to the line than the minimum clearance distance.
(b) Preventing encroachment/electrocution. Where encroachment precautions are required under Option (2), or Option (3) of this section, all of the following requirements must be met:
(1) Conduct a planning meeting with the Assembly/Disassembly director (A/D director), operator, assembly/disassembly crew and the other workers who will be in the assembly/disassembly area to review the location of the power line(s) and the steps that will be implemented to prevent encroachment/electrocution.
(2) If tag lines are used, they must be nonconductive.
(3) At least one of the following additional measures must be in place. The measure selected from this list must be effective in preventing encroachment.
The additional measures are:
(i) Use a dedicated spotter who is in continuous contact with the equipment operator. The dedicated spotter must:
(A) Be equipped with a visual aid to assist in identifying the minimum clearance distance. Examples of a visual aid include, but are not limited to: A clearly visible line painted on the ground; a clearly visible line of stanchions; a set of clearly visible line-of-sight landmarks (such as a fence post behind the dedicated spotter and a building corner ahead of the dedicated spotter).
(B) Be positioned to effectively gauge the clearance distance.
(C) Where necessary, use equipment that enables the dedicated spotter to communicate directly with the operator.
(D) Give timely information to the operator so that the required clearance distance can be maintained.
(ii) A proximity alarm set to give the operator sufficient warning to prevent encroachment.
(iii) A device that automatically warns the operator when to stop movement, such as a range control warning device. Such a device must be set to give the operator sufficient warning to prevent encroachment.
(iv) A device that automatically limits range of movement, set to prevent encroachment.
(v) An elevated warning line, barricade, or line of signs, in view of the operator, equipped with flags or similar high-visibility markings.
(c) Assembly/disassembly below power lines prohibited. No part of a crane/derrick, load line, or load (including rigging and lifting accessories), whether partially or fully assembled, is allowed below a power line unless the employer has confirmed that the utility owner/operator has deenergized and (at the worksite) visibly grounded the power line.
(d) Assembly/disassembly inside Table A clearance prohibited. No part of a crane/derrick, load line, or load (including rigging and lifting accessories), whether partially or fully assembled, is allowed closer than the minimum approach distance under Table A (see § 1926.1408) to a power line unless the employer has confirmed that the utility owner/operator has deenergized and (at the worksite) visibly grounded the power line.
(e) Voltage information. Where Option (3) of this section is used, the utility owner/operator of the power lines must provide the requested voltage information within two working days of the employer's request.
(f) Power lines presumed energized. The employer must assume that all power lines are energized unless the utility owner/operator confirms that the power line has been and continues to be deenergized and visibly grounded at the worksite.
(g) Posting of electrocution warnings. There must be at least one electrocution hazard warning conspicuously posted in the cab so that it is in view of the operator and (except for overhead gantry and tower cranes) at least two on the outside of the equipment.
§ 1926.1408 Power line safety (up to 350 kV)—equipment operations.
(a) Hazard assessments and precautions inside the work zone. Before beginning equipment operations, the employer must:
(1) Identify the work zone by either:
(i) Demarcating boundaries (such as with flags, or a device such as a range limit device or range control warning device) and prohibiting the operator from operating the equipment past those boundaries, or
(ii) Defining the work zone as the area 360 degrees around the equipment, up to the equipment's maximum working radius.
(2) Determine if any part of the equipment, load line or load (including rigging and lifting accessories), if operated up to the equipment's maximum working radius in the work zone, could get closer than 20 feet to a power line. If so, the employer must meet the requirements in Option (1), Option (2), or Option (3) of this section, as follows:
(i) Option (1)—Deenergize and ground. Confirm from the utility owner/operator that the power line has been deenergized and visibly grounded at the worksite.
(ii) Option (2)—20 foot clearance. Ensure that no part of the equipment, load line, or load (including rigging and lifting accessories), gets closer than 20 feet to the power line by implementing the measures specified in paragraph (b) of this section.
(iii) Option (3)—Table A clearance. (A) Determine the line's voltage and the minimum approach distance permitted under Table A (see § 1926.1408).
(B) Determine if any part of the equipment, load line or load (including rigging and lifting accessories), while operating up to the equipment's maximum working radius in the work zone, could get closer than the minimum approach distance of the power line permitted under Table A (see § 1926.1408). If so, then the employer must follow the requirements in paragraph (b) of this section to ensure that no part of the equipment, load line, or load (including rigging and lifting accessories), gets closer to the line than the minimum approach distance.
(b) Preventing encroachment/electrocution. Where encroachment precautions are required under Option (2) or Option (3) of this section, all of the following requirements must be met:
(1) Conduct a planning meeting with the operator and the other workers who will be in the area of the equipment or load to review the location of the power line(s), and the steps that will be implemented to prevent encroachment/electrocution.
(2) If tag lines are used, they must be non-conductive.
(3) Erect and maintain an elevated warning line, barricade, or line of signs, in view of the operator, equipped with flags or similar high-visibility markings, at 20 feet from the power line (if using Option (2) of this section) or at the minimum approach distance under Table A (see § 1926.1408) (if using Option (3) of this section). If the operator is unable to see the elevated warning line, a dedicated spotter must be used as described in § 1926.1408(b)(4)(ii) in addition to implementing one of the measures described in §§ 1926.1408(b)(4)(i), (iii), (iv) and (v).
(4) Implement at least one of the following measures:
(i) A proximity alarm set to give the operator sufficient warning to prevent encroachment.
(ii) A dedicated spotter who is in continuous contact with the operator. Where this measure is selected, the dedicated spotter must:
(A) Be equipped with a visual aid to assist in identifying the minimum clearance distance. Examples of a visual aid include, but are not limited to: A clearly visible line painted on the ground; a clearly visible line of stanchions; a set of clearly visible line-of-sight landmarks (such as a fence post behind the dedicated spotter and a building corner ahead of the dedicated spotter).
(B) Be positioned to effectively gauge the clearance distance.
(C) Where necessary, use equipment that enables the dedicated spotter to communicate directly with the operator.
(D) Give timely information to the operator so that the required clearance distance can be maintained.
(iii) A device that automatically warns the operator when to stop movement, such as a range control warning device. Such a device must be set to give the operator sufficient warning to prevent encroachment.
(iv) A device that automatically limits range of movement, set to prevent encroachment.
(v) An insulating link/device, as defined in § 1926.1401, installed at a point between the end of the load line (or below) and the load.
(5) The requirements of paragraph (b)(4) of this section do not apply to work covered by subpart V of this part.
(c) Voltage information. Where Option (3) of this section is used, the utility owner/operator of the power lines must provide the requested voltage information within two working days of the employer's request.
(d) Operations below power lines. (1) No part of the equipment, load line, or load (including rigging and lifting accessories) is allowed below a power line unless the employer has confirmed that the utility owner/operator has deenergized and (at the worksite) visibly grounded the power line, except where one of the exceptions in paragraph (d)(2) of this section applies.
(2) Exceptions. Paragraph (d)(1) of this section is inapplicable where the employer demonstrates that one of the following applies:
(i) The work is covered by subpart V of this part.
(ii) For equipment with non-extensible booms: The uppermost part of the equipment, with the boom at true vertical, would be more than 20 feet below the plane of the power line or more than the Table A of this section minimum clearance distance below the plane of the power line.
(iii) For equipment with articulating or extensible booms: The uppermost part of the equipment, with the boom in the fully extended position, at true vertical, would be more than 20 feet below the plane of the power line or more than the Table A of this section minimum clearance distance below the plane of the power line.
(iv) The employer demonstrates that compliance with paragraph (d)(1) of this section is infeasible and meets the requirements of § 1926.1410.
(e) Power lines presumed energized. The employer must assume that all power lines are energized unless the utility owner/operator confirms that the power line has been and continues to be deenergized and visibly grounded at the worksite.
(f) When working near transmitter/communication towers where the equipment is close enough for an electrical charge to be induced in the equipment or materials being handled, the transmitter must be deenergized or the following precautions must be taken:
(1) The equipment must be provided with an electrical ground.
(2) If tag lines are used, they must be non-conductive.
(g) Training. (1) The employer must train each operator and crew member assigned to work with the equipment on all of the following:
(i) The procedures to be followed in the event of electrical contact with a power line. Such training must include:
(A) Information regarding the danger of electrocution from the operator simultaneously touching the equipment and the ground.
(B) The importance to the operator's safety of remaining inside the cab except where there is an imminent danger of fire, explosion, or other emergency that necessitates leaving the cab.
(C) The safest means of evacuating from equipment that may be energized.
(D) The danger of the potentially energized zone around the equipment (step potential).
(E) The need for crew in the area to avoid approaching or touching the equipment and the load.
(F) Safe clearance distance from power lines.
(ii) Power lines are presumed to be energized unless the utility owner/operator confirms that the power line has been and continues to be deenergized and visibly grounded at the worksite.
(iii) Power lines are presumed to be uninsulated unless the utility owner/operator or a registered engineer who is a qualified person with respect to electrical power transmission and distribution confirms that a line is insulated.
(iv) The limitations of an insulating link/device, proximity alarm, and range control (and similar) device, if used.
(v) The procedures to be followed to properly ground equipment and the limitations of grounding.
(2) Employees working as dedicated spotters must be trained to enable them to effectively perform their task, including training on the applicable requirements of this section.
(3) Training under this section must be administered in accordance with § 1926.1430(g).
(h) Devices originally designed by the manufacturer for use as: A safety device (see § 1926.1415), operational aid, or a means to prevent power line contact or electrocution, when used to comply with this section, must meet the manufacturer's procedures for use and conditions of use.
Table A—Minimum Clearance Distances
Voltage (nominal, kV, alternating current) | Minimum clearance distance (feet)
up to 50 | 10
over 50 to 200 | 15
over 200 to 350 | 20
over 350 to 500 | 25
over 500 to 750 | 35
over 750 to 1,000 | 45
over 1,000 | (as established by the utility owner/operator or registered professional engineer who is a qualified person with respect to electrical power transmission and distribution).
Note: The value that follows “to” is up to and includes that value. For example, over 50 to 200 means up to and including 200kV.
§ 1926.1409 Power line safety (over 350 kV).
The requirements of §§ 1926.1407 and 1926.1408 apply to power lines over 350 kV except:
(a) For power lines at or below 1000 kV, wherever the distance “20 feet” is specified, the distance “50 feet” must be substituted; and
(b) For power lines over 1000 kV, the minimum clearance distance must be established by the utility owner/operator or registered professional engineer who is a qualified person with respect to electrical power transmission and distribution.
§ 1926.1410 Power line safety (all voltages)—equipment operations closer than the Table A zone.
Equipment operations in which any part of the equipment, load line, or load (including rigging and lifting accessories) is closer than the minimum approach distance under Table A of § 1926.1408 to an energized power line is prohibited, except where the employer demonstrates that all of the following requirements are met:
(a) The employer determines that it is infeasible to do the work without breaching the minimum approach distance under Table A of § 1926.1408.
(b) The employer determines that, after consultation with the utility owner/operator, it is infeasible to deenergize and ground the power line or relocate the power line.
(c) Minimum clearance distance. (1) The power line owner/operator or registered professional engineer who is a qualified person with respect to electrical power transmission and distribution determines the minimum clearance distance that must be maintained to prevent electrical contact in light of the on-site conditions. The factors that must be considered in making this determination include, but are not limited to: Conditions affecting atmospheric conductivity; time necessary to bring the equipment, load line, and load (including rigging and lifting accessories) to a complete stop; wind conditions; degree of sway in the power line; lighting conditions, and other conditions affecting the ability to prevent electrical contact.
(2) Paragraph (c)(1) of this section does not apply to work covered by subpart V of this part; instead, for such work, the minimum approach distances established by the employer under § 1926.960(c)(1)(i) apply.
(d) A planning meeting with the employer and utility owner/operator (or registered professional engineer who is a qualified person with respect to electrical power transmission and distribution) is held to determine the procedures that will be followed to prevent electrical contact and electrocution. At a minimum these procedures must include:
(1) If the power line is equipped with a device that automatically reenergizes the circuit in the event of a power line contact, before the work begins, the automatic reclosing feature of the circuit interrupting device must be made inoperative if the design of the device permits.
(2) A dedicated spotter who is in continuous contact with the operator. The dedicated spotter must:
(i) Be equipped with a visual aid to assist in identifying the minimum clearance distance. Examples of a visual aid include, but are not limited to: A line painted on the ground; a clearly visible line of stanchions; a set of clearly visible line-of-sight landmarks (such as a fence post behind the dedicated spotter and a building corner ahead of the dedicated spotter).
(ii) Be positioned to effectively gauge the clearance distance.
(iii) Where necessary, use equipment that enables the dedicated spotter to communicate directly with the operator.
(iv) Give timely information to the operator so that the required clearance distance can be maintained.
(3) An elevated warning line, or barricade (not attached to the crane), in view of the operator (either directly or through video equipment), equipped with flags or similar high-visibility markings, to prevent electrical contact. However, this provision does not apply to work covered by subpart V of this part.
(4) Insulating link/device. (i) An insulating link/device installed at a point between the end of the load line (or below) and the load.
(ii) Paragraph (d)(4)(i) of this section does not apply to work covered by subpart V of this part.
(iii) [Reserved]
(iv) Until November 8, 2011, the following procedure may be substituted for the requirement in paragraph (d)(4)(i) of this section: All employees, excluding equipment operators located on the equipment, who may come in contact with the equipment, the load line, or the load must be insulated or guarded from the equipment, the load line, and the load. Insulating gloves rated for the voltage involved are adequate insulation for the purposes of this paragraph.
(v) Until November 8, 2013, the following procedure may be substituted for the requirement in (d)(4)(i) of this section:
(A) The employer must use a link/device manufactured on or before November 8, 2011, that meets the definition of an insulating link/device, except that it has not been approved by a Nationally Recognized Testing Laboratory, and that is maintained and used in accordance with manufacturer requirements and recommendations, and is installed at a point between the end of the load line (or below) and the load; and
(B) All employees, excluding equipment operators located on the equipment, who may come in contact with the equipment, the load line, or the load must be insulated or guarded from the equipment, the load line, and the load through an additional means other than the device described in paragraph (d)(4)(v)(A) of this section. Insulating gloves rated for the voltage involved are adequate additional means of protection for the purposes of this paragraph.
(5) Nonconductive rigging if the rigging may be within the Table A of § 1926.1408 distance during the operation.
(6) If the equipment is equipped with a device that automatically limits range of movement, it must be used and set to prevent any part of the equipment, load line, or load (including rigging and lifting accessories) from breaching the minimum approach distance established under paragraph (c) of this section.
(7) If a tag line is used, it must be of the nonconductive type.
(8) Barricades forming a perimeter at least 10 feet away from the equipment to prevent unauthorized personnel from entering the work area. In areas where obstacles prevent the barricade from being at least 10 feet away, the barricade must be as far from the equipment as feasible.
(9) Workers other than the operator must be prohibited from touching the load line above the insulating link/device and crane. Operators remotely operating the equipment from the ground must use either wireless controls that isolate the operator from the equipment or insulating mats that insulate the operator from the ground.
(10) Only personnel essential to the operation are permitted to be in the area of the crane and load.
(11) The equipment must be properly grounded.
(12) Insulating line hose or cover-up must be installed by the utility owner/operator except where such devices are unavailable for the line voltages involved.
(e) The procedures developed to comply with paragraph (d) of this section are documented and immediately available on-site.
(f) The equipment user and utility owner/operator (or registered professional engineer) meet with the equipment operator and the other workers who will be in the area of the equipment or load to review the procedures that will be implemented to prevent breaching the minimum approach distance established in paragraph (c) of this section and prevent electrocution.
(g) The procedures developed to comply with paragraph (d) of this section are implemented.
(h) The utility owner/operator (or registered professional engineer) and all employers of employees involved in the work must identify one person who will direct the implementation of the procedures. The person identified in accordance with this paragraph must direct the implementation of the procedures and must have the authority to stop work at any time to ensure safety.
(i) [Reserved]
(j) If a problem occurs implementing the procedures being used to comply with paragraph (d) of this section, or indicating that those procedures are inadequate to prevent electrocution, the employer must safely stop operations and either develop new procedures to comply with paragraph (d) of this section or have the utility owner/operator deenergize and visibly ground or relocate the power line before resuming work.
(k) Devices originally designed by the manufacturer for use as a safety device (see § 1926.1415), operational aid, or a means to prevent power line contact or electrocution, when used to comply with this section, must comply with the manufacturer's procedures for use and conditions of use.
(l) [Reserved]
(m) The employer must train each operator and crew member assigned to work with the equipment in accordance with § 1926.1408(g).
[75 FR 48135, Aug. 9, 2010, as amended at 79 FR 20743, Apr. 11, 2014]
§ 1926.1411 Power line safety—while traveling under or near power lines with no load.
(a) This section establishes procedures and criteria that must be met for equipment traveling under or near a power line on a construction site with no load. Equipment traveling on a construction site with a load is governed by § 1926.1408, § 1926.1409 or § 1926.1410, whichever is appropriate, and § 1926.1417(u).
(b) The employer must ensure that:
(1) The boom/mast and boom/mast support system are lowered sufficiently to meet the requirements of this paragraph.
(2) The clearances specified in Table T of this section are maintained.
(3) The effects of speed and terrain on equipment movement (including movement of the boom/mast) are considered so that those effects do not cause the minimum clearance distances specified in Table T of this section to be breached.
(4) Dedicated spotter. If any part of the equipment while traveling will get closer than 20 feet to the power line, the employer must ensure that a dedicated spotter who is in continuous contact with the driver/operator is used. The dedicated spotter must:
(i) Be positioned to effectively gauge the clearance distance.
(ii) Where necessary, use equipment that enables the dedicated spotter to communicate directly with the operator.
(iii) Give timely information to the operator so that the required clearance distance can be maintained.
(5) Additional precautions for traveling in poor visibility. When traveling at night, or in conditions of poor visibility, in addition to the measures specified in paragraphs (b)(1) through (4) of this section, the employer must ensure that:
(i) The power lines are illuminated or another means of identifying the location of the lines is used.
(ii) A safe path of travel is identified and used.
Table T—Minimum Clearance Distances While Traveling With No Load
Voltage (nominal, kV, alternating current) | While traveling—minimum clearance distance (feet)
up to 0.75 | 4
over .75 to 50 | 6
over 50 to 345 | 10
over 345 to 750 | 16
Over 750 to 1,000 | 20
Over 1,000 | (as established by the utility owner/operator or registered professional engineer who is a qualified person with respect to electrical power transmission and distribution).
§ 1926.1412 Inspections.
(a) Modified equipment. (1) Equipment that has had modifications or additions which affect the safe operation of the equipment (such as modifications or additions involving a safety device or operational aid, critical part of a control system, power plant, braking system, load-sustaining structural components, load hook, or in-use operating mechanism) or capacity must be inspected by a qualified person after such modifications/additions have been completed, prior to initial use. The inspection must meet all of the following requirements:
(i) The inspection must assure that the modifications or additions have been done in accordance with the approval obtained pursuant to § 1926.1434 (Equipment modifications).
(ii) The inspection must include functional testing of the equipment.
(2) Equipment must not be used until an inspection under this paragraph demonstrates that the requirements of paragraph (a)(1)(i) of this section have been met.
(b) Repaired/adjusted equipment. (1) Equipment that has had a repair or adjustment that relates to safe operation (such as: A repair or adjustment to a safety device or operator aid, or to a critical part of a control system, power plant, braking system, load-sustaining structural components, load hook, or in-use operating mechanism), must be inspected by a qualified person after such a repair or adjustment has been completed, prior to initial use. The inspection must meet all of the following requirements:
(i) The qualified person must determine if the repair/adjustment meets manufacturer equipment criteria (where applicable and available).
(ii) Where manufacturer equipment criteria are unavailable or inapplicable, the qualified person must:
(A) Determine if a registered professional engineer (RPE) is needed to develop criteria for the repair/adjustment. If an RPE is not needed, the employer must ensure that the criteria are developed by the qualified person. If an RPE is needed, the employer must ensure that they are developed by an RPE.
(B) Determine if the repair/adjustment meets the criteria developed in accordance with paragraph (b)(1)(ii)(A) of this section.
(iii) The inspection must include functional testing of the repaired/adjusted parts and other components that may be affected by the repair/adjustment.
(4) Equipment must not be used until an inspection under this paragraph demonstrates that the repair/adjustment meets the requirements of paragraph (b)(1)(i) of this section (or, where applicable, paragraph (b)(1)(ii) of this section).
(c) Post-assembly. (1) Upon completion of assembly, the equipment must be inspected by a qualified person to assure that it is configured in accordance with manufacturer equipment criteria.
(2) Where manufacturer equipment criteria are unavailable, a qualified person must:
(i) Determine if a registered professional engineer (RPE) familiar with the type of equipment involved is needed to develop criteria for the equipment configuration. If an RPE is not needed, the employer must ensure that the criteria are developed by the qualified person. If an RPE is needed, the employer must ensure that they are developed by an RPE.
(ii) Determine if the equipment meets the criteria developed in accordance with paragraph (c)(2)(i) of this section.
(3) Equipment must not be used until an inspection under this paragraph demonstrates that the equipment is configured in accordance with the applicable criteria.
(d) Each shift. (1) A competent person must begin a visual inspection prior to each shift the equipment will be used, which must be completed before or during that shift. The inspection must consist of observation for apparent deficiencies. Taking apart equipment components and booming down is not required as part of this inspection unless the results of the visual inspection or trial operation indicate that further investigation necessitating taking apart equipment components or booming down is needed. Determinations made in conducting the inspection must be reassessed in light of observations made during operation. At a minimum the inspection must include all of the following:
(i) Control mechanisms for maladjustments interfering with proper operation.
(ii) Control and drive mechanisms for apparent excessive wear of components and contamination by lubricants, water or other foreign matter.
(iii) Air, hydraulic, and other pressurized lines for deterioration or leakage, particularly those which flex in normal operation.
(iv) Hydraulic system for proper fluid level.
(v) Hooks and latches for deformation, cracks, excessive wear, or damage such as from chemicals or heat.
(vi) Wire rope reeving for compliance with the manufacturer's specifications.
(vii) Wire rope, in accordance with § 1926.1413(a).
(viii) Electrical apparatus for malfunctioning, signs of apparent excessive deterioration, dirt or moisture accumulation.
(ix) Tires (when in use) for proper inflation and condition.
(x) Ground conditions around the equipment for proper support, including ground settling under and around outriggers/stabilizers and supporting foundations, ground water accumulation, or similar conditions. This paragraph does not apply to the inspection of ground conditions for railroad tracks and their underlying support when the railroad tracks are part of the general railroad system of transportation that is regulated pursuant to the Federal Railroad Administration under 49 CFR part 213.
(xi) The equipment for level position within the tolerances specified by the equipment manufacturer's recommendations, both before each shift and after each move and setup.
(xii) Operator cab windows for significant cracks, breaks, or other deficiencies that would hamper the operator's view.
(xiii) Rails, rail stops, rail clamps and supporting surfaces when the equipment has rail traveling. This paragraph does not apply to the inspection of rails, rail stops, rail clamps and supporting surfaces when the railroad tracks are part of the general railroad system of transportation that is regulated pursuant to the Federal Railroad Administration under 49 CFR part 213.
(xiv) Safety devices and operational aids for proper operation.
(2) If any deficiency in paragraphs (d)(1)(i) through (xiii) of this section (or in additional inspection items required to be checked for specific types of equipment in accordance with other sections of this standard) is identified, an immediate determination must be made by the competent person as to whether the deficiency constitutes a safety hazard. If the deficiency is determined to constitute a safety hazard, the equipment must be taken out of service until it has been corrected. See § 1926.1417.
(3) If any deficiency in paragraph (d)(1)(xiv) of this section (safety devices/operational aids) is identified, the action specified in §§ 1926.1415 and 1926.1416 must be taken prior to using the equipment.
(e) Monthly. (1) Each month the equipment is in service it must be inspected in accordance with paragraph (d) of this section (each shift).
(2) Equipment must not be used until an inspection under this paragraph demonstrates that no corrective action under paragraphs (d)(2) and (3) of this section is required.
(3) Documentation. (i) The following information must be documented and maintained by the employer that conducts the inspection:
(A) The items checked and the results of the inspection.
(B) The name and signature of the person who conducted the inspection and the date.
(ii) This document must be retained for a minimum of three months.
(f) Annual/comprehensive. (1) At least every 12 months the equipment must be inspected by a qualified person in accordance with paragraph (d) of this section (each shift) except that the corrective action set forth in paragraphs (f)(4), (f)(5), and (f)(6) of this section must apply in place of the corrective action required by paragraphs (d)(2) and (d)(3) of this section.
(2) In addition, at least every 12 months, the equipment must be inspected by a qualified person. Disassembly is required, as necessary, to complete the inspection. The equipment must be inspected for all of the following:
(i) Equipment structure (including the boom and, if equipped, the jib):
(A) Structural members: Deformed, cracked, or significantly corroded.
(B) Bolts, rivets and other fasteners: loose, failed or significantly corroded.
(C) Welds for cracks.
(ii) Sheaves and drums for cracks or significant wear.
(iii) Parts such as pins, bearings, shafts, gears, rollers and locking devices for distortion, cracks or significant wear.
(iv) Brake and clutch system parts, linings, pawls and ratchets for excessive wear.
(v) Safety devices and operational aids for proper operation (including significant inaccuracies).
(vi) Gasoline, diesel, electric, or other power plants for safety-related problems (such as leaking exhaust and emergency shut-down feature) and conditions, and proper operation.
(vii) Chains and chain drive sprockets for excessive wear of sprockets and excessive chain stretch.
(viii) Travel steering, brakes, and locking devices, for proper operation.
(ix) Tires for damage or excessive wear.
(x) Hydraulic, pneumatic and other pressurized hoses, fittings and tubing, as follows:
(A) Flexible hose or its junction with the fittings for indications of leaks.
(B) Threaded or clamped joints for leaks.
(C) Outer covering of the hose for blistering, abnormal deformation or other signs of failure/impending failure.
(D) Outer surface of a hose, rigid tube, or fitting for indications of excessive abrasion or scrubbing.
(xi) Hydraulic and pneumatic pumps and motors, as follows:
(A) Performance indicators: Unusual noises or vibration, low operating speed, excessive heating of the fluid, low pressure.
(B) Loose bolts or fasteners.
(C) Shaft seals and joints between pump sections for leaks.
(xii) Hydraulic and pneumatic valves, as follows:
(A) Spools: Sticking, improper return to neutral, and leaks.
(B) Leaks.
(C) Valve housing cracks.
(D) Relief valves: Failure to reach correct pressure (if there is a manufacturer procedure for checking pressure, it must be followed).
(xiii) Hydraulic and pneumatic cylinders, as follows:
(A) Drifting caused by fluid leaking across the piston.
(B) Rod seals and welded joints for leaks.
(C) Cylinder rods for scores, nicks, or dents.
(D) Case (barrel) for significant dents.
(E) Rod eyes and connecting joints: Loose or deformed.
(xiv) Outrigger or stabilizer pads/floats for excessive wear or cracks.
(xv) Slider pads for excessive wear or cracks.
(xvi) Electrical components and wiring for cracked or split insulation and loose or corroded terminations.
(xvii) Warning labels and decals originally supplied with the equipment by the manufacturer or otherwise required under this standard: Missing or unreadable.
(xviii) Originally equipped operator seat (or equivalent): Missing.
(xix) Operator seat: Unserviceable.
(xx) Originally equipped steps, ladders, handrails, guards: Missing.
(xxi) Steps, ladders, handrails, guards: In unusable/unsafe condition.
(3) This inspection must include functional testing to determine that the equipment as configured in the inspection is functioning properly.
(4) If any deficiency is identified, an immediate determination must be made by the qualified person as to whether the deficiency constitutes a safety hazard or, though not yet a safety hazard, needs to be monitored in the monthly inspections.
(5) If the qualified person determines that a deficiency is a safety hazard, the equipment must be taken out of service until it has been corrected, except when temporary alternative measures are implemented as specified in § 1926.1416(d) or § 1926.1435(e). See § 1926.1417.
(6) If the qualified person determines that, though not presently a safety hazard, the deficiency needs to be monitored, the employer must ensure that the deficiency is checked in the monthly inspections.
(7) Documentation of annual/comprehensive inspection. The following information must be documented, maintained, and retained for a minimum of 12 months, by the employer that conducts the inspection:
(i) The items checked and the results of the inspection.
(ii) The name and signature of the person who conducted the inspection and the date.
(g) Severe service. Where the severity of use/conditions is such that there is a reasonable probability of damage or excessive wear (such as loading that may have exceeded rated capacity, shock loading that may have exceeded rated capacity, prolonged exposure to a corrosive atmosphere), the employer must stop using the equipment and a qualified person must:
(1) Inspect the equipment for structural damage to determine if the equipment can continue to be used safely.
(2) In light of the use/conditions determine whether any items/conditions listed in paragraph (f) of this section need to be inspected; if so, the qualified person must inspect those items/conditions.
(3) If a deficiency is found, the employer must follow the requirements in paragraphs (f)(4) through (6) of this section.
(h) Equipment not in regular use. Equipment that has been idle for 3 months or more must be inspected by a qualified person in accordance with the requirements of paragraph (e) (Monthly) of this section before initial use.
(i) [Reserved]
(j) Any part of a manufacturer's procedures regarding inspections that relate to safe operation (such as to a safety device or operational aid, critical part of a control system, power plant, braking system, load-sustaining structural components, load hook, or in-use operating mechanism) that is more comprehensive or has a more frequent schedule of inspection than the requirements of this section must be followed.
(k) All documents produced under this section must be available, during the applicable document retention period, to all persons who conduct inspections under this section.
§ 1926.1413 Wire rope—inspection.
(a) Shift inspection. (1) A competent person must begin a visual inspection prior to each shift the equipment is used, which must be completed before or during that shift. The inspection must consist of observation of wire ropes (running and standing) that are likely to be in use during the shift for apparent deficiencies, including those listed in paragraph (a)(2) of this section. Untwisting (opening) of wire rope or booming down is not required as part of this inspection.
(2) Apparent deficiencies—(i) Category I. Apparent deficiencies in this category include the following:
(A) Significant distortion of the wire rope structure such as kinking, crushing, unstranding, birdcaging, signs of core failure or steel core protrusion between the outer strands.
(B) Significant corrosion.
(C) Electric arc damage (from a source other than power lines) or heat damage.
(D) Improperly applied end connections.
(E) Significantly corroded, cracked, bent, or worn end connections (such as from severe service).
(ii) Category II. Apparent deficiencies in this category are:
(A) Visible broken wires, as follows:
(1) In running wire ropes: Six randomly distributed broken wires in one rope lay or three broken wires in one strand in one rope lay, where a rope lay is the length along the rope in which one strand makes a complete revolution around the rope.
(2) In rotation resistant ropes: Two randomly distributed broken wires in six rope diameters or four randomly distributed broken wires in 30 rope diameters.
(3) In pendants or standing wire ropes: More than two broken wires in one rope lay located in rope beyond end connections and/or more than one broken wire in a rope lay located at an end connection.
(B) A diameter reduction of more than 5% from nominal diameter.
(iii) Category III. Apparent deficiencies in this category include the following:
(A) In rotation resistant wire rope, core protrusion or other distortion indicating core failure.
(B) Prior electrical contact with a power line.
(C) A broken strand.
(3) Critical review items. The competent person must give particular attention to all of the following:
(i) Rotation resistant wire rope in use.
(ii) Wire rope being used for boom hoists and luffing hoists, particularly at reverse bends.
(iii) Wire rope at flange points, crossover points and repetitive pickup points on drums.
(iv) Wire rope at or near terminal ends.
(v) Wire rope in contact with saddles, equalizer sheaves or other sheaves where rope travel is limited.
(4) Removal from service. (i) If a deficiency in Category I (see paragraph (a)(2)(i) of this section) is identified, an immediate determination must be made by the competent person as to whether the deficiency constitutes a safety hazard. If the deficiency is determined to constitute a safety hazard, operations involving use of the wire rope in question must be prohibited until:
(A) The wire rope is replaced (see § 1926.1417), or
(B) If the deficiency is localized, the problem is corrected by severing the wire rope in two; the undamaged portion may continue to be used. Joining lengths of wire rope by splicing is prohibited. If a rope is shortened under this paragraph, the employer must ensure that the drum will still have two wraps of wire when the load and/or boom is in its lowest position.
(ii) If a deficiency in Category II (see paragraph (a)(2)(ii) of this section) is identified, operations involving use of the wire rope in question must be prohibited until:
(A) The employer complies with the wire rope manufacturer's established criterion for removal from service or a different criterion that the wire rope manufacturer has approved in writing for that specific wire rope (see § 1926.1417),
(B) The wire rope is replaced (see § 1926.1417), or
(C) If the deficiency is localized, the problem is corrected by severing the wire rope in two; the undamaged portion may continue to be used. Joining lengths of wire rope by splicing is prohibited. If a rope is shortened under this paragraph, the employer must ensure that the drum will still have two wraps of wire when the load and/or boom is in its lowest position.
(iii) If a deficiency in Category III is identified, operations involving use of the wire rope in question must be prohibited until:
(A) The wire rope is replaced (see § 1926.1417), or
(B) If the deficiency (other than power line contact) is localized, the problem is corrected by severing the wire rope in two; the undamaged portion may continue to be used. Joining lengths of wire rope by splicing is prohibited. Repair of wire rope that contacted an energized power line is also prohibited. If a rope is shortened under this paragraph, the employer must ensure that the drum will still have two wraps of wire when the load and/or boom is in its lowest position.
(iv) Where a wire rope is required to be removed from service under this section, either the equipment (as a whole) or the hoist with that wire rope must be tagged-out, in accordance with § 1926.1417(f)(1), until the wire rope is repaired or replaced.
(b) Monthly inspection. (1) Each month an inspection must be conducted in accordance with paragraph (a) (shift inspection) of this section.
(2) The inspection must include any deficiencies that the qualified person who conducts the annual inspection determines under paragraph (c)(3)(ii) of this section must be monitored.
(3) Wire ropes on equipment must not be used until an inspection under this paragraph demonstrates that no corrective action under paragraph (a)(4) of this section is required.
(4) The inspection must be documented according to § 1926.1412(e)(3) (monthly inspection documentation).
(c) Annual/comprehensive. (1) At least every 12 months, wire ropes in use on equipment must be inspected by a qualified person in accordance with paragraph (a) of this section (shift inspection).
(2) In addition, at least every 12 months, the wire ropes in use on equipment must be inspected by a qualified person, as follows:
(i) The inspection must be for deficiencies of the types listed in paragraph (a)(2) of this section.
(ii) The inspection must be complete and thorough, covering the surface of the entire length of the wire ropes, with particular attention given to all of the following:
(A) Critical review items listed in paragraph (a)(3) of this section.
(B) Those sections that are normally hidden during shift and monthly inspections.
(C) Wire rope subject to reverse bends.
(D) Wire rope passing over sheaves.
(iii) Exception: In the event an inspection under paragraph (c)(2) of this section is not feasible due to existing set-up and configuration of the equipment (such as where an assist crane is needed) or due to site conditions (such as a dense urban setting), such inspections must be conducted as soon as it becomes feasible, but no longer than an additional 6 months for running ropes and, for standing ropes, at the time of disassembly.
(3) If a deficiency is identified, an immediate determination must be made by the qualified person as to whether the deficiency constitutes a safety hazard.
(i) If the deficiency is determined to constitute a safety hazard, operations involving use of the wire rope in question must be prohibited until:
(A) The wire rope is replaced (see § 1926.1417), or
(B) If the deficiency is localized, the problem is corrected by severing the wire rope in two; the undamaged portion may continue to be used. Joining lengths of wire rope by splicing is prohibited. If a rope is shortened under this paragraph, the employer must ensure that the drum will still have two wraps of wire when the load and/or boom is in its lowest position.
(ii) If the qualified person determines that, though not presently a safety hazard, the deficiency needs to be monitored, the employer must ensure that the deficiency is checked in the monthly inspections.
(4) The inspection must be documented according to § 1926.1412(f)(7) (annual/comprehensive inspection documentation).
(d) Rope lubricants that are of the type that hinder inspection must not be used.
(e) All documents produced under this section must be available, during the applicable document retention period, to all persons who conduct inspections under this section.
§ 1926.1414 Wire rope—selection and installation criteria.
(a) Original equipment wire rope and replacement wire rope must be selected and installed in accordance with the requirements of this section. Selection of replacement wire rope must be in accordance with the recommendations of the wire rope manufacturer, the equipment manufacturer, or a qualified person.
(b) Wire rope design criteria: Wire rope (other than rotation resistant rope) must comply with either Option (1) or Option (2) of this section, as follows:
(1) Option (1). Wire rope must comply with section 5-1.7.1 of ASME B30.5-2004 (incorporated by reference, see § 1926.6) except that section's paragraph (c) must not apply.
(2) Option (2). Wire rope must be designed to have, in relation to the equipment's rated capacity, a sufficient minimum breaking force and design factor so that compliance with the applicable inspection provisions in § 1926.1413 will be an effective means of preventing sudden rope failure.
(c) Wire rope must be compatible with the safe functioning of the equipment.
(d) Boom hoist reeving. (1) Fiber core ropes must not be used for boom hoist reeving, except for derricks.
(2) Rotation resistant ropes must be used for boom hoist reeving only where the requirements of paragraph (e)(4)(ii) of this section are met.
(e) Rotation resistant ropes—(1) Definitions—(i) Type I rotation resistant wire rope (“Type I”). Type I rotation resistant rope is stranded rope constructed to have little or no tendency to rotate or, if guided, transmits little or no torque. It has at least 15 outer strands and comprises an assembly of at least three layers of strands laid helically over a center in two operations. The direction of lay of the outer strands is opposite to that of the underlying layer.
(ii) Type II rotation resistant wire rope (“Type II”). Type II rotation resistant rope is stranded rope constructed to have significant resistance to rotation. It has at least 10 outer strands and comprises an assembly of two or more layers of strands laid helically over a center in two or three operations. The direction of lay of the outer strands is opposite to that of the underlying layer.
(iii) Type III rotation resistant wire rope (“Type III”). Type III rotation resistant rope is stranded rope constructed to have limited resistance to rotation. It has no more than nine outer strands, and comprises an assembly of two layers of strands laid helically over a center in two operations. The direction of lay of the outer strands is opposite to that of the underlying layer.
(2) Requirements. (i) Types II and III with an operating design factor of less than 5 must not be used for duty cycle or repetitive lifts.
(ii) Rotation resistant ropes (including Types I, II and III) must have an operating design factor of no less than 3.5.
(iii) Type I must have an operating design factor of no less than 5, except where the wire rope manufacturer and the equipment manufacturer approves the design factor, in writing.
(iv) Types II and III must have an operating design factor of no less than 5, except where the requirements of paragraph (e)(3) of this section are met.
(3) When Types II and III with an operating design factor of less than 5 are used (for non-duty cycle, non-repetitive lifts), the following requirements must be met for each lifting operation:
(i) A qualified person must inspect the rope in accordance with § 1926.1413(a). The rope must be used only if the qualified person determines that there are no deficiencies constituting a hazard. In making this determination, more than one broken wire in any one rope lay must be considered a hazard.
(ii) Operations must be conducted in such a manner and at such speeds as to minimize dynamic effects.
(iii) Each lift made under § 1926.1414(e)(3) must be recorded in the monthly and annual inspection documents. Such prior uses must be considered by the qualified person in determining whether to use the rope again.
(4) Additional requirements for rotation resistant ropes for boom hoist reeving. (i) Rotation resistant ropes must not be used for boom hoist reeving, except where the requirements of paragraph (e)(4)(ii) of this section are met.
(ii) Rotation resistant ropes may be used as boom hoist reeving when load hoists are used as boom hoists for attachments such as luffing attachments or boom and mast attachment systems. Under these conditions, all of the following requirements must be met:
(A) The drum must provide a first layer rope pitch diameter of not less than 18 times the nominal diameter of the rope used.
(B) The requirements in § 1926.1426(a) (irrespective of the date of manufacture of the equipment), and § 1926.1426(b).
(C) The requirements in ASME B30.5-2004 sections 5-1.3.2(a), (a)(2) through (a)(4), (b) and (d) (incorporated by reference, see § 1926.6) except that the minimum pitch diameter for sheaves used in multiple rope reeving is 18 times the nominal diameter of the rope used (instead of the value of 16 specified in section 5-1.3.2(d)).
(D) All sheaves used in the boom hoist reeving system must have a rope pitch diameter of not less than 18 times the nominal diameter of the rope used.
(E) The operating design factor for the boom hoist reeving system must be not less than five.
(F) The operating design factor for these ropes must be the total minimum breaking force of all parts of rope in the system divided by the load imposed on the rope system when supporting the static weights of the structure and the load within the equipment's rated capacity.
(G) When provided, a power-controlled lowering system must be capable of handling rated capacities and speeds as specified by the manufacturer.
(f) Wire rope clips used in conjunction with wedge sockets must be attached to the unloaded dead end of the rope only, except that the use of devices specifically designed for dead-ending rope in a wedge socket is permitted.
(g) Socketing must be done in the manner specified by the manufacturer of the wire rope or fitting.
(h) Prior to cutting a wire rope, seizings must be placed on each side of the point to be cut. The length and number of seizings must be in accordance with the wire rope manufacturer's instructions.
§ 1926.1415 Safety devices.
(a) Safety devices. The following safety devices are required on all equipment covered by this subpart, unless otherwise specified:
(1) Crane level indicator. (i) The equipment must have a crane level indicator that is either built into the equipment or is available on the equipment.
(ii) If a built-in crane level indicator is not working properly, it must be tagged-out or removed. If a removable crane level indicator is not working properly, it must be removed.
(iii) This requirement does not apply to portal cranes, derricks, floating cranes/derricks and land cranes/derricks on barges, pontoons, vessels or other means of flotation.
(2) Boom stops, except for derricks and hydraulic booms.
(3) Jib stops (if a jib is attached), except for derricks.
(4) Equipment with foot pedal brakes must have locks.
(5) Hydraulic outrigger jacks and hydraulic stabilizer jacks must have an integral holding device/check valve.
(6) Equipment on rails must have rail clamps and rail stops, except for portal cranes.
(7) Horn. (i) The equipment must have a horn that is either built into the equipment or is on the equipment and immediately available to the operator.
(ii) If a built-in horn is not working properly, it must be tagged-out or removed. If a removable horn is not working properly, it must be removed.
(b) Proper operation required. Operations must not begin unless all of the devices listed in this section are in proper working order. If a device stops working properly during operations, the operator must safely stop operations. If any of the devices listed in this section are not in proper working order, the equipment must be taken out of service and operations must not resume until the device is again working properly. See § 1926.1417 (Operation). Alternative measures are not permitted to be used.
§ 1926.1416 Operational aids.
(a) The devices listed in this section (“listed operational aids”) are required on all equipment covered by this subpart, unless otherwise specified.
(1) The requirements in paragraphs (e)(1), (e)(2), and (e)(3) of this section do not apply to articulating cranes.
(2) The requirements in paragraphs (d)(3), (e)(1), and (e)(4) of this section apply only to those digger derricks manufactured after November 8, 2011.
(b) Operations must not begin unless the listed operational aids are in proper working order, except where an operational aid is being repaired the employer uses the specified temporary alternative measures. The time periods permitted for repairing defective operational aids are specified in paragraphs (d) and (e) of this section. More protective alternative measures specified by the crane/derrick manufacturer, if any, must be followed.
(c) If a listed operational aid stops working properly during operations, the operator must safely stop operations until the temporary alternative measures are implemented or the device is again working properly. If a replacement part is no longer available, the use of a substitute device that performs the same type of function is permitted and is not considered a modification under § 1926.1434.
(d) Category I operational aids and alternative measures. Operational aids listed in this paragraph that are not working properly must be repaired no later than 7 calendar days after the deficiency occurs. Exception: If the employer documents that it has ordered the necessary parts within 7 calendar days of the occurrence of the deficiency, the repair must be completed within 7 calendar days of receipt of the parts. See § 1926.1417(j) for additional requirements.
(1) Boom hoist limiting device. (i) For equipment manufactured after December 16, 1969, a boom hoist limiting device is required. Temporary alternative measures (use at least one). One or more of the following methods must be used:
(A) Use a boom angle indicator.
(B) Clearly mark the boom hoist cable (so that it can easily be seen by the operator) at a point that will give the operator sufficient time to stop the hoist to keep the boom within the minimum allowable radius. In addition, install mirrors or remote video cameras and displays if necessary for the operator to see the mark.
(C) Clearly mark the boom hoist cable (so that it can easily be seen by a spotter) at a point that will give the spotter sufficient time to signal the operator and have the operator stop the hoist to keep the boom within the minimum allowable radius.
(ii) If the equipment was manufactured on or before December 16, 1969, and is not equipped with a boom hoist limiting device, at least one of the measures in paragraphs (d)(1)(i)(A) through (C) of this section must be used.
(2) Luffing jib limiting device. Equipment with a luffing jib must have a luffing jib limiting device. Temporary alternative measures are the same as in paragraph (d)(1)(i) of this section, except to limit the movement of the luffing jib rather than the boom hoist.
(3) Anti two-blocking device. (i) Telescopic boom cranes manufactured after February 28, 1992, must be equipped with a device which automatically prevents damage from contact between the load block, overhaul ball, or similar component, and the boom tip (or fixed upper block or similar component). The device(s) must prevent such damage at all points where two-blocking could occur.
Temporary alternative measures: Clearly mark the cable (so that it can easily be seen by the operator) at a point that will give the operator sufficient time to stop the hoist to prevent two-blocking, and use a spotter when extending the boom.
(ii) Lattice boom cranes. (A) Lattice boom cranes manufactured after Feb 28, 1992, must be equipped with a device that either automatically prevents damage and load failure from contact between the load block, overhaul ball, or similar component, and the boom tip (or fixed upper block or similar component), or warns the operator in time for the operator to prevent two-blocking. The device must prevent such damage/failure or provide adequate warning for all points where two-blocking could occur.
(B) Lattice boom cranes and derricks manufactured after November 8, 2011 must be equipped with a device which automatically prevents damage and load failure from contact between the load block, overhaul ball, or similar component, and the boom tip (or fixed upper block or similar component). The device(s) must prevent such damage/failure at all points where two-blocking could occur.
(C) Exception. The requirements in paragraphs (d)(3)(ii)(A) and (B) of this section do not apply to such lattice boom equipment when used for dragline, clamshell (grapple), magnet, drop ball, container handling, concrete bucket, marine operations that do not involve hoisting personnel, and pile driving work.
(D) Temporary alternative measures. Clearly mark the cable (so that it can easily be seen by the operator) at a point that will give the operator sufficient time to stop the hoist to prevent two-blocking, or use a spotter.
(iii) Articulating cranes manufactured after December 31, 1999, that are equipped with a load hoist must be equipped with a device that automatically prevents damage from contact between the load block, overhaul ball, or similar component, and the boom tip (or fixed upper block or similar component). The device must prevent such damage at all points where two-blocking could occur. Temporary alternative measures: When two-blocking could only occur with movement of the load hoist, clearly mark the cable (so that it can easily be seen by the operator) at a point that will give the operator sufficient time to stop the hoist to prevent two-blocking, or use a spotter. When two-blocking could occur without movement of the load hoist, clearly mark the cable (so that it can easily be seen by the operator) at a point that will give the operator sufficient time to stop the hoist to prevent two-blocking, and use a spotter when extending the boom.
(e) Category II operational aids and alternative measures. Operational aids listed in this paragraph that are not working properly must be repaired no later than 30 calendar days after the deficiency occurs. Exception: If the employer documents that it has ordered the necessary parts within 7 calendar days of the occurrence of the deficiency, and the part is not received in time to complete the repair in 30 calendar days, the repair must be completed within 7 calendar days of receipt of the parts. See § 1926.1417(j) for additional requirements.
(1) Boom angle or radius indicator. The equipment must have a boom angle or radius indicator readable from the operator's station. Temporary alternative measures: Radii or boom angle must be determined by measuring the radii or boom angle with a measuring device.
(2) Jib angle indicator if the equipment has a luffing jib. Temporary alternative measures: Radii or jib angle must be determined by ascertaining the main boom angle and then measuring the radii or jib angle with a measuring device.
(3) Boom length indicator if the equipment has a telescopic boom, except where the rated capacity is independent of the boom length. Temporary alternative measures. One or more of the following methods must be used:
(i) Mark the boom with measured marks to calculate boom length,
(ii) Calculate boom length from boom angle and radius measurements,
(iii) Measure the boom with a measuring device.
(4) Load weighing and similar devices. (i) Equipment (other than derricks and articulating cranes) manufactured after March 29, 2003 with a rated capacity over 6,000 pounds must have at least one of the following: load weighing device, load moment (or rated capacity) indicator, or load moment (or rated capacity) limiter. Temporary alternative measures: The weight of the load must be determined from a source recognized by the industry (such as the load's manufacturer) or by a calculation method recognized by the industry (such as calculating a steel beam from measured dimensions and a known per foot weight). This information must be provided to the operator prior to the lift.
(ii) Articulating cranes manufactured after November 8, 2011 must have at least one of the following: automatic overload prevention device, load weighing device, load moment (or rated capacity) indicator, or load moment (rated capacity) limiter. Temporary alternative measures: The weight of the load must be determined from a source recognized by the industry (such as the load's manufacturer) or by a calculation method recognized by the industry (such as calculating a steel beam from measured dimensions and a known per foot weight). This information must be provided to the operator prior to the lift.
(5) The following devices are required on equipment manufactured after November 8, 2011:
(i) Outrigger/stabilizer position (horizontal beam extension) sensor/monitor if the equipment has outriggers or stabilizers. Temporary alternative measures: The operator must verify that the position of the outriggers or stabilizers is correct (in accordance with manufacturer procedures) before beginning operations requiring outrigger or stabilizer deployment.
(ii) Hoist drum rotation indicator if the equipment has a hoist drum not visible from the operator's station. Temporary alternative measures: Mark the drum to indicate the rotation of the drum. In addition, install mirrors or remote video cameras and displays if necessary for the operator to see the mark.
§ 1926.1417 Operation.
(a) The employer must comply with all manufacturer procedures applicable to the operational functions of equipment, including its use with attachments.
(b) Unavailable operation procedures. (1) Where the manufacturer procedures are unavailable, the employer must develop and ensure compliance with all procedures necessary for the safe operation of the equipment and attachments.
(2) Procedures for the operational controls must be developed by a qualified person.
(3) Procedures related to the capacity of the equipment must be developed and signed by a registered professional engineer familiar with the equipment.
(c) Accessibility of procedures. (1) The procedures applicable to the operation of the equipment, including rated capacities (load charts), recommended operating speeds, special hazard warnings, instructions, and operator's manual, must be readily available in the cab at all times for use by the operator.
(2) Where rated capacities are available in the cab only in electronic form: In the event of a failure which makes the rated capacities inaccessible, the operator must immediately cease operations or follow safe shut-down procedures until the rated capacities (in electronic or other form) are available.
(d) The operator must not engage in any practice or activity that diverts his/her attention while actually engaged in operating the equipment, such as the use of cellular phones (other than when used for signal communications).
(e) Leaving the equipment unattended. (1) The operator must not leave the controls while the load is suspended, except where all of the following are met:
(i) The operator remains adjacent to the equipment and is not engaged in any other duties.
(ii) The load is to be held suspended for a period of time exceeding normal lifting operations.
(iii) The competent person determines that it is safe to do so and implements measures necessary to restrain the boom hoist and telescoping, load, swing, and outrigger or stabilizer functions.
(iv) Barricades or caution lines, and notices, are erected to prevent all employees from entering the fall zone. No employees, including those listed in §§ 1926.1425(b)(1) through (3), § 1926.1425(d) or § 1926.1425(e), are permitted in the fall zone.
(2) The provisions in § 1926.1417(e)(1) do not apply to working gear (such as slings, spreader bars, ladders, and welding machines) where the weight of the working gear is negligible relative to the lifting capacity of the equipment as positioned, and the working gear is suspended over an area other than an entrance or exit.
(f) Tag-out—(1) Tagging out of service equipment/functions. Where the employer has taken the equipment out of service, a tag must be placed in the cab stating that the equipment is out of service and is not to be used. Where the employer has taken a function(s) out of service, a tag must be placed in a conspicuous position stating that the function is out of service and is not to be used.
(2) Response to “do not operate”/tag-out signs. (i) If there is a warning (tag-out or maintenance/do not operate) sign on the equipment or starting control, the operator must not activate the switch or start the equipment until the sign has been removed by a person authorized to remove it, or until the operator has verified that:
(A) No one is servicing, working on, or otherwise in a dangerous position on the machine.
(B) The equipment has been repaired and is working properly.
(ii) If there is a warning (tag-out or maintenance/do not operate) sign on any other switch or control, the operator must not activate that switch or control until the sign has been removed by a person authorized to remove it, or until the operator has verified that the requirements in paragraphs (f)(2)(i)(A) and (B) of this section have been met.
(g) Before starting the engine, the operator must verify that all controls are in the proper starting position and that all personnel are in the clear.
(h) Storm warning. When a local storm warning has been issued, the competent person must determine whether it is necessary to implement manufacturer recommendations for securing the equipment.
(i) [Reserved]
(j) If equipment adjustments or repairs are necessary:
(1) The operator must, in writing, promptly inform the person designated by the employer to receive such information and, where there are successive shifts, to the next operator; and
(2) The employer must notify all affected employees, at the beginning of each shift, of the necessary adjustments or repairs and all alternative measures.
(k) Safety devices and operational aids must not be used as a substitute for the exercise of professional judgment by the operator.
(l) [Reserved]
(m) If the competent person determines that there is a slack rope condition requiring re-spooling of the rope, it must be verified (before starting to lift) that the rope is seated on the drum and in the sheaves as the slack is removed.
(n) The competent person must adjust the equipment and/or operations to address the effect of wind, ice, and snow on equipment stability and rated capacity.
(o) Compliance with rated capacity. (1) The equipment must not be operated in excess of its rated capacity.
(2) The operator must not be required to operate the equipment in a manner that would violate paragraph (o)(1) of this section.
(3) Load weight. The operator must verify that the load is within the rated capacity of the equipment by at least one of the following methods:
(i) The weight of the load must be determined from a source recognized by the industry (such as the load's manufacturer), or by a calculation method recognized by the industry (such as calculating a steel beam from measured dimensions and a known per foot weight), or by other equally reliable means. In addition, when requested by the operator, this information must be provided to the operator prior to the lift; or
(ii) The operator must begin hoisting the load to determine, using a load weighing device, load moment indicator, rated capacity indicator, or rated capacity limiter, if it exceeds 75 percent of the maximum rated capacity at the longest radius that will be used during the lift operation. If it does, the operator must not proceed with the lift until he/she verifies the weight of the load in accordance with paragraph (o)(3)(i) of this section.
(p) The boom or other parts of the equipment must not contact any obstruction.
(q) The equipment must not be used to drag or pull loads sideways.
(r) On wheel-mounted equipment, no loads must be lifted over the front area, except as permitted by the manufacturer.
(s) The operator must test the brakes each time a load that is 90% or more of the maximum line pull is handled by lifting the load a few inches and applying the brakes. In duty cycle and repetitive lifts where each lift is 90% or more of the maximum line pull, this requirement applies to the first lift but not to successive lifts.
(t) Neither the load nor the boom must be lowered below the point where less than two full wraps of rope remain on their respective drums.
(u) Traveling with a load. (1) Traveling with a load is prohibited if the practice is prohibited by the manufacturer.
(2) Where traveling with a load, the employer must ensure that:
(i) A competent person supervises the operation, determines if it is necessary to reduce rated capacity, and makes determinations regarding load position, boom location, ground support, travel route, overhead obstructions, and speed of movement necessary to ensure safety.
(ii) The determinations of the competent person required in paragraph (u)(2)(i) of this section are implemented.
(iii) For equipment with tires, tire pressure specified by the manufacturer is maintained.
(v) Rotational speed of the equipment must be such that the load does not swing out beyond the radius at which it can be controlled.
