December 16, 2013

Mr. Robert Mason, R.A.
Code Compliance Manager (AHJ), Department of Code Administration
College of Nanoscale Science and Engineering
University at Albany-State University of New York
Suite B220, CESTM Building
277 Fuller Road
Albany, NY 12203

Dear Mr. Mason:

This letter is in response to your letter dated July 16, 2013, to the Occupational Safety and Health Administration (OSHA), as clarified in your e-mail of August 2, 2013. This letter was forwarded to OSHA's Directorate of Enforcement Programs (DEP) for response. You had questions about OSHA requirements under 29 CFR Part 1910, Subpart S.

This letter constitutes OSHA's interpretation only of the requirements discussed below and may not be applicable to any question not delineated within your original correspondence. Your paraphrased questions and our replies follow:

Question 1: Does 29 CFR Part 1910 Subpart S apply to the design of industrial machinery, including the requirement under §1910.303(a) that the conductors and equipment required or permitted by Subpart S are acceptable only if approved, as defined in §1910.399?

Response: Yes, §1910.301(a) provides that the design safety standards for electric utilization systems are contained in §1910.302 through §1910.308. And §1910.302(a) states that §1910.302 through §1910.308 "cover electrical installations and utilization equipment installed or used within or on buildings, structures, and other premises." For purposes of Subpart S, "utilization equipment" means "[e]quipment that utilizes electric energy for electronic, electromechanical, chemical, heating, lighting, or similar purposes." 29 CFR 1910.399. And "equipment" is defined to include "material, fittings, devices, appliances, fixtures, apparatus, and the like, used as a part of, or in connection with, an electrical installation." 29 CFR 1910.399. Thus, industrial machinery that uses electric energy is "utilization equipment" covered by Subpart S (including §1910.303(a)).

Question 2: Does the term "custom-made equipment" contained in the definition of "acceptable" under §1910.399 mean one-of-a-kind, unique, one-time fabricated equipment or installations?

Response: Yes. Under §1910.303(a), conductors and equipment must be "approved," as that term is defined in §1910.399. And "approved" means "[a]cceptable to... the Assistant Secretary of Labor for Occupational Safety and Health." 29 CFR 1910.399. An installation or equipment is "acceptable" to the Assistant Secretary if, "with respect to custom-made equipment... that... [is] designed, fabricated for, and intended for use by a particular customer, ... 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." 29 CFR 1910.399. The term "custom-made equipment" in the definition of "acceptable" in §1910.399 thus includes a one-of-a-kind piece of equipment or installation that is fabricated for a specific customer.

Question 3: Does the term "custom-made equipment" also include fabricated equipment or installations that are continuously made repeatedly as orders are filled for multiple customers?

Response: No. Such equipment or installations are not designed, fabricated for, and intended for use by one particular customer. "Custom-made equipment, by its nature, is very rare." 72 Fed. Reg. 7135, 7170 n.42 (Feb. 14, 2007).

Question 4: Can an independent inspection or testing service that provides the same service as a Nationally Recognized Testing Laboratory (NRTL) and designates itself as a "Field Inspection Body" determine an installation or equipment to be "acceptable" when a NRTL is willing to provide the same service?

Response: No. Under §1910.399, the Assistant Secretary will deem an installation or equipment "acceptable" if it is "accepted, or certified, or listed, or labeled, or otherwise determined to be safe by a... [NRTL] recognized pursuant to §1910.7." And with respect to installations or equipment that no NRTL "accepts, certifies, lists, labels, or determines to be safe," the Assistant Secretary will deem such equipment or installations "acceptable" if they are "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" Subpart S. 29 CFR 1910.399. In your scenario, there is a NRTL that would accept, certify, list, label, or deem safe the equipment or installation. Therefore, it must be accepted, certified, listed, labeled, or otherwise determined to be safe by a NRTL recognized under §1910.7. The Field Inspection Body is not a NRTL, so its approval would not make the equipment or installation "acceptable" for purposes of Subpart S.

Please note that state and local government workers are excluded from federal coverage under the Occupational Safety and Health Act. However, New York operates its own OSHA-approved occupational safety and health program covering state and local government employees. Pursuant to the OSH Act, OSHA-approved State Plans must develop and enforce occupational safety and health standards that are at least as effective as the federal standards. While many State Plans adopt OSHA standards identically, we suggest that you check with the New York Department of Labor to determine if it has additional requirements or requirements that are more stringent than federal OSHA's standards. For more information on OSHA-approved State Plans, please visit http://www.osha.gov/dcsp/osp/index.html. And you can contact the New York State Plan at:

New York Public Employee Safety and Health Bureau (PESH)
State Office Campus Building 12, Room 158
Albany, New York 12240
Ph: (518) 457-1263
Fax: (518) 457-5545

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To ensure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov/. If you have further questions, please feel free to contact the Directorate of Enforcement Programs at (202) 693-2100.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs