Key provisions of the PSM Preamble – Safety Engineering (SAFTENG)

Key provisions of PSM

OSHA’s preamble to the PSM Standard goes a long way to provide us insight as to why there are 14 elements to the standard and what each requirement in each element is intended to serve. The entire preamble is a very long read, but there are some key provisions in Section 3 – III. Summary and Explanation of the Final Rule. I have posted those provisions below to help those interested to understand what OSHA is trying to achieve with the passage of the standard.

Employee Participation

After a thorough analysis of the CAAA and the rulemaking record on this issue, OSHA has concluded that it is important for one member of each team be an employee who is knowledgeable about the process. This employee may very well be an employee representative; or, an employee representative may be participating on a team because of some expertise that the individual can contribute to the team. However, OSHA does not believe it necessary or appropriate to mandate team membership on the basis of organization affiliation (i.e., union membership), nor does the Agency believe that this was the intent of the CAAA. OSHA believes that the intent of the CAAA demands a broader approach to employee participation.

OSHA believes that employers must consult with employees and their representatives on the development and conduct of hazard assessments (OSHA’s process hazard analyses) and consult with employees on the development of chemical accident prevention plans (the balance of the OSHA required elements in the process safety management standard). And, as prescribed by the CAAA, OSHA is requiring that all process hazard analyses and all other information required to be developed by this standard be available to employees and their representatives.

Therefore, OSHA added language contained in the CAAA to the final rule in a new provision, paragraph (c). OSHA believes that this new provision, which requires broad and active employee participation in all elements of the process safety management program through consultation will enhance the overall program. OSHA also believes that the CAAA requirements demand that an employer carefully consider and structure the plant’s approach to employee involvement in the process safety management program. Consequently, OSHA believes that it must require the employer to address this issue to ensure that the employer actively considers the appropriate method of employee participation in the implementation of the process safety management program at the workplace. Thus, OSHA has included a specific requirement that an employer develop a plan of action on how the employer is going to implement the employee participation requirements.

Process Safety Information

OSHA decided to allow the compilation of process safety information to occur on a schedule consistent with the schedule for conducting process hazard analyses as described in final paragraph (e)(1). It is necessary to assemble the process safety information specified in the final rule in order to conduct an adequate process hazard analysis. Therefore it is reasonable to allow the collection and compilation of process safety information on a given process to be completed before a process hazard analysis on that process is begun, instead of requiring the compilation of all process safety information on all processes to be completed before any process hazard analyses are begun. OSHA indicated in proposed paragraph (d)(2)(ii) that it might be difficult to obtain technical information for older existing processes. Therefore, it proposed to allow employers to develop such material from a hazard analysis conducted in accordance with paragraph (e) for processes initiated before January 1, 1980. OSHA believed that a properly conducted process hazards analysis should systematically identify technical information regarding the process and allow for adequate estimation of safe parameters for the process.

OSHA decided that the best technical information available is the original information. Rather than include an arbitrary date, OSHA decided to allow an alternate method of obtaining the technical information only for those processes where such information does not exist. In reviewing the record OSHA concluded that the American Petroleum Institute’s RP 750 had acceptable language which met the intent of the Agency. Accordingly, OSHA has changed the final paragraph, (d)(2)(ii), to read as follows:

Where the original technical information no longer exists, such information may be developed in conjunction with the process hazard analysis in sufficient detail to support the analysis.

There are many instances where process equipment has been in use for many years. Sometimes the codes and standards to which the equipment was initially designed and constructed are no longer in general use. For this type of situation, OSHA wants to ensure that the older equipment still functions safely, and is still appropriate for its intended use. OSHA is not specifying the method for this documentation. Under this approach the employer would be permitted to use any of several methods such as: documenting successful prior operation procedures; documenting that the equipment is consistent with the latest editions of codes and standards; or performing an engineering analysis to determine that the equipment is appropriate for its intended use.

Process Hazard Analysis

OSHA anticipates that employers will be able to readily explain their plans for completing process hazard analyses and their reasoning for prioritizing which processes will be addressed first. Therefore OSHA is requiring that employers determine and document the priority order for conducting process hazard analyses based on such considerations as the extent of the process hazards, number of potentially affected employees, age of the process, and operating history of the process. This requirement is written flexibly in recognition of the fact that different processes will require different considerations for prioritization.

OSHA agrees with participants that a five-year period may be necessary to complete good quality process hazard analyses but remains unconvinced that a seven-year timeframe is necessary, especially in light of the concentrated efforts directed toward meeting API’s RP 750 published in January 1990 and the Chemical Manufacturers Association process safety management initiatives already described. After considering the evidence in the record on this issue, the Agency finds that the 5 year phase-in period to complete process hazard analyses required by the standard is feasible.

In recognition that time will also be needed to compile the process safety information, which is needed to conduct a process hazard analysis, OSHA has adopted a schedule that requires at least 25% of the process hazard analyses to be completed each year, starting with the second year after the effective date of the standard. These provisions become final paragraphs (e)(1)(i) through (e)(1)(iv).

Finally, OSHA has grandfathered process hazard analyses completed 5 years before the effective date of the standard. These process hazard analyses must meet the requirements contained in paragraph (e) and will have to be updated and revalidated, based on their completion date, in accordance with the requirements in paragraph (e)(6).

OSHA proposed a performance oriented requirement with respect to the process hazard analysis so that an employer would have flexibility in choosing the type of analysis that would best address a particular process. Consequently in paragraph (e)(1) OSHA proposed that an employer use one or more of certain listed methodologies to perform a process hazard analysis. The methodologies included: what-if; checklist; what-if/checklist; failure mode and effects analysis; hazard and operability study; and fault tree analysis. OSHA asked whether OSHA should consider additional methodologies, such as those approved by the American Institute of Chemical Engineers. OSHA believes that the provisions contained in proposed paragraph (e)(2) concerning what a hazard analysis must address were responsive to the CAAA but did not require the identification of any previous incident which had a likely potential for catastrophic consequences. The inclusion of previous incidents will help to assure that the process hazard analysis adequately addresses a wide enough range of concerns. OSHA has included a requirement for employers to identify any previous incident which had a likely potential of catastrophic consequences in the workplace. This provision is responsive to the CAAA.