(w) A tag or restraint line must be used if necessary to prevent rotation of the load that would be hazardous.
(x) The brakes must be adjusted in accordance with manufacturer procedures to prevent unintended movement.
(y) The operator must obey a stop (or emergency stop) signal, irrespective of who gives it.
(z) Swinging locomotive cranes. A locomotive crane must not be swung into a position where railway cars on an adjacent track could strike it, until it is determined that cars are not being moved on the adjacent track and that proper flag protection has been established.
(aa) Counterweight/ballast. (1) The following applies to equipment other than tower cranes:
(i) Equipment must not be operated without the counterweight or ballast in place as specified by the manufacturer.
(ii) The maximum counterweight or ballast specified by the manufacturer for the equipment must not be exceeded.
(2) Counterweight/ballast requirements for tower cranes are specified in § 1926.1435(b)(8).
§ 1926.1418 Authority to stop operation.
Whenever there is a concern as to safety, the operator must have the authority to stop and refuse to handle loads until a qualified person has determined that safety has been assured.
§ 1926.1419 Signals—general requirements.
(a) A signal person must be provided in each of the following situations:
(1) The point of operation, meaning the load travel or the area near or at load placement, is not in full view of the operator.
(2) When the equipment is traveling, the view in the direction of travel is obstructed.
(3) Due to site specific safety concerns, either the operator or the person handling the load determines that it is necessary.
(b) Types of signals. Signals to operators must be by hand, voice, audible, or new signals.
(c) Hand signals. (1) When using hand signals, the Standard Method must be used (see appendix A of this subpart). Exception: Where use of the Standard Method for hand signals is infeasible, or where an operation or use of an attachment is not covered in the Standard Method, non-standard hand signals may be used in accordance with paragraph (c)(2) of this section.
(2) Non-standard hand signals. When using non-standard hand signals, the signal person, operator, and lift director (where there is one) must contact each other prior to the operation and agree on the non-standard hand signals that will be used.
(d) New signals. Signals other than hand, voice, or audible signals may be used where the employer demonstrates that:
(1) The new signals provide at least equally effective communication as voice, audible, or Standard Method hand signals, or
(2) The new signals comply with a national consensus standard that provides at least equally effective communication as voice, audible, or Standard Method hand signals.
(e) Suitability. The signals used (hand, voice, audible, or new), and means of transmitting the signals to the operator (such as direct line of sight, video, radio, etc.), must be appropriate for the site conditions.
(f) During operations requiring signals, the ability to transmit signals between the operator and signal person must be maintained. If that ability is interrupted at any time, the operator must safely stop operations requiring signals until it is reestablished and a proper signal is given and understood.
(g) If the operator becomes aware of a safety problem and needs to communicate with the signal person, the operator must safely stop operations. Operations must not resume until the operator and signal person agree that the problem has been resolved.
(h) Only one person may give signals to a crane/derrick at a time, except in circumstances covered by paragraph (j) of this section.
(i) [Reserved]
(j) Anyone who becomes aware of a safety problem must alert the operator or signal person by giving the stop or emergency stop signal. (Note: § 1926.1417(y) requires the operator to obey a stop or emergency stop signal).
(k) All directions given to the operator by the signal person must be given from the operator's direction perspective.
(l) [Reserved]
(m) Communication with multiple cranes/derricks. Where a signal person(s) is in communication with more than one crane/derrick, a system must be used for identifying the crane/derrick each signal is for, as follows:
(1) for each signal, prior to giving the function/direction, the signal person must identify the crane/derrick the signal is for, or
(2) must use an equally effective method of identifying which crane/derrick the signal is for.
§ 1926.1420 Signals—radio, telephone or other electronic transmission of signals.
(a) The device(s) used to transmit signals must be tested on site before beginning operations to ensure that the signal transmission is effective, clear, and reliable.
(b) Signal transmission must be through a dedicated channel, except:
(1) Multiple cranes/derricks and one or more signal persons may share a dedicated channel for the purpose of coordinating operations.
(2) Where a crane is being operated on or adjacent to railroad tracks, and the actions of the crane operator need to be coordinated with the movement of other equipment or trains on the same or adjacent tracks.
(c) The operator's reception of signals must be by a hands-free system.
§ 1926.1421 Signals—voice signals—additional requirements.
(a) Prior to beginning operations, the operator, signal person and lift director (if there is one), must contact each other and agree on the voice signals that will be used. Once the voice signals are agreed upon, these workers need not meet again to discuss voice signals unless another worker is added or substituted, there is confusion about the voice signals, or a voice signal is to be changed.
(b) Each voice signal must contain the following three elements, given in the following order: function (such as hoist, boom, etc.), direction; distance and/or speed; function, stop command.
(c) The operator, signal person and lift director (if there is one), must be able to effectively communicate in the language used.
§ 1926.1422 Signals—hand signal chart.
Hand signal charts must be either posted on the equipment or conspicuously posted in the vicinity of the hoisting operations.
§ 1926.1423 Fall protection.
(a) Application. (1) Paragraphs (b), (c)(3), (e) and (f) of this section apply to all equipment covered by this subpart except tower cranes.
(2) Paragraphs (c)(1), (c)(2), (d), (g), (j) and (k) of this section apply to all equipment covered by this subpart.
(3) Paragraphs (c)(4) and (h) of this section apply only to tower cranes.
(b) Boom walkways. (1) Equipment manufactured after November 8, 2011 with lattice booms must be equipped with walkways on the boom(s) if the vertical profile of the boom (from cord centerline to cord centerline) is 6 or more feet.
(2) Boom walkway criteria. (i) The walkways must be at least 12 inches wide.
(ii) Guardrails, railings and other permanent fall protection attachments along walkways are:
(A) Not required.
(B) Prohibited on booms supported by pendant ropes or bars if the guardrails/railings/attachments could be snagged by the ropes or bars.
(C) Prohibited if of the removable type (designed to be installed and removed each time the boom is assembled/disassembled).
(D) Where not prohibited, guardrails or railings may be of any height up to, but not more than, 45 inches.
(c) Steps, handholds, ladders, grabrails, guardrails and railings. (1) Section 1926.502(b) does not apply to equipment covered by this subpart.
(2) The employer must maintain in good condition originally-equipped steps, handholds, ladders and guardrails/railings/grabrails.
(3) Equipment manufactured after November 8, 2011 must be equipped so as to provide safe access and egress between the ground and the operator work station(s), including the forward and rear positions, by the provision of devices such as steps, handholds, ladders, and guardrails/railings/grabrails. These devices must meet the following criteria:
(i) Steps, handholds, ladders and guardrails/railings/grabrails must meet the criteria of SAE J185 (May 2003) (incorporated by reference, see § 1926.6) or ISO 11660-2:1994(E) (incorporated by reference, see § 1926.6) except where infeasible.
(ii) Walking/stepping surfaces, except for crawler treads, must have slip-resistant features/properties (such as diamond plate metal, strategically placed grip tape, expanded metal, or slip-resistant paint).
(4) Tower cranes manufactured after November 8, 2011 must be equipped so as to provide safe access and egress between the ground and the cab, machinery platforms, and tower (mast), by the provision of devices such as steps, handholds, ladders, and guardrails/railings/grabrails. These devices must meet the following criteria:
(i) Steps, handholds, ladders, and guardrails/railings/grabrails must meet the criteria of ISO 11660-1:2008(E) (incorporated by reference, see § 1926.6) and ISO 11660-3:2008(E) (incorporated by reference, see § 1926.6) or SAE J185 (May 2003) (incorporated by reference, see § 1926.6) except where infeasible.
(ii) Walking/stepping surfaces must have slip-resistant features/properties (such as diamond plate metal, strategically placed grip tape, expanded metal, or slip-resistant paint).
(d) Personal fall arrest and fall restraint systems. Personal fall arrest system components must be used in personal fall arrest and fall restraint systems and must conform to the criteria in § 1926.502(d) except that § 1926.502(d)(15) does not apply to components used in personal fall arrest and fall restraint systems. Either body belts or body harnesses must be used in personal fall arrest and fall restraint systems.
(e) For non-assembly/disassembly work, the employer must provide and ensure the use of fall protection equipment for employees who are on a walking/working surface with an unprotected side or edge more than 6 feet above a lower level as follows:
(1) When moving point-to-point:
(i) On non-lattice booms (whether horizontal or not horizontal).
(ii) On lattice booms that are not horizontal.
(iii) On horizontal lattice booms where the fall distance is 15 feet or more.
(2) While at a work station on any part of the equipment (including the boom, of any type), except when the employee is at or near draw-works (when the equipment is running), in the cab, or on the deck.
(f) For assembly/disassembly work, the employer must provide and ensure the use of fall protection equipment for employees who are on a walking/working surface with an unprotected side or edge more than 15 feet above a lower level, except when the employee is at or near draw-works (when the equipment is running), in the cab, or on the deck.
(g) Anchorage criteria. (1) Sections 1926.502(d)(15) and 1926.502(e)(2) apply to equipment covered by this subpart only to the extent delineated in paragraph (g)(2) of this section.
(2) Anchorages for personal fall arrest and positioning device systems. (i) Personal fall arrest systems must be anchored to any apparently substantial part of the equipment unless a competent person, from a visual inspection, without an engineering analysis, would conclude that the criteria in § 1926.502(d)(15) would not be met.
(ii) Positioning device systems must be anchored to any apparently substantial part of the equipment unless a competent person, from a visual inspection, without an engineering analysis, would conclude that the criteria in § 1926.502(e)(2) would not be met.
(iii) Attachable anchor devices (portable anchor devices that are attached to the equipment) must meet the anchorage criteria in § 1926.502(d)(15) for personal fall arrest systems and § 1926.502(e)(2) for positioning device systems.
(3) Anchorages for fall restraint systems. Fall restraint systems must be anchored to any part of the equipment that is capable of withstanding twice the maximum load that an employee may impose on it during reasonably anticipated conditions of use.
(h) Tower cranes. (1) For work other than erecting, climbing, and dismantling, the employer must provide and ensure the use of fall protection equipment for employees who are on a walking/working surface with an unprotected side or edge more than 6 feet above a lower level, except when the employee is at or near draw-works (when the equipment is running), in the cab, or on the deck.
(2) For erecting, climbing, and dismantling work, the employer must provide and ensure the use of fall protection equipment for employees who are on a walking/working surface with an unprotected side or edge more than 15 feet above a lower level.
(i) [Reserved]
(j) Anchoring to the load line. A personal fall arrest system is permitted to be anchored to the crane/derrick's hook (or other part of the load line) where all of the following requirements are met:
(1) A qualified person has determined that the set-up and rated capacity of the crane/derrick (including the hook, load line and rigging) meets or exceeds the requirements in § 1926.502(d)(15).
(2) The equipment operator must be at the work site and informed that the equipment is being used for this purpose.
(3) No load is suspended from the load line when the personal fall arrest system is anchored to the crane/derrick's hook (or other part of the load line).
(k) Training. The employer must train each employee who may be exposed to fall hazards while on, or hoisted by, equipment covered by this subpart on all of the following:
(1) the requirements in this subpart that address fall protection.
(2) the applicable requirements in §§ 1926.500 and 1926.502.
§ 1926.1424 Work area control.
(a) Swing radius hazards. (1) The requirements in paragraph (a)(2) of this section apply where there are accessible areas in which the equipment's rotating superstructure (whether permanently or temporarily mounted) poses a reasonably foreseeable risk of:
(i) Striking and injuring an employee; or
(ii) Pinching/crushing an employee against another part of the equipment or another object.
(2) To prevent employees from entering these hazard areas, the employer must:
(i) Train each employee assigned to work on or near the equipment (“authorized personnel”) in how to recognize struck-by and pinch/crush hazard areas posed by the rotating superstructure.
(ii) Erect and maintain control lines, warning lines, railings or similar barriers to mark the boundaries of the hazard areas. Exception: When the employer can demonstrate that it is neither feasible to erect such barriers on the ground nor on the equipment, the hazard areas must be clearly marked by a combination of warning signs (such as “Danger—Swing/Crush Zone”) and high visibility markings on the equipment that identify the hazard areas. In addition, the employer must train each employee to understand what these markings signify.
(3) Protecting employees in the hazard area. (i) Before an employee goes to a location in the hazard area that is out of view of the operator, the employee (or someone instructed by the employee) must ensure that the operator is informed that he/she is going to that location.
(ii) Where the operator knows that an employee went to a location covered by paragraph (a)(1) of this section, the operator must not rotate the superstructure until the operator is informed in accordance with a pre-arranged system of communication that the employee is in a safe position.
(b) Where any part of a crane/derrick is within the working radius of another crane/derrick, the controlling entity must institute a system to coordinate operations. If there is no controlling entity, the employer (if there is only one employer operating the multiple pieces of equipment), or employers, must institute such a system.
§ 1926.1425 Keeping clear of the load.
(a) Where available, hoisting routes that minimize the exposure of employees to hoisted loads must be used, to the extent consistent with public safety.
(b) While the operator is not moving a suspended load, no employee must be within the fall zone, except for employees:
(1) Engaged in hooking, unhooking or guiding a load;
(2) Engaged in the initial attachment of the load to a component or structure; or
(3) Operating a concrete hopper or concrete bucket.
(c) When employees are engaged in hooking, unhooking, or guiding the load, or in the initial connection of a load to a component or structure and are within the fall zone, all of the following criteria must be met:
(1) The materials being hoisted must be rigged to prevent unintentional displacement.
(2) Hooks with self-closing latches or their equivalent must be used. Exception: “J” hooks are permitted to be used for setting wooden trusses.
(3) The materials must be rigged by a qualified rigger.
(d) Receiving a load. Only employees needed to receive a load are permitted to be within the fall zone when a load is being landed.
(e) During a tilt-up or tilt-down operation:
(1) No employee must be directly under the load.
(2) Only employees essential to the operation are permitted in the fall zone (but not directly under the load). An employee is essential to the operation if the employee is conducting one of the following operations and the employer can demonstrate it is infeasible for the employee to perform that operation from outside the fall zone: (1) Physically guide the load; (2) closely monitor and give instructions regarding the load's movement; or (3) either detach it from or initially attach it to another component or structure (such as, but not limited to, making an initial connection or installing bracing).
Note:
Boom free fall is prohibited when an employee is in the fall zone of the boom or load, and load line free fall is prohibited when an employee is directly under the load; see § 1926.1426.
§ 1926.1426 Free fall and controlled load lowering.
(a) Boom free fall prohibitions. (1) The use of equipment in which the boom is designed to free fall (live boom) is prohibited in each of the following circumstances:
(i) An employee is in the fall zone of the boom or load.
(ii) An employee is being hoisted.
(iii) The load or boom is directly over a power line, or over any part of the area extending the Table A of § 1926.1408 clearance distance to each side of the power line; or any part of the area extending the Table A clearance distance to each side of the power line is within the radius of vertical travel of the boom or the load.
(iv) The load is over a shaft, except where there are no employees in the shaft.
(v) The load is over a cofferdam, except where there are no employees in the fall zone of the boom or the load.
(vi) Lifting operations are taking place in a refinery or tank farm.
(2) The use of equipment in which the boom is designed to free fall (live boom) is permitted only where none of the circumstances listed in paragraph (a)(1) of this section are present and:
(i) The equipment was manufactured prior to October 31, 1984; or
(ii) The equipment is a floating crane/derrick or a land crane/derrick on a vessel/flotation device.
(b) Preventing boom free fall. Where the use of equipment with a boom that is designed to free fall (live boom) is prohibited, the boom hoist must have a secondary mechanism or device designed to prevent the boom from falling in the event the primary system used to hold or regulate the boom hoist fails, as follows:
(1) Friction drums must have:
(i) A friction clutch and, in addition, a braking device, to allow for controlled boom lowering.
(ii) A secondary braking or locking device, which is manually or automatically engaged, to back-up the primary brake while the boom is held (such as a secondary friction brake or a ratchet and pawl device).
(2) Hydraulic drums must have an integrally mounted holding device or internal static brake to prevent boom hoist movement in the event of hydraulic failure.
(3) Neither clutches nor hydraulic motors must be considered brake or locking devices for purposes of this subpart.
(4) Hydraulic boom cylinders must have an integrally mounted holding device.
(c) Preventing uncontrolled retraction. Hydraulic telescoping booms must have an integrally mounted holding device to prevent the boom from retracting in the event of hydraulic failure.
(d) Load line free fall. In each of the following circumstances, controlled load lowering is required and free fall of the load line hoist is prohibited:
(1) An employee is directly under the load.
(2) An employee is being hoisted.
(3) The load is directly over a power line, or over any part of the area extending the Table A of § 1926.1408 clearance distance to each side of the power line; or any part of the area extending the Table A of § 1926.1408 clearance distance to each side of the power line is within the radius of vertical travel of the load.
(4) The load is over a shaft.
(5) The load is over a cofferdam, except where there are no employees in the fall zone of the load.
§ 1926.1427 Operator training, certification, and evaluation.
(a) General requirements for operators. The employer must ensure that each operator is trained, certified/licensed, and evaluated in accordance with this section before operating any equipment covered under subpart CC, except for the equipment listed in paragraph (a)(2) of this section.
(1) Operation during training. An employee who has not been certified/licensed and evaluated to operate assigned equipment in accordance with this section may only operate the equipment as an operator-in-training under supervision in accordance with the requirements of paragraph (b) of this section.
(2) Exceptions. Operators of derricks (see § 1926.1436), sideboom cranes (see § 1926.1440), or equipment with a maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds or less (see § 1926.1441) are not required to comply with § 1926.1427. Note: The training requirements in those other sections continue to apply (for the training requirement for operators of sideboom cranes, follow section 1926.1430(c)).
(3) Qualification by the U.S. military. (i) For purposes of this section, an operator who is an employee of the U.S. military meets the requirements of this section if he/she has a current operator qualification issued by the U.S. military for operation of the equipment. An employee of the U.S. military is a Federal employee of the Department of Defense or Armed Forces and does not include employees of private contractors.
(ii) A qualification under this paragraph is:
(A) Not portable: Such a qualification meets the requirements of paragraph (a) of this section only where the operator is employed by (and operating the equipment for) the employer that issued the qualification.
(B) Valid for the period of time stipulated by the issuing entity.
(b) Operator training. The employer must provide each operator-in-training with sufficient training, through a combination of formal and practical instruction, to ensure that the operator-in-training develops the skills, knowledge, and ability to recognize and avert risk necessary to operate the equipment safely for assigned work.
(1) The employer must provide instruction on the knowledge and skills listed in paragraphs (j)(1) and (2) of this section to the operator-in-training.
(2) The operator-in-training must be continuously monitored on site by a trainer while operating equipment.
(3) The employer may only assign tasks within the operator-in-training's ability. However, except as provided in paragraph (b)(3)(v) of this section, the operator-in-training shall not operate the equipment in any of the following circumstances unless certified in accordance with paragraph (c) of this section:
(i) If any part of the equipment, load line, or load (including rigging and lifting accessories), if operated up to the equipment's maximum working radius in the work zone (see § 1926.1408(a)(1)), could get within 20 feet of a power line that is up to 350 kV, or within 50 feet of a power line that is over 350 kV.
(ii) If the equipment is used to hoist personnel.
(iii) In multiple-equipment lifts.
(iv) If the equipment is used over a shaft, cofferdam, or in a tank farm.
(v) In multiple-lift rigging operations, except where the operator's trainer determines that the operator-in-training's skills are sufficient for this high-skill work.
(4) The employer must ensure that an operator-in-training is monitored as follows when operating equipment covered by this subpart:
(i) While operating the equipment, the operator-in-training must be continuously monitored by an individual (“operator's trainer”) who meets all of the following requirements:
(A) The operator's trainer is an employee or agent of the operator-in-training's employer.
(B) The operator's trainer has the knowledge, training, and experience necessary to direct the operator-in-training on the equipment in use.
(ii) While monitoring the operator-in-training, the operator's trainer performs no tasks that detract from the trainer's ability to monitor the operator-in-training.
(iii) For equipment other than tower cranes: The operator's trainer and the operator-in-training must be in direct line of sight of each other. In addition, they must communicate verbally or by hand signals. For tower cranes: The operator's trainer and the operator-in-training must be in direct communication with each other.
(iv) The operator-in-training must be monitored by the operator's trainer at all times, except for short breaks where all of the following are met:
(A) The break lasts no longer than 15 minutes and there is no more than one break per hour.
(B) Immediately prior to the break the operator's trainer informs the operator-in-training of the specific tasks that the operator-in-training is to perform and limitations to which he/she must adhere during the operator trainer's break.
(C) The specific tasks that the operator-in-training will perform during the operator trainer's break are within the operator-in-training's abilities.
(5) Retraining. The employer must provide retraining in relevant topics for each operator when, based on the performance of the operator or an evaluation of the operator's knowledge, there is an indication that retraining is necessary.
(c) Operator certification and licensing. The employer must ensure that each operator is certified or licensed to operate the equipment as follows:
(1) Licensing. When a state or local government issues operator licenses for equipment covered under subpart CC, the equipment operator must be licensed by that government entity for operation of equipment within that entity's jurisdiction if that government licensing program meets the following requirements:
(i) The requirements for obtaining the license include an assessment, by written and practical tests, of the operator applicant regarding, at a minimum, the knowledge and skills listed in paragraphs (j)(1) and (2) of this section.
(ii) The testing meets industry-recognized criteria for written testing materials, practical examinations, test administration, grading, facilities/equipment, and personnel.
(iii) The government authority that oversees the licensing department/office has determined that the requirements in paragraphs (c)(1)(i) and (ii) of this section have been met.
(iv) The licensing department/office has testing procedures for re-licensing designed to ensure that the operator continues to meet the technical knowledge and skills requirements in paragraphs (j)(1) and (2) of this section.
(v) For the purposes of compliance with this section, a license is valid for the period of time stipulated by the licensing department/office, but no longer than 5 years.
(2) Certification. When an operator is not required to be licensed under paragraph (c)(1) of this section, the operator must be certified in accordance with paragraph (d) or (e) of this section.
(3) No cost to employees. Whenever operator certification/licensure is required under this section, the employer must provide the certification/licensure at no cost to employees.
(4) Provision of testing and training. A testing entity is permitted to provide training as well as testing services as long as the criteria of the applicable governmental or accrediting agency (in the option selected) for an organization providing both services are met.
(d) Certification by an accredited crane operator testing organization. (1) For a certification to satisfy the requirements of this section, the crane operator testing organization providing the certification must:
(i) Be accredited by a nationally recognized accrediting agency based on that agency's determination that industry-recognized criteria for written testing materials, practical examinations, test administration, grading, facilities/equipment, and personnel have been met.
(ii) Administer written and practical tests that:
(A) Assess the operator applicant regarding, at a minimum, the knowledge and skills listed in paragraphs (j)(1) and (2) of this section.
(B) Provide certification based on equipment type, or type and capacity.
(iii) Have procedures for operators to re-apply and be re-tested in the event an operator applicant fails a test or is decertified.
(iv) Have testing procedures for re-certification designed to ensure that the operator continues to meet the technical knowledge and skills requirements in paragraphs (j)(1) and (2) of this section.
(v) Have its accreditation reviewed by the nationally recognized accrediting agency at least every 3 years.
(2) If no accredited testing agency offers certification examinations for a particular type of equipment, an operator will be deemed to have complied with the certification requirements of this section for that equipment if the operator has been certified for the type that is most similar to that equipment and for which a certification examination is available. The operator's certificate must state the type of equipment for which the operator is certified.
(3) A certification issued under this option is portable among employers who are required to have operators certified under this option.
(4) A certification issued under this paragraph is valid for 5 years.
(e) Audited employer program. The employer's certification of its employee must meet the following requirements:
(1) Testing. The written and practical tests must be either:
(i) Developed by an accredited crane operator testing organization (see paragraph (d) of this section); or
(ii) Approved by an auditor in accordance with the following requirements:
(A) The auditor is certified to evaluate such tests by an accredited crane operator testing organization (see paragraph (d) of this section).
(B) The auditor is not an employee of the employer.
(C) The approval must be based on the auditor's determination that the written and practical tests meet nationally recognized test development criteria and are valid and reliable in assessing the operator applicants regarding, at a minimum, the knowledge and skills listed in paragraphs (j)(1) and (2) of this section.
(D) The audit must be conducted in accordance with nationally recognized auditing standards.
(2) Administration of tests. (i) The written and practical tests must be administered under circumstances approved by the auditor as meeting nationally recognized test administration standards.
(ii) The auditor must be certified to evaluate the administration of the written and practical tests by an accredited crane operator testing organization (see paragraph (d) of this section).
(iii) The auditor must not be an employee of the employer.
(iv) The audit must be conducted in accordance with nationally recognized auditing standards.
(3) Timing of audit. The employer program must be audited within 3 months of the beginning of the program and at least every 3 years thereafter.
(4) Requalification. The employer program must have testing procedures for re-qualification designed to ensure that the operator continues to meet the technical knowledge and skills requirements in paragraphs (j)(1) and (2) of this section. The re-qualification procedures must be audited in accordance with paragraphs (e)(1) and (2) of this section.
(5) Deficiencies. If the auditor determines that there is a significant deficiency (“deficiency”) in the program, the employer must ensure that:
(i) No operator is qualified until the auditor confirms that the deficiency has been corrected.
(ii) The program is audited again within 180 days of the confirmation that the deficiency was corrected.
(iii) The auditor files a documented report of the deficiency to the appropriate Regional Office of the Occupational Safety and Health Administration within 15 days of the auditor's determination that there is a deficiency.
(iv) Records of the audits of the employer's program are maintained by the auditor for 3 years and are made available by the auditor to the Secretary of Labor or the Secretary's designated representative upon request.
(6) Audited-program certificates. A certification under this paragraph is:
(i) Not portable: Such a certification meets the requirements of paragraph (c) of this section only where the operator is employed by (and operating the equipment for) the employer that issued the certification.
(ii) Valid for 5 years.
(f) Evaluation. (1) Through an evaluation, the employer must ensure that each operator is qualified by a demonstration of:
(i) The skills and knowledge, as well as the ability to recognize and avert risk, necessary to operate the equipment safely, including those specific to the safety devices, operational aids, software, and the size and configuration of the equipment. Size and configuration includes, but is not limited to, lifting capacity, boom length, attachments, luffing jib, and counterweight set-up.
(ii) The ability to perform the hoisting activities required for assigned work, including, if applicable, blind lifts, personnel hoisting, and multi-crane lifts.
(2) For operators employed prior to December 10, 2018, the employer may rely on its previous assessments of the operator in lieu of conducting a new evaluation of that operator's existing knowledge and skills.
(3) The definition of “qualified” in § 1926.32 does not apply to paragraph (f)(1) of this section: Possession of a certificate or degree cannot, by itself, cause a person to be qualified for purposes of paragraph (f)(1).
(4) The evaluation required under paragraph (f)(1) of this section must be conducted by an individual who has the knowledge, training, and experience necessary to assess equipment operators.
(5) The evaluator must be an employee or agent of the employer. Employers that assign evaluations to an agent retain the duty to ensure that the requirements in paragraph (f) are satisfied. Once the evaluation is completed successfully, the employer may allow the operator to operate other equipment that the employer can demonstrate does not require substantially different skills, knowledge, or ability to recognize and avert risk to operate.
(6) The employer must document the completion of the evaluation. This document must provide: The operator's name; the evaluator's name and signature; the date; and the make, model, and configuration of equipment used in the evaluation. The employer must make the document available at the worksite while the operator is employed by the employer. For operators assessed per paragraph (f)(2) of this section, the documentation must reflect the date of the employer's determination of the operator's abilities and the make, model and configuration of equipment on which the operator has previously demonstrated competency.
(7) When an employer is required to provide an operator with retraining under paragraph (b)(5) of this section, the employer must re-evaluate the operator with respect to the subject of the retraining.
(g) [Reserved]
(h) Language and literacy requirements. (1) Tests under this section may be administered verbally, with answers given verbally, where the operator candidate:
(i) Passes a written demonstration of literacy relevant to the work.
(ii) Demonstrates the ability to use the type of written manufacturer procedures applicable to the class/type of equipment for which the candidate is seeking certification.
(2) Tests under this section may be administered in any language the operator candidate understands, and the operator's certification documentation must note the language in which the test was given. The operator is only permitted to operate equipment that is furnished with materials required by this subpart, such as operations manuals and load charts, that are written in the language of the certification.
(i) [Reserved]
(j) Certification criteria. Certifications must be based on the following:
(1) A determination through a written test that:
(i) The individual knows the information necessary for safe operation of the specific type of equipment the individual will operate, including all of the following:
(A) The controls and operational/performance characteristics.
(B) Use of, and the ability to calculate (manually or with a calculator), load/capacity information on a variety of configurations of the equipment.
(C) Procedures for preventing and responding to power line contact.
(D) Technical knowledge of the subject matter criteria listed in appendix C of this subpart applicable to the specific type of equipment the individual will operate. Use of the appendix C criteria meets the requirements of this provision.
(E) Technical knowledge applicable to the suitability of the supporting ground and surface to handle expected loads, site hazards, and site access.
(F) This subpart, including applicable incorporated materials.
(ii) The individual is able to read and locate relevant information in the equipment manual and other materials containing information referred to in paragraph (j)(1)(i) of this section.
(2) A determination through a practical test that the individual has the skills necessary for safe operation of the equipment, including the following:
(i) Ability to recognize, from visual and auditory observation, the items listed in § 1926.1412(d) (shift inspection).
(ii) Operational and maneuvering skills.
(iii) Application of load chart information.
(iv) Application of safe shut-down and securing procedures.
(k) Effective dates. (1) Apart from the evaluation and documentation requirements in paragraphs (a) and (f), this section is effective on December 10, 2018.
(2) The evaluation and documentation requirements in paragraphs (a) and (f) are effective on February 7, 2019.
[83 FR 56244, Nov. 9, 2018]
§ 1926.1428 Signal person qualifications.
(a) The employer of the signal person must ensure that each signal person meets the Qualification Requirements (paragraph (c) of this section) prior to giving any signals. This requirement must be met by using either Option (1) or Option (2) of this section.
(1) Option (1)—Third party qualified evaluator. The signal person has documentation from a third party qualified evaluator (see Qualified Evaluator (third party), § 1926.1401 for definition) showing that the signal person meets the Qualification Requirements (see paragraph (c) of this section).
(2) Option (2)—Employer's qualified evaluator. The employer's qualified (see Qualified Evaluator (not a third party), § 1926.1401 for definition) evaluator assesses the individual and determines that the individual meets the Qualification Requirements (see paragraph (c) of this section) and provides documentation of that determination. An assessment by an employer's qualified evaluator under this option is not portable—other employers are not permitted to use it to meet the requirements of this section.
(3) The employer must make the documentation for whichever option is used available at the site while the signal person is employed by the employer. The documentation must specify each type of signaling (e.g. hand signals, radio signals, etc.) for which the signal person meets the requirements of paragraph (c) of this section.
(b) If subsequent actions by the signal person indicate that the individual does not meet the Qualification Requirements (see paragraph (c) of this section), the employer must not allow the individual to continue working as a signal person until re-training is provided and a re-assessment is made in accordance with paragraph (a) of this section that confirms that the individual meets the Qualification Requirements.
(c) Qualification Requirements. Each signal person must:
(1) Know and understand the type of signals used. If hand signals are used, the signal person must know and understand the Standard Method for hand signals.
(2) Be competent in the application of the type of signals used.
(3) Have a basic understanding of equipment operation and limitations, including the crane dynamics involved in swinging and stopping loads and boom deflection from hoisting loads.
(4) Know and understand the relevant requirements of §§ 1926.1419 through 1926.1422 and 1926.1428.
(5) Demonstrate that he/she meets the requirements in paragraphs (c)(1) through (4) of this section through an oral or written test, and through a practical test.
§ 1926.1429 Qualifications of maintenance & repair employees.
(a) Maintenance, inspection and repair personnel are permitted to operate the equipment only where all of the following requirements are met:
(1) The operation is limited to those functions necessary to perform maintenance, inspect the equipment, or verify its performance.
(2) The personnel either:
(i) Operate the equipment under the direct supervision of an operator who meets the requirements of § 1926.1427 (Operator qualification and certification); or
(ii) Are familiar with the operation, limitations, characteristics and hazards associated with the type of equipment.
(b) Maintenance and repair personnel must meet the definition of a qualified person with respect to the equipment and maintenance/repair tasks performed.
§ 1926.1430 Training.
The employer must provide training as follows:
(a) Overhead powerlines. The employer must train each employee specified in § 1926.1408(g) and § 1926.1410(m) in the topics listed in § 1926.1408(g).
(b) Signal persons. The employer must train each employee who will be assigned to work as a signal persons who does not meet the requirements of § 1926.1428(c) in the areas addressed in that paragraph.
(c) Operators. (1) The employer must train each operator in accordance with § 1926.1427(a) and (b), on the safe operation of the equipment the operator will be using.
(2) The employer must train each operator covered under the exception of § 1926.1427(a)(2) on the safe operation of the equipment the operator will be using.
(3) The employer must train each operator of the equipment covered by this subpart in the following practices:
(i) On friction equipment, whenever moving a boom off a support, first raise the boom a short distance (sufficient to take the load of the boom) to determine if the boom hoist brake needs to be adjusted. On other types of equipment with a boom, the same practice is applicable, except that typically there is no means of adjusting the brake; if the brake does not hold, a repair is necessary. See § 1926.1417(f) and (j) for additional requirements.
(ii) Where available, the manufacturer's emergency procedures for halting unintended equipment movement.
(d) Competent persons and qualified persons. The employer must train each competent person and each qualified person regarding the requirements of this subpart applicable to their respective roles.
(e) Crush/pinch points. The employer must train each employee who works with the equipment to keep clear of holes, and crush/pinch points and the hazards addressed in § 1926.1424 (Work area control).
(f) Tag-out. The employer must train each operator and each additional employee authorized to start/energize equipment or operate equipment controls (such as maintenance and repair employees), in the tag-out and start-up procedures in §§ 1926.1417(f) and (g).
(g) Training administration. (1) The employer must evaluate each employee required to be trained under this subpart to confirm that the employee understands the information provided in the training.
(2) The employer must provide refresher training in relevant topics for each employee when, based on the conduct of the employee or an evaluation of the employee's knowledge, there is an indication that retraining is necessary.
(3) Whenever training is required under subpart CC, the employer must provide the training at no cost to the employee.
[75 FR 48135, Aug. 9, 2010, as amended at 83 FR 56247, Nov. 9, 2018]
§ 1926.1431 Hoisting personnel.
The requirements of this section are supplemental to the other requirements in this subpart and apply when one or more employees are hoisted.
(a) The use of equipment to hoist employees is prohibited except where the employer demonstrates that the erection, use, and dismantling of conventional means of reaching the work area, such as a personnel hoist, ladder, stairway, aerial lift, elevating work platform, or scaffold, would be more hazardous, or is not possible because of the project's structural design or worksite conditions. This paragraph does not apply to work covered by subpart R (Steel Erection) of this part and also does not apply to routine personnel access to an underground worksite via shaft as covered by § 1926.800 (Underground Construction) of this part.
(b) Use of personnel platform. (1) When using equipment to hoist employees, the employees must be in a personnel platform that meets the requirements of paragraph (e) of this section.
(2) Exceptions: A personnel platform is not required for hoisting employees:
(i) Into and out of drill shafts that are up to and including 8 feet in diameter (see paragraph (o) of this section for requirements for hoisting these employees).
(ii) In pile driving operations (see paragraph (p) of this section for requirements for hoisting these employees).
(iii) Solely for transfer to or from a marine worksite in a marine-hoisted personnel transfer device (see paragraph (r) of this section for requirements for hoisting these employees).
(iv) In storage-tank (steel or concrete), shaft and chimney operations (see paragraph (s) of this section for requirements for hoisting these employees).
(c) Equipment set-up. (1) The equipment must be uniformly level, within one percent of level grade, and located on footing that a qualified person has determined to be sufficiently firm and stable.
(2) Equipment with outriggers or stabilizers must have them all extended and locked. The amount of extension must be the same for all outriggers and stabilizers and in accordance with manufacturer procedures and load charts.
(d) Equipment criteria—(1) Capacity: Use of suspended personnel platforms. The total load (with the platform loaded, including the hook, load line and rigging) must not exceed 50 percent of the rated capacity for the radius and configuration of the equipment, except during proof testing.
(2) Capacity: Use of boom-attached personnel platforms. The total weight of the loaded personnel platform must not exceed 50 percent of the rated capacity for the radius and configuration of the equipment (except during proof testing).
(3) Capacity: Hoisting personnel without a personnel platform. When hoisting personnel without a personnel platform pursuant to paragraph (b)(2) of this section, the total load (including the hook, load line, rigging and any other equipment that imposes a load) must not exceed 50 percent of the rated capacity for the radius and configuration of the equipment, except during proof testing.
(4) When the occupied personnel platform is in a stationary working position, the load and boom hoist brakes, swing brakes, and operator actuated secondary braking and locking features (such as pawls or dogs) or automatic secondary brakes must be engaged.
(5) Devices. (i) Equipment (except for derricks and articulating cranes) with a variable angle boom must be equipped with all of the following:
(A) A boom angle indicator, readily visible to the operator, and
(B) A boom hoist limiting device.
(ii) Articulating cranes must be equipped with a properly functioning automatic overload protection device.
(iii) Equipment with a luffing jib must be equipped with:
(A) A jib angle indicator, readily visible to the operator, and.
(B) A jib hoist limiting device.
(iv) Equipment with telescoping booms must be equipped with a device to indicate the boom's extended length clearly to the operator, or must have measuring marks on the boom.
(v) Anti two-block. A device which automatically prevents damage and load failure from contact between the load block, overhaul ball, or similar component, and the boom tip (or fixed upper block or similar component) must be used. The device(s) must prevent such damage/failure at all points where two-blocking could occur. Exception: This device is not required when hoisting personnel in pile driving operations. Instead, paragraph (p)(2) of this section specifies how to prevent two-blocking during such operations.
(vi) Controlled load lowering. The load line hoist drum must have a system, other than the load line hoist brake, which regulates the lowering rate of speed of the hoist mechanism. This system or device must be used when hoisting personnel.
Note:
Free fall of the load line hoist is prohibited (see § 1926.1426(d); the use of equipment in which the boom hoist mechanism can free fall is also prohibited (see § 1926.1426(a)(1).
(vii) Proper operation required. Personnel hoisting operations must not begin unless the devices listed in this section are in proper working order. If a device stops working properly during such operations, the operator must safely stop operations. Personnel hoisting operations must not resume until the device is again working properly. Alternative measures are not permitted. (See § 1926.1417 for tag-out and related requirements.)
(6) Direct attachment of a personnel platform to a luffing jib is prohibited.
(e) Personnel platform criteria. (1) A qualified person familiar with structural design must design the personnel platform and attachment/suspension system used for hoisting personnel.
(2) The system used to connect the personnel platform to the equipment must allow the platform to remain within 10 degrees of level, regardless of boom angle.
(3) The suspension system must be designed to minimize tipping of the platform due to movement of employees occupying the platform.
(4) The personnel platform itself (excluding the guardrail system and personal fall arrest system anchorages), must be capable of supporting, without failure, its own weight and at least five times the maximum intended load.
(5) All welding of the personnel platform and its components must be performed by a certified welder familiar with the weld grades, types and material specified in the platform design.
(6) The personnel platform must be equipped with a guardrail system which meets the requirements of subpart M of this part, and must be enclosed at least from the toeboard to mid-rail with either solid construction material or expanded metal having openings no greater than 1/2 inch (1.27 cm). Points to which personal fall arrest systems are attached must meet the anchorage requirements in subpart M of this part.
(7) A grab rail must be installed inside the entire perimeter of the personnel platform except for access gates/doors.
(8) Access gates/doors. If installed, access gates/doors of all types (including swinging, sliding, folding, or other types) must:
(i) Not swing outward. If due to the size of the personnel platform, such as a 1-person platform, it is infeasible for the door to swing inward and allow safe entry for the platform occupant, then the access gate/door may swing outward.
(ii) Be equipped with a device that prevents accidental opening.
(9) Headroom must be sufficient to allow employees to stand upright in the platform.
(10) In addition to the use of hard hats, employees must be protected by overhead protection on the personnel platform when employees are exposed to falling objects. The platform overhead protection must not obscure the view of the operator or platform occupants (such as wire mesh that has up to 1/2 inch openings), unless full protection is necessary.
(11) All edges exposed to employee contact must be smooth enough to prevent injury.
(12) The weight of the platform and its rated capacity must be conspicuously posted on the platform with a plate or other permanent marking.
(f) Personnel platform loading. (1) The personnel platform must not be loaded in excess of its rated capacity.
(2) Use. (i) Personnel platforms must be used only for employees, their tools, and the materials necessary to do their work. Platforms must not be used to hoist materials or tools when not hoisting personnel.
(ii) Exception: Materials and tools to be used during the lift, if secured and distributed in accordance with paragraph (f)(3) of this section may be in the platform for trial lifts.
(3) Materials and tools must be:
(i) Secured to prevent displacement.
(ii) Evenly distributed within the confines of the platform while it is suspended.
(4) The number of employees occupying the personnel platform must not exceed the maximum number the platform was designed to hold or the number required to perform the work, whichever is less.
(g) Attachment and rigging—(1) Hooks and other detachable devices. (i) Hooks used in the connection between the hoist line and the personnel platform (including hooks on overhaul ball assemblies, lower load blocks, bridle legs, or other attachment assemblies or components) must be:
(A) Of a type that can be closed and locked, eliminating the throat opening.
(B) Closed and locked when attached.
(ii) Shackles used in place of hooks must be of the alloy anchor type, with either:
(A) A bolt, nut and retaining pin, in place; or
(B) Of the screw type, with the screw pin secured from accidental removal.
(iii) Where other detachable devices are used, they must be of the type that can be closed and locked to the same extent as the devices addressed in paragraphs (g)(1)(i) and (ii) of this section. Such devices must be closed and locked when attached.
(2) Rope bridle. When a rope bridle is used to suspend the personnel platform, each bridle leg must be connected to a master link or shackle (see paragraph (g)(1) of this section) in a manner that ensures that the load is evenly divided among the bridle legs.
(3) Rigging hardware (including wire rope, shackles, rings, master links, and other rigging hardware) and hooks must be capable of supporting, without failure, at least five times the maximum intended load applied or transmitted to that component. Where rotation resistant rope is used, the slings must be capable of supporting without failure at least ten times the maximum intended load.
(4) Eyes in wire rope slings must be fabricated with thimbles.
(5) Bridles and associated rigging for suspending the personnel platform must be used only for the platform and the necessary employees, their tools and materials necessary to do their work. The bridles and associated rigging must not have been used for any purpose other than hoisting personnel.
(h) Trial lift and inspection. (1) A trial lift with the unoccupied personnel platform loaded at least to the anticipated liftweight must be made from ground level, or any other location where employees will enter the platform, to each location at which the platform is to be hoisted and positioned. Where there is more than one location to be reached from a single set-up position, either individual trial lifts for each location, or a single trial lift, in which the platform is moved sequentially to each location, must be performed; the method selected must be the same as the method that will be used to hoist the personnel.
(2) The trial lift must be performed immediately prior to each shift in which personnel will be hoisted. In addition, the trial lift must be repeated prior to hoisting employees in each of the following circumstances:
(i) The equipment is moved and set up in a new location or returned to a previously used location.
(ii) The lift route is changed, unless the competent person determines that the new route presents no new factors affecting safety.
(3) The competent person must determine that:
(i) Safety devices and operational aids required by this section are activated and functioning properly. Other safety devices and operational aids must meet the requirements of §§ 1926.1415 and 1926.1416.
(ii) Nothing interferes with the equipment or the personnel platform in the course of the trial lift.
(iii) The lift will not exceed 50 percent of the equipment's rated capacity at any time during the lift.
(iv) The load radius to be used during the lift has been accurately determined.
(4) Immediately after the trial lift, the competent person must:
(i) Conduct a visual inspection of the equipment, base support or ground, and personnel platform, to determine whether the trial lift has exposed any defect or problem or produced any adverse effect.
(ii) Confirm that, upon the completion of the trial lift process, the test weight has been removed.
(5) Immediately prior to each lift:
(i) The platform must be hoisted a few inches with the personnel and materials/tools on board and inspected by a competent person to ensure that it is secure and properly balanced.
(ii) The following conditions must be determined by a competent person to exist before the lift of personnel proceeds:
(A) Hoist ropes must be free of deficiencies in accordance with § 1926.1413(a).
(B) Multiple part lines must not be twisted around each other.
(C) The primary attachment must be centered over the platform.
(D) If the load rope is slack, the hoisting system must be inspected to ensure that all ropes are properly seated on drums and in sheaves.
(6) Any condition found during the trial lift and subsequent inspection(s) that fails to meet a requirement of this standard or otherwise creates a safety hazard must be corrected before hoisting personnel. (See § 1926.1417 for tag-out and related requirements.)
(i) [Reserved]
(j) Proof testing. (1) At each jobsite, prior to hoisting employees on the personnel platform, and after any repair or modification, the platform and rigging must be proof tested to 125 percent of the platform's rated capacity. The proof test may be done concurrently with the trial lift.
(2) The platform must be lowered by controlled load lowering, braked, and held in a suspended position for a minimum of five minutes with the test load evenly distributed on the platform.
(3) After proof testing, a competent person must inspect the platform and rigging to determine if the test has been passed. If any deficiencies are found that pose a safety hazard, the platform and rigging must not be used to hoist personnel unless the deficiencies are corrected, the test is repeated, and a competent person determines that the test has been passed. (See § 1926.1417 for tag-out and related requirements.)
(4) Personnel hoisting must not be conducted until the competent person determines that the platform and rigging have successfully passed the proof test.
(k) Work practices. (1) Hoisting of the personnel platform must be performed in a slow, controlled, cautious manner, with no sudden movements of the equipment or the platform.
(2) Platform occupants must:
(i) Keep all parts of the body inside the platform during raising, lowering, and horizontal movement. This provision does not apply to an occupant of the platform when necessary to position the platform or while performing the duties of a signal person.
(ii) Not stand, sit on, or work from the top or intermediate rail or toeboard, or use any other means/device to raise their working height.
(iii) Not pull the platform out of plumb in relation to the hoisting equipment.
(3) Before employees exit or enter a hoisted personnel platform that is not landed, the platform must be secured to the structure where the work is to be performed, unless the employer can demonstrate that securing to the structure would create a greater hazard.
(4) If the platform is tied to the structure, the operator must not move the platform until the operator receives confirmation that it is freely suspended.
(5) Tag lines must be used when necessary to control the platform.
(6) Platforms without controls. Where the platform is not equipped with controls, the equipment operator must remain at the equipment controls, on site, and in view of the equipment, at all times while the platform is occupied.
(7) Platforms with controls. Where the platform is equipped with controls, all of the following must be met at all times while the platform is occupied:
(i) The occupant using the controls in the platform must be a qualified person with respect to their use, including the safe limitations of the equipment and hazards associated with its operation.
(ii) The equipment operator must be at a set of equipment controls that include boom and swing functions of the equipment, and must be on site and in view of the equipment.
(iii) The platform operating manual must be in the platform or on the equipment.
(8) Environmental conditions—(i) Wind. When wind speed (sustained or gusts) exceeds 20 mph at the personnel platform, a qualified person must determine if, in light of the wind conditions, it is not safe to lift personnel. If it is not, the lifting operation must not begin (or, if already in progress, must be terminated).
(ii) Other weather and environmental conditions. A qualified person must determine if, in light of indications of dangerous weather conditions, or other impending or existing danger, it is not safe to lift personnel. If it is not, the lifting operation must not begin (or, if already in progress, must be terminated).
(9) Employees being hoisted must remain in direct communication with the signal person (where used), or the operator.
(10) Fall protection. (i) Except over water, employees occupying the personnel platform must be provided and use a personal fall arrest system. The system must be attached to a structural member within the personnel platform. When working over or near water, the requirements of § 1926.106 apply.
(ii) The fall arrest system, including the attachment point (anchorage) used to comply with paragraph (i) of this section, must meet the requirements in § 1926.502.
(11) Other load lines. (i) No lifts must be made on any other of the equipment's load lines while personnel are being hoisted, except in pile driving operations.
(ii) Factory-produced boom-mounted personnel platforms that incorporate a winch as original equipment. Loads are permitted to be hoisted by such a winch while employees occupy the personnel platform only where the load on the winch line does not exceed 500 pounds and does not exceed the rated capacity of the winch and platform.
(12) Traveling—equipment other than derricks. (i) Hoisting of employees while the equipment is traveling is prohibited, except for:
(A) Equipment that travels on fixed rails; or
(B) Where the employer demonstrates that there is no less hazardous way to perform the work.
(C) This exception does not apply to rubber-tired equipment.
(ii) Where employees are hoisted while the equipment is traveling, all of the following criteria must be met:
(A) Equipment travel must be restricted to a fixed track or runway.
(B) Where a runway is used, it must be a firm, level surface designed, prepared and designated as a path of travel for the weight and configuration of the equipment being used to lift and travel with the personnel platform. An existing surface may be used as long as it meets these criteria.
(C) Equipment travel must be limited to boom length.
(D) The boom must be parallel to the direction of travel, except where it is safer to do otherwise.
(E) A complete trial run must be performed to test the route of travel before employees are allowed to occupy the platform. This trial run can be performed at the same time as the trial lift required by paragraph (h) of this section which tests the lift route.
(13) Traveling—derricks. Derricks are prohibited from traveling while personnel are hoisted.
(l) [Reserved]
(m) Pre-lift meeting. A pre-lift meeting must be:
(1) Held to review the applicable requirements of this section and the procedures that will be followed.
(2) Attended by the equipment operator, signal person (if used for the lift), employees to be hoisted, and the person responsible for the task to be performed.
(3) Held prior to the trial lift at each new work location, and must be repeated for any employees newly assigned to the operation.
(n) Hoisting personnel near power lines. Hoisting personnel within 20 feet of a power line that is up to 350 kV, and hoisting personnel within 50 feet of a power line that is over 350 kV, is prohibited, except for work covered by subpart V of this part (Power Transmission and Distribution).
(o) Hoisting personnel in drill shafts. When hoisting employees into and out of drill shafts that are up to and including 8 feet in diameter, all of the following requirements must be met:
(1) The employee must be in either a personnel platform or on a boatswain's chair.
(2) If using a personnel platform, paragraphs (a) through (n) of this section apply.
(3) If using a boatswain's chair:
(i) The following paragraphs of this section apply: (a), (c), (d)(1), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (f)(1), (f)(2)(i), (f)(3)(i), (g), (h), (k)(1), (k)(6), (k)(8), (k)(9), (k)(11)(i), (m), (n). Where the terms “personnel platform” or “platform” are used in these paragraphs, substitute them with “boatswain's chair.”
(ii) A signal person must be stationed at the shaft opening.
(iii) The employee must be hoisted in a slow, controlled descent and ascent.
(iv) The employee must use personal fall protection equipment, including a full body harness, attached independent of the crane/derrick.
(v) The fall protection equipment must meet the applicable requirements in § 1926.502.
(vi) The boatswain's chair itself (excluding the personal fall arrest system anchorages), must be capable of supporting, without failure, its own weight and at least five times the maximum intended load.
(vii) No more than one person must be hoisted at a time.
(p) Hoisting personnel for pile driving operations. When hoisting an employee in pile driving operations, the following requirements must be met:
(1) The employee must be in a personnel platform or boatswain's chair.
(2) For lattice boom cranes: Clearly mark the cable (so that it can easily be seen by the operator) at a point that will give the operator sufficient time to stop the hoist to prevent two-blocking, or use a spotter who is in direct communication with the operator to inform the operator when this point is reached. For telescopic boom cranes: Clearly mark the cable (so that it can be easily seen by the operator) at a point that will give the operator sufficient time to stop the hoist to prevent two-blocking, and use a spotter who is in direct communication with the operator to inform the operator when this point is reached.
(3) If using a personnel platform, paragraphs (b) through (n) of this section apply.
(4) If using a boatswain's chair:
(i) The following paragraphs of this section apply: (a), (c), (d)(1), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (f)(1), (f)(2)(i), (f)(3)(i), (g), (h), (j), (k)(1), (k)(6), (k)(8), (k)(9), (k)(11)(i), (m), and (n). Where the terms “personnel platform” or “platform” are used in these paragraphs, substitute them with “boatswains chair.”
(ii) The employee must be hoisted in a slow, controlled descent and ascent.
(iii) The employee must use personal fall protection equipment, including a full body harness, independently attached to the lower load block or overhaul ball.
(iv) The fall protection equipment must meet the applicable requirements in § 1926.502.
(v) The boatswain's chair itself (excluding the personal fall arrest system anchorages), must be capable of supporting, without failure, its own weight and at least five times the maximum intended load.
(vi) No more than one person must be hoisted at a time.
(q) [Reserved]
(r) Hoisting personnel for marine transfer. When hoisting employees solely for transfer to or from a marine worksite, the following requirements must be met:
(1) The employee must be in either a personnel platform or a marine-hoisted personnel transfer device.
(2) If using a personnel platform, paragraphs (a) through (n) of this section apply.
(3) If using a marine-hoisted personnel transfer device:
(i) The following paragraphs of this section apply: (a), (c)(2), (d)(1), (d)(3), (d)(4), (e)(1) through (5), (e)(12), (f)(1), (g), (h), (j), (k)(1), (k)(8), (k)(9), (k)(10)(ii), (k)(11)(i), (k)(12), (m), and (n). Where the terms “personnel platform” or “platform” are used in these paragraphs, substitute them with “marine-hoisted personnel transfer device.”
(ii) The transfer device must be used only for transferring workers.
(iii) The number of workers occupying the transfer device must not exceed the maximum number it was designed to hold.
(iv) Each employee must wear a U.S. Coast Guard personal flotation device approved for industrial use.
(s) Hoisting personnel for storage-tank (steel or concrete), shaft and chimney operations. When hoisting an employee in storage tank (steel or concrete), shaft and chimney operations, the following requirements must be met:
(1) The employee must be in a personnel platform except when the employer can demonstrate that use of a personnel platform is infeasible; in such a case, a boatswain's chair must be used.
(2) If using a personnel platform, paragraphs (a) through (n) of this section apply.
(3) If using a boatswain's chair:
(i) The following paragraphs of this section apply: (a), (c), (d)(1), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (f)(1), (f)(2)(i), (f)(3)(i), (g), (h), (k)(1), (k)(6), (k)(8), (k)(9), (k)(11)(i), (m), (n). Where the terms “personnel platform” or “platform” are used in these paragraphs, substitute them with “boatswains chair.”
(ii) The employee must be hoisted in a slow, controlled descent and ascent.
(iii) The employee must use personal fall protection equipment, including a full body harness, attached independent of the crane/derrick. When there is no adequate structure for attachment of personal fall arrest equipment as required in § 1926.502(d)(15), the attachment must be to the lower load block or overhaul ball.
(iv) The fall protection equipment must meet the applicable requirements in § 1926.502.
(v) The boatswain's chair itself (excluding the personal fall arrest system anchorages), must be capable of supporting, without failure, its own weight and at least five times the maximum intended load.
(vi) No more than one person must be hoisted at a time.
[75 FR 48135, Aug. 9, 2010, as amended at 85 FR 8746, Feb. 18, 2020]
§ 1926.1432 Multiple-crane/derrick lifts—supplemental requirements.
(a) Plan development. Before beginning a crane/derrick operation in which more than one crane/derrick will be supporting the load, the operation must be planned. The planning must meet the following requirements:
(1) The plan must be developed by a qualified person.
(2) The plan must be designed to ensure that the requirements of this subpart are met.
(3) Where the qualified person determines that engineering expertise is needed for the planning, the employer must ensure that it is provided.
(b) Plan implementation. (1) The multiple-crane/derrick lift must be directed by a person who meets the criteria for both a competent person and a qualified person, or by a competent person who is assisted by one or more qualified persons (lift director).
(2) The lift director must review the plan in a meeting with all workers who will be involved with the operation.
§ 1926.1433 Design, construction and testing.
The following requirements apply to equipment that has a manufacturer-rated hoisting/lifting capacity of more than 2,000 pounds.
(a) Crawler, truck and locomotive cranes manufactured prior to November 8, 2010 must meet the applicable requirements for design, construction, and testing as prescribed in ANSI B30.5-1968 (incorporated by reference, see § 1926.6), PCSA Std. No. 2 (1968) (incorporated by reference, see § 1926.6), the requirements in paragraph (b) of this section, or the applicable DIN standards that were in effect at the time of manufacture.
(b) Mobile (including crawler and truck) and locomotive cranes manufactured on or after November 8, 2010 must meet the following portions of ASME B30.5-2004 (incorporated by reference, see § 1926.6) as applicable:
(1) In section 5-1.1.1 (“Load Ratings—Where Stability Governs Lifting Performance”), paragraphs (a)-(d) (including subparagraphs).
(2) In section 5-1.1.2 (“Load Ratings—Where Structural Competence Governs Lifting Performance”), paragraph (b).
(3) Section 5-1.2 (“Stability (Backward and Forward)”).
(4) In section 5-1.3.1 (“Boom Hoist Mechanism”), paragraphs (a), (b)(1) and (b)(2), except that when using rotation resistant rope, § 1926.1414(c)(4)(ii)(A) applies.
(5) In section 5-1.3.2 (“Load Hoist Mechanism”), paragraphs (a)(2) through (a)(4) (including subparagraphs), (b) (including subparagraphs), (c) (first sentence only) and (d).
(6) Section 5-1.3.3 (“Telescoping Boom”).
(7) Section 5-1.4 (“Swing Mechanism”).
(8) In section 5-1.5 (“Crane Travel”), all provisions except 5-1.5.3(d).
(9) In section 5-1.6 (“Controls”), all provisions except 5-1.6.1 (c).
(10) Section 5-1.7.4 (“Sheaves”).
(11) Section 5-1.7.5 (“Sheave sizes”).
(12) In section 5-1.9.1 (“Booms”), paragraph (f).
(13) Section 5-1.9.3 (“Outriggers”).
(14) Section 5-1.9.4 (“Locomotive Crane Equipment”).
(15) Section 5-1.9.7 (“Clutch and Brake Protection”).
(16) In section 5-1.9.11 (“Miscellaneous equipment”), paragraphs (a), (c), (e), and (f).
(c) Prototype testing: mobile (including crawler and truck) and locomotive cranes manufactured on or after November 8, 2010 must meet the prototype testing requirements in Test Option A or Test Option B of this section. Tower cranes manufactured on or after November 8, 2010 must meet the prototype testing requirements in BS EN 14439:2006 (incorporated by reference, see § 1926.6).
Note:
Prototype testing of crawler, locomotive and truck cranes manufactured prior to November 8, 2010 must conform to paragraph (a) of this section.
(1) Test Option A. (i) The following applies to equipment with cantilevered booms (such as hydraulic boom cranes): All the tests listed in SAE J1063 (Nov. 1993) Table 1 (incorporated by reference, see § 1926.6) must be performed to load all critical structural elements to their respective limits. All the strength margins listed in SAE J1063 (Nov. 1993) Table 2 (incorporated by reference, see § 1926.6) must be met.
(ii) The following applies to equipment with pendant supported lattice booms: All the tests listed in SAE J987 (Jun. 2003) Table 1 (incorporated by reference, see § 1926.6) must be performed to load all critical structural elements to their respective limits. All the strength margins listed in SAE J987 (Jun. 2003) Table 2 (incorporated by reference, see § 1926.6) must be met.
(2) Test Option B. The testing and verification requirements of BS EN 13000:2004 (incorporated by reference, see § 1926.6) must be met. In applying BS EN 13000:2004, the following additional requirements must be met:
(i) The following applies to equipment with cantilevered booms (such as hydraulic boom cranes): The analysis methodology (computer modeling) must demonstrate that all load cases listed in SAE J1063 (Nov. 1993) (incorporated by reference, see § 1926.6) meet the strength margins listed in SAE J1063 (Nov. 1993) Table 2.
(ii) The following applies to equipment with pendant supported lattice booms: The analysis methodology (computer modeling) must demonstrate that all load cases listed in SAE J987 (Jun. 2003) (incorporated by reference, see § 1926.6) meet the strength margins listed in SAE J987 (Jun. 2003) Table 2.
(iii) Analysis verification. The physical testing requirements under SAE J1063 (Nov. 1993) (incorporated by reference, see § 1926.6) and SAE J987 (Jun. 2003) (incorporated by reference, see § 1926.6) must be met unless the reliability of the analysis methodology (computer modeling) has been demonstrated by a documented history of verification through strain gauge measuring or strain gauge measuring in combination with other physical testing.
(d) All equipment covered by this subpart must meet the following requirements:
(1) Rated capacity and related information. The information available in the cab (see § 1926.1417(c)) regarding “rated capacity” and related information must include, at a minimum, the following information:
(i) A complete range of the manufacturer's equipment rated capacities, as follows:
(A) At all manufacturer approved operating radii, boom angles, work areas, boom lengths and configurations, jib lengths and angles (or offset).
(B) Alternate ratings for use and nonuse of option equipment which affects rated capacities, such as outriggers, stabilizers, and extra counterweights.
(ii) A work area chart for which capacities are listed in the load chart. (Note: An example of this type of chart is in ASME B30.5-2004, section 5-1.1.3, Figure 11).
(iii) The work area figure and load chart must clearly indicate the areas where no load is to be handled.
(iv) Recommended reeving for the hoist lines must be shown.
(v) Recommended parts of hoist reeving, size, and type of wire rope for various equipment loads.
(vi) Recommended boom hoist reeving diagram, where applicable; size, type and length of wire rope.
(vii) Tire pressure (where applicable).
(viii) Caution or warnings relative to limitations on equipment and operating procedures, including an indication of the least stable direction.
(ix) Position of the gantry and requirements for intermediate boom suspension (where applicable).
(x) Instructions for boom erection and conditions under which the boom, or boom and jib combinations, may be raised or lowered.
(xi) Whether the hoist holding mechanism is automatically or manually controlled, whether free fall is available, or any combination of these.
(xii) The maximum telescopic travel length of each boom telescopic section.
(xiii) Whether sections are telescoped manually or with power.
(xiv) The sequence and procedure for extending and retracting the telescopic boom section.
(xv) Maximum loads permitted during the boom extending operation, and any limiting conditions or cautions.
(xvi) Hydraulic relief valve settings specified by the manufacturer.
(2) Load hooks (including latched and unlatched types), ball assemblies and load blocks must be of sufficient weight to overhaul the line from the highest hook position for boom or boom and jib lengths and the number of parts of the line in use.
(3) Hook and ball assemblies and load blocks must be marked with their rated capacity and weight.
(4) Latching hooks. (i) Hooks must be equipped with latches, except where the requirements of paragraph (d)(4)(ii) of this section are met.
(ii) Hooks without latches, or with latches removed or disabled, must not be used unless:
(A) A qualified person has determined that it is safer to hoist and place the load without latches (or with the latches removed/tied-back).
(B) Routes for the loads are pre-planned to ensure that no employee is required to work in the fall zone except for employees necessary for the hooking or unhooking of the load.
(iii) The latch must close the throat opening and be designed to retain slings or other lifting devices/accessories in the hook when the rigging apparatus is slack.
(5) Posted warnings. Posted warnings required by this subpart as well as those originally supplied with the equipment by the manufacturer must be maintained in legible condition.
(6) An accessible fire extinguisher must be on the equipment.
(7) Cabs. Equipment with cabs must meet the following requirements:
(i) Cabs must be designed with a form of adjustable ventilation and method for clearing the windshield for maintaining visibility and air circulation. Examples of means for adjustable ventilation include air conditioner or window that can be opened (for ventilation and air circulation); examples of means for maintaining visibility include heater (for preventing windshield icing), defroster, fan, windshield wiper.
(ii) Cab doors (swinging, sliding) must be designed to prevent inadvertent opening or closing while traveling or operating the machine. Swinging doors adjacent to the operator must open outward. Sliding operator doors must open rearward.
(iii) Windows.
(A) The cab must have windows in front and on both sides of the operator. Forward vertical visibility must be sufficient to give the operator a view of the boom point at all times.
(B) Windows may have sections designed to be opened or readily removed. Windows with sections designed to be opened must be designed so that they can be secured to prevent inadvertent closure.
(C) Windows must be of safety glass or material with similar optical and safety properties, that introduce no visible distortion or otherwise obscure visibility that interferes with the safe operation of the equipment.
(iv) A clear passageway must be provided from the operator's station to an exit door on the operator's side.
(v) Areas of the cab roof that serve as a workstation for rigging, maintenance or other equipment-related tasks must be capable of supporting 250 pounds without permanent distortion.
(8) Belts, gears, shafts, pulleys, sprockets, spindles, drums, fly wheels, chains, and other parts or components that reciprocate, rotate or otherwise move must be guarded where contact by employees (except for maintenance and repair employees) is possible in the performance of normal duties.
(9) All exhaust pipes, turbochargers, and charge air coolers must be insulated or guarded where contact by employees (except for maintenance and repair employees) is possible in the performance of normal duties.
(10) Hydraulic and pneumatic lines must be protected from damage to the extent feasible.
(11) The equipment must be designed so that exhaust fumes are not discharged in the cab and are discharged in a direction away from the operator.
(12) Friction mechanisms. Where friction mechanisms (such as brakes and clutches) are used to control the boom hoist or load line hoist, they must be:
(i) Of a size and thermal capacity sufficient to control all rated loads with the minimum recommended reeving.
(ii) Adjustable to permit compensation for lining wear to maintain proper operation.
(13) Hydraulic load hoists. Hydraulic drums must have an integrally mounted holding device or internal static brake to prevent load hoist movement in the event of hydraulic failure.
(e) The employer's obligations under paragraphs (a) through (c) and (d)(7) through (13) of this section are met where the equipment has not changed (except in accordance with § 1926.1434 (Equipment modifications)) and it can refer to documentation from the manufacturer showing that the equipment has been designed, constructed and tested in accordance with those paragraphs.
§ 1926.1434 Equipment modifications.
(a) Modifications or additions which affect the capacity or safe operation of the equipment are prohibited except where the requirements of paragraphs (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section are met.
(1) Manufacturer review and approval. (i) The manufacturer approves the modifications/additions in writing.
(ii) The load charts, procedures, instruction manuals and instruction plates/tags/decals are modified as necessary to accord with the modification/addition.
(iii) The original safety factor of the equipment is not reduced.
(2) Manufacturer refusal to review request. The manufacturer is provided a detailed description of the proposed modification/addition, is asked to approve the modification/addition, but it declines to review the technical merits of the proposal or fails, within 30 days, to acknowledge the request or initiate the review, and all of the following are met:
(i) A registered professional engineer who is a qualified person with respect to the equipment involved:
(A) Approves the modification/addition and specifies the equipment configurations to which that approval applies, and
(B) Modifies load charts, procedures, instruction manuals and instruction plates/tags/decals as necessary to accord with the modification/addition.
(ii) The original safety factor of the equipment is not reduced.
(3) Unavailable manufacturer. The manufacturer is unavailable and the requirements of paragraphs (a)(2)(i) and (ii) of this section are met.
(4) Manufacturer does not complete the review within 120 days of the request. The manufacturer is provided a detailed description of the proposed modification/addition, is asked to approve the modification/addition, agrees to review the technical merits of the proposal, but fails to complete the review of the proposal within 120 days of the date it was provided the detailed description of the proposed modification/addition, and the requirements of paragraphs (a)(2)(i) and (ii) of this section are met.
(5) Multiple manufacturers of equipment designed for use on marine work sites. The equipment is designed for marine work sites, contains major structural components from more than one manufacturer, and the requirements of paragraphs (a)(2)(i) and (ii) of this section are met.
(b) Modifications or additions which affect the capacity or safe operation of the equipment are prohibited where the manufacturer, after a review of the technical safety merits of the proposed modification/addition, rejects the proposal and explains the reasons for the rejection in a written response. If the manufacturer rejects the proposal but does not explain the reasons for the rejection in writing, the employer may treat this as a manufacturer refusal to review the request under paragraph (a)(2) of this section.
(c) The provisions in paragraphs (a) and (b) of this section do not apply to modifications made or approved by the U.S. military.
§ 1926.1435 Tower cranes.
(a) This section contains supplemental requirements for tower cranes; all sections of this subpart apply to tower cranes unless specified otherwise.
(b) Erecting, climbing and dismantling. (1) Section 1926.1403 (Assembly/Disassembly—selection of manufacturer or employer procedures), § 1926.1404 (Assembly/Disassembly—general requirements (applies to all assembly and disassembly operations)), § 1926.1405 (Disassembly—additional requirements for dismantling of booms and jibs (applies to both the use of manufacturer procedures and employer procedures)), and § 1926.1406 (Assembly/Disassembly—employer procedures—general requirements), apply to tower cranes (except as otherwise specified), except that the term “assembly/disassembly” is replaced by “erecting, climbing and dismantling,” and the term “disassembly” is replaced by “dismantling.”
(2) Dangerous areas (self-erecting tower cranes). In addition to the requirements in § 1926.1404(e), for self-erecting tower cranes, the following applies: Employees must not be in or under the tower, jib, or rotating portion of the crane during erecting, climbing and dismantling operations until the crane is secured in a locked position and the competent person in charge indicates it is safe to enter this area, unless the manufacturer's instructions direct otherwise and only the necessary personnel are permitted in this area.
(3) Foundations and structural supports. Tower crane foundations and structural supports (including both the portions of the structure used for support and the means of attachment) must be designed by the manufacturer or a registered professional engineer.
(4) Addressing specific hazards. The requirements in § 1926.1404(h)(1) through (9) apply. In addition, the A/D director must address the following:
(i) Foundations and structural supports. The A/D director must determine that tower crane foundations and structural supports are installed in accordance with their design.
(ii) Loss of backward stability. Backward stability before swinging self erecting cranes or cranes on traveling or static undercarriages.
(iii) Wind speed. Wind must not exceed the speed recommended by the manufacturer or, where manufacturer does not specify this information, the speed determined by a qualified person.
(5) Plumb tolerance. Towers must be erected plumb to the manufacturer's tolerance and verified by a qualified person. Where the manufacturer does not specify plumb tolerance, the crane tower must be plumb to a tolerance of at least 1:500 (approximately 1 inch in 40 feet).
(6) Multiple tower crane jobsites. On jobsites where more than one fixed jib (hammerhead) tower crane is installed, the cranes must be located such that no crane can come in contact with the structure of another crane. Cranes are permitted to pass over one another.
(7) Climbing procedures. Prior to, and during, all climbing procedures (including inside climbing and top climbing), the employer must:
(i) Comply with all manufacturer prohibitions.
(ii) Have a registered professional engineer verify that the host structure is strong enough to sustain the forces imposed through the braces, brace anchorages and supporting floors.
(8) Counterweight/ballast. (i) Equipment must not be erected, dismantled or operated without the amount and position of counterweight and/or ballast in place as specified by the manufacturer or a registered professional engineer familiar with the equipment.
(ii) The maximum counterweight and/or ballast specified by the manufacturer or registered professional engineer familiar with the equipment must not be exceeded.
(c) Signs. The size and location of signs installed on tower cranes must be in accordance with manufacturer specifications. Where these are unavailable, a registered professional engineer familiar with the type of equipment involved must approve in writing the size and location of any signs.
(d) Safety devices. (1) Section 1926.1415 does not apply to tower cranes.
(2) The following safety devices are required on all tower cranes unless otherwise specified:
(i) Boom stops on luffing boom type tower cranes.
(ii) Jib stops on luffing boom type tower cranes if equipped with a jib attachment.
(iii) Travel rail end stops at both ends of travel rail.
(iv) Travel rail clamps on all travel bogies.
(v) Integrally mounted check valves on all load supporting hydraulic cylinders.
(vi) Hydraulic system pressure limiting device.
(vii) The following brakes, which must automatically set in the event of pressure loss or power failure, are required:
(A) A hoist brake on all hoists.
(B) Swing brake.
(C) Trolley brake.
(D) Rail travel brake.
(viii) Deadman control or forced neutral return control (hand) levers.
(ix) Emergency stop switch at the operator's station.
(x) Trolley end stops must be provided at both ends of travel of the trolley.
(3) Proper operation required. Operations must not begin unless the devices listed in this section are in proper working order. If a device stops working properly during operations, the operator must safely stop operations. The equipment must be taken out of service, and operations must not resume until the device is again working properly. See § 1926.1417(f). Alternative measures are not permitted to be used.
(e) Operational aids. (1) Section 1926.1416 does not apply to tower cranes.
(2) The devices listed in this section (“operational aids”) are required on all tower cranes covered by this subpart, unless otherwise specified.
(3) Operations must not begin unless the operational aids are in proper working order, except where the employer meets the specified temporary alternative measures. More protective alternative measures specified by the tower crane manufacturer, if any, must be followed. See § 1926.1417(j) for additional requirements.
(4) If an operational aid stops working properly during operations, the operator must safely stop operations until the temporary alternative measures are implemented or the device is again working properly. If a replacement part is no longer available, the use of a substitute device that performs the same type of function is permitted and is not considered a modification under § 1926.1434.
(5) Category I operational aids and alternative measures. Operational aids listed in this paragraph that are not working properly must be repaired no later than 7 calendar days after the deficiency occurs. Exception: If the employer documents that it has ordered the necessary parts within 7 calendar days of the occurrence of the deficiency, the repair must be completed within 7 calendar days of receipt of the parts.
(i) Trolley travel limiting device. The travel of the trolley must be restricted at both ends of the jib by a trolley travel limiting device to prevent the trolley from running into the trolley end stops. Temporary alternative measures:
(A) Option A. The trolley rope must be marked (so it can be seen by the operator) at a point that will give the operator sufficient time to stop the trolley prior to the end stops.
(B) Option B. A spotter who is in direct communication with the operator must be used when operations are conducted within 10 feet of the outer or inner trolley end stops.
(ii) Boom hoist limiting device. The range of the boom must be limited at the minimum and maximum radius. Temporary alternative measures: Clearly mark the cable (so it can be seen by the operator) at a point that will give the operator sufficient time to stop the boom hoist within the minimum and maximum boom radius, or use a spotter who is in direct communication with the operator to inform the operator when this point is reached.
(iii) Anti two-blocking device. The tower crane must be equipped with a device which automatically prevents damage from contact between the load block, overhaul ball, or similar component, and the boom tip (or fixed upper block or similar component). The device(s) must prevent such damage at all points where two-blocking could occur. Temporary alternative measures: Clearly mark the cable (so it can be seen by the operator) at a point that will give the operator sufficient time to stop the hoist to prevent two-blocking, or use a spotter who is in direct communication with the operator to inform the operator when this point is reached.
(iv) Hoist drum lower limiting device. Tower cranes manufactured after November 8, 2011 must be equipped with a device that prevents the last 2 wraps of hoist cable from being spooled off the drum. Temporary alternative measures: Mark the cable (so it can be seen by the operator) at a point that will give the operator sufficient time to stop the hoist prior to last 2 wraps of hoist cable being spooled off the drum, or use a spotter who is in direct communication with the operator to inform the operator when this point is reached
(v) Load moment limiting device. The tower crane must have a device that prevents moment overloading. Temporary alternative measures: A radius indicating device must be used (if the tower crane is not equipped with a radius indicating device, the radius must be measured to ensure the load is within the rated capacity of the crane). In addition, the weight of the load must be determined from a source recognized by the industry (such as the load's manufacturer), or by a calculation method recognized by the industry (such as calculating a steel beam from measured dimensions and a known per foot weight), or by other equally reliable means. This information must be provided to the operator prior to the lift.
(vi) Hoist line pull limiting device. The capacity of the hoist must be limited to prevent overloading, including each individual gear ratio if equipped with a multiple speed hoist transmission. Temporary alternative measures: The operator must ensure that the weight of the load does not exceed the capacity of the hoist (including for each individual gear ratio if equipped with a multiple speed hoist transmission).
(vii) Rail travel limiting device. The travel distance in each direction must be limited to prevent the travel bogies from running into the end stops or buffers. Temporary alternative measures: A spotter who is in direct communication with the operator must be used when operations are conducted within 10 feet of either end of the travel rail end stops; the spotter must inform the operator of the distance of the travel bogies from the end stops or buffers.
(viii) Boom hoist drum positive locking device and control. The boom hoist drum must be equipped with a control that will enable the operator to positively lock the boom hoist drum from the cab. Temporary alternative measures: The device must be manually set when required if an electric, hydraulic or automatic control is not functioning.
(6) Category II operational aids and alternative measures. Operational aids listed in this paragraph that are not working properly must be repaired no later than 30 calendar days after the deficiency occurs. Exception: If the employer documents that it has ordered the necessary parts within 7 calendar days of the occurrence of the deficiency, and the part is not received in time to complete the repair in 30 calendar days, the repair must be completed within 7 calendar days of receipt of the parts.
(i) Boom angle or hook radius indicator.
(A) Luffing boom tower cranes must have a boom angle indicator readable from the operator's station.
(B) Hammerhead tower cranes manufactured after November 8, 2011 must have a hook radius indicator readable from the operator's station.
(C) Temporary alternative measures: Hook radii or boom angle must be determined by measuring the hook radii or boom angle with a measuring device.
(ii) Trolley travel deceleration device. The trolley speed must be automatically reduced prior to the trolley reaching the end limit in both directions. Temporary alternative measure: The employer must post a notice in the cab of the crane notifying the operator that the trolley travel deceleration device is malfunctioning and instructing the operator to take special care to reduce the trolley speed when approaching the trolley end limits.
(iii) Boom hoist deceleration device. The boom speed must be automatically reduced prior to the boom reaching the minimum or maximum radius limit. Temporary alternative measure: The employer must post a notice in the cab of the crane notifying the operator that the boom hoist deceleration device is malfunctioning and instructing the operator to take special care to reduce the boom speed when approaching the minimum or maximum radius limits.
(iv) Load hoist deceleration device. The load speed must be automatically reduced prior to the hoist reaching the upper limit. Temporary alternative measure: The employer must post a notice in the cab of the crane notifying the operator that the load hoist deceleration device is malfunctioning and instructing the operator to take special care to reduce the load speed when approaching the upper limits.
(v) Wind speed indicator. A device must be provided to display the wind speed and must be mounted above the upper rotating structure on tower cranes. On self erecting cranes, it must be mounted at or above the jib level. Temporary alternative measures: Use of wind speed information from a properly functioning indicating device on another tower crane on the same site, or a qualified person estimates the wind speed.
(vi) Load indicating device. Cranes manufactured after November 8, 2011 must have a device that displays the magnitude of the load on the hook. Displays that are part of load moment limiting devices that display the load on the hook meet this requirement. Temporary alternative measures: The weight of the load must be determined from a source recognized by the industry (such as the load's manufacturer), or by a calculation method recognized by the industry (such as calculating a steel beam from measured dimensions and a known per foot weight), or by other equally reliable means. This information must be provided to the operator prior to the lift.
(f) Inspections. (1) Section 1926.1412 (Inspections) applies to tower cranes, except that the term “assembly” is replaced by “erection.” Section 1926.1413 (Wire rope—inspection) applies to tower cranes.
(2) Pre-erection inspection. Before each crane component is erected, it must be inspected by a qualified person for damage or excessive wear.
(i) The qualified person must pay particular attention to components that will be difficult to inspect thoroughly during shift inspections.
(ii) If the qualified person determines that a component is damaged or worn to the extent that it would create a safety hazard if used on the crane, that component must not be erected on the crane unless it is repaired and, upon reinspection by the qualified person, found to no longer create a safety hazard.
(iii) If the qualified person determines that, though not presently a safety hazard, the component needs to be monitored, the employer must ensure that the component is checked in the monthly inspections. Any such determination must be documented, and the documentation must be available to any individual who conducts a monthly inspection.
(3) Post-erection inspection. In addition to the requirements in § 1926.1412(c), the following requirements must be met:
(i) A load test using certified weights, or scaled weights using a certified scale with a current certificate of calibration, must be conducted after each erection.
(ii) The load test must be conducted in accordance with the manufacturer's instructions when available. Where these instructions are unavailable, the test must be conducted in accordance with written load test procedures developed by a registered professional engineer familiar with the type of equipment involved.
(4) Monthly. The following additional items must be included:
(i) Tower (mast) bolts and other structural bolts (for loose or dislodged condition) from the base of the tower crane up or, if the crane is tied to or braced by the structure, those above the upper-most brace support.
(ii) The upper-most tie-in, braces, floor supports and floor wedges where the tower crane is supported by the structure, for loose or dislodged components.
(5) Annual. In addition to the items that must be inspected under § 1926.1412(f), all turntable and tower bolts must be inspected for proper condition and torque.
§ 1926.1436 Derricks.
(a) This section contains supplemental requirements for derricks, whether temporarily or permanently mounted; all sections of this subpart apply to derricks unless specified otherwise. A derrick is powered equipment consisting of a mast or equivalent member that is held at or near the end by guys or braces, with or without a boom, and its hoisting mechanism. The mast/equivalent member and/or the load is moved by the hoisting mechanism (typically base-mounted) and operating ropes. Derricks include: A-frame, basket, breast, Chicago boom, gin pole (except gin poles used for erection of communication towers), guy, shearleg, stiffleg, and variations of such equipment.
(b) Operation—procedures. (1) Section 1926.1417 (Operation) applies except for § 1926.1417(c) (Accessibility of procedures).
(2) Load chart contents. Load charts must contain at least the following information:
(i) Rated capacity at corresponding ranges of boom angle or operating radii.
(ii) Specific lengths of components to which the rated capacities apply.
(iii) Required parts for hoist reeving.
(iv) Size and construction of rope must be included on the load chart or in the operating manual.
(3) Load chart location—(i) Permanent installations. For permanently installed derricks with fixed lengths of boom, guy, and mast, a load chart must be posted where it is visible to personnel responsible for the operation of the equipment.
(ii) Non-permanent installations. For derricks that are not permanently installed, the load chart must be readily available at the job site to personnel responsible for the operation of the equipment.
(c) Construction—(1) General requirements. (i) Derricks must be constructed to meet all stresses imposed on members and components when installed and operated in accordance with the manufacturer's/builder's procedures and within its rated capacity.
(ii) Welding of load sustaining members must conform to recommended practices in ANSI/AWS D14.3-94 (incorporated by reference, see § 1926.6) or AWS D1.1/D1.1M:2002 (incorporated by reference, see § 1926.6).
(2) Guy derricks. (i) The minimum number of guys must be 6, with equal spacing, except where a qualified person or derrick manufacturer approves variations from these requirements and revises the rated capacity to compensate for such variations.
(ii) Guy derricks must not be used unless the employer has the following guy information from the manufacturer or a qualified person, when not available from the manufacturer:
(A) The number of guys.
(B) The spacing around the mast.
(C) The size, grade, and construction of rope to be used for each guy.
(iii) For guy derricks manufactured after December 18, 1970, in addition to the information required in paragraph (c)(2)(ii) of this section, the employer must have the following guy information from the manufacturer or a qualified person, when not available from the manufacturer:
(A) The amount of initial sag or tension.
(B) The amount of tension in guy line rope at anchor.
(iv) The mast base must permit the mast to rotate freely with allowance for slight tilting of the mast caused by guy slack.
(v) The mast cap must:
(A) Permit the mast to rotate freely.
(B) Withstand tilting and cramping caused by the guy loads.
(C) Be secured to the mast to prevent disengagement during erection.
(D) Be provided with means for attaching guy ropes.
(3) Stiffleg derricks. (i) The mast must be supported in the vertical position by at least two stifflegs; one end of each must be connected to the top of the mast and the other end securely anchored.
(ii) The stifflegs must be capable of withstanding the loads imposed at any point of operation within the load chart range.
(iii) The mast base must:
(A) Permit the mast to rotate freely (when necessary).
(B) Permit deflection of the mast without binding.
(iv) The mast must be prevented from lifting out of its socket when the mast is in tension.
(v) The stiffleg connecting member at the top of the mast must:
(A) Permit the mast to rotate freely (when necessary).
(B) Withstand the loads imposed by the action of the stifflegs.
(C) Be secured so as to oppose separating forces.
(4) Gin pole derricks. (i) Guy lines must be sized and spaced so as to make the gin pole stable in both boomed and vertical positions. Exception: Where the size and/or spacing of guy lines do not result in the gin pole being stable in both boomed and vertical positions, the employer must ensure that the derrick is not used in an unstable position.
(ii) The base of the gin pole must permit movement of the pole (when necessary).
(iii) The gin pole must be anchored at the base against horizontal forces (when such forces are present).
(5) Chicago boom derricks. The fittings for stepping the boom and for attaching the topping lift must be arranged to:
(i) Permit the derrick to swing at all permitted operating radii and mounting heights between fittings.
(ii) Accommodate attachment to the upright member of the host structure.
(iii) Withstand the forces applied when configured and operated in accordance with the manufacturer's/builder's procedures and within its rated capacity.
(iv) Prevent the boom or topping lift from lifting out under tensile forces.
(d) Anchoring and guying. (1) Load anchoring data developed by the manufacturer or a qualified person must be used.
(2) Guy derricks. (i) The mast base must be anchored.
(ii) The guys must be secured to the ground or other firm anchorage.
(iii) The anchorage and guying must be designed to withstand maximum horizontal and vertical forces encountered when operating within rated capacity with the particular guy slope and spacing specified for the application.
(3) Stiffleg derricks. (i) The mast base and stifflegs must be anchored.
(ii) The mast base and stifflegs must be designed to withstand maximum horizontal and vertical forces encountered when operating within rated capacity with the particular stiffleg spacing and slope specified for the application.
(e) Swingers and hoists. (1) The boom, swinger mechanisms and hoists must be suitable for the derrick work intended and must be anchored to prevent displacement from the imposed loads.
(2) Hoists. (i) Base mounted drum hoists must meet the requirements in the following sections of ASME B30.7-2001 (incorporated by reference, see § 1926.6):
(A) Sections 7-1.1 (“Load ratings and markings”).
(B) Section 7-1.2 (“Construction”), except: 7-1.2.13 (“Operator's cab”); 7-1.2.15 (“Fire extinguishers”).
(C) Section 7-1.3 (“Installation”).
(D) Applicable terms in section 7-0.2 (“Definitions”).
(ii) Load tests for new hoists. The employer must ensure that new hoists are load tested to a minimum of 110% of rated capacity, but not more than 125% of rated capacity, unless otherwise recommended by the manufacturer. This requirement is met where the manufacturer has conducted this testing.
(iii) Repaired or modified hoists. Hoists that have had repairs, modifications or additions affecting their capacity or safe operation must be evaluated by a qualified person to determine if a load test is necessary. If it is, load testing must be conducted in accordance with paragraphs (e)(2)(ii) and (iv) of this section.
(iv) Load test procedure. Load tests required by paragraphs (e)(2)(ii) or (e)(2)(iii) of this section must be conducted as follows:
(A) The test load must be hoisted a vertical distance to assure that the load is supported by the hoist and held by the hoist brake(s).
(B) The test load must be lowered, stopped and held with the brake(s).
(C) The hoist must not be used unless a competent person determines that the test has been passed.
(f) Operational aids. (1) Section 1926.1416 (Operational aids) applies, except for § 1926.1416(d)(1) (Boom hoist limiting device), § 1926.1416(e)(1) (Boom angle or radius indicator), and § 1926.1416(e)(4) (Load weighing and similar devices).
(2) Boom angle aid. A boom angle indicator is not required but if the derrick is not equipped with a functioning one, the employer must ensure that either:
(i) The boom hoist cable must be marked with caution and stop marks. The stop marks must correspond to maximum and minimum allowable boom angles. The caution and stop marks must be in view of the operator, or a spotter who is in direct communication with the operator; or
(ii) An electronic or other device that signals the operator in time to prevent the boom from moving past its maximum and minimum angles, or automatically prevents such movement, is used.
(3) Load weight/capacity devices. (i) Derricks manufactured more than one year after November 8, 2010 with a maximum rated capacity over 6,000 pounds must have at least one of the following: load weighing device, load moment indicator, rated capacity indicator, or rated capacity limiter. Temporary alternative measures: The weight of the load must be determined from a source recognized by the industry (such as the load's manufacturer), or by a calculation method recognized by the industry (such as calculating a steel beam from measured dimensions and a known per foot weight), or by other equally reliable means. This information must be provided to the operator prior to the lift. See § 1926.1417(j) for additional requirements.
(ii) A load weight/capacity device that is not working properly must be repaired no later than 30 days after the deficiency occurs. Exception: If the employer documents that it has ordered the necessary parts within 7 days of the occurrence of the deficiency, and the part is not received in time to complete the repair in 30 days, the repair must be completed within 7 days of receipt of the parts.
(g) Post-assembly approval and testing—new or reinstalled derricks—(1) Anchorages. (i) Anchorages, including the structure to which the derrick is attached (if applicable), must be approved by a qualified person.
(ii) If using a rock or hairpin anchorage, the qualified person must determine if any special testing of the anchorage is needed. If so, it must be tested accordingly.
(2) Functional test. Prior to initial use, new or reinstalled derricks must be tested by a competent person with no hook load to verify proper operation. This test must include:
(i) Lifting and lowering the hook(s) through the full range of hook travel.
(ii) Raising and lowering the boom through the full range of boom travel.
(iii) Swinging in each direction through the full range of swing.
(iv) Actuating the anti two-block and boom hoist limit devices (if provided).
(v) Actuating locking, limiting and indicating devices (if provided).
(3) Load test. Prior to initial use, new or reinstalled derricks must be load tested by a competent person. The test load must meet the following requirements:
(i) Test loads must be at least 100% and no more than 110% of the rated capacity, unless otherwise recommended by the manufacturer or qualified person, but in no event must the test load be less than the maximum anticipated load.
(ii) The test must consist of:
(A) Hoisting the test load a few inches and holding to verify that the load is supported by the derrick and held by the hoist brake(s).
(B) Swinging the derrick, if applicable, the full range of its swing, at the maximum allowable working radius for the test load.
(C) Booming the derrick up and down within the allowable working radius for the test load.
(D) Lowering, stopping and holding the load with the brake(s).
(iii) The derrick must not be used unless the competent person determines that the test has been passed.
(4) Documentation. Tests conducted under this paragraph must be documented. The document must contain the date, test results and the name of the tester. The document must be retained until the derrick is re-tested or dismantled, whichever occurs first. All such documents must be available, during the applicable document retention period, to all persons who conduct inspections in accordance with § 1926.1412.
(h) Load testing repaired or modified derricks. Derricks that have had repairs, modifications or additions affecting the derrick's capacity or safe operation must be evaluated by a qualified person to determine if a load test is necessary. If it is, load testing must be conducted and documented in accordance with paragraph (g) of this section.
(i) [Reserved]
(j) Power failure procedures. If power fails during operations, the derrick operator must safely stop operations. This must include:
(1) Setting all brakes or locking devices.
(2) Moving all clutch and other power controls to the off position.
(k) Use of winch heads. (1) Ropes must not be handled on a winch head without the knowledge of the operator.
(2) While a winch head is being used, the operator must be within reach of the power unit control lever.
(l) [Reserved]
(m) Securing the boom. (1) When the boom is being held in a fixed position, dogs, pawls, or other positive holding mechanisms on the boom hoist must be engaged.
(2) When taken out of service for 30 days or more, the boom must be secured by one of the following methods:
(i) Laid down.
(ii) Secured to a stationary member, as nearly under the head as possible, by attachment of a sling to the load block.
(iii) For guy derricks, lifted to a vertical position and secured to the mast.
(iv) For stiffleg derricks, secured against the stiffleg.
(n) The process of jumping the derrick must be supervised by the A/D director.
(o) Derrick operations must be supervised by a competent person.
(p) Inspections. In addition to the requirements in § 1926.1412, the following additional items must be included in the inspections:
(1) Daily: Guys for proper tension.
(2) Annual. (i) Gudgeon pin for cracks, wear, and distortion.
(ii) Foundation supports for continued ability to sustain the imposed loads.
(q) Qualification and training. The employer must train each operator of a derrick on the safe operation of equipment the individual will operate. Section 1926.1427 of this subpart (Operator qualification and certification) does not apply.
§ 1926.1437 Floating cranes/derricks and land cranes/derricks on barges.
(a) This section contains supplemental requirements for floating cranes/derricks and land cranes/derricks on barges, pontoons, vessels or other means of flotation (i.e., vessel/flotation device). The sections of this subpart apply to floating cranes/derricks and land cranes/derricks on barges, pontoons, vessels or other means of flotation, unless specified otherwise. The requirements of this section do not apply when using jacked barges when the jacks are deployed to the river, lake, or sea bed and the barge is fully supported by the jacks.
(b) General requirements. The requirements in paragraphs (c) through (k) of this section apply to both floating cranes/derricks and land cranes/derricks on barges, pontoons, vessels or other means of flotation.
(c) Work area control. (1) The requirements of § 1926.1424 (Work area control) apply, except for § 1926.1424(a)(2)(ii).
(2) The employer must either:
(i) Erect and maintain control lines, warning lines, railings or similar barriers to mark the boundaries of the hazard areas; or
(ii) Clearly mark the hazard areas by a combination of warning signs (such as, “Danger—Swing/Crush Zone”) and high visibility markings on the equipment that identify the hazard areas. In addition, the employer must train each employee to understand what these markings signify.
(d) Keeping clear of the load. Section 1926.1425 does not apply.
(e) Additional safety devices. In addition to the safety devices listed in § 1926.1415, the following safety devices are required:
(1) Barge, pontoon, vessel or other means of flotation list and trim device. The safety device must be located in the cab or, when there is no cab, at the operator's station.
(2) Positive equipment house lock.
(3) Wind speed and direction indicator. A competent person must determine if wind is a factor that needs to be considered; if wind needs to be considered, a wind speed and direction indicator must be used.
(f) Operational aids. (1) An anti two-block device is required only when hoisting personnel or hoisting over an occupied cofferdam or shaft.
(2) Section 1926.1416(e)(4) (Load weighing and similar devices) does not apply to dragline, clamshell (grapple), magnet, drop ball, container handling, concrete bucket, and pile driving work performed under this section.
(g) Accessibility of procedures applicable to equipment operation. If the crane/derrick has a cab, the requirements of § 1926.1417(c) apply. If the crane/derrick does not have a cab, the employer must ensure that:
(1) Rated capacities (load charts) are posted at the operator's station. If the operator's station is moveable (such as with pendant-controlled equipment), the load charts are posted on the equipment.
(2) Procedures applicable to the operation of the equipment (other than load charts), recommended operating speeds, special hazard warnings, instructions and operators manual, must be readily available on board the vessel/flotation device.
(h) Inspections. In addition to meeting the requirements of § 1926.1412 for inspecting the crane/derrick, the employer must inspect the barge, pontoons, vessel or other means of flotation used to support a floating crane/derrick or land crane/derrick, and ensure that:
(1) Shift. For each shift inspection, the means used to secure/attach the equipment to the vessel/flotation device is in proper condition, including wear, corrosion, loose or missing fasteners, defective welds, and (when applicable) insufficient tension.
(2) Monthly. For each monthly inspection:
(i) The means used to secure/attach the equipment to the vessel/flotation device is in proper condition, including inspection for wear, corrosion, and, when applicable, insufficient tension.
(ii) The vessel/flotation device is not taking on water.
(iii) The deckload is properly secured.
(iv) The vessel/flotation device is watertight based on the condition of the chain lockers, storage, fuel compartments, and hatches.
(v) The firefighting and lifesaving equipment is in place and functional.
(3) The shift and monthly inspections are conducted by a competent person, and:
(i) If any deficiency is identified, an immediate determination is made by a qualified person whether the deficiency constitutes a hazard.
(ii) If the deficiency is determined to constitute a hazard, the vessel/flotation device is removed from service until the deficiency has been corrected.
(4) Annual: external vessel/flotation device inspection. For each annual inspection:
(i) The external portion of the barge, pontoons, vessel or other means of flotation used is inspected annually by a qualified person who has expertise with respect to vessels/flotation devices and that the inspection includes the following items:
(A) The items identified in paragraphs (h)(1) (Shift) and (h)(2) (Monthly) of this section.
(B) Cleats, bitts, chocks, fenders, capstans, ladders, and stanchions, for significant corrosion, wear, deterioration, or deformation that could impair the function of these items.
(C) External evidence of leaks and structural damage; evidence of leaks and damage below the waterline may be determined through internal inspection of the vessel/flotation device.
(D) Four-corner draft readings.
(E) Firefighting equipment for serviceability.
(ii) Rescue skiffs, lifelines, work vests, life preservers and ring buoys are inspected for proper condition.
(iii) If any deficiency is identified, an immediate determination is made by the qualified person whether the deficiency constitutes a hazard or, though not yet a hazard, needs to be monitored in the monthly inspections.
(A) If the qualified person determines that the deficiency constitutes a hazard, the vessel/flotation device is removed from service until it has been corrected. See requirements in § 1926.1417(f).
(B) If the qualified person determines that, though not presently a hazard, the deficiency needs to be monitored, the deficiency is checked in the monthly inspections.
(5) Four-year: internal vessel/flotation device inspection. For each four-year inspection:
(i) A marine engineer, marine architect, licensed surveyor, or other qualified person who has expertise with respect to vessels/flotation devices surveys the internal portion of the barge, pontoons, vessel, or other means of flotation.
(ii) If the surveyor identifies a deficiency, an immediate determination is made by the surveyor as to whether the deficiency constitutes a hazard or, though not yet a hazard, needs to be monitored in the monthly or annual inspections, as appropriate.
(A) If the surveyor determines that the deficiency constitutes a hazard, the vessel/flotation device is removed from service until it has been corrected.
(B) If the surveyor determines that, though not presently a hazard, the deficiency needs to be monitored, the deficiency is checked in the monthly or annual inspections, as appropriate.
(6) Documentation. The monthly and annual inspections required in paragraphs (h)(2) and (h)(4) of this section are documented in accordance with §§ 1926.1412 (e)(3) and 1926.1412(f)(7), respectively, and that the four-year inspection required in paragraph (h)(5) of this section is documented in accordance with § 1926.1412(f)(7), except that the documentation for that inspection must be retained for a minimum of 4 years. All such documents must be made available, during the applicable document retention period, to all persons who conduct inspections in accordance with § 1926.1412.
(i) [Reserved]
(j) Working with a diver. The employer must meet the following additional requirements when working with a diver in the water:
(1) If a crane/derrick is used to get a diver into and out of the water, it must not be used for any other purpose until the diver is back on board. When used for more than one diver, it must not be used for any other purpose until all divers are back on board.
(2) The operator must remain at the controls of the crane/derrick at all times.
(3) In addition to the requirements in §§ 1926.1419 through 1926.1422 (Signals), either:
(i) A clear line of sight must be maintained between the operator and tender; or
(ii) The signals between the operator and tender must be transmitted electronically.
(4) The means used to secure the crane/derrick to the vessel/flotation device (see paragraph (n)(5) of this section) must not allow any amount of shifting in any direction.
(k) Manufacturer's specifications and limitations. (1) The employer must ensure that the barge, pontoons, vessel, or other means of flotation must be capable of withstanding imposed environmental, operational and in-transit loads when used in accordance with the manufacturer's specifications and limitations.
(2) The employer must ensure that the manufacturer's specifications and limitations with respect to environmental, operational, and in-transit loads for a barge, pontoon, vessel, or other means of flotation are not exceeded or violated.
(3) When the manufacturer's specifications and limitations are unavailable, the employer must ensure that the specifications and limitations established by a qualified person with respect to environmental, operational and in-transit loads for the barge, pontoons, vessel, or other means of flotation are not exceeded or violated.
(l) [Reserved]
(m) Floating cranes/derricks. For equipment designed by the manufacturer (or employer) for marine use by permanent attachment to barges, pontoons, vessels or other means of flotation:
(1) Load charts. (i) The employer must not exceed the manufacturer load charts applicable to operations on water. When using these charts, the employer must comply with all parameters and limitations (such as dynamic and environmental parameters) applicable to the use of the charts.
(ii) The employer must ensure that load charts take into consideration a minimum wind speed of 40 miles per hour.
(2) The employer must ensure that the requirements for maximum allowable list and maximum allowable trim as specified in Table M1 of this section are met.
Table M1
Rated capacity | Maximum allowable list (degrees) | Maximum allowable trim (degrees)
Equipment designed for marine use by permanent attachment (other than derricks):
25 tons or less | 5 | 5
Over 25 tons | 7 | 7
Derricks designed for marine use by permanent attachment:
Any rated capacity | 10 | 10
(3) The employer must ensure that the equipment is stable under the conditions specified in Tables M2 and M3 of this section. (Note: Freeboard is the vertical distance between the water line and the main deck of the vessel.)
Table M2
Operated at | Wind speed (mph) | Minimum freeboard (ft)
Rated capacity | 60 | 2
Rated capacity plus 25% | 60 | 1
High boom, no load | 60 | 2
Table M3
Operated at | Wind speed
For backward stability of the boom:
High boom, no load, full back list (least stable condition) | 90 mph.
(4) If the equipment is employer-made, it must not be used unless the employer has documents demonstrating that the load charts and applicable parameters for use meet the requirements of paragraphs (m)(1) through (3) of this section. Such documents must be signed by a registered professional engineer who is a qualified person with respect to the design of this type of equipment (including the means of flotation).
(5) The employer must ensure that the barge, pontoons, vessel or other means of flotation used:
(i) Are structurally sufficient to withstand the static and dynamic loads of the crane/derrick when operating at the crane/derrick's maximum rated capacity with all planned and actual deck loads and ballasted compartments.
(ii) Have a subdivided hull with one or more longitudinal watertight bulkheads for reducing the free-surface effect.
(iii) Have access to void compartments to allow for inspection and pumping.
(n) Land cranes/derricks. For land cranes/derricks used on barges, pontoons, vessels or other means of flotation, the employer must ensure that:
(1) The rated capacity of the equipment (including but not limited to modification of load charts) applicable for use on land is reduced to:
(i) Account for increased loading from list, trim, wave action, and wind.
(ii) Be applicable to a specified location(s) on the specific barge, pontoons, vessel or other means of flotation that will be used, under the environmental conditions expected and encountered.
(iii) The conditions required in paragraphs (n)(3) and (n)(4) of this section are met.
(2) The rated capacity modification required in paragraph (n)(1) of this section is performed by the equipment manufacturer, or a qualified person who has expertise with respect to both land crane/derrick capacity and the stability of vessels/flotation devices.
(3) For list and trim.
(i) The maximum allowable list and the maximum allowable trim for the barge, pontoon, vessel or other means of flotation must not exceed the amount necessary to ensure that the conditions in paragraph (n)(4) of this section are met. In addition, the maximum allowable list and the maximum allowable trim does not exceed the least of the following: 5 degrees, the amount specified by the crane/derrick manufacturer, or, when, an amount is not so specified, the amount specified by the qualified person.
(ii) The maximum allowable list and the maximum allowable trim for the land crane/derrick does not exceed the amount specified by the crane/derrick manufacturer, or, when, an amount is not so specified, the amount specified by the qualified person.
(4) For the following conditions:
(i) All deck surfaces of the barge, pontoons, vessel or other means of flotation used are above water.
(ii) The entire bottom area of the barge, pontoons, vessel or other means of flotation used is submerged.
(5) Physical attachment, corralling, rails system and centerline cable system meet the requirements in Option (1), Option (2), Option (3), or Option (4) of this section, and that whichever option is used also meets the requirements of paragraph (n)(5)(v) of this section.
(i) Option (1)—Physical attachment. The crane/derrick is physically attached to the barge, pontoons, vessel or other means of flotation. Methods of physical attachment include crossed-cable systems attached to the crane/derrick and vessel/flotation device, bolting or welding the crane/derrick to the vessel/flotation device, strapping the crane/derrick to the vessel/flotation device with chains, or other methods of physical attachment.
(ii) Option (2)—Corralling. The crane/derrick is prevented from shifting by installing barricade restraints (i.e., a corralling system). Employers must ensure that corralling systems do not allow the equipment to shift by any amount of shifting in any direction.
(iii) Option (3)—Rails. The crane/derrick must be prevented from shifting by being mounted on a rail system. Employers must ensure that rail clamps and rail stops are used unless the system is designed to prevent movement during operation by other means.
(iv) Option (4)—Centerline cable system. The crane/derrick is prevented from shifting by being mounted to a wire rope system. The employer must ensure that the wire rope system meets the following requirements:
(A) The wire rope and attachments are of sufficient size and strength to support the side load of crane/derrick.
(B) The wire rope is attached physically to the vessel/flotation device.
(C) The wire rope is attached to the crane/derrick by appropriate attachment methods (such as shackles or sheaves) on the undercarriage, and that the method used will allow the crew to secure the crane/derrick from movement during operation and to move the crane/derrick longitudinally along the vessel/flotation device for repositioning.
(D) Means are installed to prevent the crane/derrick from passing the forward or aft end of the wire rope attachments.
(E) The crane/derrick is secured from movement during operation.
(v) The systems/means used to comply with Option (1), Option (2), Option (3), or Option (4) of this section are designed by a marine engineer, registered professional engineer familiar with floating crane/derrick design, or qualified person familiar with floating crane/derrick design.
(6) Exception. For mobile auxiliary cranes used on the deck of a floating crane/derrick, the requirement specified by paragraph (n)(5) of this section to use Option (1), Option (2), Option (3), or Option (4) does not apply when the employer demonstrates implementation of a plan and procedures that meet the following requirements:
(i) A marine engineer or registered professional engineer familiar with floating crane/derrick design develops and signs a written plan for the use of the mobile auxiliary crane.
(ii) The plan is designed so that the applicable requirements of this section are met despite the position, travel, operation, and lack of physical attachment (or corralling, use of rails or cable system) of the mobile auxiliary crane.
(iii) The plan specifies the areas of the deck where the mobile auxiliary crane is permitted to be positioned, travel, and operate, and the parameters and limitations of such movements and operation.
(iv) The deck is marked to identify the permitted areas for positioning, travel, and operation.
(v) The plan specifies the dynamic and environmental conditions that must be present for use of the plan.
(vi) If the dynamic and environmental conditions in paragraph (n)(6)(v) of this section are exceeded, the mobile auxiliary crane is attached physically or corralled in accordance with Option (1), Option (2) or Option (4) of paragraph (n)(5) of this section.
(7) The barge, pontoons, vessel or other means of flotation used:
(i) Are structurally sufficient to withstand the static and dynamic loads of the crane/derrick when operating at the crane/derrick's maximum rated capacity with all anticipated deck loads and ballasted compartments.
(ii) Have a subdivided hull with one or more longitudinal watertight bulkheads for reducing the free surface effect.
(iii) Have access to void compartments to allow for inspection and pumping.
§ 1926.1438 Overhead & gantry cranes.
(a) Permanently installed overhead and gantry cranes. The requirements of § 1910.179, except for § 1910.179(b)(1), and not the requirements of this subpart CC, apply to the following equipment when used in construction and permanently installed in a facility: overhead and gantry cranes, including semigantry, cantilever gantry, wall cranes, storage bridge cranes, and others having the same fundamental characteristics.
(b) Overhead and gantry cranes that are not permanently installed in a facility. (1) This paragraph applies to the following equipment when used in construction and not permanently installed in a facility: Overhead and gantry cranes, overhead/bridge cranes, semigantry, cantilever gantry, wall cranes, storage bridge cranes, launching gantry cranes, and similar equipment having the same fundamental characteristics, irrespective of whether it travels on tracks, wheels, or other means.
(2) The following requirements apply to equipment identified in paragraph (b)(1) of this section:
(i) Sections 1926.1400 through 1926.1414; §§ 1926.1417 through 1926.1425; § 1926.1426(d), §§ 1926.1427 through 1926.1434; §§ 1926.1437, 1926.1439, and 1926.1441.
(ii) The following portions of § 1910.179:
(A) Paragraphs (b)(5),(6),(7); (e)(1),(3),(5),(6); (f)(1),(4); (g); (h)(1),(3); (k); and (n) of § 1910.179.
(B) The definitions in § 1910.179(a) except for “hoist” and “load.” For those words, the definitions in § 1926.1401 apply.
(C) Section 1910.179(b)(2), but only where the equipment identified in paragraph (b)(1) of this section (§ 1926.1438) was manufactured before September 19, 2001.
(iii) For equipment manufactured on or after September 19, 2001, the following sections of ASME B30.2-2005 (incorporated by reference, see § 1926.6) apply: 2-1.3.1; 2-1.3.2; 2-1.4.1; 2-1.6; 2-1.7.2; 2-1.8.2; 2-1.9.1; 2-1.9.2; 2-1.11; 2-1.12.2; 2-1.13.7; 2-1.14.2; 2-1.14.3; 2-1.14.5; 2-1.15.; 2-2.2.2; 2-3.2.1.1. In addition, 2-3.5 applies, except in 2-3.5.1(b), “29 CFR 1910.147” is substituted for “ANSI Z244.1.”
§ 1926.1439 Dedicated pile drivers.
(a) The provisions of subpart CC apply to dedicated pile drivers, except as specified in this section.
(b) Section 1926.1416(d)(3) (Anti two-blocking device) does not apply.
(c) Section 1926.1416(e)(4) (Load weighing and similar devices) applies only to dedicated pile drivers manufactured after November 8, 2011.
(d) In § 1926.1433, only §§ 1926.1433(d) and (e) apply to dedicated pile drivers.
§ 1926.1440 Sideboom cranes.
(a) The provisions of this standard apply, except § 1926.1402 (Ground conditions), § 1926.1415 (Safety devices), § 1926.1416 (Operational aids), and § 1926.1427 (Operator qualification and certification).
(b) Section 1926.1426 (Free fall and controlled load lowering) applies, except § 1926.1426(a)(2)(i). Sideboom cranes in which the boom is designed to free fall (live boom) are permitted only if manufactured prior to November 8, 2010.
(c) Sideboom cranes mounted on wheel or crawler tractors must meet all of the following requirements of ASME B30.14-2004 (incorporated by reference, see § 1926.6):
(1) Section 14-1.1 (“Load Ratings”).
(2) Section 14-1.3 (“Side Boom Tractor Travel”).
(3) Section 14-1.5 (“Ropes and Reeving Accessories”).
(4) Section 14-1.7.1 (“Booms”).
(5) Section 14-1.7.2 (“General Requirements—Exhaust Gases”).
(6) Section 14-1.7.3 (“General Requirements—Stabilizers (Wheel-Type Side Boom Tractors)”).
(7) Section 14-1.7.4 (“General Requirements—Welded Construction”).
(8) Section 14-1.7.6 (“General Requirements—Clutch and Brake Protection”).
(9) Section 14-2.2.2 (“Testing—Rated Load Test”), except that it applies only to equipment that has been altered or modified.
(10) In section 14-3.1.2 (“Operator Qualifications”), paragraph (a), except the phrase “When required by law.”
(11) In section 14-3.1.3 (“Operating Practices”), paragraphs (e), (f)(1)-(f)(4), (f)(6), (f)(7), (h), and (i).
(12) In section 14-3.2.3 (“Moving the Load”), paragraphs (j), (l), and (m).
§ 1926.1441 Equipment with a rated hoisting/lifting capacity of 2,000 pounds or less.
The following paragraphs of this section specify requirements for employers using equipment with a maximum rated hoisting/lifting capacity of 2,000 pounds or less.
(a) The employer using this equipment must comply with the following provisions of this subpart: § 1926.1400 (Scope); § 1926.1401 (Definitions); § 1926.1402 (Ground conditions); § 1926.1403 (Assembly/disassembly—selection of manufacturer or employer procedures); § 1926.1406 (Assembly/disassembly—employer procedures); §§ 1926.1407 through 1926.1411 (Power line safety); § 1926.1412(c) (Post-assembly); §§ 1926.1413 through 1926.1414 (Wire rope); § 1926.1418 (Authority to stop operation); §§ 1926.1419 through 1926.1422 (Signals); § 1926.1423 (Fall protection); § 1926.1425 (Keeping clear of the load) (except for § 1926.1425(c)(3) (qualified rigger)); § 1926.1426 (Free fall and controlled load lowering); § 1926.1432 (Multiple crane/derrick lifts—supplemental requirements); § 1926.1434 (Equipment modifications); § 1926.1435 (Tower cranes); § 1926.1436 (Derricks); § 1926.1437 (Floating cranes/derricks and land cranes/derricks on barges); § 1926.1438 (Overhead & gantry cranes).
