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the continuation of the State's plan or such portions subject to this action.

(3) The State shall be afforded an opportunity to agree to the conditions of the Assistant Secretary's decision.

(4) Upon the expiration of the time granted to a State to meet the criteria for an affirmative 18(e) determination under paragraph (d)(2) of this section, the Assistant Secretary may initiate proceedings to determine whether a State shall be granted an affirmative 18(e) determination. The procedures outlined in this subpart shall be applicable to any proceedings initiated under this paragraph. PROCEDURE FOR RECONSIDERATION AND REVOCATION

AFFIRMATIVE 18(e) DETERMINATION

an opportunity to submit in writing, data, views, and arguments on the proposal within 35 days after publication of the notice in the FEDERAL REGISTER. The notice shall also provide that any interested person may request an informal hearing concerning the proposed revocation whenever particular. ized written objections thereto are filed within 35 days following publication of the notice in the FEDERAL REGISTER. If the Assistant Secretary finds that substantial objections have been filed, he shall afford an informal hearing on the proposed revocation under $ 1902.50.

(d) The Assistant Secretary may, upon his own initiative, give notice of an informal hearing affording an opportunity for oral comments concerning the proposed revocation.

OF

AN

8 1902.47 Reconsideration of an affirma

tive 18(e) determination. (a) The Assistant Secretary may at any time reconsider on his own initiative or on petition of an interested person his decision granting an affirmative 18(e) determination.

(b) Such reconsideration shall be based on results of his continuing evaluation of a State plan after it has been granted an affirmative 18(e) determination.

1902.50 Informal hearing.

Any informal hearing shall be legis. lative in type. The rules of procedure for each hearing shall be those contained in § 1902.40 and will be published with the notice thereof.

8 1902.48 The proceeding.

Whenever, as a result of his reconsideration, the Assistant Secretary proposes to revoke his affirmative 18(e) determination, he shall follow the procedures in the remaining sections of this subpart.

8 1902.51 Certification of the records of a

hearing. Upon completion of an informal hearing, the transcript thereof, together with written submissions, exhibits filed during the hearing, and any post-hearing presentations shall be certified by the officer presiding at the hearing to the Assistant Secretary.

8 1902.49 General notice.

(a) Whenever the Assistant Secretary proposes to revoke an affirmative 18(e) determination, he shall publish a notice in the FEDERAL REGISTER meeting the requirements of the remaining paragraphs of this section. No later than 10 days following the publication of the notice in the FEDERAL REGISTER, the affected State agency shall publish, or cause to be published, reasonable notice within the State containing the same information.

(b) The notice shall indicate the reasons for the proposed action.

(c) The notice shall afford interested persons including the affected State,

8 1902.52 Decision.

(a) After consideration of all relevant information which has been presented, the Assistant Secretary shall issue a decision on the continuation or revocation of the affirmative 18(e) determination.

(b) The decision revoking the determination shall also reflect the Assistant Secretary's determination that concurrent Federal enforcement and standards authority will be reinstated within the State for a reasonable time until he has withdrawn his approval of the plan, or any separable portion thereof, pursuant to part 1955 of this chapter or he has determined that the State has met the criteria for an 18(e) determination pursuant to the applicable procedures of this subpart.

8 1902.53 Publication of decisions.

All decisions on the reconsideration of an affirmative 18(e) determination shall be published in the FEDERAL REGISTER.

PART 1903—INSPECTIONS, CITA

TIONS AND PROPOSED PENALTIES

Sec. 1903.1 Purpose and scope. 1903.2 Posting of notice; availability of the

Act, regulations and applicable stand

ards. 1903.3 Authority for inspection. 1903.4 Objection to inspection. 1903.5 Entry not a waiver. 1903.6 Advance notice of inspections. 1903.7 Conduct of inspections. 1903.8 Representatives of employers and

employees. 1903.9 Trade secrets. 1903.10 Consultation with employees. 1903.11 Complaints by employees. 1903.12 Inspection not warranted; informal

review. 1903.13 Imminent danger. 1903.14 Citations; notices of de minimis

violations. 1903.14a Petitions for modification of

abatement date. 1903.15 Proposed penalties. 1903.16 Posting of citations. 1903.17 Employer and employee contests

before the Review Commission. 1903.18 Failure to correct a violation for

which a citation has been issued. 1903.19 Informal conferences. 1903.20 State administration. 1903.21 Definitions.

AUTHORITY: Secs. 8, 9, Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 658); Secretary of Labor's Order No. 1271 (36 FR 8754), 8-76 (41 FR 25059), or 9-83 (48 FR 35736), as applicable. Section 1903.7 also issued under 5 U.S.C. 553.