OSHA proposed to require that the process hazard analysis address the engineering and administrative controls applicable to the hazard and their interrelationships. The paragraph becomes final paragraph (e)(3)(iii) and requires that the process hazard analysis address:

Engineering and administrative controls applicable to the hazards and their interrelationships, such as the appropriate application of detection methodologies to provide early warning of releases. (Acceptable detection methods might include process monitoring and control instrumentation with alarms, and detection hardware such as hydrocarbon sensors).

It should be noted, however, that detection methodologies is being used only as an example and there may be many other interrelationships that must be covered to comply with this provision for a particular process.

OSHA required that the “consequences of failure of these controls” be addressed. OSHA has changed this paragraph to clarify what is meant by “these.” The final paragraph now requires that the process hazard analysis address “consequence of failure of engineering and administrative controls.” This change merely clarifies the fact that OSHA wants employers to examine the failure of engineering and administrative controls; it does not change the intent of the provision.

OSHA has modified the paragraph to indicate that it did not intend employers to conduct probabilistic risk assessments to satisfy the requirement to perform a consequence analysis. OSHA agrees with commenters that specialized techniques such as vapor cloud modeling would add an unnecessary burden with respect to assessing the effects of releases on employees. OSHA believes employers can establish a reasonable range of possible effects of releases on employees without conducting these specialized quantitative analyses. Further OSHA believes it has insufficient data in this rulemaking record on which to establish what would be a reasonable quantitative analysis. Therefore, this clarified paragraph becomes final paragraph (e) (3)(vii) and requires a qualitative evaluation of the possible safety and health effects of failure of engineering and administrative controls on employees in the workplace. This evaluation is for the purpose of guiding decisions and priorities in planning for prevention and control, mitigation and emergency response. OSHA believes this better reflects what it intended to accomplish by the proposal.

Additionally, OSHA has added two additional elements to final paragraph (e)(3). OSHA believes that facility siting should always be considered during process hazard analyses. In order to assure that employers do consider siting, OSHA has decided to specifically emphasize it. Facility siting becomes final paragraph (e)(3)(v).

Finally, OSHA has added paragraph (e)(3)(vi) to the final rule which requires that employers address human factors in the process hazard analysis. In response to an OSHA concern expressed during the rulemaking regarding the consideration of human factors in process hazard analyses .

OSHA has decided not to specifically require an employee representative on the team. Instead, the Agency has chosen to include a separate paragraph (final paragraph (c)) addressing employee participation in the process safety management program, which would require employee participation in the process hazard analysis by requiring that employers consult with employees and their representatives on the conduct and development of the process hazard analyses. (See previous discussion of employee participation, final paragraph (c).) However, OSHA continues to require that an employee who has experience and knowledge specific to the process being evaluated be included on the team.

OSHA also believes that a team approach is the best approach for performing a process hazard analysis. This is because no one person will possess all of the knowledge and experience necessary to perform an effective process hazard analysis. Additionally, when more than one person is performing the analysis, different disciplines, opinions, and perspectives will be represented and additional knowledge and expertise will be contributed to the analysis. In fact, some companies even include an individual on the team who does not have any prior experience with the particular process being analyzed to help insure that a fresh view of the process is integrated into the analysis. Additionally, as discussed in the rulemaking, employees and other experts may be brought onto the team on a temporary basis to contribute their specialized knowledge to the conduct of the process hazard analysis.

OSHA agrees with these commenters and has added a requirement that one team member must be knowledgeable in the specific process hazard analysis methodology being used. This paragraph concerning process hazard analyses teams becomes paragraph (e)(4) of the final rule.

OSHA agrees that a process hazard analysis team should be encouraged to make broad recommendations. It is also possible that not all team recommendations will be correct or will resolve the problem found in the best way. OSHA has accordingly restructured, changed and added language to the final paragraph to reflect the concerns of many participants. In the final paragraph, the employer must assure that the recommendations resulting from the process hazard analysis are “resolved” in a timely manner and that the resolution is documented. In this way, when a team recommendation is incorrect, the employer can analyze it and then document in writing why the recommendation is not being adopted or is being adopted with modification. OSHA believes that when an employer decides that a recommendation requires action, then an employer should develop a written schedule of the actions which are to be completed. It is OSHA’s intention that the actions to be taken as a result of the process hazard analysis recommendations be completed as soon as possible. In most cases, OSHA believes that employers will be able to complete these actions within a one to two year timeframe, but notes that in unusual circumstances longer completion periods may be necessary.

In the proposal, paragraph (e)(5), the process hazard analysis was to be updated and revalidated at least every five years, using the process hazard analysis team to assure that the process hazard analysis is consistent with the current process. The Agency believed that this five year update and revalidation interval was a reasonable timeframe, particularly in consideration of the long life span, without change, of many processes. OSHA also believed that there were adequate safeguards elsewhere in the proposal to protect employees when the process changed. OSHA agrees with these commenters and has retained the five year update and revalidation schedule. Finally, OSHA has decided to clarify that the update and revalidation should occur five years after the completion of the initial process hazard analysis.

In paragraph (e)(6), OSHA proposed that employers retain the two most recent process hazard analyses and/or updates for each process covered as well as the documented responses to the process hazard analysis recommendations. Few participants addressed this particular provision. OSHA has determined, based on the discussions in the rulemaking, particularly those concerning the update and revalidation of process hazards analyses, that the proposed requirement to retain the two most recent process hazard analyses and/or updates for each process failed to recognize the full importance of documents developed relative to process hazard analyses. This requirement has been modified in the final rule. New paragraph (e)(7) requires that

employers retain the process hazard analysis and their updates and revalidation.

The Agency does not believe that this requirement will pose an undue burden on employers in that retention of these documents is necessary to conduct the periodic updates and revalidations which are required under the standard.

Operating Procedures

Paragraph (f) of the proposal contained provisions requiring the development and implementation of written operating procedures. The procedures are to provide clear instructions for safely conducting activities involved in covered processes and they must be consistent with the process safety information. To have an effective process safety management program, OSHA believed that tasks and procedures directly and indirectly related to the covered process must be appropriate, clear, consistent, and most importantly, communicated to employees.

Many different tasks may be necessary during a process, such as initial startup, handling special hazards, normal operation, temporary operations and emergency shutdown. The appropriate and consistent manner in which the employer expects these tasks and procedures to be performed consistent with the facility’s operating procedures is sometimes referred to as standard operating procedures (SOPs).

It is important to have written operating procedures so employees working on a process do a given task in the same manner. There is less likelihood that incidents will occur if written operating procedures are developed so even a new employee or one who is relatively inexperienced will respond to a given event in a pre-considered and prescribed manner. It is also important that the procedures be written so that they can be communicated to employees in the most effective manner possible.