(b) Assembly/disassembly. (1) In addition to compliance with §§ 1926.1403 (Assembly/disassembly—selection of manufacturer or employer procedures) and 1926.1406 (Assembly/disassembly—employer procedures), the employer must also comply with § 1926.1441(b)(2)-(3).
(2) Components and configuration. The employer must ensure that:
(i) The selection of components, and the configuration of the equipment, that affect the capacity or safe operation of the equipment complies with either the:
(A) Manufacturer instructions, recommendations, limitations, and specifications. When these documents and information are unavailable, a registered professional engineer familiar with the type of equipment involved must approve, in writing, the selection and configuration of components; or
(B) Approved modifications that meet the requirements of § 1926.1434 (Equipment modifications).
(ii) Post-assembly inspection. Upon completion of assembly, the equipment is inspected to ensure that it is in compliance with paragraph (b)(2)(i) of this section (see § 1926.1412(c) for post-assembly inspection requirements).
(3) Manufacturer prohibitions. The employer must comply with applicable manufacturer prohibitions.
(c) Operation—procedures. (1) The employer must comply with all manufacturer procedures applicable to the operational functions of the equipment, including its use with attachments.
(2) Unavailable operation procedures. The employer must:
(i) When the manufacturer's procedures are unavailable, develop, and ensure compliance with, all procedures necessary for the safe operation of the equipment and attachments.
(ii) Ensure that procedures for the operational controls are developed by a qualified person.
(iii) Ensure that procedures related to the capacity of the equipment are developed and signed by a registered professional engineer familiar with the equipment.
(3) Accessibility. The employer must ensure that:
(i) The load chart is available to the operator at the control station;
(ii) Procedures applicable to the operation of the equipment, recommended operating speeds, special hazard warnings, instructions, and operator's manual are readily available for use by the operator.
(iii) When rated capacities are available at the control station only in electronic form and a failure occurs that makes the rated capacities inaccessible, the operator immediately ceases operations or follows safe shut-down procedures until the rated capacities (in electronic or other form) are available.
(d) Safety devices and operational aids. (1) The employer must ensure that safety devices and operational aids that are part of the original equipment are maintained in accordance with manufacturer procedures.
(2) Anti two-blocking. The employer must ensure that equipment covered by this section manufactured more than one year after November 8, 2010 have either an anti two-block device that meets the requirements of § 1926.1416(d)(3), or is designed so that, in the event of a two-block situation, no damage or load failure will occur (for example, by using a power unit that stalls in response to a two-block situation).
(e) Operator qualifications. The employer must train each operator, prior to operating the equipment, on the safe operation of the type of equipment the operator will be using.
(f) Signal person qualifications. The employer must train each signal person in the proper use of signals applicable to the use of the equipment.
(g) [Reserved]
(h) Inspections. The employer must ensure that equipment is inspected in accordance with manufacturer procedures.
(i) [Reserved]
(j) Hoisting personnel. The employer must ensure that equipment covered by this section is not used to hoist personnel.
(k) Design. The employer must ensure that the equipment is designed by a qualified engineer.
§ 1926.1442 Railroad roadway maintenance machines.
(a) General rule. Employers using equipment covered by this subpart that meets the definition of “roadway maintenance machine,” as defined in 49 CFR 214.7, must comply with the requirements in this subpart, except as provided in paragraphs (b)(1) through (7) of this section when subject to the authority of the Federal Railroad Administration.
(b) Exceptions—(1) Operator certification, training, and evaluation. The requirements in §§ 1926.1427 (Operator qualification and certification) and 1926.1430 (Training) do not apply. The qualification and training requirements contained in §§ 1926.1436(q) (Qualification and training for derricks), 1926.1440(a) (Sideboom cranes), and 1926.1441(a) (Equipment with a rated hoisting/lifting capacity of 2,000 pounds or less) do not apply.
(2) Rail clamps, rail stops, and work-area controls. (i) The requirement for rail clamps in § 1926.1415(a)(6) does not apply;
(ii) The requirement for rail stops in § 1926.1415(a)(6) does not apply; and
(iii) The work-area controls specified by § 1926.1424(a)(2) do not apply.
(3) Out-of-level work. The restrictions on out-of-level work, and the requirements for crane-level indicators and inspections of those indicators (including the requirements in §§ 1926.1402(b), 1926.1412(d)(1)(xi), and 1926.1415(a)(1)), do not apply.
(4) Dragging a load sideways. The prohibition in § 1926.1417(q) on dragging a load sideways does not apply.
(5) Boom-hoist limiting device. The requirement in § 1926.1416(d)(1) for a boom-hoist limiting device does not apply to roadway maintenance machines when the cranes use hydraulic cylinders to raise the booms.
(6) Manufacturer guidance for modifications covered by § 1926.1434. The requirements to follow the manufacturer's guidance set forth in § 1926.1434 do not apply if the employer is subject to the requirements of 49 CFR part 214.
(7) Other manufacturer guidance. The requirements to follow the manufacturer's guidance, instructions, procedures, prohibitions, limitations, or specifications, set forth in § 1926.1404(j), (m), or (q); § 1926.1415(a)(6); § 1926.1417(a), (r), (u), or (aa); § 1926.1433(d)(1)(i); or § 1926.1441 do not apply if the employer is subject to the requirements of 49 CFR part 214.
[85 FR 57122, Sept. 15, 2020]
§ 1926.1443 Severability.
Should a court of competent jurisdiction hold any provision(s) of subpart CC to be invalid, such action shall not affect any other provision of the subpart.
[75 FR 48135, Aug. 9, 2010. Redesignated at 85 FR 57122, Sept. 15, 2020]
Appendix B to Subpart CC of Part 1926 Assembly/Disassembly: Sample Procedures for Minimizing the Risk of Unintended Dangerous Boom Movement
1. Section 1926.1404(f)(1) provides that when pins (or similar devices) are being removed, employees must not be under the boom, jib, or other components, except where the requirements of § 1926.1404(f)(2) are met. The exception in § 1926.1404(f)(2) applies when the employer demonstrates that site constraints require one or more employees to be under the boom, jib, or other components when pins (or similar devices) are being removed. In such a situation, the A/D director must implement procedures that minimize the risk of unintended dangerous movement and minimize the duration and extent of exposure under the boom.
The following scenario is an example of how the exception applies: A boom cannot be disassembled on the ground because of aboveground piping (as might be found, for example, in an oil refinery) that precludes lowering the boom to the ground. The boom must therefore be disassembled in the air, and the employees who remove the pins must perform that work from an aerial lift whose base is positioned on one side (the near side) of the boom. To gain access to the pins on the far side, the aerial lift basket must move under the boom, since, due to lack of room, the aerial lift cannot be repositioned on the far side. Due to lack of room, the aerial lift cannot be repositioned on the far side, so the aerial basket must move under the boom to gain access to the pins on the far side.
To minimize the risk of unintended dangerous movement while the pins are removed, the A/D director uses an assist crane that is rigged to support the boom section that is being detached, using particular care to ensure that the section end that is near the employee(s) removing the pins is well supported. The duration and extent of exposure is minimized by removing the far side pins first, moving the aerial lift basket as soon as possible to the near side so that the employees are no longer under the boom, and then removing the near side pins.
2. Section 1926.1404(h)(6)(i) provides that, during assembly/disassembly, the center of gravity of the load must be identified if that is necessary for the method used for maintaining stability. Section 1926.1404(h)(6)(ii) states that, where there is insufficient information to accurately identify the center of gravity, measures designed to prevent unintended dangerous movement resulting from an inaccurate identification of the center of gravity must be used.
An example of the application of § 1926.1404(h)(6)(ii) is as follows: The boom is assembled by lowering boom sections sequentially into place using an assist crane. The A/D director's plan is to keep the boom sections stable while they are lowered into place by attaching the assist crane hoist line above the center of gravity of each section. However, in assembling the non-symmetrical top section of the boom, the A/D director is not able to determine where to attach the assist crane hoist line so that it is above the center of gravity. In this situation, before raising the section, all personnel are kept clear of the section and the section is first raised a few inches to determine whether it tips when raised (if it did tip, it would indicate it is not rigged over the center of gravity). If this occurs, the hoist line is repositioned and the procedure repeated (with employees kept clear of the section while it is raised) until the A/D director determines that it is rigged over the center of gravity and can be moved into place without dangerous movement.
Appendix C to Subpart CC of Part 1926 Operator Certification: Written Examination: Technical Knowledge Criteria
This appendix contains information for employers, accredited testing organizations, auditors and government entities developing criteria for a written examination to test an individual's technical knowledge relating to the operation of cranes.
(a) General technical information.
(1) The functions and limitations of the crane and attachments.
(2) Wire rope:
(i) Background information necessary to understand the inspection and removal from service criteria in § 1926.1413 and § 1926.1414.
(ii) Capacity and when multi-part rope is needed.
(iii) Relationship between line pull and safe working load.
(iv) How to determine the manufacturer's recommended rope for the crane.
(3) Rigging devices and their use, such as:
(i) Slings.
(ii) Spreaders.
(iii) Lifting beams.
(iv) Wire rope fittings, such as clips, shackles and wedge sockets.
(v) Saddles (softeners).
(vi) Clamps (beams).
(4) The technical limitations of protective measures against electrical hazards:
(i) Grounding.
(ii) Proximity warning devices.
(iii) Insulated links.
(iv) Boom cages.
(v) Proximity to electric power lines, radii, and microwave structures.
(5) The effects of load share and load transfer in multi-crane lifts.
(6) Basic crane terms.
(7) The basics of machine power flow systems.
(i) Mechanical.
(ii) Electrical.
(iii) Pneumatic.
(iv) Hydraulic.
(v) Combination.
(8) The significance of the instruments and gauge readings.
(9) The effects of thermal expansion and contraction in hydraulic cylinders.
(10) Background information necessary to understand the requirements of pre-operation and inspection.
(11) How to use the safety devices and operational aids required under § 1926.1415 and § 1926.1416.
(12) The difference between duty-cycle and lifting operations.
(13) How to calculate net capacity for every possible configuration of the equipment using the manufacturer's load chart.
(14) How to use manufacturer-approved attachments and their effect on the equipment.
(15) How to obtain dimensions, weight, and center of gravity of the load.
(16) The effects of dynamic loading from:
(i) Wind.
(ii) Stopping and starting.
(iii) Impact loading.
(iv) Moving with the load.
(17) The effect of side loading.
(18) The principles of backward stability.
(b) Site information.
(1) How to identify the suitability of the supporting ground/surface to support the expected loads of the operation. Elements include:
(i) Weaknesses below the surface (such as voids, tanks, loose fill).
(ii) Weaknesses on the surface (such as retaining walls, slopes, excavations, depressions).
(2) Proper use of mats, blocking/cribbing, outriggers, stabilizers, or crawlers.
(3) Identification of site hazards such as power lines, piping, and traffic.
(4) How to review operation plans with supervisors and other workers (such as the signal person), including how to determine working height, boom length, load radius, and travel clearance.
(5) How to determine if there is adequate room for extension of crawlers or outriggers/stabilizers and counterweights.
(c) Operations.
(1) How to pick, carry, swing and place the load smoothly and safely on rubber tires and on outriggers/stabilizers or crawlers (where applicable).
(2) How to communicate at the site with supervisors, the crew and the signal person.
(3) Proper procedures and methods of reeving wire ropes and methods of reeving multiple-part lines and selecting the proper load block and/or ball.
(4) How to react to changes in conditions that affect the safe operation of the equipment.
(5) How to shut down and secure the equipment properly when leaving it unattended.
(6) Know how to apply the manufacturer's specifications for operating in various weather conditions, and understand how environmental conditions affect the safe operation of the equipment.
(7) How to properly level the equipment.
(8) How to verify the weight of the load and rigging prior to initiating the lift.
(9) How to determine where the load is to be picked up and placed and how to verify the radii.
(10) Know basic rigging procedures.
(11) How to carry out the shift inspection required in this subpart.
(12) Know that the following operations require specific procedures and skill levels:
(i) Multi-crane lifts.
(ii) Hoisting personnel.
(iii) Clamshell/dragline operations.
(iv) Pile driving and extracting.
(v) Concrete operations, including poured-in-place and tilt-up.
(vi) Demolition operations.
(vii) Operations on water.
(viii) Magnet operations.
(ix) Multi-drum operations.
(13) Know the proper procedures for operating safely under the following conditions:
(i) Traveling with suspended loads.
(ii) Approaching a two-block condition.
(iii) Operating near power lines.
(iv) Hoisting personnel.
(v) Using other than full outrigger/crawler or stabilizer extensions.
(vi) Lifting loads from beneath the surface of the water.
(vii) Using various approved counterweight configurations.
(viii) Handling loads out of the operator's vision (“operating in the blind”).
(ix) Using electronic communication systems for signal communication.
(14) Know the proper procedures for load control and the use of hand-held tag lines.
(15) Know the emergency response procedure for:
(i) Fires.
(ii) Power line contact.
(iii) Loss of stability.
(iv) Control malfunction.
(v) Two-blocking.
(vi) Overload.
(vii) Carrier or travel malfunction.
(16) Know how to properly use outriggers and stabilizers in accordance with manufacturer specifications.
(d) Use of load charts.
(1) Know the terminology necessary to use load charts.
(2) Know how to ensure that the load chart is the appropriate chart for the equipment in its particular configuration and application.
(3) Know how to use load charts. This includes knowing:
(i) The operational limitations of load charts and footnotes.
(ii) How to relate the chart to the configuration of the crane, crawlers, or outriggers/stabilizers extended or retracted, jib erected or offset, and various counterweight configurations.
(iii) The difference between structural capacity and capacity limited by stability.
(iv) What is included in capacity ratings.
(v) The range diagram and its relationship to the load chart.
(vi) The work area chart and its relationship to the load chart.
(vii) Where to find and how to use the “parts-of-line” information.
(4) Know how to use the load chart together with the load indicators and/or load moment devices.
0
Appendix A to Part 1926 Designations for General Industry Standards Incorporated Into Body of Construction Standards
New Designations for General Industry Standards Incorporated Into Body of Construction Standards
1926 Designations for Applicable 1910 Standards
New § no. and/or para. | Source § no. and/or para.
1926.20 (c) | 1910.5 (a)
[Do.] (d) | [Do.] (c)
[Do.] (e) | [Do.] (d)
1926.32(g) | 1910.12(b)
1926.33 | 1910.20
1926.34 (a) | 1910.36(b)(4)
[Do.] (b) | 1910.37 (q)(1)
[Do.] (c) | [Do.] (k)(2)
1926.35 | 1910.38(a)
1926.50(g) | 1910.151(c)
1926.51(a)(6) | 1910.141(a)(2)(v)
[Do.] (d)(2) | [Do.] (h)
[Do.] (f) (2)-(4) | [Do.] (d) (1)-(3)
[Do.] (g) | [Do.] (g)(2)
[Do.] (h) | [Do.] (a)(5)
[Do.] (i) | [Do.] (e)
1926.53 (c)-(r) | 1910.96
1926.57 (f)-(i) | 1910.94
1926.64 | 1910.119
1926.65 | 1910.120
1926.66 (a) | 1910.107 (a)
[Do.] (b) | [Do.] (b) (1)-(10)
[Do.] (c)-(d) | [Do.] (c)-(d)
[Do.] (e)-(g) | [Do.] (h)-(j)
1926.95 | 1910.132
1926.96 | 1910.136
1926.97 (a)-(e) | 1910.156(e)
[Do.] (f)-(h) | [Do.] Subpt. L App. E
1926.98 | 1910.156(f)
1926.102(a) (6) | 1910.133(a) (2)
[Do.] (7) | [Do.] (4)
[Do.] (8) | [Do.] (5)
1926.103 (d) | 1910.134 (a)
[Do.] (e) | [Do.] (b)
[Do.] (f)-(i) | [Do.] (d)-(g)
1926.150(c)(1) (xi) | 1910.157 (g)(1)
[Do.] (xii) | [Do.] (g)(2)
[Do.] (xiii) | [Do.] (c)(4)
[Do.] (xiv) | [Do.] (e)(3)
1926.152 (b)(5) | 1910.107(e)(2)
[Do.] (h) | 1910.106(j)
[Do.] (i) | [Do.] (b)
[Do.] (j) | [Do.] (c)
[Do.] (k) (1)-(3) | [Do.] (g)(4)
[Do.] (k)(4) | [Do.] (a)(22)
1926.153(a) (3) | 1910.110(a)(4)
[Do.] (m) (1) | [Do.] (d)(1)
[Do.] (2) | [Do.] (d)(2)
[Do.] (3) | [Do.] (d)(7)(vii)
[Do.] (4) | [Do.] (d)(7)(viii)
[Do.] (n) | [Do.] (b)(5)(iii)
[Do.] (o) | [Do.] (d)(10)
1926.156 | 1910.160
1926.157 | 1910.162
1926.158 | 1910.164
1926.159 | 1910.165
1926.200(c)(3) | 1910.145(d)(4)
1926.250(c) | 1910.176(c)
[Do.] (d) (1)-(4) | 1910.30(a) (1), (2), (4) and (5)
1926.251(a)(5) | 1910.184(a)
[Do.] (a)(6) | [Do.] (d)
[Do.] (b)(6)(i)-(ii) | [Do.] (e)(3)(i)-(ii)
[Do.] (c)(6)-(7) | [Do.] (c) (2)-(3)
[Do.] (c)(8) | [Do.] (c)(5)
[Do.] (c)(9) | [Do.] (c)(7)
[Do.] (c)(10)-(12) | [Do.] (c)(10)-(12)
[Do.] (c)(13)-(15) | [Do.](f) (2)-(4)
[Do.] (d)(3)-(6) | [Do.] (h) (2)-(5)
[Do.] (e)(3)-(5) | [Do.] (i) (2)-(4)
[Do.] (e)(6)-(7) | [Do.] (i) (6)-(7)
[Do.] (e)(8) | [Do.] (i)(9)
1926.300(b) (3) | 1910.212(a)(1)
[Do.] (4) | [Do.] (a)(3)
[Do.] (5) | [Do.] (a)(5)
[Do.] (6) | [Do.] (b)
[Do.] (7) | 1910.215(b)(9)
[Do.] (8) and (9) | [Do.] (b) (3) and (4)
1926.302(b)(10) | 1910.244(b)
1926.303(b)(2) | 1910.215(a) (2)
[Do.] (e) | [Do.] (4)
1926.304 (g) | 1910.213(h)(1)
[Do.] (h) | [Do.] (d)(1)
[Do.] (i) | [Do.] (c)(1)
1926.305(d)(1) | 1910.244(a)(2) (iii)-(viii)
1926.306 | 1910.169
1926.307 | 1910.219
1926.350(a) (10) | 1910.253(b) (4)(iii)
[Do.] (11) | [Do.] (2)(ii)
[Do.] (12) | 1910.101(b)
1926.353(b)(3) | 1910.252(b)(4)(iv)
1926.416 (a)(4) | 1910.333(c)(2)
[Do.] (f) (1) | [Do.] (c)(10)
[Do.] (2) | 1910.334(a)(1)
[Do.] (3) | [Do.] (a)(2)(iii)
[Do.] (4) | [Do.] (a)(5)
[Do.] (5)-(6) | [Do.] (b) (1)-(2)
[Do.] (7)-(9) | [Do.] (c) (1)-(3)
[Do.] (10) | [Do.] (d)
1926.417(d) | 1910.333(b)(2)
1926.451(a) (22) | 1910.28(a) (15)
[Do.] (23) | [Do.] (18)
[Do.] (24) | [Do.] (20)
1926.453 (a) | 1910.29(a)
[Do.] (b) | [Do.] (c)
1926.600(a)(7) | 1910.176(f)
1926.602(c)(1) (vii) | 1910.178(m) (3)
[Do.] (viii) | [Do.] (12)
1926.900 (s) | 1910.109 (g)(2)(ii)
[Do.] (t) | [Do.] (h)(3)(ii)
1926.905(u) | [Do.] (e)(3)(iii)
1926.914(aa) | [Do.] (a)(12)
1926.1050(b) | 1910.21(g)(9)
1926.1071 | 1910.401
1926.1072 | 1910.402
1926.1076 | 1910.410
1926.1080 | 1910.420
1926.1081 | 1910.421
1926.1082 | 1910.422
1926.1083 | 1910.423
1926.1084 | 1910.424
1926.1085 | 1910.425
1926.1086 | 1910.426
1926.1087 | 1910.427
1926.1090 | 1910.430
1926.1091 | 1910.440
1926.1092 | 1910.441
1926.1102 | 1910.1002
1926.1103 | 1910.1003
1926.1104 | 1910.1004
1926.1105 | 1910.1005
1926.1106 | 1910.1006
1926.1107 | 1910.1007
1926.1108 | 1910.1008
1926.1109 | 1910.1009
1926.1110 | 1910.1010
1926.1111 | 1910.1011
1926.1112 | 1910.1012
1926.1113 | 1910.1013
1926.1114 | 1910.1014
1926.1115 | 1910.1015
1926.1116 | 1910.1016
1926.1117 | 1910.1017
1926.1118 | 1910.1018
1926.1128 | 1910.1028
1926.1129 | 1910.1029
1926.1144 | 1910.1044
1926.1145 | 1910.1045
1926.1147 | 1910.1047
1926.1148 | 1910.1048
[58 FR 35305, June 30, 1993, as amended at 61 FR 9255, Mar. 7, 1996; 75 FR 48135, Aug. 9, 2010]
1927 PART 1927 [RESERVED]
PART 1928 OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE
Authority: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); 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), 4-2010 (75 FR 55355), or 8-2020 (85 FR 58393), as applicable; and 29 CFR 1911. Section 1928.21 also issued under 49 U.S.C. 1801-1819 and 5 U.S.C. 553.
Source: 40 FR 18257, Apr. 25, 1975, unless otherwise noted.
Subpart A General
§ 1928.1 Purpose and scope.
This part contains occupational safety and health standards applicable to agricultural operations.
Subpart B Applicability of Standards
§ 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—§ 1910.142;
(2) Storage and handling of anhydrous ammonia—§ 1910.111 (a) and (b);
(3) Logging operations—§ 1910.266;
(4) Slow-moving vehicles—§ 1910.145;
(5) Hazard communication—§ 1910.1200;
(6) Cadmium—§ 1910.1027.
(7) Retention of DOT markings, placards and labels—§ 1910.1201.
(8) COVID-19—§ 1910.501, but only with respect to—
(i) Agricultural establishments where eleven (11) or more employees are engaged on any given day in hand-labor operations in the field; and
(ii) Agricultural establishments that maintain a temporary labor camp, regardless of how many employees are engaged on any given day in hand-labor operations in the field.
(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; 86 FR 61555, Nov. 5, 2021]
Subpart C Roll-Over Protective Structures
§ 1928.51 Roll-over protective structures (ROPS) for tractors used in agricultural operations.
(a) Definitions. As used in this subpart—
Agricultural tractor means a two-or four-wheel drive type vehicle, or track vehicle, of more than 20 engine horsepower, designed to furnish the power to pull, carry, propel, or drive implements that are designed for agriculture. All self-propelled implements are excluded.
Low profile tractor means a wheeled tractor possessing the following characteristics:
(1) The front wheel spacing is equal to the rear wheel spacing, as measured from the centerline of each right wheel to the centerline of the corresponding left wheel.
(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 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]
§ 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.
(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 (newtons) | ±5 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′ in kg); Eis = Energy input to be absorbed during side loading in ft-lb (E′is in J [joules]); Eis = 723 + 0.4 W (E′is = 100 + 0.12 W′); Eir = Energy input to be absorbed during rear loading in ft-lb (E′ir in J); Eir = 0.47 W (E′ir = 0.14 W′); 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
(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° 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° to 30° 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. × 6-in. (150-mm × 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° to 40° 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;
(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′ 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′ = 125 ±0.170 W′) (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° 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° 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° ±2° 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 a minimum slope of 60° ±5° 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 °F (−18 °C) or below, or exhibit Charpy V-notch impact strengths as follows:
10-mm × 10-mm (0.394-in. × 0.394-in.) specimen: 8.0 ft-lb (10.8 J) at −20 °F (−30 °C); 10-mm × 7.5-mm (0.394-in. × 0.296-in.) specimen: 7.0 ft-lb (9.5 J) at −20 °F (−30 °C); 10-mm × 5-mm (0.394-in. × 0.197-in.) specimen: 5.5 ft-lb (7.5 J) at −20 °F (−30 °C); or 10-mm × 2.5-mm (0.394-in. × 0.098-in.) specimen: 4.0 ft-lb (5.5 J) at −20 °F (−30 °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]
§ 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/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 force (newtons) | ±5 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″ in kg); Eis = Energy input to be absorbed during side loading in ft-lb (E″is in J [joules]); Eis = 723 + 0.4 W (E″is = 100 + 0.12 W″); Eir = Energy input to be absorbed during rear loading in ft-lb (E″ir in J); Eir = 0.47 W (E″ir = 0.14 W″); 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 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° 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° to 30° 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 to 8 percent of nominal tire section width. After the vehicle is retrained properly, a wooden beam no smaller than 6-in. × 6-in. (150-mm × 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° to 40° 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′ 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′ = 125 + 0.107 W′) (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° 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° 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° ±2° 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.
(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° ±5° 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 °F (−8 °C) or below, or exhibit Charpy V-notch impact strengths as follows:
10-mm × 10-mm (0.394-in. × 0.394-in.) specimen: 8.0 ft-lb (10.8 J) at −20 °F (−30 °C); 10-mm × 7.5-mm (0.394-in. × 0.296-in.) specimen: 7.0 ft-lb (9.5 J) at −20 °F (−30 °C); 10-mm × 5-mm (0.394-in. × 0.197-in.) specimen: 5.5 ft-lb (7.5 J) at −20 °F (−30 °C); or 10-mm × 2.5-mm (0.394-in. × 0.098-in.) specimen: 4.0 ft-lb (5.5 J) at −20 °F (−30 °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 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]
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.
Appendix B to Subpart C of Part 1928 Figures C-1 through C-16
[71 FR 41146, July 20, 2006]
Subpart D Safety for Agricultural Equipment
§ 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 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
(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.
(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
Material | Clearance from moving part at all points (in inches) | Largest mesh or opening allowable (in inches) | Minimum gage (U.S. standard) or thickness
Woven wire | Under 2 | 3/8 | 16
2 to 4 | 1/2 | 16
4 to 15 | 2 | 12
Expanded metal | Under 4 4 to 15 | 1/2 2 | 18 13
Perforated metal | Under 4 4 to 15 | 1/2 2 | 20 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 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]
E Subparts E-H [Reserved]
Subpart I General Environmental Controls
§ 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 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]
J Subparts J-L [Reserved]
Subpart M Occupational Health
§ 1928.1027 Cadmium.
See § 1910.1027, Cadmium.
[61 FR 9255, Mar. 7, 1996]
PART 1949 OFFICE OF TRAINING AND EDUCATION, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
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
§ 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]
§ 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.
§ 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.
§ 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.
§ 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
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); 29 CFR part 1902; Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012), or 8-2020 (85 FR 58393, Sept. 18, 2020), as applicable.
Subpart A List of Approved State Plans for Private-Sector and State and Local Government Employees
§ 1952.1 South Carolina.
(a) The South Carolina State plan received initial approval on December 6, 1972.
(b) The South Carolina State plan received final approval on December 18, 1987.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, compliance officer 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 staffing 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/south_carolina.html.
§ 1952.2 Oregon.
(a) The Oregon State plan received initial approval on December 28, 1972.
(b) The Oregon State plan received final approval on May 12, 2005.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/oregon.html.
§ 1952.3 Utah.
(a) The Utah State plan received initial approval on January 10, 1973.
(b) The Utah State plan received final approval on July 16, 1985.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/utah.html.
§ 1952.4 Washington.
(a) The Washington State plan received initial approval on January 26, 1973.
(b) OSHA entered into an operational status agreement with Washington.
(c) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/washington.html.
§ 1952.5 North Carolina.
(a) The North Carolina State plan received initial approval on February 1, 1973.
(b) The North Carolina State plan received final approval on December 18, 1996.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/north_carolina.html.
§ 1952.6 Iowa.
(a) The Iowa State plan received initial approval on July 20, 1973.
(b) The Iowa State plan received final approval on July 2, 1985.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/iowa.html.
§ 1952.7 California.
(a) The California State plan received initial approval on May 1, 1973.
(b) OSHA entered into an operational status agreement with California.
(c) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/california.html.
§ 1952.8 Minnesota.
(a) The Minnesota State plan received initial approval on June 8, 1973.
(b) The Minnesota State plan received final approval on July 30, 1985.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/minnesota.html.
§ 1952.9 Maryland.
(a) The Maryland State plan received initial approval on July 5, 1973.
(b) The Maryland State plan received final approval on July 18, 1985.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/maryland.html.
§ 1952.10 Tennessee.
(a) The Tennessee State plan received initial approval on July 5, 1973.
(b) The Tennessee State plan received final approval on July 22, 1985.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/tennessee.html.
§ 1952.11 Kentucky.
(a) The Kentucky State plan received initial approval on July 31, 1973.
(b) The Kentucky State plan received final approval on June 13, 1985.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/kentucky.html.
§ 1952.12 Alaska.
(a) The Alaska State plan received initial approval on August 10, 1973.
(b) The Alaska State plan received final approval on September 28, 1984.
(c) 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. Alaska's compliance staffing benchmarks are 4 safety and 5 health compliance officers.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/alaska.html.
§ 1952.13 Michigan.
(a) The Michigan State plan received initial approval on October 3, 1973.
(b) OSHA entered into an operational status agreement with Michigan.
(c) Under the terms of the 1978 Court Order in AFL-CIO v. Marshall, compliance staffing levels (“benchmarks”) necessary for a “fully effective” enforcement program were required for each State operating an approved State plan. In 1992, Michigan completed, in conjunction with OSHA, a reassessment of the levels initially established in 1980 and proposed revised benchmarks of 56 safety and 45 health compliance officers. After opportunity for public comment and service on the AFL-CIO, the Assistant Secretary approved these revised staffing requirements on April 20, 1995.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit https://www.osha.gov/dcsp/osp/stateprogs/michigan.html.
§ 1952.14 Vermont.
(a) The Vermont State plan received initial approval on October 16, 1973.
(b) OSHA entered into an operational status agreement with Vermont.
(c) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/vermont.html.
§ 1952.15 Nevada.
(a) The Nevada State plan received initial approval on January 4, 1974.
(b) The Nevada State plan received final approval on April 18, 2000.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/nevada.html.
§ 1952.16 Hawaii.
(a) The Hawaii State plan received initial approval on January 4, 1974.
(b) The Hawaii State plan received final approval on May 4, 1984.
(c) On September 21, 2012 OSHA modified the State Plan's approval status from final approval to initial approval, and reinstated concurrent federal enforcement authority pending the necessary corrective action by the State Plan in order to once again meet the criteria for a final approval determination. OSHA and Hawaii entered into an operational status agreement to provide a workable division of enforcement responsibilities.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/hawaii.html.
§ 1952.17 Indiana.
(a) The Indiana State plan received initial approval on March 6, 1974.
(b) The Indiana State plan received final approval on September 26, 1986.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/indiana.html.
§ 1952.18 Wyoming.
(a) The Wyoming State plan received initial approval on May 3, 1974.
(b) The Wyoming State plan received final approval on June 27, 1985.
(c) 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 public comment and service on the AFL-CIO, the Assistant Secretary approved these revised staffing requirements on June 27, 1985.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/wyoming.html.
§ 1952.19 Arizona.
(a) The Arizona State plan received initial approval on November 5, 1974.
(b) The Arizona State plan received final approval on June 20, 1985.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/arizona.html.
§ 1952.20 New Mexico.
(a) The New Mexico State plan received initial approval on December 10, 1975.
(b) OSHA entered into an operational status agreement with New Mexico.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/new_mexico.html.
§ 1952.21 Virginia.
(a) The Virginia State plan received initial approval on September 28, 1976.
(b) The Virginia State plan received final approval on November 30, 1988.
(c) 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.
(d) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/virginia.html.
§ 1952.22 Puerto Rico.
(a) The Puerto Rico State plan received initial approval on August 30, 1977.
(b) OSHA entered into an operational status agreement with Puerto Rico.
(c) The plan covers all private-sector employers and employees, with several notable exceptions, as well as State and local government employers and employees, within the State. For current information on these exceptions and for additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/puerto_rico.html.
Subpart B List of Approved State Plans for State and Local Government Employees
§ 1952.23 Connecticut.
(a) The Connecticut State plan for State and local government employees received initial approval from the Assistant Secretary on November 3, 1978.
(b) 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.
(c) The plan only covers State and local government employers and employees within the State. For additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/connecticut.html.
§ 1952.24 New York.
(a) The New York State plan for State and local government employees received initial approval from the Assistant Secretary on June 1, 1984.
(b) The plan, as revised on 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.
(c) The plan only covers State and local government employers and employees within the State. For additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/new_york.html.
§ 1952.25 New Jersey.
(a) The New Jersey State plan for State and local government employees received initial approval from the Assistant Secretary on January 11, 2001.
(b) The plan further provides assurances of a fully trained, adequate staff, including 20 safety and 7 health compliance officers for enforcement inspections, and 4 safety and 3 health consultants to perform consultation services in the public sector, and 2 safety and 3 health training and education staff. The State has assured that it will continue to provide a sufficient number of adequately trained and qualified personnel necessary for the enforcement of standards as required by 29 CFR 1956.10. The State has also given satisfactory assurance of adequate funding to support the plan.
(c) The plan only covers State and local government employers and employees within the State. For additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/new_jersey.html.
§ 1952.26 The Virgin Islands.
(a) The Virgin Islands State plan for Public Employees Only was approved on July 23, 2003.
(b) The plan only covers State and local government employers and employees within the State. For additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/virgin_islands.html.
§ 1952.27 Illinois.
(a) The Illinois State plan for state and local government employees received initial approval from the Assistant Secretary on September 1, 2009.
(b) 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.
(c) The plan only covers State and local government employers and employees within the state. For additional details about the plan, please visit http://www.osha.gov/dcsp/osp/stateprogs/illinois.html.
§ 1952.28 Maine.
(a) The Maine State Plan for State and local government employees received initial approval from the Assistant Secretary on August 5, 2015.
(b) The Plan further provides assurances of a fully trained, adequate staff within three years of plan approval, including 2 safety and 1 health compliance officers for enforcement inspections, and 3 safety and 1 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.
(c) The plan only covers State and local government employers and employees within the State. For additional details about the plan, please visit https://www.osha.gov/dcsp/osp/stateprogs/maine.html.
[81 FR 6178, Feb. 5, 2016]
§ 1952.29 Massachusetts.
(a) The Massachusetts State Plan for State and local Government employees received initial approval from the Assistant Secretary on August 18, 2022.
(b) The Plan further provides assurances of a fully trained, adequate staff within three years of plan approval, including 8 safety and 3 health compliance officers for enforcement inspections, and 2 safety and 1 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.
(c) The plan only covers State and local government employers and employees within the State. For additional details about the plan, please visit https://www.osha.gov/dcsp/osp/stateprogs/massachusetts.html.
[87 FR 50775, Aug. 18, 2022]
PART 1953 CHANGES TO STATE PLANS
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 67 FR 60125, Sept. 25, 2002, unless otherwise noted.
§ 1953.1 Purpose and scope.
(a) This part implements the provisions of section 18 of the Occupational Safety and Health Act of 1970 (“OSH Act” or the “Act”) which provides for State plans for the development and enforcement of State occupational safety and health standards. These plans must meet the criteria in section 18(c) of the Act, and part 1902 of this chapter (for plans covering both private sector and State and local government employers) or part 1956 of this chapter (for plans covering only State and local government employers), either at the time of submission or—where the plan is developmental—within the three year period immediately following commencement of the plan's operation. Approval of a State plan is based on a finding that the State has, or will have, a program, pursuant to appropriate State law, for the adoption and enforcement of State standards that is “at least as effective” as the Federal program.
(b) When submitting plans, the States provide assurances that they will continue to meet the requirements in section 18(c) of the Act and part 1902 or part 1956 of this chapter for a program that is “at least as effective” as the Federal. Such assurances are a fundamental basis for approval of plans. (See §§ 1902.3 and 1956.2 of this chapter.) From time to time after initial plan approval, States will need to make changes to their plans. This part establishes procedures for submission and review of State plan supplements documenting those changes that are necessary to fulfill the State's assurances, the requirements of the Act, and part 1902 or part 1956 of this chapter.
(c) Changes to a plan may be initiated in several ways. In the case of a developmental plan, changes are required to document establishment of those necessary structural program components that were not in place at the time of plan approval. These commitments are included in a developmental schedule approved as part of the initial plan. These “developmental changes” must be completed within the three year period immediately following the commencement of operations under the plan. Another circumstance requiring subsequent changes to a State plan would be the need to keep pace with changes to the Federal program, or “Federal Program Changes.” A third situation would be when changes are required as a result of the continuing evaluation of the State program. Such changes are called “evaluation changes.” Finally, changes to a State program's safety and health requirements or procedures initiated by the State without a Federal parallel could have an impact on the effectiveness of the State program. Such changes are called “State-initiated changes.” While requirements for submission of a plan supplement to OSHA differ depending on the type of change, all supplements are processed in accordance with the procedures in § 1953.6.
§ 1953.2 Definitions.
(a) OSHA means the Assistant Secretary of Labor for Occupational Safety and Health, or any representative authorized to perform any of the functions discussed in this part, as set out in implementing Instructions.
(b) State means an authorized representative of the agency designated to administer a State plan under § 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.
§ 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. The underlying documentation for identical plan changes shall be maintained by the State. 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.
[67 FR 60125, Sept. 25, 2002, as amended at 80 FR 49908, Aug. 18, 2015]
§ 1953.4 Submission of plan supplements.
(a) Developmental changes. (1) Sections 1902.2(b) and 1956.2(b) of this chapter require that each State with a developmental plan must set forth in its plan, as developmental steps, those changes which must be made to its initially-approved plan for its program to be at least as effective as the Federal program and a timetable for making these changes. The State must notify OSHA of a developmental change when it completes a developmental step or fails to meet any developmental step.
(2) If the completion of a developmental step is the adoption of a program component which is identical to the Federal program component, the State need only submit documentation, such as the cover page of an implementing directive or a notice of promulgation, that it has adopted the program component, within 60 days of adoption of the change, but must make the underlying documentation available for Federal and public review upon request.
(3) If the completion of a developmental step involves the adoption of policies or procedures which differ from the Federal program, the State must submit one copy of the required plan supplement within 60 days of adoption of the change.
(4) When a developmental step is missed, the State must submit a supplement which documents the impact on the program of the failure to complete the developmental step, an explanation of why the step was not completed on time and a revised timetable with a new completion date (generally not to exceed 90 days) and any other actions necessary to ensure completion. Where the State has an operational status agreement with OSHA under § 1954.3 of this Chapter, the State must provide an assurance that the missed step will not affect the effectiveness of State enforcement in any issues for which the State program has been deemed to be operational.
(5) If the State fails to submit the required documentation or supplement, as provided in § 1953.4(a)(2), (3) or (4), when the developmental step is scheduled for completion, OSHA shall notify the State that documentation or a supplement is required and set a timetable for submission of any required documentation or supplement, generally not to exceed 60 days.
(b) Federal Program changes. (1) When a significant change in the Federal program would have an adverse impact on the “at least as effective” status of the State program if a parallel State program modification were not made, State adoption of a change in response to the Federal program change shall be required. A Federal program change that would not result in any diminution of the effectiveness of a State plan compared to Federal OSHA generally would not require adoption by the State.
(2) Examples of significant changes to the Federal program that would normally require a State response would include a change in the Act, promulgation or revision of OSHA standards or regulations, or changes in policy or procedure of national importance. A Federal program change that only establishes procedures necessary to implement a new or established policy, standard or regulation does not require a State response, although the State would be expected to establish policies and procedures which are “at least as effective,” which must be available for review on request.
(3) When there is a change in the Federal program which requires State action, OSHA shall advise the States. This notification shall also contain a date by which States must adopt a corresponding change or submit a statement why a program change is not necessary. This date will generally be six months from the date of notification, except where the Assistant Secretary determines that the nature or scope of the change requires a different time frame, for example, a change requiring legislative action where a State has a biennial legislature or a policy of major national implications requiring a shorter implementing time frame. State notification of intent may be required prior to adoption.
(4) If the State change is different from the Federal program change, the State shall submit one copy of the required supplement within 60 days of State adoption. The supplement shall contain a copy of the relevant legislation, regulation, policy or procedure and documentation on how the change maintains the “at least as effective as” status of the plan.
(5) If the State adopts a change identical to the Federal program change, the State is not required to submit a supplement. However, the State shall provide documentation that it has adopted the change, such as the cover page of an implementing directive or a notice of promulgation, within 60 days of State adoption.
(6) The State may demonstrate why a program change is not necessary because the State program is already the same as or at least as effective as the Federal program change. Such submissions will require review and approval as set forth in § 1953.6.
(7) Where there is a change in the Federal program which does not require State action but is of sufficient national interest to warrant indication of State intent, the State may be required to provide such notification within a specified time frame.
(c) Evaluation changes. (1) Special and periodic evaluations of a State program by OSHA in cooperation with the State may show that some portion of a State plan has an adverse impact on the effectiveness of the State program and accordingly requires modification to the State's underlying legislation, regulations, policy or procedures as an evaluation change. For example, OSHA could find that additional legislative or regulatory authority may be necessary to effectively pursue the State's right of entry into workplaces, or to assure various employer rights.
(2) OSHA shall advise the State of any evaluation findings that require a change to the State plan and the reasons supporting this decision. This notification shall also contain a date by which the State must accomplish this change and submit either the change supplement or a timetable for its accomplishment and interim steps to assure continued program effectiveness, documentation of adoption of a program component identical to the Federal program component, or, as explained in paragraph (c)(5) of this section, a statement demonstrating why a program change is not necessary.
(3) If the State adopts a program component which differs from a corresponding Federal program component, the State shall submit one copy of a required supplement within 60 days of adoption of the change. The supplement shall contain a copy of the relevant legislation, regulation, policy or procedure and documentation on how the change maintains the “at least as effective as” status of the plan.
(4) If the State adopts a program component identical to a Federal program component, submission of a supplement is not required. However, the State shall provide documentation that it has adopted the change, such as the cover page of an implementing directive or a notice of promulgation, within 60 days of adoption of the change and shall retain all other documentation within the State available for review upon request.
(5) The State may demonstrate why a program change is not necessary because the State program is meeting the requirements for an “at least as effective” program. Such submission will require review and approval as set forth in § 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.
§ 1953.5 Special provisions for standards changes.
(a) Permanent standards. (1) Where a Federal program change is a new permanent standard, or a more stringent amendment to an existing permanent standard, the State shall promulgate a State standard adopting such new Federal standard, or more stringent amendment to an existing Federal standard, or an at least as effective equivalent thereof, within six months of the date of promulgation of the new Federal standard or more stringent amendment. The State may demonstrate that a standard change is not necessary because the State standard is already the same as or at least as effective as the Federal standard change. In order to avoid delays in worker protection, the effective date of the State standard and any of its delayed provisions must be the date of State promulgation or the Federal effective date whichever is later. The Assistant Secretary may permit a longer time period if the State makes a timely demonstration that good cause exists for extending the time limitation. State permanent standards adopted in response to a new or revised Federal standard shall be submitted as a State plan supplement within 60 days of State promulgation in accordance with § 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 §§ 1953.4(b)(3) or (4)—Federal program changes. However, in the case of standards applicable to products used or distributed in interstate commerce where section 18(c)(2) of the Act imposes certain restrictions on State plan authority, the modification, revision, or revocation of the Federal standard may necessitate the modification, revision, or revocation of the comparable State standard unless the State standard is required by compelling local conditions and does not unduly burden interstate commerce.
(3) Where a State on its own initiative adopts a permanent State standard for which there is no Federal parallel, the State shall submit it within 60 days of State promulgation in accordance with § 1953.4(d)—State-initiated changes,
(b) Emergency temporary standards. (1) Immediately upon publication of an emergency temporary standard in the Federal Register, OSHA shall advise the States of the standard and that a Federal program change supplement shall be required. This notification must also provide that the State has 30 days after the date of promulgation of the Federal standard to adopt a State emergency temporary standard if the State plan covers that issue. The State may demonstrate that promulgation of an emergency temporary standard is not necessary because the State standard is already the same as or at least as effective as the Federal standard change. The State standard must remain in effect for the duration of the Federal emergency temporary standard which may not exceed six (6) months.
(2) Within 15 days after receipt of the notice of a Federal emergency temporary standard, the State shall advise OSHA of the action it will take. State standards shall be submitted in accordance with the applicable procedures in § 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 with § 1953.4(c), but within 10 days of promulgation.
§ 1953.6 Review and approval of plan supplements.
(a) OSHA shall review a supplement to determine whether it is at least as effective as the Federal program and meets the criteria in the Act and implementing regulations and the assurances in the State plan. If the review reveals any defect in the supplement, or if more information is needed, OSHA shall offer assistance to the State and shall provide the State an opportunity to clarify or correct the change.
(b) If upon review, OSHA determines that the differences from a corresponding Federal component are purely editorial and do not change the substance of the policy or requirements on employers, it shall deem the change identical. This includes “plain language” rewrites of new Federal standards or previously approved State standards which do not change the meaning or requirements of the standard. OSHA will inform the State of this determination. No further review or Federal Register publication is required.
(c) Federal OSHA may seek public comment during its review of plan supplements. Generally, OSHA will seek public comment if a State program component differs significantly from the comparable Federal program component and OSHA needs additional information on its compliance with the criteria in section 18(c) of the Act, including whether it is at least as effective as the Federal program and in the case of a standard applicable to products used or distributed in interstate commerce, whether it is required by compelling local conditions or unduly burdens interstate commerce under section 18(c)(2) of the Act.
(d) If the plan change meets the approval criteria, OSHA shall approve it and shall thereafter publish a Federal Register notice announcing the approval. OSHA reserves the right to reconsider its decision should subsequent information be brought to its attention.
(e) If a State fails to submit a required supplement or if examination discloses cause for rejecting a submitted supplement, OSHA shall provide the State a reasonable time, generally not to exceed 30 days, to submit a revised supplement or to show cause why a proceeding should not be commenced either for rejection of the supplement or for failure to adopt the change in accordance with the procedures in § 1902.17 or Part 1955 of this chapter.
PART 1954 PROCEDURES FOR THE EVALUATION AND MONITORING OF APPROVED STATE PLANS
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 39 FR 1838, Jan. 15, 1974, unless otherwise noted.
Subpart A General
§ 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.
§ 1954.2 Monitoring system.
(a) To carry out the responsibilities for continuing evaluation of State plans under section 18(f) of the Act, the Assistant Secretary has established a State Program Performance Monitoring System. Evaluation under this monitoring system encompasses both the period before and after a determination has been made under section 18(e) of the Act. The monitoring system is a three phased system designed to assure not only that developmental steps are completed and that the operational plan is, in fact, at least as effective as the Federal program with respect to standards and enforcement, but also to provide a method for continuing review of the implementation of the plan and any modifications thereto to assure compliance with the provisions of the plan during the time the State participates in the cooperative Federal-State program.
(b) Phase I of the system begins with the initial approval of a State plan and continues until the determination required by section 18(e) of the Act is made. During Phase I, the Assistant Secretary will secure monitoring data to make the following key decisions:
(1) What should be the level of Federal enforcement;
(2) Should plan approval be continued; and
(3) What level of technical assistance is needed by the State to enable it to have an effective program.
(c) Phase II of the system relates to the determination required by section 18(e) of the Act. The Assistant Secretary must decide, after no less than three years following approval of the plan, whether or not to relinquish Federal authority to the State for issues covered by the occupational safety and health program in the State plan. Phase II will be a comprehensive evaluation of the total State program, drawing upon all information collected during Phase I.
(d) Phase III of the system begins after an affirmative determination has been made under section 18(e) of the Act. The continuing evaluation responsibility will be exercised under Phase III, and will provide data concerning the total operations of a State program to enable the Assistant Secretary to determine whether or not the plan approval should be continued or withdrawn.
(e) The State program performance monitoring system provides for, but is 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.
§ 1954.3 Exercise of Federal discretionary authority.
(a)(1) When a State plan is approved under section 18(c) of the Act, Federal authority for enforcement of standards continues in accordance with section 18(e) of the Act. That section prescribes a period of concurrent Federal-State enforcement authority which must last for at least three years, after which time the Assistant Secretary shall make a determination whether, based on actual operations, the State plan meets all the criteria set forth in section 18(c) of the Act and the implementing regulations in 29 CFR part 1902 and subpart A of 29 CFR part 1952. During this period of concurrent authority, the Assistant Secretary may, but shall not be required to, exercise his authority under sections 5(a)(2), 8, 9, 10, 13 and 17 of the Act with respect to standards promulgated under section 6 of the Act where the State has comparable standards. Accordingly, section 18(e) authorizes, but does not require, the Assistant Secretary to exercise his discretionary enforcement authority over all the issues covered by a State plan for the entire 18(e) period.
(2) Existing regulations at 29 CFR part 1902 set forth factors to be considered in determining how Federal enforcement authority should be exercised. These factors include:
(i) Whether the plan is developmental or complete;
(ii) Results of evaluations conducted by the Assistant Secretary;
(iii) The State's schedule for meeting Federal standards; and
(iv) Any other relevant matters.
(29 CFR 1902.1(c)(2) and 1902.20(b)(1)(iii).
(3) Other relevant matters requiring consideration in the decision as to the level of Federal enforcement include:
(i) Coordinated utilization of Federal and State resources to provide effective worker protection throughout the Nation;
(ii) Necessity for clarifying the rights and responsibilities of employers and employees with respect to Federal and State authority;
(iii) Increasing responsibility for administration and enforcement by States under an approved plan for evaluation of their effectiveness; and
(iv) The need to react promptly to any failure of the States in providing effective enforcement of standards.
(b) Guidelines for determining the appropriate level of Federal enforcement. In light of the requirements of 29 CFR part 1902 as well as the factors mentioned in paragraph (a)(3) of this section, the following guidelines for the extent of the exercise of discretionary Federal authority have been determined to be reasonable and appropriate. When a State plan meets all of these guidelines it will be considered operational, and the State will conduct all enforcement activity including inspections in response to employee complaints, in all issues where the State is operational. Federal enforcement activity will be reduced accordingly and the emphasis will be placed on monitoring State activity in accordance with the provisions of this part.
(1) Enabling legislation. A State with an approved plan must have enacted enabling legislation substantially in conformance with the requirements of section 18(c) and 29 CFR part 1902 in order to be considered operational. This legislation must have been reviewed and approved under 29 CFR part 1902. States without such legislation, or where State legislation as enacted requires substantial amendments to meet the requirements of 29 CFR part 1902, will not be considered operational.
(2) Approved State standards. The State must have standards promulgated under State law which are identical to Federal standards; or have been found to be at least as effective as the comparable Federal standards; or have been reviewed by OSHA and found to provide overall protection equal to comparable Federal standards. Review of the effectiveness of State standards and their enforcement will be a continuing function of the evaluation process. Where State standards in an issue have not been promulgated by the State or have been promulgated and found not to provide overall protection equal to comparable Federal standards, the State will not be considered operational as to those issues.
(3) Personnel. The State must have a sufficient number of qualified personnel who are enforcing the standards in accordance with the State's enabling legislation. Where a State lacks the qualified personnel to enforce in a particular issue; e.g., Occupational Health, the State will not be considered operational as to that issue even though it has enabling legislation and standards.
(4) Review of enforcement actions. Provisions for review of State citations and penalties, including the appointment of the reviewing authority and the promulgation of implementing regulations, must be in effect.
(c)(1) Evaluation reports. One of the factors to consider in determining the level of Federal enforcement is the result of evaluations conducted under the monitoring system described in this part. While completion of an initial comprehensive evaluation of State operations is not generally a prerequisite for a determination that a State is operational under paragraph (b) of this section, such evaluations will be used in determining the Federal enforcement responsibility in certain circumstances.
(2) Where evaluations have been completed prior to the time a determination as to the operational status of a State plan is made, the results of those evaluations will be included in the determination.
(3) Where the results of one or more evaluations conducted during the operation of a State plan and prior to an 18(e) determination reveal that actual operations as to one or more aspects of the plan fail in a substantial manner to be at least as effective as the Federal program, and the State does not adequately resolve the deficiencies in accordance with subpart C of part 1953, the appropriate level of Federal enforcement activity shall be reinstated. An example of such deficiency would be a finding that State standards and their enforcement in an issue are not at least as effective as comparable Federal standards and their enforcement. Federal enforcement activity may also be reinstated where the Assistant Secretary determines that such action is necessary to assure occupational safety and health protection to employees.
(d)(1) Recognition of State procedures. In order to resolve potential conflicting responsibilities of employers and employees, Federal authority will be exercised in a manner designed to recognize the implementation of State procedures in accordance with approved plans in areas such as variances, informing employees of their rights and obligations, and recordkeeping and reporting requirements.
(i) Subject to pertinent findings of effectiveness under this part, Federal enforcement proceedings will not be initiated where an employer is in compliance with a State standard which has been found to be at least as effective as the comparable Federal standard, or with any temporary or permanent variance granted to such employer with regard to the employment or place of employment from such State standard, or any order or interim order in connection therewith, or any modification or extension thereof: Provided such variance action was taken under the terms and procedures required under § 1902.4(b)(2)(iv) of this chapter, and the employer has certified that he has not filed for such variance on the same set of facts with the Assistant Secretary.
(ii) Subject to pertinent findings of effectiveness under this part, and approval under part 1953 of this chapter, Federal enforcement proceedings will not be initiated where an employer has posted the approved State poster in accordance with the applicable provisions of an approved State plan and § 1902.9 of this chapter.
(iii) Subject to pertinent findings of effectiveness under this part, and approval under part 1953 of this chapter, Federal enforcement proceedings will not be initiated where an employer is in compliance with the recordkeeping and reporting requirements of an approved State plan as provided in § 1902.7 of this chapter.
(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; 80 FR 49908, Aug. 18, 2015]
Subpart B State Monitoring Reports and Visits to State Agencies
§ 1954.10 Reports from the States.
(a) In addition to any other reports required by the Assistant Secretary under sections 18(c)(8) and 18(f) of the Act and § 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.
§ 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)
§ 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.
§ 1954.21 Processing and investigating a complaint.
(a) Upon receipt of a complaint about State program administration, the Assistant Regional Director will acknowledge its receipt and may forward a copy of the complaint to the designee under the State plan and to such other person as may be necessary to complete the investigation. The complainant's name and the names of other complainants mentioned therein will be deleted from the complaint and the names shall not appear in any record published, released or made available.
(b) In conducting the investigation, the Assistant Regional Director may obtain such supporting information as is appropriate to the complaint. Sources for this additional information may include “spot-check” follow-up inspections of workplaces, review of the relevant State files, and discussion with members of the public, employers, employees and the State.
(c) On the basis of the information obtained through the investigation, the Assistant Regional Director shall advise the complainant of the investigation findings and in general terms, any corrective action that may result. A copy of such notification shall be sent to the State and it shall be considered part of the evaluation of the State plan.
(d) If the Assistant Regional Director determines that there are no reasonable grounds for an investigation to be made with respect to a complaint under this Subpart, he shall notify the complaining party in writing of such determination. Upon request of the complainant, or the State, the Assistant Regional Director, at his discretion, may hold an informal conference. After considering all written and oral views presented the Assistant Regional Director shall affirm, modify, or reverse his original determination and furnish the complainant with written notification of his decision and the reasons therefore. Where appropriate the State may also receive such notification.
§ 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 in § 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
Authority: Secs. 8 and 18, 84 Stat. 1608 (29 U.S.C. 657, 667); Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 40 FR 23467, May 30, 1975, unless otherwise noted.
Subpart A General
§ 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.
§ 1955.2 Definitions.
(a) As used in this part unless the context clearly requires otherwise:
(1) Act means the Occupational Safety and Health Act of 1970;
(2) Assistant Secretary means Assistant Secretary of Labor for Occupational Safety and Health;
(3) Commencement of a case under section 18(f) of the Act means, for the purpose of determining State jurisdiction following a final decision withdrawing approval of a plan, the issuance of a citation.
(4) Developmental step includes, but is not limited to, those items listed in the published developmental schedule, or any revisions thereto, for each plan. 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 to § 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; 80 FR 49908, Aug. 18, 2015]
§ 1955.3 General policy.
(a) The following circumstances shall be cause for initiation of proceedings under this part for withdrawal of approval of a State plan, or any portion thereof.
(1) Whenever the Assistant Secretary determines that under § 1902.2(b) of this chapter a State has not substantially completed the developmental steps of its plan at the end of three years from the date of commencement of operations, a withdrawal proceeding shall be instituted. Examples of a lack of substantial completion of developmental steps include but are not limited to the following:
(i) A failure to develop the necessary regulations and administrative guidelines for an “at least as effective” enforcement program;
(ii) Failure to promulgate all or a majority of the occupational safety and health standards in an issue covered by the plan; or
(iii) Failure to enact the required enabling legislation.
(2) Whenever the Assistant Secretary determines that there is no longer a reasonable expectation that a State plan will meet the criteria of § 1902.3 of this chapter involving the completion of developmental steps within the three year period immediately following commencement of operations, a withdrawal proceeding shall be instituted. Examples of a lack of reasonable expectation include but are not limited to the following:
(i) A failure to enact enabling legislation in the first two years following commencement of operations where the remaining developmental steps are dependent on the passage of enabling legislation and cannot be completed within one year; or
(ii) Repeal or substantial amendment of the enabling legislation by the State legislature so that the State program fails to meet the criteria in § 1902.3 of this chapter; or
(iii) Inability to complete the developmental steps within the indicated three year period.
(3) Whenever the Assistant Secretary determines that in the operation or administration of a State plan, or as a result of any modifications to a plan, there is a failure to comply substantially with any provision of the plan, including assurances contained in the plan, a withdrawal proceeding shall be instituted in a State which has received final approval under section 18(e) of the Act, and may be instituted in a State which has received initial approval under section 18(c) of the Act. Examples of a lack of substantial compliance include but are not limited to the following:
(i) Where a State over a period of time consistently fails to provide effective enforcement of standards;
(ii) Where the rights of employees are circumscribed in such a manner as to diminish the effectiveness of the program;
(iii) Where a State, without good cause, fails to continue to maintain its program in accordance with the appropriate changes in the Federal program;
(iv) Where a State fails to comply with the required assurances on a sufficient number of qualified personnel and/or adequate resources for administration and enforcement of the program; or
(v) Where, on the basis of actual operations, the Assistant Secretary determines that the criteria in section 18(c) of the Act are not being met, that the period of concurrent authority under section 18(e) of the Act should not be extended, and that final approval under section 18(e) of the Act should not be given.
(b) A State may, at any time both before or after a determination under section 18(e) of the Act, voluntarily withdraw its plan, or any portion thereof, by notifying the Assistant Secretary in writing setting forth the reasons for such withdrawal. Such notification shall be accompanied by a letter terminating the application for related grants authorized under section 23(g) of the Act in accordance with 29 CFR 1951.25(d). Upon receipt of the State notice the Assistant Secretary shall cause to be published in the Federal Register a notice of withdrawal of approval of the State plan or portion thereof (see Montana notice 39 FR 2361, June 27, 1974).
(c) Approval of a portion of a plan may be withdrawn under any of the paragraphs in this section when it is determined that that portion is reasonably separable from the remainder of the plan in a manner consistent with the provisions in § 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]
§ 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).
§ 1955.5 Petitions for withdrawal of approval.
(a) At any time following the initial approval of a State plan under section 18(c) of the Act, any interested person may petition the Assistant Secretary in writing to initiate proceedings for withdrawal of approval of the plan under section 18(f) of the Act and this part. The petition shall contain a statement of the grounds for initiating a withdrawal proceeding, including facts to support the petition.
(b)(1) The Assistant Secretary may request the petitioner for additional facts and may take such other actions as are considered appropriate such as:
(i) Publishing the petition for public comment;
(ii) Holding informal discussion on the issues raised by the petition with the State and other persons affected; or
(iii) Holding an informal hearing in accordance with § 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
§ 1955.10 Publication of notice of formal proceeding.
(a) The Assistant Secretary, prior to any notice of a formal proceeding under this subpart, shall by letter, provide the State with an opportunity to show cause within 45 days why a proceeding should not be instituted for withdrawal of approval of a plan or any portion thereof. When a State fails to show cause why a formal proceeding for withdrawal of approval should not be instituted, the State shall be deemed to have waived its right to a formal proceeding under paragraph (b) of this section and the Assistant Secretary shall cause to be published in the Federal Register a notice of withdrawal of approval of the State plan.
(b)(1) Whenever the Assistant Secretary, on the basis of a petition under § 1955.5 or on his own initiative, determines that approval of a State plan or any portion thereof should be withdrawn, and the State has not waived its right under § 1955.3(b) or paragraph (a) of this section to a formal proceeding, he shall publish a notice of proposed withdrawal in the Federal Register as set out in § 1955.11 and cause such notice, in the form of a complaint, to be served on the State in accordance with § 1955.15.
(2) Not later than 5 days following the publication of the notice in the Federal Register, the State agency shall publish, or cause to be published, within the State reasonable notice containing a summary of the information in the Federal notice, as well as the location or locations where a copy of the full notice is available for inspection and public copying.
(3) Two copies of such notice shall be served on the Assistant Secretary in accordance with § 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 § 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.
§ 1955.11 Contents of notice of formal proceeding.
(a) A notice of a formal proceeding published under § 1955.10 shall include:
(1) A statement on the nature of the proceeding and addresses for filing all papers;
(2) The legal authority under which the proceeding is to be held;
(3) A description of the issues and the grounds for the Assistant Secretary's proposed withdrawal of approval;
(4) A specified period, generally not less than 30 days after publication of the notice in the Federal Register, for the State to submit a response to the statement of issues in the notice;
(5) A provision for designation of an administrative law judge under 5 U.S.C. 3105 to preside over the proceeding.
(b) A copy of the notice of the proceeding stating the basis for the Assistant Secretary's determination that approval of the plan, or any portion thereof, should be withdrawn shall be referred to the administrative law judge.
§ 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 with § 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.
§ 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.
§ 1955.14 Ex parte communications.
(a) Except to the extent required for the disposition of ex parte matters, the administrative law judge shall not consult any interested person or party or their representative on any fact in issue or on the merits of any matter before him except upon notice and opportunity for all parties to participate.
(b)(1) Written or oral communications from interested persons outside the Department of Labor involving any substantive or procedural issues in a proceeding directed to the administrative law judge, the Secretary of Labor, the Assistant Secretary, the Associate Assistant Secretary for Regional Programs, the Solicitor of Labor, or the Associate Solicitor for Occupational Safety and Health, or their staffs shall be deemed ex parte communications and are not to be considered part of any record or the basis for any official decision, unless the communication is made by motion to the administrative law judge and served upon all the parties.
(2) To facilitate implementation of this requirement, the above-mentioned offices shall keep a log of such communications which shall be made available to the public and which may, by motion, be entered into the record.
(c) No employee or agent of the Department of Labor engaged in the investigation or presentation of the withdrawal proceeding governed by this part shall participate or advise in the initial or final decision, except as a witness or counsel in the proceeding.
§ 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.
§ 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.
§ 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 § 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.
§ 1955.18 Provision for written comments.
Any person who is not a party may submit a written statement of position with 4 copies to either the Assistant Secretary or the State at any time during the proceeding which statement shall be made available to all parties and may be introduced into evidence by a party. Mere statements of approval or opposition to the plan without any documentary support shall not be considered as falling within this provision.
Subpart C Consent Findings and Summary Decisions
§ 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.
§ 1955.21 Motion for a summary decision.
(a)(1) Any party may move, with or without supporting affidavits, for a summary decision on all or any part of the proceeding. Any other party may, within 10 days after service of the motion, serve opposing affidavits or file a cross motion for summary decision. The administrative law judge may, in his discretion, set the matter for argument and call for submission of briefs. The filing of any documents under this section shall be with the administrative law judge and copies of any such document shall be served on all the parties.
(2) The administrative law judge may grant such motion if the pleadings, affidavits, material obtained by discovery or otherwise obtained, or matters officially noticed, show that there is no genuine issue as to any material fact and that a party is entitled to summary decision. Affidavits shall set forth such facts as would be admissible in evidence in the hearing and shall show affirmatively that the affiant is competent to testify to the matters stated therein. When a motion for summary decision is made and supported as provided in paragraph (a)(1) of this section, the party opposing the motion may not rest upon the mere allegations or denials of his pleading; his response must set forth specific facts showing that there is a genuine issue of fact for the hearing.
(3) Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the administrative law judge may refuse the application for summary decision or may order a continuance to permit affidavits to be obtained, or depositions to be taken, or discovery to be had, or may make such other order as is just.
(b)(1) The denial of all or any part of a motion or cross motion for summary decision by the administrative law judge shall not be subject to interlocutory appeal to the Secretary unless the administrative law judge certifies in writing:
(i) That the ruling involves an important question of law or policy as to which there is substantial ground for difference of opinion; and
(ii) That an immediate appeal from the ruling may materially advance the ultimate termination of the proceeding.
(2) The allowance of such an interlocutory appeal shall not stay the proceeding before the administrative law judge unless the Secretary so orders.
§ 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
§ 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.
§ 1955.31 Preliminary conference.
(a) Upon his own motion, or the motion of a party, the administrative law judge may direct the parties to meet with him for a conference or conferences to consider:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to documents for purposes of clarification, simplification, or limitation;
(3) Stipulations of fact, and of the authenticity, of the contents of documents;
(4) Limitations on the number of parties and of witnesses;
(5) Scope of participation of petitioners under § 1955.17 of this part;
(6) Establishment of dates for discovery; and
(7) Such other matters as may tend to expedite the disposition of the proceedings, and to assure a just conclusion thereof.
(b) The administrative law judge shall enter an order which recites the action taken at the conference, the amendments allowed to any documents which have been filed, and the agreements made between the parties as to any of the matters considered. Such order shall limit the issues for hearing to those not disposed of by admissions or agreements, and control the subsequent course of the hearing, unless modified at the hearing to prevent manifest injustice.
§ 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 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 § 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.
§ 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.
§ 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
§ 1955.40 Hearings.
(a)(1) Except as may be ordered otherwise by the administrative law judge, the Department of Labor shall proceed first at the hearing.
(2) The Department of Labor shall have the burden of proof to sustain the contentions alleged in the notice of proposed withdrawal, published under § 1955.10(b)(1) but the proponent of any factual proposition shall be required to sustain the burden of proof with respect thereto.
(b)(1) A party shall be entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Any oral or documentary evidence may be received, but the administrative law judge shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.
(2) The testimony of a witness shall be upon oath or affirmation administered by the administrative law judge.
(3) If a party objects to the admission or rejection of any evidence, or to the limitation of the scope of any examination or cross-examination, or to the 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 1955.46 Finality for purposes of judicial review.
Only a final decision by the Secretary under § 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.
§ 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
Authority: Section 18 (29 U.S.C. 667), 29 CFR parts 1902 and 1955, and Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Source: 41 FR 12429, Mar. 4, 1977, unless otherwise noted.
Subpart A General
§ 1956.1 Purpose and scope.
(a) This part sets forth procedures and requirements for approval, continued evaluation, and operation of State plans submitted under section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667) (hereinafter called the Act) for the development and enforcement of State standards applicable to State and local government employees in States without approved private employee plans. Although section 2(b) of the Act sets forth the policy of assuring every working man and woman safe and healthful working conditions, State and local government agencies are excluded from the definition of “employer” in section 3(5). Only under section 18 of the Act are such public employees ensured protection under the provisions of an approved State plan. Where no such plan is in effect with regard to private employees, State and local government employees have not heretofore been assured any protections under the Act. Section 18(b), however, permits States to submit plans with respect to any occupational safety and health issue with respect to which a Federal standard has been promulgated under section 6 of the Act. Under § 1902.2(c) of this chapter, an issue is defined as “any * * * industrial, occupational, or hazard grouping that is found to be administratively practicable and * * * not in conflict with the purposes of the Act.” Since Federal standards are in effect with regard to hazards found in public employment, a State plan covering this occupational category meets the definition of section 18 and the regulations. It is the purpose of this part to assure the availability of the protections of the Act to public employees, where no State plan covering private employees is in effect, by adapting the requirements and procedures applicable to State plans covering private employees to the situation where State coverage under section 18(b) is proposed for public employees only.
(b) In adopting these requirements and procedures, consideration should be given to differences between public and private employment. For instance, a system of monetary penalties applicable to violations of public employers may not in all cases be necessarily the most appropriate method of achieving compliance. Further, the impact of the lack of Federal enforcement authority application to public employers requires certain adjustments of private employer plan procedures in adapting them to plans covering only public employees in a State.
§ 1956.2 General policies.
(a) Policy. The Assistant Secretary of Labor for Occupational Safety and Health (hereinafter referred to as the Assistant Secretary) will approve a State plan which provides an occupational safety and health program for the protection of State and local government employees (hereinafter State and local government employees are referred to as public employees) that in his judgment meets or will meet the criteria set forth in § 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 in § 1956.11.
(b) Developmental plan. (1) A State plan for an occupational safety and health program for public employees may be approved although, upon submission, it does ot fully meet the criteria set forth in § 1956.10, if it includes satisfactory assurances by the State that it will take the necessary steps to bring the program into conformity with these criteria within the 3-year period immediately following the commencement of the plan's operation. In such a case, the plan shall include the specific actions the State proposes to take, and a time schedule for their accomplishment which is not to exceed 3 years, at the end of which the plan will meet the criteria in § 1956.10. A developmental plan shall include the dates within which intermediate and final action will be accomplished. Although administrative actions, such as stages for application of standards and enforcement, related staffing, development of regulations may be developmental, to be considered for approval, a State plan for public employees must contain at time of plan approval basic State legislative and/or executive authority under which these actions will be taken. If necessary program changes require further implementing executive action by the Governor or supplementary legislative action by the State, a copy of the appropriate order, or the bill or a draft of legislation that will be or has been proposed for enactment shall be submitted, accompanied by:
(i) A statement of the Governor's support of the legislation or order and
(ii) A statement of legal opinion that the proposed legislation or executive action will meet the requirements of the Act and this part in a manner consistent with the State's constitution and laws.
(2) On the basis of the State's submission, the Assistant Secretary will approve the plan if he finds that there is a reasonable expectation that the plan for public employees will meet the criteria in § 1956.10 within the indicated 3 year period. In such a case, the Assistant Secretary shall not make a determination that a State is fully applying the criteria in § 1956.10 until the State has completed all the developmental steps specified in the plan which are designed to make it at least as effective as the Federal program for the private sector, and the Assistant Secretary has had at least 1 year to evaluate the plan on the basis of actual operations following the completion of all developmental steps. If at the end of 3 years from the date of commencement of the plan's operation, the State is found by the Assistant Secretary, after affording the State notice and an opportunity for a hearing, not to have substantially completed the developmental steps of the plan, he shall withdraw the approval of the plan.
(3) Where a State plan approved under part 1902 of this chapter is discontinued, except for its public employee component, or becomes approved after approval of a plan under this part, the developmental period applicable to the public employee component of the earlier plan will be controlling with regard to any such public employee coverage. For good cause, a State may demonstrate that an additional period of time is required to make adjustments on account of the transfer from one type of plan to another.
(c) Scope of a State plan for public employees. (1) A State plan for public employees must provide for the coverage of both State and local government employees to the full extent permitted by the State laws and constitution. The qualification “to the extent permitted by its law” means only that where a State may not constitutionally regulate occupational safety and health conditions in certain political subdivisions, the plan may exclude such political subdivision employees from coverage.
(2) The State shall not exclude any occupational, industrial, or hazard grouping from coverage under its plan unless the Assistant Secretary finds that the State has shown there is no necessity for such coverage.
Subpart B Criteria
§ 1956.10 Specific criteria.
(a) General. A State plan for public employees must meet the specific criteria set forth in this section.
(b) Designation of State agency. (1) The plan shall designate a State agency or agencies which will be responsible for administering the plan throughout the State.
(2) The plan shall also describe the authority and responsibilities vested in such agency or agencies. The plan shall contain assurances that any other responsibilities of the designated agency shall not detract significantly from the resources and priorities assigned to the administration of the plan.
(3) A State agency or agencies must be designated with overall responsibility for administering the plan throughout the State. Subject to this overall responsibility, enforcement of standards may be delegated to an appropriate agency having occupational safety and health responsibilities or expertise throughout the State. Included in this overall responsibility are the requirements that the designated agency have, or assure the provision of necessary qualified personnel, legal authority necessary for the enforcement of the standards and make reports as required by the Assistant Secretary.
(c) Standards. The State plan for public employees shall include, or provide for the development or adoption of, standards which are or will be at least as effective as those promulgated under section 6 of the Act. The plan shall also contain assurances that the State will continue to develop or adopt such standards. Indices of the effectiveness of standards and procedures for the development or adoption of standards against which the Assistant Secretary will measure the plan in determining whether it is approvable are set forth in § 1956.11(b).
(d) Enforcement. (1) The State plan for public employees shall provide a program for the enforcement of the State standards which is, or will be, at least as effective in assuring safe and healthful employment and places of employment as the standards promulgated by section 6 of the Act; and provide assurances that the State's enforcement program for public employees will continue to be at least as effective in this regard as the Federal program in the private sector. Indices of the effectiveness of a State's enforcement plan against which the Assistant Secretary will measure the plan in determining whether it is approvable are set forth in § 1956.11(c).
(2) The plan shall require State and local government agencies to comply with all applicable State occupational safety and health standards included in the plan and all applicable rules issued thereunder, and employees to comply with all standards, rules, and orders applicable to their conduct.
(e) Right of entry and inspection. The plan shall contain adequate assurances that inspectors will have a right to enter covered workplaces which is at least as effective as that provided in section 8 of the Act for the purpose of inspection or monitoring. Where such entry is refused, the State agency or agencies shall have the authority through appropriate legal process to compel such entry.
(f) Prohibition against advance notice. The State plan shall contain a prohibition against advance notice of inspections. Any exceptions must be expressly authorized by the head of the designated agency or agencies or his representative and such exceptions may be no broader than those authorized under the Act and the rules published in part 1903 of this chapter relating to advance notice.
(g) Personnel. The plan shall provide assurances that the designated agency or agencies and all government agencies to which authority has been delegated, have, or will have, a sufficient number of adequately trained and qualified personnel necessary for the enforcement of standards. For this purpose, qualified personnel means persons employed on a merit basis, including all persons engaged in the development of standards and the administration of the plan. Subject to the results of evaluations, conformity with the Standards for a Merit System of Personnel Administration, 45 CFR part 70, 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.
§ 1956.11 Indices of effectiveness.
(a) General. In order to satisfy the requirements of effectiveness under § 1956.10 (c)(1) and (d)(1), the State plan for public employees shall:
(1) Establish the same standards, procedures, criteria, and rules as have been established by the Assistant Secretary under the act; or
(2) Establish alternative standards, procedures, criteria, and rules which will be measured against each of the indices of effectiveness in paragraphs (b) and (c) of this section to determine whether the alternatives are at least as effective as the Federal program for private employees, where applicable, with respect to the subject of each index. For each index the State must demonstrate by the presentation of factual or other appropriate information that its plan for public employees will, to the extent practicable, be at least as effective as the Federal program for private employees.
(b) Standards. (1) The indices for measurement of a State plan for public employees with regard to standards follow in paragraph (b)(2) of this section. The Assistant Secretary will determine whether the State plan for public employees satisfies the requirements of effectiveness with regard to each index as provided in paragraph (a) of this section.
(2) The Assistant Secretary will determine whether the State plan for public employees:
(i) Provides for State standards which are or will be at least as effective as the standards promulgated under section 6 of the Act. In the case of any State standards dealing with toxic materials or harmful physical agents, they should adequately assure, to the extent feasible, that no employee will suffer material impairment of health or functional capacity, even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life, by such means as, in the development and promulgation of standards, obtaining the best available evidence through research, demonstration, experiments, and experience under this and any other safety and health laws.
(ii) Provides an adequate method to assure that its standards will continue to be at least as effective as Federal standards, including Federal standards which become effective subsequent to any approval of the plan.
(iii) Provides a procedure for the development and promulgation of standards which allows for the consideration of pertinent factual information and affords interested persons, including employees, employers and the public, an opportunity to participate in such processes, by such means as establishing procedures for consideration of expert technical knowledge, and providing interested persons, including employers, employees, recognized standards-producing organizations, and the public, an opportunity to submit information requesting the development or promulgation of new standards or the modification or revocation of existing standards and to participate in any hearings. This index may also be satisfied by such means as the adoption of Federal standards, in which case the procedures at the Federal level before adoption of a standard under section 6 may be considered to meet the conditions of this index.
(iv) Provides authority for the granting of variances from State standards upon application of a public employer or employers which correspond to variances authorized under the Act, and for consideration of the views of interested parties, by such means as giving affected employees notice of each application and an opportunity to request and participate in hearings or other appropriate proceedings relating to applications for variances.
(v) Provides for prompt and effective standards setting actions for the protection of employees against new and unforeseen hazards, by such means as the authority to promulgate emergency temporary standards. Such authority is particularly appropriate for those situations where public employees are exposed to unique hazards for which existing standards do not provide adequate protection.
(vi) Provides that State standards contain appropriate provision for the furnishing to employees of information regarding hazards in the workplace, including information about suitable precautions, relevant symptoms, and emergency treatment in case of exposure; by such means as labelling, posting, and, where appropriate, results of medical examinations, being furnished only to appropriate State officials and, if the employee so requests, to his physician.
(vii) Provides that State standards where appropriate, contain specific provision for the protection of employees from exposure to hazards, by such means as containing appropriate provision for the use of suitable protective equipment and for control or technological procedures with respect to such hazards, including monitoring or measuring such exposure.
(c) Enforcement. (1) The indices for measurement of a State plan for public employees with regard to enforcement follow in paragraph (c)(2) of this section. The Assistant Secretary will determine whether the plan satisfies the requirements of effectiveness with regard to each index as provided in paragraph (a) of this section.
(2) The Assistant Secretary will determine whether the State plan for public employees:
(i) Provides for inspection of covered workplaces in the State by the designated agency or agencies or any other agency which is duly delegated authority, including inspections in response to complaints where there are reasonable grounds to believe a hazard exists, in order to assure, so far as possible, safe and healthful working conditions for covered employees by such means as providing for inspections under conditions such as those provided in section 8 of the Act.
(ii) Provides an opportunity for employees and their representative, before, during, and after inspections, to bring possible violations to the attention of the State or local agency with enforcement responsibility in order to aid inspections, by such means as affording a representative of the employer, and a representative authorized by employees, an opportunity to accompany the inspector during the physical inspection of the workplace, or where there is no authorized representative, provide for consultation by the inspector with a reasonable number of employees.
(iii) Provides for notification of employees, or their representatives, when the State decides not to take compliance action as a result of violations alleged by such employees or their representative, and further provides for informal review of such decisions, by such means as written notification of decisions not to take compliance action and the reasons therefor, and procedures for informal review of such decisions and written statements of the disposition of such review.
(iv) Provides that public employees be informed of their protections and obligations under the Act, including the provisions of applicable standards, by such means as the posting of notices or other appropriate sources of information.
(v) Provides necessary and appropriate protection to an employee against discharge or discrimination in terms and conditions of employment because he has filed a complaint, testified, or otherwise acted to exercise rights under the State program for public employees for himself or others, by such means as providing for appropriate sanctions against the State or local agency for such actions, and by providing for the withholding, upon request, of the names of complainants from the employer.
(vi) Provides that public employees have access to information on their exposure to toxic materials or harmful physical agents and receive prompt information when they have been or are being exposed to such materials or agents in concentrations or at levels in excess of those prescribed by the applicable safety and health standards, by such means as the observation by employees of the monitoring or measuring of such materials or agents, employee access to the records of such monitoring or measuring, prompt notification by a public employer to any employee who has been or is being exposed to such agents or materials in excess of the applicable standards, and information to such employee of corrective action being taken.
(vii) Provides procedures for the prompt restraint or elimination of any conditions or practices in covered places of employment which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided for in the plan, by such means as immediately informing employees and employers of such hazards, taking steps to obtain immediate abatement of the hazard by the employer, and, where appropriate, authority to initiate necessary legal proceedings to require such abatement.
(viii) Provides that the designated agency (or agencies) and any agency to which it has duly delegated authority, will have the necessary legal authority for the enforcement of standards by such means as provisions for appropriate compulsory process to obtain necessary evidence or testimony in connection with inspection and enforcement proceedings.
(ix) Provides for prompt notice to public employers and employees when an alleged violation of standards has occurred, including the proposed abatement requirements, by such means as the issuance of a written citation to the public employer and posting of the citation at or near the site of the violation; further provides for advising the public employer of any proposed sanctions, wherever appropriate, by such means as a notice to the employer by certified mail within a reasonable time of any proposed sanctions.
(x) Provides effective sanctions against public employers who violate State standards and orders, or applicable public agency standards, such as those prescribed in the Act. In lieu of monetary penalties a complex of enforcement tools and rights, such as various forms of equitable remedies available to the designee including administrative orders; availability of employee rights such as right to contest citations, and provisions for strengthened employee participation in enforcement may be demonstrated to be as effective as monetary penalties in achieving complianace in public employment. In evaluating the effectiveness of an alternate system for compelling compliance, elements of the enforcement educational program such as a system of agency self inspection procedures, and in-house training programs, and employee complaint procedures may be taken into consideration.
(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
§ 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 § 1902.20(b)(1)(iii) would not be included in decisions of approval.
§ 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.
§ 1956.22 Procedures for evaluation and monitoring.
The procedures contained in part 1954 of this chapter shall be applicable to evaluation and monitoring of State plans approved under this part, except that the decision to relinquish Federal enforcement authority under section 18(e) of the Act is not relevant to Phase II and III monitoring under § 1954.2 and the guidelines of exercise of Federal discretionary enforcement authority provided in § 1954.3 are not applicable to plans approved under this part. The factors listed in § 1902.37(b) of this chapter, except those specified in § 1902.37(b)(11) and (12), which would be adapted to the State compliance program, provide the basis for monitoring.
§ 1956.23 Procedures for certification of completion of development and determination on application of criteria.
The procedures contained in §§ 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 §§ 1902.38, 1902.39, 1902.40 and 1902.41, that on the basis of actual operations, the criteria set forth in §§ 1956.10 and 1956.11 of this part are being applied under the plan. The factors listed in § 1902.37(b) of this chapter, except those specified in § 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.
§ 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 under § 1955.2(a)(10); and, as Federal standards and enforcement do not apply to State and local government employers, withdrawal of approval of a plan approved under this part 1956 could not bring about application of the provisions of the Federal Act to such employers as set out in § 1955.4 of this chapter.
Subpart D General Provisions and Conditions [Reserved]
PART 1960 BASIC PROGRAM ELEMENTS FOR FEDERAL EMPLOYEE OCCUPATIONAL SAFETY AND HEALTH PROGRAMS AND RELATED MATTERS
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
§ 1960.1 Purpose and scope.
(a) Section 19 of the Occupational Safety and Health Act (the Act) contains special provisions to assure safe and healthful working conditions for Federal employees. Under that section, it is the responsibility of the head of each Federal agency to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with the standards promulgated under section 6 of the Act. The Secretary of Labor (the Secretary), under section 19, is to report to the President certain evaluations and recommendations with respect to the programs of the various agencies, and the duties which section 24 of the Act imposes on the Secretary of Labor necessarily extend to the collection, compilation and analysis of occupational safety and health statistics from the Federal Government. The role of the General Services Administration in this area stems from its duties as the Government's principal landlord and from its specific safety and health responsibilities under 41 CFR part 101, subchapter D, Federal Property Management Regulations.
(b) Executive Order 12196, Occupational Safety and Health Programs for Federal Employees, issued February 26, 1980, prescribes additional responsibilities for the heads of agencies, the Secretary, and the General Services Administrator. Among other duties, the Secretary is required to issue basic program elements in accordance with which the heads of agencies shall operate their safety and health programs. The purpose of this part is to issue these basic program elements. Although agency heads are required to operate a program in accordance with the basic program elements, those elements contain numerous provisions which, by their terms, permit agency heads the flexibility necessary to implement their programs in a manner 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]
§ 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 of 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 does not include the United States Postal Service. By agreement between the Secretary of Labor and the head of an agency of the Legislative or Judicial Branches of the Government, these regulations may be applicable to such agencies.
(c) The term agency liaison means an agency person appointed with full authority and reponsibility to represent the occupant agency management with the official in charge of a facility or installation such as a GSA Building Manager.
(d) The term building manager means the person who manages one or several buildings under the authority of a Federal agency. For example, a building manager may be the GSA person who manages building(s) for GSA.
(e) As used in Executive Order 12196, the term consultation with representatives of the employees thereof shall include such consultation, conference, or negotiation with representatives of agency employees as is consistent with the Federal Service Labor Management Relations Statute (5 U.S.C. 71), or collective bargaining or other labor-management arrangements. As used in this part, the term representative of employees shall be interpreted with due regard for any obligation imposed by the aforementioned statute and any other labor-management arrangement that may cover the employees involved.
(f) The term Designated Agency Safety and Health Official means the individual who is responsible for the management of the safety and health program within an agency, and is so designated or appointed by the head of the agency pursuant to § 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 × 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 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; 78 FR 47190, Aug. 5, 2013]
Subpart B Administration
§ 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 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.
§ 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 all relevant Office of Management and Budget regulations and 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.
[45 FR 69798, Oct. 21, 1980, as amended at 78 FR 47190, Aug. 5, 2013]
§ 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.
§ 1960.9 Supervisory responsibilities.
Employees who exercise supervisory functions shall, to the extent of their authority, furnish employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. They shall also comply with the occupational safety and health standards applicable to their agency and with all rules, regulations, and orders issued by the head of the agency with respect to the agency occupational safety and health program.
§ 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.
§ 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.
§ 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.
Subpart C Standards
§ 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 threshold limit values and may require more frequent monitoring of exposures without recourse to the approval procedures for alternate standards described in § 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.
§ 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.
§ 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.
§ 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 § 1960.17 or § 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
§ 1960.25 Qualifications of safety and health inspectors and agency inspections.
(a) Executive Order 12196 requires that each agency utilize as inspectors “personnel with equipment and competence to recognize hazards.” Inspections shall be conducted by inspectors qualified to recognize and evaluate hazards of the working environment and to suggest general abatement procedures. Safety and health specialists as defined in § 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.
§ 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 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.
(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]
§ 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.
§ 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 as soon as they are identified, the existence of a formal channel of communication shall not preclude immediate corrective action by an employee's supervisor in response to oral reports of unsafe or unhealthful working conditions where such action is possible. Nor should an employee be required to await the outcome of such an oral report before filing a written report pursuant to the provisions of this section.
(c) Any employee or representative of employees, who believes that an unsafe or unhealthful working condition exists in any workplace where such employee is employed, shall have the right and is encouraged to make a report of the unsafe or unhealthful working condition to an appropriate agency safety and health official and request an inspection of such workplace for this purpose. The report shall be reduced to writing either by the individual submitting the report or, in the case of an oral notification, by the above official or other person designated to receive the reports in the workplace. Any such report shall set forth the grounds for the report and shall contain the name of the employee or representative of employees. Upon the request of the individual making such report, no person shall disclose the name of the individual making the report or the names of individual employees referred to in the report, to anyone other than authorized representatives of the Secretary. In the case of imminent danger situations, employees shall make reports by the most expeditious means available.
(d) Reports received by the agency. (1) Each report of an existing or potential unsafe or unhealthful working condition should be recorded on a log maintained at the establishment. If an agency finds it inappropriate to maintain a log of written reports at the establishment level, it may avail itself of procedures set forth in § 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 the agency for handling in accordance with procedures outlined in § 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 § 1960.28(d)(3). When the Secretary determines not to make an inspection, the report shall be forwarded to the agency for handling in accordance with procedures outlined in § 1960.28(d). A copy of the response to the originator shall be sent to the Secretary.
§ 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]
§ 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 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.
(f) The procedures OSHA will use to verify Federal agency abatement are included in the private sector guidelines at 29 CFR 1903.19.
[45 FR 69798, Oct. 21, 1980, as amended at 78 FR 47190, Aug. 5, 2013]
§ 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
§ 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 reduce or eliminate, whenever possible, any hazardous exposure to the occupant agency's employees;
(4) Accompany, upon request, the Secretary or the Secretary's designee on any inspection or investigation of a facility subject to the authority of the General Services Administration. Requests made for this purpose shall, whenever possible, be made at the GSA regional level in order to facilitate prompt assistance;
(5) Investigate, upon an official agency request, reports of unsafe or unhealthful conditions within the scope of GSA's responsibility. Such investigation, when requiring an on-site inspection, shall be completed within 24 hours for imminent danger situations, within three working days for potentially serious conditions, and within 20 working days for other safety and health risk conditions;
(6) Abate unsafe or unhealthful conditions disclosed by reports, investigation or inspection within 30 calendar days or submit to the occupant agency's designated liaison official an abatement plan. Such abatement plan shall give priority to the allocation of resources to bring about prompt abatement of the conditions. (GSA shall publish procedures for abatement of hazards in the Federal Property Management Regulations—41 CFR part 101);
(7) Establish an occupancy permit program which will regulate the types of activities and occupancies in facilities in order to avoid incompatible groupings, e.g., chemical or biological laboratories in office space. GSA shall seek to consolidate Federal laboratory operations in facilities designed for such purposes;
(8) Ensure, insofar as possible, that agency safety and health problems still outstanding are resolved, or otherwise answered by acceptable alternatives prior to renegotiation of leases; and
(9) Ensure that GSA or other Federal lessor agencies' building managers maintain a log of reports of unsafe or unhealthful conditions submitted by tenants to include: date of receipt of report, action taken, and final resolution.
(b) Product safety. Agencies such as GSA, DOD, and others which procure and provide supplies, equipment, devices, and material for their own use or use by other agencies, except for the design of uniquely military products as set forth in § 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.
(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.
§ 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
§ 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.
§ 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.
§ 1960.38 Committee formation.
(a) Upon forming such committees, heads of agencies shall submit information to the Secretary concerning the existence, location, and coverage, in terms of establishments and population, of such committees, certifying to the Secretary that such committees meet the requirements of this subpart. The information submitted should include the name and telephone numbers of the chairperson of each committee, and should be updated annually as part of the annual report required by § 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]
§ 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.
§ 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.
§ 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
§ 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.
§ 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
§ 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.
§ 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.
(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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 1960.60 Training assistance.
(a) Agency heads may seek training assistance from the Secretary of Labor, the National Institute for Occupational Safety and Health and other appropriate sources.
(b) After the effective date of Executive Order 12196, the Secretary shall, upon request and with reimbursement, conduct orientation for Designated Agency Safety and Health Officials and/or their designees which will enable them to manage the occupational safety and health programs of their agencies. Such orientation shall include coverage of section 19 of the Act, Executive Order 12196, and the requirements of this part.
(c) Upon request and with reimbursement, the Department of Labor shall provide each agency with training materials to assist in fulfilling the training needs of this subpart, including resident and field training courses designed to meet selected training needs of agency safety and health specialists, safety and health inspectors, and collateral duty safety and health personnel. These materials and courses in no way reduce each agency's responsibility to provide whatever specialized training is required by the unique characteristics of its work.
(d) In cooperation with OPM, the Secretary will develop guidelines and/or provide materials for the safety and health training programs for high-level managers, supervisors, members of committees, and employee representatives.
Subpart I Recordkeeping and Reporting Requirements
Source: 69 FR 68804, Nov. 26, 2004, unless otherwise noted.
§ 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 to § 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 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.
(f) Retention and access of employee exposure and medical records shall be in accordance with 29 CFR 1910.1020.
[69 FR 68804, Nov. 26, 2004, as amended at 78 FR 47190, Aug. 5, 2013]
§ 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 to § 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 under § 1904.32(b)(4).
§ 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 to § 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.
§ 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.
§ 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 to § 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.
§ 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 May 1 of each year a report describing the agency's occupational safety and health program of the previous calendar year and objectives for the current fiscal year. The report shall include a summary of the agency's self-evaluation finding as required by § 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 January 1 of each year a summary report of the status of the occupational safety and health of Federal employees based on agency reports, evaluations of individual agency progress and problems in correcting unsafe or unhealthful working conditions, and recommendations for improving their performance.
[69 FR 68804, Nov. 26, 2004, as amended at 78 FR 47190, Aug. 5, 2013]
§ 1960.72 Reporting Federal Agency Injury and Illness Information.
(a) Each agency must submit to the Secretary by May 1 of each year all information included on the agency's previous calendar year's occupational injury and illness recordkeeping forms. The information submitted must include all data entered on the OSHA Form 300, Log of Work-Related Injuries and Illnesses (or equivalent); OSHA Form 301, Injury and Illness Incident Report (or equivalent); and OSHA Form 300A, Summary of Work-Related Injuries and Illnesses (or equivalent).
(b) The Secretary must provide each agency by January 15 of each year with the format and guidelines for electronically submitting the agency's occupational injury and illness recordkeeping information.
(c) Each agency must submit to the Secretary by May 1, 2014, a list of all establishments. The list must include information about the department/agency affiliation, NAICS code, a street address, city, state and zip code. Federal agencies are also responsible for updating their list of establishments by May 1 of each year when they submit the annual report to the Secretary required by § 1960.71(a)(1).
[78 FR 47190, Aug. 5, 2013]
§ 1960.73 Federal agency injury and illness recordkeeping forms.
(a) When filling out the OSHA Form 300 or equivalent, each agency must enter the employee's OPM job series number and job title in Column (c).
(b) When recording the injuries and illnesses of uncompensated volunteers, each agency must enter a “V” before the OPM job series number in Column (c) of the OSH Form 300 log or equivalent.
(c) Each agency must calculate the total number of hours worked by uncompensated volunteers.
[78 FR 47191, Aug. 5, 2013]
§ 1960.74 [Reserved]
Subpart J Evaluation of Federal Occupational Safety and Health Programs
§ 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.
§ 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.
§ 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 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
§ 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.
§ 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.
§ 1960.86 Establishing councils.
(a) Those field councils established and in operation prior to the effective date of this subpart will continue to function without interruption provided they are operating in accordance with the provision of their charter and this subpart.
(b) The Secretary may establish a council in any area where ten or more Federal establishments totaling 300 or more employees are located within an area having a radius of 50 miles, and there is substantial agreement among the agencies that such a council would be useful. In any such area where there is no council already established, a field representative of the Secretary may, upon his own initiative or at the request of any establishment within the area, contact representatives of all establishments within the area and encourage the organization of a field council.
(c) After a new council has been organized, officers elected, and articles of organization drafted and accepted by the council membership, a formal request for recognition as a field council shall be sent to the Secretary. Upon approval of the Articles of Organization, a charter will be issued.
(d) At the first general meeting of the council, committees should be appointed and the cooperation of all participants should be solicited to aid the functioning of committees and the successful accomplishment of the council's objectives.
§ 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.
§ 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, 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.
§ 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.
§ 1960.90 Operating procedures.
(a) The Executive Committee of each council shall meet at least 45 days before the beginning of each calendar year to approve an annual program for the council designed to accomplish the objectives and functions stated in § 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, 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
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.
§ 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.
§ 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 the question: How inclusive did Congress intend the class of activities to be under the Williams-Steiger Act?
§ 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.
§ 1975.4 Coverage.
(a) General. Any employer employing one or more employees would be an “employer engaged in a business affecting commerce who has employees” and, therefore, he is covered by the Act as such.
(b) Clarification as to certain employers—(1) The professions, such as physicians, attorneys, etc. Where a member of a profession, such as an attorney or physician, employs one or more employees such member comes within the definition of an employer as defined in the Act and interpreted thereunder and, therefore, such member is covered as an employer under the Act and required to comply with its provisions and with the regulations issued thereunder to the extent applicable.
(2) Agricultural employers. Any person engaged in an agricultural activity employing one or more employees comes within the definition of an employer under the Act, and therefore, is covered by its provisions. However, members of the immediate family of the farm employer are not regarded as employees for the purposes of this definition.
(3) Indians. The Williams-Steiger Act contains no special provisions with respect to different treatment in the case of Indians. It is well settled that under statutes of general application, such as the Williams-Steiger Act, Indians are treated as any other person, unless Congress expressly provided for special treatment. “FPC v. Tuscarora Indian Nation,” 362 U.S. 99, 115-118 (1960); “Navajo Tribe v. N.L.R.B.,” 288 F.2d 162, 164-165 (D.C. Cir. 1961), cert. den. 366 U.S. 928 (1961). Therefore, provided they otherwise come within the definition of the term “employer” as interpreted in this part, Indians and Indian tribes, whether on or off reservations, and non-Indians on reservations, will be treated as employers subject to the requirements of the Act.
(4) Nonprofit and charitable organizations. The basic purpose of the Williams-Steiger Act is to improve working environments in the sense that they impair, or could impair, the lives and health of employees. Therefore, certain economic tests such as whether the employer's business is operated for the purpose of making a profit or has other economic ends, may not properly be used as tests for coverage of an employer's activity under the Williams-Steiger Act. To permit such economic tests to serve as criteria for excluding certain employers, such as nonprofit and charitable organizations which employ one or more employees, would result in thousands of employees being left outside the protections of the Williams-Steiger Act in disregard of the clear mandate of Congress to assure “every working man and woman in the Nation safe and healthful working conditions * * *”. Therefore, any charitable or non-profit organization which employs one or more employees is covered under the Williams-Steiger Act and is required to comply with its provisions and the regulations issued thereunder. (Some examples of covered charitable or non-profit organizations would be disaster relief organizations, philanthropic organizations, trade associations, private educational institutions, labor organizations, and private hospitals.)
(c) Coverage of churches and special policy as to certain church activities—(1) Churches. Churches or religious organizations, like charitable and nonprofit organizations, are considered employers under the Act where they employ one or more persons in secular activities. As a matter of enforcement policy, the performance of, or participation in, religious services (as distinguished from secular or proprietary activities whether for charitable or religion-related purposes) will be regarded as not constituting employment under the Act. Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes—for example, giving or receiving remuneration in connection with the performance of religious services.
(2) Examples. Some examples of coverage of religious organizations as employers would be: A private hospital owned or operated by a religious organization; a private school or orphanage owned or operated by a religious organization; commercial establishments of religious organizations engaged in producing or selling products such as alcoholic beverages, bakery goods, religious goods, etc.; and administrative, executive, and other office personnel employed by religious organizations. Some examples of noncoverage in the case of religious organizations would be: Clergymen while performing or participating in religious services; and other participants in religious services; namely, choir masters, organists, other musicians, choir members, ushers, and the like.
§ 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 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.
§ 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
Authority: 29 U.S.C. 657, 660; 5 U.S.C. 553; and Secretary of Labor's Order No. 08-2020 (85 FR 58393), 9-83 (48 FR 35736), or 12-71 (36 FR 8754), as applicable.
Source: 38 FR 2681, Jan. 29, 1973, unless otherwise noted.
26 General
§ 1977.1 Introductory statement.
(a) The Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.), hereinafter referred to as the Act, is a Federal statute of general application designed to regulate employment conditions relating to occupational safety and health and to achieve safer and healthier workplaces throughout the Nation. By terms of the Act, every person engaged in a business affecting commerce who has employees is required to furnish each of his employees employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm, and, further, to comply with occupational safety and health standards promulgated under the Act. See part 1975 of this chapter concerning coverage of the Act.
(b) The Act provides, among other things, for the adoption of occupational safety and health standards, research and development activities, inspections and investigations of workplaces, and recordkeeping requirements. Enforcement procedures initiated by the Department of Labor, review proceedings before an independent quasi-judicial agency (the Occupational Safety and Health Review Commission), and express judicial review are provided by the Act. In addition, States which desire to assume responsibility for development and enforcement of standards which are at least as effective as the Federal standards published in this chapter may submit plans for such development and enforcement of the Secretary of Labor.
(c) Employees and representatives of employees are afforded a wide range of substantive and procedural rights under the Act. Moreover, effective implementation of the Act and achievement of its goals depend in large part upon the active but orderly participation of employees, individually and through their representatives, at every level of safety and health activity.
(d) This part deals essentially with the rights of employees afforded under section 11(c) of the Act. Section 11(c) of the Act prohibits reprisals, in any form, against employees who exercise rights under the Act.
§ 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.
§ 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.
§ 1977.4 Persons prohibited from discriminating.
Section 11(c) specifically states that “no person shall discharge or in any manner discriminate against any employee” because the employee has exercised rights under the Act. Section 3(4) of the Act defines “person” as “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any group of persons.” Consequently, the prohibitions of section 11(c) are not limited to actions taken by employers against their own employees. A person may be chargeable with discriminatory action against an employee of another person. Section 11(c) would extend to such entities as organizations representing employees for collective bargaining purposes, employment agencies, or any other person in a position to discriminate against an employee. See, Meek v. United States, 136 F. 2d 679 (6th Cir., 1943); Bowe v. Judson C. Burns, 137 F. 2d 37 (3rd Cir., 1943).
§ 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).
§ 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 or primary consideration behind discharge or other adverse action. 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 Bostock v. Clay County, Ga., 140 S Ct. 1731, 1739 (2020); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). Ultimately, the issue as to whether a discharge or other adverse action was because of protected activity will have to be determined on the basis of the facts in the particular case.
[38 FR 2681, Jan. 29, 1973, as amended at 86 FR 49476, Sept. 3, 2021]
27 Specific Protections
§ 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.
(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.
§ 1977.10 Proceedings under or related to the Act.
(a) Discharge of, or discrimination against, any employee because the employee has “instituted or caused to be instituted any proceeding under or related to this Act” is also prohibited by section 11(c). Examples of proceedings which could arise specifically under the Act would be inspections of worksites under section 8 of the Act, employee contest of abatement date under section 10(c) of the Act, employee initiation of proceedings for promulgation of an occupational safety and health standard under section 6(b) of the Act and part 1911 of this chapter, employee application for modification of revocation of a variance under section 6(d) of the Act and part 1905 of this chapter, employee judicial challenge to a standard under section 6(f) of the Act and employee appeal of an Occupational Safety and Health Review Commission order under section 11(a) of the Act. In determining whether a “proceeding” is “related to” the Act, the considerations discussed in § 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.
§ 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.
§ 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 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]
28 Procedures
§ 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]
§ 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).
§ 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.
§ 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.
29 Some Specific Subjects
§ 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 in § 1977.12.
§ 1977.23 State plans.
A State which is implementing its own occupational safety and health enforcement program pursuant to section 18 of the Act and parts 1902 and 1952 of this chapter must have provisions as effective as those of section 11(c) to protect employees from discharge or discrimination. Such provisions do not divest either the Secretary of Labor or Federal district courts of jurisdiction over employee complaints of discrimination. However, the Secretary of Labor may refer complaints of employees adequately protected by State Plans' provisions to the appropriate state agency. The basic principles outlined in § 1977.18, supra will be observed 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 (STAA), AS AMENDED
Authority: 49 U.S.C. 31101 and 31105; Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 01-2020, 85 FR 13186 (March 6, 2020).
Source: 77 FR 44134, July 27, 2012, unless otherwise noted.
Subpart A Complaints, Investigations, Findings, and Preliminary Orders
§ 1978.100 Purpose and scope.
(a) This part sets forth, the procedures for, and interpretations 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 is perceived to have engaged in, protected activity pertaining to commercial motor vehicle safety, health, or security matters.
(b) This part establishes procedures under STAA 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 and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. This part also sets forth interpretations of STAA.
§ 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 vehicle as defined by 49 U.S.C. 31101(1).
(f) Complainant means the employee who filed a STAA complaint or on whose behalf a complaint was filed.
(g) Complaint, for purposes of § 1978.102(b)(1) and (e)(1), includes both written and oral complaints to employers, government agencies, and others.
(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.
(3) The term includes an individual formerly performing the work described above or an applicant for such work.
(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 organized 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.
§ 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).
(b) It is a violation for any person to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, harass, suspend, demote, 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 orally or in writing a complaint with an employer, government agency, or others 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 person to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, harass, suspend, demote, 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
(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 person to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, harass, suspend, demote, or in any other manner retaliate against any employee because the employer perceives that:
(1) The employee has filed orally or in writing or is about to file orally or in writing a complaint with an employer, government agency, or others 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 condition.
§ 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 the complainant is unable to file a complaint in English, OSHA will accept the complaint in any other 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 STAA occurs, any employee who believes that he or she has been retaliated against in violation of STAA 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, electronic communication transmittal, 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 section 11(c). Normal procedures and timeliness requirements under the respective statutes and regulations will be followed.
§ 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 with a copy of the complaint, redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a and other applicable confidentiality laws. The Assistant Secretary will also notify the respondent 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, 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.
(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, either actual activity or activity about to be undertaken;
(ii) The respondent knew or suspected, actually or constructively, 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 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 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 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 in § 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 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 must 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.
§ 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 has 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, the Assistant Secretary will accompany the findings with a preliminary order providing relief. Such order will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions and privileges of the complainant's employment; and 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). Interest on backpay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The preliminary order may also require the respondent to pay 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, where appropriate, the preliminary order will be sent by means that allow OSHA to confirm delivery 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 the order and to request a hearing. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 request for a hearing have been timely filed as provided at § 1978.106. 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.
[77 FR 44134, July 27, 2012, as amended at 86 FR 1788, Jan. 11, 2021]
Subpart B Litigation
§ 1978.106 Objections to the findings and the preliminary order and request for a hearing.
(a) Any party who desires review, including judicial review, must file any objections and a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1978.105(c). 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 electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on the other parties of record and the OSHA official who issued the findings.
(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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
[77 FR 44134, July 27, 2012, as amended at 86 FR 1788, Jan. 11, 2021]
§ 1978.107 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 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[77 FR 44134, July 27, 2012, as amended at 86 FR 1788, Jan. 11, 2021]
§ 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 this section, he or she may, upon written notice to the ALJ or the Administrative Review Board, as the case may be, 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 or the Administrative Review Board, as the case may be, will issue appropriate orders to regulate the course of future proceedings.
(3) Copies of documents in all cases shall be sent to the parties or, if they are represented by counsel, to the latter. In cases in which the Assistant Secretary is a party, copies of documents shall be sent to the Regional Solicitor's Office representing the Assistant Secretary.
(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 documents in a case must be sent to that agency, whether or not that agency is participating in the proceeding.
§ 1978.109 Decisions 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 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.
(c) Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 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 ALJ will issue an order that will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position with the same 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. Interest on backpay 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.
(e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, 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. For ALJ decisions issued on or after the effective date of the interim final rule, August 31, 2010, all other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. Any ALJ decision issued on or after the effective date of the interim final rule, August 31, 2010, will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the decision for review.
§ 1978.110 Decisions 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 the ALJ must file a written petition for review with the ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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, Division of Occupational Safety and Health, 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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 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 such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision also will be served on the Assistant Secretary, and on the Associate Solicitor, Division of Occupational Safety and Health, U.S, Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order, which will be subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order), will require, where appropriate, affirmative action to abate the violation; reinstatement of the complainant to his or her former position with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (back pay 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. 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 concludes that the respondent has not violated the law, the ARB will issue an order denying the complaint. Such order will be subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(f) Paragraphs (a) and (b) of this section apply to all cases in which the decision of the ALJ was issued on or after August 31, 2010.
[77 FR 44134, July 27, 2012, as amended at 85 FR 30620, May 20, 2020; 86 FR 1788, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1978.111 Withdrawal of STAA complaints, findings, 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 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1978.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or preliminary order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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 the Assistant Secretary's 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.
(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 in United States district court pursuant to 49 U.S.C. 31105(e).
§ 1978.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 person resided on the date of the violation.
(b) A final order 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[77 FR 44134, July 27, 2012, as amended at 85 FR 30620, May 20, 2020]
§ 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 issued under STAA, 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.
§ 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. The action shall, at the request of either party to such action, be tried by the court with a 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor.
§ 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
Authority: 49 U.S.C. 42121; Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 01-2020, 85 FR 13186 (March 6, 2020).
Source: 68 FR 14107, Mar. 21, 2003, unless otherwise noted.
Subpart A Complaints, Investigations, Findings and Preliminary Orders
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 1979.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the named person of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint (redacted to protect the identity of any confidential informants). The Assistant Secretary will also notify the named person of his or her rights under paragraphs (b) and (c) of this section and paragraph (e) of § 1979.110. A copy of the notice to the named person will also be provided to the Federal Aviation Administration.
(b) A complaint of alleged violation will be dismissed unless the complainant has made a prima facie showing that protected behavior or conduct was a contributing factor in the unfavorable personnel action alleged in the complaint.
(1) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:
(i) The employee engaged in a protected activity or conduct;
(ii) The named person knew or suspected, actually or constructively, that the employee engaged in the protected activity;
(iii) The employee suffered an unfavorable personnel action; and
(iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.
(2) For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the named person knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the unfavorable personnel action. Normally the burden is satisfied, for example, if the complaint shows that the adverse personnel action took place shortly after the protected activity, giving rise to the inference that it was a factor in the adverse action. If the required showing has not been made, the complainant will be so advised and the investigation will not commence.
(c) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, an investigation of the complaint will not be conducted if the named person, pursuant to the procedures provided in this paragraph, demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the complainant's protected behavior or conduct. Within 20 days of receipt of the notice of the filing of the complaint, the named person may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating his or her position. Within the same 20 days the named person may request a meeting with the Assistant Secretary to present his or her position.
(d) If the named person fails to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the behavior protected by the Act, the Assistant Secretary will conduct an investigation. Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with 29 CFR part 70.
(e) Prior to the issuance of findings and a preliminary order as provided for in § 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.
§ 1979.105 Issuance of findings and preliminary orders.
(a) After considering all the relevant information collected during the investigation, the Assistant Secretary will issue, within 60 days of filing of the complaint, written findings as to whether or not there is reasonable cause to believe that the named person has discriminated against the complainant in violation of the Act.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, he or she will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will include, where appropriate, a requirement that the named person abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages. Where the named person establishes that the complainant is a security risk (whether or not the information is obtained after the complainant's discharge), a preliminary order of reinstatement would not be appropriate. At the complainant's request the order shall also assess against the named person the complainant's costs and expenses (including attorney's and expert witness fees) reasonably incurred in connection with the filing of the complaint.
(2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding.
(b) The findings and the preliminary order will be sent by means that allow OSHA to confirm delivery 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 or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge, U.S. Department of Labor, a copy of the original complaint and a copy of the findings and order.
(c) The findings and the preliminary order shall be effective 30 days after receipt by the named person pursuant to paragraph (b) of this section, unless an objection and a request for a hearing has been filed as provided at § 1979.106. However, the portion of any preliminary order requiring reinstatement shall be effective immediately upon receipt of the findings and preliminary order.
[68 FR 14107, Mar. 21, 2003, as amended at 86 FR 1788, Jan. 11, 2021]
Subpart B Litigation
§ 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 § 1979.105(b). 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 electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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.
(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.
[68 FR 14107, Mar. 21, 2003, as amended at 86 FR 1788, Jan. 11, 2021]
§ 1979.107 Hearings.
(a) Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A, of 29 CFR part 18.
(b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to a judge who will notify the parties 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.
[68 FR 14107, Mar. 21, 2003, as amended at 86 FR 1788, Jan. 11, 2021]
§ 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.
§ 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 to § 1979.104(b) nor the Assistant Secretary's determination to proceed with an investigation is subject to review by the administrative law judge, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the administrative law judge shall hear the case on the merits.
