South Carolina Code of Regulations
(Unannotated)
Current through State Register Volume 32, Issue 9, effective September 26, 2008.
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CHAPTER 71.
DEPARTMENT OF LABOR, LICENSING AND REGULATION--DIVISION OF LABOR
Section 41-15-210, South Carolina Code of Laws, provides that "the Commissioner of Labor may promulgate, modify or revoke rules and regulations which will have full force and effect of law upon being properly certified and filed for the purpose of attaining the highest degree of health and safety protection for any and all employees working within the State of South Carolina, whether employed in the public or private sector."
As used in this article, unless the context clearly requires otherwise:
A. "State" means the State of South Carolina.
B. "Department" means the Department of Labor, State of South Carolina.
C. "Commissioner" means the Commissioner, Department of Labor, State of South Carolina.
D. "Employer" means any individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, and the State of South Carolina and any political subdivision thereof.
E. "Employee" means any person employed by an individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, or the State of South Carolina and any political subdivision thereof.
F. "Safety Specialist" means any individual commissioned by the Department of Labor, the State of South Carolina or any political subdivision thereof to enforce safety and health laws, rules and regulations.
G. "Person" means any individual, partnership, joint venture, corporative association, corporation, organization of employees, the State of South Carolina or any political subdivision thereof.
H. "Party" means any individual, partnership, joint venture, cooperative association, corporation, the State of South Carolina or any political subdivision thereof who shall have a vested interest to participate in a hearing conducted in accordance with any subarticle of this article.
I. "Affected Employee" means any employee who would be affected by the grant or denial of any petition.
J. "Standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
K. [Reserved]
L. [Reserved]
M. [Reserved]
N. "Lost Workdays" is 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 illness.
O. "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary service; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
P. "Director of Inspection" means that person in the Department of Labor, State of South Carolina, who is responsible for inspections made pursuant to the state's Occupational Safety and Health Laws, and, that person in other state agencies having the responsibility of directing the inspection force of that agency which has a contractual agreement with the Department of Labor, State of South Carolina, to enforce the state's Occupational Safety and Health Laws.
Prior to the promulgation, modification or revocation of any rule or regulation the Commissioner shall conduct a hearing. Notice of such hearing shall be published in at least one newspaper with general circulation of the geographical areas in which the proposed rule or regulation will have substantial impact at least ten (10) days before such hearing. The notice shall contain the date, time, and place of the hearing and a brief description of the proposed rule or regulation. Any person may appear and be given an opportunity to oppose, recommend or endorse adoption of such promulgation, modification or revocation.
Section 41-15-220, South Carolina Code of Laws, provides that, "Prior to the promulgation, modification or revocation of any rule or regulation issued pursuant to this act the Commissioner shall conduct a public hearing at which all interested persons shall be provided an opportunity to appear and present their comments either orally, written or both."
71-105. Petition for the Issuance, Amendment, or Repeal of a Standard.
A. Petition. Any interested person may petition in writing to the Commissioner to promulgate, modify, or revoke a Standard. The petition should set forth the terms or the substance of the rules desired, the effects thereof if promulgated, and the reasons therefor.
B. Presentation of Comments. Within a reasonable time after the receipt of a submission pursuant to subparagraph A of this regulation, the Commissioner shall afford interested persons the opportunity to appear and present their comments either orally, written or both. Notice of the hearing shall be given as provided in R. 71-103.
The Commissioner may on his own motion modify or revoke any rules and regulations contained in these subarticles or regulations. In the event of conflict among any such rules and regulations, the Commissioner shall take the action necessary to eliminate the conflict, including the revocation or modification of a rule or regulation in this article, or regulation thereof, so as to assure the greatest protection for the safety and health of employees.
A. Applicability to Employer. The Standards contained in these subarticles shall apply with respect to all employers in this State employing one (1) or more employees.
B. Applicability to Conditions, Practices, Etc. If a particular Standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.
C. Specific vs General Standards. Any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for that particular industry.
D. Classes of Persons Protected by Standards. In the event a standard protects a class of persons larger than employees, the standard shall be applicable under these subarticles only to employees and their employment and places of employment.
A. The standards of agencies of the U.S. Government which are legally incorporated by reference in this article, have the same force and effect as other standards in this article.
B. Copies of the standards which are incorporated by reference may be examined at the South Carolina Department of Labor, 3600 Forest Drive, Columbia, South Carolina. Copies of such private standards may be obtained from the issuing organizations. Their names and addresses are listed in the pertinent subarticles of this article, and can also be obtained from the South Carolina Department of Labor.
C. Any changes in the standards incorporated by reference in this article and an official file of such changes are available for inspection at the South Carolina Department of Labor, 3600 Forest Drive, Columbia, South Carolina.
Any person may at any time petition the Commissioner in writing to revise, amend, or revoke any provisions of these subarticles. The petition shall set forth either the terms or the substance of the rule desired, with a concise statement of the reason therefor and the effects thereof.
71-110. Representatives of Commissioner Not To Be Required to Sign Statements.
No employer or employee representative shall, as a condition precedent to the performing of an inspection at a place of employment, require any representative whose purpose it is to make an inspection under these rules and regulations to sign any statement, form or writing which is designed for the purpose of the representative waiving of any right or restricting, expanding or modifying any duty.
All information reported to or otherwise obtained by the Commissioner or his representatives in connection with any inspection or proceeding under these subarticles which contains or which might reveal a trade secret shall be considered confidential. In any proceedings the Commissioner or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.
A. Employers shall maintain a place of employment which is free of recognized hazards which may cause death or serious physical harm to his employees and he shall comply with this regulation and other occupational safety and health rules and regulations promulgated under Chapter 15 of Title 41, Code of Laws, State of South Carolina, 1976, as amended.
B. Each employee shall comply with occupational safety and health rules and regulations promulgated under Chapter 15 of Title 41, Code of Laws, State of South Carolina, 1976, as amended; and, all employers' rules and regulations designed to protect him from recognized hazards for which there is no state occupational safety and health rule or regulation covering such situations.
A. The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from actual, but not any legal responsibility (or, as the case may be, relieving the other subcontractors from actual, but not any legal responsibility). In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of Subarticle 7 for all work to be performed under the contract.
B. By contracting for full performance of a contract, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in Subarticle 7, whether or not he subcontracts any part of the work.
C. To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in Subarticle 7 with respect to this subarticle. Thus, the prime contractor assumes entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor shall be deemed to have joint responsibility.
D. Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Rules and Regulations, Commissioner of Labor, State of South Carolina.
As used in this subarticle, unless the context clearly requires otherwise:
A. "State" means the State of South Carolina.
B. "Department" means the Department of Labor, State of South Carolina.
C. "Commissioner" means the Commissioner, Department of Labor, State of South Carolina.
D. "Employer" means any individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, and the State of South Carolina and any political subdivision thereof.
E. "Employee" means any person employed by an individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, or the State of South Carolina and any political subdivision thereof.
F. "Safety Specialist" means any individual commissioned by the Department of Labor, the State of South Carolina or any political subdivision thereof to enforce safety and health laws, rules and regulations.
G. "Person" means any individual, partnership, joint venture, cooperative association, corporation, organization of employees, the State of South Carolina or any political subdivision thereof.
H. "Party" means any individual, partnership, joint venture, cooperative association, corporation, the State of South Carolina or any political subdivision thereof who shall have a vested interest to participate in a hearing conducted in accordance with this subarticle.
I. "Affected Employee" means any employee who would be affected by the grant or denial of any petition.
J. "Standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
K. [Reserved]
L. [Reserved]
M. [Reserved]
N. "Lost Workdays" is 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 the workday or shift, because of the occupational injury or illness.
O. "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary service; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
P. "Director of Inspection" means that person in the Department of Labor, State of South Carolina, who is responsible for inspections made pursuant to the State's Occupational Safety and Health Laws, and, that person in other State agencies having the responsibility of directing the inspection force of that agency which has a contractual agreement with the Department of Labor, State of South Carolina, to enforce the State's Occupational Safety and Health Laws.
The Commissioner may at any time revise, amend, or revoke any provision of this subarticle, on his own motion or upon the written petition of any person.
All variances granted pursuant to this Article shall have only future effect. In his discretion, the Commissioner may decline to entertain a petition for a variance on a subject or issue concerning which a citation has been issued to the employer involved and a proceeding on the citation or a related issue concerning a proposed penalty or period of abatement is pending before the Commissioner until the completion of such proceeding.
71-204. Public Notice of a Granted Variance, Limitation, Variation, Tolerance, or Exemption.
Every final action granting a variance, limitation, variation, tolerance, or exemption will be kept on file in the Office of the Commissioner, Department of Labor, Columbia, South Carolina.
A. Forms of Petitions and Copies. No particular form is prescribed for petitions and other papers which may be filed in proceedings under this subarticle. However, any petition and others shall be filed with the Commissioner. The original shall be type-written. Clear carbon copies, or printed or processed copies are acceptable. (See R. 71-206 and R. 71-207 B for contents.)
B. Verification. Every petition or other paper which is filed in proceedings under these subarticles shall be verified by the person filing same, his attorney or authorized representative.
A. Petition for Temporary Variance. Any employer, or class of employers, desiring a variance from a standard, or portion thereof may file a written petition containing the information specified in paragraph B of this regulation with the Commissioner, Columbia, South Carolina.
B. Contents for Temporary Variance. A petition filed pursuant to paragraph A of this regulation shall include:
(1) The name and address of the petitioner;
(2) the address of the place or places of employment involved;
(3) a specification of the standard or portion thereof from which the petitioner seeks a variance;
(4) a representation by the petitioner, supported by representations from qualified persons having first-hand knowledge of the facts represented, that he is unable to comply with the standards or portion thereof by its effective date and detailed statement of the reasons thereof;
(5) a statement of the steps the petitioner has taken or will take with specific dates where appropriate, to protect employees against the hazard covered by the standard;
(6) a statement of when the petitioner expects to be able to comply with the standards and of what steps he has taken and will take, with specific dates where appropriate, to come into compliance with the standard;
(7) a statement of the facts the petitioner proposes to prove:
(a) The petitioner is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alternation of facilities cannot be completed by the effective date;
(b) He is taking all available steps to safeguard his employees against the hazards covered by the standard;
(c) He has an effective program for coming into compliance with the standard as quickly as practicable;
(8) Any request for a hearing, as provided in this subarticle;
(9) A statement that the petitioner has informed his affected employees of the application by giving a copy thereof to their authorized representative, posting a statement, giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted, and by other appropriate means;
(10) A description of how affected employees have been informed of the petition and of their rights to petition the Commissioner for a hearing.
C. Interim Order for Temporary Variances.
(1) Petition. A petition may also be made for an interim order to be effective until a decision is rendered on the petition for the variance filed previously or concurrently. A petition for an interim order may include statements of fact and arguments as to why the order should be granted. The Commissioner may rule ex parte upon the petition for interim order.
(2) Notice of Denial of Petition. If a petition filed pursuant to subparagraph (1) of this regulation is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by; a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order is granted, a copy of the order shall be served upon the petitioner for the order and other parties and the terms of the order shall be on file in the office of the Commissioner. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of a petition for a variance.
D. Length of Temporary Variances. No temporary variance may be in effect for longer than the period needed by the employer to achieve compliance with the Rule or Regulation or for one year, which ever is shorter, except that such order may be renewed not more than twice (1) so long as the requirements of this paragraph are met and (2) if an application for renewal is filed at least ninety days prior to the expiration date of the order. No interim renewal of an order may remain in effect for longer than 180 days.
71-207. Permanent Variances and other relief under section 41-15-250.
A. Petition for Permanent Variance. Any employer, or class of employers, desiring a variance authorized by Section 41-15-250, South Carolina Code of Laws, may file a written petition containing the information specified in paragraph B of this regulation with the Commissioner of Labor, Department of Labor, Columbia, South Carolina.
B. Contents for Permanent Variances. A petition filed pursuant to paragraph A of this regulation shall include:
(1) The name and address of the petitioner;
(2) The address of the place or places of employment involved;
(3) A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the petitioner;
(4) A statement showing how the conditions, practices, means, methods, operations, or processes used or proposed to be used would provide employment and places of employment to employees which are as safe and healthful as those required by the standard for which a variance is sought;
(5) A statement that the petitioner has informed his affected employees of the application by giving a copy thereof to their authorized representative, posting a statement, giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted, and by other appropriate means;
(6) Any request for a hearing, as provided in this subarticle; and
(7) A description of how employees have been informed of the petition and of their right to petition the Commissioner of Labor for a hearing.
C. Interim Order for Permanent Variances.
(1) Petition. A petition may also be made for an interim order to be effective until a decision is rendered on the petition for the variance filed previously or concurrently. A petition for an interim order may include statements of fact and arguments as to why the order should be granted. The Commissioner may rule ex parte upon the petition.
(2) Notice of Denial of Petition. If a petition filed pursuant to subparagraph 1 of this paragraph is denied, the petitioner shall be given prompt notice of the denial, which shall include, or be accompanied by; a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order is granted, a copy of the order shall be served upon the petitioner for the order and other parties, and the terms of the order shall be on file at the Office of the Commissioner and subject to inspection by interested parties. It shall give notice thereof to affected employees by the same means to be used to inform them of a petition for a variance.
71-208. Limitations, Variations, Tolerances, or Exemptions.
A. Petition. Any person or class of persons desiring a limitation, variation, tolerance, or exemption may file a petition containing the information specified in paragraph B of this regulation with the Commissioner, Department of Labor, Columbia, South Carolina.
B. Contents. A petition filed pursuant to paragraph A of this regulation shall include:
(1) the name and address of the petitioner;
(2) the address of the place or places of employment involved;
(3) a specification of the provision of Rules and Regulations to or from which the petitioner seeks a limitation, variation, tolerance, or exemption;
(4) a representation showing that the limitation, variation, tolerance, or exemption sought is necessary and proper to avoid serious impairment of the national defense or State security;
(5) any request for a hearing, as provided in this subarticle;
(6) a description of how employees have been informed of the petition and of their right to petition the Commissioner for a hearing.
C. Interim Order.
(1) Petition. A petition may also be made for an interim order to be effective until a decision is rendered on the petition for a limitation, variation, tolerance, or exemption filed previously or concurrently. A petition for an interim order may include statements of fact and arguments as to why the order should be granted. The Commissioner may rule ex parte upon this petition.
(2) Notice of Denial of Petition. If a petition filed pursuant to subparagraph (1) of this paragraph is denied, the petitioner shall be given prompt notice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order is granted, a copy of the order shall be served upon the petitioner for the order and other parties, and the terms of the order shall be on file in the office of the Commissioner. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of a petition for a variance.
71-209. Modification, Revocation, and Renewal of Rules or Order.
A. Modification or Revocation. An affected employer or an affected employee may apply in writing to the Commissioner for a modification or revocation of a rule or order issued under this subarticle. The petition shall contain:
(1) the name and address of the petitioner;
(2) a description of the relief which is sought;
(3) a statement setting forth with particularity the grounds for relief;
(4) if the petitioner is an employer, a certification that the petitioner has informed his affected employees of the petition by:
(a) giving a copy thereof to their authorized representative; and
(b) posting at the place or places where notices to employees are normally posted, a statement giving a summary of the application and specifying where a copy of the full petition may be examined (or, in lieu of the summary, posting a copy of the petition);
(5) if the petitioner is an affected employee, a certification that a copy of the petition has been furnished to the employer;
(6) any request for a hearing as provided in this subarticle, R. 71-218;
(7) the Commissioner may on his own motion proceed to modify or revoke a rule or order issued under this subarticle. In such event a copy shall be placed on file in the office of the Commissioner, Columbia, South Carolina, and the Commissioner shall publish in at least one newspaper with general circulation, a notice of his intentions, affording interested persons an opportunity to submit written or oral evidence, testimony or arguments regarding the proposal and informing them of their right to request a hearing, and shall take such action as may be appropriate to give actual notice to affected employees; and
(8) any request for a hearing shall include a clear and concise statement of:
(a) how the proposed modification or revocation would affect the petitioning party; and
(b) what the petitioning party would seek to show on the subjects or issues involved.
B. Renewal. Any final rule or order issued under paragraph A of this regulation may be renewed or extended in the manner prescribed for its issuance.
(1) If a petition filed pursuant to this subarticle does not conform to the applicable regulation, the Commissioner may deny the petition.
(2) Prompt notice of the denial of a petition shall be given to the petitioner.
(3) A notice of denial shall include, or be accompanied by, a brief statement of the grounds for the denial.
(4) A denial of a petition due to a defect shall not preclude the filing of another petition.
B. Adequate Petitions.
(1) If a petition has not been denied pursuant to paragraph A of this regulation, the Commissioner shall give proper notice of the filing of the petition.
(2) A notice of the filing of a petition shall include:
(a) the terms, or accurate summary, of the petition;
(b) a reference to the subarticle and regulation of the Rules and Regulations under which the petition has been filed;
(c) an invitation to interested persons to submit within a stated period of time written evidence, testimony or arguments regarding the petition; and
(d) information to affected employers or employees of any right to request a hearing on the petition.
A. Request for Hearing. Within fifteen (15) days of the notification of the filing of a petition, any affected employer or employee may file with the Commissioner a written request for a hearing.
B. Contents of a Request for a Hearing. A request for a hearing filed pursuant to paragraph A of this regulation shall include:
(1) a concise statement of facts showing how the employer or employee would be affected by the relief applied for;
(2) a specification of any statement or representation in the petition which is denied, and a concise summary of the evidence that would be adduced in support of each denial; and
(3) any views or arguments on any issue of fact or law presented.
C. Nothing contained herein shall preclude the request for a hearing being incorporated into and being made a part of the petition.
A. Service. Upon request for a hearing as provided in this subarticle, or upon his own initiative, the Commissioner shall serve, or caused to be served, a reasonable notice of hearing.
B. Contents of Notice. A notice of hearing served under paragraph A of this section shall include:
(1) The date, time and place of the hearing.
(2) The legal authority under which the hearing is to be held.
Service of any document upon any party may be made by personal delivery of, or by certified mail, a copy of the document to the last known address of the party. The person serving the document shall certify to the manner and the date of the service.
A. Convening a Conference. Upon his own motion or the motion of a party, the Commissioner may direct the parties or their counsel to meet with him for a conference to consider:
(1) Simplification of issues;
(2) Necessity or desirability of amendments to documents for purposes of clarification, or limitation;
(3) Stipulations, admissions of fact, and of contents and authenticity of documents;
(4) Limitation of the number of parties and of expert witnesses; and
(5) Such other matters as may tend to expedite the disposition of the proceeding, and to assure a just conclusion thereof.
B. Records of Conference. The Commissioner shall make an order which recites the action taken at the conference, the amendments allowed to any documents which have been filed, and the agreements made between the parties as to any of the matters considered, and which limits the issues for hearing to those disposed of by admissions or agreements; and such order when entered controls the subsequent course of the hearing, unless modified at the hearing, to prevent manifest injustice.
A. General. At any time before the reception of evidence in any hearing, or during any hearing a reasonable opportunity may be afforded to permit negotiation by the parties of any agreement containing consent findings and a rule or order disposing of the whole or any part of the proceeding. The allowance of such opportunity and the duration thereof shall be in the discretion of the Commissioner, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement which will result in a just disposition of the issues involved.
B. Contents. Any agreement containing consent findings and a rule or order disposing of a proceeding shall also provide:
(1) The rule or order shall have the same force and effect as if made after a full hearing;
(2) That the entire record on which any rule or order may be based shall consist solely of the petition and the agreement;
(3) A waiver of any further procedural steps before the Commissioner, and
(4) A waiver of any right to challenge or contest the validity of the findings and or the rules or order made in accordance with the agreement.
C. Submission. On or before the expiration of the time granted for negotiations, the parties or their counsel may:
(1) Submit the proposed agreement to the Commissioner for his consideration; or
(2) Inform the Commissioner that agreement cannot be reached.
D. Disposition. In the event an agreement containing consent findings and a rule or order is submitted within the time allowed therefor, the Commissioner may accept such agreement by issuing his decision based upon the agreed findings.
(1) For reasons of unavailability or for other good cause shown, the testimony of any witness may be taken by deposition. Depositions may be taken orally or upon written interrogatories before any person designated by the Commissioner and having power to administer oaths.
(2) Application. Any party desiring to take the deposition of a witness may make application in writing to the Commissioner setting forth:
(a) the reasons why such deposition should be taken;
(b) the time when, the place where, and the name and post office address of the person before whom the deposition is taken;
(c) the name and address of each witness; and
(d) the subject matter concerning which each witness is expected to testify.
(3) Notice. Such notice as the Commissioner may order shall be given by the party taking the deposition to every other party.
(4) Taking and Receiving in Evidence. Each witness testifying upon deposition shall be sworn, and the parties not calling him shall have the right to cross-examine him. The questions propounded and the answers thereto, together with all objections made, shall be reduced to writing, read to the witness, subscribed by him, and certified by the officer before whom the deposition is taken. Thereafter, the officer shall seal the deposition, with two copies thereof, in an envelope and mail same by registered mail to the Commissioner. Subject to such objections to the questions and answers as were noted at the time of taking the deposition and would be valid were the witness personally present and testifying, such deposition may be read and offered in evidence by the party taking it as against any party who was present, represented at the taking of the deposition, or who had due notice thereof. No part of a deposition shall be admitted in evidence unless there is a showing that the reasons for the taking of the deposition in the first instance existed at the time of hearing.
B. Other Discovery.
Whenever appropriate to a just disposition of any issue in a hearing, the Commissioner may allow discovery by any other appropriate procedure, such as by written interrogatories upon a party, production of documents by a party, or by entry for inspection of the employment or place of employment involved.
A. Order of Proceeding. Except as may be ordered otherwise by the Commissioner, the party petitioning for relief shall proceed first at a hearing.
B. Burden of Proof. The petitioner shall have the burden of proof.
C. Evidence.
(1) Admissibility-A party shall be entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Any oral or documentary evidence may be received, but the Commissioner shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.
(2) Testimony of Witnesses-The testimony of a witness shall be upon oath or affirmation administered by the Commissioner.
(3) Objections-If a party objects to the admission or rejection of any evidence, or to the limitation of the scope of any examination or cross-examination, or to the failure to limit such scope, he shall state briefly the grounds for such objection. Rulings on all objections shall appear in the record. Only objections made before the Commissioner may be relied upon subsequently in a proceeding.
(4) Exceptions-Formal exception to an adverse ruling is not required.
D. Judicial Notice. Judicial notice may be taken of any material fact not appearing in evidence in the record. Provided, that the parties shall be given adequate notice, at the hearing or by reference in the Commissioner's decision, of the matters so noticed, and shall be given adequate opportunity to show the contrary.
E. Transcript. Hearings shall be stenographically reported. Copies of the transcript may be obtained by the parties upon written application filed with the reporter, and upon the payment of fees at the rate provided in the agreement with the reporter.
A. Within a reasonable time, the Commissioner shall make and serve upon each party his decision, which shall become final upon the 20th day after service thereof, unless exceptions are filed thereto, as provided in R. 71-220. The decision of the Commissioner shall include:
(1) A statement of findings and conclusions, with reasons and bases therefor, upon each material issue of fact, law or discretion presented on the record, and
(2) The appropriate rule, order, relief, or denial thereof.
The decision of the Commissioner shall be based upon a consideration of the whole record and shall state all facts officially noticed and relied upon. It shall be made on the basis of a preponderance of reliable and probative evidence.
Within twenty (20) days after service of a decision of the Commissioner, any party may file with the Commissioner written exceptions thereto with supporting reasons. Such exceptions shall refer to the specific findings of fact, conclusions of law, or terms of the rule or order excepted to, the specific pages of transcript relevant to the suggestions, and shall suggest corrected findings of fact, conclusions of law, or terms of the rule or order. Upon receipt of any exceptions, the Commissioner shall fix a time for filing any objections to the exceptions and any supporting reasons. Nothing contained in this regulation shall preclude any grieved party from seeking relief in any court of competent jurisdiction.
71-221. Public Notice of Petition for a Variance and Interim Order.
The Commissioner of Labor will give notice in at least one newspaper with general circulation in the State containing the following information:
A. Variance Request.
(1) Name of the Company petitioning for the variance.
(2) The specific location of the facility directly affected by the Petition.
(3) The specific standard from which a variance is requested.
(4) That a copy of the petition will be made available for inspection and copying upon request at the Office of the Commissioner of Labor, Columbia, South Carolina.
(5) That interested persons, including employers and employees are invited to submit data, views, or arguments within 20 days following the date of the publication of notice.
(6) That employers and employees who believe they would be affected by a grant or denial of the variance may request a hearing on the petition for a variance within 20 days after the publication of the notice.
(7) A general description of the reason or reasons for the variance request.
B. Interim Order.
A brief description of the interim order issued by the Commissioner of Labor.
C. Decisions of the Commissioner.
A statement will be included in the notice that the decision of the Commissioner will be available in the Office of the Commissioner for public inspection to any interested person.
71-222. Variances from Recordkeeping Requirements.
The Commissioner of Labor will not entertain an application for a variance from a Recordkeeping Requirement. Any request so received by the Commissioner will be transmitted to the Secretary of Labor for his action. The State of South Carolina will honor any variance granted by the Secretary of Labor.
71-223. Variances Granted by the Secretary of Labor.
The Commissioner of Labor will honor and give full faith and credit to any temporary or permanent variance from an occupational safety and health standard which has or may be granted by the Secretary of Labor. In order that such variance be honored by the Commissioner, it is and will be incumbent upon the employer to file the final rule or order of the Secretary of Labor with the Commissioner of Labor at his office in Columbia, South Carolina.
SUBARTICLE 3.
RECORDING AND REPORTING OCCUPATIONAL INJURIES AND ILLNESSES
The purpose of this rule (Subarticle 3) is to require employers to record and report work-related fatalities, injuries and illnesses.
Note to 71-300: Recording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers compensation or other benefits.
(Cross Reference: 1904.0)
SUBPART B. SCOPE
NOTE
Note to Subpart B: All employers covered by the Occupational Safety and Health Act (OSH Act) are covered by these Subarticle 3 regulations. However, most employers do not have to keep OSHA injury and illness records unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that they must keep records. For example, employers with 10 or fewer employees and business establishments in certain industry classifications are partially exempt from keeping OSHA injury and illness records.
71-301. Partial exemption for employers with 10 or fewer employees.
(a) Basic requirement
(1) If your company had ten (10) or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records unless OSHA or the BLS informs you in writing that you must keep records under 71-342. However, as required by 71-339, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees.
(2) If your company had more than ten (10) employees at any time during the last calendar year, you must keep OSHA injury and illness records unless your establishment is classified as a partially exempt industry under 71-302.
(b) Implementation.
(1) Is the partial exemption for size based on the size of my entire company or on the size of an individual business establishment? The partial exemption for size is based on the number of employees in the entire company.
(2) How do I determine the size of my company to find out if I qualify for the partial exemption for size? To determine if you are exempt because of size, you need to determine your company's peak employment during the last calendar year. If you had no more than ten 10 employees at any time in the last calendar year, your company qualifies for the partial exemption for size.
(3) Does the partial exemption for size apply to public sector [State of South Carolina and any political subdivision thereof]? No, the above exemption of not more than ten (10) employees does not apply to employers in the public sector.
(Cross Reference: 1904.1)
71-302. Partial exemptions for establishments in certain industries.
(a) Basic requirement.
(1) If your business establishment is classified in a specific low hazard retail, service, finance, insurance, or real estate industry listed in Appendix A to this Subpart B, you do not need to keep OSHA injury and illness records unless the government asks you to keep the records under 71-342. However, all employers must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees (see 71-339).
(2) If one or more of your company's establishments are classified in a non-exempt industry, you must keep OSHA injury and illness records for all of such establishments unless your company is partially exempted because of size under 71-301.
(b) Implementation:
(1) Does the partial industry classification exemption apply only to business establishments in the retail, services, finance, insurance, or real estate industries (SICs 52-89)? Yes, business establishments classified in agriculture; mining; construction; manufacturing; transportation; communication, electric, gas and sanitary services; or wholesale trade are not eligible for the partial industry classification exemption.
(2) Is the partial industry classification exemption based on the industry classification of my entire company or on the classification of individual business establishments operated by my company? The partial industry classification exemption applies to individual business establishments. If a company has several business establishments engaged in different classes of business activities, some of the company's establishments may be required to keep records, while others may be exempt.
(3) How do I determine the Standard Industrial Classification code for my company or for individual establishments? You determine your Standard Industrial Classification (SIC) code by using the Standard Industrial Classification Manual, Executive Office of the President, Office of Management and Budget. You may contact your nearest OSHA office or State agency for help in determining your SIC.
(4) Does the partial industry classification exemption apply to public sector [State of South Carolina and any political subdivision thereof]? No, the above exemption applies only to establishments in the private sector. The exemption does not apply to the State of South Carolina or any political subdivisions thereof.
If you create records to comply with another government agency's injury and illness recordkeeping requirements, OSHA will consider those records as meeting OSHA's Subarticle 3 recordkeeping requirements if OSHA accepts the other agency's records under a memorandum of understanding with that agency, or if the other agency's records contain the same information as this Subarticle 3 requires you to record. you may contact your nearest OSHA office or State agency for help in determining whether your records meet OSHA's requirements.
NON-MANDATORY APPENDIX A
TO SUBPART B--PARTIALLY EXEMPT INDUSTRIES
Employers are not required to keep OSHA injury and illness records for any establishment classified in the following Standard Industrial Classification (SIC) codes, unless they are asked in writing to do so by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS. All employers including those partially exempted by reason of company size or industry classification must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees (see 71-339).
SUBPART C. RECORDKEEPING FORMS AND RECORDING CRITERIA
NOTE
Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer must enter into the OSHA records and explains the OSHA forms that employers must use to record work-related fatalities, injuries, and illnesses.
(a) Basic requirement. Each employer required by this Part to keep records of fatalities, injuries, and illnesses must record each fatality, injury and illness that:
(1) Is work-related; and
(2) Is a new case; and
(3) Meets one or more of the general recording criteria of 71-307 or the application to specific cases of 71-308 through 71-312.
(b) Implementation. (1) What sections of this rule describe recording criteria for recording work-related injuries and illnesses? The table below indicates which sections of the rule address each topic.
(i) Determination of work-relatedness. See 71-305.
(ii) Determination of a new case. See 71-306.
(iii) General recording criteria. See 71-307.
(iv) Additional criteria. (Needlestick and sharps injury cases, tuberculosis cases, hearing loss cases, medical removal cases, and musculoskeletal disorder cases). See 71-308 through 71-312.
(2) How do I decide whether a particular injury or illness is recordable? The decision tree for recording work-related injuries and illnesses below shows the steps involved in making this determination.
(a) Basic requirement. You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in 71-305(b)(2) specifically applies.
(b) Implementation. (1) What is the "work environment"? OSHA defines the work environment as "the establishment and other locations where one or more employees are working or are present as a condition of their employment. The work environment includes not only physical location, but also the equipment or materials used by the employee during the course of his or her work."
(2) Are there situations where an injury or illness occurs in the work environment and is not considered work-related? Yes, an injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable.
(3) How do I handle a case if it is not obvious whether the precipitating event or exposure occurred in the work environment or occurred away from work? In these situations, you must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.
(4) How do I know if an event or exposure in the work environment "significantly aggravated" a preexisting injury or illness? A preexisting injury or illness has been significantly aggravated, for purposes of OSHA injury and illness recordkeeping, when an event or exposure in the work environment results in any of the following:
(i) Death, provided that the preexisting injury or illness would likely not have resulted in death but for the occupational event or exposure.
(ii) Loss of consciousness, provided that the preexisting injury or illness would likely not have resulted in loss of consciousness but for the occupational event or exposure.
(iii) One or more days away from work, or days of restricted work, or days of job transfer that otherwise would not have occurred but for the occupational event or exposure.
(iv) Medical treatment in a case where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in medical treatment was necessitated by the workplace event or exposure.
(5) Which injuries and illness are considered pre-existing conditions? An injury or illness is a preexisting condition if it resulted solely from a non-work-related event or exposure that occurred outside the work environment.
(6) How do I decide whether and injury or illness is work-related if the employee is on travel status at the time the injury or illness occurs? Injuries or illnesses that occur while an employee is on travel status are work-related if, at the time of the injury or illness, the employee was engaged in work activities "in the interest of the employer." Examples of such activities include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss, or promote business (work-related entertainment includes only entertainment activities being engaged in at the direction of the employer). Injuries or illnesses that occur when the employee is on travel status do not have to be recorded if they meet one of the exceptions listed below.
(7) How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting. For example, if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. If an employee's fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment, the injury is considered work-related. If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.
(a) Basic requirement. You must consider an injury or illness to be a "new case" if:
(1) The employee has not previously experienced a recorded injury or illness of the same type that affects the same part of the body, or
(2) The employee previously experienced a recorded injury or illness of the same type that affected the same part of the body but had recovered completely (all signs and symptoms had disappeared) from the previous injury or illness and an event or exposure in the work environment caused the signs or symptoms to reappear.
(b) Implementation.
(1) When an employee experiences the signs or symptoms of a chronic work-related illness, do I need to consider each recurrence of signs or symptoms to be a new case? No, for occupational illnesses where the signs or symptoms may recur or continue in the absence of an exposure in the workplace, the case must only be recorded once. Examples may include occupational cancer, asbestosis, byssinosis and silicosis.
(2) When an employee experiences the signs or symptoms of an injury or illness as a result of an event or exposure in the workplace, such as an episode of occupational asthma, must I treat the episode as a new case? Yes, because the episode or recurrence was caused by an event or exposure in the workplace, the incident must be treated as a new case.
(3) May I rely on a physician or other licensed health care professional to determine whether a case is a new case or a recurrence of an old case? You are not required to seek the advice of a physician or other licensed health care professional. However, if you do seek such advice, you must follow the physician or other licensed health care professional's recommendation about whether the case is a new case or a recurrence. If you receive recommendations from two or more physicians or other licensed health care professionals, you must make a decision as to which recommendation is the most authoritative (best documented, best reasoned, or most authoritative), and record the case based upon that recommendation.
(a) Basic requirement. You must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. You must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.
(b) Implementation. (1) How do I decide if a case meets one or more of the general recording criteria? A work-related injury or illness must be recorded if it results in one or more of the following:
(i) Death. See 71-307(b)(2).
(ii) Days away from work. See 71-307(b)(3).
(iii) Restricted work or transfer to another job. See 71-307(b)(4).
(iv) Medical treatment beyond first aid. See 71-307(b)(5).
(v) Loss of consciousness. See 71-307(b)(6).
(vi) A significant injury or illness diagnosed by a physician or other licensed health care professional. See 71-307(b)(7).
(2) How do I record a work-related injury or illness that results in the employee's death? You must record an injury or illness that results in death by entering a check mark on the OSHA 300 Log in the space for cases resulting in death. You must also report any work-related fatality to OSHA within eight (8) hours, as required by 71-339.
(3) How do I record a work-related injury or illness that results in days away from work? When an injury or illness involves one or more days away from work, you must record the injury or illness on the OSHA 300 Log with a check mark in the space for cases involving days away and an entry of the number of calendar days away from work in the number of days column. If the employee is out for an extended period of time, you must enter an estimate of the days that the employee will be away, and update the day count when the actual number of days is known.
(i) Do I count the day on which the injury occurred or the illness began? No, you begin counting days away on the day after the injury occurred or the illness began.
(ii) How do I record an injury or illness when a physician or other licensed health care professional recommends that the worker stay at home but the employee comes to work anyway? You must record these injuries and illnesses on the OSHA 300 Log using the check box for cases with days away from work and enter the number of calendar days away recommended by the physician or other licensed health care professional. If a physician or other licensed health care professional recommends days away, you should encourage your employee to follow that recommendation. However, the days away must be recorded whether the injured or ill employee follows the physician or licensed health care professional's recommendation or not. If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.
(iii) How do I handle a case when a physician or other licensed health care professional recommends that the worker return to work but the employee stays at home anyway? In this situation, you must end the count of days away from work on the date the physician or other licensed health care professional recommends that the employee return to work.
(iv) How do I count weekends, holidays, or other days the employee would not have worked anyway? You must count the number of calendar days the employee was unable to work as a result of the injury or illness, regardless of whether or not the employee was scheduled to work on those day(s). Weekend day, holidays, vacation days or other days off are included in the total number of days recorded if the employee would not have been able to work on those days because of work-related injury or illness.
(v) How do I record a case in which a worker is injured or becomes ill on a Friday and reports to work on a Monday, and was not scheduled to work on the weekend? You need to record this case only if you receive information from a physician or other licensed health care professional indicating that the employee should not have worked, or should have performed only restricted work, during the weekend. If so, you must record the injury or illness as a case with days away from work or restricted work, and enter the day counts, as appropriate.
(vi) How do I record a case in which a worker is injured or becomes ill on the day before scheduled time off such as a holiday, a planned vacation or a temporary plant closing? You need to record a case of this type only if you receive information from a physician or other licensed health care professional indicating that the employee should not have worked, or should have performed only restricted work, during the scheduled time off. If so, you must record the injury or illness as a case with days away from work or restricted work, and enter the day counts, as appropriate.
(vii) Is there a limit to the number of days away from work I must count? Yes, you may "cap" the total days away at 180 calendar days. You are not required to keep track of the number of calendar days away from work if the injury or illness resulted in more than 180 calendar days away from work and/or days of job transfer or restriction. In such a case, entering 180 in the total days away column will be considered adequate.
(viii) May I stop counting days if and employee who is away from work because of an injury or illness retires or leaves my company? Yes, if the employee leaves your company for some reason unrelated to the injury or illness, such as retirement, a plant closing, or to take another job, you may stop counting days away from work or days of restriction/job transfer. If the employee leaves your company because of the injury or illness, you must estimate the total number of days away or days of restriction/job transfer and enter the day count on the 300 Log.
(ix) If a case occurs in one year but results in days away during the next calendar year, do I record the case in both years? No, you only record the injury or illness once. You must enter the number of calendar days away for the injury or illness on the OSHA 300 Log for the year in which the injury or illness occurred. If the employee is still away from work because of the injury or illness when you prepare the annual summary, estimate the total number of calendar days you expect the employee to be away from work, use this number to calculate the total for the annual summary, and then update the initial log entry later when the day count is known or reaches the 180-day cap.
(4) How do I record a work-related injury or illness that results in restricted work or job transfer? When an injury or illness involves restricted work or job transfer but does not involve death or days away from work, you must record the injury or illness on the OSHA 300 Log by placing a check mark in the space for job transfer or restriction and an entry of the number of restricted or transferred days in the restricted work days column.
(i) How do I decide if the injury or illness resulted in restricted work? Restricted work occurs when, as the result of a work-related injury or illness:
(A) You keep the employee from performing one or more of the routine functions of his or her job, or from working the full workday that he or she would otherwise have been scheduled to work; or
(B) A physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of his or her job, or not work the full workday that he or she would otherwise have been scheduled to work.
(ii) What is meant by "routine functions"? For recordkeeping purposes, an employee's routine functions are those work activities the employee regularly performs at least once per week.
(iii) Do I have to record restricted work or job transfer if it applies only to the day on which the injury occurred or the illness began? No, you do not have to record restricted work or job transfers if you, or the physician or other licensed health care professional, impose the restriction or transfer only for the day on which the injury occurred or the illness began.
(iv) If you or a physician or other licensed health care professional recommends a work restriction, is the injury or illness automatically recordable as a "restricted work" case? No, a recommended work restriction is recordable only if it affects one or more of the employee's routine job functions. To determine whether this is the case, you must evaluate the restriction in light of the routine functions of the injured or ill employee's job. If the restriction from you or the physician or other licensed health care professional keeps the employee from performing one or more of his or her routine job functions, or from working the full workday the injured or ill employee would otherwise have worked, the employee's work has been restricted and you must record the case.