Such written procedures comprise the employer’s policy with respect to what is to be accomplished, and how it is to be accomplished safely. This will ensure that employees will perform like tasks and procedures in a consistently safe manner, and employees will know what is expected of them. These procedures must also be available for ready reference and review during production to make sure the process is operated properly. Accordingly, OSHA requires that the employer develop and implement written operating procedures that provide clear instructions for safely conducting all activities involved in each process. Final paragraph (f)(1)(D) concerns emergency shutdown and requires that the employer assign shutdown responsibility to a qualified operator to ensure a safe and timely shutdown.

Finally, OSHA has been persuaded by participants in the rulemaking that it should add another requirement to paragraph (f). Throughout the rulemaking OSHA has expressed its concern regarding the control of hazardous activities within a facility. For example, in the notice of hearing in Issue 1 (55 FR at 46075), OSHA asked whether it should require employers to issue permits for hazardous activities in addition to those for which hot work permits were required. It had been suggested that issuing permits would provide greater control of hazardous activities at a facility and would also facilitate a better

coordination of contractor activities. A variety of participants objected to OSHA expanding the required permit system. OSHA agrees that this approach will provide significant safety to employees impacted by on-going work activities and prefers this performance oriented approach provision. Therefore OSHA has added a new paragraph (f)(4) in the final standard requiring the employer to develop and implement safe work practices to provide for the control of hazards during work activities.

OSHA believes that the provisions concerning operating procedures included in the final standard meet the requirements of sections 304(c)(6) and (7) of the CAAA which state that the OSHA standard must require employers to:

(6) Develop and implement written operating procedures for the chemical process including procedures for each operating phase, operating limitations, and safety and health considerations.

(7) Provide written safety and operating information to employees and training employees in operating procedures, emphasizing hazards and safe practices.

Training

OSHA believes that the implementation of an effective training program is one of the most important steps that an employer can take to enhance employee safety. The Agency also believes that an effective training program will help employees understand the nature and causes of problems arising from process operations, and will increase employee awareness with respect to the hazards particular to a process. OSHA is convinced that an effective training program will significantly reduce the number and severity of incidents arising from process operations, and can be instrumental in preventing small problems from leading to a catastrophic release.

There was consensus among rulemaking participants that training is a necessary and integral part of any effective process safety management program. When OSHA proposed that this provision apply to employees “involved in a process,” it intended for this provision to apply to only those employees, including managers and supervisors, who are actually involved in “operating” the process. While most OSHA standards, by their terms, apply to all employees in a particular situation and contract employees are considered “employees” in the broad sense of the word, this standard distinguishes in the training requirements between contract employees and direct hire employees. This was done primarily for emphasis and in recognition of the fact that in some segments of industry covered by the process safety management standard, contractors make up a substantial portion of on-site workers. OSHA wanted to focus attention on that situation and did so by imposing separate but similar training objectives for direct hire and contract employees. This is the reason, as discussed below, that training requirements for contractor employees and maintenance employees were addressed in separate paragraphs in the proposal.

OSHA agrees with rulemaking participants that this intent was not clear in the proposed rule. Therefore, the phrase “involved in a process” is being replaced with the phrase “involved in operating a process” in paragraph (g)(1) of the final rule. This is intended to cover all direct hire employees not involved in maintenance. This paragraph is not intended to be limited to equipment operators. After a careful analysis of the rulemaking record with respect to proposed paragraph (g)(l), OSHA has concluded that a performance-oriented approach to training is appropriate. The Agency believes that employers can determine the amount of training and the content of the training program that best reflects the operation’s complexity and the experience and necessary skill level of their employees.

Paragraph (g)(1)(i) in the final standard and has been revised to read as follows:

Each employee presently involved in operating a process, and each employee before being involved in operating a newly assigned process, shall be trained in an overview of the process and in the operating procedures as specified in paragraph (f) of this section. The training shall include emphasis on the specific safety and health hazards, emergency operations including shutdown, and safe work practices applicable to the employee’s job tasks.

Grandfathering

OSHA agrees that previous training should be recognized if the employer certifies in writing that employees have the required knowledge, skills, and abilities to safely carry out their duties and responsibilities, particularly since employees must still be provided with refresher training in accordance with paragraph (g)(2) of this section. Therefore, OSHA is adding a new provision, (g)(1)(ii), to the final rule to allow grandfathering of initial training under certain circumstances.

After analysis of the rulemaking record on this issue, OSHA has concluded that as with the initial training, it would be inappropriate to prescribe a minimum number of hours of refresher training since there is a wide variation in operation complexity, and in the experience and skill levels of employees. The Agency believes that the employer, in consultation with employees, can best determine the appropriate frequency of refresher training.

OSHA believes, however, that the frequency of refresher training should be held at least every three (3) years to assure that employees understand and adhere to current operating procedures.

Proposed paragraph (g)(3) required the employer to certify that employees had received and successfully completed the required training. It also required the certification to identify the employee, the date of the training, and the signature of the person doing the training. The purpose of this proposed provision was to assure that employees not only receive training but, also, that they understand and can demonstrate what they have learned in order to perform their job tasks safely. This is especially important where, as here, comprehensive training and the understanding of the training plays such a crucial role in the risk reduction associated with the process safety management rule. OSHA also believed this proposed provision was necessary to serve as a tracking mechanism for the training that employees receive and when employees received the training.

Many rulemaking participants were concerned that OSHA might revise this provision in the final rule to specify particular methods to validate that employees understood the training they had received such as written tests, oral examinations, on-the-job demonstrations, etc. It was suggested that some method, or combination of methods, would be appropriate to verify that employees have understood the training, but OSHA should not mandate any specific method of validation. Based on the rulemaking record, OSHA believes that its performance-oriented approach with respect to the certification of training is appropriate and it recognizes that any one of several methods, or combination of methods, can be effective in verifying that employees understand the training that they have received. Employers are therefore free to devise the method that works best in their establishment to ascertain that employees have understood their training. Consequently, OSHA is not mandating any specific methods of training validation in the final rule.

Additionally, the Agency believes that it is important that the training documentation contain the name of the person conducting the training, as opposed to the signature of the person conducting the training as was proposed. OSHA is therefore requiring the trainer name and is eliminating the requirement for a signature. Also, this will allow employers to keep training records on computer if they so desire.

Section 304(c)(9) of the Clean Air Act Amendments mandated that this standard contain a provision requiring employers to “train and educate employees and contractors in emergency response in a manner as comprehensive and effective as that required by the regulation promulgated pursuant to section 126(d) of the Superfund Amendments and Reauthorization Act” (SARA). That section of SARA requires that workers receive a specified minimum number of hours of training unless the worker “has received the equivalent of such training.”

It is the Agency’s position that the training requirements contained in paragraph (g) of the final rule, together with the requirements pertaining to emergency planning and response contained in paragraph (n) of the final rule (particularly the training requirements mandated by 1910.38(a)), provide “equivalent training” to the training required for emergency response under section 126(d) of SARA. In addition, those employees who would be involved in emergency response must meet the training requirements in 1910.120, Hazardous Waste Operations and Emergency Response, referenced in paragraph (n) of this final rule, which is directly responsive to section 126(d) of SARA.

Contractors

In this final rule, paragraph (h), contractors, attempts to distinguish between the many types of contract workers who may be present at a job site and indicates the type of contract worker that the special training provisions of the regulation are attempting to cover. Among the many categories of contract labor that may be present at a particular job site, it is important to appreciate the differences among them. For example, contractors may actually operate a facility for an owner (who may own the facility but have little to do with the daily operation). In this case the contractor is the employer responsible for the covered processes and would obviously be treated as the “employer.” Some contractors are hired to do a particular aspect of a job because they have a specialized area of expertise of which the host employer has little knowledge or skill (for example, asbestos removal). Other contractors work on site when the operation has need for increased manpower quickly for a short period of time, such as those involved in a turnaround operation. While paragraph (h)(2) sets forth the duties of the host employer to contract employers, the extent and the depth of these duties will depend to some degree on the category of contractor present. For example, should a contract employer provide employees to operate a process, then those employees would obviously have to be trained to the same extent as the directed hire employees “involved in operating a process” under paragraph (g) of the final standard.

Generally speaking, all OSHA standards cover all employees including contract employees. In something of a break with tradition, the process safety management rule has separate provisions covering the training of contract employees. This was done primarily for emphasis since contract employees make up a significant portion of some segments of industries covered by the final rule. This is not to say, however, that paragraph (h) is the only section of the process safety rule that applies to contractors. As already indicated, under appropriate circumstances, all of the provisions of the standard may apply to a contractor (i.e., a contractor operated facility). After all, employees of an independent contractor are still employees in the broadest sense of the word and they and their employers must not only follow the process safety management rule, but they must also take care that they do nothing to endanger the safety of those working nearby who work for another employer.

Moreover, the fact that this rule has a separate section that specifically lays out the duty of contractors on the job site does not mean that other OSHA standards, lacking a similar section, do not apply to contract employers. OSHA has a long history of enforcing OSHA standards on multi-employer worksites. Nothing in this rule changes the position that the Agency has long taken in cases such as Anning-Johnson (4 O.S.H. Cas. (BNA) 1193), Harvey Workover, Inc. (7 O.S.H. Cas. (BNA) 1687) and in its Field Operations Manual (CPL 2.45B CH-1, Chapter V-9). As a general matter each employer is responsible for the health and safety of his/her own employees. However, under certain circumstances an employer may be cited for endangering the safety of another’s employees. In determining who to hold responsible, OSHA will look at who CREATED the hazard, who CONTROLLED the hazard and whether all reasonable means were taken to deal with the hazard.

OSHA proposed in paragraph (h)(1) that the employer inform contractors performing work on or near a process, of the known potential fire, explosion or toxic release hazards related to the contractor’s work and the process; ensure that contractor employees are trained in the work practices necessary to safely perform their job; and inform contractors of any applicable safety rules of the facility. OSHA also proposed in paragraph (h)(2) that the employer explain to contractors the applicable provisions of the emergency action plan. The purpose of these proposed requirements was to assure that contractors are aware of both the hazards associated with the work being performed and the actions to be taken during emergencies. Finally, OSHA proposed paragraph (h)(3) that contract employers assure that their employees follow all applicable work practices and safety rules of the facility.

Many participants criticized the proposed provisions, observing that they could be interpreted to mean that a plant employer would be responsible for training contractor employees, a responsibility they believed properly belongs to the contract employer. The Santa Fe Pacific Pipeline, Inc (Ex. 3: 124) observed that contractors in some cases are larger organizations than the employer and since an employer is paying a contractor as an expert,

questioned how an employer could be expected to provide such training.

On September 24, 1991, OSHA published a notice in the FEDERAL REGISTER announcing the availability of a report by the John Gray Institute on contractors and peer review of the report. The public was given an opportunity to comment and reexamine the contractor provisions of the proposed process safety management standard in light of the John Gray Report (56 FR 48133). (See preamble discussion in Part I, Background.) The comment period ended on October 24, 1991, and OSHA received 37 comments in response to the notice. OSHA has not used the final John Gray Report as a basis for requirements in the development of its final provisions concerning contractors. A review of the comments in the record indicates that significant other information and data is available on which the final contractor provisions can be based. While OSHA has decided not to use the Report as a basis for the final contractor provisions, OSHA believes that the final provisions have benefitted by the additional public input which reconfirms, clarifies and expands on comments and testimony previously received. OSHA believes the safety and health of all employees working in processes involving highly hazardous chemicals will benefit from a safer workforce and a safer workplace.

OSHA agrees with these remarks and believes that an employer should be fully informed about a contract employer’s safety performance. Therefore the Agency is requiring an evaluation of a contract employer’s safety performance (e.g., an employer’s experience modification rate) and safety programs. OSHA believes that evaluating safety performance and programs is an important measure in preserving the integrity of processes involving highly hazardous chemicals. OSHA anticipates that the requirement will provide employers an opportunity to assure that they are not introducing additional hazards to their processes; and will give employers an opportunity to request that contract employers improve their safety performance or make other adjustments to their safety programs in order to enhance the safety of all employees working in processes involving highly hazardous chemicals. The final rule, being performance oriented, does not require that employers refrain from using contractors with less than perfect safety records. However, the employer does have the duty to evaluate the contract employer’s safety record and safety programs. Where the evaluation indicates some gaps in the contract employer’s approach to safety, the employer may need to be more vigilant in the oversight and may need to develop and implement more stringent safe work practices to control the presence of contractors in covered process areas (see (h)(2)(iv)).

Paragraphs (h)(2)(ii) and (iii) of the final standard were contained in the proposed standard. These provisions require the communication of basic process hazard and emergency information to contract employers and have been retained in the final rule.

Finally, OSHA has added paragraph (h)(2)(vi) to the final rule which requires a log of injuries and illnesses to be kept by the employer. OSHA agrees that an employer should be informed of all of the injuries and illnesses occurring in processes involving highly hazardous chemicals at the plant regardless of whether they be the employer’s employees or the contractor’s employees.

The requirements in paragraph (h)(3)(iv) of the final standard were also contained in the proposal except for the addition of the requirement pertaining to safe work practices discussed above. It is vitally important that contract employers assure that their employees follow the rules of the facility.

Paragraph (h)(3)(v) was added to the final rule as a result of the request for information in the proposal (55 FR at 29159). OSHA asked if the standard should require contract employers to inform the plant employer of the hazards presented by the contractor’s work, and whether the contractor should be required to inform the employer of any hazards found during the contractor’s work. Participants supported the inclusion of this requirement.

Finally, the section 304 requirements of the Clean Air Act Amendments (CAAA) state that the OSHA standard must require employers to:

(8) Ensure contractors and contract employees are provided appropriate information and training.

(9) Train and educate employees and contractors in emergency response in a manner as comprehensive and effective as that required by the regulation promulgated pursuant to section 126(d) of the Superfund Amendments and Reauthorization Act.

OSHA believes that the contractor provisions contained in the final standard meet the requirements contained in section 304 (c)(8) and (9) of the CAAA in a manner as comprehensive and effective as that required by the regulation promulgated pursuant to section 126(d) of the Superfund Amendments and Reauthorization Act for the reasons described in the preamble discussion regarding section 126(d) of the Superfund Amendments in paragraph (g), Training.

Pre-Startup Safety Review

Proposed paragraph (i)(1) required the employer to perform a pre-startup safety review for new facilities and for modified facilities when the modification necessitated a change to the process safety information. The purpose of this proposed requirement was to make sure that certain important considerations had been addressed before any highly hazardous chemical was introduced into a process.

It was not the intent of OSHA to require a pre-startup safety review for each facility that may be modified slightly. OSHA believes that a pre-startup safety review is necessary for modified facilities only when the modification is significant enough to require a change in the process safety information. The Agency has made minor editorial changes to this provision in the final rule to clarify its intent.

Mechanical Integrity

Proposed paragraph (j) contained requirements for maintaining the mechanical integrity of process equipment in order to assure that such equipment is designed, installed, and operates properly.

Paragraph (j)(1) of the proposal specified certain process equipment to which the requirements of this paragraph would apply. This equipment included pressure vessels and storage tanks; piping systems (including piping components such as valves); relief and vent systems and devices; emergency shutdown systems; and controls, alarms, and interlocks. The Agency believed that any of this equipment could have a significant impact on the safety of a process that is covered by this standard if the equipment was improperly designed or installed or, if such equipment did not function as intended.

OSHA agrees with those rulemaking participants who believe that the goal of the mechanical integrity provisions is to ensure that highly hazardous chemicals covered by the standard are contained within the process and not released in an uncontrolled manner. The equipment OSHA has listed in proposed paragraph (j)(1) constitutes process equipment that the Agency considers critical in achieving this goal. OSHA also agrees with those rulemaking participants who stated that process equipment will vary from process to process. This is the reason that the Agency did not propose that the employer determine the equipment “critical” to the process. Equipment considered critical to a process by one employer may not necessarily be considered critical to a different process by another employer. As a result, there could be confusion with respect to which equipment is subject to the requirements contained in paragraph (j).

The Agency believes that there is certain equipment, critical to process safety, that is common to all processes. This is the equipment specified in proposed paragraph (j)(1). It is the position of OSHA that at least the equipment specified in proposed paragraph (j)(1) must be subject to the requirements contained in paragraph (j). However, if an employer deems additional equipment to be critical to a particular process, that employer should consider that equipment to be covered by this paragraph and treat it accordingly.

OSHA also concurs with those rulemaking participants who said that all process equipment within a plant is not necessarily associated with Appendix A materials or flammable liquids or gases. Paragraph (j)(1) is intended to cover only that equipment associated with a process that is covered by this standard.

After careful evaluation of the information contained in the record, OSHA believes that it is appropriate for the mechanical integrity requirements in paragraph (j) to apply to the equipment listed in proposed paragraph (j)(1). OSHA is accepting the recommendation of the American Paper Institute (Ex. 3: 45) and the United Steelworkers of America (Tr. 2512) that pumps be added to the list since OSHA agrees that pumps in a covered process could also significantly impact the safety of a process.

Paragraph (j)(2) of the proposal pertained to written procedures with respect to mechanical integrity. Proposed paragraph (j)(2)(i), required the employer to establish and implement written procedures to maintain the on-going integrity of listed process equipment. The purpose of this proposed provision was to require a written program that would assure that process equipment receives careful, appropriate, regularly scheduled maintenance to assure its continued safe operation.

Paragraph (j)(2)(ii) of the proposal required the employer to assure that each employee involved in maintaining the on-going integrity of process equipment be trained in the procedures applicable to the employee’s job tasks. Several rulemaking participants were concerned that there might be some confusion with respect to the training requirements contained in paragraph (g), which apply to employees who are involved in operating a process, and the training requirements contained in this provision, which apply to maintenance employees. It was suggested that all training requirements be contained in paragraph (g) or, alternatively, that the Agency clarify that there are separate training requirements for maintenance employees. Other rulemaking participants suggested that, because of its importance, the training requirement for maintenance employees should be separated from proposed paragraph (j)(2) and given its own heading.

The Agency was also concerned that there might be some confusion between the training requirements in this mechanical integrity provision, and the training requirements contained in paragraph (g). It is the Agency’s position that maintenance employees need not be trained in process operating procedures to the same extent as those employees who are actually involved in operating the process. However, OSHA believes that maintenance employees must receive on-going training in an overview of the process and its hazards and training in the procedures applicable to their job tasks to assure that they can perform their tasks in a safe manner. Without continual attention to training needs due to process changes and other changes, little assurance will exist that maintenance employees will perform their tasks safely.

OSHA believes that assigning this paragraph its own heading will focus more attention on the training requirements contained in this provision, and will help to clarify the distinction between the training requirements pertinent to mechanical integrity and the training requirements pertinent to employees involved in operating a process. The Agency also believes that it is necessary to revise this proposed paragraph to better describe its intent regarding the training of maintenance employees. Consequently, this proposed provision has been redesignated as paragraph (j)(3), assigned the title of “Training for process maintenance activities”, and has been revised to read as follows:

The employer shall train each employee involved in maintaining the on-going integrity of process equipment in an overview of that process and its hazards and in the procedures applicable to the employee’s job tasks to assure that the employee can perform the job tasks in a safe manner.

OSHA believes that this is an excellent suggestion because it will focus more attention on the importance of training of persons involved in maintaining equipment and will better distinguish these training requirements from those contained in paragraph (g). The Agency was also concerned that there might be some confusion between the training requirements in this mechanical integrity provision, and the training requirements contained in paragraph (g). It is the Agency’s position that maintenance employees need not be trained in process operating procedures to the same extent as those employees who are actually involved in operating the process. However, OSHA believes that maintenance employees must receive on-going training in an overview of the process and its hazards and training in the procedures applicable to their job tasks to assure that they can perform their tasks in a safe manner. Without continual attention to training needs due to process changes and other changes, little assurance will exist that maintenance employees will perform their tasks safely.

The Agency also believes that it is necessary to revise this proposed paragraph to better describe its intent regarding the training of maintenance employees. Consequently, this proposed provision has been redesignated as paragraph (j)(3), assigned the title of “Training for process maintenance activities”, and has been revised to read as follows:

The codes and standards contained in proposed paragraph (j)(3)(ii) were examples of what the employer could use for inspection and testing of process equipment. The Agency did not intend to incorporate by reference into the standard all of the codes and standards published by these consensus groups. As noted above, the purpose of this proposed provision is to make sure that process equipment is inspected and tested properly, and that the inspections and tests are performed in accordance with appropriate codes and standards. The phrase suggested by rulemaking participants: “recognized and generally accepted good engineering practices” is consistent with OSHA’s intent. The Agency also believes that this recommended phrase would include appropriate internal standards of a facility, as well as codes and standards published by NFPA, ASTM, ANSI, NFPA, etc.

Accordingly, proposed paragraph (j)(3)(ii) has been redesignated as paragraph (j)(4)(ii) in the final rule, and has been revised to read as follows:

Inspection and testing procedures shall follow recognized and generally accepted good engineering practices.

Paragraph (j)(3)(iii) of the proposal required the frequency of inspections and tests to be consistent with applicable codes and standards; or, more frequently if determined necessary by prior operating experience. This proposed provision was a performance-oriented requirement that would provide flexibility for the employer to choose the frequency which would provide the best assurance of equipment integrity.

Several rulemaking participants suggested that if this provision is to be truly performance- oriented, employers should have the flexibility to follow internal standards and manufacturers’ recommendations as well as applicable codes and standards.

OSHA agrees with these rulemaking participants. Since the phrase “recognized and generally accepted good engineering practices” would include both appropriate internal standards and applicable codes and standards, the Agency has decided to use this phrase in this provision of the final rule.

Accordingly, proposed paragraph (j)(3)(iii) has been redesignated as paragraph (j)(4)(iii) in the final rule, and has been revised to read as follows:

The frequency of inspections and tests of process equipment shall be consistent with applicable manufacturers’ recommendations and good engineering practices, and more frequently if determined to be necessary by prior operating experience.

OSHA agrees that the word “documentation” (or “document”) is descriptive of the Agency’s intention with respect to this information.

Additionally, since OSHA is permitting inspection and test procedures to follow recognized and generally accepted good engineering practices, the Agency believes that different information than that proposed should be included in the record to identify the inspections and tests that were performed, and the results of those tests and inspections.

Therefore, proposed paragraph (j)(3)(iv) has been redesignated as paragraph (j)(4)(iv) in the final rule, and has been revised to read as follows:

The employer shall document each inspection and test that has been performed on process equipment. The documentation shall identify the date of the inspection or test; the name of the person who performed the inspection or test; the serial number or other identifier of the equipment; the inspection or test that is performed; and, the results of the inspection or test.

The purpose of this proposed requirement was to require equipment deficiencies to be corrected promptly if the equipment was outside the acceptable limits specified in the process safety information. The comments have convinced OSHA that there may be many situations where it may not be necessary that the deficiencies be corrected “before further use” as long as the deficiencies are corrected in a safe and timely manner when necessary means are taken to assure safe operation. Consequently, proposed paragraph (j)(4) has been redesignated as paragraph (j)(5) in the final rule, and has been revised to read as follows:

The employer shall correct deficiencies in equipment that are outside the acceptable limits defined by the process safety information in paragraph (d) before further use, or in a safe and timely manner when necessary means are taken to assure safe operation.

Paragraph (j)(5) of the proposal pertained to quality assurance of mechanical equipment. Proposed paragraph (j)(5)(i) required the employer to assure that equipment as fabricated meets design specifications. Some rulemaking participants suggested that this proposed paragraph be clarified as it relates to the construction of new plants and equipment. The Agency agrees with these rulemaking participants since this was the actual intent of this proposed provision.

Hot Work Permit

In proposed paragraph (k)(1), OSHA required the employer to issue a permit for all hot work operations. The purpose of this proposed provision was to assure that the employer was aware of the hot work being performed, and that appropriate safety precautions had been taken prior to beginning the work.

The Agency did propose certain exceptions to this provision which included the following: where the employer or the employer’s representative, designated as responsible for authorizing hot work operations, is present while the hot work is being performed; and in welding shops authorized by the employer.

While a few rulemaking participants agreed with the Agency’s approach, many rulemaking participants opposed the exceptions to this proposed provision. OSHA agrees with the commenters that the permit reminds the person performing the work of the steps necessary to perform the work safely; and if the hot work is performed on or near a covered process, then a permit should be required regardless of who is present. Additionally, this proposed provision would not require a permit for hot work operations in a welding shop unless the welding shop was located in a process area covered by the standard. OSHA believes that such a location would not exist. Consequently, the Agency has concluded that the proposed exceptions to this hot work provision are not appropriate, and the exceptions have not been retained in the final rule.

Therefore, paragraph (k)(1) of the final rule has been revised to read as follows:

The employer shall issue a hot work permit for hot work operations conducted on or near a covered process.

Proposed paragraph (k)(2) required the permit to certify that the fire prevention and protection requirements contained in 29 CFR 1910.252(a) had been implemented prior to beginning the hot work operations; indicate the date authorized for the hot work; and identify the equipment or facility on which the hot work was to be performed. It also required the permit to be kept on file until completion of the hot work. Most rulemaking participants supported this proposed provision. However, one commenter suggested that the Agency not address the contents of the permit. The Agency disagrees with this suggestion because it believes that it is important that employers are informed of what the Agency expects the permit to contain.

Management of Change

OSHA believes that one of the most important and necessary aspects of a process safety management program is appropriately managing changes to the process. This is because many of the incidents that the Agency has reviewed resulted from some type of change to the process (e.g., the Flixborough incident). OSHA believes that it is necessary to thoroughly evaluate any contemplated changes to a process to assess the potential impact on the safety and health of employees and to determine what modifications to operating procedures may be necessary. Again, it was the intent of the Agency that the phrase “changes to facilities” would mean only those facilities that would have an impact on a process covered by the proposed standard. To clarify its intent, the Agency has revised paragraph (l)(1) of the final rule to read, “changes to facilities that affect a covered process.”

Consequently, proposed paragraph (l)(1) has been revised in the final rule to read as follows:

The employer shall establish and implement written procedures to manage changes (except for “replacement in kind”) to process chemicals, technology, equipment, and procedures; and, changes to facilities that affect a covered process.

OSHA believes that all employees whose job tasks will be impacted by a change must be informed of and trained in those changes with respect to what affect such changes will have on their job tasks. Otherwise, contract employees or maintenance employees who are unaware of the change, may unwittingly cause an incident by doing their job tasks as they have in the past. OSHA believes this training requirement to be important for maintenance and contract employees as well as those employees involved in operating a process.

The Agency has revised this provision in the final rule to clarify that this information and training provision applies to operating employees as well as to maintenance and contract employees whose job tasks will be affected by the change.

Incident Investigation

OSHA included requirements for incident investigation in the proposal because a crucial part of any process safety management program is the thorough investigation of any incident that resulted in, or could reasonably have resulted in a catastrophic release of a highly hazardous chemical in the workplace. Such investigations are extremely important for identifying the chain of events leading to the incident and for determining causal factors. Information resulting from the investigation will be invaluable to the development and implementation of corrective measures and for use in subsequent process hazard analyses.

The Agency has decided to replace the term “major accident” with the term “catastrophic release” since this term is more consistent with the focus of the final rule and as discussed has added a definition for “catastrophic release” to paragraph (b) of the final rule. Consequently, proposed paragraph (m)(1) has been revised in the final rule to read as follows:

The employer shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release of a highly hazardous chemical in the workplace.

Proposed paragraph (m)(2) required incident investigations to be initiated as promptly as possible, but no later than 48 hours following the incident. It is important that an incident investigation be initiated promptly so that events can be recounted as clearly as possible; to preserve crucial evidence; and so that there is less likelihood that the scene will have been disturbed. The Agency also realizes that circumstances may not facilitate an immediate investigation because of the potential emergency nature of some incidents. This is the reason that this proposed provision requires investigations to be initiated as promptly as possible, “but not later than 48 hours following the incident.” OSHA believes that it is necessary to initiate investigations as soon as possible after the incident and sees no reasonable basis for relating the time period to initiate the investigation to whether the incident was a fatality or a near miss. Although the Agency understands the concerns of these rulemaking participants, the Agency believes that the provision allows enough flexibility to the employer by requiring an incident investigation be initiated as soon as possible but not later than 48 hours following the incident. OSHA believes that 48 hours is a reasonable time frame within which to initiate an investigation. Accordingly, proposed paragraph (m)(2) is contained in the final rule as proposed. It should also be noted that the investigation need only be initiated within this timeframe, not completed, although it is contemplated that there will not be unnecessary delay between initiation and completion of the incident investigation.

The intent of OSHA is to assure that team members have the ability to properly perform the investigation promptly and that the employer have the flexibility to select team members (in consultation with employees and their representatives as described in paragraph (c)) that possess this ability. The Agency believes that this proposed paragraph adequately reflects this intent.

Additionally, the Agency believes that in cases where an incident involved a contract employer’s work, then a contract employee should be involved in the investigation. Therefore, proposed paragraph (m)(3) has been revised to read as follows:

An incident investigation team shall be established and consist of at least one person knowledgeable in the process involved, including a contract employee if the incident involved work of the contractor, and other persons with appropriate knowledge and experience to thoroughly investigate and analyze the incident.

Proposed paragraph (m)(4) required a report to be prepared at the conclusion of the investigation which included, at a minimum, the date of the incident; date that the investigation began; a description of the incident; the factors that contributed to the incident; and, any recommendations resulting from the investigation. A very small number of rulemaking participants contended that there was no benefit in specifying the date the investigation began. OSHA disagrees. The Agency wants to make sure that the investigation is initiated promptly. Consequently, it is important that the date of the incident, as well as the date that the investigation was initiated, are both specified.

Proposed paragraph (m)(5) required that the report be reviewed with all operating, maintenance, and other personnel whose work assignments are within the facility where the incident occurred. The purpose of this proposed provision is to assure that the report findings are disseminated to appropriate personnel, because the information contained in the report might be important in preventing similar incidents. OSHA has decided to revise this proposed provision to more accurately identify to whom this information should be disseminated. Additionally, the Agency believes that the logical progression of an incident investigation is to address the report recommendations (discussed in proposed paragraph (m)(6)) before disseminating the information contained in the report to affected personnel.

Accordingly, proposed paragraph (m)(5) has been redesignated as paragraph (m)(6) in the final rule, and has been revised to read as follows:

The report shall be reviewed with all affected personnel whose job tasks are relevant to the incident findings including contract employees when applicable.

Proposed paragraph (m)(6) required the employer to establish a system to promptly address the report findings and recommendations and to implement the report recommendations in a timely manner. The Agency agrees that there may be situations where it is not necessary or appropriate to implement all of the report recommendations. It is the Agency’s position, however, that it is necessary to document the resolution of the report findings and recommendations to assure that they have been adequately considered.

Accordingly, proposed paragraph (m)(6) has been redesignated as paragraph (m)(5) in the final rule, and has been revised to read as follows:

The employer shall establish a system to promptly address and resolve the report findings and recommendations. Resolutions and corrective actions shall be documented.

Paragraph (m)(7) of the proposal required incident investigation reports to be retained for five years in order to determine if an incident pattern develops or exists. A few rulemaking participants suggested that the investigation reports be retained for three years rather than five years. OSHA did consider a three year retention period. However, the Agency believes it would be extremely useful if the report findings and recommendations were reviewed during the subsequent update or revalidation of the process hazard analysis. Consequently, the Agency believes it more appropriate to specify a five year retention period to be consistent with paragraph (e) of the final rule, which requires the process hazard analysis to be updated or revalidated every five years. Therefore, proposed paragraph (m)(7) is included in the final rule as proposed.