(b) If the administrative law judge concludes that the party charged has violated the law, the order shall direct the party charged to take appropriate affirmative action to abate the violation, including, where appropriate, reinstatement of the complainant to that person's former position, together with the compensation (including back pay), terms, conditions, and privileges of that employment, and compensatory damages. At the request of the complainant, the administrative law judge shall assess against the named person all costs and expenses (including attorney's and expert witness fees) reasonably incurred. If, upon the request of the named person, the administrative law judge determines that a complaint was frivolous or was brought in bad faith, the judge may award to the named person a reasonable attorney's fee, not exceeding $1,000.
(c) The decision will be served upon all parties to the proceeding. Any administrative law judge's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary shall be effective immediately upon receipt of the decision by the named person, and may not be stayed. All other portions of the judge's order shall be effective ten business days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board.
§ 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”). 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 electronic transmittal 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.
(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 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., 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. The 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, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the party charged has violated the law, the ARB shall order the party charged to take appropriate affirmative action to abate the violation, including, where appropriate, reinstatement of the complainant to that person's former position, together with the compensation (including back pay), terms, conditions, and privileges of that employment, and compensatory damages. At the request of the complainant, the Board shall assess against the named person all costs and expenses (including attorney and expert witness fees) reasonably incurred. The ARB's order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the party charged has not violated the law, the ARB shall issue an order 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 reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[68 FR 14107, Mar. 21, 2003, as amended at 85 FR 30620, May 20, 2020; 86 FR 1789, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1979.111 Withdrawal of complaints, objections, and findings; settlement.
(a) At any time prior to the filing of objections to the findings or preliminary order, a complainant may withdraw his or her complaint under the Act by filing a written withdrawal with the Assistant Secretary. The Assistant Secretary will then determine whether the withdrawal will be approved. The Assistant Secretary will notify the named person of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement shall be approved in accordance with paragraph (d) of this section.
(b) The Assistant Secretary may withdraw his or her findings or a preliminary order at any time before the expiration of the 30-day objection period described in § 1979.106, provided that no objection has yet been filed, and substitute new findings or preliminary order. The date of the receipt of the substituted findings or order will begin a new 30-day objection period.
(c) At any time before the findings or order become final, a party may withdraw his or her objections to the findings or order by filing a written withdrawal with the administrative law judge or, if the case is on review, with the Board. The judge or the Board, as the case may be, will determine whether the withdrawal will be approved. If the objections are withdrawn because of settlement, the settlement shall be approved in accordance with paragraph (d) of this section.
(d)(1) Investigative settlements. At any time after the filing of a complaint, and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if the Assistant Secretary, the complainant and the named person agree to a settlement.
(2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the administrative law judge if the case is before the judge, or by the Board if a timely petition for review has been filed with the Board. A copy of the settlement shall be filed with the administrative law judge or the Board, as the case may be.
(e) Any settlement approved by the Assistant Secretary, the administrative law judge, or the Board, shall constitute the final order of the Secretary and may be enforced pursuant to § 1979.113.
§ 1979.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 Secretary 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.
[68 FR 14107, Mar. 21, 2003, as amended at 85 FR 30621, May 20, 2020]
§ 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.
§ 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
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. 01-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020, 85 FR 13186 (March 6, 2020).
Source: 80 FR 11880, Mar. 5, 2015, unless otherwise noted.
Subpart A Complaints, Investigations, Findings and Preliminary Orders
§ 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 and sets forth the Secretary's interpretations of the Act on certain statutory issues. 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.
§ 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 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.
§ 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 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.
§ 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, electronic communication transmittal, 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. For example, OSHA may consider the time for filing a complaint equitably tolled if a complainant mistakenly files a complaint with the another agency instead of OSHA within 180 days after becoming aware of the alleged violation.
§ 1980.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1980.110(e). OSHA will provide an unredacted copy of these same materials 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 OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 a 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 within a temporal proximity after the protected activity, or at the first opportunity available to respondent, 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, further investigation of the complaint will not be conducted 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, OSHA 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 in § 1980.105, if OSHA 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, OSHA will 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, OSHA 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 investigator, 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 OSHA's notification pursuant to this paragraph, or as soon afterwards as OSHA and the respondent can agree, if the interests of justice so require.
§ 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 the 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, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will include all relief necessary to make the employee whole, including 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 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. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 means that allow OSHA to confirm delivery 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 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 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.
[80 FR 11880, Mar. 5, 2015, as amended at 86 FR 1789, Jan. 11, 2021]
Subpart B Litigation
§ 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 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 to § 1980.105(b). The objections and/or request for a hearing must be in writing and state whether the objections are to the findings and/or the preliminary order, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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 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 will become the final decision of the Secretary, not subject to judicial review.
[80 FR 11880, Mar. 5, 2015, as amended at 86 FR 1789, Jan. 11, 2021]
§ 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[80 FR 11880, Mar. 5, 2015, as amended at 86 FR 1789, Jan. 11, 2021]
§ 1980.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules.
(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 documents in a case must be sent to the Commission, whether or not the Commission is participating in the proceeding.
§ 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1980.104(e) nor OSHA'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 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 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 reasonable attorney fees, 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 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB). The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB, and the ARB accepts the petition for review.
§ 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 fees, must file a written petition for review with the ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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 must be served on the Assistant Secretary 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 any 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 resulting final order is not subject to judicial review.
(c) The decision of the ARB shall be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 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 such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary 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 ARB will issue an order providing 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 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order 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 reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[80 FR 11880, Mar. 5, 2015, as amended at 85 FR 30621, May 20, 2020; 86 FR 1789, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1980.111 Withdrawal of complaints, findings, 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 complainant may withdraw his or her complaint by notifying OSHA, orally or in writing, of his or her withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1980.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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 operation of law, the case may be settled if OSHA, the complainant and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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 appropriate.
(e) Any settlement approved by OSHA, the ALJ, or the ARB, will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1980.113.
§ 1980.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[80 FR 11880, Mar. 5, 2015, as amended at 85 FR 30622, May 20, 2020]
§ 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 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. 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, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
§ 1980.114 District court jurisdiction over 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) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1980.109. An employee prevailing in any action under paragraph (a) of this section shall be entitled to all relief necessary to make the employee whole, including:
(1) Reinstatement with the same seniority status that the employee would have had, but for the retaliation;
(2) The amount of back pay, with interest;
(3) Compensation for any special damages sustained as a result of the retaliation; and
(4) Litigation costs, expert witness fees, and reasonable attorney fees.
(c) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 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.
PART 1981 PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS UNDER SECTION 6 OF THE PIPELINE SAFETY IMPROVEMENT ACT OF 2002
Authority: 49 U.S.C. 60129; Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 01-2020, 85 FR 13186 (March 6, 2020).
Source: 69 FR 17591, Apr. 5, 2004, unless otherwise noted.
Subpart A Complaints, Investigations, Findings, and Preliminary Orders
§ 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.
§ 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 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.
§ 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.
§ 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 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.
§ 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) of § 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, 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 in § 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.
§ 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 means that allow OSHA to confirm delivery 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 or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. 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 at § 1981.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon receipt of the findings and preliminary order.
[69 FR 17591, Apr. 5, 2004, as amended at 86 FR 1790, Jan. 11, 2021]
Subpart B Litigation
§ 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 § 1981.105(b). 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 electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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.
(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.
[69 FR 17591, Apr. 5, 2004, as amended at 86 FR 1790, Jan. 11, 2021]
§ 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 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.
[69 FR 17591, Apr. 5, 2004, as amended at 86 FR 1790, Jan. 11, 2021]
§ 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.
§ 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 to § 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.
§ 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 Board (“the Board”). 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 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 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 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. The 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, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the party charged has violated the law, the ARB shall order the party charged to take appropriate affirmative action to abate the violation, including, where appropriate, reinstatement of the complainant to that person's former position, together with the compensation (including back pay), terms, conditions, and privileges of that employment, and compensatory damages. At the request of the complainant, the Board shall assess against the named person all costs and expenses (including attorney and expert witness fees) reasonably incurred. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the party charged has not violated the law, the ARB will issue an order 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 reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[69 FR 17591, Apr. 5, 2004, as amended at 85 FR 30622, May 20, 2020; 86 FR 1790, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 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 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 in § 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 to § 1981.113.
§ 1981.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 Secretary 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.
[69 FR 17591, Apr. 5, 2004, as amended at 85 FR 30622, May 20, 2020]
§ 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.
§ 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.
PART 1982 PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT AND THE FEDERAL RAILROAD SAFETY ACT
Authority: 6 U.S.C. 1142 and 49 U.S.C. 20109; Secretary of Labor's Order 01-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020, 85 FR 13186 (March 6, 2020).
Source: 80 FR 69132, Nov. 9, 2015, unless otherwise noted.
Subpart A Complaints, Investigations, Findings and Preliminary Orders
§ 1982.100 Purpose and scope.
(a) This part implements procedures of the National Transit Systems Security Act (NTSSA), 6 U.S.C. 1142, and the Federal Railroad Safety Act (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 statute, 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 statute, 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. It also protects an employee against delay, denial or interference with first aid or medical treatment for a workplace injury.
(b) This part establishes procedures under NTSSA and FRSA for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf, and sets forth the Secretary's interpretations of NTSSA and FRSA on certain statutory issues. These rules, together with those codified at 29 CFR part 18, set forth the procedures under NTSSA or FRSA for submission of complaints, 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.
§ 1982.101 Definitions.
As used in this part:
(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 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 regular, continuing shared-ride surface transportation services that are open to the general public or open to a segment of the general public defined by age, disability, or low income; and does not include: Intercity passenger rail transportation provided by the entity described in chapter 243 (or a successor to such entity); intercity bus service; charter bus service; school bus service; sightseeing service; courtesy shuttle service for patrons of one or more specific establishments; or intra-terminal or intra-facility shuttle services.
(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, except that, upon petition by a group of commonly controlled railroad carriers that the Secretary of Transportation determines is operating within the United States as a single, integrated rail system, the Secretary of Transportation may by order treat the group of railroad carriers as a single railroad carrier for purposes of one or more provisions of part A, subtitle V of title 49 and implementing regulations and order, subject to any appropriate conditions that the Secretary of Transportation may impose.
(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.
§ 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 retaliate against, including but not limited to intimidating, threatening, restraining, coercing, blacklisting, or disciplining, an employee if such retaliation 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;
(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 retaliate 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 this paragraph (a)(2), only paragraph (a)(2)(i)(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 retaliate against, including but not limited to intimidating, threatening, restraining, coercing, blacklisting, or disciplining, an employee if such retaliation 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.; Public Law 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 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 retaliate 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 paragraph (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 this paragraph (b)(2), only paragraph (b)(2)(i)(A) shall apply to security personnel employed by a railroad carrier to protect individuals and property transported by railroad.
(3) A railroad carrier or person covered under this section may not:
(i) Deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.
(ii) 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—
(A) 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 fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier's medical standards for fitness for duty.
(B) 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.
§ 1982.103 Filing of retaliation complaints.
(a) Who may file. 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.
(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 NTSSA or FRSA occurs, any 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, electronic communication transmittal, 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. For example, OSHA may consider the time for filing a complaint equitably tolled if a complainant mistakenly files a complaint with another agency instead of OSHA within 180 days after becoming aware of the alleged violation.
§ 1982.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1982.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or 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 OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 (or, in circumstances covered by NTSSA and FRSA, was perceived to have engaged or to be about to engage in protected activity);
(ii) The respondent knew or suspected that the employee engaged in the protected activity (or, in circumstances covered by NTSSA and FRSA, 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 NTSSA and FRSA, 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, or at the first opportunity available to the respondent, 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, further investigation of the complaint will not be conducted 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, OSHA 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 in § 1982.105, if OSHA 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, OSHA will 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, OSHA will redact them, if necessary, consistent 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 must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon afterwards as OSHA and the respondent can agree, if the interests of justice so require.
§ 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 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, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will include, where appropriate: Affirmative action to abate the violation; reinstatement with the same seniority status that the employee would have had, but for the retaliation; any back pay with interest; and payment of compensatory damages, including compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney 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. The preliminary order will also require the respondent to submit documentation to the Social Security Administration or the Railroad Retirement Board, as appropriate, allocating any back pay award to the appropriate months or calendar quarters. The preliminary order may also require the respondent to pay 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, where appropriate, the preliminary order will be sent by means that allow OSHA to confirm delivery 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 award of attorney 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. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 a hearing has been timely filed as provided at § 1982.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and of the preliminary order, regardless of any objections to the findings and/or the order.
[80 FR 69132, Nov. 9, 2015, as amended at 86 FR 1790, Jan. 11, 2021]
Subpart B Litigation
§ 1982.106 Objections to the findings and the preliminary order and requests 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 fees 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 § 1982.105. The objections, request for a hearing, and/or request for attorney 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 fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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 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 and/or the preliminary order, the findings or preliminary order will become the final decision of the Secretary, not subject to judicial review.
[80 FR 69132, Nov. 9, 2015, as amended at 86 FR 1790, Jan. 11, 2021]
§ 1982.107 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 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[80 FR 69132, Nov. 9, 2015, as amended at 86 FR 1791, Jan. 11, 2021]
§ 1982.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules.
(b) The Department of Homeland Security or the Department of Transportation, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at those agencies' discretion. At the request of the interested federal agency, copies of all documents in a case must be sent to the federal agency, whether or not the agency is participating in the proceeding.
§ 1982.109 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1982.104(e) nor OSHA'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 ALJ will issue an order that will include, where appropriate: Affirmative action to abate the violation; reinstatement with the same seniority status that the employee would have had, but for the retaliation; any back pay with interest; and payment of compensatory damages, including compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney 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. The order will also require the respondent to submit documentation to the Social Security Administration or the Railroad Retirement Board, as appropriate, allocating any back pay award to the appropriate months or calendar quarters. The order may also require the respondent to pay 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. If, upon the request of the respondent, the ALJ determines that a complaint filed under NTSSA was frivolous or was brought in bad faith, the ALJ may award to the respondent a reasonable attorney 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 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1982.110 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 under NTSSA was frivolous or brought in bad faith who seeks an award of attorney fees, must file a written petition for review with the ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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 must be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards.
(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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 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 such case, the conclusion of the hearing is the date the motion for reconsideration is denied or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision also will be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order will include, where appropriate, affirmative action to abate the violation; reinstatement with the same seniority status that the employee would have had but for the retaliation; any back pay with interest; and payment of compensatory damages, including compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney 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. The order will also require the respondent to submit documentation to the Social Security Administration or the Railroad Retirement Board, as appropriate, allocating any back pay award to the appropriate months or calendar quarters. The order may also require the respondent to pay punitive damages up to $250,000. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order denying the complaint. If, upon the request of the respondent, the ARB determines that a complaint under NTSSA was frivolous or was brought in bad faith, the ARB may award to the respondent reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[80 FR 69132, Nov. 9, 2015, as amended at 85 FR 30622, May 20, 2020; 86 FR 1791, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1982.111 Withdrawal of complaints, findings, 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 complainant may withdraw his or her complaint by notifying OSHA, orally or in writing, of his or her withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA will notify the parties (or 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1982.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 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 and/or order, and there are no other pending objections, the Assistant Secretary's findings and/or 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 operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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.
(e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1982.113.
§ 1982.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[80 FR 69132, Nov. 9, 2015, as amended at 85 FR 30623, May 20, 2020]
§ 1982.113 Judicial enforcement.
(a) 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 NTSSA, 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. 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 NTSSA, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
(b) Whenever a person has failed to comply with a preliminary order of reinstatement, or a final order, including one approving a settlement agreement, issued under FRSA, 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.
§ 1982.114 District court jurisdiction of retaliation complaints.
(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. At the request of either party, the action shall be tried by the court with a jury.
(b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1982.109. An employee prevailing in a proceeding under paragraph (a) shall be entitled to all relief necessary to make the employee whole, including, where appropriate: Reinstatement with the same seniority status that the employee would have had, but for the retaliation; any back pay with interest; and payment of compensatory damages, including compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. The court may also order punitive damages in an amount not to exceed $250,000.
(c) Within 7 days after 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 copy of the file-stamped complaint. In all cases, a copy of the complaint must also be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1982.115 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 that justice or the administration of NTSSA or FRSA requires.
PART 1983 PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER SECTION 219 OF THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008
Authority: 15 U.S.C. 2087; Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 01-2020, 85 FR 13186 (March 6, 2020).
Source: 77 FR 40503, July 10, 2012, unless otherwise noted.
Subpart A Complaints, Investigations, Findings and Preliminary Orders
§ 1983.100 Purpose and scope.
(a) This part implements procedures of the employee protection provisions of the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. 2087. CPSIA provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to consumer product safety.
(b) This part establishes procedures under CPSIA 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 under CPSIA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements.
§ 1983.101 Definitions.
As used in this part:
(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 CPSIA.
(b) Business days means days other than Saturdays, Sundays, and Federal holidays.
(c) Commission means the Consumer Product Safety Commission.
(d) Complainant means the employee who filed a CPSIA complaint or on whose behalf a complaint was filed.
(e)(1) Consumer product means any article, or component part thereof, produced or distributed:
(i) For sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise; or
(ii) For the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.
(iii) The term “consumer product” includes any mechanical device which carries or conveys passengers along, around, or over a fixed or restricted route or course or within a defined area for the purpose of giving its passengers amusement, which is customarily controlled or directed by an individual who is employed for that purpose and who is not a consumer with respect to such device, and which is not permanently fixed to a site, but does not include such a device that is permanently fixed to a site.
(2) The term consumer product does not include:
(i) Any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer;
(ii) Tobacco and tobacco products;
(iii) Motor vehicles or motor vehicle equipment (as defined by 49 U.S.C. 30102(a)(6) and (7));
(iv) Pesticides (as defined by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.));
(v) Any article or any component of any such article which, if sold by the manufacturer, producer, or importer, would be subject to the tax imposed by 26 U.S.C. 4181;
(vi) Aircraft, aircraft engines, propellers, or appliances (as defined in 49 U.S.C. 40102(a));
(vii) Boats which could be subjected to safety regulation under 46 U.S.C. chapter 43; vessels, and appurtenances to vessels (other than such boats), which could be subjected to safety regulation under title 52 of the Revised Statutes or other marine safety statutes administered by the department in which the Coast Guard is operating; and equipment (including associated equipment, as defined in 46 U.S.C. 2101(1)), to the extent that a risk of injury associated with the use of such equipment on boats or vessels could be eliminated or reduced by actions taken under any statute referred to in this definitional section;
(viii) Drugs, devices, or cosmetics (as such terms are defined in 21 U.S.C. 321(g), (h), and (i)); or
(ix) Food (the term “food” means all “food,” as defined in 21 U.S.C. 321(f), including poultry and poultry products (as defined in 21 U.S.C. 453(e) and (f)), meat, meat food products (as defined in 21 U.S.C. 601(j)), and eggs and egg products (as defined in 21 U.S.C. 1033)).
(f) CPSIA means Section 219 of the Consumer Product Safety Improvement Act of 2008, Public Law 110-314, 122 Stat. 3016 (Aug. 14, 2008) (codified at 15 U.S.C. 2087).
(g) Distributor means a person to whom a consumer product is delivered or sold for purposes of distribution in commerce, except that such term does not include a manufacturer or retailer of such product.
(h) Employee means an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by a manufacturer, private labeler, distributor, or retailer.
(i) Manufacturer means any person who manufactures or imports a consumer product. A product is manufactured if it is manufactured, produced, or assembled.
(j) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
(k) Private labeler means an owner of a brand or trademark on the label of a consumer product which bears a private label. A consumer product bears a private label if:
(1) The product (or its container) is labeled with the brand or trademark of a person other than a manufacturer of the product,
(2) The person with whose brand or trademark the product (or container) is labeled has authorized or caused the product to be so labeled, and
(3) The brand or trademark of a manufacturer of such product does not appear on such label.
(l) Retailer means a person to whom a consumer product is delivered or sold for purposes of sale or distribution by such person to a consumer.
(m) Respondent means the employer named in the complaint who is alleged to have violated CPSIA.
(n) Secretary means the Secretary of Labor or person to whom authority under CPSIA has been delegated.
(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.
§ 1983.102 Obligations and prohibited acts.
(a) No manufacturer, private labeler, distributor, or retailer may discharge or otherwise 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, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee), engaged in any of the activities specified in paragraphs (b)(1) through (4) of this section.
(b) An employee is protected against retaliation (as described in paragraph (a) of this section) by a manufacturer, private labeler, distributor, or retailer because the employee (or any person acting pursuant to a request of the employee):
(1) Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of the Consumer Product Safety Act, as amended by CPSIA, or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts;
(2) Testified or is about to testify in a proceeding concerning such violation;
(3) Assisted or participated or is about to assist or participate in such a proceeding; or
(4) Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of the Consumer Product Safety Act, as amended by CPSIA, or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts.
(c) This part shall have no application with respect to an employee of a manufacturer, private labeler, distributor, or retailer who, acting without direction from such manufacturer, private labeler, distributor, or retailer (or such person's agent), deliberately causes a violation of any requirement relating to any violation or alleged violation of any order, regulation, or consumer product safety standard under the Consumer Product Safety Act, as amended by CPSIA, or any other law enforced by the Commission.
§ 1983.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been retaliated against by a manufacturer, private labeler, distributor, or retailer in violation of CPSIA 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 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 CPSIA occurs, any employee who believes that he or she has been retaliated against in violation of CPSIA 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, electronic communication transmittal, 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.
§ 1983.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant Secretary will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1983.110(e). The Assistant Secretary will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel), and to the Consumer Product Safety 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 and the complainant each may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent and the complainant each 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.
(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 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 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 in § 1983.105, 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 CPSIA 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 must 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.
§ 1983.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of CPSIA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and 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. 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 means that allow OSHA to confirm delivery 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 ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1983.106. 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.
[77 FR 40503, July 10, 2012, as amended at 86 FR 1791, Jan. 11, 2021]
Subpart B Litigation
§ 1983.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or 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 CPSIA, 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 § 1983.105. 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 electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
[77 FR 40503, July 10, 2012, as amended at 86 FR 1791, Jan. 11, 2021]
§ 1983.107 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[77 FR 40503, July 10, 2012, as amended at 86 FR 1791, Jan. 11, 2021]
§ 1983.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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) Copies of documents must be sent to the Assistant Secretary and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of the Assistant Secretary, or where the Assistant Secretary is participating in the proceeding, or where service on the Assistant Secretary and the Associate Solicitor is otherwise required by these rules.
(b) The Consumer Product Safety 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 Commission, copies of all documents in a case must be sent to the Commission, whether or not it is participating in the proceeding.
§ 1983.109 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 to § 1983.104(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 ALJ will issue an order that will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and 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. 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 ALJ 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 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1983.110 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 ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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 must be served on the Assistant Secretary 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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 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 such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order will require, where appropriate, affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order 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. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[77 FR 40503, July 10, 2012, as amended at 85 FR 30623, May 20, 2020; 86 FR 1791, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1983.111 Withdrawal of complaints, findings, 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 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1983.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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 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 the Assistant Secretary's 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.
(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 in United States district court pursuant to § 1983.113.
§ 1983.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[77 FR 40503, July 10, 2012, as amended at 85 FR 30623, May 20, 2020]
§ 1983.113 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 CPSIA, 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. The Secretary also may file a civil action seeking enforcement of the order in the United States district court for the District of Columbia. In civil actions under this section, 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.
§ 1983.114 District court jurisdiction of retaliation complaints.
(a) 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, either:
(1) Within 90 days after receiving a written determination under § 1983.105(a) provided that there has been no final decision of the Secretary; or
(2) If there has been no final decision of the Secretary within 210 days of the filing of the complaint.
(3) At the request of either party, the action shall be tried by the court with a 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1983.115 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 that justice or the administration of CPSIA requires.
PART 1984 PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER SECTION 1558 OF THE AFFORDABLE CARE ACT
Authority: 29 U.S.C. 218C; Secretary of Labor's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020, 85 FR 13186 (March 6, 2020).
Source: 81 FR 70620, Oct. 13, 2016, unless otherwise noted.
Subpart A Complaints, Investigations, Findings, and Preliminary Orders
§ 1984.100 Purpose and scope.
(a) This part implements procedures under section 1558 of the Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119, which was signed into law on March 23, 2010 and was amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, 124 Stat. 1029, signed into law on March 30, 2010. The terms “Affordable Care Act” or “the Act” are used in this part to refer to the final, amended version of the law. Section 1558 of the Act amended the Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA) by adding new section 18C. 29 U.S.C. 218C. Section 18C of the FLSA provides protection for an employee from retaliation because the employee has received a credit under section 36B of the Internal Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction (referred to as a “subsidy” in section 18C) under the Affordable Care Act, or because the employee has engaged in protected activity pertaining to title I of the Affordable Care Act or any amendment made by title I of the Affordable Care Act.
(b) This part establishes procedures under section 18C of the FLSA for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf and sets forth the Secretary's interpretations of section 18C on certain statutory issues. These rules, together with those codified at 29 CFR part 18, set forth the procedures under section 18C of the FLSA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements.
§ 1984.101 Definitions.
As used in this part:
(a) Advance payments of the premium tax credit or “APTC” means advance payments of the premium tax credit as defined in 45 CFR 155.20.
(b) Affordable Care Act or “the Act” means the Patient Protection and Affordable Care Act, Public Law 111-148, 124 Stat. 119 (Mar. 23, 2010), as amended.
(c) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under section 18C of the FLSA.
(d) Business days means days other than Saturdays, Sundays, and federal holidays.
(e) Complainant means the employee who filed an FLSA section 18C complaint or on whose behalf a complaint was filed.
(f) Employee means:
(1) Any individual employed by an employer. In the case of an individual employed by a public agency, the term employee means any individual employed by the Government of the United States: As a civilian in the military departments (as defined in 5 U.S.C. 102), in any executive agency (as defined in 5 U.S.C. 105), in any unit of the judicial branch of the Government which has positions in the competitive service, in a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces, in the Library of Congress, or in the Government Printing Office. The term employee also means any individual employed by the United States Postal Service or the Postal Regulatory Commission; and any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than an individual who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and who holds a public elective office of that State, political subdivision, or agency, is selected by the holder of such an office to be a member of his personal staff, is appointed by such an officeholder to serve on a policymaking level, is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.
(2) The term employee does not include:
(i) Any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered—and such services are not the same type of services which the individual is employed to perform for such public agency;
(ii) Any employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency that volunteers to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement; or
(iii) Any individual who volunteers their services solely for humanitarian purposes to private non-profit food banks and who receive groceries from the food banks.
(3) The term employee includes former employees and applicants for employment.
(g) Employer includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.
(h) Exchange means an Exchange as defined in 45 CFR 155.20.
(i) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
(j) Person means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.
(k) Respondent means the employer named in the complaint who is alleged to have violated section 18C of the FLSA.
(l) Secretary means the Secretary of Labor or person to whom authority under section 18C of the FLSA 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.
(n) Any future regulatory revisions that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein.
§ 1984.102 Obligations and prohibited acts.
(a) No employer may discharge or otherwise 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 an individual acting at the request of the employee), has engaged in any of the activities specified in paragraphs (b)(1) through (5) of this section.
(b) An employee is protected against retaliation because the employee (or an individual acting at the request of the employee) has:
(1) Received a credit under section 36B of the Internal Revenue Code of 1986, 26 U.S.C. 36B, or a cost-sharing reduction under the Affordable Care Act, or been determined by an Exchange to be eligible for advance payments of the premium tax credit (APTC) or for a cost-sharing reduction;
(2) Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of title I of the Affordable Care Act (or an amendment made by title I of the Affordable Care Act);
(3) Testified or is about to testify in a proceeding concerning such violation;
(4) Assisted or participated, or is about to assist or participate, in such a proceeding; or
(5) Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of title I of the Affordable Care Act (or amendment), or any order, rule, regulation, standard, or ban under title I of the Affordable Care Act (or amendment).
§ 1984.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been retaliated against in violation of section 18C of the FLSA 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 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 section 18C of the FLSA occurs, any employee who believes that he or she has been retaliated against in violation of that section 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, electronic communication transmittal, 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. For example, OSHA may consider the time for filing a complaint equitably tolled if a complainant mistakenly files a complaint with another agency instead of OSHA within 180 days after becoming aware of the alleged violation.
§ 1984.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, et seq., and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1984.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or complainant's legal counsel if complainant is represented by counsel) and to the appropriate office of the federal agency charged with the administration of the general provisions of the Affordable Care Act under which the complaint is filed: Either the Internal Revenue Service of the United States Department of the Treasury (IRS), the United States Department of Health and Human Services (HHS), or the Employee Benefits Security Administration of the United States Department of Labor (EBSA).
(b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent and the complainant each may submit to OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent and the complainant each may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 a 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 action took place shortly after the protected activity, or at the first opportunity available to respondent, 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, further investigation of the complaint will not be conducted 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, OSHA 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 in § 1984.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated section 18C of the FLSA and that preliminary reinstatement is warranted, OSHA will 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, OSHA will redact them, if necessary, consistent 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 investigator, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon afterwards as OSHA and the respondent can agree, if the interests of justice so require.
§ 1984.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of section 18C of the FLSA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period.
(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 means that allow OSHA to confirm delivery 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 fees not exceeding $1,000 from the administrative law judge (ALJ), regardless of whether the respondent has filed objections, if respondent alleges that 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1984.106. 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.
[81 FR 70620, Oct. 13, 2016, as amended at 86 FR 1791, Jan. 11, 2021]
Subpart B Litigation
§ 1984.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under section 18C of the FLSA, 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 § 1984.105(b). The objections, request for a hearing, and/or request for attorney fees must be in writing and state whether the objections are to the findings and/or the preliminary order, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
[81 FR 70620, Oct. 13, 2016, as amended at 86 FR 1792, Jan. 11, 2021]
§ 1984.107 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[81 FR 70620, Oct. 13, 2016, as amended at 86 FR 1792, Jan. 11, 2021]
§ 1984.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules.
(b) The IRS, HHS, and EBSA, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at those agencies' discretion. At the request of the interested federal agency, copies of all documents in a case must be sent to the federal agency, whether or not the agency is participating in the proceeding.
§ 1984.109 Decision and orders of the administrative law judge.
(a) The decision of the administrative law judge (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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1984.104(e) nor OSHA'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 ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period.
(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 ALJ may award to the respondent reasonable attorney fees, 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 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1984.110 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 fees, must file a written petition for review with the Administrative Review Board (ARB). 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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 must be served on the Assistant Secretary, 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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 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 such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order will require, where appropriate, affirmative action to abate the violation; reinstatement of the complainant to the complainant's former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate period. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order 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 reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[81 FR 70620, Oct. 13, 2016, as amended at 85 FR 30624, May 20, 2020; 86 FR 1792, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1984.111 Withdrawal of complaints, findings, 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 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1984.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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 operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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 appropriate.
(e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1984.113.
§ 1984.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[81 FR 70620, Oct. 13, 2016, as amended at 85 FR 30624, May 20, 2020]
§ 1984.113 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 section 18C of the FLSA, 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 or in the United States district court for the District of Columbia. 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 section 18C of the FLSA, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
§ 1984.114 District court jurisdiction of retaliation complaints.
(a) 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, either:
(1) Within 90 days after receiving a written determination under § 1984.105(a) provided that there has been no final decision of the Secretary; or
(2) If there has been no final decision of the Secretary within 210 days of the filing of the complaint.
(3) At the request of either party, the action shall be tried by the court with a jury.
(b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1984.109. The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including:
(1) Reinstatement with the same seniority status that the employee would have had, but for the discharge or retaliation;
(2) The amount of back pay, with interest; and
(3) Compensation for any special damages sustained as a result of the discharge or retaliation, including litigation costs, expert witness fees, and reasonable attorney fees.
(c) 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. In all cases, a copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1984.115 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 such orders that justice or the administration of section 18C of the FLSA requires.
PART 1985 PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER THE EMPLOYEE PROTECTION PROVISION OF THE CONSUMER FINANCIAL PROTECTION ACT OF 2010
Authority: 12 U.S.C. 5567; Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020, 85 FR 13186 (March 6, 2020).
Source: 81 FR 14383, Mar. 17, 2016, unless otherwise noted.
Subpart A Complaints, Investigations, Findings and Preliminary Orders
§ 1985.100 Purpose and scope.
(a) This Part sets forth procedures for, and interpretations of, the employee protection provision of the Consumer Financial Protection Act of 2010, Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (CFPA or the Act), Pub. L. 111-203, 124 Stat. 1376, 1955 (July 21, 2010) (codified at 12 U.S.C. 5567). CFPA provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to the offering or provision of consumer financial products or services.
(b) This part establishes procedures under CFPA 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 under CFPA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. In addition, these rules provide the Secretary's interpretations on certain statutory issues.
§ 1985.101 Definitions.
As used in this part:
(a) Affiliate means any person that controls, is controlled by, or is under common control with another person.
(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 CFPA.
(c) Bureau means the Consumer Financial Protection Bureau.
(d) Business days means days other than Saturdays, Sundays, and Federal holidays.
(e) CFPA means Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203, 124 Stat. 1376, 1955 (July 21, 2010) (codified at 12 U.S.C. 5567).
(f) Complainant means the person who filed a CFPA complaint or on whose behalf a complaint was filed.
(g) Consumer means an individual or an agent, trustee, or representative acting on behalf of an individual.
(h) Consumer financial product or service means any financial product or service that is:
(1) Described in one or more categories in 12 U.S.C. 5481(15) and is offered or provided for use by consumers primarily for personal, family, or household purposes; or
(2) Described in clause (i), (iii), (ix), or (x) of 12 U.S.C. 5481(15)(A), and is delivered, offered, or provided in connection with a consumer financial product or service referred to in subparagraph (1).
(i) Covered employee means any individual performing tasks related to the offering or provision of a consumer financial product or service. The term “covered employee” includes an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by a covered person or service provider where such individual was performing tasks related to the offering or provision of a consumer financial product or service at the time that the individual engaged in protected activity under CFPA.
(j) Covered person means —
(1) Any person that engages in offering or providing a consumer financial product or service, or
(2) Any affiliate of such a person if such affiliate acts as a service provider to such person, or
(k) Federal consumer financial law means any law described in 12 U.S.C. 5481(14).
(l) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
(m) Person means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, estate, cooperative organization, or other entity.
(n) Respondent means the person named in the complaint who is alleged to have violated the Act.
(o) Secretary means the Secretary of Labor or person to whom authority under CFPA has been delegated.
(p) Service provider means any person that provides a material service to a covered person in connection with the offering or provision by such covered person of a consumer financial product or service, including a person that—
(1) Participates in designing, operating, or maintaining the consumer financial product or service; or
(2) Processes transactions relating to the consumer financial product or service (other than unknowingly or incidentally transmitting or processing financial data in a manner that such data is undifferentiated from other types of data of the same form as the person transmits or processes);
(3) The term “service provider” does not include a person solely by virtue of such person offering or providing to a covered person:
(i) A support service of a type provided to businesses generally or a similar ministerial service; or
(ii) Time or space for an advertisement for a consumer financial product or service through print, newspaper, or electronic media.
(4) A person that is a service provider shall be deemed to be a covered person to the extent that such person engages in the offering or provision of its own consumer financial product or service.
(q) 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.
§ 1985.102 Obligations and prohibited acts.
(a) No covered person or service provider may terminate or in any other way retaliate against, or cause to be terminated or retaliated against, including, but not limited to, intimidating, threatening, restraining, coercing, blacklisting or disciplining, any covered employee or any authorized representative of covered employees because such employee or representative, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee), engaged in any of the activities specified in paragraphs (b)(1) through (4) of this section. (b) A covered employee or authorized representative is protected against retaliation (as described in paragraph (a) of this section) by a covered person or service provider because he or she:
(1) Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Bureau, or any other State, local, or Federal, government authority or law enforcement agency, information relating to any violation of, or any act or omission that the employee reasonably believes to be a violation of, any provision of Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203, 124 Stat. 1376, 1955 (July 21, 2010), or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;
(2) Testified or will testify in any proceeding resulting from the administration or enforcement of any provision of Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111-203, 124 Stat. 1376, 1955 (July 21, 2010), or any other provision of law that is subject to the jurisdiction of the Bureau, or any rule, order, standard, or prohibition prescribed by the Bureau;
(3) Filed, instituted, or caused to be filed or instituted any proceeding under any Federal consumer financial law; or
(4) Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any law, rule, order, standard, or prohibition subject to the jurisdiction of, or enforceable by, the Bureau.
§ 1985.103 Filing of retaliation complaint.
(a) Who may file. A person who believes that he or she has been discharged or otherwise retaliated against by any person in violation of CFPA may file, or have filed by any person on his or her 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 complainant 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 CFPA occurs, any person who believes that he or she has been retaliated against in violation of the Act 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, electronic communication transmittal, 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. For example, OSHA may consider the time for filing a complaint equitably tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action.
§ 1985.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and paragraph (e) of § 1985.110. OSHA will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel) and to the Bureau.
(b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent and the complainant each may submit to OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent and the complainant each may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, 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, further investigation of the complaint will not be conducted 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, OSHA 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 in § 1985.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated CFPA and that preliminary reinstatement is warranted, OSHA will 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, OSHA will redact them, if necessary, consistent 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 must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require.
§ 1985.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of CFPA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 means that allow OSHA to confirm delivery 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 fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1985.106. 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.
[81 FR 14383, Mar. 17, 2016, as amended at 86 FR 1792, Jan. 11, 2021]
Subpart B Litigation
§ 1985.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under CFPA, 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 § 1985.105. The objections, request for a hearing, and/or request for attorney 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 fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
[81 FR 14383, Mar. 17, 2016, as amended at 86 FR 1792, Jan. 11, 2021]
§ 1985.107 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[81 FR 14383, Mar. 17, 2016, as amended at 86 FR 1793, Jan. 11, 2021]
§ 1985.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules.
(b) The Bureau, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at the Bureau's discretion. At the request of the Bureau, copies of all documents in a case must be sent to the Bureau, whether or not it is participating in the proceeding.
§ 1985.109 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1985.104(e) nor OSHA'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 ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 ALJ may award to the respondent reasonable attorney fees, 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 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1985.110 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 fees, must file a written petition for review with the ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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 must be served on the Assistant Secretary 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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order will require, where appropriate, affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order 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 reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[81 FR 14383, Mar. 17, 2016, as amended at 85 FR 30624, May 20, 2020; 86 FR 1793, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1985.111 Withdrawal of complaints, findings, 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 complainant may withdraw his or her complaint by notifying OSHA, orally or in writing, of his or her withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1985.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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 appropriate.
(e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1985.113.
§ 1985.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[81 FR 14383, Mar. 17, 2016, as amended at 85 FR 30625, May 20, 2020]
§ 1985.113 Judicial enforcement.
Whenever any person has failed to comply with a final order, including one approving a settlement agreement, issued under CFPA, 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 or in the United States district court for the District of Columbia. 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 CFPA, the person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
§ 1985.114 District court jurisdiction of retaliation complaints.
(a) 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, either:
(1) Within 90 days after receiving a written determination under § 1985.105(a) provided that there has been no final decision of the Secretary; or
(2) If there has been no final decision of the Secretary within 210 days of the filing of the complaint.
(b) At the request of either party, the action shall be tried by the court with a jury.
(c) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1985.109. The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including:
(1) Reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination;
(2) The amount of back pay, with interest;
(3) Compensation for any special damages sustained as a result of the discharge or discrimination; and
(4) Litigation costs, expert witness fees, and reasonable attorney fees.
(d) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file-stamped complaint. In all cases, a copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1985.115 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 that justice or the administration of CFPA requires.
PART 1986 PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION ACT (SPA), AS AMENDED
Authority: 46 U.S.C. 2114; 49 U.S.C. 31105; Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order 01-2020, 85 FR 13186 (March 6, 2020).
Source: 81 FR 63409, Sept. 15, 2016, unless otherwise noted.
Subpart A Complaints, Investigations, Findings, and Preliminary Orders
§ 1986.100 Purpose and scope.
(a) This part sets forth the procedures for, and interpretations of, the Seaman's Protection Act (SPA), 46 U.S.C. 2114, as amended, which protects a seaman from retaliation because the seaman has engaged in protected activity pertaining to compliance with maritime safety laws and accompanying regulations. SPA incorporates the procedures, requirements, and rights described in the whistleblower provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105.
(b) This part establishes procedures pursuant to the statutory provisions set forth above for the expeditious handling of retaliation complaints filed by seamen or 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. In addition, the rules in this part provide the Secretary's interpretations on certain statutory issues.
§ 1986.101 Definitions.
As used in this part:
(a) Act means the Seaman's Protection Act (SPA), 46 U.S.C. 2114, 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) Citizen of the United States means an individual who is a national of the United States as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(22)); a corporation incorporated under the laws of the United States or a State; a corporation, partnership, association, or other business entity if the controlling interest is owned by citizens of the United States or whose principal place of business or base of operations is in a State; or a governmental entity of the Federal Government of the United States, of a State, or of a political subdivision of a State. The controlling interest in a corporation is owned by citizens of the United States if a majority of the stockholders are citizens of the United States.
(e) Complainant means the seaman who filed a SPA whistleblower complaint or on whose behalf a complaint was filed.
(f) Cooperated means any assistance or participation with an investigation, at any stage of the investigation, and regardless of the outcome of the investigation.
(g) Maritime safety law or regulation includes any statute or regulation regarding health or safety that applies to any person or equipment on a vessel.
(h) Notify or notified includes any oral or written communications.
(i) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
(j) Person means one or more individuals or other entities, including but not limited to corporations, companies, associations, firms, partnerships, societies, and joint stock companies.
(k) Report or reported means any oral or written communications.
(l) Respondent means the person alleged to have violated 46 U.S.C. 2114.
(m) Seaman means any individual engaged or employed in any capacity on board a U.S.-flag vessel or any other vessel owned by a citizen of the United States, except members of the Armed Forces. The term includes an individual formerly performing the work described above or an applicant for such work.
(n) Secretary means the Secretary of Labor or persons to whom authority under the Act has been delegated.
(o) 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.
(p) Vessel means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.
(q) Vessel owner includes all of the agents of the owner, including the vessel's master.
(r) Any future amendments to SPA that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein.
§ 1986.102 Obligations and prohibited acts.
(a) A person may not retaliate against any seaman because the seaman:
(1) In good faith reported or was about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believed that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred;
(2) Refused to perform duties ordered by the seaman's employer because the seaman had a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public;
(3) Testified in a proceeding brought to enforce a maritime safety law or regulation prescribed under that law;
(4) Notified, or attempted to notify, the vessel owner or the Secretary of the department in which the Coast Guard was operating of a work-related personal injury or work-related illness of a seaman;
(5) Cooperated with a safety investigation by the Secretary of the department in which the Coast Guard was operating or the National Transportation Safety Board;
(6) Furnished information to the Secretary of the department in which the Coast Guard was operating, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or
(7) Accurately reported hours of duty under part A of subtitle II of title 46 of the United States Code.
(b) Retaliation means any discrimination against a seaman including, but not limited to, discharging, demoting, suspending, harassing, intimidating, threatening, restraining, coercing, blacklisting, or disciplining a seaman.
(c) For purposes of paragraph (a)(2) of this section, the circumstances causing a seaman's apprehension of serious injury must be of such a nature that a reasonable person, under similar circumstances, would conclude that there was a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman's employer. To qualify for protection based on activity described in paragraph (a)(2) of this section, the seaman must have sought from the employer, and been unable to obtain, correction of the unsafe condition. Any seaman who requested such a correction shall be protected against retaliation because of the request.
§ 1986.103 Filing of retaliation complaints.
(a) Who may file. A seaman who believes that he or she has been retaliated against by a person in violation of SPA may file, or have filed by any person on the seaman'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 seaman is unable to file a complaint in English, OSHA will accept the complaint in any other language.
(c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the seaman 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. Not later than 180 days after an alleged violation occurs, a seaman who believes that he or she has been retaliated against in violation of SPA 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, electronic communication transmittal, 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 SPA 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 SPA and section 11(c). Similarly, a complaint filed under section 11(c) that alleges facts that would also constitute a violation of SPA will be deemed to be a complaint filed under both SPA and section 11(c). Normal procedures and timeliness requirements under the respective statutes and regulations will be followed.
§ 1986.104 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 with a copy of the complaint, redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The Assistant Secretary will also notify the respondent 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 U.S. Coast Guard.
(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.
(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 seaman engaged in a protected activity;
(ii) The respondent knew or suspected that the seaman engaged in the protected activity;
(iii) The seaman 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 seaman 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 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 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 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 paragraph (e)(4) of this section, 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 in § 1986.105, 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 must 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.
§ 1986.105 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 SPA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief. Such order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions and privileges of the complainant's employment; payment of compensatory damages (back pay 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). 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. The preliminary order may also require the respondent to pay punitive damages of 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, where appropriate, the preliminary order will be sent by means that allow OSHA to confirm delivery 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 the order and to request a hearing. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 request for a hearing have been timely filed as provided at § 1986.106. 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.
[81 FR 63409, Sept. 15, 2016, as amended at 86 FR 1793, Jan. 11, 2021]
Subpart B Litigation
§ 1986.106 Objections to the findings and the preliminary order and request for a hearing.
(a) Any party who desires review, including judicial review, must file any objections and a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1986.105(c). 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 electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on the other parties of record, and the OSHA official who issued the findings.
(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 Assistant Secretary's preliminary order of reinstatement, which shall be granted only on the basis of exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or preliminary order will become the final decision of the Secretary, not subject to judicial review.
[81 FR 63409, Sept. 15, 2016, as amended at 86 FR 1793, Jan. 11, 2021]
§ 1986.107 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[81 FR 63409, Sept. 15, 2016, as amended at 86 FR 1793, Jan. 11, 2021]
§ 1986.108 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 this section, he or she may, upon written notice to the ALJ or the Administrative Review Board (ARB), as the case may be, 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 or the ARB, as the case may be, will issue appropriate orders to regulate the course of future proceedings.
(3) Copies of documents in all cases shall be sent to all parties, or if they are represented by counsel, to the latter. In cases in which the Assistant Secretary is a party, copies of the documents shall be sent to the Regional Solicitor's Office representing the Assistant Secretary.
(b) The U.S. Coast Guard, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at its discretion. At the request of the U.S. Coast Guard, copies of all documents in a case must be sent to that agency, whether or not that agency is participating in the proceeding.
§ 1986.109 Decisions 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 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.
(c) Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 1986.104(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 ALJ will issue an order that will require, where appropriate: affirmative action to abate the violation, reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (back pay 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. 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.
(e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, 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 14 days after the date of the decision unless a timely petition for review has been filed with the ARB, U.S. Department of Labor. The ALJ decision will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the decision for review.
§ 1986.110 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 the ALJ must file a written petition for review with the ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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, Division of Occupational Safety and Health, 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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 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 such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision also will be served on the Assistant Secretary and on the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order will require, where appropriate, affirmative action to abate the violation; reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (back pay 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. 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. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order denying the complaint. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[81 FR 63409, Sept. 15, 2016, as amended at 85 FR 30625, May 20, 2020; 86 FR 1793, Jan. 11, 2021; 86 FR 8687, Feb. 9, 2021]
Subpart C Miscellaneous Provisions
§ 1986.111 Withdrawal of SPA complaints, findings, 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 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 the findings and/or a preliminary order at any time before the expiration of the 30-day objection period described in § 1986.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or preliminary order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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 SPA 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 the Assistant Secretary's 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.
(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 in a United States district court pursuant to 49 U.S.C. 31105(e), as incorporated by 46 U.S.C. 2114(b).
§ 1986.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, any person adversely affected or aggrieved by the order may file a petition for review of the order in the court of appeals of the United States 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 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, or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[81 FR 63409, Sept. 15, 2016, as amended at 85 FR 30625, May 20, 2020]
§ 1986.113 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 SPA, 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.
§ 1986.114 District court jurisdiction of retaliation complaints under SPA.
(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. The action shall, at the request of either party to such action, be tried by the court with a 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor.
§ 1986.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of the rules in 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 such orders as justice or the administration of SPA requires.
PART 1987 PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER SECTION 402 OF THE FDA FOOD SAFETY MODERNIZATION ACT
Authority: 21 U.S.C. 399d; Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020, 85 FR 13186 (March 6, 2020).
Source: 81 FR 22539, Apr. 18, 2016, unless otherwise noted.
Subpart A Complaints, Investigations, Findings and Preliminary Orders
§ 1987.100 Purpose and scope.
(a) This part sets forth the procedures for, and interpretations of, section 402 of the FDA Food Safety Modernization Act (FSMA), Public Law 111-353, 124 Stat. 3885, which was signed into law on January 4, 2011. Section 402 of the FDA Food Safety Modernization Act amended the Federal Food, Drug, and Cosmetic Act (FD&C), 21 U.S.C. 301 et seq., by adding new section 1012. See 21 U.S.C. 399d. Section 1012 of the FD&C provides protection for an employee from retaliation because the employee has engaged in protected activity pertaining to a violation or alleged violation of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C.
(b) This part establishes procedures under section 1012 of the FD&C for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf. The rules in this part, together with those codified at 29 CFR part 18, set forth the procedures under section 1012 of the FD&C for submission of complaints, 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. In addition, the rules in this part provide the Secretary's interpretations on certain statutory issues.
§ 1987.101 Definitions.
As used in this part:
(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 FSMA.
(b) Business days means days other than Saturdays, Sundays, and Federal holidays.
(c) Complainant means the employee who filed a complaint under FSMA or on whose behalf a complaint was filed.
(d) Covered entity means an entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.
(e) Employee means an individual presently or formerly working for a covered entity, an individual applying to work for a covered entity, or an individual whose employment could be affected by a covered entity.
(f) FD&C means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., which is chapter 9 of title 21.
(g) FDA means the Food and Drug Administration of the United States Department of Health and Human Services.
(h) Food means articles used for food or drink for man or other animals, chewing gum, and articles used for components of any such article.
(i) FSMA means section 402 of the FDA Food Safety Modernization Act, Public Law 111-353, 124 Stat. 3885 (Jan. 4, 2011) (codified at 21 U.S.C. 399d).
(j) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
(k) Person includes an individual, partnership, corporation, and association.
(l) Respondent means the employer named in the complaint who is alleged to have violated the FSMA.
(m) Secretary means the Secretary of Labor or person to whom authority under the FSMA 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.
§ 1987.102 Obligations and prohibited acts.
(a) No covered entity may discharge or otherwise 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, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee), has engaged in any of the activities specified in paragraphs (b)(1) through (4) of this section.
(b) An employee is protected against retaliation because the employee (or any person acting pursuant to a request of the employee) has:
(1) Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of the FD&C or any order, rule, regulation, standard, or ban under the FD&C;
(2) Testified or is about to testify in a proceeding concerning such violation;
(3) Assisted or participated or is about to assist or participate in such a proceeding; or
(4) Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of the FD&C, or any order, rule, regulation, standard, or ban under the FD&C.
§ 1987.103 Filing of retaliation complaint.
(a) Who may file. An employee who believes that he or she has been retaliated against in violation of FSMA 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 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 FSMA occurs, any employee who believes that he or she has been retaliated against in violation of that section 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, electronic communication transmittal, 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. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action.
§ 1987.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1987.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel) and to the FDA.
(b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent and the complainant each may submit to OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent and the complainant each may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 (i.e., a non-frivolous allegation) that a 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 action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, 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, further investigation of the complaint will not be conducted 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 paragraph (e)(4) of this section, OSHA 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 in § 1987.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated FSMA and that preliminary reinstatement is warranted, OSHA will 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, OSHA will redact them, if necessary, consistent 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 must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require.
§ 1987.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of FSMA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 means that allow OSHA to confirm delivery 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 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. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1987.106. 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.
[81 FR 22539, Apr. 18, 2016, as amended at 86 FR 1793, Jan. 11, 2021]
Subpart B Litigation
§ 1987.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under FSMA, 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 § 1987.105. The objections, request for a hearing, and/or request for attorney 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 fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
[81 FR 22539, Apr. 18, 2016, as amended at 86 FR 1794, Jan. 11, 2021]
§ 1987.107 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[81 FR 22539, Apr. 18, 2016, as amended at 86 FR 1794, Jan. 11, 2021]
§ 1987.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by the rules in this part.
(b) The FDA, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at the FDA's discretion. At the request of the FDA, copies of all documents in a case must be sent to the FDA, whether or not the FDA is participating in the proceeding.
§ 1987.109 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1987.104(e) nor OSHA'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 ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 ALJ may award to the respondent a reasonable attorney 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 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1987.110 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 fees, must file a written petition for review with the ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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 must be served on the Assistant Secretary 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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 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 such case the conclusion of the hearing is the date the motion for reconsideration is denied or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order will require, where appropriate, affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order 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 reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[81 FR 22539, Apr. 18, 2016, as amended at 85 FR 30625, May 20, 2020; 86 FR 1794, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1987.111 Withdrawal of complaints, findings, 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 complainant may withdraw his or her complaint by notifying OSHA, orally or in writing, of his or her withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1987.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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 appropriate.
(e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1987.113.
§ 1987.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[81 FR 22539, Apr. 18, 2016, as amended at 85 FR 30626, May 20, 2020]
§ 1987.113 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 FSMA, 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 or in the United States district court for the District of Columbia. 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 FSMA, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
§ 1987.114 District court jurisdiction of retaliation complaints.
(a) 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, either:
(1) Within 90 days after receiving a written determination under § 1987.105(a) provided that there has been no final decision of the Secretary; or
(2) If there has been no final decision of the Secretary within 210 days of the filing of the complaint.
(b) At the request of either party, the action shall be tried by the court with a jury.
(c) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1987.109. The court shall have jurisdiction to grant all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including:
(1) Reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination;
(2) The amount of back pay, with interest;
(3) Compensation for any special damages sustained as a result of the discharge or discrimination; and
(4) Litigation costs, expert witness fees, and reasonable attorney fees.
(d) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file-stamped complaint. In all cases, a copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1987.115 Special circumstances; waiver of rules.
In special circumstances not contemplated by the provisions of the rules in 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 such orders that justice or the administration of FSMA requires.
PART 1988 PROCEDURES FOR HANDLING RETALIATION COMPLAINTS UNDER SECTION 31307 OF THE MOVING AHEAD FOR PROGRESS IN THE 21ST CENTURY ACT (MAP-21)
Authority: 49 U.S.C. 30171; Secretary of Labor's Order No. 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012); Secretary's Order No. 01-2020, 85 FR 13186 (March 6, 2020).
Source: 81 FR 13984, Mar. 16, 2016, unless otherwise noted.
Subpart A Complaints, Investigations, Findings and Preliminary Orders
§ 1988.100 Purpose and scope.
(a) This part sets forth procedures for, and interpretations of, section 31307 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 Stat. 405, 765 (July 6, 2012) (codified at 49 U.S.C. 30171). MAP-21 provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to the manufacture or sale of motor vehicles and motor vehicle equipment.
(b) This part establishes procedures under MAP-21 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 under MAP-21 for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. In addition, these rules provide the Secretary's interpretations on certain statutory issues.
§ 1988.101 Definitions.
As used in this part:
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 MAP-21.
Business days means days other than Saturdays, Sundays, and Federal holidays.
Complainant means the person who filed a MAP-21 complaint or on whose behalf a complaint was filed.
Dealer or Dealership means a person selling and distributing new motor vehicles or motor vehicle equipment primarily to purchasers that in good faith purchase the vehicles or equipment other than for resale.
Defect includes any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment.
Employee means an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by a motor vehicle manufacturer, dealer, part supplier, or dealership.
Manufacturer means a person:
(1) Manufacturing or assembling motor vehicles or motor vehicle equipment; or
(2) Importing motor vehicles or motor vehicles equipment for resale.
MAP-21 means Section 31307 of the Moving Ahead for Progress in the 21st Century Act of 2012, Pub. L. 112-141, 126 Stat. 405, 765 (July 6, 2012) (codified at 49 U.S.C. 30171).
Motor vehicle means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.
Motor vehicle equipment means—
(1) Any system, part, or component of a motor vehicle as originally manufactured;
(2) Any similar part or component manufactured or sold for replacement or improvement of a system, part, or component, or as an accessory or addition to a motor vehicle; or
(3) Any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner, that—
(i) Is not a system, part or component of a motor vehicle; and
(ii) Is manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding users of motor vehicles against risk of accident, injury, or death.
NHTSA means the National Highway Traffic Safety Administration of the United States Department of Transportation.
OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
Person means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, estate, cooperative organization, or other entity.
Respondent means the person named in the complaint who is alleged to have violated MAP-21.
Secretary means the Secretary of Labor.
§ 1988.102 Obligations and prohibited acts.
(a) No motor vehicle manufacturer, part supplier, or dealership may discharge or otherwise retaliate against, including, but not limited to, intimidating, threatening, restraining, coercing, blacklisting or disciplining, an 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) through (5) of this section.
(b) An employee is protected against retaliation (as described in paragraph (a) of this section) by a motor vehicle manufacturer, part supplier, or dealership because he or she:
(1) Provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the employer or the Secretary of Transportation, information relating to any motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement of Chapter 301 of Title 49 of the United States Code;
(2) Filed, or 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 motor vehicle defect, noncompliance, or any violation or alleged violation of any notification or reporting requirement of Chapter 301 of Title 49 of the United States Code;
(3) Testified or is about to testify in such a proceeding;
(4) Assisted or participated or is about to assist or participate in such a proceeding; or
(5) Objected to, or refused to participate in, any activity that the employee reasonably believed to be in violation of any provision of Chapter 301 of Title 49 of the United States Code, or any order, rule, regulation, standard, or ban under such provision.
§ 1988.103 Filing of retaliation complaint.
(a) Who may file. A person who believes that he or she has been discharged or otherwise retaliated against by any person in violation of MAP-21 may file, or have filed by any person on his or her 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 complainant 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 MAP-21 occurs, any person who believes that he or she has been retaliated against in violation of the MAP-21 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, electronic communication transmittal, 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. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action.
§ 1988.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and paragraph (e) of § 1988.110. OSHA will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel) and to the NHTSA.
(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 OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 a 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 action took place within a temporal proximity of the protected activity, or at the first opportunity available to the respondent, 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, further investigation of the complaint will not be conducted 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, OSHA 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 in § 1988.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated MAP-21 and that preliminary reinstatement is warranted, OSHA will 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, OSHA will redact them, if necessary, consistent 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 investigator, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require.
§ 1988.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of MAP-21.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 means that allow OSHA to confirm delivery 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 fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1988.106. 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.
[81 FR 13984, Mar. 16, 2016, as amended at 86 FR 1794, Jan. 11, 2021]
Subpart B Litigation
§ 1988.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under MAP-21, 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 § 1988.105. The objections, request for a hearing, and/or request for attorney 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 fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
[81 FR 13984, Mar. 16, 2016, as amended at 86 FR 1794, Jan. 11, 2021]
§ 1988.107 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
[81 FR 13984, Mar. 16, 2016, as amended at 86 FR 1794, Jan. 11, 2021]
§ 1988.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules.
(b) The NHTSA, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at NHTSA's discretion. At the request of NHTSA, copies of all documents in a case must be sent to NHTSA, whether or not it is participating in the proceeding.
§ 1988.109 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1988.104(e) nor OSHA'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 ALJ will issue an order that will require, where appropriate: Affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters.
(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 ALJ may award to the respondent a reasonable attorney 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 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1988.110 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 fees, must file a written petition for review with the ARB. 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 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal 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 must be served on the Assistant Secretary 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 any 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 decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing relief to the complainant. The order will require, where appropriate, affirmative action to abate the violation; reinstatement of the complainant to his or her former position, together with the compensation (including back pay and interest), terms, conditions, and privileges of the complainant's employment; and payment of compensatory damages, including, at the request of the complainant, the aggregate amount of all costs and expenses (including attorney and expert witness fees) reasonably incurred. 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. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate calendar quarters. Such order is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
(e) If the ARB concludes that the respondent has not violated the law, the ARB will issue an order 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 reasonable attorney fees, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary as provided in Secretary's Order 01-2020 (or any successor to that order).
[81 FR 13984, Mar. 16, 2016, as amended at 85 FR 30626, May 20, 2020; 86 FR 1794, Jan. 11, 2021]
Subpart C Miscellaneous Provisions
§ 1988.111 Withdrawal of complaints, findings, 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 complainant may withdraw his or her complaint by notifying OSHA, orally or in writing, of his or her withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA 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 the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1988.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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 appropriate.
(e) Any settlement approved by OSHA, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1988.113.
§ 1988.112 Judicial review.
(a) Within 60 days after the issuance of a final order (including a decision issued by the Secretary upon his or her discretionary review) for which judicial review is available, 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 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 or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
[81 FR 13984, Mar. 16, 2016, as amended at 85 FR 30627, May 20, 2020]
§ 1988.113 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 MAP-21, 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. 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 MAP-21, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
§ 1988.114 District court jurisdiction of retaliation complaints.
(a) If the Secretary has not issued a final decision with 210 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. At the request of either party, the action shall be tried by the court with a jury.
(b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1988.109.
(c) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1988.115 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 that justice or the administration of MAP-21 requires.
PART 1989 PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE TAXPAYER FIRST ACT (TFA)
Authority: 26 U.S.C. 7623(d); Secretary of Labor's Order 08-2020 (May 15, 2020), 85 FR 58393 (September 18, 2020); Secretary of Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6, 2020).
Source: 87 FR 12583, Mar. 7, 2022, unless otherwise noted.
Subpart A Complaints, Investigations, Findings, and Preliminary Orders
§ 1989.100 Purpose and scope.
(a) This part sets forth procedures for, and interpretations of, section 1405(b) of the Taxpayer First Act (TFA), Public Law 116-25, 133 Stat. 981 (July 1, 2019) (codified at 26 U.S.C. 7623(d)). TFA provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to underpayment of tax or any conduct which the employee reasonably believes constitutes a violation of the internal revenue laws or any provision of Federal law relating to tax fraud.
(b) This part establishes procedures under TFA 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 under TFA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. In addition, these rules provide the Secretary's interpretations on certain statutory issues.
§ 1989.101 Definitions.
As used in this part:
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom the Assistant Secretary delegates authority under TFA.
Business days means days other than Saturdays, Sundays, and Federal holidays.
Complainant means the person who filed a TFA complaint or on whose behalf a complaint was filed.
Employee means an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by, another person.
IRS means the Internal Revenue Service of the United States Department of the Treasury.
OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
Person means an individual, partnership, company, corporation, association (incorporated or unincorporated), trust, or estate.
Respondent means the person named in the complaint who is alleged to have violated TFA.
Secretary means the Secretary of Labor.
TFA means section 1405(b) of the Taxpayer First Act (TFA), Public Law 116-25, 133 Stat. 981 (July 1, 2019) (codified at 26 U.S.C. 7623(d)).
§ 1989.102 Obligations and prohibited acts.
(a) No employer or any officer, employee, contractor, subcontractor, or agent of such employer may discharge, demote, suspend, threaten, harass, or in any other manner retaliate against, including, but not limited to, intimidating, restraining, coercing, blacklisting, or disciplining, an employee in the terms and conditions of employment in reprisal for the employee having 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 an employer or any officer, employee, contractor, subcontractor, or agent of such employer in reprisal for any lawful act done by the employee:
(1) To provide information, cause information to be provided, or otherwise assist in an investigation regarding underpayment of tax or any conduct which the employee reasonably believes constitutes a violation of the internal revenue laws or any provision of Federal law relating to tax fraud, when the information or assistance is provided to the Internal Revenue Service, the Secretary of the Treasury, the Treasury Inspector General for Tax Administration, the Comptroller General of the United States, the Department of Justice, the United States Congress, a person with supervisory authority over the employee, or any other person working for the employer who has the authority to investigate, discover, or terminate misconduct; or
(2) To testify, participate in, or otherwise assist in any administrative or judicial action taken by the Internal Revenue Service relating to an alleged underpayment of tax or any violation of the internal revenue laws or any provision of Federal law relating to tax fraud.
§ 1989.103 Filing of retaliation complaint.
(a) Who may file. A person who believes that they have been discharged or otherwise retaliated against by any person in violation of TFA may file, or have filed by any person on their 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 complainant 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. Complaints may also be filed online at https://www.osha.gov/whistleblower/WBComplaint.html.
(d) Time for filing. Within 180 days after an alleged violation of TFA occurs, any person who believes that they have been retaliated against in violation of TFA may file, or have filed by any person on their behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic filing or transmittal, 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. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action.
§ 1989.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent and the complainant's employer (if different) of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1989.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel) and to the IRS.
(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 OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA generally will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 a 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 complainant shows that the adverse action took place shortly after the protected activity. 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, further investigation of the complaint will not be conducted 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 its burden set forth in the prior paragraph, OSHA 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 in § 1989.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated TFA and that preliminary reinstatement is warranted, OSHA will 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, OSHA will redact them, if necessary, consistent 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 investigator, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require.
§ 1989.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of TFA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will include all relief necessary to make the complainant whole including, where appropriate: Reinstatement with the same seniority status that the complainant would have had, but for the retaliation; the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily. Where appropriate, the preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods.
(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 physical or electronic means that allow OSHA to confirm delivery to all parties of record (or 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 fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges if electronic filing is available. The findings also may specify the means, including electronic means, for serving OSHA and the Associate Solicitor for Fair Labor Standards with documents in the administrative litigation as required under this Part. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1989.106. 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
§ 1989.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under TFA, 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 § 1989.105. The objections and request for hearing and/or request for attorney fees must be in writing and must state whether the objections are to the findings, the preliminary order, or both, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for serving then with copies of the objections.
(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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
§ 1989.107 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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
§ 1989.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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, and the right to seek discretionary review of a decision of the Administrative Review Board (ARB) from the Secretary.
(2) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules. Except as otherwise provided in rules of practice and/or procedure before the OALJ or the ARB, OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for serving them with documents under this section.
(b) The IRS, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at the IRS's discretion. At the request of the IRS, copies of all documents in a case must be sent to the IRS, whether or not it is participating in the proceeding.
§ 1989.109 Decisions 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1989.104(e) nor OSHA'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 ALJ will issue an order providing all relief necessary to make the complainant whole, including, where appropriate: Reinstatement with the same seniority status that the complainant would have had, but for the retaliation; the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods.
(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 ALJ may award to the respondent a reasonable attorney 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. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of decisions on them under this section. 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 30 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review ARB (ARB), U.S. Department of Labor. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1989.110 Decisions 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 fees, must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue decisions under this part subject to the Secretary's discretionary 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 30 days of the date of the decision of the ALJ. All petitions and documents submitted to the ARB must be filed in accordance with 29 CFR part 26. The date of the postmark, facsimile transmittal, or electronic transmittal 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. The petition for review must also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of petitions for review on them under this section.
(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 any 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 a timely petition for review is not filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If a timely petition for review is not filed, the resulting final order is not subject to judicial review.
(c) The decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 30 days after the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 30 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of ARB decisions on them under this section.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing all relief necessary to make the complainant whole. The order will require, where appropriate: Reinstatement with the same seniority status that the complainant would have had, but for the retaliation; the sum of 200 percent of the amount of back pay and 100 percent of all lost benefits, with interest; and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees, and reasonable attorney fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods. Such order is subject to discretionary review by the Secretary (as provided in Secretary's Order 01-2020 or any successor to that order).
(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 fee, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary (as provided in Secretary's Order 01-2020 or any successor to that order).
[87 FR 12583, Mar. 7, 2022, as amended at 88 FR 15273, Mar. 13, 2023]
Subpart C Miscellaneous Provisions
§ 1989.111 Withdrawal of complaints, findings, 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 complainant may withdraw the complaint by notifying OSHA, orally or in writing, of the withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA will notify the parties (or 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 the complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1989.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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. If the Secretary has accepted the case for discretionary review, or directed that the case be referred for discretionary review, the settlement must be approved by the Secretary. A copy of the settlement will be filed with the ALJ or the ARB, as appropriate.
(e) Any settlement approved by OSHA, the ALJ, the ARB or the Secretary will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1989.113.
§ 1989.112 Judicial review.
(a) Within 60 days after the issuance of a final order for which judicial review is available (including a decision issued by the Secretary upon discretionary review), 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 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 the case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
§ 1989.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order of reinstatement or a final order issued under TFA, including one approving a settlement agreement, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. Whenever any person has failed to comply with a preliminary order of reinstatement or a final order issued under TFA, including one approving a settlement agreement, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
§ 1989.114 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. Either party shall be entitled to a trial by jury.
(b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1989.109.
(c) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1989.115 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, and after three days' notice to all parties, waive any rule or issue such orders that justice or the administration of TFA requires.
PART 1990 IDENTIFICATION, CLASSIFICATION, AND REGULATION OF POTENTIAL OCCUPATIONAL CARCINOGENS
Authority: Secs. 4, 6, 8, Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 8-76 (41 FR 25059); and 29 CFR part 1911.
Source: 45 FR 5282, Jan. 22, 1980, unless otherwise noted.
30 General
§ 1990.101 Scope.
This part establishes criteria and procedures for the identification, classification, and regulation of potential occupational carcinogens found in each workplace in the United States regulated by the Occupational Safety and Health Act of 1970 (the Act). The procedures contained in this part supplement the procedural regulations in other parts of this chapter. In the event of a conflict, the procedures contained in this part shall govern the identification, classification, and regulation of potential occupational carcinogens. This part may be referred to as “The OSHA Cancer Policy.”
§ 1990.102 Purpose.
The Act provides, among other things, that
the Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this section, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his or her working life. Development of standards under this section shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired (section 6(b)(5)).
It is the purpose of the regulations of this part to carry out the intent of the Act with respect to the identification, classification, and regulation of potential occupational carcinogens.
§ 1990.103 Definitions.
Terms used in this part shall have the meanings set forth in the Act. In addition, as used in this part, the following terms shall have the meanings set forth below:
Act means the Occupational Safety and Health Act of 1970 (Pub. L. 91-596, 84 Stat. 1590 et seq., 29 U.S.C. 551 et seq.).
Administrator of EPA means the Administrator of the United States Environmental Protection Agency, or designee.
Chairperson of CPSC means the Chairman of the United States Consumer Product Safety Commission, or designee.
Commissioner of FDA means the Commissioner of the Food and Drug Administration, United States Department of Health and Human Services, or designee.
Director of NCI means the Director of the National Cancer Institute, United States Department of Health and Human Services, or designee.
Director of NIEHS means the Director of the National Institute of Environmental Health Sciences, United States Department of Health and Human Services, or designee.
Director of NIOSH means the Director of the National Institute for Occupational Safety and Health, United States Department of Health and Human Services, or designee.
Mutagenesis means the induction of heritable changes in the genetic material of either somatic or germinal cells.
Positive results in short-term tests means positive results in assays for two or more of the following types of effect:
(1) The induction of DNA damage and/or repair;
(2) Mutagenesis in bacteria, yeast, Neurospora or Drosophila melanogaster;
(3) Mutagenesis in mammalian somatic cells;
(4) Mutagenesis in mammalian germinal cells; or
(5) Neoplastic transformation of mammalian cells in culture.
Potential occupational carcinogen means any substance, or combination or mixture of substances, which causes an increased incidence of benign and/or malignant neoplasms, or a substantial decrease in the latency period between exposure and onset of neoplasms in humans or in one or more experimental mammalian species as the result of any oral, respiratory or dermal exposure, or any other exposure which results in the induction of tumors at a site other than the site of administration. This definition also includes any substance which is metabolized into one or more potential occupational carcinogens by mammals.
Secretary of HHS means the Secretary of the United States Department of Health and Human Services, or designee.
§ 1990.104 Scientific review panel.
(a) General. At any time, the Secretary may request the Director of NCI, the Director of NIEHS and/or the Director of NIOSH to convene a scientific review panel (“the panel”) to provide recommendations to the Secretary in the identification, classification, or regulation of any potential occupational carcinogen.
(b) Membership. The panel will consist of individuals chosen by the respective Director(s). The panel will consist of individuals who are appropriately qualified in the disciplines relevant to the issues to be considered, and who are employed by the United States. The panel does not constitute an advisory committee within the meaning of section 6(b) or 7(b) of the Act, or the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770).
(c) Report. The Secretary shall request that the panel submit a report of its evaluation within ninety (90) days after the appointment of the members of the panel. The Secretary shall place a copy of the report in the record of any relevant rulemaking undertaken pursuant to this part and allow an appropriate time for public review and comment. If a panel is not established or fails to file a timely report, or if the Secretary determines that it is necessary to proceed without waiting for the panel's report, the Secretary may proceed in making any determination without such report.
(d) Other aid and assistance. Nothing herein precludes the Secretary from obtaining advice or other aid from any person or organization including NCI, NIEHS, and NIOSH.
§ 1990.105 Advisory committees.
The Secretary may appoint an Advisory Committee, pursuant to sections 6(b) and 7 of the Act, and 29 CFR part 1912, concerning any potential occupational carcinogen. The Secretary shall require the Advisory Committee to submit its recommendations to assist the Secretary in standard setting no later than ninety (90) days from the date of the Advisory Committee's appointment, unless extended by the Secretary for exceptional circumstances. If an Advisory Committee fails to file a timely report, the Secretary may proceed in standard setting activities without such a report.
§ 1990.106 Amendments to this policy.
(a) Initiation of review of this policy—(1) Secretary's request. No later than every three (3) years from the effective date of this part, or from the last general review, the Secretary shall request the Director of NCI, the Director of NIEHS and/or the Director of NIOSH, to review this part and render their opinions on whether significant scientific or technical advances made since the effective date of this part warrant any amendment to this part. The request shall ask that the answer be provided to the Secretary within one hundred twenty (120) days.
(2) Recommendations by the institutes. At any time, the Director of NCI, the Director of NIEHS and/or the Director of NIOSH may submit recommendations to the Secretary for amendments to this part whenever any of them believes that scientific or technical advances justify such amendments.
(3) Petitions from the public. (i) Any interested person may petition the Secretary concerning amendments to this part based upon substantial new issues or substantial new evidence.
(ii) For the purposes of this part, substantial new evidence is evidence which differs significantly from that presented in establishing this part, including amendments.
(iii) For the purposes of this part, substantial new issues are issues which differ significantly from those upon which the Secretary has reached a conclusion in the rulemaking establishing this part (including the conclusions reached in the preamble).
(iv) Each petition to amend this part shall contain at least the following information:
(A) Name and address of petitioner;
(B) The provisions which the petitioner believes are inappropriate;
(C) All data, views and arguments relied upon by the petitioner; and
(D) A detailed statement and analysis as to why the petitioner believes that the data, views and arguments presented by petitioner:
(1) Constitute substantial new issues or substantial new evidence; and
(2) Are so significant as to warrant amendment of this part.
(b) Response to recommendations and petitions—(1) By the institutes. Whenever any Director recommends an amendment to this part, the Secretary shall, within one hundred twenty (120) days after receipt of the recommendation, publish in the Federal Register, a notice which:
(i) States the reasons why the Secretary has determined not to commence a rulemaking proceeding to amend this part, in whole or in part, at that time; or
(ii) Commences a rulemaking proceeding to consider amending this part accordingly; or
(iii) Appoints an Advisory Committee as provided for by § 1990.105 of this part and sections 6(b) and 7 of the Act.
(2) By the public. Within ninety (90) days, or as soon thereafter as possible, after receipt of a petition pursuant to § 1990.106(a)(3), the Secretary shall:
(i) Refer the petition to the Director of NCI, the Director of NIEHS and/or the Director of NIOSH, in which case the provisions of § 1990.106 (a)(1) and (b)(1) are applicable; or
(ii) Appoint an advisory committee;
(iii) Deny the petition, briefly giving the reasons therefor; or
(iv) Commence a rulemaking proceeding to consider amending this part accordingly.
(3) On the Secretary's motion. At any time, the Secretary may, on his own motion, commence a rulemaking proceeding to amend this part.
[45 FR 5282, Jan. 22, 1980; 45 FR 43405, June 27, 1980]
31 The OSHA Cancer Policy
§ 1990.111 General statement of regulatory policy.
(a) This part establishes the criteria and procedures under which substances will be regulated by OSHA as potential occupational carcinogens. Although the conclusive identification of “carcinogens” is a complex matter “on the frontiers of science,” (IUD v. Hodgson 499 F. 2d 467, 474 (D.C. Cir. 1974)), responsible health regulatory policy requires that criteria should be specified for the identification of substances which should be regulated as posing potential cancer risks to workers.
(b) The criteria established by this part are based on an extensive review of scientific data and opinions. The part provides for amending these criteria in light of new scientific developments. Decisions as to whether any particular substance meets the criteria or not will be consistent with the policies and procedures established by this part and will be based upon scientific evaluation of the evidence on that substance.
(c) This part applies to individual substances, groups of substances, or combinations or mixtures of substances which may be found in workplaces in the United States. In individual rulemaking proceedings under this part, the identity and range of substances and mixtures to be covered by the standard will be specified and the appropriateness of applying the available evidence to the range of substances and mixtures proposed for regulation will be subject to scientific and policy review.
(d) Potential occupational carcinogens will be identified and classified on the basis of human epidemiological studies and/or experimental carcinogenesis bioassays in mammals. Positive results in short term tests will also be used as concordant evidence.
(e) Potential occupational carcinogens will be classified and regulated in accordance with the policy. The scientific evidence as to whether individual substances meet these criteria will be considered in individual rulemakings. The issues which may be considered in these rulemakings will be limited as specified herein.
(f) This policy provides for the classification of potential occupational carcinogens into two categories depending on the nature and extent of the available scientific evidence. The two categories of potential occupational carcinogens may be regulated differently.
(g) The policy establishes a procedure for setting priorities and making them public.
(h) Worker exposure to Category I Potential Carcinogens will be reduced primarily through the use of engineering and work practice controls.
(i) Worker exposure to Category II Potential Carcinogens will be reduced as appropriate and consistent with the statutory requirements on a case-by-case basis in the rulemaking proceedings on individual substances. Any permissible exposure level so established shall be met primarily through engineering and work practice controls.
(j) The assessment of cancer risk to workers resulting from exposure to a potential occupational carcinogen will be made on the basis of available data. Because of the uncertainties and serious consequences to workers if the estimated risk is understated, cautious and prudent assumptions will be utilized to perform risk assessments.
(k) Where the Secretary determines that one or more suitable substitutes exist for certain uses of Category I Potential Carcinogens that are less hazardous to humans, a no occupational exposure level shall be set for those uses, to be achieved solely through the use of engineering and work practice controls to encourage substitution. In determining whether a substitute is suitable, the Secretary will consider the technological and economic feasibility of the introduction of the substitute, including its relative effectiveness and other relevant factors, such as regulatory requirements and the time needed for an orderly transition to the substitute.
[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]
§ 1990.112 Classification of potential carcinogens.
The following criteria for identification, classification and regulation of potential occupational carcinogens will be applied, unless the Secretary considers evidence under the provisions of §§ 1990.143, 1990.144 and 1990.145 and determines that such evidence warrants an exception to these criteria.
(a) Category I Potential Carcinogens. A substance shall be identified, classified, and regulated as a Category I Potential Carcinogen if, upon scientific evaluation, the Secretary determines that the substance meets the definition of a potential occupational carcinogen in (1) humans, or (2) in a single mammalian species in a long-term bioassay where the results are in concordance with some other scientifically evaluated evidence of a potential carcinogenic hazard, or (3) in a single mammalian species in an adequately conducted long-term bioassay, in appropriate circumstances where the Secretary determines the requirement for concordance is not necessary. Evidence of concordance is any of the following: positive results from independent testing in the same or other species, positive results in short-term tests, or induction of tumors at injection or implantation sites.
(b) Category II Potential Carcinogens. A substance shall be identified, classified, and regulated as a Category II Potential Carcinogen if, upon scientific evaluation, the Secretary determines that:
(1) The substance meets the criteria set forth in § 1990.112(a), but the evidence is found by the Secretary to be only “suggestive”; or
(2) The substance meets the criteria set forth in § 1990.112(a) in a single mammalian species without evidence of concordance.
32 Priority Setting
§ 1990.121 Candidate list of potential occupational carcinogens.
(a) Contents. The Secretary shall prepare a list of substances (the “Candidate List”) which are reported to be present in any American workplace and which, on the basis of a brief scientific review of available data, may be considered candidates for further scientific review and possible regulation as Category I Potential Carcinogens or Category II Potential Carcinogens. For the purposes of this paragraph, “available data” means:
(1) The data submitted by any person;
(2) Any data referred to by the Secretary of HHS or by the Director of NIOSH, either in the latest list entitled “Suspected Carcinogens” or any other communication;
(3) Literature referred to in U.S. Public Health Service, Publication No. 149;
(4) Data summarized and reviewed in Monographs of the International Agency for Research on Cancer (IARC) of the World Health Organization;
(5) The Toxic Substances Control Act Inventory of Chemical Substances, published by the Administrator of EPA;
(6) The Secretary of HHS's Annual Report to the President and the Congress as required by the Community Mental Health Centers Extension Act of 1978, section 404(a)(9), 42 U.S.C. 285.
(7) Any other relevant data of which the Secretary has actual knowledge.
(b) Tentative classification. The Secretary may tentatively designate substances on the Candidate List as candidates for classification as Category I Potential Carcinogens or as Category II Potential Carcinogens, or may list substances without a tentative designation, based on the brief scientific review of available data for the purpose of initiating a more extensive scientific review.
(c) No legal rights established. The inclusion or exclusion of any substance from the Candidate List shall not be subject to judicial review nor be the basis of any legal action, nor shall the exclusion of any substance from the list prevent the regulation of that substance as a potential occupational carcinogen. The inclusion of a substance on the Candidate List and its possible tentative designation as a Category I Potential Carcinogen or a Category II Potential Carcinogen therein do not reflect a final scientific determination that the substance is, in fact, a Category I Potential Carcinogen or a Category II Potential Carcinogen. It is a policy determination based on the brief scientific review that the Secretary should conduct a thorough review of all relevant scientific data concerning the substance.
Effective Date Note:At 48 FR 243, Jan. 4, 1983, in § 1990.121, paragraphs (a) and (b) were stayed in order to evaluate the impact of publishing the Candidate Lists and Priority List and to reconsider the criteria used in establishing the lists (see also 47 FR 187, Jan. 5, 1982).
§ 1990.122 Response to petitions.
Whenever the Secretary receives any information submitted in writing by any interested person concerning the inclusion or omission of any substance from the Candidate List, the Secretary shall briefly review the information and any other available data, as defined in § 1990.121(a). The results of the Secretary's review shall be transmitted to the petitioner, together with a short statement of the Secretary's reasons therefor, and made public upon request.
Effective Date Note:At 48 FR 243, Jan. 4, 1983, § 1990.122 was stayed in order to evaluate the impact of publishing the Candidate List and Priority Lists and to reconsider the criteria used in establishing the lists (see also 47 FR 187, Jan. 5, 1982).
§ 1990.131 Priority lists for regulating potential occupational carcinogens.
The Secretary shall establish two priority lists for regulating potential occupational carcinogens. One list should include approximately ten (10) candidates for rulemaking as Category I Potential Carcinogens; the other approximately ten (10) candidates for rulemaking as Category II Potential Carcinogens. The order of placement of substances on these lists will not reflect the Secretary's determination of the exact order in which these substances should be regulated in rulemaking proceedings but rather a policy determination that the Secretary plans to address some or all of these substances prior to proceeding with a thorough scientific review of data concerning other substances on the Candidate List. The inclusion or exclusion of any substance on these lists shall not be subject to judicial review or be the basis for any legal action. The Secretary may regulate a potential occupational carcinogen which has not been placed on these lists. The inclusion of a substance on either of these lists does not reflect a final scientific determination that the substance is, in fact, a Category I Potential Carcinogen or a Category II Potential Carcinogen.
Effective Date Note:At 48 FR 243, Jan. 4, 1983, § 1990.131 was stayed in order to evaluate the impact of publishing the Candidate List and Priority Lists and to reconsider the criteria used in establishing the lists (see also 47 FR 187, Jan. 5, 1982).
§ 1990.132 Factors to be considered.
(a) The setting of priorities is a complex matter which requires subjective and policy judgments. It is not appropriate to establish a rigid formula or to assign predetermined weight to each factor. The identification of some of the elements is to guide the OSHA staff and inform the public on the development of priorities. It is not intended to create any legal rights with respect to the setting of priorities.
(b) Some factors which may be taken into account in setting priorities for regulating potential occupational carcinogens, when such data are available, are:
(1) The estimated number of workers exposed;
(2) The estimated levels of human exposure;
(3) The levels of exposure to the substance which have been reported to cause an increased incidence of neoplasms in exposed humans, animals or both;
(4) The extent to which regulatory action could reduce not only risks of contracting cancer but also other occupational and environmental health hazards;
(5) Whether the molecular structure of the substance is similar to the molecular structure of another substance which meets the definition of a potential occupational carcinogen;
(6) Whether there are substitutes that pose a lower risk of cancer or other serious human health problems, or available evidence otherwise suggests that the social and economic costs of regulation would be small; and
(7) OSHA will also consider its responsibilities for dealing with other health and safety hazards and will consider the actions being taken or planned by other governmental agencies in dealing with the same or similar health and safety hazards.
§ 1990.133 Publication.
(a) The Secretary shall publish the Candidate List in the Federal Register at least annually.
(b) The Secretary shall publish the Priority Lists in the Federal Register at least every six months and may seek public comment thereon.
(c) The Secretary may periodically publish in the Federal Register a notice requesting information concerning the classification and establishment of priorities for substances on the Candidate List together with a brief statement describing the type of information being sought.
Effective Date Note:At 48 FR 243, Jan. 4, 1983, § 1990.133 was stayed in order to evaluate the impact of publishing the Candidate List and Priority Lists and to reconsider the criteria used in establishing the lists (see also 47 FR 187, Jan. 5, 1982).
33 Regulation of Potential Occupational Carcinogens
§ 1990.141 Advance notice of proposed rulemaking.
(a) Within thirty (30) days after OSHA initiates a study concerning the economic and/or technological feasibility of specific standards that might be applied in the regulation of a potential occupational carcinogen, the Secretary will normally publish, in the Federal Register, a notice which includes at least the following:
(1) The name of the substance(s),
(2) The scope of the study, including where possible,
(i) Affected industries,
(ii) Levels of exposure being studied,
(iii) The anticipated completion date of the study;
(3) A brief summary of the available data on health effects;
(4) An estimate of when the Secretary anticipates the issuance of a proposal;
(5) An invitation to interested parties to provide relevant information;
(6) A statement that persons wishing to provide OSHA with their own study should complete it within 30 days after the anticipated proposal date; and
(7) A statement of the procedural requirements that must be met before substantial new issues or substantial new evidence will be considered in the proceeding pursuant to § 1990.145.
(b) Where the Secretary determines to discontinue a feasibility study, the Secretary should publish, within 30 days, a notice in the Federal Register so indicating.
§ 1990.142 Initiation of a rulemaking.
Where the Secretary decides to regulate a potential occupational carcinogen, the Secretary shall initiate a rulemaking proceeding in accordance with one of the following procedures, as appropriate.
(a) Notice of proposed rulemakings (section 6(b) of the Act)—(1) General. The Secretary may issue a notice of proposed rulemaking in the Federal Register, pursuant to section 6(b) of the Act and part 1911 of this chapter. The notice shall provide for no more than a sixty (60) day comment period, and may provide for a hearing, which shall be scheduled for no later than one hundred (100) days after publication of the Notice of Proposed Rulemaking. The commencement of the hearing may be postponed once, for no more than thirty (30) days, for good cause shown.
(2) Provisions of the proposed standard for Category I Potential Carcinogens. Whenever the Secretary issues a notice of proposed rulemaking to regulate a substance as a Category I Potential Carcinogen:
(i) The proposed standard shall contain at least provisions for scope and application, definitions, notification of use, a permissible exposure limit, monitoring, regulated areas, methods of compliance including the development of a compliance plan, respiratory protection, protective clothing and equipment, housekeeping, waste disposal, hygiene facilities, medical surveillance, employee information and training, signs and labels, recordkeeping, and employee observation of monitoring as set forth in § 1990.151, unless the Secretary explains why any or all such provisions are not appropriate;
(ii) The model standard set forth in § 1990.151 shall be used as a guideline, and
(iii) The permissible exposure limit shall be achieved primarily through engineering and work practice controls except that if a suitable substitute is available for one or more uses no occupational exposure shall be permitted for those uses.
(3) Provisions of the proposed standard for Category II Potential Carcinogens. Whenever the Secretary issues a Notice of Proposed Rulemaking to regulate a substance as a Category II Potential Carcinogen:
(i) The proposed standard shall contain at least provisions for scope and application, definitions, notification of use, monitoring, respiratory protection, protective clothing and equipment, housekeeping, waste disposal, medical surveillance, employee information and training, recordkeeping and employee observation of monitoring as set forth in § 1990.151, unless the Secretary explains why any or all such provisions are not appropriate; and
(ii) The model standard set forth in § 1990.151 shall be used as a guideline; and
(iii) Worker exposure to Category II Potential Carcinogens will be reduced as appropriate and consistent with the statutory requirements on a case-by-case basis in the individual rulemaking proceedings. Any permissible exposure level so established shall be met primarily through engineering and work practice controls.
(b) Emergency temporary standards (section 6(c) of the Act)—(1) General. The Secretary may issue an Emergency Temporary Standard (ETS) for a Category I Potential Carcinogen in accordance with section 6(c) of the Act.
(2) Provisions of the ETS. (i) The ETS shall contain at least provisions for scope and application, definitions, notification of use, a permissible exposure limit, monitoring, methods of compliance including the development of a compliance plan, respiratory protection, protective clothing and equipment, housekeeping, waste disposal, medical surveillance, employee information and training, signs and labels, recordkeeping and employee observation of monitoring, unless the Secretary explains why any or all such provisions are not appropriate.
(ii) The model standard set forth in § 1990.152 shall be used as a guideline.
(iii) The permissible exposure limit shall be achieved through any practicable combination of engineering controls, work practice controls and respiratory protection.
[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]
§ 1990.143 General provisions for the use of human and animal data.
Human and animal data which are scientifically evaluated to be positive evidence for carcinogenicity including the following policies shall be uniformly relied upon for the identification of potential occupational carcinogens. Arguments challenging the following provisions or their application to specific substances will be considered in individual rulemaking proceedings only if the evidence presented in support of the arguments meets the criteria for consideration specified in § 1990.144 or § 1990.145.
(a) Positive human studies. Positive results obtained in one or more human epidemiologic studies will be used to establish the qualitative inference of carcinogenic hazards to workers.
(b) Positive animal studies. Positive results obtained in one or more experimental studies conducted in one or more mammalian species will be used to establish the qualitative inference of carcinogenic hazard to workers. Arguments that positive results obtained in mammalian species should not be relied upon will be considered only if evidence is presented which meets the criteria for consideration specified in § 1990.144(c) or 1990.144(f).
(c) Non-positive human studies. Positive results in human or mammalian studies generally will be used for the qualitative identification of potential occupational carcinogens, even where non-positive results from human studies exist. Such non-positive results will be considered by the Secretary only if the studies or results meet the criteria set forth in § 1990.144(a).
(d) Non-positive animal studies. Positive results in one or more mammalian studies will be used for the qualitative identification of potential occupational carcinogens, even where non-positive studies exist in other mammalian species. Where non-positive and positive results exist in studies in the same species, the non-positive results will be evaluated.
(e) Spontaneous tumors. Positive results in human or mammalian studies for the induction or acceleration of induction of tumors of a type which occurs “spontaneously” in unexposed individuals will be used for the qualitative identification of potential occupational carcinogens.
(f) Routes of exposure. (1) Positive results in studies in which mammals are exposed via the oral, respiratory or dermal routes will be used for the qualitative identification of potential occupational carcinogens, whether tumors are induced at the site of application or distant sites.
(2) Positive results in studies in which mammals are exposed via any route of exposure and in which tumors are induced at sites distant from the site of administration will be used for the qualitative identification of potential occupational carcinogens.
(3)(i) Positive results in mammalian studies in which tumors are induced only at the site of administration, in which a substance or mixture of substances is administered by routes other than oral, respiratory or dermal, will be used as “concordant” evidence that a substance is a potential occupational carcinogen.
(ii) Arguments that such studies should not be relied upon will be considered only if evidence which meets the criteria set forth in § 1990.144(b) is provided.
(g) Use of high doses in animal testing. Positive results for carcinogenicity obtained in mammals exposed to high doses of a substance will be used to establish the qualitative inference of carcinogenic hazard to workers. Arguments that such studies should not be relied upon will be considered only if evidence which meets the criteria set forth in § 1990.144(d) is provided.
(h) “Threshold” or “No-effect” Levels. No determination will be made that a “threshold” or “no-effect” level of exposure can be established for a human population exposed to carcinogens in general, or to any specific substance.
(i) Benign tumors. Results based on the induction of benign or malignant tumors, or both, will be used to establish a qualitative inference of carcinogenic hazard to workers. Arguments that substances that induce benign tumors do not present a carcinogenic risk to workers will be considered only if evidence that meets the criteria set forth in § 1990.144(e) is provided.
(j) Statistical evaluation. Statistical evaluation will be used in the determination of whether results in human, animal or short-term studies provide positive evidence for carcinogenicity, but will not be the exclusive means for such evaluation.
(k) Carcinogenicity of metabolites. A substance which is metabolized by mammals to yield one or more potential occupational carcinogens will itself be identified and classified as a potential occupational carcinogen, whether or not there is direct evidence that it induces tumors in humans or experimental animals. Evidence for such metabolism will normally be derived from in vivo studies in mammals. In appropriate circumstances, evidence may be derived from in vitro studies of mammalian tissues or fractions thereof. Arguments that evidence from in vivo metabolic studies in mammals is not relevant to the inference of carcinogenic hazard to humans will be considered only if such evidence meets the criteria set forth in § 1990.144(c).
[45 FR 5282, Jan. 22, 1980; 45 FR 43405, June 27, 1980]
§ 1990.144 Criteria for consideration of arguments on certain issues.
Arguments on the following issues will be considered by the Secretary in identifying or classifying any substance pursuant to this part, if evidence for the specific substance subject to the rulemaking conforms to the following criteria. Such arguments and evidence will be evaluated based upon scientific and policy judgments.
(a) Non-positive results obtained in human epidemiologic studies. Non-positive results obtained in human epidemiologic studies regarding the substance subject to the rulemaking or to a similar or closely related substance will be considered by the Secretary only if they meet the following criteria:
Criteria. (i) The epidemiologic study involved at least 20 years' exposure of a group of subjects to the substance and at least 30 years' observation of the subjects after initial exposure;
(ii) Documented reasons are provided for predicting the site(s) at which the substance would induce cancer if it were carcinogenic in humans; and
(iii) The group of exposed subjects was large enough for an increase in cancer incidence of 50% above that in unexposed controls to have been detected at any of the predicted sites.
Arguments that non-positive results obtained in human epidemiologic studies should be used to establish numerical upper limits on potential risks to humans exposed to specific levels of a substance will be considered only if criteria (i) and (ii) are met and, in addition:
(iv) Specific data on the level of exposure of the group of workers are provided, based either on direct measurements made periodically throughout the period of exposure, or upon other data which provide reliable evidence of the magnitude of exposure.
(b) Tumors induced at site of administration. Arguments that tumors at the site of administration should not be considered will be considered only if:
(i) The route of administration is not oral, respiratory or dermal; and
(ii) Evidence is provided which establishes that induction of local tumors is related to the physical configuration or formulation of the material administered (e.g., crystalline form or dimensions of a solid material, or matrix of an impregnated implant) and that tumors are not induced when the same material is administered in a different configuration or formula.
(c) Metabolic differences. Arguments that differences in metabolic profiles can be used to demonstrate that a chemical found positive in an experimental study in a mammalian species would pose no potential carcinogenic risk to exposed workers will be considered by the Secretary only if the evidence presented for the specific substance subject to the rulemaking meets the following criteria:
Criteria. (i) A complete metabolic profile, including identities of trace metabolites, is presented for the experimental animal species;
(ii) A complete metabolic profile, including identities of trace metabolites, is available for a human population group representative of those who are occupationally exposed;
(iii) Documented evidence is provided for ascribing the carcinogenic activity of the substance in the test animal species to metabolite(s) produced only in that species and not in humans; and
(iv) Documented evidence is provided to show that other metabolites produced also in humans have been adequately tested and have not been shown to be carcinogenic.
(d) Use of high doses in animal testing. Arguments that positive results obtained in carcinogenesis bioassays with experimental animals subjected to high doses of a substance are not relevant to potential carcinogenic risks to exposed workers will be considered by the Secretary only if the evidence for the specific substance subject to the rulemaking meets the following criteria:
Criteria. (i) Documented evidence is presented to show that the substance in question is metabolized by the experimental animal species exposed at the dose levels used in the bioassay(s) to metabolic products which include one or more that are not produced in the same species at lower doses.
(ii) Documented evidence is presented to show that the metabolite(s) produced only at high doses in the experimental animal species are the ultimate carcinogen(s) and that the metabolites produced at low doses are not also carcinogenic; and
(iii) Documented evidence is presented to show that the metabolite(s) produced only at high doses in the experimental animal species are not produced in humans exposed to low doses.
(e) Benign tumors. The Secretary will consider evidence that the substance subject to the rulemaking proceeding is capable only of inducing benign tumors in humans or experimental animals provided that the evidence for the specific substance meets the following criteria:
Criteria. (i) Data are available from at least two well-conducted bioassays in each of two species of mammals (or from equivalent evidence in more than two species);
(ii) Each of the bioassays to be considered has been conducted for the full lifetime of the experimental animals;
(iii) The relevant tissue slides are made available to OSHA or its designee and the diagnoses of the tumors as benign are made by at least one qualified pathologist who has personally examined each of the slides and who provides specific diagnostic criteria and descriptions; and
(iv) All of the induced tumors must be shown to belong to a type which is known not to progress to malignancy or to be at a benign stage when observed. In the latter case, data must be presented to show that multiple sections of the affected organ(s) were adequately examined to search for invasion of the tumor cells into adjacent tissue, and that multiple sections of other organs were adequately examined to search for tumor metastases.
(f) Indirect mechanisms. The Secretary will consider evidence that positive results obtained in a carcinogenesis bioassay with experimental animals are not relevant to a determination of a carcinogenic risk to exposed workers, if the evidence demonstrates that the mechanism by which the observed tumor incidence is effected is indirect and would not occur if humans were exposed. As examples, evidence will be considered that a substance causes a carcinogenic effect by augmenting caloric intake or that the carcinogenic effect from exposure to a substance is demonstrated to be the result of the presence of a carcinogenic virus and it is demonstrated that, in either case, the effect would not take place in the absence of the particular carcinogenic virus or the augmented caloric intake.
[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]
§ 1990.145 Consideration of substantial new issues or substantial new evidence.
(a) Substantial new issues. Notwithstanding any other provision of this part, the Secretary will consider in a rulemaking proceeding on a specific substance any substantial new issues upon which the Secretary did not reach a conclusion in the rulemaking proceeding(s) underlying this part including conclusions presented in the preamble.
(b) Substantial new evidence. Notwithstanding any other provision of this part, the Secretary will consider in a rulemaking proceeding on a specific substance any arguments, data or views which he determines are based upon substantial new evidence which may warrant the amendment of one or more provisions of this part. For the purposes of this part, “substantial new evidence” is evidence directly relevant to any provision of this part and is based upon data, views or arguments which differ significantly from those presented in establishing this part, including amendments thereto.
(c) Petitions for consideration of substantial new evidence—(1) Petition. Any interested person may file a written petition with the Secretary to consider “substantial new evidence” or one or more “substantial new issues” which contains the information specified in paragraph (c)(2) of this section. The Secretary shall treat such a petition as a request to amend this part, as well as a petition to consider “substantial new evidence”.
(2) Contents. Each petition for consideration of “substantial new evidence” or one or more “substantial new issues” shall contain at least the following information:
(i) Name and address of the petitioner;
(ii) All of the data, views and arguments that the petitioner would like the Secretary to consider;
(iii) The provision or provisions that petitioner believes are inappropriate or should be added to this part in light of the new data, views, and arguments;
(iv) A statement which demonstrates that the data, views, and arguments relied upon by petitioners are directly relevant to the substance or class of substances that is the subject of a rulemaking or an Advance Notice of Proposed Rulemaking;
(v) A detailed statement and analysis as to why the petitioner believes that the data, views, and arguments presented by the petitioner:
(A) Differ significantly from those presented in the proceeding(s) which establish this part;
(B) Are so substantial as to warrant amendment of this part; and
(C) Constitute a new issue or new evidence within the meaning of paragraphs (a) and (b) of this section.
(3) Deadline for petitions. (i) Petitions which comply with paragraph (c) of this section, shall be filed in accordance with the schedule set forth in the Advanced Notice of Proposed Rulemaking.
(ii) In extraordinary cases the Secretary may consider evidence submitted after the deadline if the petitioner establishes that the evidence relied upon was not available and could not have reasonably been available in whole or substantial part by the deadline and that it is being submitted at the earliest possible time.
(d) Secretary's response. (1) The Secretary shall respond to petitions under this paragraph in accordance with § 1990.106.
(2) Whenever the Secretary determines that the “substantial new issue” or the “substantial new evidence” submitted under this paragraph is sufficient to initiate a proceeding to amend this part, the Secretary shall:
(i) Issue a notice to consider amendment to this part and not proceed on the rulemaking concerning the individual substance until completion of the amendment proceeding; or
(ii) Issue a notice to consider amendment to this part and consolidate it with the proceeding on the individual substance.
§ 1990.146 Issues to be considered in the rulemaking.
Except as provided in § 1990.145, after issuance of the advance notice of rulemaking, the proceedings for individual substances under this part shall be limited to consideration of the following issues:
(a) Whether the substance, group of substances or combination of substances subject to the proposed rulemaking is appropriately considered in a single proceeding;
(b) Whether the substance or group of substances subject to the rulemaking meets the definition of a potential occupational carcinogen set forth in § 1990.103, including whether the scientific studies are reliable;
(c) Whether the available data can appropriately be applied to the substance, group of substances or combination of substances covered by the rulemaking;
(d) Whether information, data, and views that are submitted in accordance with § 1990.144 are sufficient to warrant an exception to this part;
(e) Whether the data, views and arguments that are submitted in accordance with § 1990.145 are sufficient to warrant amendment of this part;
(f) Whether the potential occupational carcinogen meets the criteria for a Category I Potential Carcinogen or a Category II Potential Carcinogen.
(g) The environmental impact arising from regulation of the substance;
(h) Any issues required by statute or executive order;
(i) The determination of the level to control exposures to Category I Potential Carcinogens primarily through the use of engineering and work practice controls including technological and economic considerations.
(j) The determination of the appropriate employee exposure level, consistent with the Act's requirements, for Category II Potential Carcinogens;
(k) Whether suitable substitutes are available for one or more uses of Category I Potential Carcinogens and; if so, the no occupational exposure level to be achieved solely with engineering and work practice controls and other issues relevant to substitution; and
(l) Whether the provisions of the proposal and of §§ 1990.151 and 1990.152 (model standards) are appropriate, except as limited by § 1990.142 and whether additional regulatory provisions may be appropriate.
[45 FR 5282, Jan. 22, 1980, as amended at 46 FR 5881, Jan. 21, 1981]
§ 1990.147 Final action.
(a) Within one hundred twenty (120) days from the last day of any hearing or ninety (90) days from the close of any post hearing comment period, whichever occurs first, the Secretary shall publish in the Federal Register:
(1) A final standard based upon the record in the proceeding; or
(2) A statement that no final standard will be issued, and the reasons therefor, or
(3) A statement that the Secretary intends to issue a final rule, but that he is unable to do so at the present time, including:
(i) The reasons therefor; and
(ii) The date by which the standard will be published, which may not exceed one hundred twenty (120) days thereafter.
(iii) The Secretary may issue no more than one such notice, unless the Secretary determines that (A) new evidence which was unavailable during the rulemaking proceeding has just become available; (B) the evidence is so important that a final rule could not reasonably be issued without this evidence, and; (C) the record is reopened for receipt of comments and/or a hearing on this evidence. This paragraph does not require the Secretary to consider any evidence which is submitted after the dates established for the submission of evidence.
(b) The failure of the Secretary to comply with the required timeframes shall not be a basis to set aside any standard or to require the issuance of a new proposal on any individual substance.
(c) The final standard shall state whether the substance or group of substances subject to the rulemaking is classified as a Category I Potential Carcinogen or as a Category II Potential Carcinogen. If the classification differs from that in the notice of proposed rulemaking, the Secretary shall explain the reasons for the change in classification in the preamble to the final standard.
(d) If the substance is classified as a Category I Potential Carcinogen, the final standard shall conform to the provisions of § 1990.142(a)(2)(iii). If the final standard contains other provisions that substantially differ from the proposed provisions, the Secretary shall explain the reasons for the changes in the preamble to the final standard.
(e) If the substance is classified as a Category II potential carcinogen, the final standard shall conform to the provisions of § 1990.142(a)(3)(iii). If the final standard contains other provisions that substantially differ from the proposed provisions, the Secretary shall explain the reasons for the changes in the preamble to the final standard.
(f) If the substance is classified as a Category II potential carcinogen, the Secretary shall notify the applicable federal and state agencies, including the Administrator of EPA, the Director of NCI, the Director of NIEHS, the Director of NIOSH, the Commissioner of FDA and the Chairperson of CPSC of such determination and request that the applicable agencies engage in, or stimulate, further research pursuant to their legislative authority, to develop new and additional scientific data.
(g) If, after a rulemaking, the Secretary determines that the substance under consideration should not be classified as a Category I potential carcinogen or a Category II potential carcinogen, the Secretary shall publish a notice of this determination in the Federal Register, together with the reasons therefor.
34 Model Standards
§ 1990.151 Model standard pursuant to section 6(b) of the Act.
Occupational Exposure to ________ Permanent Standard (insert section number of standard)
(a) Scope and application—(1) General. This section applies to all occupational exposures to ___ or to (specify those uses or classes of uses of ___ [Chemical Abstracts Service Registry Number 0000] which are covered by the standard, including, where appropriate, the type of exposure to be regulated by the standard) except as provided in paragraph (a)(2).
(2) Exemptions. This section does not apply to (insert those uses or classes of uses of ___ which are exempted from compliance with the standard, including, where appropriate,
(i) Workplaces where exposure to ___ results from solid or liquid mixtures containing a specified percentage of ___ or less;
(ii) Workplaces where another Federal agency is exercising statutory authority to prescribe or enforce standards or regulations affecting occupational exposure to ___ or
(iii) Workplaces which are appropriately addressed in a separate standard).
(b) Definitions.
___ means (definition of the substance, group of substances, or combination of substances, to be regulated).
Action level means an airborne concentration of ___ of (insert appropriate level of exposure).
Note:
Where appropriate, consider an action level as a limitation on requirements for periodic monitoring (para. (e)(3)), medical surveillance (para. (n)), training (para. (o)), labels (para. (p)(3)), and other provisions.
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.
Authorized person means any person specifically authorized by the employer whose duties require the person to enter regulated areas or any person entering such an area as a designated representative of employees for the purpose of exercising the opportunity to observe monitoring procedures under paragraph (r) of this section.
Director means the Director, National Institute for Occupational Safety and Health, U.S. Department of Health, and Health Services, or designee.
Emergency means in any occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which may result in a massive release of _____ which is (insert appropriate quantitative or qualitative level of release which constitutes an emergency).
OSHA Area Office means the Area Office of the Occupational Safety and Health Administration having jurisdiction over the geographic area where the affected workplace is located.
(c) Permissible exposure limits provisions—(1) Inhalation—(i) Time weighted average limit (TWA). Within (insert appropriate time period) of the effective date of this section, the employer shall assure that no employee is exposed to an airborne concentration of ___in excess of: (insert appropriate exposure limit or when it is determined by the Secretary that there are available suitable substitutes for uses or classes of uses that are less hazardous to humans, the proposal shall permit no occupational exposure) as an eight (8)-hour-time-weighted average.
(Where the Secretary finds that suitable substitutes for ___may exist, the determination of the ___level shall include consideration of the availability, practicability, relative degree of hazard, and economic consequences of the substitutes.)
(ii) Ceiling limit (if appropriate). Within (insert appropriate time period) of the effective date of this section, the employer shall assure that no employee is exposed to an airborne concentration of ___in excess of: (insert exposure limit) as averaged over any: (insert appropriate time period) during the working day.
(2) Dermal and eye exposure. (As appropriate.) (i) Within (insert appropriate time period) of the effective date of this section, the employer shall (If eye exposure to ___does not create a risk of cancer, insert exposure level or criteria which will prevent other adverse health effects of eye exposure to ___if any. If eye exposure creates a risk of cancer, insert exposure level or criteria which represents the level of eye exposure to ___).
(ii) Within (insert appropriate time period) of the effective date of this section, the employer shall (If skin exposure to ___does not create a risk of cancer, insert exposure level or criteria which will prevent other adverse health effects of skin exposure to ___if any. If skin exposure creates a risk of cancer, insert exposure level or criteria which represents the level of skin exposure to ____).
(d) Notification of use and emergencies—(1) Use. Within (insert appropriate time period and additional information requirements if appropriate), of the effective date of this standard or within thirty days of the introduction of ___ into the workplace, every employer who has a place of employment in which ___ is present shall report the address and location of each place of employment to the OSHA Area Office and an estimate of the number of employees exposed.
(2) Emergencies. Emergencies, and the facts obtainable at that time, shall be reported within (insert appropriate number) hours of, or during the first federal working day after, the time the employer becomes aware of the emergency to the OSHA Area Office, whichever is longer. Upon request of the OSHA Area Office, the employer shall submit additional information in writing relevant to the nature and extent of employee exposures and measures taken to prevent future emergencies of a similar nature.
(e) Exposure monitoring—(1) General. (i) Determinations of airborne exposure levels shall be made from air samples that are representative of each employee's exposure to ___ over an eight (8) hour period. (Modify the time period as appropriate to be practical in the relevant industries yet reasonably representative of full shift exposures.) Monitoring of exposure levels required under this paragraph shall be made as follows: [insert method or alternative methods to be used to meet the requirements of this paragraph].
(ii) For the purpose of this section, employee exposure is that exposure which would occur if the employee were not using a respirator.
(2) Initial monitoring. Each employer who has one or more workplaces where (specify the types of workplaces subject to the monitoring requirement) shall, within (insert appropriate period) of the effective date of this section (insert requirements for initial monitoring, as appropriate).
(3) Frequency. (Insert, if appropriate, provisions prescribing the minimum frequency at which monitoring must be repeated, the conditions under which such frequency must be increased or may be reduced, and conditions under which such routine monitoring may be discontinued (for example, where the action level is not exceeded). Where appropriate, specify different frequency requirements for certain types of workplaces where, for example, exposure levels are subject to greater or less variability.)
(4) Additional monitoring. (Insert, if appropriate, provisions for monitoring, in addition to the requirements (if any) of paragraph (e)(3). This may include a production, process, control or personnel change which might result in new or additional exposure to _______,
or whenever the employer has any other reason to suspect a change which might result in new or additional exposures to ____________.)
(5) Employee notification. (i) Within (insert appropriate period) after the receipt of monitoring results, the employer shall notify each employee in writing of the results which represent that employee's exposure.
(ii) Whenever the results indicate that the representative employee exposure exceeds the permissible exposure limits, the employer shall include in the written notice a statement that the permissible exposure limits were exceeded and a description of the corrective action being taken to reduce exposure to or below the permissible exposure limits.
(6) Accuracy of measurement. (Insert requirements for accuracy of methods of measurement or detection used to comply with the paragraph).
(f) Regulated areas. (1) Within (insert appropriate time period) of the effective date of this section, the employer shall, where practicable, establish regulated areas where ______ concentrations are in excess of the permissible exposure limits.
(2) Regulated areas shall be demarcated and segregated from the rest of the workplace, in any manner that minimizes the number of persons who will be exposed to ______.