(v) How do I record a case where the worker works only for a partial work shift because of a work-related injury or illness? A partial day of work is recorded as a day of job transfer, or restriction for recordkeeping purposes, except for the day on which the injury occurred or the illness began.
(vi) If the injured or ill worker produces fewer goods or services than he or she would have produced prior to the injury or illness but otherwise performs all of the routine functions of his or her work, is the case considered a restricted work case? No, the case is considered restricted work only if the worker does not perform all of the routine functions of his or her job or does not work the full shift that he or she would otherwise have worked.
(vii) How do I handle vague restrictions from a physician or other licensed health care professional, such as that the employee engage only in "light duty" or "take it easy for a week"? If you are not clear about the physician or other licensed health care professional's recommendation, you may ask that person whether the employee can do all of his or her routine job functions and work all of his or her normally assigned work shift. If the answer to both of these questions is "Yes," then the case does not involve a work restriction and does not have to be recorded as such. If the answer to one or both of these questions is "No," the case involves restricted work and must be recorded as a restricted work case. If you are unable to obtain this additional information from the physician or other licensed health care professional that recommended the restriction, record the injury or illness as a case involving restricted work.
(viii) What do I do if a physician or other licensed health care professional recommends a job restriction meeting OSHA's definition, but the employee does all of his or her routine job functions anyway? You must record the injury or illness on the OSHA 300 Log as a restricted work case. If a physician or other licensed health care professional recommends a job restriction, you should ensure that the employee complies with that restriction. If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.
(ix) How do I decide if an injury or illness involved a transfer to another job? If you assign an injured or ill employee to a job other than his or her regular job for part of the day, the case involves transfer to another job.
Note: This does not include the day on which the injury or illness occurred.
(x) Are transfers to another job recorded in the same way as restricted work cases? Yes, both job transfer and restricted work cases are recorded in the same box on the OSHA 300 Log. For example, if you assign, or a physician or other licensed health care professional recommends that you assign, an injured or ill worker to his or her routine job duties for part of the day and to another job for the rest of the day, the injury or illness involves a job transfer. You must record an injury or illness that involves a job transfer by placing a check in the box for job transfer.
(xi) How do I count days of job transfer or restriction? You count days of job transfer or restriction in the same way you count days away from work, using 71-307(b)(3)(i) to (viii), above. The only difference is that, if you permanently assign the injured or ill employee to a job that has been modified or permanently changed in a manner that eliminates the routine functions the employee was restricted from performing, you may stop the day count when the modification or change is made permanent. You must count at least one day of restricted work or job transfer for such cases.
(5) How do I record an injury or illness that involves medical treatment beyond first aid? If a work-related injury or illness results in medical treatment beyond first aid, you must record it on the OSHA 300 Log. If the injury or illness did not involve death, one or more days away from work, one or more days of restricted work, or one or more days of job transfer, you enter a check mark in the box for cases where the employee received medical treatment but remained at work and was not transferred or restricted.
(i) What is the definition of medical treatment? "Medical treatment" means the management and care of a patient to combat disease or disorder. For the purposes of Subarticle 3, medical treatment does not include:
(A) Visits to a physician or other licensed health care professional solely for observation or counseling;
(B) The conduct of diagnostic procedures, such as x-rays and blood tests, including the administration of prescription medications used solely for diagnostic purposes (e.g., eye drops to dilate pupils); or
(C) "First aid" as defined in paragraph (b)(5)(ii) of this section.
(ii) What is "first aid"? For the purposes of Subarticle 3, "first aid" means the following:
(A) Using a non-prescription medication at nonprescription strength (for medications available in prescription and non-prescription form, a recommendation by a physician or other licensed health care professional to use a non-prescription medication at prescription strength is considered medical treatment for recordkeeping purposes);
(B) Administering tetanus immunizations (other immunizations, such as Hepatitis B vaccine or rabies vaccine, are considered medical treatment);
(C) Cleaning, flushing or soaking wounds on the surface of the skin;
(D) Using wound coverings such as bandages, Band-AidsTM, gauze pads, etc.; or using butterfly bandages or Steri-StripsTM (other wound closing devices such as sutures, staples, etc., are considered medical treatment);
(E) Using hot or cold therapy;
(F) Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes);
(G) Using temporary immobilization devices while transporting an accident victim (e.g., splints, slings, neck collars, back boards, etc.);
(H) Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister;
(I) Using eye patches;
(J) Removing foreign bodies from the eye using only irrigation or a cotton swab;
(K) Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means;
(L) Using finger guards;
(M) Using massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes); or
(N) Drinking fluids for relief of heat stress.
(iii) Are any other procedures included in first aid? No, this is a complete list of all treatments considered first aid for Subarticle 3 purposes.
(iv) Does the professional status of the person providing the treatment have any effect on what is considered first aid or medical treatment? No, OSHA considers the treatment listed in 71-307(b)(5)(ii) of this Part to be first aid regardless of the professional status of the person providing the treatment. Even when these treatments are provided by a physician or other licensed health care professional, they are considered first aid for the purposes of Subarticle 3. Similarly, OSHA considers treatment beyond first aid to be medical treatment even when it is provided by someone other than a physician or other licensed health care professional.
(v) What if a physician or other licensed health care professional recommends medical treatment but the employee does not follow the recommendation? If a physician or other licensed health care professional recommends medical treatment, you should encourage the injured or ill employee to follow that recommendation. However, you must record the case even if the injured or ill employee does not follow the physician or other licensed health care professional's recommendation.
(6) Is every work-related injury or illness case involving a loss of consciousness recordable? Yes, you must record a work-related injury or illness if the worker becomes unconscious, regardless of the length of time the employee remains unconscious.
(7) What is a "significant" diagnosed injury or illness that is recordable under the general criteria even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness? Work-related cases involving cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum must always be recorded under the general criteria at the time of diagnosis by a physician or other licensed health care professional.
Note to 71-307: OSHA believes that most significant injuries and illnesses will result in one of the criteria listed in 71-307(a): death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness. However, there are some significant injuries, such as a punctured eardrum or fractured toe or rib, for which neither medical treatment nor work restrictions may be recommended. In addition, there are some significant progressive diseases, such as byssinosis, silicosis, and some types of cancer, for which medical treatment or work restrictions may not be recommended at the time of diagnosis but are likely to be recommended as the disease progresses. OSHA believes that cancer, chronic irreversible diseases, fractured or cracked bones, and punctured eardrums are generally considered significant injuries and illnesses, and must be recorded at the initial diagnosis even if medical treatment or work restrictions are not recommended, or are postponed, in a particular case.
(Cross Reference 1904.7)
71-308. Recording criteria for needlestick and sharps injuries.
(a) Basic requirement. You must record all work-related needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material (as defined by 29 CFR 1910.1030). You must enter the case on the OSHA 300 Log as an injury. To protect the employee's privacy, you may not enter the employee's name on the OSHA 300 Log (see the requirements for privacy cases in paragraphs, 71-329(b)(6) through 71-329(b)(9)).
(b) Implementation. (1) What does "other potentially infectious material" mean? The term "other potentially infectious materials" is defined in the OSHA Bloodborne Pathogens standard at 1910.1030(b). These materials include:
(i) Human bodily fluids, tissues and organs, and
(ii) Other materials infected with the HIV or hepatitis B (HBV) virus such as laboratory cultures or tissues from experimental animals.
(2) Does this mean that I must record all cuts, lacerations, punctures, and scratches? No, you need to record cuts, lacerations, punctures, and scratches only if they are work-related and involve contamination with another person's blood or other potentially infectious material. If the cut, laceration, or scratch involves a clean object, or a contaminant other than blood or other potentially infectious material, you need to record the case only if it meets one or more of the recording criteria in 71-307.
(3) If record an injury and the employee is later diagnosed with an infectious bloodborne disease, do I need to update the OSHA 300 Log? Yes, you must update the classification of the case on the OSHA 300 Log if the case results in death, days away from work, restricted work, or job transfer. You must also update the description to identify the infectious disease and change the classification of the case from an injury to an illness.
(4) What if one of my employees is splashed or exposed to blood or other potentially infectious material without being cut or scratched? Do I need to record this incident? You need to record such an incident on the OSHA 300 Log as an illness if:
(i) It results in the diagnosis of a bloodborne illness, such as HIV, hepatitis B, or hepatitis C; or
(ii) It meets one or more of the recording criteria in 71-307.
(Cross Reference: 1904.8)
71-309. Recording criteria for cases involving medical removal under OSHA standards.
(a) Basic requirement. If an employee is medically removed under the medical surveillance requirements of an OSHA standard, you must record the case on the OSHA 300 Log.
(b) Implementation. (1) How do I classify medical removal cases on the OSHA 300 Log? You must enter each medical removal case on the OSHA 300 Log as either a case involving days away from work or a case involving restricted work activity, depending on how you decide to comply with the medical removal requirement. If the medical removal is the result of a chemical exposure, you must enter the case on the OSHA 300 Log by checking the "poisoning" column.
(2) Do all of OSHA's standards have medical removal provisions? No, some OSHA standards, such as the standards covering bloodborne pathogens and noise, do not have medical removal provisions. Many OSHA standards that cover specific chemical substances have medical removal provisions. These standards include, but are not limited to lead, cadmium, methylene chloride, formaldehyde, and benzene.
(3) Do I have to record a case where I voluntarily removed the employee from exposure before the medical removal criteria in an OSHA standard is met? No, if the case involves voluntary medical removal before the medical removal levels required by an OSHA standard, you do not need to record the case on the OSHA 300 Log.
(Cross Reference 1904.9)
71-310. Recording criteria for cases involving occupational hearing loss.
(a) Basic requirement.
If an employee's hearing test (audiogram) reveals that the employee has experienced a work-related Standard Threshold Shift (STS) in hearing in one or both ears, and the employee's total hearing level is 25 decibels (dB) or more above audiometric zero (averaged at 2000, 3000, and 4000 Hz) in the same ear(s) as the STS, you must record the case on the OSHA 300 Log.
(b) Implementation.
(1) What is a Standard Threshold Shift? A Standard Threshold Shift, or STS, is defined in the occupational noise exposure standard at 29 CFR 1910.95(g)(10)(i) as a change in hearing threshold, relative to the baseline audiogram for that employee, of an average of 10 decibels (dB) or more at 2000, 3000, and 4000 hertz (Hz) in one or both ears.
(2) How do I evaluate the current audiogram to determine whether an employee has an STS and a 25-dB hearing level?
(i) STS. If the employee has never previously experienced a recordable hearing loss, you must compare the employee's current audiogram with that employee's baseline audiogram. If the employee has previously experienced a recordable hearing loss, you must compare the employee's current audiogram with the employee's revised baseline audiogram (the audiogram reflecting the employee's previous recordable hearing loss case).
(ii) 25-dB loss. Audiometric test results reflect the employee's overall hearing ability in comparison to audiometric zero. Therefore, using the employee/s current audiogram, you must use the average hearing level at 2000, 3000, and 4000 Hz to determine whether or not the employee's total hearing level is 25 dB or more.
(3) May I adjust the current audiogram to reflect the effects of aging on hearing? Yes. When you are determining whether an STS has occurred, you may age adjust the employee's current audiogram results by using Tables F-1 or F-2, as appropriate, in Appendix F of 29 CFR 1910.95. You may not use an age adjustment when determining whether the employee's total hearing level is 25 dB or more above audiometric zero.
(4) Do I have to record the hearing loss if I am going to retest the employee's hearing? No, if you retest the employee's hearing within 30 days of the first test, and the first test does not confirm the recordable STS, you are not required to record the hearing loss case on the OSHA 300 Log. If the test confirms the recordable STS, you must record the hearing loss illness within seven (7) calendar days of the retest. If subsequent audiometric testing performed under the testing requirements of the 1910.95 noise standard indicate that an STS is not persistent, you may erase or line-out the recorded entry.
(5) Are there any special rules for determining whether a hearing loss case is work-related? No. You must use the rules in 71-305 to determine if the hearing loss is work-related. If an event or exposure in the work environment either caused or contributed to the hearing loss, or significantly aggravated a pre-existing hearing loss, you must consider the case to be work related.
(6) If a physician or other licensed health care professional determines the hearing loss is not work-related, do I still need to record the case? If a physician or other licensed health care professional determines that the hearing loss is not work-related or has not been significantly aggravated by occupational noise exposure, you are not required to consider the case work-related or to record the case on the OSHA 300 Log.
(7) How do I complete the 300 Log for a hearing loss case? When you enter a recordable hearing loss case on the OSHA 300 Log, you must check the column for hearing loss. (Note: SCRR 71-310(b)(7) is effective beginning January 1, 2004.)
(Cross Reference: 1904.10)
71-311. Recording criteria for work-related tuberculosis cases.
(a) Basic requirement. If any of your employees has been occupationally exposed to anyone with a known case of active tuberculosis (TB), and that employee subsequently develops a tuberculosis infection, as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional, you must record the case on the OSHA 300 Log by checking the "respiratory condition" column.
(b) Implementation. (1) Do I have to record, on the Log, a positive TB skin test result obtained at a pre-employment physical? No, you do not have to record it because the employee was not occupationally exposed to a known case of active tuberculosis in your workplace.
(2) May I line-out or erase a recorded TB case if I obtain evidence that the case was not caused by occupational exposure? Yes, you may line-out or erase the case from the Log under the following circumstances:
(i) The worker is living in a household with a person who has been diagnosed with active TB;
(ii) The Public Health Department has identified the worker as a contact of an individual with a case of active TB unrelated to the workplace; or
(iii) A medical investigation shows that the employee's infection was caused by exposure to TB away from work, or proves that the case was not related to the workplace TB exposure.
(Cross Reference: 1904.11)
71-312. Recording criteria for cases involving work-related musculoskeletal disorders.
(a) Basic requirement. You must use OSHA 300, 300-A, and 301 forms, or equivalent forms, for recordable injuries and illnesses. The OSHA 300 form is called the Log of Work-Related Injuries and Illnesses, the 300-A is the Summary of Work-Related Injuries and Illnesses, and the OSHA 301 form is called the Injury and Illness Incident Report.
(b) Implementation. (1) What do I need to do to complete the OSHA 300 Log? You must enter information about your business at the top of the OSHA 300 Log, enter a one or two line description for each recordable injury or illness and summarize this information on the OSHA 300-A at the end of the year.
(2) What do I need to do to complete the OSHA 301 Incident Report? You must complete an OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illness entered on the OSHA 300 Log.
(3) How quickly must each injury or illness be recorded? You must enter each recordable injury or illness on the OSHA 300 Log and 301 Incident Report within seven [7] calendar days of receiving information that a recordable injury or illness has occurred.
(4) What is an equivalent form? An equivalent form is one that has the same information, is as readable and understandable, and is completed using the same instructions as the OSHA form it replaces. Many employers use an insurance form instead of the OSHA 301 Incident Report, or supplement an insurance form by adding any additional information required by OSHA.
(5) May I keep my records on a computer? Yes, if the computer can produce equivalent forms when they are needed, as described under 71-335 and 71-340; you may keep your records using the computer system.
(6) Are there situations where I do not put the employee's name on the forms for privacy reasons? Yes, if you have a "privacy concern case," you may not enter the employee's name on the OSHA 300 Log. Instead, enter "privacy case" in the space normally used for the employee's name. This will protect the privacy of the injured or ill employee when another employee, a former employee, or an authorized employee representative is provided access to the OSHA 300 Log under 71-335(b)(2). You must keep a separate, confidential list of the case numbers and employee names for your privacy concern cases so you can update the cases and provide the information to the government if asked to do so.
(7) How do I determine if an injury or illness is a privacy concern case? You must consider the following injuries or illnesses to be privacy concern cases:
(i) An injury or illness to an intimate body part or the reproductive system;
(ii) An injury or illness resulting from a sexual assault;
(iii) Mental illness;
(iv) HIV infection, hepatitis, or tuberculosis;
(v) Needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material (see 71-308 for definitions); and
(vi) Other illnesses, if the employee voluntarily requests that his or her name not be entered on the log.
(8) May I classify any other types of injuries and illnesses as privacy concern cases? No, this is a complete list of all injuries and illnesses considered privacy concern cases for Subarticle 3 purposes.
(9) If I have removed the employee's name, but still believe that the employee may be identified from the information on the forms, is there anything else that I can do further protect the employee's privacy? Yes, if you have a reasonable basis to believe that information describing the privacy concern case may be personally identifiable even though the employee's name has been omitted, you may use discretion in describing the injury or illness on both the OSHA 300 and 301 forms. You must enter enough information to identify the cause of the incident and the general severity of the injury or illness, but you do not need to include details of an intimate or private nature. For example, a sexual assault case could be described as "injury from assault," or an injury to a reproductive organ could be described as "lower abdominal injury."
(10) What must I do to protect employee privacy if I wish to provide access to the OSHA Forms 300 and 301 to persons other than government representatives, employees, former employees or authorized representatives? If you decide to voluntarily disclose the Forms to persons other than government representatives, employees, former employees or authorized representatives (as required by 71-335 and 71-340), you must remove or hide the employees' names and other personally identifying information, except for the following cases. You may disclose the Forms with personally identifying information only:
(i) to an auditor or consultant hired by the employer to evaluate the safety and health program;
(ii) to the extent necessary for processing a claim for workers' compensation or other insurance benefits; or
(iii) to a public health authority or law enforcement agency for uses and disclosures for which consent, and authorization, or opportunity to agree or object is not required under Department of Health and Human Services Standards for Privacy of Individually Identifiable Health Information, 45 CFR 164.512.
(Cross Reference: 1904.29)
SUBPART D. OTHER OSHA INJURY AND ILLNESS RECORDKEEPING REQUIREMENTS
(a) Basic requirement. You must keep a separate OSHA 300 Log for each establishment that is expected to be in operation for one year or longer.
(b) Implementation. (1) Do I need to keep OSHA injury and illness records for short-term establishments (i.e., establishments that will exist for less than a year)? Yes, however, you do not have to keep a separate OSHA 300 Log for each such establishment. You may keep one OSHA 300 Log that covers all of your short-term establishments. You may also include the short-term establishments recordable injuries and illnesses on an OSHA 300 Log that covers short-term establishments for individual company divisions or geographic regions.
(2) May I keep the records for all of my establishments at my headquarters location or at some other central location? Yes, you may keep the records for an establishment at your headquarters or other central location if you can:
(i) Transmit information about the injuries and illnesses from the establishment to the central location within seven (7) calendar days of receiving information that a recordable injury or illness has occurred; and
(ii) Produce and send the records from the central location to the establishment within the time frames required by 71-335 and 71-340 when you are required to provide records to a government representative, employees, former employees or employee representatives.
(3) Some of my employees work at several different locations or do not work at any of my establishments at all. How do I record cases for these employees? You must link each of your employees with one of your establishments, for recordkeeping purposes. You must record the injury and illness on the OSHA 300 Log of the injured or ill employee's establishment or on an OSHA 300 Log that covers that employee's short-term establishment.
(4) How do I record an injury or illness when an employee of one of my establishments is injured or becomes ill while visiting or working at another of my establishments, or while working away from any of my establishments? If the injury or illness occurs at one of your establishments, you must record the injury or illness on the OSHA 300 Log of the establishment at which the injury or illness occurred. If the employee is injured or becomes ill and is not at one of your establishments, you must record the case on the OSHA 300 Log at the establishment at which the employee normally works.
(a) Basic requirement. You must record on the OSHA 300 Log the recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal or migrant workers. You also must record the recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis. If your business is organized as a sole proprietorship or partnership, the owner or partners are not considered employees for recordkeeping purposes.
(b) Implementation. (1) If a self-employed person is injured or becomes ill while doing work at my business, do I need to record the injury or illness? No, self-employed individuals are not covered by the OSHA Act or this regulation.
(2) If I obtain employees from a temporary help service, employee leasing service, or personnel supply service, do I have to record an injury or illness occurring to one of those employees? You must record these injuries and illnesses if you supervise these employees on a day-to-day basis.
(3) If an employee in my establishment is a contractor's employee, must I record an injury or illness occurring to that employee? If the contractor's employee is under the day-to-day supervision of the contractor, the contractor is responsible for recording the injury or illness. If you supervise the contractor employee's work on a day-to-day basis, you must record the injury or illness.
(4) Must the personnel supply service, temporary help service, employee leasing service, or contractor also record the injuries or illnesses occurring to temporary, leased or contract employees that I supervise on a day-to-day basis? No, you and the temporary help service, employee leasing service, personnel supply service, or contractor should coordinate your efforts to make sure that each injury and illness is recorded only once; either on your OSHA 300 Log (if you provide day-to-day supervision) or on the other employer's OSHA 300 Log (if that company provides day-to-day supervision).
(a) Basic requirement. At the end of each calendar year, you must: (1) Review the OSHA 300 Log to verify that the entries are complete and accurate, and correct any deficiencies identified;
(2) Create an annual summary of injuries and illnesses recorded on the OSHA 300 Log;
(3) Certify the summary; and
(4) Post the annual summary.
(b) Implementation.
(1) How extensively do I have to review the OSHA 300 Log entries at the end of the year? You must review the entries as extensively as necessary to make sure that they are complete and correct.
(2) How do I complete the annual summary? You must:
(i) Total the columns on the OSHA 300 Log (if you had no recordable cases, enter zeros for each column total); and
(ii) Enter the calendar year covered, the company's name, establishment name, establishment address, annual average number of employees covered by the OSHA 300 Log, and the total hours worked by all employees covered by the OSHA 300 Log.
(iii) If you are using an equivalent form other than the OSHA 300-A summary from, as permitted under 71-306(b)(4), the summary you use must also include the employee access and employer penalty statements found on the OSHA 300-A Summary form.
(3) How do I certify the annual summary? A company executive must certify that he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded that the annual summary is correct and complete.
(4) Who is considered a company executive? The company executive who certifies the log must be one of the following persons:
(i) An owner of the company (only if the company is a sole proprietorship or partnership);
(ii) An officer of the corporation;
(iii) The highest ranking company official working at the establishment; or
(iv) The immediate supervisor of the highest ranking company official working at the establishment.
(5) How do I post the annual summary? You must post a copy of the annual summary in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the posted annual summary is not altered, defaced or covered by other material.
(6) When do I have to post the annual summary? You must post the summary no later than February 1 of the year following the year covered by the records and keep the posting in place until April 30.
(a) Basic requirement. You must save the OSHA 300 Log, the privacy case list (if one exists), the annual summary, and the OSHA 301 Incident Report forms for five (5) years following the end of the calendar year that these records cover.
(b) Implementation. (1) Do I have to update OSHA 300 Log during the five-year storage period? Yes, during the storage period, you must update your stored OSHA 300 Logs to include newly discovered recordable injuries or illnesses and to show any changes that have occurred in the classification of previously recorded injuries and illnesses. If the description or outcome of a case changes, you must remove or line out the original entry and enter the new information.
(2) Do I have to update the annual summary? No, you are not required to update the annual summary, but you may do so if you wish.
(3) Do I have to update the OSHA 301 Incident Reports? No, you are not required to update the OSHA 301 Incident Reports, but you may do so if you wish.
If your business changes ownership, you are responsible for recording and reporting work-related injuries and illnesses only for that period of the year during which owned the establishment. You must transfer the Subarticle 3 records to the new owner. The new owner must save all records of the establishment kept by the prior owner, as required by 71-333 of this Part, but need not update or correct the records of the prior owner.
(a) Basic requirement. Your employees and their representatives must be involved in the recordkeeping system in several ways.
(1) You must inform each employee of how he or she is to report an injury or illness to you.
(2) You must provide limited access to your injury and illness records for your employees and their representatives.
(b) Implementation. (1) What must I do to make sure that employees report work-related injuries and illnesses to me?
(i) You must set up a way for employees to report work-related injuries and illnesses promptly; and
(ii) You must tell each employee how to report work-related injuries and illnesses to you.
(2) Do I have to give my employees and their representatives access to the OSHA injury and illness records? Yes, your employees, former employees, their personal representatives, and their authorized employee representatives have the right to access the OSHA injury and illness records, with some limitations, as discussed below.
(i) Who is an authorized employee representative? An authorized employee representative is an authorized collective bargaining agent of employees.
(ii) Who is a "personal representative" of an employee or former employee? A personal representative is:
(A) Any person that the employee or former employee designates as such, in writing; or
(B) The legal representative of a deceased or legally incapacitated employee or former employee.
(iii) If an employee or representative asks for access to the OSHA 300 Log, when do I have to provide it? When an employee, former employee, personal representative, or authorized employee representative asks for copies for your current or stored OSHA 300 Log(s) for an establishment the employee or former employee has worked in, you must give the requester a copy of the relevant OSHA 300 Log(s) by the end of the next business day.
(iv) May I remove the names of the employees or any other information from the OSHA 300 Log before I give copies to an employee, former employee, or employee representative? No, you must leave the names on the 300 Log. However, to protect the privacy of injured and ill employees, you may not record the employee's name on the OSHA 300 Log for certain "privacy concern cases," as specified in paragraphs 71-329(b)(6) through 71-329(b)(9).
(v) If an employee or representative asks for access to the OSHA 301 Incident Report, when do I have to provide it?
(A) When an employee, former employee, or personal representative asks for a copy of the OSHA 301 Incident Report describing an injury or illness to that employee or former employee, you must give the requester a copy of the OSHA 301 Incident Report containing that information by the end of the next business day.
(B) When an authorized employee representative asks for copies of the OSHA 301 Incident Reports for an establishment where the agent represents employees under a collective bargaining agreement, you must give copies of those forms to the authorized employee representative within 7 calendar days. You are only required to give the authorized employee representative information from the OSHA 301 Incident Report section titled "Tell us about the case." You must remove all other information from the copy of the OSHA 301 Incident Report or the equivalent substitute form that you give to the authorized employee representative.
(vi) May I charge for the copies? No, you may not charge for these copies the first time they are provided. However, if one of the designated persons asks for additional copies, you may assess a reasonable charge for retrieving and copying the records.
Section 11(c) of the Act prohibits you from discriminating against an employee for reporting a work-related fatality, injury, or illness. That provision of the Act also protects the employee who files a safety and health complaint, asks for access to the Subarticle 3 records or otherwise exercises any rights afforded by the OSHA Act.
(Cross Reference: 1904.36)
71-337. Deviations from recordkeeping requirements.
(a) Any private sector employer who wishes to maintain records in a manner different from that required by this Subarticle, may submit a variance petition to the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, Washington, DC 20210, in accordance with the instructions set forth under 29 CFR (Code of Federal Regulations) Part 1904.38. Any private sector employer granted a petition by the Assistant Secretary of Labor for Occupational Safety and Health must transmit a copy of the petition along with a copy of the final order to the Director of the South Carolina Department of Labor, Licensing and Regulation, Columbia, South Carolina, 29211, within ten (10) days after receipt thereof. After such transmittal, compliance with the order shall constitute compliance with the requirements of this Subarticle.
(b) Any public sector employer who wishes to maintain records in a manner different from that required by this Subarticle, may submit a petition to the Director of the South Carolina Department of Labor, Licensing and Regulation, Columbia, South Carolina in accordance with the instructions set forth under 29 CFR Part 1904.38.
71-339. Reporting fatalities and multiple hospitalization incidents to OSHA.
(a) Basic requirement. Within eight (8) hours after the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident, you must orally report the fatality/multiple hospitalization by telephone or in person to the Director of the South Carolina Department of Labor, Licensing and Regulation (LLR), Columbia, South Carolina, 29211. You may also call 1-803-896-7672 or use the OSHA central telephone number, 1-800-321-OSHA.
(b) Implementation. (1) If the LLR Office is closed, may I report the incident by leaving a message on OSHA's answering machine, faxing the LLR office, or sending an e-mail? No, if you can't talk to a person at the LLR Office, you must report the fatality or multiple hospitalization incident using 1-803-896-7672 or 1-800-321-OSHA.
(2) What information do I need to give to OSHA about the incident? You must give OSHA the following information for each fatality or multiple hospitalization incident:
(i) The establishment name;
(ii) The location of the incident;
(iii) The time of the incident;
(iv) The number of fatalities or hospitalized employees;
(v) The names of any injured employees;
(vi) Your contact person and his or her phone number; and
(vii) A brief description of the incident.
(3) Do I have to report every fatality or multiple hospitalization incident resulting from a motor vehicle accident? No, you do not have to report all of these incidents. If the motor vehicle accident occurs on a public street or highway, and does not occur in a construction work zone, you do not have to report the incident to OSHA. However, these injuries must be recorded on your OSHA injury and illness records, if you are required to keep such records.
(4) Do I have to report a fatality or multiple hospitalization incident that occurs on a commercial or public transportation system? No, you do not have to call OSHA to report a fatality or multiple hospitalization incident if it involves a commercial airplane, train, subway or bus accident. However, these injuries must be recorded on your OSHA injury and illness records, if you are required to keep such records.
(5) Do I have to report a fatality caused by a heart attack at work? Yes, the LLR director will decide whether to investigate the incident, depending on the circumstances of the heart attack.
(6) Do I have to report a fatality or hospitalization that occurs long after the incident? No, you must only report each fatality or multiple hospitalization incident that occurs within thirty (30) days of an incident.
(7) What if I don't learn about an incident right away? If you do not learn of a reportable incident at the time it occurs and the incident would otherwise be reportable under paragraphs (a) and (b) of this section, you must make the report within eight (8) hours of the time the incident is reported to you or to any of your agent(s) or employee(s).
(Cross Reference: 1904.39)
71-340. Providing records to government representatives.
(a) Basic requirement. When an authorized government representative asks for the records you keep under Subarticle 3, you must provide copies of the records within four (4) business hours.
(b) Implementation. (1) What government representatives have the right to get copies of my Subarticle 3 records? The government representatives authorized to receive the records are:
(i) A representative of the Secretary of Labor conducting an inspection or investigation under the Act;
(ii) A representative of the Secretary of Health and Human Services (including the National Institute for Occupational Safety and Health-NIOSH) conducting an investigation under section 20(b) of the Act; or
(iii) A representative of a State agency responsible for administering a State plan approved under section 18 of the Act.
(2) Do I have to produce the records within four (4) hours if my records are kept at a location in a different time zone? OSHA will consider your response to be timely if you give the records to the government representative within four (4) business hours of the request. If you maintain the records at a location in a different time zone, you may use the business hours of the establishment at which the records are located when calculating the deadline.
71-342. Requests from the Bureau of Labor Statistics for data.
(a) Basic requirement. If you receive a Survey of Occupational Injuries and Illnesses Form from the Bureau of Labor Statistics (BLS); or a BLS designee, you must promptly complete the form and return it following the instructions contained on the survey form.
(b) Implementation. (1) Does every employer have to send data to the BLS? No, each year the BLS sends injury and illness survey forms to randomly selected employers and uses the information to create the Nation's occupational injury and illness statistics. In any year, some employers will receive a BLS survey form and others will not. You do not have to send injury and illness data to the BLS unless you receive a survey form.
(2) If I get a survey form from the BLS, what do I have to do? If you receive a Survey of Occupational Injuries and Illnesses Form from the Bureau of Labor Statistics (BLS), or a BLS designee, you must promptly complete the form and return it, following the instructions contained on the survey form.
(3) Do I have to respond to a BLS survey form if I am normally exempt from keeping OSHA injury and illness records? Yes, even if you are exempt from keeping injury and illness records under 71-301 to 71-303, the BLS may inform you in writing that it will be collecting injury and illness information from you in the coming year. If you receive such a letter, you must keep the injury and illness records required by 71-305 to 71-315 and make a survey report for the year covered by the survey.
(4) Do I have to answer the BLS survey form if I am located in a State-Plan State? Yes, all employers who receive a survey form must respond to the survey, even those in State-Plan States.
(a) Basic requirement. If you were required to keep OSHA 200 Logs in 2001, you must post a 2001 annual summary from the OSHA 200 Log of occupational injuries and illnesses for each establishment.
(b) Implementation. (1) What do I have to include in the summary?
(i) You must include a copy of the totals from the 2001 OSHA 200 Log and the following information from that form:
(A) The calendar year covered;
(B) Your company name;
(C) The name and address of the establishment; and
(D) The certification signature, title and date.
(ii) If no injuries or illnesses occurred at your establishment in 2001, you must enter zeros on the total line and post the 2001 summary.
(2) When am I required to summarize and post the 2001 information?
(i) You must complete the summary by February 1, 2002; and
(ii) You must post a copy of the summary in each establishment in a conspicuous place or places where notices to employees are customarily posted. You must ensure that the summary is not altered, defaced or covered by other material.
(3) You must post the 2001 summary from February 1, 2002 to March 1, 2002.
You must save your copies of the OSHA 200 and 101 forms for five years following the year to which they relate and continue to provide access to the data as though these forms were the OSHA 300 and 301 forms. You are not required to update your old 200 and 101 forms.
The Act. The Act means the Occupational Safety and Health Act of Section 41-15-210 et. seq., Code of Laws of South Carolina, 1976. The definitions contained in Regulations Chapter 71, Article 1, Code of Laws of South Carolina and related interpretations apply to such terms when used in this Subarticle 3.
Establishment. An establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
(1) Can one business location include two or more establishments? Normally, one business location has only one establishment. Under limited conditions, the employer may consider two or more separate businesses that share a single location to be separate establishments. An employer may divide one location into two or more establishments only when:
(i) Each of the establishments represents a distinctly separate business;
(ii) Each business is engaged in a different economic activity;
(iii) No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and
(iv) Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information. For example, if an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.
(2) Can an establishment include more than one physical location? Yes, but only under certain conditions. An employer may combine two or more physical locations into a single establishment only when:
(i) The employer operates the locations as a single business operation under common management;
(ii) The locations are all located in close proximity to each other; and
(iii) The employer keeps one set of business records for the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other kinds of business information. For example, one manufacturing establishment might include the main plant, a warehouse a few blocks away, and an administrative services building across the street.
(3) If an employee telecommutes from home, is his or her home considered a separated establishment? No, for employees who telecommute from home, the employee's home is not a business establishment and a separate 300 Log is not required. Employees who telecommute must be linked to one of your establishments under 71-330(b)(3).
(4) Is the definition of establishment any different for the State of South Carolina and any political subdivision thereof [public sector]? Yes, for public sector only, an establishment is either (a) a single location where a specific governmental function is performed; or (b) that location which is the lowest level where attendance or payroll records are kept for a group of employees who perform the same governmental functions or who are in the same specific organizational unit, even though the activities are carried on at more than a single physical location.
Injury or illness. An injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning. (Note: Injuries and illness are recordable only if they are new, work-related cases that meet one or more of the Subarticle 3 recording criteria.)
Physician or Other Licensed Health Care Professional. A physician or other licensed health care professional is an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently perform, or be delegated the responsibility to perform, the activities described by this regulation.
You. "You" means an employer as defined in Regulations Chapter 71, Article 1, Code of Laws of South Carolina, 1976.
As used in this Subarticle, unless the context clearly requires otherwise
A. "Act" means Act 379, South Carolina Acts and Joint Resolutions, 1971, as amended, and State Laws enacted by the South Carolina General Assembly.
B. "State" means the State of South Carolina.
C. "Department" means the Department of Labor, State of South Carolina.
D. "Commissioner" means the Commissioner, Department of Labor, State of South Carolina.
E. "Day" means calendar day.
F. "Director" means that person in the Department of Labor, State of South Carolina, who is designated by the Commissioner as responsible for the supervision of the activities of the Occupational Safety and Health Division.
G. "Assistant Director of OSH Compliance" means that person in the Department of Labor, State of South Carolina, who is designated by the Commissioner as responsible for inspections made pursuant to the State's Occupational Safety and Health Laws.
H. "OSH Compliance Officer" means any individual commissioned by the Commissioner to enforce safety statutes, rules and regulations.
I. "Industrial Hygienist" means any individual commissioned by the Commissioner to enforce health statutes, rules and regulations.
J. "Employer" means any individual, partnership, joint venture, cooperative association or corporation doing business in the State and the State of South Carolina and any political subdivision thereof which employs one (1) or more persons to perform work within the State of South Carolina.
K. "Employee" means any person employed by an individual, partnership, joint venture, cooperative association or corporation doing business in the State, or by the State of South Carolina or any political subdivision thereof.
L. "Person" means any individual, partnership, joint venture, cooperative association, corporation, organization of employees, or the State of South Carolina or any political subdivision thereof.
M. "Party" means any individual, partnership, joint venture, cooperative association, corporation, State of South Carolina or any political subdivision thereof who shall have a vested interest to participate in a hearing conducted in accordance with this subarticle.
N. "Affected Employee" shall mean an employee of a cited employer who is exposed to the alleged hazard described in the citation, as a result of his employment.
O. "Rules and Regulations" means any rules and regulations promulgated and adopted by the Commissioner.
P. "Authorized Employee Representative" means a labor organization which has a collective bargaining relationship with the cited employer and which represents affected employees.
Q. "Representative" means any person, including an authorized employee representative, authorized by a party, survivor, or intervenor to represent him in a proceeding.
R. "Citation" means a written communication issued by the Commissioner or his designated representative pursuant to Section 41-15-280, Code of Laws, State of South Carolina, 1976, as amended. For the purpose of this section, the word "citation" includes "amended citation".
S. "Notification of Proposed Penalty" means a written communication issued by the Commissioner or his designated representative to an employer to notify the employer of penalties proposed under Section 41-15-320, Code of Laws, State of South Carolina, 1976, as amended.
A. The Assistant Director of OSH Compliance shall review the report of inspection of each OSH Compliance Officer and Industrial Hygienist. If the report indicates a violation of the state statutes or rules and regulations, there shall be issued to each employer, by certified mail or by personal service, a citation(s). Any citation shall be issued with reasonable promptness after the termination of the inspection. No citation shall be issued after the expiration of six (6) months following the occurrence of the inspection. Citations shall detail the conditions and circumstances of the violation, and refer to applicable statutes, rules and regulations or order alleged to have been violated. The citation shall also fix a reasonable time for abatement of the violation(s). Where a citation is issued as a result of a request for inspection under subarticle 5, R. 71-508, copies of the citation shall also be sent by certified mail to the employee or employee representative who made such request. If appropriate, a citation will be issued to an employer even where the employer abates immediately.
B. Notice of De Minimis Violation. The Assistant Director of OSH shall review the report of inspection of each OSH Compliance Officer and Industrial Hygienist. If the report indicates a violation of the state statutes or rules and regulations which have no direct or immediate relationship to safety or health, the Assistant Director may issue a notice of de minimis violation if he shall determine that such notice shall be beneficial to the health and safety of employees. Such notice of de minimis violation shall be in the form of a recommendation only and may not be contested.
C. The issuance of a citation does not constitute a determination that a violation of state statutes or rules and regulations has occurred, but it is an allegation that such may have occurred, unless there is a failure to protest as provided for in the regulations of the Occupational Health and Safety Review Board, R. 127-1.1, or, if protested, unless the violation is determined to have existed by a final order of the Occupational Health and safety Review Board or by a final adjudication in the courts of this State.
A. After, or concurrent with, the issuance of a citation, and within a reasonable time of the inspection, the Assistant Director for OSH Compliance shall notify the employer by certified mail or by personal service of the proposed penalty under Section 41-15-300, Code of Laws of South Carolina, 1976, as amended, or that no penalties are proposed.
B. The Assistant Director for OSH Compliance or his representative shall determine the amount of any proposed penalty, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations in accordance with Section 41-15-320, Code of Laws of South Carolina, 1976, as amended.
C. Appropriate penalties may be proposed with respect to alleged violation even though after being informed of such an alleged violation by the OSH Compliance Officer or the Industrial Hygienist, the employer immediately abates or initiates steps to abate such violation. A penalty shall not be proposed for de minimis violations.
D. The issuance of a proposed penalty does not constitute an obligation unless there is a failure to protest the proposed penalty as provided in R. 127-1.1 of the regulations of the Occupational Health and Safety Review Board or, if protested, unless the proposed penalty is determined to be an obligation under Section 41-15-320, Code of Laws of South Carolina, 1976, as amended, by an order of the Occupational Health and Safety Review Board or upon final adjudication in the courts of this State.
A. Upon receipt of a citation under the Act, the employer shall immediately post such citation, or a copy thereof, unedited, at or near each place an alleged violation referred to in the citation occurred, except as provided below. Where, because of the nature of the employer's operations, it is not practical to post the citation at or near each place of alleged violation, such citation shall be posted, unedited, in a prominent place where it will be readily observable by all affected employees. The employer shall take steps to ensure that the citation is not altered, defaced, or covered by other material. Notices of de minimis violations need not be posted.
B. Each citation, or a copy thereof, shall remain posted until the violation has been abated, or for three working days, whichever is later. The filing by the employer of a notice of protest under R. 71-407 shall not affect his posting responsibility under this section.
C. Any employer failing to comply with the provisions of paragraphs A and B of this regulation shall be subject to citation and penalty in accordance with the provisions of Section 41-15-320, Code of Laws of South Carolina, 1976, as amended.
71-404. Failure to Correct Violation for Which Citation Has Been Issued.
A. If any subsequent inspection discloses that an employer has failed to correct an alleged violation for which a citation has been issued within the period permitted for its correction, the Assistant Director for OSH Compliance shall notify the employer by certified mail or by personal service of such failure and of the penalty proposed under Section 41-15-320, South Carolina Code of Laws, 1976, as amended, by reason of such failure, and of a later date after which an additional penalty may be assessed for continued failure to correct the violation.
B. Any employer receiving a notification of failure to correct a violation and of proposed penalty may notify the Commissioner, in writing, that he intends to protest such notification of proposed penalty or citation. Such right to protest notification of failure to correct a violation or proposed penalty may be made by the employee, as well as the employer, by notifying the Commissioner, in writing. Such notice of protest shall comply with R. 127-1.1 of the rules of procedure of the Occupational Health and Safety Review Board.
C. Each notification of failure to correct a violation and of proposed penalty shall state that it will be deemed to be the final order of the Commissioner and not subject to review by any court or agency unless, within twenty (20) days from the date of receipt of such notification, the employer notifies the Commissioner in writing that he protests the notification or the proposed penalty. Such notice of protest shall comply with R. 127-1.1 of the rules of procedure of the Occupational Health and Safety Review Board.
A. Filing. If the employer has made a good faith effort to comply with the abatement period, but has not been able to do so by the prescribed date because of factors beyond his control, he may file a Petition for Modification of Abatement. The petition must be filed with the Assistant Director for Compliance no later than the end of the next working day following the date on which abatement was to have been completed. The petition shall state why the abatement cannot be completed within the prescribed time, the steps taken to achieve compliance, and what interim steps are being taken to protect the employees from the cited hazard. Affected employees and their authorized representative (if any) must be also notified in writing of the petition by posting of the petition at the same location the citation is posted, and the petition shall remain posted for a period of ten (10) days.
B. Incomplete Petition for Modification of Abatement. Should a Petition for Modification of Abatement be submitted to the Assistant Director of OSH Compliance which does not meet the requirements of this regulation, the Assistant Director of OSH Compliance shall immediately notify the employer of the deficiency and may allow up to an additional five (5) days to meet the requirements. Incomplete Petitions for Modification of Abatement may be objected to by the Assistant Director of OSH Compliance.
C. Objections to Petition for Modification of Abatement. Affected employees or their authorized representative may file an objection in writing to a petition for modification of abatement with the Assistant Director for OSH Compliance. Failure to file such objection within ten (10) days of the date of posting of such petition or of service upon an authorized representative shall constitute a waiver of any further right to object to the petition unless good cause is shown for such failure. Where any petition is objected to by the Assistant Director of OSH Compliance or affected employees, the petition, citation, and any objections shall be immediately forwarded to the Occupational Health and Safety Review Board for determination.
D. Service. Unless otherwise ordered, service may be accomplished by postage prepaid first class mail or by personal delivery. Service is deemed effective at the time of mailing (if by mail) or at the time of personal delivery (if by personal delivery). Service and notice to employees represented by an authorized employee representative shall be deemed accomplished in the manner prescribed in paragraph B of this regulation.
E. Failure to File. Where the employer fails to file with the Assistant Director for OSH Compliance a Petition for Modification of Abatement within the time prescribed in paragraph A of this regulation, and the normal twenty (20) day period for citation protest has passed, the abatement period shall be deemed a final order of the Commissioner unless good cause is shown for such failure. Where any filing required by this regulation is made or proposed to be made later than the period specified therefor herein, the Assistant Director for OSH Compliance may nevertheless consider the merits of the objection or petition if he finds that there was a good cause for such delay and that such delay was not excessive. If the Assistant Director for OSH Compliance shall determine that there was not good cause or that the delay was excessive, he shall recommend the denial of and thereby object to the Petition for Modification of Abatement in accordance with paragraph C of this regulation.
A. Authority. At the request of either the employer, an affected employee, or representative of employees, the Assistant Director for OSH Compliance or his designated representative may hold an informal conference for the purpose of discussing any issues raised by an inspection, citation, notice of proposed penalty, or notification of failure to correct violation. The settlement of any issue at such conference shall be subject to these rules and regulations of procedure. If the conference is requested by the employer, an affected employee or his representative shall be afforded an opportunity to participate, at the discretion of the Assistant Director for OSH Compliance or his designated representative. Any party may be represented by legal counsel. No such conference or request for conference shall operate as a stay of the twenty (20) day period for filing a Notice of Protest, and no such conference or request for conference will be held or accepted subsequent to receipt of a Notice of Protest as defined in the regulations of the Occupational Health and Safety Review Board, R. 127-1.1.
B. Requesting Informal Conference. Request for an informal conference may be made orally or in writing to the Assistant Director for OSH Compliance.
C. (Deleted).
D. Conduct of Informal Conference. The Assistant Director for OSH Compliance shall conduct the informal conference or designate his representative to conduct same.
E. Location. Informal conferences may be conducted by the Assistant Director or his representative at a site convenient to the party requesting such conference.
F. Time. Informal conferences will be conducted as soon as possible after such request is made.
G. Decision. To the extent possible a decision of the Assistant Director for OSH Compliance or his designated representative will be made at the close of the informal conference and communicated promptly to the parties.
A. Any employer to whom a citation or notice of proposed penalty has been issued may serve a notice of protest upon the Commissioner that it does protest such citation, proposed penalty, abatement date, or any combination thereof in accordance with R. 127-1.1 of the rules of procedure of the Occupational Health and Safety Review Board.
B. Any employee or any employee representative of an employer to whom a citation or notice of proposed penalty has been issued, may serve a notice of protest upon the Commissioner that it does protest such citation, proposed penalty, abatement date, or any combination thereof in accordance with R. 127-1.1 of the rules of procedure of the Occupational Health and Safety Review Board.
Where the employer, employee or employee representative fails to file a notice of protest pursuant to R. 127-1.1 of the rules of procedure of the Occupational Health and Safety Review Board, the citation and proposed penalty shall be deemed a final order of the Commissioner not subject to administrative review unless good cause is shown for such failure. Where the filing of notice of protest is made later than the period specified, the Commissioner may nevertheless waive his objection to the late protest, if he finds that there was good cause for such delay and that the delay was not excessive.
71-409. Withdrawal, Modification or Amendment to Citation and Proposed Penalty.
A. The Occupational Safety and Health Division of the Department of Labor may withdraw, modify or amend a citation and/or proposed penalty during the twenty (20) day period before the citation and/or proposed penalty becomes a final order of the Commissioner, provided there has been no protest filed.
B. After the expiration of the twenty (20) day period or after Notice of Protest has been filed, the Commissioner may on his own motion withdraw, modify or amend a citation and/or proposed penalty, provided same does not unduly prejudice the position of any party.
C. After the Notice of Protest is filed and received by the Occupational Health and Safety Review Board, any action to withdraw, modify, or amend a citation or proposed penalty shall be according to the rules of the Occupational Health and Safety Review Board.
Section 41-15-210, South Carolina Code of Laws, provides for the promulgation by the Commissioner of Labor of Occupational Safety and Health Standards covering employment and places of employment in businesses within the State of South Carolina. It further authorizes the Commissioner of Labor to enforce these standards through assessment of penalties for violations. The law also authorizes the Commissioner of Labor to conduct inspections and to question employers and employees. The purpose of this subarticle is to provide procedures and policies for the enforcement of the inspections, investigations, issuance of citations and proposed assessments of penalty provisions of the state laws and the rules and regulations of the Commissioner.
As used in this subarticle, unless the context clearly requires otherwise:
A. "State" means the State of South Carolina.
B. "Department" means the Department of Labor, State of South Carolina.
C. "Commissioner" means the Commissioner, Department of Labor, State of South Carolina.
D. "Employer" means any individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, and the State of South Carolina and any political subdivision thereof.
E. "Employee" means any person employed by an individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, or the State of South Carolina or any political subdivision thereof.
F. "Safety Specialist" means any individual commissioned by the Department of Labor, the State of South Carolina or any political subdivision thereof to enforce safety and health laws, rules and regulations.
G. "Person" means any individual, partnership, joint venture, cooperative association, corporation, organization of employees, the State of South Carolina and any political subdivision thereof.
H. "Party" means any individual, partnership, joint venture, cooperative association, corporation, the State of South Carolina and any political subdivision thereof who shall have a vested interest to participate in a hearing conducted in accordance with this subarticle.
I. "Affected Employee" means any employee who would be affected by the grant or denial of any petition.
J. "Standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment or places of employment.
K. [Reserved]
L. [Reserved]
M. [Reserved]
N. "Lost Workdays" is 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 illness.
O. "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary service; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
P. "Director of Inspection" means that person in the Department of Labor, State of South Carolina, who is responsible for inspections made pursuant to the state's Occupational Safety and Health Laws and, that person in other state agencies having the responsibility of directing the inspection force of that agency which has a contractual agreement with the Department of Labor, State of South Carolina, to enforce the state's Occupational Safety and Health Laws.
A. Every employer subject to the occupational safety and health laws rules and regulations of the State of South Carolina shall post a conspicuous notice to be furnished by the State of South Carolina in a prominent place in each factory, plant, establishment, construction site or other area, workplace or environment where work is performed by an employee informing him of the protections and obligations provided for in the laws, rules and regulations, and that further information concerning the such laws, rules and regulations is available at the Department of Labor, State of South Carolina.
B. An employer failing to comply with the provisions of this regulation may be subject to citation and penalty, as provided in Section 41-15-280 and 41-15-320, South Carolina Code of Laws.
A. As provided for in Section 41-15-260, South Carolina Code of Laws, the Commissioner, his representative, or Safety Specialist, may examine and inspect at reasonable hours, as often as practicable, all places, sites or areas where employment comes under the jurisdiction of the Commissioner for compliance with any and all rules and regulations promulgated under this Act.
B. The Commissioner of Labor may subpoena witnesses, take and preserve testimony, examine witnesses, administer oaths and enter any place, site or areas where employment comes under the jurisdiction of the Commissioner and interrogate any person employed therein or connected therewith or the proper officers of a corporation or employer, or he may file a written or printed list of interrogatories and require full and complete answers to them to be returned under oath within ten (10) days of the receipt of such list.
A. No advance notice shall be given with regard to inspections except as shall be authorized by the Commissioner.
(1) Advance notice may be given in the case of apparent imminent danger to enable the employer to abate the danger as quickly as possible;
(2) Where the inspection will be conducted after regular business hours or in circumstances where special preparations are necessary for an inspection;
(3) Where reasonable necessary to assure the presence of representatives of the employer and employees or the appropriate personnel needed to aid in the inspection; and
(4) In other circumstances where the Commissioner in consultation with the Safety Specialist, determines that the giving of advance notice would enhance the probability of an effective and thorough inspection. Except in unusual circumstances, no notice of inspection shall be given more than 24 hours before an inspection is scheduled to take place.
B. Any employee of the Department of Labor or other agency operating under contract with the Department of Labor in the implementation of the State Plan who gives unauthorized advance notice of an inspection will be disciplined by the administrative head of the agency after a hearing before the Commissioner of Labor. Such discipline may be as severe as discharge of duty.
A. Subject to R. 71-503, inspections shall take place at such times and in such places of employment as the Commissioner may direct. Where appropriate reinspection may be directed to clarify questions, resolve objections or to ascertain if an employer has complied with an agreement or order to abate, or notice or abatement of a hazardous condition. Safety Specialists when making such inspections, shall present their credentials to the highest official of the employer available, explain the nature and purpose of the inspection, and indicate generally the scope of the inspection, those records he wishes to review and employees he wishes to question. However, designation of records or persons at this point shall not preclude access to additional records or questioning of additional persons if required in the opinion of the Safety Specialist.
B. The Safety Specialist or a designated representative of the Commissioner shall have authority to take photographs and samples, employ other reasonable investigative techniques, and to question privately any employer, owner, operator, agent, or employee of an establishment.
71-506. Representatives of Employers and Employees.
A. The Safety Specialist shall be in charge of inspections and questioning of persons. A representative of the employer and a representative authorized by employees shall be afforded an opportunity to accompany a Safety Specialist during any inspection provided for under this subarticle for the purpose of aiding such inspections. In places of employment where groups of employees are represented by different representatives, a different employee representative for different phases of the inspection is acceptable to the extent it does not interfere with the inspection. In the interest of affording all employees an opportunity to be represented, more than one representative may accompany the Safety Specialist during any phase of the inspection, if the Safety Specialist so directs.
B. The Safety Specialist is authorized to deny the right of accompaniment under this regulation to any person whose conduct interferes with a fair and orderly investigation or as required with respect to security matters or trade secrets.
C. The provisions of R. 71-505 and R. 71-506 shall be implemented so as to avoid any undue and unnecessary disruption of the normal operations of the employer's plant.
D. A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Commissioner, his assistant, or inspector, within limits of paragraphs A, B, and C above, during the physical inspection of any workplace for the purpose of aiding such inspection. No employee shall suffer any loss of wages or other benefits which would normally accrue to him because of his participation in the walk-around inspection. Such violations of this regulation shall be reported to the Commissioner of Labor. Where there is no authorized representative, the Commissioner, his assistant, or inspector shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.
During an inspection any employee shall be afforded a reasonable opportunity to consult the Safety Specialist in private. In those cases where there is no authorized employee representative, the Safety Specialist shall consult with a reasonable number of employees concerning matters of safety and health in the workplace. In other circumstances, the Safety Specialist may consult with a reasonable number of employees in each workplace and work area concerning matters of occupational safety and health to the extent necessary for the conduct of an effective investigation. Prior to, during or subsequent to any inspection of a workplace, any employee or representative of employees may notify the Commissioner or Safety Specialist of any violation of the laws, rules or regulations which they have reason to believe exists in such workplace.
Any employee or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving written notice to the Commissioner or his authorized representative of such violation or danger. Any such notice shall set forth with reasonable particularity the grounds for the notice and whether it concerns an imminent danger. The notice shall be in writing and signed by the employees or representatives of employees, and a copy shall be provided the employer or his agent by the Commissioner or his designated representative no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available by the Department of Labor, State of South Carolina. If, upon receipt of such notification, the Commissioner determines there are reasonable grounds to believe that such violation or danger exists, he shall cause special inspection to be made as soon as practicable to determine if such violation or danger exists. In such inspections, the Safety Specialist shall not be limited to matters referred to in the request for inspection.
Failure to Issue Citation. If, pursuant to R. 71-507 and R. 71-508 of this subarticle, the Commissioner finds that a citation is not warranted with respect to any notice of violation in writing by an employee or representative of employees received under R. 71-508, he shall notify such employee(s) or representative(s) in writing of the reason for not issuing a citation or not conducting such inspection. Such employee(s) or representative(s) shall, upon request, be given an opportunity to seek review of such determination by stating his views in writing to the Commissioner. After considering such views, the Commissioner may issue a citation, order a reinspection, or reverse, affirm or modify the determination of the Director of Inspections. The Commissioner shall furnish the employee(s) or representative(s) of employees a written statement of the reasons for the final disposition of the case.
Upon completion of an inspection provided for under this part, the Safety Specialist shall confer with the employer or his representative and informally advise the employer of apparent safety and health violations disclosed by the investigation. As provided in Section 41-15-290, South Carolina Code of Laws, if the Safety Specialist concluded that conditions or practices exist which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through enforcement procedures otherwise provided by State Laws, rules and regulations, he shall immediately inform the employer of such danger. If the employer does not immediately abate the danger, he shall inform the Commissioner and the affected employee(s) of the danger. The Commissioner may direct the Safety Specialist to Red Tag the area which contains such imminent danger and no person shall enter the area without the permission of the Commissioner except those persons entering the area for sole purpose of making the area safe.
Upon refusal by any employer to permit a Safety Specialist to enter into any place of employment or any place therein, or with respect to any condition, structure, machine, apparatus, device, equipment or materials therein, or to review any records, to question any employer, owner, operator, agent, or employee, or to permit a representative of employees to accompany the Safety Specialist during an inspection in accordance with the provision of R. 71-506, the Safety Specialist shall terminate the inspection or he may confine the inspection to other areas, structures, machines, records, or interviews concerning which no objection is raised. The Safety Specialist shall immediately report the refusal and the grounds to the Director of Inspections. The Director of Inspections shall immediately consult with the Commissioner who shall promptly seek appropriate compulsory process.
Any permission to enter, interrogate any person(s), or review records shall not constitute a waiver of any cause of action, citation, or penalty under the law, rules and regulation, and Safety Specialists are not authorized to grant any such waiver.
SUBARTICLE 6.
SOUTH CAROLINA OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR GENERAL INDUSTRY AND PUBLIC SECTOR MARINE TERMINALS
NOTE- This subarticle is identical to the federal regulations contained in 29 CFR 1910, entitled "Occupational Safety and Health Standards for General Industry", except for the following modifications:
A. Subparts A and B of 29 CFR 1910 of federal standards do not apply to South Carolina, except that Section 1910.19 in Subpart B does apply.
B. Section 1910.7, the definition of "nationally recognized testing laboratory" has been revised to read:
"'Nationally recognized testing laboratory' means an organization which has been evaluated and recognized by the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA), in accordance with the requirements of 29 CFR 1910.1 and Appendix A of that section."
C. Section 1910.107(a)(2) has been revised to read:
"1910.107(a)(2) Spraying area. Any area in which dangerous quantities of flammable or combustible vapors, mists, residues, dusts or deposits are present due to the operation of spray processes. A spray area shall include:
(i) The interior of spray booths and rooms except as specifically provided in paragraph (j)(4) of this section.
(ii) The interior of ducts exhausting from spraying processes.
(iii) Any area in the direct path of spraying operations."
D. Section 1910.107(c)(6) has been revised to read:
"1910.107(c)(6) Equipment and wiring type approved. Electrical wiring and equipment not subject to deposits of combustible residues but located in a spraying area as defined herein shall be of the explosion-proof or other type approved for Class I, Division 1, Group D locations and shall otherwise conform to the provisions of Subpart S of this part, for Class I, Division 1, Hazardous Locations. Electrical wiring and equipment located adjacent to a spraying area, as herein defined, shall conform to either (i), (ii), (iii) or (iv) below.
(i) Equipment outside of, but within twenty feet horizontally, and ten feet vertically, of any spraying area, and not separated by partitions, shall not produce sparks under normal operating conditions, and shall otherwise conform to the provisions of Subpart S of this Part for Class I, Division 2 locations. (See Figure H-1)
(ii) If spraying operations are conducted within a closed top, open face or front booth or room, the electrical wiring and equipment outside of the booth or room, but within the space shown in Figures H-2 and H-3, shall not produce sparks under normal operation conditions, and shall otherwise conform to the provisions of Subpart S of this Part for Class I, Division 2 locations. The space within three feet in all directions from openings other than the open face or front shall be considered as Class I, Division 2. The Class I, Division 2 locations in Figures H-2 and H-3 shall extend from the open face or open front of the spray booth or room in accordance with the following:
(a) If the ventilation system is interlocked with the spraying equipment so as to make the spraying equipment inoperable when the ventilation system is not in operation, the space shall extend five feet from the open face or open front of the booth or room, and as otherwise shown in Figure H-2.
(b) If the ventilation system is not interlocked with the spraying equipment so as to make the spraying equipment inoperable when the ventilation system is not in operation, the space shall extend ten feet from the open face or open front of the booth or room, and as otherwise shown in Figure H-3.
(iii) If spraying operations are conducted within an open top booth, the electrical wiring and equipment within the space five feet above the booth and within the space shown in Figure H-3 as a Class I, Division 2 location adjacent to the opening, shall not produce sparks under normal operating conditions, and shall otherwise conform to the provisions of Subpart S of this Part for Class I, Division 2 locations.
(iv) If spraying operations are confined to an enclosed spray booth or room, the space adjacent to the booth or room shall be considered as nonhazardous due to the spraying operations, except for the space within three feet in all directions from any openings in the booth or room. Electrical wiring and equipment within the space within three feet in all directions from any opening shall not produce sparks under normal operating conditions, and shall otherwise conform to the provisions of Subpart S of this Part for Class I, Division 2 locations."
E. Section 1910.108(e) has been revised to read:
"1910.108(e) Electrical and other sources of ignition.
(1) Vapor areas. There shall be no open flames, sparks producing devices, or heated surfaces having a temperature sufficient to ignite vapors in any area as defined in paragraph (2) below.
(i) When maintenance operation involve the use of welding, burning or grinding equipment, such operations shall be done under the supervision of properly designated personnel with adequate fire extinguishing equipment.
(2) Except as specifically permitted in paragraph (h)(3) of this section, relating to electrostatic apparatus, or where suitably separated by tight partitions, electrical installations shall conform to the requirements of Hazardous Locations in Subpart S of this Part, as follows:
(i) Pits below the floor within twenty feet horizontally of the vapor source shall be classed as Class I, Division. 1.
(ii) From the vapor source, a radial distance of five feet shall be classed as Class I, Division 1.
(iii) From the vapor source the space between five feet radial distance and eight feet radial distance shall be classed as Class I, Division 2. The vapor source shall be considered to extend from the liquid surface or wetted surface to the floor.
(iv) Horizontally from the vapor source for a radial distance twenty feet and vertically for three feet above the floor to the floor shall be classed as Class I, Division 2.
(3) The presence of ordinary infrared drying lamps is prohibited in any vapor area; however, their use is permitted when adequate ventilation, conforming to paragraph (b) of this section, is maintained in such a manner that their location is not within the vapor area.
(4) Unless specifically approved for locations containing both deposits of readily ignitable residue and explosive vapors, there shall be no electrical equipment in the vicinity of dip tanks, or associated drain boards or drying operations, which are subject to splashing or dripping of dip tank liquids. However, wiring in rigid conduit or in threaded boxes and fittings containing no taps, splices, or terminal connections is permitted."
F. 29 CFR 1917, entitled "Marine Terminals" is incorporated into this subarticle, without any modifications, and applies to marine terminals in the public sector only.
G. At least two employees are located outside the IDLH atmosphere; however, prior to the assembly of the entire firefighting team, a qualified incident commander may allow two or more employees to enter the IDLH atmosphere with one employee located outside the IDLH atmosphere until the arrival of additional employees, provided that the following conditions are met:
1. the incident commander has completed the Incident Command System course or its equivalent as certified by the South Carolina Fire Academy;
2. the employees who enter the IDLH atmosphere have completed the Basic Firefighter Course or its equivalent as certified by the South Carolina Fire Academy;
3. the incident commander has determined that the standard staffing pattern is not feasible;
4. the incident commander has determined that the entry can be made safely with the personnel on-site; and
5. arrival of additional employees to complete the standard staffing pattern is imminent.
SUBARTICLE 7.
SOUTH CAROLINA OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR THE CONSTRUCTION INDUSTRY
SUBARTICLE 8.
SOUTH CAROLINA OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR AGRICULTURE OPERATIONS
SUBARTICLE 9.
RULES OF AGENCY PRACTICE AND PROCEDURE CONCERNING SOUTH CAROLINA DEPARTMENT OF LABOR, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH ACCESS TO EMPLOYEE MEDICAL RECORDS
South Carolina Division of Occupational Safety and Health (SC/OSH) access to employee medical records will in certain circumstances be important to the agency's performance of its statutory functions. Medical records, however, contain personal details concerning the lives of employees. Due to the substantial personal privacy interests to personally identifiable employee medical information will be exercised only after the agency has made a careful determination of its need for this information, and only with appropriate safeguards to protect individual privacy. Once this information is obtained, SC/OSH examination and use of it will be limited to only that information needed to accomplish the purpose for access. Personally identifiable employee medical information will be retained by SC/OSH only for so long as needed to accomplish the purpose for access, will be kept secure while being used, and will not be disclosed to other agencies or members of the public except in narrowly defined circumstances. This subarticle establishes procedures to implement these policies.
A. Except as provided in paragraphs C through F below, this regulation applies to all requests by SC/OSH personnel and by federal OSHA personnel to obtain access to records in order to examine or copy personally identifiable employee medical information, whether or not pursuant to the access provisions of Article 6, Section 1910.20(e).
B. For the purposes of this subarticle, "personally identifiable employee medical information" means employee medical information accompanied by either direct identifier (name, address, social security number, payroll number, etc.) or by information which could reasonably be used in the particular circumstances indirectly to identify specific employees (e.g., exact age, height, weight, race, sex, date of initial employment, job title, etc.)
C. This subarticle does not apply to OSHA access to, or the use of, aggregate employee medical information or medical records on individual employees which is not in a personally identifiable form. This subarticle does not apply to records required by Subarticle 3, to death certificates, or to employee exposure records, including biological monitoring records treated by Subarticle 6, Section 1910.20(c)(5) or by specific occupational safety and health standards as exposure records.
D. This subarticle does not apply where OSHA compliance personnel conduct an examination of employee medical records solely to verify employer compliance with the medical surveillance recordkeeping requirements of an occupational safety and health standard, or with Subarticle 6, Section 1910.20. An examination of this nature shall be conducted on-site, and, if requested, shall be conducted under the observation of the recordholder. The OSHA compliance personnel shall not record and take off-site any information from medical records other than documentation of the fact of compliance or non-compliance.
E. This subarticle does not apply to agency access to, or the use of, personally identifiable employee medical information obtained in the course of litigation.
F. This subarticle does not apply where a written directive by the Commissioner of Labor authorizes appropriately qualified personnel to conduct limited reviews of specific medical information mandated by an occupational safety and health standard, or of specific biological monitoring test results.
G. Even if not covered by the terms of this subarticle, all medically related information reported in a personally identifiable form shall be handled with appropriate discretion and care befitting all information concerning specific employees. There may, for example, be personal privacy interest involved which militate against disclosure of this kind of information to the public.
A. Commissioner of Labor. The Commissioner of Labor, State of South Carolina, shall be responsible for the overall administration and implementation of the procedures contained in this subarticle, including making final SC/OSH determinations concerning:
(1) Access to personally identifiable employee information (R. 71-903), and
(2) inter-agency and federal agency transfer or public disclosure of personally identifiable employee medical information (R71-912).
B. SC/OSH Medical Records Officer. The Commissioner of Labor shall designate an SC/OSH official with experience or training in the evaluation, use, and privacy protection of medical records to be the SC/OSH Medical Records Officer. The SC/OSH Medical Records Officer shall report directly to the Commissioner of Labor on matters concerning this subarticle and shall be responsible for:
(1) making recommendations to the Commissioner of Labor as to the approval or denial of written access orders (R. 71-903),
(2) assuring that written access orders meet the requirements of R. 71-903B and R. 71-903C of this subarticle,
(3) responding to employee collective bargaining agent, and employer objections concerning written access orders (R. 71-905),
(4) regulating the use of direct personal identifiers (R. 71-906),
(5) regulating internal agency use and security of personally identifiable employee medical information (R. 71-907 through R. 71-909),
(6) assuring that the results of agency analyses of personally identifiable medical information are, where appropriate, communicated to employees (R. 71-910),
(7) preparing an annual report of SC/OSH's experience under this subarticle (R. 71-911), and
(8) assuring that advance notice is given of intended inter-agency or federal agency transfers or public disclosures (R. 71-912).
C. Principal SC/OSH Investigator. The Principal SC/OSH Investigator shall be the SC/OSH employee in each instance of access to personally identifiable employee medical information who is made primarily responsible for assuring that the examination and use of this information is performed in the manner prescribed by a written access order and the requirements of this subarticle (R. 71-904 through R. 71-912). When access is pursuant to a written access order, the Principal SC/OSH Investigator shall be professionally trained in medicine, public health, or allied fields (epidemiology, toxicology, industrial hygiene, biostatistics, environmental health, etc.).
A. Requirement for written access order. Except as provided in paragraph D of this regulation, each request by an SC/OSH or federal OSHA representative to examine or copy personally identifiable employee medical information contained in a record held by an employer or other recordholder shall be made pursuant to a written access order which has been approved by the Commissioner of Labor upon the recommendation of the SC/OSH Medical Records Officer. If deemed appropriate, a written access order may constitute, or be accompanied by, an administrative subpoena.
B. Approval criteria for written access order. Before approving a written access order, the Commissioner of Labor and the SC/OSH Medical Records Officer shall determine that:
(1) The medical information to be examined or copied is relevant to a statutory purpose and there is a need to gain access to this personally identifiable information, and
(2) the personally identifiable medical information to be examined or copied is limited to only that information needed to accomplish the purpose for access, and
(3) the personnel authorized to review and analyze the personally identifiable medical information are limited to those who have a need for access and have appropriate professional qualifications.
C. Content of written access order. Each written access order shall state with reasonable particularity:
(1) The statutory purpose for which access is sought,
(2) A general description of the kind of employee medical information that will be examined and why there is a need to examine personally identifiable information,
(3) Whether medical information will be examined on-site, and what type of information will be copied and removed off-site,
(4) The name, address, and phone number of the Principal SC/OSH Investigator or federal Principal OSHA Investigator and the names of any other authorized persons who are expected to review and analyze the medical information,
(5) The name, address, and phone number of the SC/OSH Medical Records Officer or the federal OSHA Medical Records Officer, and
(6) The anticipated period of time during which SC/OSH or federal OSHA expects to retain the employee medical information in a personally identifiable form.
D. Special situations. Written access orders need not be obtained to examine or copy personally identifiable employee medical information under the following circumstances:
(1) Specific written consent. If the specific written consent of an employee is obtained pursuant to Subarticle 6, Section 1910.20(e)(2)(ii), and the agency or an agency employee is listed on the authorization as the designated representative to receive the medical information, then a written access order need not be obtained. Whenever personally identifiable employee medical information is obtained through specific written consent and taken off-site, a Principal SC/OSH Investigator shall be promptly named to assure protection of the information, and the SC/OSH Medical Records Officer shall be notified of this person's identify. The personally identifiable medical information obtained shall thereafter be subject to the use and security requirements of R. 71-907 through R. 71-912 of this subarticle.
(2) Physician consultations. A written access order need not be obtained where an SC/OSH or federal OSHA staff or contact physician consults with an employee's physician concerning an occupational safety and health issue. In a situation of this nature, the SC/OSH or federal OSHA physician may conduct on-site evaluation of employee medical records in consultation with the employer's physician, and may make necessary personal notes of his or her findings. No employee medical records, however, shall be taken off-site in the absence of a written access order or the specific written consent of an employee, and no notes of personally identifiable employee medical information made by the SC/OSH or federal OSHA physician shall leave his or her control without the permission of the SC/OSH Medical Records Officer.
71-904. Presentation of Written Access Order and Notice to Employees.
A. The Principal SC/OSH Investigator, or someone under his or her supervision, shall present at least two (2) copies each of the written access order and an accompanying cover letter to the employer prior to examining or obtaining medical information subject to a written access order. At lease one copy of the written access order shall not identify specific employees by direct personal identifier. The accompanying cover letter shall summarize the requirements of this subarticle and indicate that questions or objections concerning the written access order may be directed to the Principal SC/OSH Medical Records Officer.
B. The Principal SC/OSH Investigator shall promptly present a copy of the written access order (which does not identify specific employees by direct personal identifier) and its accompanying cover to each collective bargaining agent representing employees whose medical records are subject to the written access order.
C. The Principal SC/OSH Investigator shall indicate that the employer must promptly post a copy of the written access order which does not identify specific employees by direct personal identifier, as well as post its accompanying cover letter (See Subarticle 6, Section 1910.20(e)(3)(ii)).
D. The Principal SC/OSH Investigator shall discuss with any collective bargaining agent and with the employer the appropriateness of individual notice to employees affected by the written access order. Where it is agreed that individual notice is appropriate, the Principal SC/OSH Investigator shall promptly provide to the employer an adequate number of copies of the written access order (which does not identify specific employees by direct personal identifier) and its accompanying cover letter to enable the employer either to individually notify each employee or to place a copy in each employee's medical file.
71-905. Objections concerning a Written Access Order.
All employee, collective bargaining agent, and employer written objections concerning access to records pursuant to a written access order shall be transmitted to the SC/OSH Medical Records Officer. Unless the agency decides otherwise, access to the records shall proceed without delay notwithstanding the lodging of an objection. The SC/OSH Medical Records Officer shall respond in writing to each employee's written objection to OSHA access. Where appropriate, the SC/OSH Medical Records Officer may revoke a written access order and direct that any medical information obtained by it be returned to the original recordholder or destroyed. The Principal SC/OSH Investigator shall assure that such instructions by the SC/OSH Medical Records Officer are promptly implemented.
Whenever employee medical information obtained pursuant to a written access order is taken off-site with direct personal identifiers included, the Principal SC/OSH Investigator shall, unless otherwise authorized by the SC/OSH Medical Records Officer, promptly separate all direct personal identifiers from the medical information, and code the medical information and the list of direct identifiers with a unique identifying number for each employee. The medical information with its numerical code shall thereafter be used and kept secured as though still in a directly identifiable form. The Principal SC/OSH Investigator shall also hand deliver or mail the list of direct personal identifiers with their corresponding numerical codes to the SC/OSH Medical Records Officer. The SC/OSH Medical Officer shall thereafter limit the use and distribution of the list of coded identifiers to those with a need to know its contents.
71-907. Internal Agency Use of Personally Identifiable Employee Medical Information.
A. The Principal SC/OSH Investigator shall in each instance of access be primarily responsible for assuring that personally identifiable employee medical information is used and kept secured in accordance with this Article.
B. The Principal SC/OSH Investigator, the SC/OSH Medical Records Officer, the Commissioner of Labor, and any other authorized person listed on a written access order may permit the examination or use of personally identifiable employee medical information by agency employees and contractors who have a need for access, and appropriate qualifications for the purpose for which they are using the information. No SC/OSH or federal OSHA employee or contractor is authorized to examine or otherwise use personally identifiable employee medical information unless so permitted.
C. Where a need exists, access to personally identifiable employee medical information may be provided to attorneys in the South Carolina Attorney General's Office and in the Office of the Solicitor of the U.S. Department of Labor, and to agency contractors who are physicians or who have contractually agreed to abide by the requirements of this subarticle and implementing agency directives and instructions.
D. SC/OSH and federal OSHA employees and contractors are only authorized to use personally identifiable employee medical information for the purpose for which it was obtained, unless the specific written consent of an employee is obtained as to a secondary purpose, or the procedures of R. 71-903 through R. 71-906 of this subarticle are repeated with respect to the secondary purpose.
E. Whenever practicable, the examination of personally identifiable employee medical information shall be performed on-site with a minimum of medical information taken off-site in a personally identifiable form.
A. Agency files containing personally identifiable employee medical information shall be segregated from other agency files. When not in active use, files containing this information shall be kept secured in a locked cabinet or vault.
B. The SC/OSH Medical Records Officer and the Principal SC/OSH Investigator shall each maintain a log of uses and transfers of personally identifiable employee medical information and lists of coded direct personal identifiers, except as to necessary uses by staff under their direct personal supervision.
C. The photocopying or other duplication of personally identifiable employee medical information shall be kept to the minimum necessary to accomplish the purposes for which the information was obtained.
D. The protective measures established by the subarticle apply to all worksheets, duplicated copies, or other agency documents containing personally identifiable employee medical information.
E. Intra-agency transfers of personally identifiable employee medical information shall be by hand delivery, United State mail, or equally protective means. Inter-office mailing channels shall not be used.
A. Consistent with SC/OSH record disposition procedures, personally identifiable employee medical information and list of coded direct personal identifiers shall be destroyed or returned to the original recordholder when no longer needed for the purposes for which they were obtained.
B. Personally identifiable employee medical information which is currently not being used actively but may be needed for future use shall be transferred to the SC/OSH Medical Records Officer. The SC/OSH Medical Records Officer shall conduct an annual review of all centrally-held information to determine which information is no longer needed for the purposes for which it was obtained.
71-910. Results of an Agency Analysis Using Personally Identifiable Employee Medical Information.
The SC/OSH Medical Record Officer shall, as appropriate, assure that the results of an agency analysis using personally identifiable employee medical information are communicated to the employees whose personal medical information was used as a part of the analysis.
The SC/OSH Medical Records Officer shall on an annual basis review SC/OSH's experience under this subarticle during the previous year, and prepare a report to the Commissioner of Labor which shall be made available to the public. This report shall discuss:
(1) the number of written access orders approved and a summary of the purposes for access,
(2) the nature and disposition of employee, collective bargaining agent, and employer written objections concerning SC/OSH access to personally identifiable employee medical information, and
(3) the nature and disposition of requests for inter-agency transfer or public disclosure of personally identifiable employee medical information.
71-912. Inter-Agency Transfer and Public Disclosure.
A. Personally identifiable employee medical information shall not be transferred to another agency or office outside of SC/OSH or disclosed to the public (other than to the affected employee or the original recordholder) except when required by law or when approved by the Commissioner of Labor.
B. Except as provided in paragraph C below, the Commissioner of Labor shall not approve a request for an inter-agency transfer of personally identifiable employee medical information, which has not been consented to by the affected employees, unless the request is by a public health agency which:
(1) needs the requested information in a personally identifiable form for a substantial public health purpose,
(2) will not use the requested information to make individual determinations concerning affected employees which could be to their detriment,
(3) has regulations or established written procedures providing protection for personally identifiable medical information substantially equivalent to that of this subarticle, and
(4) satisfies an exemption to the Privacy Act to the extent that the Privacy Act applies to the requested information (See 5 U.S.C. 552).
C. Upon the approval of the Commissioner of Labor, personally identifiable employee medical information may be transferred to:
(1) federal OSHA,
(2) the National Institute for Occupational Safety and Health (NIOSH),
(3) the South Carolina Attorney General's Office with respect to a specific action under South Carolina Statutes, and
(4) the U.S. Department of Justice with respect to a specific action under the Occupational Safety and Health Act or Privacy Act.
D. The Commissioner of Labor shall not approve a request for public disclosure of employee medical information containing direct personal identifiers unless there are compelling circumstances affecting the health or safety of an individual.
E. The Commissioner of Labor shall not approve a request for public disclosure of employee medical information which contains information which could reasonably be used indirectly to identify specific employees when the disclosure would constitute a clearly unwarranted invasion of personal privacy (See 5 U.S.C. 552(b)(6)).
F. Except as to inter-agency transfers as stated in paragraph C above, the SC/OSH Medical Records Officer shall assure that advance notice is provided to any collective bargaining agent representing affected employees and to the employer on each occasion that SC/OSH intends to either transfer personally identifiable employee medical information to another agency or disclose it to a member of the public other than to an affected employee. When feasible, the SC/OSH Medical Records Officer shall take reasonable steps to assure that advance notice is provided to affected employees when the employee medical information to be transferred or disclosed contains direct personal identifiers.
SUBARTICLE 10.
DISCRIMINATION AGAINST EMPLOYEES EXERCISING RIGHTS UNDER THE SOUTH CAROLINA OCCUPATIONAL SAFETY AND HEALTH ACT
A. The South Carolina Occupational Safety and Health Act, Section 41-15-210 et. seq., Code of Laws of South Carolina, 1976, hereinafter referred to as the Act, is a State statute of general application designed to regulate employment conditions relating to occupational safety and health and to achieve safer and healthier workplaces throughout the State. Also under Section 41-15-80 et. seq., Code of Laws of South Carolina, 1976, every person who has employees is required to furnish each of his employees employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm, and, further, to comply with occupational safety and health standards promulgated under the Act.
B. The Act provides, among other things, for the adoption of occupational safety and health standards, inspections and investigations of workplaces, and recordkeeping requirements. Enforcement procedures initiated by the Department of Labor, review proceedings before the Commissioner of Labor and his designated hearing officers, and express judicial review are provided under the Act. The Act reflects the General Assembly's policy of maintaining a state occupational safety and health program under the federal Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.
C. Employees and representatives of employees are afforded a wide range of substantive and procedural rights under the Act. Moreover, effective implementation of the Act and achievement of its goals depend in large part upon the active but orderly participation of employees, individually and through their representatives at every level of safety and health activity.
D. This subarticle deals essentially with the rights of employees afforded under Section 41-15-510, Code of Laws of South Carolina, 1976. Section 41-15-510 prohibits reprisals, in any form, against employees who exercise rights under the Act.
E. The South Carolina Occupational Safety and Health Program receives funding from the federal government and is subject to continuing evaluation by the United States Department of Labor. This subarticle, which is parallel to the federal anti-discrimination regulations, 29 CFR Part 1977, is thus promulgated to maintain compliance with federal law, including the grant program established by 29 U.S.C. Section 672(g).
The purpose of this subarticle is to make available in one place interpretations of the various provisions of Section 41-15-510 which will guide the Commissioner of Labor, his agents and designees in the performance of their duties thereunder unless and until otherwise directed by authoritative decisions of the courts, or concluding, upon reexamination of an interpretation, that it is incorrect.
71-1003. Requirements of Sections 41-15-510 and 41-15-520.
A. Section 41-15-510 provides in general that no person shall discharge or in any manner discriminate against any employee because the employee has:
(1) Filed any complaint under or relating to the Act;
(2) Instituted or caused to be instituted any proceeding under or relating to the Act;
(3) Testified or is about to testify in any proceeding under or relating to the Act; or
(4) Exercised on his own behalf or on behalf of others any right afforded by the Act.
B. Section 41-15-520 provides that any employee who believes that he has been discriminated against in violation of Section 41-15-510 may, within 30 days after such violation occurs, lodge a complaint with the Commissioner of Labor alleging such violation. The Commissioner of Labor shall then cause appropriate investigation to be made. If, as a result of such investigation, the Commissioner determines that the provisions of Section 41-15-510 have been violated, civil action may be instituted in the appropriate Court of Common Pleas, to restrain violations of Section 41-15-510 and to obtain other appropriate relief, including rehiring or reinstatement of the employee to his former position with back pay.
Section 41-15-510 specifically states that "no person shall discharge or in any manner discriminate against any employee" because the employee has exercised rights under the Act. The term "person" is used here in the same sense as in Section 11(c) of the federal OSHA Act, 29 U.S.C. Section 660(c), and is defined in 29 U.S.C. Section 652(4) as "one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any group of persons". Consequently, the prohibitions of Section 11(c) are not limited to actions taken by employers against their own employees. A person may be chargeable with discriminatory action against an employee of another person. Section 41-15-510 would extend to such entities as organizations representing employees for collective bargaining purposes, employment agencies, or any person in a position to discriminate against an employee. See Meek v. United States, 136 F.2d 679 (6th Cir., 1943); Bowe v. Judson C. Burns, 137 F.2d 37 (3rd Cir., 1943).
A. All employees are afforded the full protection of Section 41-15-510. The Act does not define the term "employee". However, the broad remedial nature of this legislation demonstrates a clear legislative intent that the existence of an employment relationship, for purposes of Section 41-15-510, is to be based upon economic realities rather than upon common law doctrines and concepts. See U.S. v. Silk, 331 U.S. 704 (1947); Rutherford Food Corporation v. McComb, 331 U.S. 722 (1947).
B. For purposes of Section 41-15-510, even an applicant for employment could be considered an employee. See NLRB v. Lamar Creamery, 246 F.2d 8 (5th Cir., 1957). Further, because Section 41-15-510 speaks in terms of any employee, it is also clear that the employee need not be an employee of the discriminator. The principal consideration would be whether the person alleging discrimination was an "employee" at the time of engaging in protected activity.
C. Section 41-15-210 makes it clear that the protection of the Act extends to employees in both the public and private sectors. Employees of the State, its departments and political subdivisions, as well as employees of municipalities and other governmental entities, are protected by Section 41-15-510.
A. Actions taken by an employer, or others, which adversely affect an employee may be predicated upon nondiscriminatory grounds. The proscriptions of Section 41-15-510 apply when the adverse action occurs because the employee has engaged in protected activities. An employee's engagement in activities protected by the Act does not automatically render him immune from discharge or discipline for legitimate reasons, or from adverse action dictated by non-prohibited considerations. See NLRB v. Dixie Motor Coach Corp., 128 F.2d 201 (5th Cir., 1942).
B. At the same time, to establish a violation of Section 41-15-510, the employee's engagement in protected activity need not be the sole consideration behind discharge or other adverse action. If protected activity was a substantial reason for the action, or if the discharge or other adverse action would not have taken place "but for" engagement in protected activity, Section 41-15-510 has been violated. See Mitchell v. Goodyear Tire & Rubber Co., 278 F.2d 562 (8th cir., 1960); Goldberg v. Bama Manufacturing, 302 F.2d 152 (5th Cir., 1962). Ultimately, the issue as to whether a discharge was because of protected activity will have to be determined on the basis of the facts in the particular case.
A. Discharge of, or discrimination against, an employee because the employee has filed "any complaint. . . under or relating to" occupational safety and health statutes, rules, or regulations is prohibited by Section 41-15-510. An example of a complaint made "under" the Act would be an employee request for inspection pursuant to Section 41-15-260. However, this would not be the only type of complaint protected by Section 41-15-510. The range of complaints "relating to" the Act is commensurate with the broad remedial purposes of this legislation and the sweeping scope of its application, which entails the full extent of the State's police power. (Cf. Cong. Rec., vol. 116 p. 42206 Dec. 17, 1970).
B. Complaints registered with other State agencies which have the authority to regulate or investigate occupational safety and health conditions are complaints "relating to" this Act. Likewise, complaints made to Federal or local agencies regarding occupational safety and health conditions would be "relating to" the Act. Such complaints, however, must relate to conditions at the workplace, as distinguished from complaints touching only upon general public safety and health.
C. Further, the salutory principles of the Act would be seriously undermined if employees were discouraged from lodging complaints about occupational safety and health matters with their employers. Such complaints to employers, if made in good faith, therefore would be relating to the Act, and an employee would be protected against discharge or discrimination caused by a complaint to the employer.
71-1010. Proceedings Under or Relating to the Act.
A. Discharge of, or discrimination against, any employee because the employee has "instituted, or caused to be instituted, any proceeding under or relating" to job safety and health is also prohibited by Section 41-15-510. Examples of proceedings which could arise specifically under the occupational safety and health statutes, rules, or regulations would include, but not necessarily be limited to, the following: inspections of worksites under Section 41-15-260 of the Act; proceedings to contest any citation, penalty, period of abatement, or other acts of the Commissioner under Section 41-15-310; proceedings to revoke or modify a variance under Section 41-15-250; proceedings for a writ of mandamus concerning imminently dangerous conditions under Section 41-15-290(d); proceedings before the courts of common pleas for review of any order or findings of the Commissioner under Section 41-15-310; proceedings in opposition to a modification of an abatement period under R. 71-405(C) of Subarticle 4; informal conferences under R. 71-406 of Subarticle 4; and, of course, proceedings to remedy prior discrimination under Section 41-15-520 of the Act.
B. Section 41-15-510 also protects employees who bring about proceedings "relating to" occupational safety and health statutes, rules, or regulations. A wide variety of proceedings in addition to those set forth above relate to job safety and or health. Such proceedings would include, but not be limited to, federal proceedings under the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et. seq., proceedings by other State agencies with jurisdiction over safety and health matters affecting employees, proceedings involving the Department of Labor or allied agencies under the general administrative law of the State (e.g., Section 1-23-150 or 30-4-30(c), Code of Laws of South Carolina, 1976, as amended), and any private legal remedies which an employee may have. The determination of whether any other proceeding relates to job safety or health must be made on a case-by-case basis. The considerations discussed in R. 71-1009 would be applicable.
Discharge of, or discrimination against, any employee because the employee has "testified, or is about to testify" in proceedings under or relating to the Act is also prohibited by Section 41-15-510. This protection would, of course, not be limited to testimony in proceedings instituted or caused to be instituted by the employee, but would extend to any statements given in the course of judicial, quasi-judicial, and administrative proceedings, including inspections, investigations, and administrative rule making or adjudicative functions. If the employee is giving or is about to give testimony in any proceeding under or relating to the Act, he would be protected against discrimination resulting from such testimony.
71-1012. Exercise Of Any Right Afforded By The Act.
A. In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or relating to the Act, Section 41-15-510 also protects employees from discrimination occurring because of the exercise "of any right afforded by such statutes, rules, or regulation". Certain rights are explicitly provided in the statutes, rules, or regulations; for example, there is a right to participate as a party in enforcement proceedings (See R. 71-410K of Subarticle 4). Certain other rights exist by necessary implication. For example, employees may request information from the Division of Occupational Safety and Health: such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Commissioner in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation.
B.(1) On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have an opportunity to request inspection of the workplace pursuant to Section 41-15-260 of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of Section 41-15-510 by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.
(2) However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks and subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the same circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition.
A. Who may file. A complaint of Section 41-15-510 discrimination may be filed by the employee himself, or by a representative authorized to do so on this behalf.
B. Nature of filing. No particular form of complaint is required.
C. Place of filing. Complaint should be filed with the Commissioner of Labor, Post Office Box 11329, Columbia South Carolina 29211.
D. Time for filing. (1) Section 41-15-520 provides that an employee who believes that he has been discriminated against in violation of Section 41-15-510 "may, within 30 days after such violation occurs," file a complaint with the Commissioner of Labor.
(2) A major purpose of the 30-day period in this provision is to allow the Commissioner to decline to entertain complaints which have become stale. Accordingly complaints not filed within 30 days of an alleged violation will ordinarily be presumed to be untimely.
(3) However, there may be circumstances which would justify tolling of the 30-day period on recognized equitable principles or because of strongly extenuating circumstances, e.g., where the employer has concealed, or misled the employee regarding the grounds for discharge or other adverse action; where the employee has, within the 30-day period, resorted in good faith to grievance-arbitration proceedings under a collective bargaining agreement or filed a complaint regarding the same general subject with another agency; or where the discrimination is in the nature of a continuing violation. In the absence of circumstances justifying a tolling of the 30-day period, untimely complaints will not be processed.
If the Commissioner or his designee determines that a complaint appears to allege discrimination on the basis of activity protected by Section 41-15-510, he shall cause an investigation to be made of the facts relating to such alleged discrimination. The Commissioner or his designee shall utilize any powers granted by statute in aid of such investigations, including but not limited to the use of subpoenas, entry upon premises, and other powers set forth in Section 41-3-110, Code of Laws of South Carolina, 1976.
Enforcement of the provisions of Section 41-15-510 is not only a matter of protecting rights of individual employees, but also of public interest. Attempts by an employee to withdraw previously filed complaint will not necessarily result in termination of the Commissioner's investigation. The Commissioner's jurisdiction cannot be foreclosed as a matter of law by unilateral action of the employee. However, a voluntary and uncoerced request from a complainant to withdraw his complaint will be given careful consideration and substantial weight as a matter of policy and sound enforcement procedure.
(1) An employee who files a complaint under Section 41-15-510 of the Act may also pursue remedies under grievance arbitration proceedings in collective bargaining agreements. In addition, the complainant may concurrently resort to other agencies for relief, such as the National Labor Relations Board. The Commissioner's jurisdiction to entertain Section 41-15-510 complaints, to investigate, and to determine whether discrimination has occurred, is independent of the jurisdiction of other agencies or bodies. The Commissioner may file action in the Court of Common Pleas regardless of the pendency of other proceedings.
(2) However, the Commissioner also recognizes the State and national policies favoring voluntary resolution of disputes under the procedures in collective bargaining agreements. See e.g., Boy's Markets, Inc. v. Retail Clerks, 398 U.S. 235 (1970); Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965); Carey v. Westinghouse Electric Co., 375 U.S. 261 (1964); Collier Insulated Wire, 192 NLRB No. 150 (1971). Cf. Section 41-17-10 et. seq., Code of Laws of South Carolina, 1976. By the same token, due deference should be paid to the jurisdiction of other forums established to resolve disputes which may also be related to Section 41-15-510.
(3) Where a complainant is in fact pursuing remedies other than those provided by Section 41-15-510, postponement of the Commissioner's determination and deferral to the results of such proceedings may be in order. See Burlington Truck Lines, Inc., v. U.S., 371 U.S. 156 (1962).
B. Postponement of determination. Postponement of determination would be justified where the rights asserted in other proceedings are substantially the same as rights under Section 41-15-510 and those proceedings are not likely to violate the rights guaranteed by Section 41-15-510. The factual issues in such proceedings must be substantially the same as those raised by Section 41-15-510 complaint, and the forum hearing the matter must have the power to determine the ultimate issue of discrimination. See Rios v. Reynolds Metals Co., F.2d (5th Cir., 1972), 41 U.S.L.W. 1049 (Oct. 10, 1972); Newman v. Avco Corp., 451 F.2d 743 (6th Cir., 1971).
C. Deferral to outcome of other proceedings. A determination to defer to the outcome of other proceedings initiated by a complainant must necessarily be made on a case-to-case basis, after careful scrutiny of all available information. Before deferring to the results of other proceedings, it must be clear that those proceedings dealt adequately with all factual issues, that the proceedings were fair, regular, and free of procedural infirmities, and that the outcome of the proceedings was not repugnant to the purpose and policy of the Act. In this regard, if such other actions initiated by a complainant are dismissed without adjudicatory hearing thereof, such dismissal will not ordinarily be regarded as determinative of the Section 41-15-510 complaint.
The Commissioner recognizes the essential nature of employee participation on walkaround inspections under Section 41-15-260 of the Act. Employees constitute a vital source of information to representatives of the Commissioner concerning the presence of workplace hazards. Employees should be able to freely exercise their statutory right to participate in walkarounds without fear of economic loss, such as the denial of pay for the time spent assisting OSHA compliance personnel during workplace inspections. Moreover, the employer is prohibited by statute from withholding wages or benefits for the time an employee is engaged in walkaround accompaniment, Section 41-3-70, Code of Laws of South Carolina, 1976. Therefore, in order to insure the unimpeded flow of information to the Commissioner's inspectors, as well as the unfettered statutory right of employees to participate in walkaround inspections, an employer's failure to pay employees for time during which they are engaged in walkaround inspections is discriminatory under Section 41-15-510.
71-1020. Employee Refusal To Comply With Safety Rules.
Employees who refuse to comply with occupational safety and health standards or valid safety rules implemented by the employer in furtherance of the Act are not exercising any rights afforded by the Act. Disciplinary measures taken by employers solely in response to employee refusal to comply with appropriate safety and health rules and regulations will not ordinarily be regarded as discriminatory action prohibited by Section 41-15-510. This situation should be distinguished from refusals to work, as discussed in R. 71-1012 of this subarticle.
A. The provisions of Section 41-15-510 and of this subarticle do not divest the United States Secretary of Labor or federal district courts of jurisdiction over employee complaints of discrimination under 29 U.S.C. Section 660(c). However, the United States Department of Labor may refer complaints alleging such discrimination to the South Carolina Department of Labor for investigation and appropriate action. Such complaints shall be evaluated (and, if appropriate, investigated and prosecuted) in the same manner as complaints of similar nature filed initially with the State. In such cases, the date of filing with the United States Department of labor shall be considered the filing date for purposes of the 30-day limitation in Section 41-15-520 (See R. 1015D(3) of this subarticle).
B. Because the provisions of this subarticle are designed to provide protection for employees parallel to that provided in 29 CFR Part 1977, federal evaluation and investigate of a discrimination complaint would normally be expected to result in the same determination as that made by the State. In certain circumstances, however, federal law may provide more adequate protection for the affected employee. The Commissioner of Labor may, in his discretion, refer complaints to the United States Department of Labor for investigation or prosecution where the affected employee would be more adequately protected thereby. In such cases, deference to the federal investigation or prosecution should be guided by the considerations discussed in R. 71-1018 of this subarticle.
SUBARTICLE 11.
RULES OF AGENCY PRACTICE AND PROCEDURE CONCERNING SOUTH CAROLINA DEPARTMENT OF LABOR, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH DISCLOSURE POLICY AND CONFIDENTIALITY OF TRADE SECRETS
All information reported to or otherwise obtained by the Commissioner of Labor or his representatives in performing their statutory duties within the South Carolina Division of Occupational Safety and Health (SC/OSH) which contains or which might reveal sensitive information shall be strictly controlled. Trade secrets shall be considered confidential and shall not be revealed in any manner whatever. In any proceedings involving the inspection of an employer's establishment, the issuance of a citation, the contest of a citation or the review of a determination of the Commissioner of Labor, the Commissioner or the Circuit Court shall issue such order as may be necessary or appropriate to effectively protect the confidentiality of sensitive material and trade secrets. For disclosure of medical and exposure records refer to Subarticle 6, Section 1910.20 and Subarticle 9.
A. "Sensitive Material"--Sensitive material shall include witness identity, witness statements, complainant identity, financial statements of employers, accident and injury records maintained by the employer (excluding medical and exposure records), consultation reports, discrimination files, correspondence and work product of legal counsel, and other information as deemed "sensitive" by the Commissioner of Labor.
B. "Trade Secret"--Trade secret shall be defined as an unpatented, secret, commercially valuable plan, appliance, formula, or process which is used in the making, preparing, compounding, treating or processing of articles or materials which are trade commodities and which is generally recognized as confidential by the employer.
C. "Trade Secret Material"--Trade secret material shall include records, plans, descriptions, diagrams, photographs, formula, physical samples, recordings or other physical manifestation by which the identity of a trade secret may be transmitted from one person to another. For the purposes of this regulation, trade secret materials specifically include, but are not limited to, inspection notes and diagrams, samples, preliminary and final investigatory documents, laboratory analysis (including, but not limited to, chromatograms and spectrograms) and other working papers constituting work product of SC/OSH inspection and enforcement officials which contain information which could reveal the existence or nature of a trade secret.
D. "Submitter"--A submitter shall be defined as any person from whom trade secret material is obtained, either voluntarily or involuntarily, regardless of whether or not said person owns the trade secret or is using it under license.
A. All Occupational Safety and Health (OSH) files will become available for public viewing after the employer has acknowledge receipt of the citation or after a decision has been made not to issue a citation. No OSH file will be available for viewing until such time as an employer has acknowledged receipt of the citation.
B. No documents may be disclosed in so far as they reveal sensitive material.
C. When any OSH citation is protested and until a final order is entered, documents from the OSH file will be released pursuant to Subarticle 4 of this Article.
D. Witness identity and witness statements, complainants' identity, financial statements, and accident or injury records maintained by the employer are exempted from disclosure.
E. OSH consultation, both verbal and written reports of findings and recommendations, are provided only to the employer requesting consultation are exempted from disclosure.
F. All OSH discrimination files are confidential and may be released only to the employee bringing the action or to the authorized representative of that employee and are exempted from disclosure.
G. All attorney working papers, opinions, and other correspondence and work product of legal counsel are exempted from disclosure.
H. Records of the Administrative Review Procedure maintained by the Administrative Law Clerk are not exempted from disclosure.
A. All OSH files which are available for public viewing as prescribed in R. 71-1102 may be viewed in the offices of the Department of Labor during normal business hours. All requests for OSH files shall be directed to the Director of the Office of Public Information, South Carolina Department of Labor, P.O. Box 11329, Columbia, South Carolina 29211.
B. Persons desiring to view four (4) or less OSH files during a single visit shall advise the Office of Public Information, in writing, at least 24 hours prior to the time they desire to view such files. Persons desiring to view five (5) or more files during a single visit shall advise the Office of Public Information, in writing at least 72 hours (3 working days) prior to the time they desire to view such files. Request for OSH files shall specifically identify company, division, and location of business or plant of each desired OSH file.
C. Persons desiring OSH files which are on microfiche (microfilm) or photographs which must be printed shall allow a reasonable amount of time for such work to be performed dependent upon the availability of specialists required to produce such work.
D. Copies of material in OSH files are subject to a research and operator charge for each file plus a set fee schedule for each page and photograph. Such charge and fees shall be paid in advance. The research and operator charges plus the fee schedule can be obtained by telephone, or in writing, from the Office of Public Information.
A. At any time during the conduct of an inspection or at such other times as the Department of Labor may request information from an employer, the employer may identify areas of its establishment or material which contains or which might reveal a trade secret. If the Department of Labor representative requesting access to such areas of the establishment or material has no clear reason to question such identification, all such material and all information obtained within such areas shall be conspicuously labeled "confidential -trade secret" and shall be treated as prescribed in this section. In determining whether the area or material in question contains a valid trade secret, the following should be considered:
(1) the definition contained in R. 71-1101B; and
(2) the steps taken by employer to protect or limit access to the area or material.
B. In the event that the Department of Labor representative requesting access to an area or to specific material allegedly containing trade secrets does not agree with the employer's trade secret claim, the employer may appeal this decision in writing to the Commissioner or his designee within the South Carolina Department of Labor. The employer shall have an opportunity to present his position to the Commissioner (or his designee) who will made a de novo determination as to whether or not the Department will treat the material as trade secret material. The trade secret status shall be freely granted to any material claimed to be such by an employer unless there is clear and convincing evidence for denying such status.
C. If trade secret status is denied by the Commissioner (or his designee), he shall articulate his reasons for refusing such designation in a confidential written opinion. This decision shall be considered final agency action for purposes of review under the Administrative Procedure Act.
D. A dispute as to the designation of material such as trade secret material shall not be grounds for an employer to refuse an otherwise valid request for access to material or areas of their establishment. During the pendency of a dispute concerning the trade secret status of material, such material shall be temporarily designated as trade secrets and shall be protected as herein provided.
A. All trade secret material other than samples submitted for laboratory analysis which are prepared or obtained by or for representatives of the Department of Labor shall be marked as such, catalogued and filed in a secure place separate from regular, non-secret files and documents.
B. All trade secret material other than samples submitted for laboratory analysis shall be stored in a secured storage facility. A secured storage facility shall consist of a locked safe or vault on the premises of the Department of Labor.
C. No one shall be allowed access to trade secret material other than samples submitted for laboratory analysis unless it has been determined by the Commissioner of Labor (or his designee) that the individual in question has a specific need to know the contents of the particular file. A log shall be maintained which records the identify of each person having access to a particular file (substance, record, sample or portion thereof, etc.) containing trade secret material stored in the secured storage facility, as well as the date, time, and reason for such access. A submitter shall have access to this log upon request. In all situations in which all or part of a physical material (sample) is either partially or totally expended or destroyed in an analysis process, the agency shall maintain accurate records explaining these circumstances and accounting for the expended material. A submitter may have access to records upon request.
D. Any materials removed from the secured storage facility for inspection or use by Department of Labor representatives shall be inspected or used on the premises and promptly returned to the secured storage facility. Trade secrets are not to be taken from the premises unless necessary for laboratory work, use in an enforcement proceeding or for returning them to the submitter. In no event are materials other than samples submitted for laboratory analysis to be taken away from the secured storage facility overnight unless other equally secured facilities are available elsewhere. Trade secret materials will be maintained at all times within the custody of representatives of the South Carolina Department of Labor.
E. Materials in transit shall not be left unattended by any representative of the Department of Labor in any vehicle, public conveyance, restaurant, hotel or any other place other than a secured storage facility.
F. Samples submitted for laboratory analysis shall not be identified by the employer's name or facility. Any laboratory providing analysis for said samples shall be required to account for all quantities expended or destroyed in the analysis process and shall also be required to return to the Department of Labor any sample materials not destroyed. All reports submitted to Department of Labor by any laboratory following any analysis procedure and containing trade secrets materials shall be marked as such and safeguarded according to paragraphs A-E of this regulation.
A. Trade secret material or information concerning the identity or nature of a trade secret shall not be divulged by any representative of the Department of Labor in any manner of fashion whatever to anyone other than another permanent employee of the Department of Labor actively engaged in an inspection or enforcement proceeding involving the submitter which resulted in the acquisition of the trade secret material by the Department of Labor.
B. It is the policy of the Department of Labor to fully assert the exemption to the Freedom of Information Act contained in Section 30-4-40(a)(1) of the South Carolina Code (1976) with respect to designated trade secret material. Based on this policy trade secret material shall not be divulged by the Department of Labor pursuant to a Freedom of Information Act or other request without court order or subpoena.
C. In the event a Freedom of Information Act or other request is made for trade secret material, a copy of both the request itself and the letter from the Department of Labor denying it shall be mailed to the submitter of the trade secret material by registered mail within 10 days of receipt of the request.
D. In the event that a suit is filed against the Department of Labor under the Freedom of Information Act to obtain trade secret material, the submitter of said information shall be notified of the suit within 10 days after the service of the complaint upon the Department of Labor. The Department of Labor shall call upon the submitter of the trade secret material to furnish assistance and shall not oppose a motion by the submitter to intervene as a party to the suit.
E. Where the Department of Labor is served with any subpoena for records or material containing designated trade secrets, the Department will make reasonable efforts to contact the submitter by telephone and by letter. The Department of Labor will make a motion for a protective order in any such case. The Department of Labor Shall call upon the submitter of the trade secret material to furnish assistance and shall not oppose a motion by the submitter to intervene as a party to the suit.
71-1107. Removal Of Trade Secret Material From Submitter's Premises.
A. Trade secret material should be, to the extent possible, examined on the premises of the submitter's establishment. It should not be removed unless it appears to the inspector that it is necessary and relevant to enforce provisions of the Occupational Safety and Health Act and applicable standards. These materials should not be removed merely for the convenience of the inspector in conducting his inspections.
B. When trade secret material other than samples for laboratory analysis is removed from the submitter's premises, it shall be transported directly to a secured storage facility and placed therein for safekeeping.
C. The Department of Labor or any employer may agree to leave any trade secret material on the employer's premises provided that the Department of Labor representatives are granted sufficient access to the secrets to enable them to carry out the purpose of the Occupational Safety and Health Act.
D. Samples for laboratory analysis shall be transported directed to the laboratory and protected as described in R. 71-1105F.
71-1108. Return Of Trade Secret Material To Submitter.
A. In the event that an inspection does not result in the issuance of a citation, the Department of Labor shall return all trade secret materials to the submitter as soon as allowable under federal regulations, but not later than 12 months after the inspection.
B. In the event that an inspection does result in a citation, the Department of Labor shall return all trade secret materials not relevant to the specific citation, as soon as possible under federal regulations, but in no event later than 12 months after the inspection. Any trade secret materials retained by the Department of Labor for use in a contested proceeding shall be returned to the submitter upon final termination of the proceeding and any mandatory federal review of same.
C. No trade secret material shall be returned to the submitter pursuant to paragraph A or B above unless the submitter agrees, in writing, to preserve the Department of Labor's records intact and provide future access to them on request by the Department of Labor. Such files shall be indexed by the Department of Labor to enable it to determine what material was returned to the submitter without revealing the nature of the trade secret contained in the file.
D. The Department of Labor shall not be required to return to the submitter trade secret material contained in the Department's work product. Work product of the Department of Labor containing trade secret material shall be destroyed, given to the submitter or retained in the secured storage facility. An appropriate entry shall be made on the access log maintained by the Department of Labor.
E. When trade secret materials are returned to the submitter under this section, an explanation will be provided for all samples or part(s) of a sample destroyed by analysis. Upon request the submitter shall be provided with a copy of the access log maintained by the Department of Labor.
SUBARTICLE 12.
RULES FOR THE COMPENSATION OF MEMBERS OF THE OCCUPATIONAL HEALTH AND SAFETY REVIEW BOARD
To the extent funds are appropriated therefor by the General Assembly, the South Carolina Department of Labor will reimburse each member of the Occupational Health and Safety Review Board for lodging, meals, actual mileage, and other expenses incurred while fulfilling his duties according to the Appropriations Act or the most current general rules for reimbursement as issued by the State Budget and Control Board for employees of the State of South Carolina.
To the extent funds are appropriated therefor by the General Assembly, the South Carolina Department of Labor will compensate the members of the Occupational Health and Safety Review Board for time spent on individual cases and on the other duties of the board at the rate of sixty-five ($65.00) dollars per hour. Members shall submit itemized statements showing:
1. Dates on which services were performed;
2. Nature (description) of services on each date;
3. Time expended (hours) on each service and dates;
4. Hourly rates for each entry of services; and
5. Signature of member certifying review and submission of statement.
Section 41-13-20, South Carolina Code of Laws, 1976 (as amended), provides that the Director of the Department of Labor, Licensing and Regulation shall promulgate regulations which will prohibit oppressive child labor practices but be no more restrictive or burdensome than applicable federal laws or regulations. It is the purpose of these regulations to resolve any contradictions between state and federal law and to protect the well-being of children at work in this State.
1. "Oppressive child labor" means a condition of employment under which (1) any employee under the age of sixteen years is employed by an employer (other than a parent or a person standing in place of a parent employing his own child or a child in his custody under the age of sixteen years in an occupation other than manufacturing or mining or an occupation found by the Director of the Department of Labor, Licensing and Regulation to be particularly hazardous for the employment of children sixteen and seventeen years or detrimental to their health or well-being) in any occupation, or (2) any employee sixteen and seventeen years is employed by an employer in any occupation which the Director of the Department of Labor, Licensing and Regulation shall find and by regulation declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being.
2. "Employer" means every person, firm, partnership, association, corporation, receiver or other officer of a court of this State, the State or any political subdivision thereof and any agent or officer of the above-mentioned classes employing any person in this State.
No person under the age of sixteen shall be employed in this State except according to the regulations in this subarticle.
71-3104. Employment in Hazardous Occupations or Occupations Detrimental to Health or Well Being.
Persons sixteen and seventeen shall not be employed in any occupation declared by the Director of the Department of Labor, Licensing and Regulation to be particularly hazardous or detrimental to the health or well-being of minors. Such occupations are identified at 71-3107.
(a) The following occupations are exempted from the coverage of these regulations for minors of any age according to the terms of each exemption.
(b) The provisions of this Article with the exception of 71-3108 do not apply to any employee employed in agriculture outside of school hours for the school district where such employee is living while he is so employed, if such employee is fourteen years or older, or is twelve or thirteen years of age and the employment is with the consent of his parent or person standing in the place of his parent.
(c) The provisions of this Article do not apply with respect to any employee engaged in the street sale or delivery of newspapers to the consumer, including carriers making deliveries to the homes of subscribers.
(d) The provisions of this Article do not apply with respect to any employee engaged as an actor or performer in motion pictures, radio or television productions, or theatrical productions.
(e) The provisions of this Article do not apply with respect to any employee employed by his or her own parent or the person standing in place of his or her parent except in those occupations found by the Director of the Department of Labor, Licensing and Regulation to be particularly hazardous or detrimental to health or well-being of minors and identified at 71-3107.
(f) Where this Article contains any exemption for the employment of apprentices, such an exemption shall apply only when (1) the apprentice is employed in a craft recognized as an apprenticeable trade; (2) the work of the apprentice in the occupations declared particularly hazardous is incidental to his training; (3) such work is intermittent and for short periods of time and is under the direct and close supervision of a journeyman as a necessary part of such apprentice training; and (4) the apprentice is registered by the Bureau of Apprenticeship and Training of the United States Department of Labor as employed in accordance with the standards established by that Bureau.
(g) Where this Article contains an exemption for the employment of student-learners, such an exemption shall apply when (1) the student-learner is enrolled in a course of study and training in a cooperative vocational training program under a recognized State or local educational authority or in a course of study in a substantially similar program conducted by a private school; and (2) such student-learner is employed under a written agreement which provides:
(i) That the work of the student-learner in the occupations declared particularly hazardous shall be incidental to his training;
(ii) That such work shall be intermittent and for short periods of time, and under the direct and close supervision of a qualified and experienced person;
(iii) That safety instructions shall be given by the school and correlated by the employer with on-the-job training; and
(iv) That a schedule of organized and progressive work processes to be performed on the job shall have been prepared. Each such written agreement shall contain the name of student-learner, and shall be signed by the employer and the school coordinator or principal. Copies of each agreement shall be kept on file by both the school and the employer. This exemption for the employment of student-learners may be revoked in any individual situation where it is found that reasonable precautions have not been observed for the safety of minors employed thereunder. A high school graduate may be employed in an occupation in which he has completed training as provided in this paragraph as a student-learner, even though he is not yet eighteen years of age.
71-3106. Employment of Minors Between 14 and 16 Years of Age.
(a) The employment of minors fourteen and fifteen years of age in the occupation, for the periods, and under the conditions hereafter specified does not interfere with their schooling or with their health and well-being and shall not be deemed to be oppressive child labor.
(b) In all occupations covered by this subpart the employment (including suffering or permitting to work) by an employer of minor employees fourteen and fifteen years of age shall be confined to the following periods:
(1) Outside school hours;
(2) Not more than 40 hours in any one week when school is not in session;
(3) Not more than 18 hours in any one week when school is in session;
(4) Not more than 8 hours in any one day when school is not in session;
(5) Not more than 3 hours in any one day when school is in session; and
(6) Between 7 a.m. and 7 p.m. in any one day, except during the period of summer break of the school district in which the minor resides, when the evening hour will be 9 p.m.
(c) Permitted occupations for minors fourteen and fifteen years employed by retail, food service, and gasoline service establishments include:
(1) Office and clerical work, including the operation of office machines;
(2) Cashiering, selling, modeling, art work, work in advertising departments, window trimming, and comparative shopping;
(3) Price marking and tagging by hand or by machine, assembling orders, packing and shelving;
(4) Bagging and carrying out customers' orders;
(5) Errand and delivery work by foot, bicycle, and public transportation;
(6) Clean up work, including the use of vacuum cleaners and floor waxers, and maintenance of grounds, but not including the use of power-driven mowers, or cutters;
(7) Kitchen work and other work involved in preparing and serving food and beverages, including the operation of machines and devices used in the performance of such work, such as but not limited to, dish-washers, toasters, dumb-waiters, popcorn poppers, milk shake blenders, coffee grinders, automatic coffee machines, devices used to maintain the temperature of prepared foods (such as warmers, steam tables, and heat lamps), and microwave ovens that are used only to warm prepared food and do not have the capacity to warm above 140 degrees Fahrenheit. Minors are permitted to clean kitchen equipment (not otherwise prohibited), remove oil or grease filters, pour oil or grease through filters, and move receptacles containing hot grease or hot oil, but only when the equipment, surfaces, containers, and liquids do not exceed a temperature of 100 degrees Fahrenheit;
(8) Work in connection with cars and trucks if confined to the following: Dispensing gasoline and oil; courtesy service; car cleaning, washing and polishing; and other occupations permitted by this section, but not including work involving the use of pits, racks, or lifting apparatus, or involving the inflation of any tire mounted on a rim equipped with a removable retaining ring; and
(9) Cleaning vegetables and fruits, and wrapping, sealing, labeling, weighing, pricing and stocking goods when performed in areas physically separate from those where the work described in paragraph (d)(12) of this section is performed.
(d) Occupations which are not permitted for minors fourteen and fifteen years of age include:
(1) Manufacturing, mining, or processing occupations, including occupations requiring the performance of any duties in work rooms or work places where goods are manufactured, mined, or otherwise processed, except those occupations permitted by paragraph (c) of this section;
(2) Occupations which involve the operation or tending of hoisting apparatus or of any power-driven machinery other than office machines;
(3) The operation of motor vehicles or service as helpers on such vehicles;
(4) Public messenger service;
(5) Occupations which the Director of the Department of Labor, Licensing and Regulation may find and declare to be hazardous for the employment of minors sixteen and seventeen years of age or detrimental to their health or well-being;
(6) Occupations in connection with:
(a) Transportation of persons or property by rail, highway, air, water, pipeline, or other means;
(b) Warehousing and storage;
(c) Communications and public utilities;
(d) Construction (including demolition and repair);
except such office (including ticket office) work, or sales work, in connection with paragraphs (6)(a), (b), (c), and (d) of this section, as does not involve the performance of any duties on trains, motor vehicles, aircraft, vessels, or other media of transportation or at the actual site of construction operations;
(7) Work performed in or about boiler or engine rooms;
(8) Work in connection with maintenance or repair of the establishment, machines or equipment;
(9) Outside window washing that involves working from window sills, and all work requiring the use of ladders, scaffolds, or their substitutes;
(10) Cooking and baking except:
(a) Cooking is permitted with electric or gas grills which does not involve cooking over an open flame (Note: this provision does not authorize cooking with equipment such as rotisseries, broilers, pressurized equipment including fryolators, and cooking devices that operate at extremely high temperatures such as "Neico broilers"); and
(b) Cooking is permitted with deep fryers that are equipped with and utilize a device which automatically lowers the baskets into the hot oil or grease and automatically raises the baskets from the hot oil or grease;
(11) Occupations which involve operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers and grinders, food choppers, and cutters, and bakery-type mixers;
(12) Work in freezers and meat coolers and all work in the preparation of meats for sale except as described in paragraph (c)(9) of this section;
(13) Loading and unloading goods to and from trucks, railroad cars, or conveyors;
(14) All occupations in warehouses except office and clerical work.
(e) This section shall not apply to any Work Experience or Career Exploration Program approved by the Administrator of the Wage and Hour Division of the United States Department of Labor. The South Carolina Department of Labor will not make separate determinations concerning such programs. See 29 CFR Section 570.35(a).
71-3107. List of Hazardous Occupations or Occupations Detrimental to Health of Minor; Exemptions.
(A) The following occupations are found to be particularly hazardous for minors sixteen and seventeen years of age or detrimental to their health or well-being. Employment of minors sixteen and seventeen years of age in these occupations is not permitted.
(B) Occupations in or about establishments manufacturing or storing explosives or articles containing explosive components are particularly hazardous for the employment of minors sixteen and seventeen years of age.
1. All occupations in or about any plant or establishment (other than retail establishments or plants or establishments of the type described in subparagraph (B)(2) of this section) manufacturing or storing explosives or articles containing explosive components except where the occupation is performed in a "nonexplosives area" as defined in paragraph (B)(3) of this section.
2. The following occupations in or about any plant or establishment manufacturing or storing small-arms ammunition not exceeding .60 caliber in size, shotgun shells, or blasting caps when manufactured or stored in conjunction with the manufacture of small-arms ammunition:
(i) All occupations involved in the manufacturing, mixing, transporting, or handling of explosive compounds in the manufacture of small-arms ammunition and all other occupations requiring the performance of any duties in the explosives area in which explosive compounds are manufactured or mixed.
(ii) All occupations involved in the manufacturing, transporting, or handling of primers and all other occupations requiring the performance of any duties in the same building in which primers are manufactured.
(iii) All occupations involved in the priming of cartridges and all other occupations requiring the performance of any duties in the same workroom in which rim-fire cartridges are primed.
(iv) All occupations involved in the plate loading of cartridges and in the operation of automatic loading machines.
(v) All occupations involved in the loading, inspecting, packing, shipping and storage of blasting caps.
3. Definitions. For the purpose of this section:
(a) The term "plant or establishment manufacturing or storing explosives or articles containing explosive component" means the land with all the buildings and other structures thereon used in connection with the manufacturing or processing or storing of explosives or articles containing explosive components.
(b) The terms "explosives" and "articles containing explosive components" mean and include ammunition, black powder, blasting caps, fireworks, high explosives, primers, smokeless powder, and all goods classified and defined as explosives and explosive materials in 18 U.S.C. 841(c)-(f) and the implementing regulations at 27 CFR Part 555. The terms include any chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion, as well as all goods identified in the most recent list of explosive materials published by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice. This list is not intended to be all-inclusive and is updated and published annually in the Federal Register pursuant to 18 U.S.C. 841(d). A copy of the most recent version of the list may be found through the Bureau of Alcohol, Tobacco, Firearms, and Explosives' website at http://www.atf.gov.
(c) An area meeting all of the criteria in paragraphs (B)(3)(c)(i) through (iv) of this section shall be deemed a "nonexplosives area":
(i) None of the work performed in the area involves the handling or use of explosives;
(ii) The area is separated from the explosives area by a distance not less than that prescribed in the American Table of Distances for the protection of inhabited buildings;
(iii) The area is separated from the explosives area by a fence or is otherwise located so that it constitutes a definite designated area; and
(iv) Satisfactory controls have been established to prevent employees under eighteen years of age within the area from entering any area in or about the plant which does not meet criteria of paragraphs (B)(3)(c)(i) through (iii) of this section.
(C)(1) Finding and declaration of fact. Except as provided in subparagraph (2) of this paragraph the occupations of motor vehicle driver and outside helper on any public road, highway, in or about any mine (including open pit mine or quarry), place where logging or sawmill operations are in progress, or in any excavation of the type identified in 71-3107(O) are particularly hazardous for the employment of minors sixteen and seventeen years of age.
(2) Exemptions--
(i) Incidental and occasional driving. The finding and declaration in paragraph (1) of this section shall not apply to the operation of automobiles or trucks not exceeding 6,000 pounds gross vehicle weight if such driving is restricted to daylight hours: Provided, such operation is only occasional and incidental to the child's employment; that the child holds a State license valid for the type of driving involved in the job which he performs, has no records of any moving violations at the time of hire, and has completed a State approved driver education course: And provided further, that the vehicle is equipped with a seat belt or similar device for the driver and for each helper, and the employer has instructed each child that such belts or other devices must be used: And provided further, that the driving performed by the child does not involve more than two trips away from the primary place of employment in any single day for the purpose of delivering goods of the child's employer to a customer or of transporting passengers (other than the employees of the employer); and that the driving takes place within a thirty (30) mile radius of the minor's place of employment. This paragraph shall not be applicable to any occupation of motor vehicle driver which involves the towing of vehicles; route deliveries or route sales; the transportation for hire of property, goods, or passengers; urgent, time-sensitive deliveries; or the transporting at any one time of more than three passengers, including the employees of the employer.
(ii) School bus driving. The finding and declaration in paragraph (a) of this section shall not apply to driving a school bus.
(3) Definitions. For the purpose of this paragraph:
(i) The term "motor vehicle" shall mean any automobile, truck, truck-tractor, trailer, semitrailer, motorcycle, or similar vehicle propelled or drawn by mechanical power and designed for use as a means of transportation but shall not include any vehicle operated exclusively on rails.
(ii) The term "driver" shall mean any individual who, in the course of his employment, drives a motor vehicle at any time.
(iii) The term "outside helper" shall mean any individual, other than a driver, whose work includes riding on a motor vehicle outside the cab for the purpose of assisting in transporting or delivering goods.
(iv) The term "gross vehicle weight" includes the truck chassis with lubricants, water and full tank or tanks of fuel, plus the weight of the cab or driver's compartment, body, and special chassis and body equipment, and payload.
(v) The term "occasional and incidental" shall mean no more than one-third of an employee's worktime in any workday and no more than 20 percent of an employee's worktime in any workweek.
(vi) The term "urgent, time-sensitive deliveries" shall mean trips which, because of such factors as customer satisfaction, the rapid deterioration of quality or change in temperature of the product, and/or economic incentives, are subject to time-lines, schedules, and/or turnaround times which might impel the driver to hurry in the completion of the delivery. Prohibited trips would include, but are not limited to, the delivery of pizzas and prepared foods to the customer; the delivery of materials under a deadline (such as deposits to a bank at closing); and the shuttling of passengers to and from transportation depots to meet transport schedules. "Urgent, time-sensitive deliveries" would not depend on the delivery's points of origin and termination, and would include the delivery of people and things to the employer's place of business as well as from that business to some other location.
(D) Finding and declaration of fact. All occupations in logging and all occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage-stock mill are particularly hazardous for the employment of minors between sixteen and eighteen years of age, except the following:
(1) Exceptions applying to logging:
(i) Work in offices or in repair or maintenance shops.
(ii) Work in the construction, operation, repair, or maintenance of living and administrative quarters of logging camps.
(iii) Work in timber cruising, surveying, or logging-engineering parties; work in the repair or maintenance of roads, railroads, or flumes; work in forest protection, such as clearing fire trails or roads, piling and burning slash, maintaining fire-fighting equipment, constructing and maintaining telephone lines, or acting as fire lookout or fire patrolman away from the actual logging operations: Provided, That the provisions of this paragraph shall not apply to the felling or bucking of timber, the collecting or transporting of logs, the operation of power-driven machinery, the handling or use of explosives, and work on trestles.
(iv) Peeling of fence posts, pulpwood, chemicalwood, excelsior wood, cordwood, or similar products, when not done in conjunction with and at the same time and place as other logging occupations declared hazardous by this section.
(v) Work in the feeding or care of animals.
(2) Exceptions applying to the operation of any permanent sawmill or the operation of any lath mill, shingle mill, or cooperage-stock mill: Provided, That these exceptions do not apply to a portable sawmill the lumberyard of which is used only for the temporary storage of green lumber and in connection with which no office or repair or maintenance shop is ordinarily maintained: And further provided, That these exceptions do not apply to work which entails entering the sawmill building:
(i) Work in offices or in repair or maintenance shops.
(ii) Straightening, marking, or tallying lumber on the dry chain or the dry drop sorter.
(iii) Pulling lumber from the dry chain.
(iv) Clean-up in the lumberyard.
(v) Piling, handling, or shipping of cooperage stock in yards or storage sheds other than operating or assisting in the operation of power driven equipment.
(vi) Clerical work in yards or shipping sheds, such as done by ordermen, tally-men, and shipping clerks.
(vii) Clean-up work outside shake and shingle mills, except when the mill is in operation.
(viii) Splitting shakes manually from precut and split blocks with a froe and mallet, except inside the mill building or cover.
(ix) Packing shakes into bundles when done in conjunction with splitting shakes manually with a froe and mallet, except inside the mill building or cover.
(x) Manual loading of bundles of shingles or shakes into trucks or railroad cars, provided that the employer has on file a statement from a licensed doctor of medicine or osteopathy certifying the minor capable of performing this work without injury to himself.
(3) Definitions. As used in this paragraph:
(1) The term "all occupations in logging" shall mean all work performed in connection with the felling of timber; the bucking or converting of timber into logs, poles, piles, ties, bolts, pulpwood, chemical wood, excelsior wood, cordwood, fence posts, or similar products; the collecting, skidding, yarding, loading, transporting and unloading of such products in connection with logging; the constructing, repairing and maintaining of roads, railroads, flumes, or camps used in connection with logging; the moving, installing, rigging, and maintenance of machinery or equipment used in logging; and other work performed in connection with logging. The term shall not apply to work performed in timber culture, timber-stand improvement, or in emergency fire-fighting.
(2) The term "all occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage-stock mill" shall mean all work performed in or about any such mill in connection with storing of logs and bolts; converting logs or bolts into sawn lumber, laths, shingles, or cooperage-stock; storing, drying, and shipping lumber, laths, shingles, cooperage-stock, or other products of such mills; and other work performed in connection with the operation of any sawmill, lath mill, shingle mill, or cooperage-stock mill. The term shall not include work performed in the planing mill department or other remanufacturing departments of any sawmill, or in any planing mill or remanufacturing plant not a part of a sawmill.
(E) Finding and declaration of fact. The following occupations involved in the operation of power-driven woodworking machines are particularly hazardous for minors sixteen and seventeen years of age:
(1) The occupation of operating power-driven woodworking machines, including supervising or controlling the operation of such machines, feeding material into such machines, and helping the operator to feed material into such machines but not including the placing of material on a moving chain or in a hopper or slide for automatic feeding.
(2) The occupations of setting up, adjusting, repairing, oiling, or cleaning power-driven woodworking machines.
(3) The occupations of off-bearing from circular saws and from guillotine-action veneer clippers.
(4) Definitions. As used in this section:
(i) The term "power-driven woodworking machines" shall mean all fixed or portable machines or tools driven by power and used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer.
(ii) The term "off-bearing" shall mean the removal of material or refuse directly from a saw table or from the point of operation. Operations not considered as off-bearing within the intent of this section include (a) the removal of material or refuse from a circular saw or guillotine-action veneer clipper where the material or refuse has been conveyed away from the saw table or point of operation by a gravity chute or by some mechanical means such as a moving belt or expulsion roller, and (b) the following operations when they do not involve the removal of material or refuse directly from a saw table or from the point of operation: the carrying, moving, or transporting of materials from one machine to another or from one part of a plant to another; the piling, stacking, or arranging of materials for feeding into a machine by another person; and the sorting, tying, bundling, or loading of materials.
(5) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in 71-3105(f) and (g).
(F) Finding and declaration of fact. The following occupations involving exposure to radioactive substances and to ionizing radiations are particularly hazardous and detrimental to health for minors sixteen and seventeen years of age:
(1) Any work in any workroom in which (i) radium is stored or used in the manufacture of self-luminous compound, (ii) self-luminous compound is made, processed, or packaged, (iii) self-luminous compound is stored, used, or worked upon, (iv) incandescent mantles are made from fabric and solutions containing thorium salts, or are processed or packaged, (v) other radioactive substances are present in the air in average concentrations exceeding 10 percent of the maximum permissible concentrations in the air recommended for occupational exposure by the National Committee on Radiation Protection, as set forth in the 40-hour week column of table one of the National Bureau of Standards Handbook No. 69 entitled "Maximum Permissible Body Burdens and Maximum Permissible Concentrations of Radionuclides in Air and in Water for Occupational Exposure," issued June 5, 1959.
(2) Any other work which involves exposure to ionizing radiations in excess of 0.5 rem per year.
(3) Definitions. As used in this paragraph:
(i) The term "self-luminous compound" shall mean any mixture of phosphorescent material and radium, mesothorium, or other radioactive element;
(ii) The term "workroom" shall include the entire area bounded by walls of solid material and extending from floor to ceiling;
(iii) The term "ionizing radiations" shall mean alpha and beta particles, electrons, protons, neutrons, gamma and X-ray and all other radiations which produce ionizations directly or indirectly, but does not include electromagnetic radiations other than gamma and X-ray.
(G) Finding and declaration of fact. The following occupations involved in the operation of power-driven hoisting apparatus are particularly hazardous for minors sixteen and seventeen years of age:
(1) Work of operating an elevator, crane, derrick, hoist, or high-lift truck, except operating an unattended automatic operation passenger elevator or an electric or air-operated hoist not exceeding one ton capacity.
(2) Work which involves riding on a manlift or on a freight elevator, except a freight elevator operated by an assigned operator.
(3) Work of assisting in the operation of a crane, derrick, or hoist performed by crane hookers, crane chasers, hookers-on, riggers, rigger helpers, and like occupations.
(4) Definitions. As used in this paragraph:
(i) The term "elevator" shall mean any power-driven hoisting or lowering mechanism equipped with a car or platform which moves in guides in a substantially vertical direction. The term shall include both passenger and freight elevators (including portable elevators or tiering machines), but shall not include dumbwaiters.
(ii) The term "crane" shall mean a power-driven machine for lifting and lowering a load and moving it horizontally, in which the hoisting mechanism is an integral part of the machine. The term shall include all types of cranes, such as cantilever gantry, crawler, gantry, hammerhead, ingot-pouring, jib, locomotive, motor-truck, overhead traveling, pillar jib, pintle, portal, semi-gantry, semi-portal, storage bridge, tower, walking jib, and wall cranes.
(iii) The term "derrick" shall mean a power-driven apparatus consisting of a mast or equivalent members held at the top by guys or braces, with or without a boom, for use with a hoisting mechanism or operating ropes. The term shall include all types of derricks, such as A-frame, breast, Chicago boom, gin-pole, guy and stiff-leg derrick.
(iv) The term "hoist" shall mean a power-driven apparatus for raising or lowering a load by the application of a pulling force that does not include a car or platform running in guides. The term shall include all types of hoists, such as base mounted electric, clevis suspension, hook suspension, monorail, overhead electric, simple drum and trolley suspension hoists.
(v) The term "high-lift truck" shall mean a power-driven industrial type of truck used for lateral transportation that is equipped with a power-operated lifting device usually in the form of a fork or platform capable of tiering loaded pallets or skids one above the other. Instead of a fork or platform, the lifting device may consist of a ram, scoop, shovel, crane, revolving fork, or other attachments for handling specific loads. The term shall mean and include highlift trucks known under such names as fork lifts, fork trucks, fork-lift trucks, tiering trucks, or stacking trucks, but shall not mean low-lift trucks or low-lift platform trucks that are designed for the transportation of but not the tiering of material.
(vi) The term "manlift" shall mean a device intended for the conveyance of persons which consists of platforms or brackets mounted on, or attached to, an endless belt, cable, chain or similar method of suspension; such belt, cable or chain operating in a substantially vertical direction and being supported by and driven through pulleys, sheaves or sprockets at the top and bottom.
(5) Exception.
(a) This section shall not prohibit the operation of an automatic elevator and an automatic signal operation elevator provided that the exposed portion of the car interior (exclusive of vents and other necessary small openings), the car door, and the hoistway doors are constructed of solid surfaces without any opening through which a part of the body may extend; all hoistway openings at floor level have doors which are interlocked with the car door so as to prevent the car from starting until all such doors are closed and locked; the elevator (other than hydraulic elevators) is equipped with a device which will stop and hold the car in case of overspeed or if the cable slackens or breaks; and the elevator is equipped with upper and lower travel limit devices which will normally bring the car to rest at either terminal and a final limit switch which will prevent the movement in either direction and will open in case of excessive over travel by the car.
(b) For the purpose of this exception the term "automatic elevator" shall mean a passenger elevator, a freight elevator, or a combination passenger-freight elevator, the operation of which is controlled by pushbuttons in such a manner that the starting, going to the landing selected, leveling and holding, and the opening and closing of the car and hoistway doors are entirely automatic.
(c) For the purpose of this exception, the term "automatic signal operation elevator" shall mean an elevator which is started in response to the operation of a switch (such as a lever or pushbutton) in the car which when operated by the operator actuates a starting device that automatically closes the car and hoistway doors.from this point on, the movement of the car to the landing selected, leveling and holding when it gets there, and the opening of the car and hoistway doors are entirely automatic.
(H) Finding and declaration of fact. The following occupations are particularly hazardous for the employment of minors sixteen and seventeen years of age:
(1) The occupations of operator of or helper on the following power-driven metal forming, punching, and shearing machines:
(i) All rolling machines, such as beading, straightening, corrugating, flanging, or bending rolls; and hot or cold rolling mills.
(ii) All pressing or punching machines, such as punch presses except those provided with full automatic feed and ejection and with a fixed barrier guard to prevent the hands or fingers of the operator from entering the area between the dies; power presses; plate punches.
(iii) All bending machines, such as apron brakes and press brakes.
(iv) All hammering machines, such as drop hammers and power hammers.
(v) All shearing machines, such as guillotine or squaring shears; alligator shears; and rotary shears.
(2) The occupations of setting-up, adjusting, repairing, oiling, or cleaning these machines including those with automatic feed and ejection.
(3) Definitions.
(i) The term "operator" shall mean a person who operates a machine covered by this Order by performing such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in operation of the machine.
(ii) The term "helper" shall mean a person who assists in the operation of a machine covered by this Order by helping place materials into or remove them from the machine.
(iii) The term "forming, punching, and shearing machines", shall mean power-driven metal-working machines, other than machine tools, which change the shape of or cut metal by means of tools, such as dies, rolls, or knives which are mounted on rams, plungers, or other moving parts. Types of forming, punching, and shearing machines enumerated in this section are the machines to which the designation is by custom applied.
(4) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in Section 71-3105(f) and (g).
(I) [There is no subsection (I) in Reg. 71-3107.]
(J) Findings and declaration of fact. The following occupations are particularly hazardous for the employment of minors sixteen and seventeen years of age:
(1) The occupations of operating or assisting to operate any of the following power-driven paper-products machines:
(i) Arm-type wire stitcher or stapler, circular or band saw, corner cutter or mitering machines, corrugating and single-or-double-facing machine, envelope die-cutting press, guillotine paper cutter or shear, horizontal bar scorer, laminating or combining machine, sheeting machine, scrap-paper baler, paper box compactor, or vertical slotter.
(ii) Platen die-cutting press, platen printing press, or punch press which involves hand feeding of the machine.
(2) The occupations of setting up, adjusting, repairing, oiling, or cleaning these machines including those which do not involve hand feeding.
(3) Definitions.
(i) The term "applicable ANSI standard" shall mean the American National Standard Institute's Standard ANSI Z245.5-1990 ("American National Standard for Refuse Collection, Processing, and Disposal--Baling Equipment--Safety Requirements") for scrap paper balers or the American National Standard Institute's Standard ANSI Z245.2-1992 ("American National Standard for Refuse Collection, Processing, and Disposal Equipment--Stationary Compactors--Safety Requirements") for paper box compactors. Additional applicable standards are the American National Standard Institute's Standard ANSI Z245.5-1997 ("American National Standard for Equipment Technology and Operations for Wastes and Recyclable Materials--Baling Equipment--Safety Requirements") for scrap paper balers or the American National Standard Institute's Standard ANSI Z245.2-1997 ("American National Standard for Equipment Technology and Operations for Wastes and Recyclable Materials--Stationary Compactors--Safety Requirements") for paper box compactors, which the Secretary has certified to be at least as protective of the safety of minors as Standard ANSI Z245.5-1990 for scrap paper balers or Standard ANSI Z245.2-1992 for paper box compactors. The ANSI standards for scrap paper balers and paper box compactors govern the manufacture and modification of the equipment, the operation and maintenance of the equipment, and employee training. These ANSI standards are incorporated by reference in this paragraph and have the same force and effect as other standards in this section. Only the mandatory provisions (i.e., provisions containing the word "shall" or other mandatory language) of these standards are adopted as standards under this section. These standards are incorporated by reference as they exist on the date of approval; if any changes are made in these standards which the Secretary finds to be as protective of the safety of minors as the current standards, the Secretary will publish a Notice of the change of standards in the Federal Register. These incorporations by reference were approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies of these standards are available for purchase from the American National Standards Institute (ANSI), 23 West 43rd St., Fourth Floor, New York, NY, 10036. In addition, these standards are available for inspection at the National Archives and Records Administration (NARA) and at the Occupational Safety and Health Administration's Docket Office, Room N2625, United States Department of Labor, 200 Constitution Avenue, NW, Washington, DC, 20210, or any of its regional offices. For information on availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulati ons/ibr_locations.html.
(ii) The term "operating or assisting to operate" shall mean all work which involves starting or stopping a machine covered by this section, placing materials into or removing them from the machine, including clearing a machine of jammed paper or cardboard, or any other work directly involved in operating the machine. The term does not include the stacking of materials by an employee in an area nearby or adjacent to the machine where such employee does not place the materials into the machine.
(iii) The term "paper box compactor" shall mean a powered machine that remains stationary during operation, used to compact refuse, including paper boxes, into a detachable or integral container or into a transfer vehicle.
(iv) The term "paper-products machine" shall mean power-driven machines used in the remanufacture or conversion of paper or pulp into a finished product, including preparing such materials for recycling or used in preparing such materials for disposal. The term is understood to apply to such machines whether they are used in establishments that manufacture converted paper or pulp products, or in any other type of manufacturing or non-manufacturing establishment. The term is also understood to apply to those machines which, in addition to paper products, process other material for disposal.
(v) The term "scrap paper baler" shall mean a powered machine used to compress paper and possibly other solid waste, with or without binding, to a density or form that will support handling and transportation as a material unit without requiring a disposable or reusable container.
(4) Exemptions.
(i) Loading a scrap paper baler or paper box compactor. Sixteen- and seventeen-year-old minors may load materials into, but not operate or unload, those scrap paper balers and paper box compactors that are safe for sixteen-and seventeen-year-old employees to load and cannot be operated while being loaded. For the purpose of this exemption, a scrap paper baler or a paper box compactor is considered to be safe for sixteen- and seventeen-year-olds to load only if all of the following conditions are met: the scrap paper baler or paper box compactor meets the applicable ANSI standard; the scrap paper baler or paper box compactor includes an on-off switch incorporating a key-lock or other system and the control of the system is maintained in the custody of employees who are eighteen years of age or older; the on-off switch of the scrap paper baler or paper box compactor is maintained in an off position when the machine is not in operation; and the employer posts a notice on the scrap paper baler or paper box compactor (in a prominent position and easily visible to any person loading, operating, or unloading the machine) that includes and conveys all of the following information: That the scrap paper baler or paper box compactor meets the industry safety standard applicable to the machine, completely identifying the appropriate ANSI standard; That sixteen- and seventeen-year-old employees may only load the scrap paper baler or paper box compactor; and that no employee under the age of eighteen may operate or unload the scrap paper baler or paper box compactor.
(ii) Apprentices or student-learners. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in 71-3105(f) and (g).
(K) Findings and declaration of fact. The following occupations involved in the manufacture of clay construction products and of silica refractory products are particularly hazardous for the employment of minors sixteen and seventeen years of age, and detrimental to their health and well-being:
(1) All work in or about establishments in which clay construction products are manufactured, except (i) work in storage and shipping; (ii) work in offices, laboratories, and storerooms; and (iii) work in the drying departments of plants manufacturing sewer pipe.
(2) All work in or about establishments in which silica brick or other silica refactories are manufactured, except work in offices.
(3) Nothing in this section shall be construed as permitting employment of minors in any occupation prohibited by any other hazardous occupations order issued by the Commissioner of Labor.
(4) Definitions.
(i) The term "clay construction products" shall mean the following clay products: Brick, hollow structural tile, sewer pipe and kindred products, refractories, and other clay products such as architectural terra cotta, glazed structural tile, roofing tile, stove lining, chimney pipes and tops, wall coping, and drain tile. The term shall not include the following non-structural-bearing clay products: Ceramic floor and wall tile, mosaic tile, glazed and enameled tile, faience, and similar tile, nor shall the term include non-clay construction products such as sand-lime brick, glass brick, or non-clay refractories.
(ii) The term "silica brick or other silica refractories" shall mean refractory products produced from raw materials containing free silica as their main constituent.
(L) Findings and declaration of fact. The following occupations are particularly hazardous for the employment of minors sixteen and seventeen years of age:
(1) The occupations of operator of or helper on the following power-driven fixed or portable machines except machines equipped with full automatic feed and ejection:
(i) Circular saws.
(ii) Band saws.
(iii) Guillotine shears.
(2) The occupations of setting-up, adjusting, repairing, oiling, or cleaning circular saws, band saws, and guillotine shears.
(3) Definitions.
(i) The term "operator" shall mean a person who operates a machine covered by this section by performing such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in operation of the machine.
(ii) The term "helper" shall mean a person who assists in the operation of a machine covered by this section by helping place materials into or remove them from the machine.
(iii) The term "machines equipped with full automatic feed and ejection" shall mean machines covered by this Order which are equipped with devices for full automatic feeding and ejection and with a fixed barrier guard to prevent completely the operator or helper from placing any part of his body in the point-of-operation area.
(iv) The term "circular saw" shall mean a machine equipped with a thin steel disc having a continuous series of notches or teeth on the periphery, mounted on shafting, and used for sawing materials.
(v) The term "band saw" shall mean a machine equipped with an endless steel band having a continuous series of notches or teeth, running over wheels or pulleys, and used for sawing materials.
(vi) The term "guillotine shear" shall mean a machine equipped with a movable blade operated vertically and used to shear materials. The term shall not include other types of shearing machines, using a different form of shearing action, such as alligator shears or circular shears.
(4) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in 71-3105(f) and (g).
(M)(1) Finding and declaration of fact. All occupations in wrecking, demolition, and shipbreaking operations are particularly hazardous for the employment of minors sixteen and seventeen years of age and detrimental to their health and well-being.
(2) Definition. The term "wrecking, demolition, and shipbreaking operations" shall mean all work, including clean-up and salvage work, performed at the site of the total or partial razing, demolishing, or dismantling of a building, bridge, steeple, tower, chimney, other structure, ship or other vessel.
(N)(1) Finding and declaration of fact. All occupations in roofing operations and all occupations on or about a roof are particularly hazardous for the employment of minors sixteen and seventeen years of age or detrimental to their health.
(2) Definitions.
(i) The term "on or about a roof" shall mean all work performed upon or in close proximity to a roof, including carpentry and metal work, alterations, additions, maintenance and repair, including painting and coating of existing roofs; the construction of the sheathing or base of roofs (wood or metal), including roof trusses or joists; gutter and downspout work; the installation and servicing of television and communication equipment such as cable and satellite dishes; the installation and servicing of heating, ventilation and air conditioning equipment or similar appliances attached to roofs; and any similar work that is required to be performed on or about roofs.
(ii) The term "roofing operations" shall mean all work performed in connection with the application of weatherproofing materials and substances (such as tar or pitch, asphalt prepared paper, tile, slate, metal, translucent materials, and shingles of asbestos, asphalt, or wood) to roofs of buildings or other structures. The term shall also include all work performed in connection with: (1) the installation of roofs, including related metal work such as flashing and (2) alterations, additions, maintenance, and repair, including painting and coating, of existing roofs. The term shall also include all jobs on the ground related to roofing operations such as roofing laborer, roofing helper, materials handler, and tending a tar heater. The term shall not include gutter and downspout work; the construction of the sheathing or base of roofs; or the installation of television antennas, air conditioners, exhaust and ventilation equipment, or similar appliances attached to roofs.
(3) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in 71-3105(f) and (g).
(O) Finding and declaration of fact. The following occupations in excavation operations are particularly hazardous for the employment of persons sixteen and seventeen years of age:
(1) Excavating, working in, or backfilling (refilling) trenches, except (i) manually excavating or manually backfilling trenches that do not exceed four feet in depth at any point, or (ii) working in trenches that do not exceed four feet in depth at any point.
(2) Excavating for buildings or other structures or working in such excavations, except (i) manually excavating to a depth not exceeding four feet below any ground surface adjoining the excavation, or (ii) working in an excavation not exceeding such depth, or (iii) working in an excavation where the side walls are shored or sloped to the angle of repose.
(3) Working within tunnels prior to the completion of all driving and shoring operations.
(4) Working within shafts prior to the completion of all sinking and shoring operations.
(5) Exemptions. This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in 71-3105(f) and (g).
(P)(1) Finding and declaration of fact. The following occupations in or about slaughtering and meat packing establishments, rendering plants, or wholesale, retail or service establishments are particularly hazardous for the employment of minors sixteen and seventeen years of age or detrimental to their health or well-being:
(a) All occupations on the killing floor, in curing cellars, and in hide cellars, except the working of messengers, runners, hand-truckers, and similar occupations which require entering such workrooms or workplaces infrequently and for short periods of time.
(b) All occupations involved in the recovery of lard and oils, except packaging and shipping of such products and the operation of lard-roll machines.
(c) All occupations involved in tankage or rendering of dead animals, animal offal, animal fats, scrap meats, blood, and bones into stock feeds, tallow, inedible greases, fertilizer ingredients, and similar products.
(d) All occupations involved in the operation or feeding of the following power-driven meat-processing machines, including setting-up, adjusting, repairing, oiling, or cleaning such machines: meat patty forming machines, meat and bone cutting saws, knives (except bacon-slicing machines), head-splitters, and guillotine cutters; snout-pullers and jaw-pullers; skinning machines; horizontal rotary washing machines; casing-cleaning machines such as crushing, stripping, and finishing machines; grinding, mixing, chopping, and hashing machines; and presses (except belly-rolling machines).
(e) All boning occupations.
(f) All occupations that involve the pushing or dropping of any suspended carcass, half carcass, or quarter carcass.
(g) All occupations involving hand-lifting or hand-carrying any carcass or half-carcass of beef, pork or horse, or any quarter carcass of beef or horse.
(2) Definitions. As used in this section:
(a) The term "slaughtering and meat packing establishments" shall mean places in or about which cattle, calves, hogs, sheep, lambs, goats, or horses are killed, butchered, or processed. The term shall also include establishments which manufacture or process meat products or sausage casings from animals.
(b) The term "rendering plants" shall mean establishments engaged in the conversion of dead animals, animal offal, animal fats, scrap meats, blood, and bones into stock feeds, tallow, inedible greases, fertilizer ingredients, and similar products.
(c) The term "killing floor" shall include that workroom or workplace where cattle, calves, hogs, sheep, lambs, goats, or horses are immobilized, shackled, or killed, and the carcasses are dressed prior to chilling.
(d) The term "curing cellar" shall include that workroom or workplace which is primarily devoted to the preservation and flavoring of meat by curing materials. It does not include that workroom or workplace where meats are smoked.
(e) The term "hide cellar" shall include that workroom or workplace where hides are graded, trimmed, salted, and otherwise cured.
(f) The term "boning occupations" shall mean the removal of bones from meat cuts. It shall not include work that involves cutting, scrapping, or trimming meat from cuts containing bones.
(3) Exemptions. This section shall not apply to:
(a) The killing and processing of poultry, rabbits, or small game in areas physically separated from the killing floor.
(b) The employment of apprentices or student-learners under the conditions prescribed in Section 71-3105(f) and (g).
(Q) Finding and declaration of fact. The following occupations involved in the operation of power-driven bakery machines are particularly hazardous for the employment of minors sixteen and seventeen years of age:
(1) The occupations of operating, assisting to operate, or setting up, adjusting, repairing, oiling, or cleaning any horizontal or vertical dough mixer; batter mixer; bread dividing, rounding, or molding machine; dough brake; dough sheeter; combination bread slicing and wrapping machine; or cake cutting band saw.
(2) The occupation of setting up or adjusting a cookie or cracker machine.
(R) Finding and declaration of fact. All occupations in connection with mining, other than coal, are particularly hazardous for the employment of minors sixteen and seventeen years of age or detrimental to their health or well-being and employment in such occupations is therefore prohibited under Section 12 of the Fair Labor Standards Act, as amended, except the following:
(1) Work in offices, in the warehouse or supply house, in the change house, in the laboratory, and in repair or maintenance shops not located underground.
(2) Work in the operation and maintenance of living quarters.
(3) Work outside the mine in surveying, in the repair and maintenance of roads, and in general clean-up about the mine property such as clearing brush and digging drainage ditches.
(4) Work of track crews in the building and maintaining of sections of railroad track located in those areas of open-cut metal mines where mining and haulage activities are not being conducted at the time and place that such building and maintenance work is being done.
(5) Work in or about surface placer mining operations other than placer dredging operations and hydraulic placer mining operations.
(6) The following work in metal mills other than in mercury-recovery mills or mills using the cyanide process:
(i) Work involving the operation of jigs, sludge tables, flotation cells, or drier-filters;
(ii) Work of hand-sorting at picking table or picking belt;
(iii) General clean-up work:
Provided, however, That nothing in this section shall be construed as permitting employment of minors in any occupation prohibited by any other hazardous occupations order issued by the Secretary of Labor.
Definitions. As used in this section: The term "all occupations in connection with mining, other than coal" shall mean all work performed underground in mines and quarries; on the surface at underground mines and underground quarries; in or about open-cut mines, open quarries, clay pits, and sand and gravel operations; at or about placer mining operations; at or about dredging operations for clay, sand or gravel; at or about bore-hole mining operations; in or about all metal mills, washer plants, or grinding mills reducing the bulk of the extracted minerals; and at or about any other crushing, grinding, screening, sizing, washing or cleaning operations performed upon the extracted minerals except where such operations are performed as a part of a manufacturing process. The term shall not include work performed in subsequent manufacturing or processing operations, such as work performed in smelters, electro-metallurgical plants, refineries, reduction plants, cement mills, plants where quarried stone is cut, sanded and further processed, or plants manufacturing clay, glass or ceramic products. Neither shall the term include work performed in connection with coal mining, in petroleum production, in natural-gas production, nor in dredging operations which are not a part of mining operations, such as dredging for construction or navigation purposes.
(a) The following occupations in agriculture are particularly hazardous for the employment of minors below the age of sixteen:
(1) Operating a tractor of over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such a tractor.
(2) Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:
(i) Corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, or mobile pea viner;
(ii) Feed grinder, crop dryer, forage blower, auger conveyor, or the unloading mechanism of a nongravity-type self-unloading wagon or trailer; or
(iii) Power post-hole digger, power post driver, or nonwalking type rotary tiller.
(3) Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:
(i) Trencher or earthmoving equipment;
(ii) Fork lift;
(iii) Potato combine; or
(iv) Power-driven circular, band, or chain saw.
(4) Working on a farm in a yard, pen, or stall occupied by a:
(i) Bull, boar, or stud horse maintained for breeding purposes; or
(ii) Sow with suckling pigs, or cow with newborn calf (with umbilical cord present).
(5) Felling, bucking, skidding, loading, or unloading timber with butt diameter of more than six inches.
(6) Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet.
(7) Driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper.
(8) Working inside:
(i) A fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere;
(ii) An upright silo within 2 weeks after silage has been added or when a top unloading device is in operating position;
(iii) A manure pit; or
(iv) A horizontal silo while operating a tractor for packing purposes.
(9) Handling or applying (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying) agricultural chemicals classified under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 et seq.) as Category I of toxicity, identified by the word "poison" and the "skull and crossbones" on the label; or Category II of toxicity, identified by the word "warning" on the label;
(10) Handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord; or
(11) Transporting, transferring, or applying anhydrous ammonia.
(b) Exemptions.
(1) Student-learners shall be exempt from this section.
(2) This section shall not apply to the employment of a minor below the age of sixteen by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person.
71-3109. Deleted by State Register Volume 21, Issue No. 6, Part 2, eff. June 27, 1997.
71-3110. Procedures for Hearing Child Labor Act Administrative Appeals.
1. Any employer aggrieved by any citation or penalty assessed pursuant to South Carolina Code Section 41-13-25 may file a Notice of Protest within thirty (30) days of the date of the action protested.
2. The failure of a protesting party to appear at a hearing shall be deemed a withdrawal of the Notice of Protest and a waiver of all rights except the right to be served with a copy of the order of the Director. Any party who fails to appear without good cause after receiving notice of the time and place of hearing may be taxed with the costs of that hearing in the amount of One Hundred (100) dollars.
(A) All violations of SCRR 71-3104 and 71-3106(d) directly involve the health and safety of the child and shall be classified as violations of serious gravity. All other violations of the regulations will be classified as violations of other than serious gravity.
(B) All employers who employ one hundred (100) or more workers will be classified as large employers. All employers who employ fewer than one hundred (100) workers will be classified as small employers.
(C) Proposed penalties will be assessed as follows:
(1) First instance serious, small employer $ 500.00
(2) First instance serious, large employer $1,000.00
(3) First instance other than serious, large or small employer Warning
(4) Second instance serious, small employer $1,500.00
(5) Second instance serious, large employer $3,000.00
(6) Second instance other than serious, small employer $ 300.00
(7) Second instance other than serious, large employer $ 600.00
(8) Third instance serious, small employer $2,500.00
(9) Third instance serious, large employer $5,000.00
(10) Third instance other than serious, small employer $ 500.00
(11) Third instance other than serious, large employer $1,000.00
ARTICLE 4.
AMUSEMENT RIDES SAFETY CODE
(Statutory Authority: 1976 Code Chapter 18 of title 41, as amended.)
1. Chapter 18 of Title 41, S.C. Code of Laws, 1976 (as amended) provides that the Commissioner of Labor promulgate regulations to guard against personal injuries in the assembly, disassembly, and use of amusement devices at carnivals, fairs, and amusement parks and to assure to any injured person the possibility of financial recovery for such injuries. It is the purpose of these regulations to set minimum acceptable safety standards for design, construction, operation and inspection of such amusement devices.
2. All definitions found in 41-18-40 apply to these regulations.
A. Accepted engineering practice: that which conforms to accepted principles, tests, or standards of nationally recognized technical or scientific authorities.
B. Operator: the person having direct control of the starting, stopping, or speed of an amusement device.
C. NDT: Non-Destructive Testing: Assorted testing methods used to disclose latent defects during which test the physical or chemical state of the material is not altered.
D. Imminent Danger: A condition which exists due to a mechanical, electrical, structural, design, or other defect which presents an excessive risk of serious injury to passengers, bystanders, operators, or attendants.
E. Operational Tests: Measurements of safety mechanisms which do not come into play during routine operation.
All owners shall maintain certain physical information at the site of operation of all amusement devices in South Carolina.
A. Name Plate-A unique identifying name plate in English shall be permanently affixed to each amusement device specifying location of manufacturer by city, state, and country. This name plate shall also have the serial number, device model number, and date of manufacture. In addition, a state ID number tag supplied by the Department shall be permanently affixed to the device.
B. Static and Dynamic Information-Each owner shall maintain at the site of operation of the amusement device the following information: height, width, diameter, and weight when in a non-operational state with no passengers and in a fully operational state with passengers.
C. Speed-When the proper speed is essential to the operation of the device, each owner shall maintain at the site of operation of the amusement device the following information:
(1) Maximum revolutions per minute, or
(2) Maximum feet per second or miles per hour.
D. Direction of Travel-When the proper direction of travel is essential to the design operation of the device, the manufacturer shall designate the direction of travel, including the reference point for this designation, and the owner will maintain this information at the site of operation of the amusement device.
E. Power Requirements-Each owner will maintain at the site of operation of the amusement device the following information:
(1) Electrical-Total electrical power required to operate the ride or device designated in watts, volts, and amperes, including minimum and maximum voltage limits.
(2) Mechanical-The minimum horsepower necessary to operate the device safely.
F. Passenger Capacity-Each owner shall maintain at the site of operation of the device the following specifications of the manufacturer:
(1) Maximum total passenger weight; and/or
(2) Maximum number of passengers by carrier unit and device total.
G. Recommended Balance of Passenger Loading or Unloading-When passenger distribution is essential to the proper operation of the device, the appropriate loading and unloading procedure with respect to weight distribution shall be maintained at the site of operation.
H. Recommended Passenger Restrictions-Where applicable, any passenger limitations such as, but not limited to height, weight, passenger placement, physical condition, or other appropriate restrictions, shall be maintained in full public view at the site of operation. The operator shall have the right to refuse access to a device to any person where the operator believes that access may jeopardize the safety of the rider or of any other person.
I. Environmental Restrictions-Specifications for operational restrictions relating to environmental conditions such as, but not limited to wind, rain, corrosive atmosphere, and extreme heat or cold, shall be maintained at the site of operation of the device by the owner.
J. Fastener Schedule-A manufacturer's issued schedule for the correct or better grade, torque, and placement of all critical fasteners used in the assembly or erection, or both, of the amusement device shall be maintained by the owner at the site of operation of the device.
K. Numbering-All passenger-carrying compartments shall be numbered without duplication.
L. Evacuation-An emergency evacuation plan shall be maintained at the site of operation of any amusement device where passengers may be more than five feet above the ground.
71-4200. Operation Procedures for Amusement Devices; Owners/Operator's Responsibility.
1. Each owner of an amusement device shall read and become familiar with the contents of the manufacturer's recommended operating instructions. Each owner shall prepare an operating fact sheet. This fact sheet shall be provided to each device operator and attendant of the amusement device. The owner's fact sheet (on a device-by-device basis) shall include but not be limited to:
A. Specific device operation policies and procedures with pertinent information from the manufacturer's instructions;
B. Description of the device operation;
C. Duties of the specific assigned position of the device operator or attendant;
D. General safety procedures;
E. Additional recommendations of the owner/operator; and
F. Specific emergency procedures in the event of an abnormal condition or an interruption of service.
2. The owner shall provide training and instructions for each operator and attendant of an amusement device. This training shall include, but not be limited to the following, where applicable:
A. Instructions on device operating procedures;
B. Instructions on specific duties of the assigned position;
C. Instructions on general safety procedures;
D. Instructions on emergency procedures;
E. Demonstration of the physical operation of the device;
F. Supervised observation of the device operator's physical operation of the device; and
G. Additional instructions deemed necessary by the owner.
3. The owner will enforce compliance with the operating fact sheet and maintain operation within limits described by the information required by 71-4100.
4. Every amusement device shall be maintained, operated, assembled and disassembled to be free from recognized hazards or defects which may cause serious injury.
1. The owner of a device shall use manufacturer's operational tests, along with maximum intervals for these tests to be performed, to determine whether a safety mechanism is operating within operational limits as recommended by the manufacturer. If manufacturer's guidelines for operational testing are not available, the owner shall use operational tests based on available guidelines for devices similar in design and function.
2. Non-Destructive Testing (NDT): NDT shall be performed in conformance with manufacturer's specifications. In addition, any hidden shaft or structural member in an amusement device may be required to undergo NDT after written notice to the owner is given by the Department. The notice will specify a date by which NDT shall be completed.
3. The owner of a device shall conduct the tests developed under Section 71-4300 (1) and (2) at regular intervals and shall record the results of operational tests and shall provide the results to the Commissioner upon request.
71-4400. Maintenance Procedures for Amusement Devices.
1. Each owner of an amusement device shall read and become familiar with the contents of the manufacturer's maintenance instructions and specifications. Based on the manufacturer's recommendations, each owner shall develop and implement a program of maintenance and inspections providing for the duties and responsibilities necessary in the care of each amusement device. This program of maintenance shall include a checklist provided to each person performing the regularly scheduled maintenance on each device. The owner's checklist (on a device-by-device basis) shall include but not be limited to the following:
A. A description of preventive maintenance assignments to be performed with frequency;
B. A description of inspections to be performed with frequency;
C. Special safety instructions, where applicable; and
D. Any additional recommendations of the owner.
2. The owner of the amusement device shall provide training for each person performing the regularly scheduled maintenance on the device, pertaining to their assigned duties. This training shall include, but not be limited to the following:
A. Instructions on inspection and preventive maintenance procedures;
B. Instructions on specific duties of the assigned position;
C. Instructions on general safety procedures;
D. Demonstrations of the physical performance of the assigned regularly scheduled duties and inspections;
E. Supervised observation of the maintenance person's physical performance of his assigned regularly scheduled duties and inspections; and
F. Additional instructions deemed necessary by the owner.
3. Prior to carrying passengers, the owner shall conduct or cause to be conducted a daily pre-opening inspection to insure proper operation of the device. Where the manufacturer provides relevant instructions for a daily inspection, the owner may incorporate these instructions into his inspection procedure. Where the manufacturer does not provide such instructions, the owner may incorporate relevant instructions for a daily inspection based on instructions from other amusement devices similar in design and function. The owner shall maintain a record of the daily inspection, signed and dated by the person performing it. These records shall be kept for a period of no less than three (3) years. The inspection program shall include, but not be limited to the following:
A. Inspection of all passenger-carrying equipment, including restraint equipment and latches;
B. Visual inspection of entrances, exits, stairways, and ramps;
C. Visual inspection of grounds around and/or inside of the device;
D. Functional testing of all communication equipment necessary for the operation of the device;
E. Inspection or testing of all automatic and manual safety equipment, including flotation and tethering equipment where applicable;
F. Inspection or testing of brakes, including service brakes, emergency brakes, parking brakes, and back stops;
G. Visual inspection of any fencing, guarding and barricades;
H. Visual inspection of the device structure;
I. Visual inspection of electrical equipment and wiring;
J. Visual inspection of accessible pins and fasteners;
K. Visual inspection of blocking and shoring; and
L. The device shall be operated for a minimum of two complete operating cycles. A complete cycle shall include operation of all passenger-carrying equipment.
4. Following any unscheduled cessation of operation necessitated by malfunction, adjustment, environmental conditions, mechanical, electrical, operational or structural modification, the device shall be unloaded and the device, or the specifically affected element, shall be appropriately inspected and operated without passengers to determine that the cause for cessation of operation has been corrected and does not create an operational problem.
5. If an inspector finds that the amusement device presents an imminent danger, he will notify in writing the amusement device operator, owner, and sponsor of the fair or carnival or owner of the land upon which the fair or carnival is located. If the device is not immediately removed from service, the inspector will file a report of the imminent danger with the Commissioner of Labor. A temporary or permanent restraining order will be sought where appropriate.
6. The owner or lessee of any amusement device which, during the course of its operation, is involved in an accident which results in a serious injury shall report the injury to the Commissioner before the end of the next business day. The report will include the names and addresses of the injured parties, the hospital where treatment was rendered, type of injuries, type of device involved, owner, and any other information pertaining to the events leading up to, the nature of, and the outcome of the accident as well as the status of the device involved in the accident.
7. Any part which has caused, contributed to, or has been damaged during a catastrophic accident shall not be removed from a device or destroyed until inspected by the Department.
71-4450. Miscellaneous Safety Requirements for Amusement Rides.
1. Electrical Systems.
A. The following wiring systems are acceptable:
(1) Three Phase System with an equipment grounding conductor grounded at the power source that is not bonded to a neutral conductor (except at the source) and is constructed in accordance with the 1990 National Electrical Code. Compliance with the requirements of any later edition of the National Electrical Code will be accepted by the Director as compliance with the 1990 edition.
(2) Single Phase System with an equipment grounding conductor grounded at the power source that is not bonded to a neutral conductor (except at the source) and is constructed in accordance with the 1990 National Electrical Code. Compliance with the requirements of any later edition of the National Electrical Code will be accepted by the Director as compliance with the 1990 edition.
B. Ground fault interruption circuitry must be provided for wiring systems of 240 volts or less, 30 amps or less, for amusement devices in which water is a major medium. Control circuits 50 volts or less are exempt from this requirement. Permanent area lighting not attached to the amusement device or accessible by the public are exempt from this requirement when wired in accordance with the 1990 National Electrical Code. Compliance with the requirements of any later edition of the National Electrical Code will be accepted by the Director as compliance with the 1990 edition.
C. All electrical equipment and devices are to be guarded against access by unauthorized persons. All cable must be routed to reduce a tripping hazard.
D. Dark Rides
(1) The track or bus supplying voltage to the individual cars shall be maintained at 50 volts or less potential.
(2) All areas shall have adequate emergency lighting to permit safe exiting in the event of power failure. This lighting must come on automatically in the event of power failure.
(3) All areas shall have lighting controlled by a switch at the operating control station, in addition to emergency lights. This lighting shall be adequate to allow safe exiting.
(4) All exits shall have illuminated exit signs mounted above the exit and wired to automatically be energized in the event of power failure or in the event that the area lighting control switch at the operating station is activated.
E. All fluorescent lights shall have sleeving and be secured in place.
F. Each electrically operated amusement device shall be provided with a lockable externally operated protected disconnect. This disconnect shall remove all power from the amusement device, and shall be clearly labeled.
2. Structural.
A. All devices shall be guarded against access by non-authorized personnel into the area of operation.
B. One AB&C fire extinguisher of at least 10 lb. capacity shall be placed on all generator units of greater than 7.5 kilowatts. One AB&C fire extinguisher of at least 10 lb. capacity shall be provided for all gasoline powered amusement devices with engines greater than 5 HP and all remote fuel storage areas of 10 gallons or more. The fire extinguisher must be readily accessible and in good working order.
C. One AB&C fire extinguisher of at least 5 lb. capacity shall be placed on all generators less than 7.5 kilowatts. One AB&C fire extinguisher of at least 5 lb. capacity shall be provided for all gasoline-powered amusement devices with engines 5 HP or less and all remote fuel storage areas not exceeding 10 gallons. The fire extinguisher must be readily accessible and in good working order.
D. There shall be a minimum of 6 feet between fences when the fence is attached to a portion of a device containing an electrical device. Where the electrical device is 240 volts or less, 30 amps or less, and equipped with GFI circuitry, the minimum distance need not be maintained. Common fences are acceptable under other conditions.
E. Dark Rides--There shall be a minimum of one (1) smoke and fire detector per 500 square foot area and a five (5) lb. ABC fire extinguisher shall be located at all entrances and exits and at any operator station not located directly at an entrance or exit.
F. Blocking Requirements.
(1) The footing, blocking, or anchorage for amusement devices shall be sound, rigid, and capable of carrying the maximum intended load without settling or displacement. Unstable objects such as barrels, boxes, loose brick, or concrete blocks, shall not be used to support amusement devices.
(2) Blocking of an amusement device shall be sized so that the bearing surface of the blocking is equal to or greater than the bearing surface of the support pad of the amusement device.
(3) The height of the blocking shall not exceed the total width of the base of the blocks being used.
G. All amusement devices, generators and power distribution centers must be accessible to emergency vehicles.
H. All amusement devices must maintain a minimum 10' clearance from any overhead power lines in both the static and dynamic states.
I. Internal combustion and electrical power sources, and power transmitting elements, shall be of adequate type, design and capacity to handle the design load.
J. Fuel tanks should be of adequate capacity to permit uninterrupted operation during normal operating hours. Where it is impossible to provide tanks of proper capacity for a complete day, the engine shall be shut down and the amusement device unloaded or evacuated during the refueling procedure. Under no circumstances shall the fuel supply be replenished while the engines are running.
K. An enclosed area in which an internal combustion engine is operated shall be ventilated. Exhaust fumes from the engine shall be discharged outside the area. The equipment shall be properly grounded.
L. Internal combustion power sources shall be located in a manner permitting proper maintenance and shall be protected either by guards, fencing or enclosures.
M. All amusement grounds shall be free from recognized hazards which may cause injury.
3. Ride Operation.
A. The owner shall not allow any device operator under the influence of controlled drugs or alcohol to operate or assist in the operation of the device.
B. When requested, the operator must halt a device and allow passengers desiring to disembark to do so.
C. The owner shall have no fewer than one (1) operator per device. Additional assistance may be required as necessary.
D. The owner shall not allow an operator to leave the controls during operation of the device and shall not allow assistants to leave their assigned stations during operation of the device.
E. All buttons and switches on operating control stations shall be properly labeled in English as to their functions, and all emergency stopping devices shall be colored red.
F. All operators must be able to speak and comprehend the English Language sufficiently to communicate with patrons, follow instructions and comprehend the operating fact sheet.
4. Mechanical.
A. An amusement device capable of exceeding its maximum safe operating speed shall be provided with a speed limiting device.
B. Amusement rides shall continue to meet manufacturing specifications including all safety bulletins.
71-4475. Additional Rules for Individual Amusement Devices.
1. Chair lifts and Trams shall be designed and maintained per ANSI B77.1 1982 and all supplements thereto. Compliance with the requirements of any later edition published by the American National Standards Institute shall be accepted by the Commissioner as compliance with this section.
2. Go Carts.
A. All wheel wells must be enclosed, except for Grand Prix style cars which race individually.
B. All tracks must have a liner rail, except for Grand Prix style cars which race individually.
C. Helmets must be provided for all patrons desiring to use them.
1. Before any permit can be issued, the owner must file with and have accepted by the Commissioner an approved Certificate of Insurance against liability for injury to persons arising out of the use of an amusement device, to be in an amount not less than that specified by South Carolina Code of Laws, 1976, Title 41, Chapter 18, as amended.
2. Evidence of insurance may be:
A. A policy of insurance procured from one or more insurers acceptable to the Chief Insurance Commissioner of South Carolina as either:
(1) Licensed to transact insurance in South Carolina;
(2) Approved as a non-admitted surplus lines carrier for risks located in this State;
B. Cash or other security acceptable to the Commissioner of Labor.
3. The Commissioner shall not accept any policy of insurance unless it shall obligate the insurer to give written notice to the Commissioner thirty (30) days before any proposed cancellation, suspension or non-renewal of the policy. The Commissioner shall make available upon request an approved endorsement form.
1. Before beginning operation of any amusement device within South Carolina, the owner shall have posted on the amusement device a valid permit to operate issued by the Commissioner. A permit to operate is valid for a period of one calendar year terminating on December 31 of the year issued.
2. All new amusement devices permitted within South Carolina beginning July 1, 1993, shall meet the requirements of the 1992 edition of ASTM Standards on Amusement Rides and Devices, and the South Carolina Amusement Ride Code and any later editions; or be certified by a licensed architect or professional engineer.
3. A complete set of manuals for assembly, maintenance and operation of the device shall be maintained by the owner. All manuals shall be in English. If manufacturer's manuals or guidelines are not available, the owner shall use manuals or guidelines for devices similar in design and function.
1. Each application for a permit shall be in writing and received by the Commissioner no less than ten (10) days before the first intended date of use.
2. Each permit application shall include the following information:
A. Name of the owner of the amusement device;
B. The address of the owner;
C. The name of the state under whose laws the owner is incorporated (if incorporated);
D. The model number and serial number of the amusement device and name and address of manufacturer;
E. Acceptable evidence of the liability insurance policy, bond, or other security covering the amusement device. The Commissioner may, at his discretion, require submission of the complete copy of insurance; and
F. A notarized inspection report by a special inspector or in the alternative, a request for inspection by the Department.
3. In addition, each application for a permit for a temporary device shall include the following information:
A. Planned schedule of appearances in South Carolina, including dates and locations; and
B. Name of sponsor or land owner at each location where use is planned.
4. Owners of temporary amusement devices shall supply the Department with the local phone number on each site of operation, before the end of the same business day that the number is assigned by the telephone company, if a telephone is located at such site.
1.A. Upon application for a permit with a request for inspection by the South Carolina Department of Labor, Licensing and Regulation, Division of Labor, an annual fee shall be charged at the rate of:
Kiddie device $ 50.00
Major/spectacular devices $100.00
Mobile/fixed roller coasters $250.00
B. Fees under 71-4700 include one permit inspection. Any return inspection resulting from the owner's failure to comply, will be charged at a rate of $75.00 per hour in addition to the annual fee, including travel time.
2. Any application for annual permit which is accompanied by an inspection report by an approved special inspector shall be charged an annual permit fee at the rate of $35.00 for each device covered by that permit application.
71-4800. Qualifications of Approved Special Inspectors.
1. A special inspector shall have the following qualifications:
A.(1) At least five (5) years experience in amusement device maintenance and safety and completion of approved courses in materials inspection and testing and in fasteners or in the alternative.
(2) A four-year college degree in engineering or architecture with a minimum of twelve (12) semester hours of course work in the area of mechanics and strength of materials.
B. Evidence of successful completion of an approved Rides Safety Inspection course within the previous two (2) calendar years.
2. Each applicant for approval as a special inspector shall submit with his annual application evidence of insurance against errors and omissions (or approved general liability insurance) covering inspections of amusement rides and devices in an amount of no less than $500,000 per occurrence, procured from one or more insurers licensed to transact insurance in South Carolina or approved as a non- admitted surplus lines carrier for risks located in this State. Each policy, by its original terms or an endorsement, shall obligate the insurer that it will not cancel, suspend, or nonrenew the policy without thirty (30) days written notice of the proposed cancellation, suspension, or nonrenewal and a complete report of the reasons for the cancellation, suspension, or nonrenewal being given to the Director of the Department of Labor, Licensing and Regulation. In the event the liability insurance is cancelled, suspended or nonrenewed, the insurer shall give immediate notice to the Director.
3. Each applicant for approval as a special inspector shall submit with his annual application a license fee in the amount of $200.00.
4. Applications for approval as a special inspector shall be made annually on a form to be provided by the Commissioner.
5. No special inspector shall use or disclose information gained in the course of or by reason of his official position for any purpose other than making official inspections. Any special inspector who receives compensation to influence his inspections may have his license revoked.
6. Special inspectors shall conduct all follow up, safety related complaint inspections, and abatement inspections as called for by the division and shall be responsible for submitting all associated paperwork.
71-4910. Procedure for Hearing Contested Notices of Non-Compliance and Assessments of Penalty.
1. Any owner to whom a Notice of Non-Compliance or Notice of Proposed Penalty has been issued may serve a Notice of Protest upon the Commissioner within thirty (30) days of the receipt by the owner of the Notice of Non-Compliance or of the Notice of Proposed Penalty.
2. Notice of Hearing
A. Service: Upon receipt of a Notice of Protest or any Notice of Non-Compliance by any owner of any amusement device, the Commissioner shall serve notice of a hearing to be held to determine the issues.
B. Contests: The notice of hearing shall include:
(1) Time, place, and nature of the hearing. The time shall be at least thirty (30) days from the service of notice of hearing unless the owner shall ask in writing for a shorter time;
(2) A short statement of the issues involved; and
(3) Designation of the representative of the Commissioner who shall conduct the hearing as Hearing Examiner.
3. Hearing Procedure
A. The Hearing Examiner will explain briefly the purpose and nature of the hearing, will ascertain who will present the case for each of the parties, and will hear all preliminary matters.
B. All persons who give testimony shall be sworn.
C. A party shall be entitled to present all relevant facts by oral or documentary evidence or by affidavit if the parties so agree.
D. Opposing parties shall have the right to cross-examine any witness whose testimony is introduced.
E. A business entity which owns an amusement device may be represented at any hearing by an attorney licensed to practice in South Carolina, or by an officer or employee of the entity.
4. Within a reasonable time after the Hearing Examiner has heard all evidence and considered any written briefs or memoranda submitted, he shall make a written recommendation to the Commissioner. The Commissioner shall then make his final disposition of the proceedings and shall serve it upon all parties.
5. The Commissioner of Labor shall maintain a record of the proceedings which shall include testimony and exhibits.
1. Any amusement device owner may apply to the Commissioner of Labor for a variance, either temporary or permanent, from any rule or regulation under this article.
2. Such variance shall be granted at the discretion of the Commissioner if the owner establishes by sufficient evidence that:
A. He is unable to comply with a rule or regulation because of unavailability of professional or technical personnel or data or of materials and equipment needed to come into compliance with the rule or regulation; and
B. He is taking effective alternative steps to safeguard the public against the hazard covered by the rule or regulation.
3. A variance application shall include:
A. The name and address of the petitioner;
B. Identifying information concerning the amusement device for which the variance is sought;
C. A specification of the standard or portion thereof from which the petitioner seeks a variance;
D. A representative by the petitioner, supported by representations from qualified persons having first-hand knowledge of the facts represented, that he is unable to comply with the standards or portion thereof and detailed statement of the reasons thereof;
E. A statement of the steps the petitioner has taken or will take, with specific dates where appropriate, to protect the public against the hazard covered by the standard; and,
F. Where a temporary variance is sought, a statement of the time required to achieve compliance with the standard, not to exceed two (2) years.
71-4950. [Information to be Made Available to Commissioner.]
The owner shall be responsible for maintaining and making available to the Commissioner all information required by the Amusement Ride Safety Code and these regulations. This information shall be made available to the Commissioner upon request.
1. Chapter 16 of Title 41, South Carolina Code of Laws, 1976 (as amended) provides that the Commissioner of Labor promulgate regulations governing maintenance, construction, alteration, and installation of elevator facilities and the inspection and testing of new and existing elevator installations so as to provide for the public safety and protect the public welfare. It is the purpose of these regulations to set minimum acceptable safety standards for the construction, alteration, maintenance, inspection, testing and operation of elevator facilities in South Carolina.
2. All definitions found in Section 41-16-20 apply to these regulations.
A. "Serious injury" means an injury that results in death or which requires immediate in-patient hospitalization. Fractures and disfigurements are considered serious injuries, even where no hospitalization is required.
B. "Imminent danger" means a condition which exists due to a design, mechanical, structural or electrical defect which presents an excessive risk of serious injury to passengers, operators, or the general public.
(Statutory Authority: 1976 Code Sections 41-16-10 et seq.)
1. All facilities installed after July 1, 1986, shall comply with the officially adopted editions of the ASME A17.1 Elevator Code and all supplements thereto, at the time the permit is issued. In the alternative, manlifts may comply with the 1992 editions of the ANSI A90.1 Safety Standards for Manlifts and all supplements thereto. In the alternative platform and stairway chairlifts may comply with ANSI A18.1 and all supplements thereto. Compliance with any later edition of the required safety codes shall be accepted by the director as compliance with the section.
2. All new facilities shall be free from recognized hazards or defects which may cause serious injury.
3. All safety devices provided by the manufacturer and installed on any new installation shall be maintained so as to operate properly per manufacturer's specifications or be replaced with equivalent equipment.
4. Miscellaneous Safety Requirements for New Installations:
A. A 17.1 , Rule 100.7 is repealed. Substitute Rule 5100-4 A to read in its entirety-Hoistway doors shall have floor numbers, not less than four inches in height, located on the hoistway side of the door within the area allowable for opening by the door restrictor.
B. Electrolysis protection for underground hydraulic elevator cylinders. All newly installed underground hydraulic pressure cylinders shall be encased in an outer plastic containment to minimize electrolytic corrosion.
(1) The plastic casing shall be capped at the bottom and all joints must be solvent or heat welded to insure water tightness.
(2) The plastic casing shall be constructed of polyethylene or polyvinyl chloride (PVC). The plastic pipe wall thickness must not be less than .125 inches (3.551mm).
(3) Replacements of existing hydraulic cylinders shall be protected by the aforementioned method where existing physical dimensions permit.
C. The key switches required to operate firefighters' service on Phase I and II shall use a five pin key, S.C. #1000.
D. A17.1, Rule 106.1(b)(3) is repealed. Sump pumps or drains are not required in elevator pits by these regulations. Where indicated by design consideration, sump pumps or drains shall comply with ANSI A17.1, Rule 106.1(b)(3).
71-5200. Safety Standards for Existing Facilities.
1. All facilities for which construction or relocation was begun or which were in operation prior to July 1, 1986, in South Carolina shall comply with the requirements of the 1986 edition of the ANSI A17.3, the American National Standard Safety Code for Existing Elevators and Escalators. In the alternative, manlifts may comply with the 1985 edition of the ANSI A90.1 Safety Standards for Manlifts and all supplements thereto; existing power sidewalk elevators may comply with A17.1, 1987 edition, part IV; existing hand and power dumbwaiters may comply with A17.1, 1987 edition, part VII; existing special purpose personnel elevators may comply with A17.1, 1987 edition, part XV; and existing inclined stairway chairlifts and vertical wheel chair lifts may comply with A17.1, 1987 edition, part XX or part V, provided the lift is key operated and a sign is installed stating "for handicap use only". Compliance with the requirements of any later edition of the required safety codes shall be accepted by the Commissioner as compliance with this section.
2. All existing facilities shall be free from recognized hazards or defects which may cause serious injury.
3. All safety devices provided by the manufacturer and installed on any existing facility shall be maintained so as to operate properly per manufacturer's specifications, or replaced with equivalent equipment.
4. Miscellaneous Safety Requirements for Existing Facilities.
A. All sumps in pits shall be covered. The cover shall be level with the pit floor.
B. Except where compensating chains or ropes are attached to the counterweight, all counterweights shall be provided with a guard of sufficient size and strength to prevent accidental contact with the counterweight while working in the pit. Where existing clearance does not permit a guard, a warning chain attached to the counterweight would meet this requirement.
C. A permanent lighting fixture shall be provided in all pits, which shall provide an illumination of not less than five (5) footcandles (54 lux) at the pit floor. A light switch shall be located so as to be accessible from the pit access door.
D. Each elevator shall be equipped with switches to interrupt electric power to the elevator driving machine motor and brake. The switches shall be conspicuously marked "Stop" and "Run".
(1) A switch shall be located so as to be accessible from the entry into the pit. If the pit is deeper than seven (7') feet there shall be an additional stop switch which is accessible from the pit floor.
(2) A switch shall be located so as to be accessible from the door to all auxiliary machinery spaces.
E. Escalators shall be equipped with a stop switch located so as to be accessible from the point of access into the machinery space. When opened, this switch shall cause the electric power to be removed from the escalator driving machine motor and brake. The switch shall be conspicuously and permanently marked "Stop" and "Run". No additional stop switch is required when the main disconnect switch is in the machinery space.
F. All ladders in pits shall be mounted adjacent to the side of the door where the unlocking device is located unless clearances prevent this.
G. All light fixtures shall be guarded and maintained in a fully operational condition.
H. Counterweight runby shall not be less than the setting of the top final limit plus two (2) inches,
I. Emergency signaling devices for facilities in unattended buildings shall have a minimum sound rating of 80 db measured ten (10) feet from the device.
J. [Deleted].
K. Car gates, when fully closed, shall extend from the car floor to a height of not less than six (6) feet, where existing overhead clearances permit.
L. All passenger elevators shall be equipped with a standby power source capable of operating emergency lighting and the alarm bell for a period of at least four (4) hours in the event the normal power source fails. No less than two (2) lamps shall be used for emergency lighting.
M. A17.3, Rule 3.11.3 is repealed. Substitute Rule 5200 4 M to read in its entirety:
(1) All automatic (non-designated attendant) operation elevators having a travel of fifty-four (54) feet from the lowest point of entry to the building shall conform to the requirements of ANSI/ASME A17.1, 1987 edition, Rules 211.3 through 211.8.
(2) All elevators having car switch operation or constant pressure operation or manual door opening and closing or nuclear facilities employing high radiation are not required to install Firemans Service.
(3) All existing installations shall have a conspicuous sign installed at each landing immediately adjacent to the push button station to inform the public that in a fire emergency they should not use the elevator but should use the exit stairs.
N. A17.3, Rule 2.7.4 is repealed. Substitute Rule 5200 4 N to read in its entirety: All passenger elevators installed within dormitories, apartment building, motels, hotels, and schools shall comply with the following:
(1) When a car is outside the unlocking zone, the hoistway doors or car doors shall be so arranged that the hoistway doors or car doors cannot be opened more than four (4) inches (102mm) from inside the car.
(2) When the car doors are so arranged that they cannot be opened when the car is outside the unlocking zone, the car doors shall be able to open from outside the car without the use of special tools.
(3) The unlocking zone shall extend from the landing floor level to a point no greater than eighteen (18) inches (457mm) above or below the landing floor level.
O. The owner of an existing facility whose car enclosure is being altered with materials or design different from the original must obtain an alteration permit from the department. At the completion of the alteration, an appropriate test for rated speed and rated load must be performed.
P. All existing passenger elevators equipped with door restrictors shall be provided with floor numbers conforming to the requirements of 71-5100-4-B.
Q. The owner of every facility shall have available on the premises any keys needed for access to machinery spaces and operation of the facility.
A person, firm or corporation shall not erect, construct, alter or install after July 1, 1986, any facility without first obtaining from the Commissioner a construction permit for such work.
2. Registration and Operating Certificate:
A person, firm, or corporation shall not operate any facility serving any building or structure without a certificate of registration and an operating certificate issued by the Commissioner of Labor.
71-5310. Application for Construction Permit, Elevator Registration, and Operating Certificate.
1. Each application for a construction permit for new installation, alteration, or relocation shall be made on a form provided by the Commissioner and shall include three (3) copies of:
A. Detailed plans including:
(1) Sectional plan of car and hoistway;
(2) Sectional plan of machine room;
(3) Sectional elevation of hoistway and machine room, including the pit, bottom and top clearance of car, and counterweight;
(4) Size and weight of guide rails, and guide rail bracket spacing.
B. Name and address of the person who designed the installation for which plans are submitted; and
C. Statement of Contract Price.
2. Each application for a facility registration shall be made on a form provided by the Commissioner and shall include the following for each facility:
A. Name and address of the owner;
B. Location;
C. Manufacturer;
D. Model or Type;
E. Contract load and speed;
F. Purpose or use;
G. Date of installation; and
H. Number of floors.
3. If an owner of a registered facility desires the Department to perform the annual inspection necessary to obtain an operating certificate, no further application for inspection by the Department to obtain an operating certificate is necessary.
4. If an owner desires a special inspector to perform the annual inspection necessary to obtain an operating certificate, the owner shall notify the Department of his intention in writing no less than ninety (90) days prior to the expiration date of the existing operating certificate. The notification must contain the following information:
A. Date;
B. Elevator number and location;
C. Date of Last inspection;
D. Special inspector name and I.D. number;
E. Owner name;
F. Name, signature and title of the individual requesting the special inspector.
Upon request, the Department will provide a form for the owner to submit the above information. This form will be provided free of charge.
After the initial request for use of a special inspector has been made, the licensed special inspector may, in the alternative to further individual annual requests for special inspection, file during the month of January a list of all facilities for which he has inspection contracts for the calendar year. This list shall include:
A. Elevator number and location;
B. Owner's name and name and title of individual contracting with special inspector;
C. Date of last inspection.
In the event a special inspector's contract is cancelled by the owner, the special inspector shall notify the department, in writing, within 30 days. A report of an inspection made not more than thirty (30) days prior to the expiration date of the existing operating certificate must be filed with the Department. The inspection report must be on a form provided by the Department and be received by the Department no later than the expiration date of the existing operating certificate. Where the owner fails to submit a timely notice of inspection by a special inspector or report of inspection, the Department will inspect according to 71-5310 Section 3, whether the request for special inspection was made under paragraph 1 or 2 above.
1. Any applicant for a license as a special inspector shall present evidence of all qualifications as stated in the 1984 edition of QEI-1, The American National Standard for Qualification of Elevator Inspectors, and supplements thereto as adopted by the American National Standards Institute. Submission of a copy of a valid Inspector's Certificate issued by any authority accredited by the American Society of Mechanical Engineers shall be evidence that the applicant has all required qualifications.
2. Each applicant for approval as a special inspector shall submit with his annual application evidence of insurance against errors and omissions (or approved general liability insurance) covering inspections of elevators in an amount of no less than $500,000 per occurrence, procured from one or more insurers licensed to transact insurance in South Carolina or approved as a non-admitted surplus lines carrier for risks located in this State. Each policy, by its original terms or an endorsement, shall obligate the insurer that it will not cancel, suspend, or nonrenew the policy without thirty (30) days written notice of the proposed cancellation, suspension, or nonrenewal and a complete report of the reasons for the cancellation, suspension, or nonrenewal being given to the Commissioner. In the event the liability insurance is cancelled, suspended or nonrenewed, the insurer shall give immediate notice to the Commissioner.
3. No special inspector shall use or disclose information gained in the course of or by reason of his official position for any purpose other than making official inspections. Any special inspector who receives compensation to influence his inspections may have his license revoked.
4. Special inspectors shall conduct all follow-up, safety related complaints, and abatement inspections as called for by the division and shall be responsible for submitting all associated paperwork.
1. All components, devices, and equipment, structures and other related items for facilities shall be inspected upon initial installation or registration, or at the time of alteration or repair prior to issuing an operating certificate and a minimum of one (1) time per year thereafter, prior to renewing an operating certificate.
Exceptions:
a) All nuclear facilities employing high radiation shall be inspected at least once every two (2) years or before use by workers during routine plant shutdown. Such inspections may be scheduled to coincide with routine plant shutdown.
b) Dumbwaiters shall be inspected each time they are installed or altered.
c) Handicap lifts shall be inspected every five (5) years.
d) Manlifts, television tower elevators and special purpose elevators shall be inspected every seven (7) years.
2. Nothing in this section shall be construed to prevent inspections by the State Engineer, the State Fire Marshal, a representative of the South Carolina Board for Barrier Free Design and/or Local Building Officials, within their respective jurisdictions of the facilities, equipment, components, shafts, lobbies and equipment rooms for compliance with any approved codes or standards not part of these rules and regulations.
3. An operating certificate shall be displayed in a conspicuous location within each elevator car, or on a permanent object adjacent to all other types of facilities. In the alternative, a facsimile copy of the original operating certificate may be posted within each elevator car or on a permanent object adjacent to all other types of facilities.
4. Expiration dates within a building may be standardized by pro-rating inspection dates and fees.
5. An owner who desires to operate a new elevator facility on a temporary basis pending completion of a project may apply for a temporary operating certificate. A temporary operating certificate, good for sixty (60) days, will be granted where:
A. the facility is not available for public use;
B. the facility is operated by a qualified operator;
C. the facility complies with all requirements of the ANSI A17.1 and SBC and NEC except:
1. When an accident occurs involving a covered facility and an employee(s) of the owner or lessee, the owner or lessee shall report the accident according to the applicable Occupational Safety and Health regulations, South Carolina Rules and Regulations, Chapter 71, Article 1, Subarticle 3. The owner or lessee of any facility which, during the course of its operation, is involved in an accident which results in a serious injury to any person other than an employee shall report the injury to the Commissioner before the end of the next working day.
The report will include the names and addresses of the injured parties, the hospital where treatment was rendered, type of injuries, type of device involved owner, and any other information pertaining to the events leading up to the nature of and the outcome of the accident, as well as the status of the device involved in the accident.
2. If the inspector finds that a facility presents an imminent danger, he will notify in writing the facility operator, owner or lessee. If the facility is not immediately removed from service, the inspector will file a report of the imminent danger with the Commissioner of Labor. A temporary or permanent restraining order will be sought where appropriate.
A. The fee for a construction permit shall include the fee for registration and the first annual operating certificate of a facility.
Contract Price/Per Facility Fee
$ 1--$ 10,000 $150.00
$ 1--$ 10,000 $200.00
$ 10,001--$ 30,000 $245.00
$ 30,001--$ 50,000 $295.00
$ 50,001--$ 80,000 $340.00
$ 80,001--$100,000 $360.00
$100,001--$200,000 $410.00
$200,001-- up $460.00
B. Fees under 71-5600 include one turn-over inspection. Any return turn-over inspection, for failing to comply will be charged at a rate of $75.00 per hour including travel time.
C. A fee of $250.00 will be charged upon issuance of a temporary certificate, good for a period of no more than sixty (60) days. At the end of sixty (60) days the owner may a) apply for a renewal of a temporary certificate with a fee of $250.00; b) have the elevator ready for a complete turnover inspection; or c) remove the elevator from service.
2. Operating Certificate:
A.(1) The fee for an annual operating certificate, after registration, whether initial or renewal, with inspection by the South Carolina Department of Labor shall be as follows:
Number of Floors Fee
2 to 5 ................................................ $125.00
6 to 12 ............................................... $150.00
13 and above .......................................... $175.00
(2) The fee for an operating certificate, after registration whether initial or renewal, with inspection by the South Carolina Department of Labor, Licensing and Regulation shall be as follows:
Type of Elevator Fee
Handicap lifts ............................ $75.00 every five years
Manlifts .................................. $200.00 every seven years
Television tower .......................... $300.00 every seven years
Special Purpose Personnel Elevators:
2-5 floors ................................ $125.00 every seven years
6-12 floors ............................... $150 every seven years
13 and above floors ....................... $175.00 every seven years
B. The fee for an annual operating certificate, after registration, whether initial or renewal, upon report of a special inspector shall be $35.00 per facility.
C. The fee for a reinspection due to failure to make timely corrections of all deficiencies noted in an annual inspection report will be $75.00 per hour of inspection time, including travel time.
3. License for Special Inspector:
A. The fee for an annual license as a special inspector shall be $200.00.
71-5700. Procedure for Hearing Contested Citations and Assessments of Penalty.
1. Any owner aggrieved by any action taken pursuant to these rules may file a Notice of Protest within thirty (30) days of the date of the action protested.
2. Notice of Hearing.
A. Service: Upon receipt of a Notice of Protest by any owner of any facility, the Commissioner shall serve notice of the time, place, and nature of a hearing to be held to determine the issues.
B. Contests: The Notice of Hearing shall include:
(1) Time, place, and nature of the hearing. The time shall be at least thirty (30) days from the service of Notice of Hearing unless the owner shall ask in writing for a shorter time;
(2) A short statement of the issues involved; and
(3) Designation of the representative of the Commissioner who shall conduct the hearing as Hearing Examiner.
3. Hearing Procedures.
A.(1) The Hearing Examiner will explain briefly the purpose and nature of the hearing, will ascertain who will present the case for each of the parties, and will hear all preliminary matters.
(2) All persons who give testimony shall be sworn.
(3) A party shall be entitled to present all relevant facts by oral or documentary evidence or by affidavit if the parties so agree.
(4) Opposing parties shall have the right to cross-examine any witness whose testimony is introduced.
(5) In all proceedings commenced by the filing of a Notice of Protest, the burden of proof shall rest with the Department of Labor.
(6) A business entity which owns a facility may be represented at any hearing by an attorney licensed to practice in South Carolina, or by an officer or employee of the entity. Where the owner contracts with a property manager whose regular duties include management of the licensed facility, an officer or employee of the property manager may represent the owner.
B. Within a reasonable time after the Hearing Examiner has heard all evidence and considered any written briefs or memoranda submitted, he shall make a written recommendation to the Commissioner. The Commissioner shall then make his final disposition of the proceedings and shall serve it upon all parties.
C. The Commissioner of Labor shall maintain a record of the proceedings which shall include testimony and exhibits.
1. Any owner of any facility may apply to the Commissioner of Labor for a variance, either temporary or permanent, from any rule or regulation under this article.
2. Such variance shall be granted at the discretion of the Commissioner if the owner establishes by sufficient evidence that:
A. He is unable to comply with a rule or regulation because of unavailability of professional or technical personnel or data or of materials, design or equipment needed to come into compliance with the rule or regulation; and
B. He is taking alternative steps to safeguard against the hazard covered by the rule or regulation.
3. A variance application shall include:
A. The name and address of the petitioner;
B. Identifying information concerning the facility for which the variance is sought;
C. A specification of the standard or portion thereof from which the petitioner seeks a variance;
D. A representation by the petitioner, supported by statements from qualified persons having first-hand knowledge of the facts represented, that he is unable to comply with the standards or portion thereof and detailed statement of the reasons thereof;
E. A statement of the steps the petitioner has taken or will take, with specific dates where appropriate, to protect against the hazard addressed by the standard; and,
F. Where a temporary variance is sought, a statement of the time required to achieve compliance with the standard, not to exceed two (2) years.
The effective date of these regulations shall be July 1, 1986.
ARTICLE 6.
PAYMENT OF WAGE ADMINISTRATIVE APPEALS HEARINGS
71-6000. Procedures for Hearing Payment of Wages Administrative Appeals
1. Any employer aggrieved by any citation or penalty assessed pursuant to South Carolina Code Section 41-10-80 may file a Notice of Protest within thirty (30) days of the date of the action protested.