SOURCE: 36 FR 17850, Sept. 4, 1971, unless otherwise noted.

are likely to cause death or serious physical harm to his employees. The Act also requires that employers comply with occupational safety and health standards promulgated under the Act, and that employees comply with standards, rules, regulations and orders issued under the Act which are applicable to their own actions and conduct. The Act authorizes the Department of Labor to conduct inspections, and to issue citations and proposed penalties for alleged violations. The Act, under section 20(b), also authorizes the Secretary of Health, Education, and Welfare to conduct inspections and to question employers and employees in connection with research and other related activities. The Act contains provisions for adjudication of violations, periods prescribed for the abatement of violations, and proposed penalties by the Occupational Safety and Health Review Commission, if contested by an employer or by an employee or authorized representative of employees, and for judicial review. The purpose of this part 1903 is to prescribe rules and to set forth general policies for enforcement of the inspection, citation, and proposed penalty provisions of the Act. In situations where this part 1903 sets forth general enforcement policies rather than substantive or procedural rules, such policies may be modified in specific circumstances where the Secretary or his designee determines that an alternative course of action would better serve the objectives of the Act.

8 1903.1 Purpose and scope.

The Williams-Steiger Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.) requires, in part, that every employer covered under the Act furnish to his employees employment and a place of employment which are free from recognized hazards that are causing or

8 1903.2 Posting of notice; availability of

the Act, regulations and applicable

standards. (a) (1) Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor. Such notice or notices shall be posted by the employer in each establishment in a conspicuous place or places where notices to employees are customarily posted. Each employer shall take steps to insure that such notices are not altered, defaced, or covered by other material.

(2) Where a State has an approved poster informing employees of their protections and obligations as defined in $ 1952.10 of this chapter, such poster, when posted by employers covered by the State plan, shall constitute compliance with the posting requirements of section 8(c)(1) of the Act. Employers whose operations are not within the issues covered by the State plan must comply with paragraph (a)(1) of this section.

(3) Reproductions or facsimiles of such Federal or State posters shall constitute compliance with the posting requirements of section 8(c)(1) of the Act where such reproductions or facsimiles are at least 842 inches by 14 inches, and the printing size is at least 10 pt. Whenever the size of the poster increases, the size of the print shall also increase accordingly. The caption or heading on the poster shall be in large type, generally not less than 36 pt.

(b) Establishment means a single physical location where business is conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theatre, farm, ranch, bank, sales office, warehouse,

central administrative office.) Where distinctly separate activities are performed at a single physical location (such as contract construction activities from the same physical location as a lumber yard), each activity shall be treated as a separate physical establishment, and a separate notice or notices shall be posted in each such establishment, to the extent that such notices have been furnished by the Occupational Safety and Health Administration, U.S. Department of Labor. Where employers are engaged in activities which are physically dispersed, such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, the notice or notices required by this section shall be posted at the location to which employees report each day.

Where employees do not usually work at, or report to, a single establishment, such as longshoremen, traveling salesmen, technicians, engineers, etc., such notice or notices shall be posted at the location from which the employees operate to carry out their activities. In all cases, such notice or notices shall be posted in accordance with the requirements of paragraph (a) of this section.

(c) Copies of the Act, all regulations published in this chapter and all applicable standards will be available at all Area Offices of the Occupational Safety and Health Administration, U.S. Department of Labor. If an employer has obtained copies of these materials, he shall make them avail. able upon request to any employee or his authorized representative for review in the establishment where the employee is employed on the same day the request is made or at the earliest time mutually convenient to the employee or his authorized representative and the employer.

(d) Any employer failing to comply with the provisions of this section shall be subject to citation and penalty in accordance with the provisions of section 17 of the Act.

(36 FR 17850, Sept. 4, 1971, as amended at 39 FR 39036, Nov. 5, 1974)

or

8 1903.3 Authority for inspection.

(a) Compliance Safety and Health Officers of the Department of Labor are authorized to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; 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; to question privately any employer, owner, operator, agent or employee; and to review records required by the Act and regulations published in this chapter, and other records which are directly related to the purpose of the inspection. Representa

tives of the Secretary of Health, Edu- Regional Solicitor, circumstances exist cation, and Welfare are authorized to which make such preinspection procmake inspections and to question em- ess desirable or necessary. Some examployers and employees in order to ples of circumstances in which it may carry out the functions of the Secre

be desirable or necessary to seek comtary of Health, Education, and Wel

pulsory process in advance of an atfare under the Act. Inspections con

tempt to inspect or stigate include ducted by Department of Labor Com

(but are not limited to): pliance Safety and Health Officers

(1) When the employer's past pracand representatives of the Secretary of Health, Education, and Welfare

tice either implicitly or explicitly puts under section 8 of the Act and pursu.

the Secretary on notice that a warant to this part 1903 shall not affect

rantless inspection will not be allowed; the authority of any State to conduct

(2) When an inspection is scheduled inspections in accordance with agree

far from the local office and procuring ments and plans under section 18 of

a warrant prior to leaving to conduct the Act.

the inspection would avoid, in case of (b) Prior to inspecting areas contain- refusal of entry, the expenditure of ing information which is classified by significant time and resources to an agency of the United States Gov- return to the office, obtain a warrant ernment in the interest of national se- and return to the worksite; curity, Compliance Safety and Health

(3) When an inspection includes the Officers shall have obtained the ap- use of special equipment or when the propriate security clearance.

presence of an expert or experts is

needed in order to properly conduct 8 1903.4 Objection to inspection.

the inspection, and procuring a war(a) Upon a refusal to permit the rant prior to an attempt to inspect Compliance Safety and Health Offi

would alleviate the difficulties or costs cer, in exercise of his official duties, to

encountered in coordinating the availenter without delay and at reasonable

ability of such equipment or expert. times any place of employment or any

(c) With the approval of the Regionplace therein, to inspect, to review

al Administrator and the Regional Sorecords, or to question any employer, owner, operator, agent, or employee,

licitor, compulsory process may also be

obtained by the Area Director or his in accordance with $ 1903.3 or to

designee. permit a representative of employees to accompany the Compliance Safety

(d) For purposes of this section, the and Health Officer during the physi

term compulsory process shall mean cal inspection of any workplace in ac

the institution of any appropriate cordance with $ 1903.8, the Safety and

action, including ex parte application Health Officer shall terminate the in

for an inspection warrant or its equivspection or confine the inspection to

alent. Ex parte inspection warrants other areas, conditions, structures, ma- shall be the preferred form of compulchines, apparatus, devices, equipment, sory process in all circumstances materials, records, or interviews con- where compulsory process is relied cerning which no objection is raised. upon to seek entry to a workplace The Compliance Safety and Health under this section. Officer shall endeavor to ascertain the

(45 FR 65923, Oct. 3, 1980) reason for such refusal, and shall immediately report the refusal and the

$ 1903.5 Entry not a waiver. reason therefor to the Area Director. The Area Director shall consult with

Any permission to enter, inspect, the Regional Solicitor, who shall take

review records, or question any person, appropriate action, including compul

shal not imply or be conditioned upon sory process, if necessary.

a waiver of any cause of action, cita(b) Compulsory process shall be tion, or penalty under the Act. Comsought in advance of an attempted in- pliance Safety and Health Officers are spection or investigation if, in the not authorized to grant any such judgment of the Area Director and the waiver.

Act. Advance notice in any of the situations described in paragraph (a) of this section shall not be given more than 24 hours before the inspection is scheduled to be conducted, except in apparent imminent danger situations and in other unusual circumstances.

(c) The Act provides in section 17(f) that any person who gives advance notice of any inspection to be conducted under the Act, without authority from the Secretary or his designees, shall, upon conviction, be punished by fine of not more than $1,000 or by imprisonment for not more than 6 months, or by both.

8 1903.6 Advance notice of inspections.

(a) Advance notice of inspections may not be given, except in the following situations: (1) In cases of apparent imminent danger, to enable the employer to abate the danger as quickly as possible; (2) in circumstances where the inspection can most effectively be conducted after regular business hours or where special preparations are necessary for an inspection; (3) where necessary to assure the presence of representatives of the employer and employees or the appropriate personnel needed to aid in the inspection; and (4) in other circumstances where the Area Director determines that the giving of advance notice would enhance the probability of an effective and thorough inspection.

(b) In the situations described in paragraph (a) of this section, advance notice of inspections may be given only if authorized by the Area Director, except that in cases of apparent imminent danger, advance notice may be given by the Compliance Safety and Health Officer without such authorization if the Area Director is not immediately available. When advance notice is given, it shall be the employer's responsibility promptly to notify the authorized representative of employees of the inspection, if the identity of such representative is known to the employer. (See $ 1903.8(b) as to situations where there is no authorized representative of employees.) Upon the request of the employer, the Compliance Safety and Health Officer will inform the authorized representative of employees of the inspection, provided that the employer furnishes the Compliance Safety and Health Officer with the identity of such representative and with such other information as is necessary to enable him promptly to inform such representative of the inspection. An employer who fails to comply with his obligation under this paragraph promptly to inform the authorized representative of employees of the inspection or to furnish such information as is necessary to enable the Compliance Safety and Health Officer promptly to inform such representative of the inspection, may be subject to citation and penalty under section 17(c) of the

8 1903.7 Conduct of inspections.

(a) Subject to the provisions of $ 1903.3, inspections shall take place at such times and in such places of employment as the Area Director or the Compliance Safety and Health Officer may direct. At the beginning of an inspection, Compliance Safety and Health Officers shall present their credentials to the owner, operator, or agent in charge at the establishment; explain the nature and purpose of the inspection; and indicate generally the scope of the inspection and the records specified in $ 1903.3 which they wish to review. However, such designation of records shall not preclude access to additional records specified in § 1903.3.

(b) Compliance Safety and Health Officers shall have authority to take environmental samples and to take or obtain photographs related to the purpose of the inspection, employ other reasonable investigative techniques, and question privately any employer, owner, operator, agent or employee of an establishment. (See $ 1903.9 on trade secrets.) As used herein, the term employ other reasonable investigative techniques includes, but is not limited to, the use of devices to measure employee exposures and the attachment of personal sampling equipment such dosimeters, pumps, badges and other similar devices to employees in order to monitor their exposures.

(c) In taking photographs and samples, Compliance Safety and Health Officers shall take reasonable precau

as

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