(3) Access to regulated areas shall be limited to authorized persons or to persons otherwise authorized by the Act or regulations issued pursuant thereto.
(4) The employer shall assure that in the regulated area, food or beverages are not present or consumed, smoking products are not present or used, and cosmetics are not applied (except that these activities may be conducted in the lunchroom, change rooms and showers required under paragraphs (m)(1) through (m)(3) of this section).
(g) Methods of compliance—(1) Engineering and work practice controls. (i) The employer shall institute engineering or work practice controls to reduce and maintain employee exposures to ______ to or below the permissible exposure limits, except to the extent that the employer establishes that such controls are not feasible.
(ii) Engineering and work practice controls shall be implemented to reduce exposures even if they will not be sufficient to reduce exposures to or below the permissible exposure limits.
(2) Compliance program. (i) Within (insert appropriate period) of the effective date of this section, the employer shall establish and implement a written program to reduce exposures to or below the permissible exposure limits by means of engineering and work practice controls, as required by paragraph (g)(1) of this section.
(ii) Written plans for these compliance programs shall include at least the following:
(A) A description of each operation or process resulting in employee exposure to ______
(B) Engineering plans and other studies contemplated or used to determine the controls for each process;
(C) A report of the technology considered or to be considered in meeting the permissible exposure limits;
(D) A detailed schedule for the implementation of engineering or work practice controls; and
(E) Other relevant information reasonably requested by OSHA.
(iii) Written plans for such a program shall be submitted, upon request, to the Assistant Secretary and the Director, and shall be available at the worksite for examination and copying by the Assistant Secretary, the Director, or any affected employee or designated representative.
(iv) The plans required by this paragraph shall be revised and updated periodically to reflect the current status of the program.
(h) Respiratory protection—(1) General. The employer shall assure that respirators are used where required pursuant to this section to reduce employee exposures to or below the permissible exposure limits and in emergencies. Compliance with the permissible exposure limits may not be achieved by the use of respirators except:
(i) During the time period necessary to install or implement feasible engineering and work practice controls; or
(ii) In work operations in which the employer establishes that engineering and work practice controls are not feasible; or
(iii) In work situations where feasible engineering and work practice controls are not yet sufficient to reduce exposure to or below the permissible exposure limits; or
(iv) In emergencies.
(2) Respirator selection. (i) Where respiratory protection is required under this section, the employer shall select and provide at no cost to the employee, the appropriate type of respirator from Table 1 below and shall assure that the employee wears the respirator provided.
Table 1—Respiratory Protection for ______
(The table will contain a listing of the appropriate type of respirator for various conditions of exposure to ______).
(ii) The employer shall select respirators from those approved by the National Institute for Occupational Safety and Health under the provisions of 30 CFR part 11.
(3) Respirator program. (i) The employer shall institute a respiratory protection program in accordance with 29 CFR 1910.134 (b), (d), (e), and (f).
(ii) Employees who wear respirators shall be allowed to wash their face and respirator facepiece to prevent potential skin irritation associated with respirator use.
(iii) The employer shall assure that the respirator issued to each employee is properly fitted (as appropriate, indicate the requirement for a qualitative or quantitative respirator fit testing program).
(i) Emergency situations—(1) Written plans. (i) A written plan for emergency situations shall be developed for each workplace where ______ is present. Appropriate portions of the plan shall be implemented in the event of an emergency.
(ii) The plan shall specifically provide that employees engaged in correcting emergency conditions shall be equipped with respirators as required in paragraph (h) of this section and other necessary personal protective equipment as required in paragraph (j) until the emergency is abated.
(2) Alerting employees—(i) Alarms. Where there is the possibility of employee exposure to ______ due to the occurrence of an emergency, a general alarm shall be installed and maintained to promptly alert employees of such occurrences.
(ii) Evacuation. Employees not engaged in correcting the emergency shall be restricted from the area and shall not be permitted to return until the emergency is abated.
(j) Protective clothing and equipment—(1) Provision and use. Where employees are exposed to eye or skin contact with ______ (insert criteria which trigger this requirement as appropriate), the employer shall, within (insert appropriate time period) of the effective date of this section provide at no cost to such employees, and assure that such employees wear, appropriate protective clothing or other equipment in accordance with 29 CFR 1910.132 and 1910.133 to protect the area of the body which may come in contact with ______.
(2) Cleaning and replacement. (i) The employer shall clean, launder, maintain, or replace protective clothing and equipment required to maintain their effectiveness.
(k) Housekeeping—(1) General. The employer shall, within appropriate time period of the effective date of this section, implement a housekeeping program to minimize accumulation of ______.
(2) Specific provisions. The program shall include (insert appropriate elements).
(i) Periodic scheduling of routine housekeeping.
(ii) Provision for periodic cleaning of dust collection systems.
(iii) Provision for maintaining clean surfaces.
(iv) Provision for assigning personnel to housekeeping procedures; and the
(v) Provision for informing employees about housekeeping program.
(l) Waste disposal—(1) General. The employer shall assure that no waste material containing ______ is dispersed into the workplace, to the extent practicable.
(2) The employer shall label, or otherwise inform employees who may contact waste material containing ______, the contents of such waste material.
(3) (Insert specific disposal methods, as appropriate.)
(m) Hygiene facilities and practices. Where employees are exposed to airborne concentrations of ______ in excess of the permissible exposure limits specified in paragraph (c)(1), or where employees are required to wear protective clothing or equipment pursuant to paragraph (j) of this section, or where otherwise found to be appropriate, the following facilities shall be provided by the employer for the use of those employees and the employer shall assure that the employees use the facilities provided.
[Specify appropriate hygiene facilities and practices such as]:
(1) Change rooms. The employer shall provide clean change rooms in accordance with 29 CFR 1910.141(e).
(2) Showers. (i) The employer shall provide shower facilities in accordance with 29 CFR 1910.141(d)(3).
(ii) The employer shall assure that employees exposed to ______ shower at the end of the work shift.
(3) Lunchrooms (if appropriate or other suitable requirements depending on the circumstances). Whenever food or beverages are consumed in the workplace, the employer shall provide lunchroom facilities which have a temperature controlled, positive pressure, filtered air supply, and which are readily accessible to employees exposed to ______.
(n) Medical surveillance—(1) General. (i) The employer shall institute a program of medical surveillance for (specify the types of employees subject to the medical surveillance requirement, for example, by specifying the level, duration, and frequency of exposure to ______ which make medical surveillance appropriate for individual employees). The employer shall provide each such employee with an opportunity for medical examinations and tests in accordance with this paragraph.
(ii) The employer shall assure that all medical examinations and procedures are performed by or under the supervision of a licensed physician, and shall be provided without cost to the employee.
(2) Initial examinations. Within (insert appropriate time period) of the effective date of this section or thereafter at the time of initial assignment, the employer shall provide each employee specified in paragraph (n)(1) of this section an opportunity for a medical examination, including at least the following elements:
(i) A work history and a medical history which shall include: (insert specific areas to be covered pertinent to the health hazards posed by ______________).
(ii) A physical examination which shall include: (insert specific tests, procedures, etc., pertinent to the health hazards posed by ______________.) Where appropriate, provide that the examining physician shall conduct such additional examinations and tests as are needed according to his professional judgment).
Note:
Where appropriate, require or permit different medical protocols, or different frequencies of medical examinations, for separate sub-populations of employees covered under paragraph (n)(1).
(3) Periodic examinations. (i) The employer shall provide the examinations specified below in this subparagraph at least (insert appropriate time) for all employees specified in paragraph (n)(3)(i) of this section: (insert appropriate medical protocol for periodic examinations).
(ii) If an employee has not had the examinations prescribed in paragraph (n)(3)(i) of this section within (insert appropriate time period) prior to termination of employment, the employer shall make such examination available to the employee upon such termination.
(4) Additional examinations. If the employee for any reason develops signs or symptoms commonly associated with exposure to ______, the employer shall provide appropriate examination and emergency medical treatment.
(5) Information provided to the physician. The employer shall provide the following information to the examining physician:
(i) A copy of this standard and its appendices;
(ii) A description of the affected employee's duties as they relate to the employee's exposure;
(iii) The employee's actual or representative exposure level;
(iv) The employee's anticipated or estimated exposure level (for preplacement examinations or in cases of exposure due to an emergency);
(v) A description of any personal protective equipment used or to be used; and
(vi) The names and addresses of physicians who, under the sponsorship of the employer, provided previous medical examinations of the affected employee, if such records are not otherwise available to the examining physician.
(6) Physician's written opinion. (i) The employer shall obtain a written opinion from the examining physician which shall include:
(A) The physician's certification that he has received the information from the employer required under the paragraph (n)(5) and has performed all medical examinations and tests which are in his opinion appropriate under this standard;
(B) The physician's opinion as to whether the employee has any detected medical condition which would place the employee at an increased risk of material impairment of the employee's health from exposure to ______
(C) Any recommended limitations upon the employee's exposure to ______ or upon the use of protective clothing and equipment such as respirators; and
(D) A statement that the employee has been informed by the physician of the results of the medical examination and any medical conditions which require further examination or treatment.
(ii) The employer shall instruct the physician not to reveal in the written opinion specific findings or diagnoses unrelated to occupational exposure to ______
(iii) The employer shall provide a copy of the written opinion to the affected employee.
(o) Employee information and training—(1) Training program. (i) Within (insert appropriate time period) from the effective date of this section, the employer shall institute a training program for all employees who (specify the employees subject to the training requirement), and shall assure their participation in the training program.
(ii) The training program shall be provided at the time of initial assignment, or upon institution of the training program, and at least (insert appropriate time period) thereafter, and the employer shall assure that each employee is informed of the following:
Note:
Specify, as appropriate, some or all of the following information, or any other appropriate information. Where appropriate, require training programs with different contents, or different frequencies, for separate subpopulations of the employees specified in paragraph (o)(1).
(A) The information contained in the Appendices;
(B) The quantity, location, manner of use, release or storage of ______ and the specific nature of operations which could result in exposure to ______, as well as any necessary protective steps;
(C) The purpose, proper use, and limitations of respirators;
(D) The purpose and a description of the medical surveillance program required by paragraph (n) of this section;
(E) The emergency procedures developed, as required by paragraph (i) of this section;
(F) The engineering and work practice controls, their function and the employee's relationship thereto; and
(G) A review of this standard.
(2) Access to training materials. (i) The employer shall make a copy of this standard and its appendices readily available to all affected employees.
(ii) The employer shall provide, upon request, all materials relating to the employee information and training program to the Assistant Secretary and the Director.
(p) Signs and labels—(1) General. (i) The employer may use labels or signs required by other statutes, regulations, or ordinances in addition to, or in combination with, signs and labels required by this paragraph.
(ii) The employer shall assure that no statement appears on or near any sign or label, required by this paragraph, which contradicts or detracts from the meaning of the required sign or label.
(2) Signs. (i) The employer shall post signs to clearly indicate all workplaces. (Specify as appropriate the description of the area to be signposted such as “where employees are exposed to ____________,” or “where exposures exceed the action level,” or “where exposures exceed the PEL,” or “which are regulated areas”). The signs shall bear the following legend:
DANGER (insert appropriate trade or common names) CANCER HAZARD AUTHORIZED PERSONNEL ONLY
(ii) The employer shall assure that signs required by this paragraph are illuminated and cleaned as necessary so that the legend is readily visible.
(iii) Where airborne concentrations of ______ exceed the permissible exposure limits, the signs shall bear the additional legend: “Respirator Required” or “Respirator May Be Required” as appropriate.
(3) Labels. (i) The employer shall assure that precautionary labels are affixed to all containers of ______ and of products containing ______ (specify if appropriate suitable modifications), and that the labels remain affixed when the ______ or products containing ______ are sold, distributed or otherwise leave the employer's workplace.
(ii) The employer shall assure that the precautionary labels required by this paragraph are readily visible and legible. The labels shall bear the following legend:
DANGER CONTAINS ______ CANCER HAZARD
Note:
Utilize the clause “POTENTIAL CANCER HAZARD” if it is appropriate to include a signs and labels provision for a Category II potential carcinogen.
(q) Recordkeeping—(1) Exposure monitoring. (i) The employer shall establish and maintain an accurate record of all monitoring required by paragraph (e) of this section.
(ii) This record shall include:
(A) The dates, number, duration, and results of each of the samples taken, including a description of the sampling procedure used to determine representative employees exposure;
(B) A description of the sampling and analytical methods used;
(C) Type of respiratory protective devices worn, if any; and
(D) Name, social security number and job classification of the employees monitored and of all other employees whose exposure the measurement is intended to represent.
(iii) The employer shall maintain this record for (insert appropriate period) or for the duration of employment plus (insert appropriate period) whichever is longer.
(2) Medical surveillance. (i) The employer shall establish and maintain an accurate record of each employee subject to medical surveillance as required by paragraph (n) of this section.
(ii) This record shall include:
(A) A copy of the physicians' written opinions or a written explanation of the absence of any such opinion or employee refusal to take the medical examination:
(B) Any employees medical complaints related to exposure
to ______
(C) A copy of the information provided to the physician as required by paragraphs (n)(5)(ii) through (v) of this section unless it is systematically retained elsewhere by the employer for the period of time specified in paragraph (q)(2)(ii); and
(D) A copy of the employee's work history.
(iii) The employer shall assure that this record be maintained for (insert appropriate period) or for the duration of employment plus (insert appropriate period) whichever is longer.
(3) Availability. (i) The employer shall assure that all records required to be maintained by this section be made available upon request to the Assistant Secretary and the Director for examination and copying.
(ii) Employee exposure measurement records and employee medical records required by this section shall be provided upon request to employees, designated representatives, and the Assistant Secretary in accordance with 29 CFR 1910.20(a) through (e) and (g) through (i).
(4) Transfer of records. (i) Whenever the employer ceases to do business, the successor employer shall receive and retain all records required to be maintained by this section.
(ii) Whenever the employer ceases to do business and there is no successor employer to receive and retain the records for the prescribed period, these records shall be transmitted to the Director.
(iii) At the expiration of the retention period for the records required to be maintained pursuant to this section, the employer shall transmit these records to the Director.
(iv) The employer shall also comply with any additional requirements involving transfer of records set forth in 29 CFR 1910.20(h).
Note:
Include other recordkeeping requirements if appropriate.
(r) Observation of monitoring—(1) Employee observation. The employer shall provide affected employees, or their designated representatives, an opportunity to observe any monitoring of employee exposure to ______ conducted pursuant to paragraph (e) of this section.
(2) Observation procedures. (i) Whenever observation of the monitoring of employee exposure to ______ requires entry into an area where the use of protective clothing or equipment is required, the employer shall provide the observer with personal protective clothing or equipment required to be worn by employees working in the area, assure the use of such clothing and equipment, and require the observer to comply with all other applicable safety and health procedures.
(ii) Without interfering with the monitoring, observers shall be entitled to:
(A) Receive an explanation of the measurement procedures;
(B) Observe all steps related to the measurement of airborne concentrations of ______ performed at the place of exposure; and
(C) Record the results obtained, and receive results supplied by the laboratory.
(s) Effective date. This section shall become effective (insert effective date).
(t) Appendices. The information contained in the appendices is not intended, by itself, to create any additional obligations not otherwise imposed or to detract from any existing obligation. (In normal circumstances three appendices will be included in each standard, an “Appendix A—Substance Safety Data Sheet,” an “Appendix B—Substance Technical Guidelines,” and an “Appendix C—Medical Surveillance Guidelines.” Insert additional appendices or delete any of the suggested appendices as appropriate.)
[45 FR 5282, Jan. 22, 1980; 45 FR 43405, 43406, June 27, 1980, as amended at 46 FR 5881, Jan. 21, 1981]
§ 1990.152 Model emergency temporary standard pursuant to section 6(c) of the Act.
Occupational Exposure to ______ Emergency Temporary Standard (insert section number of standard)
(a) Scope and application—(1) General. This section applies to all occupational exposures to ______, or to (specify the uses of classes of uses of ______ [Chemical Abstracts Service Registry Number 00000], which are covered by the standard, including, where appropriate, the type of exposure to be regulated by the standard) except as provided in paragraph (a)(2).
(2) Exemption. This section does not apply to (insert those uses or classes of uses of ______ which are exempted from compliance with the standard, including, where appropriate,
(i) Workplaces where exposure to ______ results from solid or liquid mixtures containing a specified percentage of ______ or less;
(ii) Workplaces where another Federal agency is exercising statutory authority to prescribe or enforce standards or regulations affecting occupational exposure to ______ or
(iii) Workplaces which are appropriately addressed in a separate standard.
(b) Definitions.
______ means (definition of the substance, group of substances, or combination of substances, to be regulated).
Action level means an airborne concentration of ______ of (insert appropriate level of exposure).
Note:
Where appropriate, consider an action level as a limitation on requirements for periodic monitoring (para. (e)(3)), medical surveillance (para. (n)), training (para, (o)), and other provisions.
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or designee.
Authorized person means any person specifically authorized by the employer whose duties require the person to enter a regulated area or any person entering such an area as a designated representative of employees exercising the opportunity to observe monitoring procedures under paragraph (r) of this section.
Director means the Director, National Institute for Occupational Safety and Health, U.S. Department of Health, Education and Welfare, or designee.
Emergency means any occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which may result in a release of ______ which is (insert appropriate quantitative or qualitative level of release which constitutes an emergency).
OSHA Area Office means the Area Office of the Occupational Safety and Health Administration having jurisdiction over the geographic area where the affected workplace is located.
(c) Permissible exposure limits—(1) Inhalation—(i) Time-weighted average limit (TWA). Within (insert appropriate time) from the effective date of this emergency temporary standard, the employer shall assure that no employee is exposed to an airborne concentration of ______in excess of: (insert appropriate exposure limit representing a level that can be complied with immediately) as an eight (8)-hour-time-weighted average.
(ii) Ceiling limit (if appropriate). The employer shall assure that no employee is exposed to an airborne concentration of ______in excess of: (insert appropriate exposure limit representing a level that can be complied with immediately) as averaged over any: (insert appropriate time period) during the working day.
(2) Dermal and eye exposure. (As appropriate.) (i) Within (insert appropriate time period) of the effective date of this section, the employer shall (If eye exposure to ______does not create a risk of cancer, insert exposure level or criteria which will prevent other adverse effects of eye exposure to ______, if any. If eye exposure creates a risk of cancer, insert exposure level or criteria which represent the level of eye exposure to ______.)
(ii) Within (insert appropriate time period) of the effective date of this section, the employer shall (If skin exposure to ______does not create a risk of cancer, insert exposure level or criteria which will prevent other adverse health affects of skin exposure to ______if any. If skin exposure creates a risk of cancer, insert exposure level or criteria which represents the level of skin exposure to ______).
(d) Notification of use. Within (insert appropriate time and omit specific categories of information if appropriate) of the effective date of this section, or within fifteen (15) days following the introduction of ______ into the workplace, every employer shall report the following information to the nearest OSHA Area Office for each such workplace:
(1) The address and location of each workplace in which ______ is present;
(2) A brief description of each process or operation which may result in employee exposure to ______;
(3) The number of employees engaged in each process or operation who may be exposed ______ and an estimate of the frequency and degree of exposure that occurs; and
(4) A brief description of the employer's safety and health program as it relates to limitation of employee exposure to ______;
(e) Exposure monitoring—(1) General. (i) Determinations of airborne exposure levels shall be made from air samples that are representative of each employee's exposure to ______ over an eight (8) hour period. (Modify the time period as appropriate to be practical in the relevant industries yet reasonably representative of full shift exposures). Monitoring of exposure levels required under this paragraph shall be made as follows: [insert method or alternative methods to be used to meet the requirements of this paragraph].
(ii) For the purposes of this section, employee exposure is that exposure which would occur if the employee were not using a respirator.
(2) Initial monitoring. Each employer who has one or more workplaces where (specify the types of workplaces subject to the monitoring requirement), shall within (insert appropriate period) of the effective date of this section (insert requirements for initial monitoring, as appropriate).
(3) Frequency. (Insert, if appropriate, provisions prescribing the minimum frequency at which monitoring must be repeated, the conditions under which such frequency must be increased, or may be reduced, and conditions under which such routine monitoring may be discontinued (for example where the action level is not exceeded). Where appropriate, specify different frequency requirements for certain types of workplaces where, for example, exposure levels are subject to greater or less variability.)
(4) Additional monitoring. (Insert, if appropriate, provisions for monitoring, in addition to the requirements (if any) of paragraph (e)(3). This may include a production, process, control or personnel change which might result in new or additional exposure to ______ or whenever the employer has any other reason to suspect a change which might result in new or additional exposures to ______.)
(5) Employee notification. (i) Within (insert appropriate period) after the receipt of monitoring results, the employer shall notify each employee in writing of the results which represent that employee's exposure.
(ii) Whenever the results indicate that the representative employee exposure exceeds the permissible exposure limits, the employer shall include in the written notice a statement that permissible exposure limits were exceeded and a description of the corrective action being taken to reduce exposure to or below the permissible exposure limits.
(6) Accuracy of measurement. (Insert requirements for accuracy of methods of measurement or detection used to comply with the paragraph.)
(f) [Reserved]
(g) Methods of compliance—(1) General. (i) Employee exposures to ______ shall be controlled to or below the permissible exposure limits by any practicable combination of engineering controls, work practices and personal protective devices and equipment, during the effective period of this emergency temporary standard.
Note:
Where engineering controls or work practices can reduce employee exposures to ______ it is recommended that they be implemented where practicable, even where they do not themselves reduce exposures to, or below the permissible exposure limits. Work practices which can be implemented by the employer to help reduce employee exposures to ______ include limiting access to work areas to authorized personnel, prohibiting smoking and consumption of food and beverages in work areas, and establishing good maintance and housekeeping practices, including the prompt clean-up of spills and repair of leaks.
(2) Engineering and work practice control plan. (i) Within (insert appropriate time period) of the effective date of this emergency temporary standard, the employer shall develop a written plan describing proposed means to reduce employee exposures to the lowest feasible level by means of engineering and work practice controls (which will be eventually required by a permanent standard for occupational exposure to ______, as provided for by § 1990.151(g) of this subpart).
(ii) Written plans required by this paragraph shall be submitted, upon request, to the Assistant Secretary and the Director and shall be available at the worksite for examination and copying by the Assistant Secretary, the Director, and any affected employee or designated representative.
(h) Respiratory protection—(1) Required use. The employer shall assure that respirators are used where required pursuant to this section to reduce employee exposures to within the permissible exposure limits and in emergencies.
(2) Respirator selection. (i) Where respiratory protection is required under this section, the employer shall select and provide at no cost to the employee, the appropriate respirator from Table 1 below and shall assure that the employee wears the respirator provided.
Table 1—Respiratory Protection for ______
(The table will contain a listing of the appropriate type of respirator for various conditions of exposure
to ______.)
(ii) The employer shall select respirators from those approved by the National Institute for Occupational Safety and Health under the provisions of 30 CFR part 11.
(3) Respirator program. (i) The employer shall institute a respirator protection program in accordance with 29 CFR 1910.134 (b), (d), (e) and (f).
(ii) Employees who wear respirators shall be allowed to wash their face and respirator face piece to prevent potential skin irritation associated with respirator use.
(iii) The employer shall assure that the respirator issued to each employee is properly fitted (as appropriate, indicate the requirement for a qualitative or quantitative respirator fit testing program.)
(i) [Reserved]
(j) Protective clothing and equipment—(1) Provision and use. Where employees are exposed to eye or skin contact with ______ (insert criteria which trigger this requirement as appropriate), the employer shall within (insert appropriate time period) of the effective date of this standard provide, at no cost to the employees, and assure that employees wear, appropriate protective clothing or other equipment in accordance with 29 CFR 1910.132 and 1910.133 to protect the area of the body which may come in contact with ______.
(2) Cleaning and replacement. (i) The employer shall clean, launder, maintain, or replace protective clothing and equipment required by this paragraph, as needed to maintain their effectiveness.
(k) Housekeeping—(1) General. The employer shall, within (insert appropriate time period) of the effective date of this section, implement a housekeeping program to minimize accumulations of ______.
(2) Specific provisions. The program shall include (insert appropriate elements):
(i) Periodic scheduling of routine housekeeping procedures;
(ii) Provision for periodic cleaning of dust collection systems;
(iii) Provision for maintaining clean surfaces;
(iv) Provision for assigning personnel to housekeeping procedures; and
(v) Provision for informing employees about housekeeping program.
(l) Waste disposal—(1) General. The employer shall assure that no waste material containing ______ is dispersed into the workplace, to the extent practicable.
(2) The employer shall label, or otherwise inform employees who may contact waste material containing ______ of the contents of such waste material.
(3) (Insert specific disposal methods, as appropriate.)
(m) [Reserved]
(n) Medical surveillance—(1) General. (i) The employer shall institute a program of medical surveillance for (specify the types of employees subject to the medical surveillance requirement, for example, by specifying the level, duration, and frequency of exposure to ________ which make medical surveillance appropriate for individual employees). The employer shall provide each such employee with an opportunity for medical examinations and tests in accordance with this paragraph.
(ii) The employer shall assure that all medical examinations and procedures are performed by or under the supervision of a licensed physician, and shall be provided without cost to the employee.
(2) Initial examinations. Within (insert appropriate time period) of the effective date of this section, or thereafter at the time of initial assignment, the employer shall provide each employee specified in paragraph (n)(1) of this section an opportunity for a medical examination, including at least the following elements:
(i) A work history and a medical history which shall include (insert specific areas to be covered pertinent to the health hazards posed by ________).
(ii) A physical examination which shall include: (insert specific tests, procedures, etc., pertinent to the health hazards posed by ________. Where appropriate, provide that the examining physician shall conduct such additional examinations and tests as are needed according to his professional judgement).
Note:
Where appropriate, require or permit different medical protocols, or different frequencies of medical examinations, for separate sub-populations of employees covered under paragraph (n)(1).
(3) Periodic examinations. (If appropriate insert appropriate medical protocol and time.)
(4) Additional examinations. If the employee for any reason develops signs or symptoms commonly associated with exposure to ______, the employer shall provide an appropriate examination and emergency medical treatment.
(5) Information provided to the physician. The employer shall provide the following information to the examining physician:
(i) A copy of this emergency temporary standard and its appendices;
(ii) A description of the affected employee's duties as they relate to the employee's exposure;
(iii) The employee's actual or representative exposure level;
(iv) The employee's anticipated or estimated exposure level (for preplacement examinations or in cases of exposures due to an emergency);
(v) A description of any personal protective equipment used or to be used; and
(vi) The names and addresses of physicians who, under the sponsorship of the employer, provided previous medical examinations of the affected employee, if such records are not otherwise available to the examining physician.
(6) Physician's written opinion. (i) The employer shall obtain a written opinion from the examining physician which shall include:
(A) The results of the medical tests performed;
(B) The physician's opinion as to whether the employee has any detected medical condition which would place the employee at an increased risk of material impairment of the employee's health from exposure to ______;
(C) Any recommended limitations upon the employee's exposure to ______ or upon the use of protective clothing and equipment such as respirators; and
(D) A statement that the employee has been informed by the physician of the results of the medical examination and any medical conditions which require further examination or treatment.
(ii) The employer shall instruct the physician not to reveal in the written opinion specific findings or diagnoses unrelated to occupational exposure to ______;
(iii) The employer shall provide a copy of the written opinion to the affected employee.
(o) Employee information and training—(1) Training program. (i) Within (insert appropriate time period) from the effective date of this standard, the employer shall institute a training program for all employees who (specify the employees subject to the training requirement), and shall assure their participation in the training program.
(ii) The employer shall assure that each employee is informed of the following:
(A) The information contained in the Appendices;
(B) The quantity, location, manner of use, release, or storage of ______ and the specific nature of operations which could result in exposure to ______, as well as any necessary protective steps;
(C) The purpose, proper use, and limitations of respirators;
(D) The purpose and description of the medical surveillance program required by paragraph (n) of this section; and
(E) A review of this standard.
(2) Access to training materials. (i) The employer shall make a copy of this standard and its appendices readily available to all affected employees.
(ii) The employer shall provide, upon request, all materials relating to the employee information and training program to the Assistant Secretary and the Director.
(p) Signs and labels (include a signs or a signs and labels provision if it is appropriate for the duration of the ETS)—(1) General. (i) The employer may use labels or signs required by other statutes, regulations, or ordinances in addition to, or in combination with, signs and labels required by this paragraph.
(ii) The employer shall assure that no statement appears on or near any sign or label, required by this paragraph, which contradicts or detracts from the meaning of the required sign or label.
(2) Signs. (i) The employer shall post signs to clearly indicate all workplaces (specify as appropriate the description of the area to be signposted such as “where employees are exposed to ________,” or “where exposures exceed the PEL,” or “which are regulated areas”). The signs shall bear the following legend:
DANGER ______ (insert appropriate trade or common names) CANCER HAZARD AUTHORIZED PERSONNEL ONLY
(ii) The employer shall assure that signs required by this paragraph are illuminated and cleaned as necessary so that the legend is readily visible.
(iii) Where airborne concentrations of ____________ exceed the permissible exposure limits, the signs shall bear the additional legend: (“Respirator Required” or “Respirator may be Required” as appropriate).
(3) Labels. (i) The employer shall assure that precautionary labels are affixed to all containers of ____________ and of products containing ______________ (specify if appropriate suitable modifications), and that the labels remain affixed when __________ or products containing ____________ are sold, distributed or otherwise leave the employer's workplace.
(ii) The employer shall assure that the precautionary labels required by this paragraph are readily visible and legible. The labels shall bear the following legend:
DANGER CONTAINS ______________ CANCER HAZARD
(q) Recordkeeping—(1) Exposure monitoring. (i) The employer shall establish and maintain an accurate record of all monitoring required by paragraph (e) of this section.
(ii) This record shall include:
(A) The dates, number, duration, and results of each of the samples taken, including a description of the sampling procedures used to determine representative employee exposure;
(B) A description of the sampling and analytical methods used;
(C) Type of respiratory protective devices worn, if any; and
(D) Name, social security number, and job classification of the employee monitored and of all other employees whose exposure the measurement is intended to represent.
(iii) The employer shall maintain this record for the effective period of this emergency temporary standard, and for any additional period required by the permanent standard.
(2) Medical surveillance. (i) The employer shall establish and maintain an accurate record for each employee subject to medical surveillance as required by paragraph (n) of this section.
(ii) This record shall include:
(A) A copy of the physicians' written opinions or a written explanation of the absence of any such opinion or employee refusal to take the medical examination;
(B) Any employee medical complaints related to exposure to ______;
(C) A copy of the information provided to the physician as required by paragraphs (n)(5)(ii)-(iv) of this section unless it is systematically retained elsewhere by the employer for the period of time specified in paragraph (q)(2)(iii); and,
(D) A copy of the employee's work history. (1) The employer shall assure that employee exposure measurement records, as required by this section, be made available upon request to the Assistant Secretary and the Director for examination and copying.
(iii) The employer shall assure that this record be maintained for the effective period of this emergency temporary standard, and for any additional period required by the permanent standard.
(3) Availability. (i) The employer shall assure that all records required to be maintained by this section be made available upon request, to the Assistant Secretary and the Director for examination and copying.
(ii) Employee exposure measurement records and employee medical records required by this section shall be provided upon request to employees, designated representatives, and the Assistant Secretary in accordance with 29 CFR 1910.20 (a) through (e) and (g) through (i).
(r) Observation of monitoring. (1) Employee observation. The employer shall provide affected employees, or their designated representatives, an opportunity to observe any monitoring of employee exposure to ______ conducted pursuant to paragraph (e) of this section.
(2) Observation procedures. (i) Whenever observation of the monitoring of employee exposure to ______ requires entry into an area where the use of protective clothing or equipment is required, the employer shall provide the observer with personal protective clothing or equipment required to be worn by employees working in the area, assure the use of such clothing and equipment, and require the observer to comply with all other applicable safety and health procedures.
(ii) Without interfering with the monitoring, observers shall be entitled to:
(A) Receive an explanation of measurement procedures;
(B) Observe all steps related to the measurement of airborne concentrations of ______ performed at the place of exposure; and
(C) Record the results obtained and receive results supplied by the laboratory.
(s) Effective date. This section shall become effective (insert effective date).
(t) Appendices. The information contained in the appendices is not intended, itself, to create any additional obligations not otherwise imposed or to detract from any existing obligation. (In normal circumstances three appendices will be included in each standard, an “Appendix A—Substance Safety Data Sheet,” an “Appendix B—Substance Technical Guidelines,” and an “Appendix C—Medical Surveillance Guidelines.” Insert additional appendices or delete any of the suggested appendices as appropriate.)
[45 FR 5282, Jan. 22, 1980; 45 FR 43406, 43407, June 27, 1980, as amended at 46 FR 5882, Jan. 21, 1981]
PART 1991 PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE CRIMINAL ANTITRUST ANTI-RETALIATION ACT (CAARA)
Authority: 15 U.S.C. 7a-3; Secretary of Labor's Order 08-2020 (May 15, 2020), 85 FR 58393 (September 18, 2020); Secretary of Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13186-01 (Mar. 6, 2020).
Source: 88 FR 8763, Feb. 10, 2023, unless otherwise noted.
Subpart A Complaints, Investigations, Findings, and Preliminary Orders
§ 1991.100 Purpose and scope.
(a) This part sets forth procedures for, and interpretations of section 2 of the Criminal Antitrust Anti-Retaliation Act (CAARA), Public Law 116-257, 134 Stat. 1147 (December 23, 2020) (codified at 15 U.S.C. 7a-3). CAARA provides for protection from retaliation because the covered individual has engaged in protected activity pertaining to any violation of, or any act or omission which the covered individual reasonably believes constitutes a violation of, section 1 or 3 of the Sherman Act; or any violation of, or any act or omission the covered individual reasonably believes to be a violation of, another criminal law committed in conjunction with a potential violation of section 1 or 3 of the Sherman Act or in conjunction with an investigation by the Department of Justice of a potential violation of section 1 or 3 of the Sherman Act.
(b) This part establishes procedures under CAARA for the expeditious handling of retaliation complaints filed by covered individuals, or by persons acting on their behalf. These rules, together with those codified at 29 CFR part 18, set forth the procedures under CAARA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. In addition, these rules provide the Secretary's interpretations of certain statutory provisions.
§ 1991.101 Definitions.
As used in this part:
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom the Assistant Secretary delegates authority under CAARA.
Antitrust laws means section 1 or 3 of the Sherman Act (15 U.S.C. 1 or 3).
Business days means days other than Saturdays, Sundays, and Federal holidays.
CAARA means the Criminal Antitrust Anti-Retaliation Act, Public Law 116-257, 134 Stat. 1147 (December 23, 2020) (codified at 15 U.S.C. 7a-3).
Complainant means the covered individual who filed a CAARA complaint or on whose behalf a complaint was filed.
Covered individual means an employee, contractor, subcontractor, or agent of an employer and includes an individual presently or formerly working for, an individual applying to work for, or an individual whose employment could be affected by, another person.
DOJ means the Antitrust Division of the United States Department of Justice.
Employer means a person, or any officer, employee, contractor, subcontractor, or agent of such person.
Federal Government means a Federal regulatory or law enforcement agency; or any Member of Congress or committee of Congress.
OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
Person has the same meaning as in 15 U.S.C. 12(a) and includes individuals as well as corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country.
Respondent means the person named in the complaint who is alleged to have violated CAARA.
Secretary means the Secretary of Labor.
§ 1991.102 Obligations and prohibited acts.
(a) No employer may discharge, demote, suspend, threaten, harass, or in any other manner retaliate against, including, but not limited to, intimidating, restraining, coercing, blacklisting, or disciplining, a covered individual in the terms and conditions of employment of the covered individual because of any lawful act done by the covered individual to engage in any of the activities specified in paragraph (b)(1) and (2) of this section.
(b) A covered individual is protected against retaliation (as described in paragraph (a) of this section) for any lawful act done by the covered individual:
(1) To provide information, or cause information to be provided to the Federal Government or a person with supervisory authority over the individual, or any other person working for the employer who has the authority to investigate, discover, or terminate misconduct, regarding:
(i) Any violation of, or any act or omission the covered individual reasonably believes to be a violation of, the antitrust laws; or
(ii) Any violation of, or any act or omission the covered individual reasonably believes to be a violation of, another criminal law committed in conjunction with a potential violation of the antitrust laws or in conjunction with an investigation by the Department of Justice of a potential violation of the antitrust laws; or
(2) To cause to be filed, testify in, participate in, or otherwise assist a Federal Government investigation or a Federal Government proceeding filed or about to be filed (with any knowledge of the employer) relating to:
(i) Any violation of, or any act or omission the covered individual reasonably believes to be a violation of, the antitrust laws; or
(ii) Any violation of, or any act or omission the covered individual reasonably believes to be a violation of, another criminal law committed in conjunction with a potential violation or in conjunction with an investigation by the Department of Justice of a potential violation of the antitrust laws.
(3) The term violation with respect to the antitrust laws shall not be construed to include a civil violation of any law that is not also a criminal violation.
(4) Paragraphs (b)(1) and (2) of this section shall not apply to any covered individual if the covered individual:
(i) Planned and initiated a violation or attempted violation of the antitrust laws;
(ii) Planned and initiated a violation or attempted violation of another criminal law in conjunction with a violation or attempted violation of the antitrust laws; or
(iii) Planned and initiated an obstruction or attempted obstruction of an investigation by the Department of Justice of a violation of the antitrust laws.
§ 1991.103 Filing of retaliation complaint.
(a) Who may file. A covered individual who believes that they have been discharged or otherwise retaliated against by any employer in violation of CAARA may file, or have filed by any person on their 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 complainant 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. Complaints may also be filed online at https://www.osha.gov/whistleblower/WBComplaint.html.
(d) Time for filing. Within 180 days after an alleged violation of CAARA occurs, any person who believes that they have been retaliated against in violation of CAARA may file, or have filed by any person on their behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic filing or transmittal, 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. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 180 days after an alleged adverse action.
§ 1991.104 Investigation.
(a) OSHA will notify the respondent(s) and the complainant's employer (if different) of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1991.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel) and to the DOJ.
(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 OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA generally will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 29 CFR part 70.
(e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that a 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 individual engaged in a protected activity;
(ii) The respondent knew or suspected that the individual engaged in the protected activity;
(iii) The individual 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 individual 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 complainant shows that the adverse action took place shortly after the protected activity. 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, further investigation of the complaint will not be conducted 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 its burden set forth in the prior paragraph, OSHA 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 in § 1991.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated CAARA and that preliminary reinstatement is warranted, OSHA will 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, OSHA will redact them, if necessary, consistent 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 investigator, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph, or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require.
§ 1991.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of CAARA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will include all relief necessary to make the complainant whole including, where appropriate: 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 fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily. Where appropriate, the preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods.
(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 physical or electronic means that allow OSHA to confirm delivery to all parties of record (or 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 fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges if electronic filing is available. The findings also may specify the means, including electronic means, for serving OSHA and the Associate Solicitor for Fair Labor Standards with documents in the administrative litigation as required under this part. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1991.106. 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
§ 1991.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under CAARA, 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 § 1991.105. The objections and request for hearing and/or request for attorney fees must be in writing and must state whether the objections are to the findings, the preliminary order, or both, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for serving them with copies of the objections.
(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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
§ 1991.107 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 29 CFR part 18, subpart A.
(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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
§ 1991.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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, and the right to seek discretionary review of a decision of the Administrative Review Board (ARB) from the Secretary.
(2) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by these rules. Except as otherwise provided in rules of practice and/or procedure before the OALJ or the ARB, OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for serving them with documents under this section.
(b) The DOJ, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at the DOJ's discretion. At the request of the DOJ, copies of all documents in a case must be sent to the DOJ, whether or not it is participating in the proceeding.
§ 1991.109 Decisions 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1991.104(e) nor OSHA'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 ALJ will issue an order providing all relief necessary to make the complainant whole, including, where appropriate: 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 fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods.
(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 ALJ may award to the respondent a reasonable attorney 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. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of decisions on them under this section. 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 30 days after the date of the decision unless a timely petition for review has been filed with the ARB. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1991.110 Decisions 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 fees, must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue decisions under this part subject to the Secretary's discretionary 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 30 days of the date of the decision of the ALJ. All petitions and documents submitted to the ARB must be filed in accordance with 29 CFR part 26. The date of the postmark, facsimile transmittal, or electronic transmittal 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. The petition for review also must be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of petitions for review on them under this section.
(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 any 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 a timely petition for review is not filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If a timely petition for review is not filed, the resulting final order is not subject to judicial review.
(c) The decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 30 days after the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 30 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of ARB decisions on them under this section.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing all relief necessary to make the complainant whole. The order will require, where appropriate: 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 fees. Interest on back pay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621(a)(2) and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods. Such order is subject to discretionary review by the Secretary (as provided in Secretary's Order 01-2020 or any successor to that order).
(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 fee, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary (as provided in Secretary's Order 01-2020 or any successor to that order).
Subpart C Miscellaneous Provisions
§ 1991.111 Withdrawal of complaints, findings, 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 complainant may withdraw the complaint by notifying OSHA, orally or in writing, of the withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA will notify the parties (or 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 the complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1991.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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. If the Secretary has accepted the case for discretionary review, or directed that the case be referred for discretionary review, the settlement must be approved by the Secretary. A copy of the settlement will be filed with the ALJ or the ARB, as appropriate.
(e) Any settlement approved by OSHA, the ALJ, the ARB or the Secretary will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1991.113.
§ 1991.112 Judicial review.
(a) Within 60 days after the issuance of a final order for which judicial review is available (including a decision issued by the Secretary upon discretionary review), 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 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 the case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
§ 1991.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order of reinstatement or a final order issued by the Secretary under CAARA, including one approving a settlement agreement, the Secretary or the 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.
§ 1991.114 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.
(b) A proceeding under paragraph (a) of this section shall be governed by the same legal burdens of proof specified in § 1991.109.
(c) Within seven days after filing a complaint in federal court, a complainant must file with OSHA, 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1991.115 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, and after three days' notice to all parties, waive any rule or issue such orders that justice or the administration of CAARA requires.
PART 1992 PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE ANTI-MONEY LAUNDERING ACT (AMLA)
Authority: 31 U.S.C. 5323(a)(5), (g), and (j); Secretary of Labor's Order 08-2020, 85 FR 58393; Secretary of Labor's Order 01-2020, 85 FR 13024-01.
Source: 90 FR 3030, Jan. 14, 2025, unless otherwise noted.
Subpart A Complaints, Investigations, Findings, and Preliminary Orders
§ 1992.100 Purpose and scope.
(a) This part sets forth procedures for, and interpretations of the anti-retaliation protections of the Anti-Money Laundering Act of 2020 contained in section 6314 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 Stat. 3388 (January 1, 2021), as amended, codified at 31 U.S.C. 5323 (g)(1)-(3)and (g)(6) and referred to herein as AMLA. AMLA provides for protection from retaliation because a whistleblower has engaged in protected activity by providing information relating to a violation of 31 U.S.C. chapter 53, subchapter II (relating to records and reports on monetary instruments transactions, 31 U.S.C. 5311-5336); chapter 35 or section 4305 or 4312 of title 50; the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 et seq.), or conspiracies to violate the aforementioned provisions; or initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Department of the Treasury or the Department of Justice based upon or related to such information; or providing information relating to any conduct that the whistleblower reasonably believes constitutes a violation of any law, rule, or regulation subject to the jurisdiction of the Department of the Treasury, or a violation of section 1956, 1957, or 1960 of title 18 (or any rule or regulation under any such provision).
(b) This part establishes procedures under AMLA for the expeditious handling of retaliation complaints filed by whistleblowers, or by persons acting on their behalf. This part, together with 29 CFR parts 18 and 26, set forth the procedures under AMLA for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. In addition, this part provide the Secretary's interpretations of certain statutory provisions.
§ 1992.101 Definitions.
As used in this part:
AMLA means the provisions relating to anti-retaliation of the Anti-Money Laundering Act of 2020 contained in Sec. 6314 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Public Law 116-283, 134 Stat. 3388 (January 1, 2021), as amended, codified at 31 U.S.C. 5323(g)(1)-(3) and (6).
Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom the Assistant Secretary delegates authority under AMLA.
Business days means days other than Saturdays, Sundays, and Federal holidays.
Complainant means the whistleblower who filed an AMLA complaint or on whose behalf a complaint was filed.
FinCEN means the Financial Crimes Enforcement Network, a bureau of the United States Department of the Treasury.
OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.
Respondent means the person named in the complaint who is alleged to have violated AMLA.
Secretary means the Secretary of Labor or the person or persons to whom the Secretary delegates authority under certain anti-retaliation provisions of AMLA, 31 U.S.C. 5323(g)(1)-(3).
Whistleblower means any individual, or two or more individuals acting jointly, who take any of the actions described in § 1992.102(b). A whistleblower includes an individual presently or formerly working for an employer, an individual applying to work for an employer, or an individual whose employment could be affected by an employer.
§ 1992.102 Obligations and prohibited acts.
(a) No employer may directly or indirectly discharge, demote, suspend, threaten, blacklist, harass, or in any other manner discriminate against a whistleblower in the terms and conditions of employment or post-employment because of any lawful act done by the whistleblower to engage in any of the activities specified in paragraphs (b)(1), (2) and (3) of this section.
(b) A whistleblower is protected against retaliation (as described in paragraph (a) of this section) by an employer for any lawful act done by the whistleblower:
(1) In providing information relating to a violation of 31 U.S.C. chapter 53, subchapter II (Records and Reports on Monetary Instruments Transactions, 31 U.S.C. 5311-5336); chapter 35 or section 4305 or 4312 of title 50; or the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. 1901 et seq., or a conspiracy to violate the aforementioned provisions to:
(i) The employer of the whistleblower, including as part of the job duties of the whistleblower. The employer includes a person with supervisory authority over the whistleblower or such other person working for the employer who has authority to investigate, discover, or terminate misconduct;
(ii) The Secretary of the Treasury or the Attorney General;
(iii) A Federal regulatory or law enforcement agency; or
(iv) Any Member of Congress or any committee of Congress;
(2) In initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Department of the Treasury or the Department of Justice based upon or related to the information described in paragraph (b)(1) of this section; or
(3) In providing information regarding any conduct that the whistleblower reasonably believes constitutes a violation of any law, rule, or regulation subject to the jurisdiction of the Department of the Treasury, or a violation of section 1956, 1957, or 1960 of title 18 (or any rule or regulation under any such provision) to:
(i) A person with supervisory authority over the whistleblower at the employer of the whistleblower; or
(ii) Another individual working for the employer who the whistleblower reasonably believes has the authority to investigate, discover, or terminate the misconduct; or take any other action to address the misconduct.
(c) This section shall not apply with respect to any employer that is subject to section 33 of the Federal Deposit Insurance Act (12 U.S.C. 1831j) or section 213 or 214 of the Federal Credit Union Act (12 U.S.C. 1790b, 1790c).
§ 1992.103 Filing of retaliation complaint.
(a) Who may file. Any individual who believes that they have been discharged or otherwise retaliated against, or is otherwise aggrieved by an employer in violation of AMLA may file, or have filed by any person on their 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 complainant 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: https://www.osha.gov. Complaints may also be filed online using OSHA's online complaint form, currently available at https://www.osha.gov/whistleblower/WBComplaint.html.
(d) Time for filing. Within 90 days after an alleged violation of AMLA occurs, an individual who believes that they have been retaliated against in violation of AMLA must file, or have filed by any person on their behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic filing or transmittal, 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 or equitably modified for reasons warranted by applicable case law. For example, OSHA may consider the time for filing a complaint to be tolled if a complainant mistakenly files a complaint with an agency other than OSHA within 90 days after an alleged adverse action.
§ 1992.104 Investigation.
(a) Upon receipt of a complaint in the investigating office, OSHA will notify the respondent and the complainant's employer (if different) of the filing of the complaint, of the allegations contained in the complaint, and of the substance of the evidence supporting the complaint. Such materials will be redacted, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. OSHA will also notify the respondent of its rights under paragraphs (b) and (f) of this section and § 1992.110(e). OSHA will provide an unredacted copy of these same materials to the complainant (or the complainant's legal counsel if complainant is represented by counsel) and to FinCEN.
(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 OSHA a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with OSHA to present its position.
(c) During the investigation, OSHA will request that each party provide the other parties to the whistleblower complaint with a copy of submissions to OSHA that are pertinent to the whistleblower complaint. Alternatively, if a party does not provide its submissions to OSHA to the other party, OSHA generally will provide them to the other party (or the party's legal counsel if the party is represented by counsel) at a time permitting the other party an opportunity to respond. Before providing such materials to the other party, OSHA will redact them, if necessary, consistent with the Privacy Act of 1974, 5 U.S.C. 552a and other applicable confidentiality laws. OSHA will also provide each party with an opportunity to respond to the other party's submissions.
(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 individual engaged in a protected activity;
(ii) The respondent knew or suspected that the individual engaged in the protected activity;
(iii) The individual 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 individual 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 complainant shows that the adverse action took place shortly after the protected activity. 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, further investigation of the complaint will not be conducted 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 its burden set forth in paragraph (e)(4) of this section, OSHA 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 in § 1992.105, if OSHA has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated AMLA and that preliminary reinstatement is warranted, OSHA will 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 (f). Before providing such materials, OSHA will redact them, if necessary, consistent 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 investigator, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of OSHA's notification pursuant to this paragraph (f), or as soon thereafter as OSHA and the respondent can agree, if the interests of justice so require.
§ 1992.105 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 or not there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of AMLA.
(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief to the complainant. The preliminary order will include, where appropriate: reinstatement with the same seniority status that the complainant would have had, but for the retaliation; two times the amount of back pay otherwise owed to the individual with interest; compensatory damages, including litigation costs, expert witness fees, and reasonable attorney fees; and any other appropriate remedy for the retaliation, as applicable. Interest on any back pay award will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. Where appropriate, the preliminary order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods.
(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 physical or electronic means that allow OSHA to confirm delivery to all parties of record (or 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 fees not exceeding $1,000 from the ALJ, regardless of whether the respondent has filed objections, if the respondent alleges that 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, U.S. Department of Labor, or appropriate information regarding filing objections electronically with the Office of Administrative Law Judges. The findings also may specify the means, including electronic means, for serving OSHA and the Associate Solicitor for Fair Labor Standards with documents in the administrative litigation as required under this part. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge 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 at § 1992.106. 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
§ 1992.106 Objections to the findings and the preliminary order and requests for a hearing.
(a) Any party who desires review, including judicial review, of the findings and/or preliminary order, or a respondent alleging that the complaint was frivolous or brought in bad faith who seeks an award of attorney fees under AMLA, 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 § 1992.105. The objections and request for hearing and/or request for attorney fees must be in writing and must state whether the objections are to the findings, the preliminary order, or both, and/or whether there should be an award of attorney fees. The date of the postmark, facsimile transmittal, or electronic transmittal 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, in accordance with 29 CFR part 18, and copies of the objections must be served at the same time on 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. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for serving them with copies of the objections.
(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 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 the preliminary order will become the final decision of the Secretary, not subject to judicial review.
§ 1992.107 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 29 CFR part 18, subpart A.
(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 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. ALJs 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 ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
§ 1992.108 Role of Federal agencies.
(a)(1) The complainant and the respondent will be parties in every proceeding and must be served with copies of all documents in the case. 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 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, and the right to seek discretionary review of a decision of the Administrative Review Board (ARB) from the Secretary.
(2) Parties must send copies of documents to OSHA and to the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, only upon request of OSHA, or when OSHA is participating in the proceeding, or when service on OSHA and the Associate Solicitor is otherwise required by this part. Except as otherwise provided in rules of practice and/or procedure before the OALJ or the ARB, OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for serving them with documents under this section.
(b) The Department of the Treasury, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at its discretion. At the request of The Department of the Treasury, copies of all documents in a case must be sent to the Department of the Treasury, whether or not it is participating in the proceeding.
§ 1992.109 Decisions 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 paragraph (a) of this section, 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 OSHA's determination to dismiss a complaint without completing an investigation pursuant to § 1992.104(e) nor OSHA'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 ALJ will issue an order providing reinstatement with the same seniority status that the complainant would have had, but for the retaliation; two times the amount of back pay otherwise owed to the individual with interest; compensatory damages, including litigation costs, expert witness fees, and reasonable attorney fees; and any other appropriate remedy for the retaliation, as applicable. Interest on any back pay award will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods.
(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 ALJ may award to the respondent a reasonable attorney 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. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of decisions on them under this section. 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 30 days after the date of the decision unless a timely petition for review has been filed with the ARB. The decision of the ALJ will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the petition for review.
§ 1992.110 Decisions 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 fees, must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue decisions under this part subject to the Secretary's discretionary 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 30 days of the date of the decision of the ALJ. All petitions and documents submitted to the ARB must be filed in accordance with part 26 of this title. The date of the postmark, or electronic transmittal 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. The petition for review also must be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of petitions for review on them under this section.
(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 any 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, and will review legal conclusions de novo. If a timely petition for review is not filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If a timely petition for review is not filed, the resulting final order is not subject to judicial review.
(c) The decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 30 days after the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 30 days after a new decision is issued. The ARB's decision will be served upon all parties and the Chief Administrative Law Judge. The decision will also be served on the Assistant Secretary and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, even if the Assistant Secretary is not a party. OSHA and the Associate Solicitor for Fair Labor Standards may specify the means, including electronic means, for service of ARB decisions on them under this section.
(d) If the ARB concludes that the respondent has violated the law, the ARB will issue an order providing reinstatement with the same seniority status that the complainant would have had, but for the retaliation; two times the amount of back pay otherwise owed to the individual with interest; compensatory damages, including litigation costs, expert witness fees, and reasonable attorney fees; and any other appropriate remedy for the retaliation, as applicable. Interest on any back pay award will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The order will also require the respondent to submit appropriate documentation to the Social Security Administration allocating any back pay award to the appropriate periods. Such order is subject to discretionary review by the Secretary (as provided in Secretary's Order 01-2020 or any successor to that order).
(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 fee, not exceeding $1,000. An order under this section is subject to discretionary review by the Secretary (as provided in Secretary's Order 01-2020 or any successor to that order).
Subpart C Miscellaneous Provisions
§ 1992.111 Withdrawal of complaints, findings, 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 complainant may withdraw the complaint by notifying OSHA, orally or in writing, of the withdrawal. OSHA then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. OSHA will notify the parties (or 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 the complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.
(b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1992.106, provided that no objection has been filed yet, and substitute new findings and/or a new 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 Assistant Secretary's findings and/or order become final, a party may withdraw 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 a 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 order, and there are no other pending objections, the Assistant Secretary's findings and/or 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, but before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if OSHA, the complainant, and the respondent agree to a settlement. OSHA's approval of a settlement reached by the respondent and the complainant demonstrates OSHA's 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. If the Secretary has accepted the case for discretionary review, or directed that the case be referred for discretionary review, the settlement must be filed with the ARB for approval by the Secretary. A copy of the settlement will be filed with the ALJ or the ARB, as appropriate.
(e) Any settlement approved by OSHA, the ALJ, the ARB or the Secretary will constitute the final order of the Secretary and may be enforced in United States district court pursuant to § 1992.113.
§ 1992.112 Judicial review.
(a) Within 60 days after the issuance of a final order for which judicial review is available (including a decision issued by the Secretary upon discretionary review), 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 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 the case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.
§ 1992.113 Judicial enforcement.
Whenever any person has failed to comply with a preliminary order of reinstatement or a final order issued under AMLA, including one approving a settlement agreement, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred. Whenever any person has failed to comply with a preliminary order of reinstatement or a final order issued under AMLA, including one approving a settlement agreement, a person on whose behalf the order was issued may file a civil action seeking enforcement of the order in the appropriate United States district court.
§ 1992.114 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. Either party shall be entitled to a trial by jury.
(b) Within seven days after filing a complaint in Federal court, a complainant must file with OSHA, 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 OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor.
§ 1992.115 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, and after three days' notice to all parties, waive any rule or issue such orders that justice or the administration of AMLA requires.