June 20, 1983

Mr. Stephen C. Yohay
McGuiness & Williams
Suite 1200
1015 Fifteenth Street, N. W.
Washington, D.C. 20005

Dear Mr. Yohay:

This is in further response to your letter of April 28, 1983, regarding OSHA's Fire Protection Standards.

In a letter dated May 25, 1983, we provided answers to three questions you posed concerning these standards. We have subsequently reconsidered our position with regard to the form of citations which are predicated upon defects in an employer's emergency action plan. We believe that as a legal matter OSHA could either cite the particular OSHA standard requiring the plan, referencing the portion of 29 CFR 1910.38 with which the employer failed to comply, or cite 29 CFR 1910.38, referencing the standard requiring the plan.

For reasons of administrative convenience, however, and to ensure that the citation does not confuse the employer as to what abatement steps we are requiring, we have decided that the better practice would be to cite 29 CFR 1910.38 for the particular defect in the plan while referencing the standard which requires the employer to establish the plan. Similarly, if the employer has implemented an incomplete emergency employee alarm system, the applicable 29 CFR 1910.165 standard should be cited, with a reference to the particular Fire Protection Standard requiring the alarm system.

I hope this information is helpful to you. If I may be of further assistance, please fell free to contact me.

Sincerely,



Bruce Hillenbrand
Acting Director, Federal Compliance
and State Programs




May 25, 1983

Mr. Stephen C. Yohay
Law Offices
McGuiness & Williams
Suite 1200
1015 Fifteen Street, N.W.
Washington, D.C. 20005

Dear Mr. Yohay:

This in response to your letter of April 28, 1983, requesting clarifications of several OSHA standards.

The answers to your three questions are as follows:

Question 1

(a) 29 CFR 1910.38(a)(1) standing alone, does not require an employer to establish a written emergency action plan.

(b) Where a "particular OSHA Standard" requires an employer to establish an emergency action plan, the "particular OSHA Standard" shall be cited in the citation. However, if the employer has implemented an incomplete emergency action plan the employer would be cited for the "particular OSHA Standard" and the applicable 29 CFR 1910.38 standard would be referenced.

Question 2

(a) 29 CFR 1910.38(b)(1) standing alone, does not require an employer to establish a written fire prevention plan.

(b) Where a "OSHA Standard" requires an employer to establish a fire prevention plan, the "particular OSHA Standard" shall be cited in the citation. However, if the employer has implemented an incomplete fire prevention plan, the employer would be cited for "particular OSHA Standard" and the applicable 29 CFR 1910.38 standard would be referenced.

Question 3

(a) Assuming that no "particular OSHA Standard" requiring installation of an emergency employee alarm system can be identified, 29 CFR 1910.165(b)(1) standing alone does not require an employer to install such an alarm system.

(b) Assuming that a "particular OSHA Standard" requiring installation of an emergency employee alarm system does exist the "particular OSHA Standard" shall be cited in the citation. However, if the employer has implemented an incomplete emergency employee alarm system the employer would be cited for the applicable 29 CFR 1926.165 alleged violation and the "particular OSHA Standard" would be referenced.

(c) Assuming that an alarm system is required, a communication system, such as a telephone system does satisfy 29 CFR 1910.165(b)(1), if it can meet all of 29 CFR 1910.165(b), (c), (d) and (e).

(d) Assuming that a telephone system is sufficient under 29 CFR 1926.165(b)(1), telephone system need not have a recognizable signal other than the usual ring or buzzing sound as long as the usual ring or buzzing is recognizable and can be heard or perceived above ambient conditions.

These interpretations are based on Federal Standards. However, you should be aware that Section 18 of the Occupational Safety and Health Act allows States to assume responsibility for enforcement of their own occupational safety and health programs. There are currently twenty-four such programs in operations. (Connecticut covers public employees only) States must enforce standards that are either identical or at least effective as the Federal standards. Several of the state plans States adopt different standards (California, Washington, and Michigan). A list of the State Plan States is enclosed.

If I may be of further assistance, please feel free to contact me.

Sincerely,



Bruce Hillenbrand
Acting Director, Federal Compliance
and State Programs