August 10, 2005

Mr. Jerry L. Brust
Crowe & Dunlevy
20 N. Broadway, Suite 1800
Oklahoma City, OK 73102-8273

Dear Mr. Brust:

Thank you for your August 10, 2004, letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs (DEP). This letter constitutes OSHA's interpretation only of the requirements herein, and may not be applicable to any question or scenario not delineated within your original correspondence. You had specific concerns regarding the replacement and/or the repairing of damaged latches that prevented the doors of electrical panels from closing properly and /or being secured in a closed position. We apologize for the delay in responding to your request.

Scenario: There are several of your client's facilities that have a number of electrical panel installations with damaged latches. These damaged latches prevent the door panel from closing properly and/or being secured in a closed position. Because of the age of the panels, original equipment manufacturer (OEM) repair parts are no longer available. In a subsequent phone call, you inform us that some of the electrical panels in question were installed before and after 1972.

Your client would like to install a hasp on the exterior of the electrical panel by either bolting the hasp to the panel or tack-welding the hasp to the exterior of the panel. An alternative would be to tack weld the brackets to the exterior of the electrical panel which could secure a bar locked across the panel in order to prevent the panel from being opened. Both of these alternatives would be mounted on the exterior of the electrical panel, and neither of these alternatives would involve any modification to the interior of the electrical panel.

Question: Do the above mentioned alternatives comply with OSHA's requirements?

Reply: §1910.302(b)(2), Electric utilization systems, states: "Every electric utilization system and all utilization equipment installed after March 15, 1972, and every major replacement, modification, repair, or rehabilitation, after March 15, 1972, of any part of any electric utilization system or utilization equipment installed before March 15, 1972, shall comply with the provisions of 1910.302 through 1910.308."

As described above, adding hardware to the doors of the electrical panels would be considered a permanent modification to the electrical equipment. For equipment installed after March 15, 1972, this modification does not comply with 29 CFR 1910, Subpart S - Electrical, §1910.303(a), Approval. The standard reads, "The conductors and equipment required or permitted by this subpart shall be acceptable only if approved." The definition for approved is found in §1910.399, Definitions applicable to this subpart. It reads, "Acceptable to the authority enforcing this subpart. The authority enforcing this subpart is the Assistant Secretary of Labor for Occupational Safety and Health."

Additionally, the definition for acceptable is, "An installation or equipment is acceptable to the Assistant Secretary of Labor, and approved within the meaning of this Subpart S:

1. If it is accepted, or certified, or listed, or labeled, or otherwise determined to be safe by a nationally recognized testing laboratory; or
    
2. With respect to an installation or equipment of a kind which no nationally recognized testing laboratory accepts, certifies, lists, labels, or determines to be safe, if it is inspected or tested by another Federal agency, or by a State, municipal, or other local authority responsible for enforcing occupational safety provisions of the National Electrical Code, and found in compliance with the provisions of the National Electrical Code as applied in this subpart; or
    
3. With respect to custom-made equipment or related installations which are designed, fabricated for, and intended for use by a particular customer, if it is determined to be safe for its intended use by its manufacturer on the basis of test data which the employer keeps and makes available for inspection to the Assistant Secretary and his authorized representatives. Refer to 1910.7 for definition of nationally recognized testing laboratory."

Finally, you also stated that there are no OEM parts available. Because of this, your client may wish to pursue a variance. A variance is a program that allows for flexibility from specific requirements of an OSHA standard where levels of employee protection are maintained. You may apply for a variance from OSHA's Directorate of Science, Technology and Medicine. The application should be addressed to the Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, but sent under cover addressed as follows:

U.S. Department of Labor/OSHA
Office of Technical Programs and Coordination Activities
Room N3655
200 Constitution Avenue, NW
Washington, D.C. 20210

For more information on how to apply, please visit our website:  http://www.osha.gov/dts/otpca/variances/apply.html.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.


Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs