§ 1904.10 Recordkeeping under approved State plans.

Records maintained by an employer and reports submitted pursuant to, and in accordance with the requirements of an approved State plan under section 18 of the act shall be regarded as compliance with this part 1904.

§ 1904.11 Change of ownership.

Where an establishment has changed ownership, the employer shall be responsible for maintaining records and filing reports only for that period of the year during which he owned such establishment. However, in the case of any change in ownership, the employer shall preserve those records, if any, of the prior ownership which are required to be kept under this part. These records shall be retained at each establishment to which they relate, for the period, or remainder thereof, required under § 1904.6.

§ 1904.12 Definitions.

(a) Act means the Williams-Steiger Occupational Safety and Health Act of 1970 (84 Stat. 1590 et seq., 29 U.S.C. 651 et seq.).

(b) The definitions and interpretations contained in section (2) of the Act shall be applicable to such terms when used in this part 1904.

(c) Recordable occupational injuries or illnesses are any occupational injuries or illnesses which result in:

(1) Fatalities, regardless of the time between the injury and death, or the length of the illness; or

(2) Lost workday cases, other than fatalities, that result in lost workdays;

or

(3) Nonfatal cases without lost workdays which result in transfer to another job or termination of employment, or require medical treatment (other than first aid) or involve: loss of consciousness or restriction of work or motion. This category also includes any diagnosed occupational illnesses which are reported to the employer but are not classified as fatalities or lost workday cases.

(d) Medical treatment includes treatment administered by a physician or by registered professional personnel

under the standing orders of a physician. Medical treatment does not include first aid treatment even though provided by a physician or registered professional personnel.

(e) First Aid is any one-time treatment, and any followup visit for the purpose of observation, of minor scratches, cuts, burns, splinters, and so forth, which do not ordinarily require medical care. Such one-time treatment, and followup visit for the purpose of observation, is considered first aid even though provided by a physician or registered professional personnel.

(f) Lost workdays: The number of days (consecutive or not) after, but not including, the day of injury or illness during which the employee would have worked but could not do so; that is, could not perform all or any part of his normal assignment during all or any part of the workday or shift, because of the occupational injury or ill

ness.

(g)(1) Establishment: 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 theater, farm, ranch, bank, sales office, warehouse, or central administrative office.) Where distinctly separate activities are performed at a single physical location (such as contract construction activities operated from the same physical location as a lumber yard), each activity shall be treated as a separate establishment.

(2) For firms engaged in activities such as agriculture, construction, transportation, communications, and electric, gas and sanitary services, which may be physically dispersed, records may be maintained at a place to which employees report each day.

(3) Records for personnel who do not primarily report or work at a single establishment, and who are generally not supervised in their daily work, such as traveling salesmen, technicians, engineers, etc., shall be maintained at the location from which they are paid or the base from which personnel operate to carry out their activities.

(h) Establishments Standard Industrial

Classified in Classification

Codes (SIC) 52-89. (1) Establishments whose primary activity constitutes retail trade; finance, insurance, real estate and services are classified in SIC's 52-89.

(2) Retail trades are classified as SIC's 52-59 and for the most part include establishments engaged in selling merchandise to the general public for personal or household consumption. Some of the retail trades are: automotive dealers, apparel and accessory stores, furniture and home furnishing stores, and eating and drinking places.

(3) Finance, insurance and real estate are classified as SIC's 60-67 and include establishments which are engaged in banking, credit other than banking, security dealings, insurance, and real estate.

(4) Services are classified as SIC'S 70-89 and include establishments which provide a variety of services for individuals, businesses, government agencies, and other organizations. Some of the service industries are: Personal and business services, in addition to legal, education, social, and cultural; and membership organizations.

(5) The primary activity of an establishment is determined as follows: For finance, insurance, real estate, and services establishments, the value of receipts or revenue for services rendered by an establishment determines its primary activity. In establishments with diversified activities, the activities determined to account for the largest share of production, sales or revenue will identify the primary activity. In some instances these criteria will not adequately represent the relative economic importance of each of the varied activities. In such cases, employment or payroll should be used in place of the normal basis for determining the primary activity.