2. Notice of Hearing
a. Upon receipt of a Notice of Protest, the Commissioner shall serve notice of the time, place, and nature of a hearing to be held to determine the issues.
b. The notice of hearing shall include the designation of the representative of the Commissioner who will conduct the hearing as Hearing Examiner, a short statement of the issues involved, and notice of the time and place of the hearing. The time shall be at least thirty (30) days from the service of the notice of hearing unless the employer makes a written request for a shorter time.
3. Hearing Procedure
a. An employer may appear in person or be represented by a lawyer licensed to practice in South Carolina or by a officer or employee of the business.
b. Upon opening the hearing, the hearing examiner will explain briefly the purpose and nature of the hearing, will ascertain who will present the case for each of the parties, and will hear all preliminary matters.
c. All persons who give testimony will be sworn.
d. A party may present all relevant facts by oral or documentary evidence or by affidavit if the parties so agree.
e. Opposing parties shall have the right to cross-examine any witness whose testimony is introduced.
f. In all proceedings commenced by the filing of a Notice of Protest the burden of proof will rest with the Department of Labor.
g. Within a reasonable time after the hearing examiner has heard all evidence and considered any briefs or memoranda submitted, he shall make a written recommendation to the Commissioner. The Commissioner will then make his final disposition of the proceeding and serve it upon the parties.
h. The failure of a protesting party to appear at a hearing shall be deemed a withdrawal of the Notice of Protest and a waiver of all rights except the right to be served with a copy of the order of the Commissioner. Any party who fails to appear without good cause after receiving notice of the time and place of hearing may be taxed with the costs of that hearing in the amount of One Hundred ($100) dollars.
ARTICLE 8.
OFFICE OF STATE FIRE MARSHAL
71-8300. Fire Prevention and Life Safety--Buildings.
A. These regulations are for safeguarding, to a reasonable degree, life and property from fire and other hazards associated with the construction, alteration, repair, use, and occupancy of buildings, structures, or premises. These regulations shall be the minimum standards required by the State Fire Marshal for fire prevention and life safety in all buildings and structures to which they apply, except when they conflict with any existing state statutes.
B. "Existing Building" means a building, structure, or premise for which preliminary or final drawings have been approved by the appropriate agency as provided in these regulations, or buildings where construction has begun, or those occupied on or before the date of adoption of these regulations.
C. "Fire Control" means all activities to control hostile fires.
D. "Fire Prevention" means any activity to prevent fire before fire occurs.
E. "SMC" means the Standard Mechanical Code.
F. "NEC" means National Electrical Code - NFPA 70.
G. "NFPA" means the National Fire Protection Association.
H. "SBC" means the Standard Building Code.
I. "SFPC" means the Standard Fire Prevention Code.
J. "UL" means Underwriters' Laboratories, Inc.
K. "NFPA 101" means the Life Safety Code.
71-8300.2. Application to Construction, Installation, Alterations, and Repairs.
No building or structure shall be constructed, altered, or repaired, nor shall the equipment of a building, structure, or premise be constructed, installed, altered, or repaired except in conformity with these regulations. Existing buildings shall be exempt from these regulations unless otherwise indicated.
Nothing in 71-8300.9 shall apply to buildings constructed, or occupied exclusively as one-and two-family dwellings, barns, and other farm buildings, and one-story buildings not exceeding five thousand square feet in area, other than those used for assembly, educational, institutional, domiciliary (R-1 or R-2), or hazardous occupancies.
71-8300.7. Submission of Plans, Specifications, and Reports.
A. Plans and Specifications.
1. Where work contemplated is regulated by these regulations and enforced by the State Fire Marshal, plans and specifications shall be submitted to the State Fire Marshal or his designee for approval prior to starting such work. Where required by state licensing and regulatory provisions, such plans and specifications shall be prepared by a duly registered architect and/or engineer.
2. Submitted plans, calculations, and specifications for all buildings, structures, systems, or premises shall provide sufficient information to indicate how compliance with state law, regulations, and adopted codes enforced by the State Fire Marshal's Office will be accomplished. Codes shall not be cited in whole or part as a substitute for providing specific information.
3. The State Fire Marshal or other approving authority may revoke any approval issued under the provisions of these regulations where the approval was based on any false statement or misrepresentation of fact in correspondences, plans, specifications, or data.
B. Reporting System.
The local fire chief or his designee shall, within one calendar month of any fire, furnish the State Fire Marshal with a written statement of all the facts relating to its cause, its origin, the kind, the estimated value, ownership of the property damaged or destroyed, and other information called for by the forms furnished by the State Fire Marshal. The fire chief may report to the State Fire Marshal using an electronic format approved by the State Fire Marshal.
A. Alterations, repairs, or rehabilitation work may be done to an existing building, structure, electrical, gas, mechanical, or fire protection system without requiring the entire building, structure, electrical, gas, mechanical, or fire protection system to comply with all the requirements of the adopted codes, provided the work conforms to the requirements of these regulations for new construction.
B. If within any period of twelve months, additions, alterations, or repairs costing more than fifty percent of the appraised market value of the building, excluding land value and site improvements, are made to an existing building, such existing building shall conform with these regulations for the construction of new buildings.
C. If an existing building is damaged by fire, or otherwise, in excess of fifty percent of the appraised market value immediately preceding such damage, when such damage is repaired, the entire building shall conform to the requirements of these regulations for the construction of new buildings.
D. If the occupancy of an existing building is changed, the entire building shall conform to the requirements of these regulations for the new occupancy. If the occupancy of only a portion of an existing building is changed, and that portion is separated from the remainder of the building per 71-8300.9, then only that portion of the building must be made to conform. A change of occupancy shall be considered new construction for the application of these regulations.
E. All new and existing buildings or structures and all parts shall be maintained in a safe condition. All devices and safeguards required by these regulations in a building when erected, altered, or repaired shall be maintained in good working order. The owner or his designated agent is responsible for the maintenance of buildings and structures.
F. The provisions of these regulations relating to the construction, alteration, repair, enlargement, restoration, relocation, or moving of buildings or structures shall not be mandatory for existing buildings or structures listed on national, state, or local historical registers. The State Fire Marshal has authority to approve alternate methods of compliance within the intent of the regulations.
G. Existing short-term rental units must comply with 71-8300.11.
A. Minimum standards for fire prevention and life safety protection in construction, occupancy, and use of all buildings and structures within the scope of these regulations shall be the following chapters and sections of the 1997 edition of the Standard Building Code.
1. Chapter 2;
2. Chapter 3 (omit 306.1.2 and Group R-4 occupancies in 311.2);
3. Chapter 4;
4. Chapter 5 (omit 505);
5. Chapter 6;
6. Chapter 7;
7. Chapter 8;
8. Chapter 9 (omit 903.7.7);
9. Chapter 10;
10. Section 1517;
11. Section 1709;
12. Chapter 28;
13. Sections 3104 and 3106; and
14. Chapter 35.
B. All references to the SBC found in these regulations refer to the edition adopted above. All references to NFPA Standards found in these regulations refer to the editions specified in the SBC unless otherwise stated in these regulations.
71-8300.10. Installation of Electrical Equipment and Systems.
The provisions of NFPA 70, 1996 edition, shall constitute the minimum general standards covering fire prevention and protection of persons and property from hazards from the use of electricity.
71-8300.11. Special Code Provisions which Prevail Over 71-8300.9 and 71-8301.3.B.
A. Fire Alarm Systems.
1. Facilities with fire alarm systems shall be designed, installed, and maintained per the 1996 edition of NFPA 72.
2. Fire alarm systems shall provide off premises notification to the fire department per NFPA 72 for day care centers and schools serving more than one hundred clients, hazardous occupancies, institutional occupancies, and adult residential care facilities licensed for thirteen or more residents.
B. Facilities with Infant Care.
1. This section applies to new construction and is retroactively applied to all infant care facilities within the scope of these regulations. In retroactive applications, the State Fire Marshal has authority to approve alternate methods of compliance within the intent of the regulations.
2. All facilities in South Carolina which provide care for four or more children, twenty-four months of age and under, and who are unattended by a parent or guardian, shall provide the following safeguards. Children under the age of twenty-four months are defined as infants.
a. Rooms for infants shall have one-hour fire separation with a direct exit to the outside. No fire rated separation is required between adjacent infant rooms.
b. Rooms for infants shall have wall covering with a flamespread rating no less than Class C.
c. Rooms used for infants shall not have any type of open flame appliances. Any recirculating air ducts entering the room shall be protected by smoke dampers operated by a smoke sensor or automatic smoke actuated shut-down of air handling equipment per NFPA 90A. Fire dampers shall be installed per the SBC and the SMC.
d. Rooms for infants shall be limited to twelve infants per direct exit. There shall be no more than twenty-four infants per room. If older children are kept in the infant room, they shall be counted as infants for direct exits and room occupancy considerations. Exit doors shall swing in the direction of egress and be a minimum of thirty-six inches wide.
e. Rooms for infants shall have single station smoke alarms placed inside the room and in the adjacent area of the facility near the protected room's entrance. Smoke detectors shall be installed and maintained per NFPA 72.
f. Doors in the required one-hour separation partitions shall be twenty-minute labeled doors equipped with door closures or a smoke actuated hold-open device.
g. A fire plan describing what actions are to be taken by the staff in the event of a fire must be developed, posted, and copies made available to all employees and local fire authorities.
h. A fire drill shall be conducted at least every three months. The owner shall maintain records of drills for three years. Records shall report the date, time, and a description and evaluation of each drill. Fire drills shall include complete evacuation of all persons from the building.
C. Special Requirements for Hospitals, Nursing Homes, and Intermediate Care Facilities.
1. Renovations of existing facilities shall include the addition of fire protection sprinklers. All new construction must be fully sprinklered. All other requirements of this section apply to new construction and retroactively to existing construction unless otherwise specified.
2. In existing facilities, enclosures for stairways, elevator shafts, chutes, and other vertical shafts shall be of not less than two-hour fire resistive construction. Compliance with the SBC is acceptable for new construction.
3. In existing facilities, service openings to chutes, dumbwaiters, conveyors, and other material handling systems shall not be located in corridors or passageways but shall be located in a room enclosed by construction having at least a one-hour fire resistive rating. Doors to such rooms shall not be less than Class C labeled, 3/4-hour fire rated. Service entrance doors to chutes and vertical shafts containing dumbwaiters, conveyors, and material handling systems shall be not less than Class B labeled, 1 1/2 -hour fire rated and shall be self-closing. Compliance with the SBC is acceptable for new construction.
4. Gases (flammable and nonflammable) shall be handled and stored per the applicable provisions of NFPA 99, 1996 edition.
5. Flammable and combustible liquids shall be stored and handled per NFPA 30, 1996 edition.
6. Fire extinguishers intended for use in patient areas shall be of the 2-A, two and one-half gallon stored-pressure water type. A 4-A: 40-BC minimum classification fire extinguisher shall be installed in the following hazardous areas: kitchen, laundry room, and any other area having an unusual fire hazard. At least one 2-A: 10 BC minimum classification fire extinguisher shall be located at each nurse's station.
7. Existing facilities shall provide an electrically supervised manual fire alarm system per the provisions found in the NFPA standard in effect at the time of first licensure.
8. Each existing facility having more than ten beds must have a manual fire alarm system per the provisions of the NFPA standard in effect at the time of first licensure. The system shall be connected either directly or through a central station facility to the public fire department or other outside assistance as may be available in case of fire or other emergency.
9. In existing facilities, an approved automatic smoke detection system shall be installed in all corridors. Such system shall be installed per the NFPA standards in effect at the time of first licensure. Smoke detectors shall not be spaced farther apart than thirty feet on centers or more than fifteen feet from any wall. The system shall be electrically interconnected to the fire alarm system as well as to all hold-open devices on smoke doors and fire doors within a fire zone.
EXCEPTION: Where each patient sleeping room is protected by such an approved detection system and a local detection device is provided at each smoke door, such corridor system shall not be required on the patient sleeping room floors. This requirement does not apply to facilities constructed prior to April 23, 1979.
10. In all facilities, smoke doors within a fire zone shall automatically close upon actuation of the manual fire alarm system, waterflow, or activation of the automatic sprinkler or fire suppression system, or any automatic detection devices in that fire zone.
EXCEPTION: Elevator Recall for Fire Fighters' Service installed per NFPA 72.
11. In all facilities, a fire protection plan describing what actions are to be taken by the staff in event of a fire must be developed and copies made available to all employees and the local fire authority.
12. Each employee shall receive initial fire protection training on the following:
a. the fire plan;
b. how to report a fire;
c. how to use the fire alarm system;
d. the location and use of fire fighting equipment;
e. methods of fire containment;
f. specific responsibilities of the individual as well as other individuals.
13. A fire drill shall be conducted for each shift at least once every three months. Records shall be maintained to report the date, time, shift, description, and evaluation of the drill.
14. In new construction, the fire alarm systems must comply with the requirements of SBC and NFPA 72.
15. Hospitals and nursing homes must maintain compliance with all SBC, NFPA, and SFPC requirements in effect at the time of first licensure.
D. Specific Requirements for Adult Residential Care Facilities.
1. Unless otherwise indicated, all requirements of this section apply to new construction and apply retroactively to adult residential care facilities. In retroactive applications, the State Fire Marshal has authority to approve alternate methods of compliance within the intent of the regulations.
2. Adult residential care facilities are defined as buildings, structures, or any portion thereof, used for providing boarding and lodging facilities for twenty-four or more consecutive hours to persons who are aged, physically, mentally, or developmentally disabled, and persons who may need a degree of personal care or supervision.
a. All residents shall be capable of self-evacuation within three minutes of an alarm. Residents not capable of self-evacuation within three minutes are considered incapable of self-preservation.
b. Facilities complying with the requirements of Intermediate Care Facilities Mental Retardation-fifteen beds or less (ICFMR-15) may house up to three residents incapable of self-preservation.
c. ICFMR-15 compliant facilities and adult residential care facilities housing four or more residents incapable of self-preservation must be sprinklered per NFPA 13.
d. Full compliance with NFPA 101, 1997 edition, "Board and Care Facilities" standards is an acceptable alternative to an NFPA 13 sprinkler system, unless an NFPA 13 sprinkler system is required elsewhere in state statute, regulations, or adopted codes.
e. Residents incapable of self-preservation may not be located above or below the level of exit discharge.
f. The fire alarm system shall transmit an alarm automatically to the fire department serving the facility and shall comply with the appropriate NFPA standard.
3. All adult residential care facilities licensed for five or fewer residents shall meet all requirements for R-3 Occupancies per the SBC and have:
a. Single station smoke detectors installed in the hallways and within every sleeping room per NFPA 72;
b. Backup powered emergency lights installed to light exit egress;
c. Heating devices:
i. All heating devices must be selected, used, and installed per the applicable NFPA standard, the manufacturer's recommendations, and listing conditions set by an approved testing laboratory;
ii. Portable electric heaters may be used for emergencies and supplemental heating. Portable heaters in client areas shall be guarded to prevent burn injuries. The maximum exposed surface temperatures for portable electric heaters shall not exceed 68° F for metallic parts and 108° F for nonmetallic parts;
iii. Unguarded open flame heaters may be used only during emergencies when electrical power is not available;
iv. Unvented gas heaters shall have an operating oxygen depletion device and an operating safety shutoff device;
d. Fire extinguishers shall be sized, installed, and maintained per NFPA 10;
e. Drapes or curtains not constructed of flame resistant material shall be treated and maintained fire resistant per the manufacturer's instructions;
f. In areas not protected by a fire department, a contract with the nearest fire department shall be secured if possible;
g. Extension cords are permitted only with portable appliances or fixtures as allowed by the NEC;
h. Manufactured housing, mobile homes, or campers are prohibited for residential care;
i. A telephone is required. A coin operated telephone will not meet this requirement;
j. Smoking will be allowed only in designated areas. No smoking is permitted in the bedrooms;
k. One safety ramp shall be installed for facilities serving handicapped clients;
l. A fire drill shall be conducted at least every three months. Records shall be maintained for three years and report the date, time, description, and evaluation of each drill. Fire drills shall include complete evacuation of all persons from the building and;
m. A fire plan describing what actions are to be taken by the staff in the event of a fire or other emergency must be developed. This plan shall note the location of all clients temporarily incapable of self-preservation. The plan shall be posted and copies made available to all employees and the local fire authority.
4. All adult residential care facilities licensed for six to twelve residents shall meet the requirements for R-2 Occupancies per SBC, the requirements of 71-8300.11.D.3 above and the following:
a. All partitions that separate sleeping rooms or that separate sleeping rooms from other portions of the building shall be of not less than one-hour fire resistant construction. Fire rated separations shall be constructed per the SBC; and
b. For facilities equipped with an automatic sprinkler and a fire alarm system, door closures on individual sleeping rooms may be omitted.
5. All adult residential care facilities licensed for thirteen or more residents shall meet all the requirements in 71-8300.11.D.3 and 71-8300.11.D.4 in addition to:
a. Facilities shall have an approved underhood automatic extinguishing system in the kitchen;
In the alternative the owner may adopt a controlled cooking plan. The owner shall submit a letter to the State Fire Marshal confirming there will be no surface or deep fat frying done in the facility. The owner will post a sign over the stove stating this policy. Failure to follow the controlled cooking plan will require installation of a commercial hood system with an automatic fire extinguishing system.
b. No resident bedroom shall be approved if access is through kitchen, bathrooms, closets, or similar spaces;
c. In existing facilities:
i. Smoke detectors shall be installed in each sleeping room. When more than one smoke alarm is required, they shall all be tied together as a system so when one smoke detector is activated, all smoke alarms will activate to alert all persons in the building. All smoke detection systems shall be one hundred ten volt type with battery or auxiliary power back-up. These systems shall comply with NFPA 72A, 1997 edition, and 72E, 1997 edition. All system components shall be UL listed and installed per the conditions of their listing and the manufacturer's recommendations; or
ii. A fire alarm system complying with NFPA 72 will be accepted; and
d. In new facilities, fire alarm systems must comply with the requirements of SBC and NFPA 72.
E. Child and Adult Day Care Facilities.
1. All child and adult day care facilities with thirteen or more clients receiving care, maintenance, and supervision for less than twenty-four hours but more than four hours per day shall be considered educational occupancy and comply with the following requirements. Child day care facilities with four or more infants shall comply with the requirements of 71-8300.11.B., Facilities with Infant Care.
a. A listed smoke detector shall be installed and maintained per NFPA 72 in every room occupied by clients excluding bathrooms. Existing facilities may use single station smoke detectors.
b. Special protective covers for electrical receptacles shall be installed on all receptacles located in areas occupied by clients.
c. Facilities shall have an approved underhood automatic extinguishing system in the kitchen.
In the alternative the owner may adopt a controlled cooking plan. The owner shall submit a letter to the State Fire Marshal confirming there will be no surface or deep fat frying done in the facility. The owner will post a sign over the stove stating this policy. Failure to follow the controlled cooking plan will require installation of a commercial hood system with an automatic fire extinguishing system.
2. All adult day care facilities with twelve or fewer clients receiving care, maintenance, and supervision for less than twenty-four hours but more than four hours per day shall be considered residential occupancy.
3. A fire drill shall be conducted at all child and adult day care facilities per the SFPC for educational occupancies. Records of drills shall be maintained for a period of three years and report the date, time, description, and evaluation of each drill. Fire drills shall include complete evacuation of all persons from the building.
4. A fire plan describing what actions are to be taken by the staff of child and adult day care facilities in the event of a fire or other emergency must be developed. This plan shall note the location of all crib infants in child day care facilities. The plan shall be posted and copies made available to all employees and the local fire authority.
5. Places of worship which operate a nursery for the care of children and/or infants during worship services or for other church related activities, provided these activities do not last longer than four hours, are exempt from child and/or infant care regulations.
6. All child group day care facilities with at least seven clients but not more than twelve clients receiving care, maintenance, and supervision for less than twenty-four hours but more than four hours per day shall be considered residential occupancy and comply with the following requirements:
a. Mixed occupancies
i. Group day care facilities shall be separated from other type occupancies (excluding owner residence) by a one-hour fire barrier constructed per the SBC.
ii. All group day care facilities located in R-2 occupancies shall be located on the floor of exit discharge.
b. Exits
i. Each group day care facility occupied by clients shall have at least two independent means of escape as defined in NFPA 101, 1997 edition; and
ii. Group day care facilities for clients in the first grade or younger must be located on a floor of exit discharge.
c. Special Requirements
i. The doorway between the level of exit discharge and any floor below shall be equipped with a self-closing 1 3/4 "' solid core wood door or a labeled fire rated door;
ii. Group day care is prohibited in manufactured housing (mobile homes);
iii. A fire plan describing what actions are to be taken by the staff in the event of a fire must be developed, posted, and copies made available to staff members and the local fire department. This plan shall note the location of all crib infants; and
iv. A fire drill shall be conducted per the SFPC for educational occupancies. Records of drills shall be maintained for a period of three years and report the date, time, description, and evaluation of each drill. Fire drills shall include complete evacuation of all persons from the building.
d. The interior finish in occupied spaces and exits in group day care facilities shall be a minimum of Class C.
e. A listed smoke detector shall be installed and maintained per NFPA 72 in every room occupied by clients excluding bathrooms.
f. At least one portable fire extinguisher with a minimum classification of 2A: 10BC shall be installed in cooking areas. Fire extinguishers shall be maintained per NFPA 10.
g. Special protective covers for electrical receptacles shall be installed on all receptacles located in areas occupied by clients.
h. Heating devices
i. All heating devices must be selected, used, and installed per the applicable NFPA standard, the manufacturer's recommendations, and listing conditions set by an approved testing laboratory;
ii. Portable electric heaters may be used for emergencies and supplemental heating. Portable heaters in client areas shall be guarded to prevent burn injuries. The maximum exposed surface temperatures for portable electric heaters shall not exceed 68° F for metallic parts and 108° F for nonmetallic parts;
iii. Unguarded open flame heaters may be used only during emergencies when electrical power is not available;
iv. Unvented gas heaters shall have an operating oxygen depletion device and an operating safety shutoff device; and
v. Fireplaces shall be equipped with fire screens, partitions, or other means to protect clients from burns.
i. Group day care facilities with four or more infants shall comply with the requirements of 71-8300. 11.B., Facilities with Infant Care.
7. All child family day care facilities that require licenses, with six or fewer clients receiving care, maintenance, and supervision for less than twenty-four hours but more than four hours per day shall be considered residential occupancy and comply with the following requirements:
a. Mixed occupancies
i. Child family day care facilities shall be separated from other type occupancies (excluding owner residence) by a one-hour fire barrier constructed per the SBC; and
ii. Child family day care facilities located in R-2 occupancies shall be located on the floor of exit discharge.
b. Exits
i. Each child family day care facility occupied by clients shall have at least two independent means of escape as defined in NFPA 101, 1997 edition; and
ii. Child family day care facilities for clients in the first grade or younger must be located on a floor of exit discharge.
c. Special requirements
i. The doorway between the level of exit discharge and any floor below shall be equipped with a self-closing 1 3/4 "' solid core wood door or a labeled fire rated door;
ii. A fire plan describing what actions are to be taken by the staff in the event of a fire must be developed, posted, and copies made available to staff members and the local fire department. This plan shall note the location of all crib infants; and
iii. A fire drill shall be conducted every three months. Records of drills shall be maintained to report the date, time, description, and evaluation of each drill. Fire drills shall include complete evacuation of all persons from the building.
d. The interior finish in occupied spaces and exits in child family day care facilities shall be a minimum of Class C.
e. A listed smoke detector shall be installed and maintained per NFPA 72 in every room occupied by clients excluding bathrooms.
f. At least one portable fire extinguisher with a minimum classification of 2A: 10BC shall be installed in cooking areas.
g. Special protective covers for electrical receptacles shall be installed on all receptacles located in areas occupied by clients.
h. Heating devices
i. All heating devices must be selected, used, and installed per the applicable NFPA standard, the manufacturer's recommendations, and listing conditions set by an approved testing laboratory;
ii. Portable electric heaters may be used for emergencies and supplemental heating. Portable heaters in client areas shall be guarded to prevent burn injuries. The maximum exposed surface temperatures for portable electric heaters shall not exceed 68° F for metallic parts and 108° F for nonmetallic parts;
iii. Unguarded open flame heaters may be used only during emergencies when electrical power is not available;
iv. Unvented gas heaters shall have an operating oxygen depletion device and an operating safety shutoff device; and
v. Fireplaces shall be equipped with fire screens, partitions, or other means to protect clients from burns.
i. Group day care facilities with four or more infants shall comply with the requirements of 71-8300. 11.B., Facilities with Infant Care.
F. Foster Care Facilities.
1. Foster homes providing care, maintenance, and supervision for no more than six children, to include the natural or adopted children of the foster parent, shall be considered R-3 and comply with the following requirements.
a. A listed smoke detector shall be installed and maintained per NFPA 72 in bedrooms where foster children sleep and in the hallway leading to bedrooms.
b. As a minimum, one fire extinguisher with a minimum classification of 2A:10BC shall be located in the cooking area. Fire extinguishers shall be installed and maintained per NFPA 10.
c. Each facility housing foster children shall have two independent means of escape as defined in NFPA 101, 1997 edition.
d. Heating devices
i. All heating devices must be selected, used, and installed per the applicable NFPA standard, the manufacturer's recommendations, and listing conditions set by an approved testing laboratory;
ii. Portable electric heaters may be used for emergencies and supplemental heating. Portable heaters in client areas shall be guarded to prevent burn injuries. The maximum exposed surface temperatures for portable electric heaters shall not exceed 68° F for metallic parts and 108° F for nonmetallic parts;
iii. Unguarded open flame heaters may be used only during emergencies when electrical power is not available;
iv. Unvented gas heaters shall have an operating oxygen depletion device and an operating safety shutoff device; and
v. Fireplaces shall be equipped with fire screens, partitions, or other means to protect clients from burns.
e. A fire plan describing what actions are to be taken by the family in the event of a fire must be developed, posted, and copies made available to the local fire department. This plan shall note the location of all crib infants.
f. A fire drill shall be conducted every three months. Records of the drills shall be maintained on the premises for three years. The records shall give the date, time, weather condition during the drill, number evacuated, description, and evaluation of the fire drill. A fire drill shall be conducted within twenty-four hours of the arrival of each new foster child. Fire drills shall include complete evacuation of all persons from the building.
g. All resident bedrooms shall have emergency egress openings per the SBC.
h. Foster homes with four or more infants shall comply with the requirements of 71-8300. 11.B., Facilities with Infant Care.
G. Short-Term Rental Units
1. This regulation shall apply to all short-term rental units (rental units on a daily or weekly basis). Nothing herein shall apply to condominiums or individually owned residential units which are not used as defined in short-term rental. Every room, open to the public, that is located in any building used for short-term rental shall contain a notice as listed in (a), (b), and (c) below. The information shall be legibly printed on a placard or decal 8 1/2 "' in size, prominently affixed on the inside of every exit door in the buildings described above. When affixed, the notices shall not be obstructed by curtains, shades, or other materials.
a. Safety Tips
i. Never smoke in bed;
ii. Locate exits on this floor;
iii. Count the number of doors to the nearest exit;
iv. Check windows to see if and how they open;
v. Keep room key on table next to bed, or when applicable, always keep your key in the same location; and
vi. If you leave your room (or apartment when applicable), keep door closed and take your key.
b. In case of fire
i. Don't panic; remain calm;
ii. Report fire to front desk (or manager or fire department if appropriate);
iii. If room is smokey, get on hands and knees (or stomach) and crawl to the door;
iv. Feel door knob; if hot, do not open door. If door is cool, open slowly;
v. If hallway is smokey, stay next to wall and crawl to exit;
vi. Do not use elevator;
vii. Do not prop doors to exit staircase open; and
viii. Hang on to handrail and walk down the exit staircase. If heavy smoke is encountered, turn around and walk up to roof. Don't let go of handrail.
c. If you cannot leave this room
i. Call front desk (or manager if appropriate) and let them know where you are;
ii. Wet sheets and towels and stuff them in all cracks around doors and vents;
iii. If available, turn on bathroom fan;
iv. Check to see if smoke is outside window; if no smoke, open window;
v. Fill bathtub with cold water for fire fighting;
vi. Using ice bucket, keep doors and walls wet;
vii. Fold a wet towel in a triangle and tie over your nose and mouth; stay low;
viii. If possible, hang a sheet out your window and make yourself visible to rescue personnel. Don't jump; and
ix. Keep fighting fire until help arrives. Don't give up.
2. In addition to the notices placed on the inside of exit doors in the short-term rental unit, a notice shall be affixed or placed on the counter or other prominent location of the rental office of all short-term rental units. The notice shall be legibly printed in a minimum of forty-eight point type and shall not be obstructed. The following information, as applicable to the building, shall be printed on the notice.
a. For your safety, this building has the following:
i. automatic sprinkler protection in every room;
ii. automatic sprinkler protection in every hallway;
iii. automatic smoke detectors in every room;
iv. automatic smoke detectors in every hallway;
v. fire extinguishers on every floor;
vi. fire alarm pull stations at every exit;
vii. posted evacuation plans in every room;
viii. pressurized staircase with self-closing doors. (NOTE: In case of fire, do not prop doors open.);
ix. fire safe staircase with self-closing doors. (NOTE: In case of fire, do not prop doors open.);
x. emergency lighting and exit lights; and
xi. fire resistant draperies and bedding.
71-8300.12. Alternate Materials and Alternate Methods of Construction.
A. The provisions of these regulations are not intended to prevent the use of any material or method of construction not specifically prescribed by the fire prevention and life safety standards of these regulations. The State Fire Marshal has the authority to approve alternative methods of compliance within the intent of these regulations, after finding that the materials and method of work offered is for the purpose intended, at least the equivalent of that prescribed in these regulations in quality, strength, effectiveness, fire resistance, durability, and safety. The State Fire Marshal shall require sufficient evidence or proof be submitted to substantiate any claim that may be made regarding use of alternative materials and methods.
B. Compliance with NFPA 101, 1997 edition, may be used for consideration of alternative methods if found suitable by the State Fire Marshal.
71-8300.15. Statutes, Provisions of Other Codes, and Ordinances.
No provision of this subarticle shall apply to the extent that it is in conflict with any statute of this State, any provision of any building or other code duly adopted by ordinance of a municipality, or any duly adopted ordinance of any municipality. In the event of a conflict, such statute, other provision, or ordinance shall apply in all respects.
These regulations are for the purpose of safeguarding, to a reasonable degree, life and property from the hazards of fire and explosion arising from the storage, handling, and use of hazardous substances, materials, and devices, and from conditions hazardous to life or property in the use of buildings, structures, or premises.
A. The provisions of the 1997 edition of the Standard Fire Prevention Code shall constitute the minimum general standard covering the protection of life and property from the hazards of fire and explosion due to storage, use, and handling of hazardous materials, substances and devices, and to provide for minimum hazards to life and property due to panic, exclusive of those hazards considered in building code regulations, provided that the following chapters and sections are hereby deleted and do not constitute a part of the code which is adopted by reference herein.
Prior regulations pertaining to the contents of these regulations are hereby canceled and suspended; however, Regulation 71-8301.3 is intended to be in addition to and complementary with Regulation 71-8300.8.
71-8301.5. Statutes, Provisions of Other Codes, and Ordinances.
No provision of this subarticle shall apply to the extent that it is in conflict with any statute of this State, any provision of any building or other code duly adopted by ordinance of a municipality, or any duly adopted ordinance of any municipality. In the event of such a conflict, such statute, other provision, or ordinance shall apply in all respects.
The provisions and definitions contained in the NFPA 30, 1996 edition "Flammable and Combustible Liquids Code" shall constitute the minimum general standard covering the protection of life and property from the storage, handling, and use of flammable and combustible liquids. All appendices and referenced publications listed in NFPA 30, 1996 edition, are hereby adopted by reference.
(Statutory Authority: South Carolina Explosives Control Act Section 8, 1976 CodeSection 23-36-80, as amended)
A. The provisions contained in NFPA 495 entitled Explosive materials code, 2001 edition, including appendices A, B, C, and D.2 and D.3, shall constitute the minimum standard for the manufacture, transportation, use and storage for all explosives in South Carolina, except as modified herein.
The following code sections in NFPA 495 are not adopted in South Carolina:
Section 1.1.3
Section 4.1.8
Section 4.6.3
Section 4.7.1 note (2)
Section 7.3.5 Exception 2
Appendix A section A.1.4
This regulation does not apply to the sale or storage of fireworks as regulated by the Department of LLR, Board of Pyrotechnic Safety.
71-8302.3. Licenses and Permits for the Sale, Storage, and Use of Explosive Materials.
A. Licenses
Licenses and permits shall be obtained from the State Fire Marshal as based upon the requirements in Section 23-36-40 of SC Code of Laws and NFPA 495 Table 4.3.2
B. Restrictions.
The following are restrictions that apply to all licenses:
1. No license shall be assigned or transferred;
2. Licenses shall be classified, dated, numbered, and be valid for two years from date of issue;
3. A blaster's license shall bear name, address, photograph, and any other identifying information as deemed necessary by the State Fire Marshal;
4. Criminal background checks shall be conducted on all blaster license applicants. All checks shall be conducted at the expense of the applicant for licensure.
C. Blasting Permits.
1. Permits for blasting shall include the following information:
a. site of blasting;
b. name and license number of blaster;
c. amount and type of explosive materials;
d. proximity of gas lines, power transmission lines, public roads, and waterways;
e. purpose of blasting: and
f. corporate name, if any.
D. Magazine Permits.
1. The permit form shall contain the following information regarding the exact physical location:
a. town and county;
b. street address;
c. location from other magazines and buildings;
d. owner's name;
e. quantity of explosives being stored;
f. license number (dealer or blaster): and
g. type of explosive materials.
2. Prior to use, each magazine shall be inspected and approved by personnel of the Office of State Fire Marshal.
3. All magazines shall be placarded on all four sides. Placards shall be a minimum of 8 inches in height, and letters of at least 3 inches in height.
4. Giving false information or making a misrepresentation to obtain a license or permit.
E. The State Fire Marshal may suspend a license or permit pending disposition of a felony charge brought against a licensee or permittee which involves the use of explosives. The State Fire Marshal may accept a relief from disability incurred by reason of a criminal conviction of any crime punishable by a term of imprisonment exceeding two years that has been granted by the Director of the Bureau of Alcohol, Tobacco and Firearms, United States Department of the Treasury, Washington, D.C., pursuant to Section 55.142, Subpart H, Title 27, Code of Federal Regulations and Title 18 United States Code, Chapter 40, Section 845(b).
A. Each licensed blaster shall keep records of each blast. All records including seismograph reports shall be retained for at least five years and shall be available for inspection by the Office of State Fire Marshal and shall contain the following minimum data:
1. name of company or contractor;
2. location, date, and time of blast;
3. name, signature, and license number of blaster in charge;
4. type of material blasted;
5. number of holes, burden and spacing;
6. diameter and depth of holes;
7. types of explosives used;
8. total amount of explosives used;
9. maximum amount of explosives per delay period of 8 milliseconds or greater;
10. method of firing and type of circuit;
11. direction and distance in feet to nearest dwelling house, public building, school, church, commercial or institutional building neither owned nor leased by the person conducting the blasting;
12. weather conditions;
13. type and height or length of stemming;
14. whether mats or other protections were used;
15. type of delay electric blasting caps used and delay periods used;
16. exact location of seismograph, if used, and the distance of seismograph from blast as indicated accurately by the person taking the seismograph reading;
17. seismograph records, where required including:
a. name of person and firm analyzing the seismograph record: and
b. seismograph reading
18. maximum number of holes per delay period of eight milliseconds or greater: and
19. blaster's report if deemed necessary by Office of State Fire Marshal. This report will be completed on forms provided by the Office and submitted within three working days of the blast.
A. This section sets forth additional requirements to supplement NFPA 495 and provide for safe blasting operations.
1. If, as a result of a blast, the vibrational levels are exceeded or material is hurled through the air causing damage to homes or other property, or causing personal injury or death, or endangering public safety, health and general welfare, in violation of these regulations, the Office of State Fire Marshal may consider this due cause for revocation of blaster's license and assess penalties.
2. The contractor or operator, as well as the blaster, shall be responsible for the conduct of blasting on any operation.
3. These regulations are in no way intended to relieve the contractor or operator or other persons of responsibility and liability under any other laws.
4. The State Fire Marshal may require a seismograph be used on any blasting operation in which he feels that damage to personal property has or may occur.
5. A seismograph shall be used on all blasting operations that occur within 1500 feet of an inhabited structure, and in every instance where the scaled distances shown in NFPA 495 are not followed with the written approval of the State Fire Marshal.
A. This section sets forth additional requirements for firing the blast.
1. A warning signal shall be given before every blast. Warning signals shall comply with the following:
a. Warning signal is a 1 minute series of long horn or siren blasts 5 minutes prior to the blast signal.
b. Blast signal is a series of short horn or siren blasts 1 minute prior to the shot.
c. All clear signal is a prolonged horn or siren blast following the inspection of the blast area.
2. Before a blast is fired, a loud warning signal shall be given by the licensed blaster in charge, who has made certain that all surplus explosives have been returned to the magazine, and all employees, vehicles, and equipment are at a safe distance or under sufficient cover.
A. All costs incurred by the State Fire Marshal for investigations involving explosives or blasting operations shall be reimbursed to the State by the individual or company involved in the investigation. Such reimbursements will only apply when the individual or company has been found in violation of the State Explosives Control Act or these Regulations.
A. This section provides licensees and permittees the opportunity to request variances of the promulgated regulations under specific conditions.
1. The State Fire Marshal may grant variances if it can be demonstrated the variance improves safety conditions or that the variance will provide such safe conditions as those which would prevail if there was compliance with the standard.
2. Such a variance may be modified or revoked by the State Fire Marshal.
71-8303.1. National Fire Protection Association Pamphlets No. 30 and 30A.
The applicable provisions and definitions contained in the NFPA 30, 1996 edition and 30A, 1996 edition, shall constitute the minimum general standards for the protection of life and property from the hazards of storing, handling, and use of flammable and combustible liquids at service stations. All referenced publications listed in NFPA 30 and 30A are hereby adopted by reference.
Exception 1: Unattended self-service stations as addressed in Section 9-5.2 of NFPA 30A, 1996 edition, shall only be allowed where key and card lock type dispensing devices are used.
Exception 2: Automatic fueling clips shall be allowed.
Exception 3: The aboveground storage of flammable and combustible liquids shall comply with South Carolina Code (1976 as amended) Section 39-41-260.
71-8304.1. National Fire Protection Association Pamphlet No. 58.
The applicable provisions and definitions contained in the NFPA Pamphlet No. 58, 1998, edition, and all referenced pamphlets therein, as provided by Section 39-43-30, shall constitute the minimal general standards covering the design, construction, location, installation and operation of equipment for storing, handling, transporting by tank truck or tank trailer, and utilizing liquefied petroleum gases and the odorization of such gases and the degree thereof.
A. The purpose of this regulation is to provide reasonable safety and protection to the general public, display operator, and public and private property when viewing a public fireworks display. (See definition of "public display.")
B. This regulation shall apply to the construction for shells and mortars, handling, use and transportation of fireworks intended solely for public display. It shall also apply to the general conduct and operation of the display.
C. This regulation shall not apply to the manufacture, sale, or storage of fireworks.
D. This regulation shall not apply to the transportation, handling, and/or use of fireworks by the Armed Forces of the United States, law enforcement officials and/or the State Fire Marshal or his designated representative, provided that they are acting within their respective official capacities in emergency situations that present a clear and present danger to public safety.
E. This regulation shall not apply to the transportation, handling, or use of industrial pyrotechnic devices or fireworks, such as railroad torpedoes, fuses, and automotive, aeronautical, and marine flares and smoke signals.
A. For the purpose of these regulations, the following terms shall mean:
1. "Authority Having Jurisdiction" means the Office of the State Fire Marshal or the fire department supplying fire suppression equipment and personnel of the municipality or county where a display is to take place.
2. "Black Match" means a fuse made from thread impregnated with black powder and used for igniting pyrotechnic devices.
3. "Boxed Finale" means a number of mortars grouped closely together and contained by a suitable frame. The mortars are loaded prior to the display and fused for rapid sequence firing.
4. "Break" means an individual effect from an aerial shell; generally either color (stars) or noise (salute). Aerial shells can be single-break (having only one effect) or multiple-break (having two or more effects).
5. "Colored Pot" means a paper tube containing pyrotechnic composition that produces a colored flame on ignition. Colored pots are used in the construction of ground display pieces.
6. "Discharge Site" means the area immediately surrounding the mortars used to fire the aerial shells.
7. "Finale Rack" means a row of closely spaced two inch (51 mm) or three inch (76 mm) (inside diameter) mortars held in a wooden frame. It is similar to a boxed finale.
8. "Fireworks" means any composition or device for the purpose of producing a visible or an audible effect by combustion, deflagration, or detonation, and which meets the definition of "common" or "special" fireworks as set forth in the United States Department of Transportation (DOT) Hazardous Materials Regulations, Title 49, Code of Federal Regulations, Parts 173.88 and 173.100.
a. The following are exceptions:
i. toy pistols, toy canes, toy guns, or other devices in which paper and/or plastic caps, manufactured in accordance with United States Department of Transportation regulations, 49 CFR 173.100(p), and packed and shipped according to said regulations, are not considered to be fireworks and shall be allowed to be used and sold at all times;
ii. model rockets and model rocket motors designed, sold, and used for the purpose of propelling recoverable aero models are not considered to be fireworks;
iii. propelling or expelling charges consisting of a mixture of sulfur, charcoal, and saltpeter are not considered as being designed for producing audible effects; and
iv. items designed in 9.d. of the definition of "Common Fireworks."
9. "Common Fireworks" means any small firework device designed primarily to produce visible effects by combustion and which must comply with the construction, chemical composition and labeling regulations of the United States Consumer Products Safety Commission, as set forth in Title 16, Code of Federal Regulations, Part 1507. Some small devices designed to produce audible effects are included, such as whistling devices, ground devices containing 50 milligrams or less of explosive composition, and aerial devices containing 130 thirty milligrams or less of explosive composition. Common fireworks are classified as Class C explosives by the United States Department of Transportation and include the following:
a. Ground and Hand-held Sparkling Devices.
i. "Dipped Stick; Sparkler" means stick or wire coated with pyrotechnic composition that produces a shower of sparks upon ignition. Total pyrotechnic composition may not exceed 100 grams per item. Those devices containing any perchlorate or chlorate salts may not exceed 5 grams of pyrotechnic composition per item. Wire sparklers which contain no magnesium and which contain less than 100 grams of composition per item are not included in this category, in accordance with United States Department of Transportation regulations.
ii. "Cylindrical Fountain" means cylindrical tube not more than 3/4 inches (19 mm) inside diameter, containing up to seventy-five grams of pyrotechnic composition. Upon ignition, a shower of colored sparks, and sometimes a whistling effect, is produced. This device may be provided with a spike for insertion into the ground (spike fountain), a wood or plastic base for placing on the ground (base fountain), or a wood or cardboard handle, if intended to be hand-held (handle fountain).
iii. "Cone Fountain" means cardboard or heavy paper cone containing up to 50 grams of pyrotechnic composition. The effect is the same as that of a cylindrical fountain.
iv. "Illuminating Torch" means cylindrical tube containing up to 100 grams of pyrotechnic composition. Upon ignition, colored fire is produced; may be spike, base, or hand-held.
v. "Wheel" means pyrotechnic device attached to a post or tree by means of a nail or string. Each wheel may contain up to 6 "driver" units: tubes not exceeding 1/2 inch (12.5 mm) inside diameter and containing up to 60 grams of pyrotechnic composition. Upon ignition, the wheel revolves, producing a shower of color and sparks and, sometimes, a whistling effect.
vi. "Ground Spinner" means small device similar to a wheel in design and effect and placed on the ground and ignited. A shower of sparks and color is produced by the rapidly spinning device.
vii. "Flitter Sparkler" means narrow paper tube filled with pyrotechnic composition that produces color and sparks upon ignition. This device does not have a fuse for ignition. The paper at one end of the tube is ignited to make the device function.
b. Aerial Devices.
i. "Sky Rocket" means tube not exceeding 1/2 inch (12.5 mm) inside diameter that may contain up to twenty grams of pyrotechnic composition. Sky rockets contain a wooden stick for guidance and stability and rise into the air upon ignition. A burst of color, noise, or both is produced at the height of flight.
ii. "Missile-type Rocket" means a device similar to a sky rocket in size, composition, and effect that uses fins rather than a stick for guidance and stability.
iii. "Helicopter, Aerial Spinner" means a tube not more than 1/2 inch (12.5 mm) inside diameter and containing up to 20 grams of pyrotechnic composition. A propeller or blade is attached which, upon ignition, lifts the rapidly spinning device into the air. A visible or audible effect is produced at the height of flight.
iv. "Roman Candle" means heavy paper or cardboard tube not exceeding 3/8 inch (9.5 mm) inside diameter and containing up to 20 grams of pyrotechnic composition. Upon ignition, up to 10 "stars" (pellets of pressed pyrotechnic composition that burn with bright color) are individually expelled at several second intervals.
v. "Mine Shell" means heavy cardboard or paper tube up to 2 1/2 inches (63.5 mm) inside diameter attached to a wood or plastic base and containing up to 40 grams of pyrotechnic composition. Upon ignition, "stars," firecrackers, or other devices are propelled into the air. The tube remains on the ground.
c. Audible Ground Devices.
i. "Firecracker, Salute" means small paper-wrapped or cardboard tube containing not more than 50 milligrams of pyrotechnic composition. Upon ignition, noise and a flash of light are produced.
ii. "Chaser" means small paper or cardboard tube that travels along the ground upon ignition. A whistling effect, or other noise, is often produced. The explosive composition used to create the noise may not exceed 50 milligrams.
iii. "Combination Items" means fireworks devices containing combinations of two or more of the effects described in Categories 1, 2, and 3.
d. Novelties.
Items listed in this section are not classified as common fireworks by the United States Department of Transportation.
i. "Snake, Glow Worm" means pressed pellet of pyrotechnic composition that produces a large, snakelike ash upon burning. The ash expands in length as the pellet burns. These devices may not contain mercuric thiocyanate.
ii. "Smoke Device" means tube or sphere containing pyrotechnic composition that, upon ignition, produces white or colored smoke as the primary effect.
iii. "Wire Sparkler" means wire coated with pyrotechnic composition that produces a shower of sparks upon ignition. These items may not contain magnesium and must not exceed 100 grams of composition per item. Devices containing any chlorate or perchlorate salts may not exceed 5 grams of composition per item.
e. "Trick Noisemaker" means an item that produces a small report intended to surprise the user. These devices include:
i. "Party Popper" means small plastic or paper item containing not more than 16 milligrams of explosive composition that is friction sensitive. A string protruding from the device is pulled to ignite it expelling paper streams and producing a small report.
ii. "Booby Trap" means small tube with string protruding from both ends, similar to a party popper in design. The ends of the string are pulled to ignite the friction sensitive composition, producing a small report.
iii. "Snapper" means small, paper wrapped item containing a minute quantity of explosive composition coated on small bits of sand. When dropped, the device explodes producing a small report.
iv. "Trick Match" means kitchen or book match that has been coated with a small quantity of explosive or pyrotechnic composition. Upon ignition of the match, a small report or a shower of sparks is produced.
v. "Auto Burglar Alarm" means tube which contains pyrotechnic composition that produces a loud whistle and/or smoke when ignited. A small quantity of explosive, not exceeding 50 milligrams, may also be used to produce a small report. A squib is used to ignite the device.
10. "Special Fireworks" means large fireworks designed primarily to produce visible or audible effects by combustion, deflagration, or detonation. This term includes, but is not limited to, firecrackers containing more than 2 grains (130 mg) of explosive composition, aerial shells containing more than 40 grams of pyrotechnic composition, and other display pieces which exceed the limits for classification as "Common Fireworks."
11. "Ground Display Piece" means a pyrotechnic device that functions on the ground (as opposed to an aerial shell which functions in the air). Typical ground display pieces include fountains, roman candles, wheels, and "set pieces."
12. "Labeled" means having a label, symbol or other identifying mark of an organization concerned with product evaluation, that maintains periodic inspection of production of labeled equipment or materials and by whose labeling the manufacturer indicates compliance with appropriate standards or performance in a specified manner.
13. "Lance" means a thin cardboard tube packed with color-producing pyrotechnic composition used to construct ground display pieces. Lances are mounted on a wooden frame and fused so that ignition of all tubes is simultaneous.
14. "Lift Charge" means that part of an aerial shell which actually lifts the shell into the air. It usually consists of a black powder charge ignited by a quick match fuse. (A delay fuse then ignites the main part of the shell, producing the desired effect.)
15. "Listed" means equipment or materials acceptable to the "authority having jurisdiction" and included in a list published by an organization concerned with product evaluation that maintains periodic inspection of production of listed equipment or materials and whose listing states either that the equipment or material meets appropriate standards or has been tested and found suitable for use in a specified manner. Note: The means for identifying listed equipment may vary for each organization concerned with product evaluation, some of which do not recognize equipment as listed unless it is also labeled. The "authority having jurisdiction" should utilize the system employed by the listing organization to identify a product.
16. "Monitor" means a person designated by the sponsors of the display to keep the audience in the intended viewing area and out of the discharge site and potential landing area.
17. "Mortar" means a metal or heavy cardboard tube from which aerial shells are fired.
18. "Movable Ground Piece" means a ground display piece having movable parts, such as a revolving wheel.
19. "Operator" means the person responsible for setting up and firing a public fireworks display.
20. "Potential Landing Area" means the area over which aerial shells are fired. Debris and malfunctions may fall into this area; therefore, it must be kept clear of spectators.
21. "Public Display" means an outdoor display of aerial pyrotechnic shells and/or ground display pieces.
22. "Quick Match" means black match that is encased in a loose fitting paper sheath. While exposed black match burns slowly, quick match propagates flame extremely rapidly, almost instantaneously. Quick match is used in fuses for aerial shells and for simultaneous ignition of a number of pyrotechnic devices, such as lances in a ground display piece.
23. "Safety Cap" means a paper tube, closed at one end, that is placed over the end of an aerial shell to protect it from accidental ignition. The cap is not removed until just before firing of the shell.
24. "Shell or Aerial" means a cylindrical or spherical cartridge containing pyrotechnic composition, a long fuse, and a black powder lift charge. The shells are most commonly 3 inches (76 mm) to 6 inches (152 mm) outside diameter and are fired from mortars. Upon firing, the fuse and lift charge are consumed.
A. The person in actual charge of the firing of the fireworks in a display shall be competent for the task and so certified by the State Fire Marshal. The operator shall have his Certificate of Competency in his possession when engaged in conducting a display and shall exhibit his certificate on request of any authorized official. An applicant must meet all of the following requirements before receiving a certificate:
1. Applicant must be at least twenty-one years of age;
2. Applicant shall furnish a notarized statement concerning his participation in at least 6 fireworks displays and indicating for each display the date, the site, and the name and certificate number of the supervising operator.
3. Applicant must successfully complete the written examination administered by the State Fire Marshal.
4. Any applicant who fails the written examination shall be afforded the opportunity to be re-tested, once only, after a 7 day waiting period; and
5. Any applicant who fails the re-test shall be required to wait at least six months before he can reapply.
B. Each person assisting the Certified Operator and engaged in the firing of the fireworks shall be at least twenty-one years of age.
C. The certification of any operator who violates the regulations on laws of the State may be revoked or suspended by the State Fire Marshal.
D. Each Certified Operator shall be required to attend a re-certification class and successfully complete a written examination provided by the State Fire Marshal every two years.
71-8305.4. Permits and General Requirements for Fireworks Displays.
A. Any person who desires to hold a fireworks display shall first obtain a permit form from the supplier of the fireworks. Permit forms are furnished by the State Fire Marshal. The permit form shall be signed by the Resident Fire Marshal or Fire Chief of the department providing fire suppression equipment and personnel of the municipality or county where such display is to take place.
B. Public liability insurance set at a minimum limit of $500,000 shall be furnished by the fireworks supplier to include the display sponsor as an additional insured. Coverage company shall be licensed to conduct business in South Carolina.
C. Upon validation of the permit form by the Resident Fire Marshal or Fire Chief of the department providing fire suppression equipment and personnel of the municipality or county where such display is to take place, the sponsor of the display shall forward all five copies to the State Fire Marshal along with a copy of the insurance policy and a detailed diagram of the display site fifteen working days prior to the display. Validation permit shall be cosigned by the State Fire Marshal or his agent.
D. When approved by the State Fire Marshal, the permit copies will be distributed as follows:
1. The State Fire Marshal shall retain the original along with the insurance certificate and diagram;
2. The second copy shall be returned to the sponsor;
3. The third copy shall be forwarded to the supplier, which will authorize shipment of the fireworks; and
4. The fourth copy shall be sent to the Board of Pyrotechnic Safety.
E. All display material shall be purchased through a pyrotechnic manufacturer or distributor licensed to do business in the State by the Board of Pyrotechnic Safety, and the firing of the display shall be done by an operator certified as competent for this task by the State Fire Marshal.
F. If a display is postponed due to any circumstances, the sponsor of the display shall notify the authority having jurisdiction of the alternate date before presenting the display.
G. The person or organization applying for a permit shall be responsible for arranging the detailing of at least two members of the local fire department, along with necessary equipment, or such other larger number as may be deemed necessary by the authority having jurisdiction to be on the display site during the firing of the fireworks. Fire department personnel shall remain until the termination of the display and all fireworks and debris have been removed from the site.
H. If on-duty fire personnel are not available, it shall be the responsibility of the permittee to arrange with the authority having jurisdiction for the detailing of off-duty firemen and equipment and to compensate the firemen for the time involved.
I. The permit shall require such information issued on forms as:
1. organization sponsoring display;
2. company name supplying fireworks;
3. display operator's name;
4. date of display;
5. time of display;
6. fire department present during display;
7. fire chief's name;
8. time and date display site will be ready for final inspection by authorities;
9. diagram of display site and directions to same; and
10. copy of insurance policy.
71-8305.5. Requirements for Shells and Mortars for Public Displays.
A. Shells shall be classified and described only in terms of the inside diameter of the mortar in which they can be safely used (e.g., 3 inch (76 mm) shells are only for use in three inch (76 mm) mortars).
B. Shells shall be constructed so that the difference between the inside diameter of the mortar and the outside diameter of the shell is no less than 1/8 inch (3.2 mm) and no more than 1/4 inch (6.4 mm) for two-inch (51 mm) and three-inch (76 mm) shells or 1/2 inch (12.7 mm) for shells larger than 3 inches (76 mm).
C. Shells shall be labeled with the type of shell, the diameter measurement, and the name of the manufacturer or distributor. Shells shall also carry a warning label.
D. The length of the internal delay fuse and the amount of lift charge shall be sized to ensure proper functioning of the shells in their mortars. Quick match fuse shall be long enough to allow not less than 6 inches (152 mm) of fuse to protrude from the mortar after the shell has been properly inserted.
E. The length of exposed black match on a shell shall not be less than 3 inches (76 mm), and the fuse shall not be folded or doubled back under the safety cap. Also, the time delay between ignition of the tip of the exposed black match and ignition of the lift charge shall not be less than 4 seconds to allow the operator to retreat safely.
F. A safety cap shall be installed over the exposed end of the fuse. The safety cap shall be of a different color than that used for the paper of the fuse.
G. After the fireworks have been delivered to the display site, they shall not be left unattended nor shall they be allowed to become wet.
H. All shells shall be inspected upon delivery to the display site by the display operator. Any shells having tears, leaks, broken fuses, or showing signs of having been wet shall be set aside and shall not be fired. After the display, any such shells shall either be returned to the supplier or be destroyed according to the supplier's instructions.
I. All shells shall be separated according to diameter and stored in tightly covered containers of metal, wood, or plastic or in fiber drums or corrugated cardboard cartons meeting United States Department of Transportation specifications for transportation of fireworks. A flame-resistant tarpaulin meeting the requirements of NFPA 701, Standard Methods of Fire Tests for Flame-Resistant Textiles and Films, shall be permitted to be used as a covering over the containers, if additional protection is desired.
J. The shell storage area shall be located at a distance of not less than 20 feet (6 m) from the discharge site. Exception: Where acceptable to the authority having jurisdiction, alternate protective measures may be used.
K. During the display, shells shall be stored upwind from the discharge site. If the wind should shift during the display, the shell storage area shall be relocated so as again to be upwind from the discharge site. Where conditions do not permit locating the shell storage area upwind from the discharge site, a flame-resistant tarpaulin meeting NFPA 701 requirements shall be used to cover the shell storage.
L. Mortars shall be inspected for dents, bent ends, and cracked or broken plugs prior to ground placement. Mortars found to be defective in any way shall not be used. Any scale on the inside surface of the mortars shall be removed.
M. Mortars shall be positioned so that the shells are carried away from spectators and into a clear area acceptable to the authority having jurisdiction.
N. Mortars shall be either buried securely into the ground to a depth of 2/3 to 3/4 of their length or fastened securely in mortar boxes or drums. In soft ground, heavy timber (e.g., 4 inches (102 mm) thick) or rock slabs shall be placed beneath the mortars to prevent their sinking or being driven into the ground during firing. Boxed finales and finale racks shall not be required to be buried; however, they shall be sufficiently supported and braced to ensure stability during firing.
O. In damp ground, a weather resistant bag shall be placed under the bottom of the mortar prior to placement in the ground to protect the mortar against moisture.
P. Weather resistant bags shall be placed over the open end of the mortar in damp weather to keep moisture from accumulating on the inside surface of the mortar.
Q. Sand bags, dirt boxes, or other suitable protection shall be placed around the mortars to protect the operator from ground bursts. This requirement shall not apply to the down range side of the discharge site.
R. Mortars shall be inspected before the first shells are loaded to be certain that no water or debris has accumulated in the bottom of the mortar.
S. Metal mortars shall be deemed acceptable for use with all shells. Paper mortars shall only be used for discharge of single and double break shells. A thirty-second cooling period shall be allowed between firing and reloading of paper mortars.
T. Paper mortars shall be constructed of convolute wound paper, except that spiral wound paper shall be permitted for three-inch (76 mm) diameter mortars only. Wall thickness of paper mortars shall conform to Table I.
TABLE I
WALL THICKNESS OF PAPER MORTARS
Mortar Diameter Wall Thickness
Mortar Type in. (mm) in. (mm)
Convolute 2 in. (51) 1/4 in. (6.4)
Convolute or Spiral 3 in. (76) 3/8 in. (9.6)
Convolute 4 in. (102) 1/2 in. (12.7)
Convolute 5 in. (127) 3/4 in. (19.0)
Convolute 6 in. (152) 3/4 in. (19.0)
Exception: For three-inch (76 mm) single fire mortars, such as used in finales, a wall thickness of 1/4 inch (6.4 mm) shall be permitted.
U. A cleaning tool shall be provided for cleaning debris out of the mortars between firings.
V. All mortars of the same inside diameter shall be grouped together to minimize the possibility of shells being placed in the wrong size mortars. Mortars shall be spaced apart by at least twice their inside diameters.
71-8305.6. Requirements for Site Selection for Display.
A. The intent of this section is to provide minimum clearances upon which the authority having jurisdiction may base approval of the display site. Where unusual conditions exist, the authority having jurisdiction may increase the minimum clearances as necessary.
B. The areas selected for the discharge site, spectator viewing area, parking areas, and the potential landing area shall be inspected and approved by the authority having jurisdiction.
C. The area selected for the discharge of aerial shells shall be located so that the trajectory of the shells will not come within 50 ft. (15.2 m) of any overhead object.
D. Ground display pieces shall be located at a minimum distance of 150 ft. (45.6 m) from spectator viewing areas and parking areas.
E. Mortars shall be separated from spectator viewing areas and parking areas, from health care and penal facilities, from storage of hazardous materials, and from residential occupancies by the minimum distances specified in Table II.
TABLE II
MORTAR SEPARATION DISTANCES
Spectator Viewing Area Health Care & Storage of Clear
Parking Area 1 & 2 Penal Hazardous Landing
Family Dwellings Facilities Materials Area
Mortar 300 feet 500 feet 500 feet 300 feet
Firing (91.4 m) (132.4 m) (132.4 m) (91.4 m)
Site
F. Fireworks shall not be discharged within 300 feet (91.4 m) of any tent or canvas shelter.
G. The potential landing area shall be a large, clear, open area acceptable to the authority having jurisdiction.
H. Spectators, vehicles, or any readily combustible materials shall not be located within the potential landing area during the display.
I. The potential landing area shall be located according to the distances specified in Table II and shall also comply with the requirements of Section F above.
71-8305.7. Requirements for Operation of the Display.
A. Certified operators and assistants shall not smoke, consume alcoholic beverages, or be under the influence of narcotics or drugs while handling and/or firing fireworks during a display.
B. Monitors, whose sole duty shall be the enforcement of crowd control, shall be located around the display area by the sponsor. The authority having jurisdiction shall determine the number of monitors needed and their placement.
C. Monitors shall be located around the discharge site to prevent spectators or any other unauthorized persons from entering the discharge site. The discharge site shall be so restricted throughout the display and until the discharge site has been inspected after the display. Where practical, fences and rope barriers shall be used to aid in crowd control.
D. If, in the opinion of the authority having jurisdiction or the display operator, lack of crowd control should pose a danger, the display shall be immediately discontinued until such time as the situation is corrected.
E. If, at any time, high winds or unusually wet weather prevail, such that in the opinion of either the authority having jurisdiction or the display operator a definite danger exists, the public display shall be postponed until weather conditions improve to an acceptable level.
F. Light snow or mist need not cause cancellation of the display; however, all materials used in the display shall be protected from the weather by suitable means until immediately prior to use.
G. Display operators and assistants shall use only flashlights or electric lighting for artificial illumination.
H. No smoking or open flames shall be allowed within 50 feet of the shell storage area as long as shells are present. Signs to this effect shall be conspicuously posted.
I. Shells shall be carried from the storage area to the discharge site only by their bodies, never by their fuses. Exception: As specified in Section K below.
J. Shells shall be checked for proper fit in their mortars prior to the display.
K. When loaded into the mortars, shells shall be held by the thick portion of their fuses and carefully lowered into the mortar. At no time shall the operator place any part of his body over the throat of the mortar.
L. The operator shall be certain that the shell is properly seated in the mortar.
M. Shells shall not, under any circumstances, be forced into a mortar too small to accept them. Shells that do not fit properly into the mortars shall not be fired; they shall be disposed of according to the procedure described in Section R below.
N. Shells shall be ignited by lighting the tip of the fuse with a fusee, torch, portfire, or similar device. The operator shall never place any part of his body over the mortar at any time. As soon as the fuse is ignited, the operator shall retreat from the mortar area. Exception: Alternatively, electrical ignition may be used.
O. The safety cap protecting the fuse shall not be removed by the operator responsible for igniting the fuse until immediately before the shell is to be fired. Exception: Where electrical ignition is used.
P. The first shell fired shall be carefully observed to determine that its trajectory will carry it into the intended firing range and that the shell functions over, and any debris falls into, the potential landing area.
Q. The mortars shall be re-angled or reset, if necessary, at any time during the display.
R. In the event of a shell failing to ignite in the mortar, the mortar shall be left alone for a minimum of 5 minutes, then carefully flooded with water. Immediately following the display, the mortar shall be emptied into a bucket of water. The supplier shall be contacted as soon as possible for proper disposal instructions.
S. Operators shall never attempt to repair a damaged shell nor shall they attempt to dismantle a dry shell. In all such cases, the supplier shall be contacted as soon as possible for proper disposal instructions.
T. Operators shall never dry a wet shell, lance, or pot for reuse. In such cases, the shell, lance, or pot shall be handled according to the procedure in Section R above.
U. The entire firing range shall be inspected immediately following the display for the purpose of locating any defective shells. Any shells found shall be immediately doused with water before handling. The shells shall then be placed in a bucket of water. The supplier shall then be contacted as soon as possible for proper disposal instructions.
V. When fireworks are displayed at night, the sponsor shall ensure that the firing range is inspected early the following morning.
W. The operator of the display shall keep a record, on a form provided by the supplier, of all shells that fail to ignite or fail to function. The form shall be completed and returned to the supplier (See 71-8305.11). Forms will be provided by the State Fire Marshal.
X. All ground pieces shall be positioned out of the firing range of aerial displays. Mortars shall be positioned so that they do not fire towards any ground pieces.
Y. No dry grass or combustible material shall be located beneath ground pieces. If dry, the area shall be thoroughly wet down before the display.
Z. Poles for ground pieces shall be securely placed and firmly braced so that they will not fall over when they function.
AA. Specific instructions from the supplier shall accompany all ground pieces. A list of required accessories shall also be supplied.
71-8305.8. Use of Class "C" Fireworks in South Carolina.
A. It shall be deemed a violation of these regulations to:
1. explode or ignite fireworks within 600 ft. (182.9 m) of any church, hospital, asylum, school, place of assembly, service station, bulk storage plant, or any other facility that stores or dispenses flammable liquids and/or hazardous materials;
2. explode or ignite fireworks within 75 ft. (22.9 m) of where fireworks are stored, sold or offered for sale;
3. ignite, discharge, and/or throw fireworks from any motor vehicle or to place or throw fireworks into or at any motor vehicle;
4. ignite or discharge fireworks in a wanton or reckless manner so as to constitute a threat to the personal safety or property of another.
71-8305.9. Transportation of Pyrotechnics in South Carolina.
A. Vehicles transporting pyrotechnics classified as Class "B" explosives in any quantity and pyrotechnics classified as Class "C" explosives in quantities greater than 1000 lbs. shall be in the custody of drivers who are physically fit, careful, capable, reliable, able to read and write the English language, not addicted to the use or under the influence of intoxicants or narcotics, and not less than eighteen years of age.
B. On both sides, on the front,m and on the rear, vehicles transporting pyrotechnics classified as Class "B" explosives in any quantity and pyrotechnics classified as Class "C" explosives in quantities greater than 1000 lbs. shall prominently display signs marked "EXPLOSIVES" that conform with United States Department of Transportation and other federal regulations.
C. The fire and police departments shall be promptly notified when a vehicle transporting pyrotechnics is involved in an accident, break down, or fire. Only in the event of such an emergency shall the transfer of pyrotechnics from one vehicle to another be allowed on highways and then only when qualified supervision is provided.
D. Any vehicle used for the transportation of pyrotechnics shall be equipped with not less than one approved type fire extinguisher with a minimum rating of 2A 20 BC. Extinguisher shall be so located as to be readily available for use.
71-8305.10. Pyrotechnic Powder in Entertainment and Assembly Occupancies.
Black powder, flash powder, or any other powder composed of pyrotechnic materials is strictly prohibited from use inside any enclosed entertainment and/or assembly occupancy located within the State of South Carolina.
4. Date of display__________ Date receiving fireworks___
Rain date___
5. Time of display__________ Location___
6. Fire department that will be present during display___
7. Fire chief's name__________ Telephone___
Address___
8. Time and date display site will be ready for final inspection by authorities___
9. Attach a separate sheet showing diagram of display site and directions to same.
10. A copy of insurance policy is to be attached with this permit and sent to:
SC Department of Labor, Licensing & Regulation
Office of State Fire Marshal
141 Monticello Trail
Columbia, SC 29203
____________________
Permittee
Resident Fire Marshal (Fire Chief)
Title
State Fire Marshal or His Designee
B. Malfunctioning Shell Report.
Malfunctioning Shell Report
The following information shall be furnished to the State Fire Marshal no later than fifteen days after the execution of the display by the supplier of fireworks.
Date of Display__________ Location___
Operator___
Type of Shell Involved:
Manufacturer___
Size___
Effect___
Type of Malfunction:
Fuse ignited, but nothing else happened___
Shell exploded in mortar___
Shell exploded just out of mortar___
Shell returned to ground and then exploded___
Shell returned to ground but never exploded___
Other (explain)___
__________
(Signature of Certified Operator)
RETURN FORM PROMPTLY TO SUPPLIER OF FIREWORKS FOR DISPLAY
71-8306. Tents, Grandstands, and Air-Supported Structures.
71-8306.1. Tents, Grandstands, and Air-Supported Structures Standards.
A. The provisions of the NFPA 102, 1995 edition, Standard for Grandstands, Folding and Telescopic Seating, Tents, and Membrane Structures, as amended, shall constitute the minimum fire prevention and protection standards for the prevention of fire and for the protection of life in tents, folding and telescopic seating, and air-supported structures.
B. The provisions of the SBC shall constitute the minimum fire prevention and protection standards for the prevention of fire and for the protection of life in grandstands.
A. NFPA 102, 1995 edition, as amended, is concerned with the hazards of fire, storm, collapse, and panic, and covers the construction, location, protection and maintenance of tents and air-supported structures used for assembly; interior folding or telescopic seating normally used in gymnasiums, multi-use rooms, and similar indoor mass seating as differentiated from grandstands and bleachers intended primarily to support persons for purposes of assembly for outdoor use. For the purpose of this standard, certain terms, words, and phrases shall be construed as set forth in Chapter 2 "Definitions," of the standards.
B. The SBC is concerned with the hazards of fire, storm, collapse, and panic, and covers the construction, location, protection and maintenance of reviewing stands, grandstands, and bleachers intended primarily to support persons for purposes of assembly for outdoor use. For the purpose of this section, certain terms, words, and phrases shall be construed as set forth in the SBC.
71-8307. Fire Extinguishers--Portable and Fixed Station.
The purpose of this subarticle is to regulate the leasing, renting, selling and servicing of portable fire extinguishers, and the installation and servicing of fixed fire extinguishing systems in the interest of protecting lives and property.
71-8307.2. Administration; Filing of Publications; Statutes, Provisions of Other Codes and Ordinances.
A. This subarticle shall be administered by the Office of State Fire Marshal and all Orders requiring corrective action as a result of this subarticle shall be issued by a Deputy State Fire Marshal or Certified Resident State Fire Marshal.
B. No provision of this subarticle shall be held to deprive any governing body having jurisdiction of any power or authority which it had on the effective date of these regulations. However, any governing body having jurisdiction shall not permit lesser requirements than those prescribed in these regulations.
A. The following words and terms used in this regulation shall have the respective meanings ascribed to them as follows:
1. "Firm" means any person, partnership, corporation, association, or governmental entity.
2. "Hydrostatic testing" means pressure testing by hydrostatic methods.
3. "Portable fire extinguisher" means a portable device containing powder, liquid, or gases which can be expelled under pressure for the purpose of suppressing or extinguishing a fire. Portable fire extinguishers shall comply with NFPA 10, Standard for Portable Fire Extinguishers, 1998 edition.
4. "Inspection" means a quick check to insure that a fully charged, operable extinguisher is available. This is done by seeing that it is in its designated place, that it has not been actuated or tampered with, and that there is no obvious or physical damage or condition to prevent operation.
5. "Maintenance" means a thorough check of the extinguisher to give maximum assurance that an extinguisher will operate effectively and safely. It includes a thorough examination and any necessary repair or replacement. It will normally reveal the need for hydrostatic testing.
6. "Recharging" means the replacement of the extinguishing agent and also includes the expellant for certain types of extinguishers.
7. "Servicing" includes one or more of the following:
a. maintenance;
b. recharging; or
c. hydrostatic testing.
8. "Citation" means a summons to appear before the State Fire Marshal as a result of a violation of any part or all of this regulation and may carry a monetary fine of up to $2,000.
9. "Fixed extinguishing system" means systems having predetermined flow rates, nozzle pressures, and quantities of extinguishing chemical. These systems have the specific pipe size, maximum and minimum pipe lengths, flexible hose specifications, number of fittings, and number and types of nozzles prescribed by a testing laboratory. The hazards protected by these systems are specifically limited as to type and size by a testing laboratory based upon actual fire tests. Limitations on hazards which can be protected by these systems are contained in the manufacturer's installation manual which is referenced as part of the listing. Systems shall comply with the applicable National Fire Protection Association Standards and its references as follows:
a. NFPA 11, Standards for Low Expansion Foam and combined agents, 1998 edition;
b. NFPA 11A, Standards for Medium-and High-Expansion Foam Systems, 1994 edition;
c. NFPA 12, Standards on Carbon Dioxide Extinguishing Systems, 1998 edition;
d. NFPA 12A, Standards for Halon 1301 Fire Extinguishing Systems, 1997 edition;
e. NFPA 12B, Standards for Halon 1211 Fire Extinguishing Systems, 1990 edition;
f. NFPA 17, Standards for Dry Chemical Extinguishing Systems, 1998 edition;
g. NFPA 17A, Standards for Wet Chemical Extinguishing Systems, 1998 edition;
h. NFPA 96, Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations, 1994 edition;
i. NFPA 2001, Standard on Clean Agent Fire Extinguishing Systems, 1996 edition; and
j. Additional or updated National Fire Protection Association Standards as adopted by the State Fire Marshal.
71-8307.4. Licensing Requirements: Fire Equipment Dealer Licenses.
A. Each firm installing or servicing fixed fire extinguishing systems, portable fire extinguishers, or hydrostatic testing shall be licensed. In the following table, the first two numerals shall identify license type, 02-license. The second two numerals shall identify the class category.
1. License:
a. 02-01-Class A;
b. 02-02-Class B;
c. 02-03-Class C; and
d. 02-04-Class D.
B. Type and Class Category 02-01: Class"A" Fire Equipment Dealer License.
1. Definition: To service, recharge, repair, or install all types of fire extinguishers, including recharging carbon dioxide units; and to conduct hydrostatic tests on all types of fire extinguishers.
2. Requirements:
a. file application in the category 02-01;
b. provide proof of public liability insurance for an amount not less than $100,000; and
c. satisfy minimum equipment requirements.
C. Type and Class Category 02-02: Class "B" Fire Equipment Dealer License.
1. Definition: To service, recharge, repair, or install all types of fire extinguishers, including recharging carbon dioxide units and conducting hydrostatic tests on water, water chemical, and dry chemical types of extinguishers only.
2. Requirements:
a. file application in the category 02-02;
b. satisfy minimum equipment requirements; and
c. provide proof of public liability insurance for an amount not less than $100,000.
D. Type and Class Category 02-03: Class "C" Fire Equipment Dealer License.
1. Definition: To service, recharge, repair, or install all types of fire extinguishers, except recharging carbon dioxide units; and to conduct hydrostatic tests of water, water chemical, and dry chemical types of fire extinguishers only.
2. Requirements:
a. file application in the category 02-03;
b. provide proof of public liability insurance for an amount not less than $100,000; and
c. satisfy minimum equipment requirements.
E. Type and Class Category 02-04: Class "D" Fire Equipment Dealer License.
1. Definition: To service, recharge, repair, or install all types of pre-engineered fire extinguishing systems.
2. Requirements:
a. file application in the category 02-04;
b. satisfy minimum equipment requirements;
c. provide proof of public liability insurance for an amount not less than $100,000; and
d. provide proof of manufacturer's certification for each type of pre-engineered fire extinguishing system.
71-8307.5. Licensing Requirements: Fire Equipment Permits.
A. Each person installing or servicing fixed fire extinguishing systems, portable fire extinguishers, and hydrostatic testing shall be issued permits. In the following table, the first two numerals shall identify permit type, 04-permit. The second two numerals shall identify class category.
1. Permit:
a. 04-01-Class A;
b. 04-02-Class B;
c. 04-03-Class C;
d. 04-04-Class D; and
e. 04-05-Class E.
B. Type and Class Category 04-01: Class "A" Fire Equipment Dealer License.
1. Definition: To service, recharge, repair, or install all types of fire extinguishers, including carbon dioxide units and to conduct hydrostatic tests on all types of fire extinguishers, including carbon dioxide units.
2. Requirements:
a. file application in the category 04-01;
b. provide current photograph, minimum size requirement 2"' x 2"'; and
c. examination required.
C. Type and Class Category 04-02: Class "B" Fire Equipment Dealer License. [FN1]
[FN1] State Register Volume 23, Issue No. 6, eff June 25, 1999, promulgated two subsections designated "C".
1. Definition: To service, recharge, repair, or install all types of fire extinguishers, including carbon dioxide units and to conduct hydrostatic tests on water, water chemical, and dry chemical types of extinguishers only.
2. Requirements:
a. file application in the category 04-02;
b. provide current photograph, minimum size requirement 2"' x 2"'; and
c. examination required.
C. Type and Class Category 04-03: Class "C" Fire Equipment Dealer License.
1. Definition: To service, recharge, repair, or install all types of fire extinguishers except recharging carbon dioxide units; also to conduct hydrostatic tests on water, water chemical, and dry chemical types of extinguishers only.
2. Requirements:
a. file application in the category 04-03;
b. provide current photograph, minimum size requirement 2"' x 2"'; and
c. examination required.
D. Type and Class Category 04-04: Class "D" Fire Equipment Dealer License.
1. Definition: To service, recharge, repair, or install all types of pre-engineered fire extinguishing systems.
2. Requirements:
a. file application in the category 04-04;
b. provide current photograph, minimum size requirement 2"' x 2"';
c. examination required; and
d. provide a current manufacturer's training certificate.
E. Type and Class Category 04-05: Class "E" Fire Equipment Permit
1. Definition: An apprentice may perform the services only under direct supervision of a person holding a valid permit under this subarticle and who works for the same firm as the apprentice. An apprentice permit is valid for one year from the day of issuance.
2. Requirements:
a. file application in the category 04-05; and
b. provide current photograph, minimum size requirement 2"' x 2"'.
71-8307.6. Licensing Requirements: For Firms Performing Hydrostatic Testing.
Each firm performing hydrostatic testing of fire extinguishers manufactured according to the specifications of the United States Department of Transportation (DOT) shall be required to possess a valid license issued by the State Fire Marshal. All hydrostatic testing of fire extinguishers shall be performed per the appropriate DOT standards and NFPA standards.
All portable fire extinguishers and fixed extinguishing systems which are required by these regulations shall be listed by Underwriters' Laboratories, Inc., or approved by Factory Mutual and carry an Underwriters' Laboratories or manufacturer's serial number. These listings, approvals, and serial numbers may be stamped on the manufacturer's identification and instructions plate or on a separate Underwriters' Laboratories or Factory Mutual plate soldered or attached to the extinguisher shell in some permanent manner.
71-8307.8. Installation and Maintenance Procedures.
All fire extinguishers and pre-engineered systems covered under this subarticle and required by these regulations shall be installed and maintained per the applicable NFPA standards as referenced in 71-8307.3; Equipment shall be inspected, serviced, and maintained per the manufacturer's maintenance procedures.
Each individual actually performing the work of servicing, recharging, repairing, installing, or testing fire extinguishers or pre-engineered systems shall possess a valid permit issued by the Office of State Fire Marshal. Permittees shall be limited to specific type of work performed dependent upon the class of permit held. A license or permit issued under this subarticle shall not be transferable.
71-8307.10. Minimum Equipment and Facility Requirements for Fire Equipment Dealer License.
Office of State Fire Marshal
Minimum Equipment and Facility Requirements For Fire Equipment Dealer License