Emergency Planning and Response

Proposed paragraph (n) required the employer to establish and implement an emergency action plan in accordance with the provisions contained in 29 CFR 1910.38(a). For information purposes, the Agency also added a note that 29 CFR 1910.120(a), (p) and (q) may also be applicable. The Agency received little negative comment with respect to this proposed provision except with respect to the issue of drills discussed below. OSHA believes that the implementation of an emergency action plan is extremely important for plant sites which have processes covered by this standard because of the potential hazards posed by highly hazardous chemicals and the elements of the emergency action plan which must be implemented to preplan for emergencies involving these substances (including training) so that employees will be aware of, and execute, appropriate actions. The emergency action plan requires at a minimum, the implementation of, and training employees in, the following procedures:

Emergency escape procedures and emergency escape route assignments.
Procedures to be followed by employees who remain to operate critical plant operations before they evacuate.
Procedures to account for all employees after emergency evacuation has been completed;
Rescue and medical duties for those employees who are to perform them;
Preferred means of reporting fires and other emergencies; and
Names or regular job titles of persons or departments who can be contacted for further information or explanation of duties under the plan.

The emergency action plan also requires the establishment of a system to alert employees of an emergency. If the alarm system is to be used for alerting fire brigade members, or for some other purpose, a distinctive signal must be used for each purpose.

With respect to training, employers must review the emergency action plan with each employee initially when the plan is developed, whenever the employee’s responsibilities or designated actions under the emergency action plan changes, and whenever the emergency action plan, itself, is changed. OSHA believes that the preplanning and training required by the emergency action plan will assure the readiness of employees to respond appropriately and safely to emergencies involving highly hazardous chemicals.

Additionally, as a part of emergency planning, OSHA is adding a provision that employers develop procedures to address small releases and spills, since it is not always obvious when such an event is, or is not, an emergency situation; and such an event may also warrant initiating an incident investigation. The proposed paragraph concerning emergency planning and response was also the subject of one of the issues in the proposal. The Agency asked whether or not drills or simulated exercises should be mandated by this proposed provision. Many participants addressed this issue and while the value of drills was expressed throughout this rulemaking record, most rulemaking participants who addressed this issue believed that drills should be recommended but not mandated. The Agency has concluded that drills are certainly recommended, but OSHA believes that the employer is in the best position to assess the readiness of employees to respond correctly, to establish procedures for emergency action, including conducting drills or exercises when necessary.

Additionally, OSHA believes that the subject of drills will be adequately addressed by the elements contained in the emergency action plan and applicable provisions of 1910.120.

Paragraph (n) is included in the final rule as proposed except for the addition of a provision that requires establishment of procedures for handling small releases. Additionally, the note which made reference to the possible applicability of provisions contained in 1910.120 has been added to the text of the provision.

Compliance Safety Audits

OSHA believes that an audit with respect to compliance with the provisions contained in this section is an extremely important function. This is because it serves as a self-evaluation for employers to measure the effectiveness of their process safety management system. The audit can identify problem areas, and assist employers in directing attention to process safety management weaknesses.

Therefore, proposed paragraph (o)(1) required employers to certify that they have evaluated compliance with the provisions of this section, at least every three years. The concept of employers evaluating the effectiveness of their own process safety management system was endorsed, and widely supported, throughout this rulemaking process. However, there was some disagreement with the approach taken by OSHA in this proposed provision. Some rulemaking participants contended that paragraph (o) should focus more on evaluating the effectiveness of the process safety management system, rather than determining compliance with provisions contained in the standard.

The objective of proposed paragraph (o) is to assure that employers evaluate the effectiveness of their process safety management system as required by the standard. The Agency believes that an effective means of achieving this objective is by employers assuring that the provisions contained in this standard are being met and in doing so, the employer will ascertain whether the procedures and practices required to be developed under the process safety management standard are adequate and being followed. Since this proposed paragraph contains provisions that focus on the means of achieving this objective, the Agency has decided to change the title of paragraph (o) of the final rule to “compliance audits” and to add wording to further clarify the intent of this provision.

Another concern expressed with respect to proposed paragraph (o)(1) was the requirement that audits be performed at least every three years. Some commenters asserted that every three years was too often and recommended a five year interval as an alternative. OSHA disagrees. A five year interval between audits is too long. The Agency believes that it is necessary that audits be performed at least every three years in order to measure the effectiveness of the process safety management system. Accordingly, proposed paragraph (o)(1) has been retained in the final rule as proposed except for some additional clarifying language.

Proposed paragraph (o)(2) required that a team, comprised of at least on person knowledgeable in the process conduct the compliance audit. A few rulemaking participants remarked that it may not be necessary that the audit be performed by a “team.” OSHA concurs. The Agency believes that it is important for the audit to be performed by at least one person knowledgeable in the process, but it is not necessary that it be performed by a team. Therefore, proposed paragraph (o)(2) has been revised in the final rule to read as follows:

The compliance audit shall be conducted by at least one person knowledgeable in the process.

Proposed paragraph (o)(3) required a report of the findings of the audit to be developed. There were no objections to the requirement that a report of the audit findings be developed. Therefore, proposed paragraph (o)(3) is contained in the final rule as proposed.

Proposed paragraph (o)(4) required the employer to promptly determine and document an appropriate response to each of the findings of the compliance audit, and certify that deficiencies have been corrected. Some rulemaking participants disagreed with the term “certify” and suggested that other terms such as “document,” “respond to,” or “resolve” would be more descriptive of OSHA’s intent. The purpose of this proposed paragraph is to assure that employers determine an appropriate response to each of the report findings and if employers identify a deficiency that needs to be corrected, that they “document” the correction of the deficiency. Therefore, proposed paragraph (o)(4) is contained in the final rule as proposed except that the word “certify” has been replaced by the word “document.”

Proposed paragraph (o)(5) required employers to retain the two most recent compliance audit reports, as well as the documented actions described in paragraph (o)(4) of this section. The purpose of this proposed provision is to focus on any continuing areas of concern that are identified through the compliance audits. There were no objections to this proposed provision and it is contained in the final rule as proposed, except for minor editorial changes which were made to reflect the change in title of paragraph (o).

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