[36 FR 12612, July 2, 1971, as amended at 37 FR 20822, Oct. 4, 1972; 47 FR 57702, Dec. 28, 1982]

§ 1904.13 Petitions for recordkeeping exceptions.

(a) Submission of petition. Any employer who wishes to maintain records in a manner different from that required by this part may submit a petition containing the information speci

fied in paragraph (c) of this section to the Regional Commissioner of the Bureau of Labor Statistics wherein the establishment involved is located.

(b) Opportunity for comment. Affected employees or their representatives shall have an opportunity to submit written data, views, or arguments concerning the petition to the Regional Commissioner involved within 10 working days following the receipt of notice under paragraph (c)(5) of this section.

(c) Contents of petition. A petition filed under paragraph (a) of this section shall include:

(1) The name and address of the applicant;

(2) The address of the place or places of employment involved;

(3) Specifications of the reasons for seeking relief;

(4) A description of the different recordkeeping procedures which are proposed by the applicant;

(5) A statement that the applicant has informed his affected employees of the petition by giving a copy thereof to them or to their authorized representative and by posting a statement giving a summary of the petition and by other appropriate means. A statement posted pursuant to this subparagraph shall be posted in each establishment in the same manner that notices are required to be posted under § 1903.2(a) of this chapter. The applicant shall also state that he has informed his affected employees of their rights under paragraph (b) of this section;

(6) In the event an employer has more than one establishment he shall submit a list of the States in which such establishments are located and the number of establishments in each such State. In the further event that certain of the employer's establishments would not be affected by the petition, the employer shall identify every establishment which would be affected by the petition and give the State in which they are located.

(d) Referrals to Assistant Commissioner. Whenever a Regional Commissioner receives a petition from an employer having one or more establishments beyond the geographic boundary of his region, or a petition from a

class of employers having any establishment beyond the boundary of his region, he shall refer the petition to the Assistant Commissioner for action. (e) Additional Notice, Conferences. (1) In addition to the actual notice provided for in paragraph (c)(5) of this section, the Assistant Commissioner, or the Regional Commissioner, as the case may be, may provide, or cause to be provided, such additional notice of the petition as he may deem appropriate.

(2) The Assistant Commissioner or the Regional Commissioner, as the case may be, may also afford an opportunity to interested parties for informal conference or hearing concerning the petition.

(f) Action. After review of the petition, and of any comments submitted in regard thereto, and upon completion of any necessary appropriate investigation concerning the petition, if the Regional Commissioner or the Assistant Commissioner, as the case may be, finds that the alternative procedure proposed will not hamper or interfere with the purposes of the Act and will provide equivalent information, he may grant the petition subject to such conditions as he may determine appropriate, and subject to revocation for cause.

(g) Publication. Whenever any relief is granted to an applicant under this Act, notice of such relief, and the reasons therefor, shall be published in the FEDERAL REGISTER.

(h) Revocation. Whenever any relief under this section is sought to be revoked for any failure to comply with the conditions thereof, an opportunity be afforded to the employers and affected employees, or their representatives. Except in cases of willfulness or where public safety or health requires otherwise, before the commencement of any such informal proceeding, the employer shall: (1) Be notified in writing of the facts or conduct which may warrant the action; and (2) be given an opportunity to demonstrate or achieve compliance.

(i) Compliance after submission of petitions. The submission of a petition or any delay by the Regional Commissioner, or the Assistant Commissioner, as the case may be, in acting upon a

petition shall not relieve any employer from any obligation to comply with this part. However, the Regional Commissioner or the Assistant Commissioner, as the case may be, shall give notice of the denial of any petition within a reasonable time.

(j) Consultation. There shall be consultation between the appropriate representatives of the Occupational Safety and Health Administration and the Bureau of Labor Statistics in order to insure the effective implementation of this section.

[36 FR 12612, July 2, 1971, as amended at 37 FR 737, Jan. 18, 1972; 42 FR 65166, Dec. 30, 1977]

§ 1904.14 Employees not in fixed establishments.

Employers of employees engaged in physically dispersed operations such as occur in construction, installation, repair or service activities who do not report to any fixed establishment on a regular basis but are subject to common supervision may satisfy the provisions of §§ 1904.2, 1904.4, and 1904.6 with respect to such employees by:

(a) Maintaining the required records for each operation or group of operations which is subject to common supervision (field superintendent, field supervisor, etc.) in an established central place;

(b) Having the address and telephone number of the central place available at each worksite; and

(c) Having personnel available at the central place during normal business hours to provide information from the records maintained there by telephone and by mail.

[37 FR 20822, Oct. 5, 1972]

§ 1904.15 Small employers.

An employer who had no more than ten (10) employees at any time during the calendar year immediately preceding the current calendar year need not comply with any of the requirements of this part except the following:

(a) Obligation to report under § 1904.8 concerning fatalities or multiple hospitalization accidents; and

(b) Obligation to maintain a log of occupational injuries and illnesses

ried out by State and other jurisdictions in order to provide the most efficient sample for eventual State estimates. Some industries will be sampled more heavily than others depending on the injury rate level based on previous experience. Nationally, the survey should produce adequate estimates for most four-digit Standard Industrial Classification (SIC) industries in manufacturing and for three-digit SIC classification in nonmanufacturing. In participating States where the sample size has been supplemented significantly, comparable estimates are possible.

[37 FR 2439, Feb. 1, 1972, as amended at 42 FR 65166, Dec. 30, 1977]

Subpart D-Summary Decisions 1905.40 Motion for summary decision. 1905.41 Summary decision.

Subpart E-Effect of Initial Decisions 1905.50 Effect of appeal of a hearing examiner's decision.

1905.51 Finality for purposes of judicial review.

AUTHORITY: Secs. 6, 8, 16, Occupational Safety and Health Act of 1970 (29 U.S.C. 655, 657, 665), Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), or 9-83 (48 FR 35736) as applicable.

SOURCE: 36 FR 12290, June 30, 1971, unless otherwise noted.

Subpart A-General

§ 1905.1 Purpose and scope.

(a) This part contains rules of practice for administrative proceedings (1)

to grant variances and other relief under sections 6(b)(6)(A) and 6(d) of the Williams-Steiger Occupational Safety and Health Act of 1970, and (2) to provide limitations, variations, tolerances, and exemptions under section 16 of the Act.

(b) These rules shall be construed to secure a prompt and just conclusion of proceedings subject thereto.

(c) The rules of practice in this part do not apply to the granting of variances under section 6(b)(6)(C). Whenever appropriate, the procedure for granting such a variance shall be published in the FEDERAL REGISTER.

As used in this part, unless the context clearly requires otherwise—

(a) Act means the Williams-Steiger Occupational Safety and Health Act of 1970.

(b) Secretary means the Secretary of Labor.

(c) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health.

(d) Person means an individual, partnership, association, corporation, business trust, legal representative, and organized group of individuals, or agency, authority, or instrumentality of the United States or of a State.

an

(e) Party means a person admitted to participate in a hearing conducted in accordance with subpart C of this part. An applicant for relief and any affected employee shall be entitled to be named parties. The Department of Labor, represented by the Office of the Solicitor, shall be deemed to be a party without the necessity of being named.

(f) Affected employee means an employee who would be affected by the grant or denial of a variance, limitation, variation, tolerance, or exemption, or any one of his authorized representatives, such as his collective bargaining agent.

§ 1905.3 Petitions for amendments to this part.

Any person may at any time petition the Assistant Secretary in writing to revise, amend, or revoke any provisions of this part. The petition should