20th Century OSHA Enforcement Data

EXECUTIVE SUMMARY

This paper follows up a report published in January 1993, titled "Twenty Years of OSHA Enforcement Data, A Review and Explanation of the Major Trends." That report covered the period from FY 1972 to FY 1991. This paper extends coverage through FY 2000 and also includes data for OSHA's state plan states for FY 1991 to FY 2000.

The earlier report displayed a variety of enforcement data, described the major trends in the data and suggested that the history of the enforcement program could be "roughly divided into four periods" characterized by significant changes in policy. The first period, from the formation of OSHA in 1971 to 1976, was characterized by rapid growth in staff, inspections, violations and penalties. During the second period, from 1977 to 1980, the agency revised its enforcement program to focus on inspection quality rather than quantity, instituted a new complaint policy, and revised the penalty assessment methodology. Total inspections dropped dramatically during this period. During the 1981-1985/1986 period OSHA focused its efforts on "cooperation rather than confrontation." The agency reduced its enforcement staff, implemented "records-review-only" inspections, and shifted towards more construction industry and small establishment inspections. As a result, inspection numbers increased while violations and penalties decreased. During the 1985/1986-1991 period, the agency instituted the egregious case policy, eliminated the "records-review-only" inspections, and reemphasized quality inspections. These changes resulted in a large decline in inspections but a sharp increase in violations and penalties.

The 1990s enforcement data show that inspections and violations were stable through 1994 while penalties continued to increase. Inspections, violations and penalties declined sharply in 1995 and 1996 due to reinvention efforts and the Federal Government shutdowns. A partial recovery of inspections, violations and penalties occurred from FY 1997 to FY 2000. This report discusses these trends in more detail.

I. INTRODUCTION

This report updates a report published in 1993 that reviewed the first 20 years of OSHA's Federal enforcement data (FY 1972 - FY 1991), suggesting the reasons behind the trends in inspections, violations and penalties. The tables and charts in this report covering Federal OSHA include data from FY 1972 - FY 2000; however, the discussion focuses on the 1990s. Persons interested in earlier trends are referred to the initial report.

The additional nine years of data encompass a period with a new Administration and two additional assistant secretaries for OSHA. As in earlier years, there were several major changes in OSHA's enforcement policy. In addition, the full impact of the increased penalty amounts included in the Omnibus Budget Reconciliation Act of 1990 were felt beginning in FY 1992. (OSHA applied increased penalties to citations issued in inspections that began after March 1, 1991, almost half way through FY 1991).

This update follows the model of the earlier paper, looking first at inspection data and then reviewing violation and penalty data. In addition, the paper includes enforcement data from OSHA's state plan states for the period FY 1991 - FY 2000. These data were not included in the earlier paper because OSHA's Integrated Management Information System (IMIS) did not include data for all of the states prior to 1990.

Appendix A of the earlier paper provided a detailed description of the concepts underlying the inspection, violation and penalty data. While not repeated in this paper, the reader should be aware that these data are subject to change as new information comes into the IMIS. Inspections may begin in one fiscal year and continue into the next fiscal year. In instances where employers contest citations and/or penalties, the case may not be closed for several years and OSHA may revise the initial violations and penalties as a result of negotiations with the employer. Decisions of the OSH Review Commission and the courts also may result in revised citations and penalties. As a result of these characteristics of the inspection program, computer runs conducted on different dates will generate different counts of inspections and violations, and different levels of reported penalties. The impact is marginal for data on the number of inspections and small for the number of violations, but is substantial for penalty data. The Appendix to this paper describes the data sources used for the FY 1992 - FY 2000 update and notes several revisions made to the earlier data.

II. ANALYSIS OF INSPECTION DATA

Total number of inspections

The total number of inspections declined steadily from FY 1985 to FY 1991, before stabilizing at roughly 40,000 - 43,000 annually during the FY 1992 - FY 1994 period (Table 1). However, inspections dropped by almost a third in FY 1995 to just more than 29,000, and even further in FY 1996 to 24,259 - the lowest level in OSHA's history. The years from FY 1997 - FY 2000 marked a recovery from the FY 1996 low, but inspection numbers never achieved pre-FY 1995 levels. The 36,613 inspections OSHA conducted in FY 2000 represent about 8 - 14 percent fewer inspections than OSHA conducted annually in the early 1990s.

Several factors account for the large drop in inspections from FY 1994 to FY 1995. In response to the administration's reinvention initiative, OSHA revised its inspection program. It introduced its area office redesign, changed its method of measuring performance, reemphasized quality inspections, and instituted its Focused Inspection Initiative in construction. In addition, area office staff helped with the page-by-page review of regulations required by the President's directive on regulatory reinvention.⁽¹⁾ Threatened budget cuts and a hiring freeze also likely affected inspection numbers in FY 1995. These are discussed in more detail below.

Under the Administration's reinvention initiative, OSHA began a program to redesign the structure and operation of its area offices. A team of agency workers and managers developed a model area office that was piloted in seven area offices during FY 1995. OSHA expanded this office redesign to all of OSHA's 67 area offices over the next three years, completing the program in September 1998. This initiative as well as the introduction of the Program Evaluation Profile - a method for evaluating employer safety and health programs - required enforcement staff to undergo training that resulted in significant time away from normal enforcement activities.⁽²⁾

A second factor affecting inspection numbers during this period was OSHA's change in the method of measuring its performance. While in prior years OSHA had used inspections, citations and penalties as performance measures, the agency announced that performance would now be measured by results--the agency's impact on reducing injuries, illnesses and fatalities in the workplace. OSHA stated early in FY 1995 that the emphasis on quality inspections and targeting the worst offenders accounted for some of the decline in inspections numbers.⁽³⁾ There was a substantial increase in "egregious" cases (cases dealing with death or harm to workers in which OSHA penalizes employers for each instance of a violation), from 8 cases in FY 1994 to 17 in FY 1995 and a large increase in "significant enforcement" cases (those with initial penalties of $100,000 or more), from 69 cases to 127. These and the other high-penalty cases require more agency resources than other inspections.

Another factor that likely reduced inspection numbers was the threat of budget cuts that arose during FY 1995. In March of 1995, in response to a House-approved budget recission, OSHA's Assistant Secretary ordered a freeze on new hiring and cuts in a variety of areas, including overtime.⁽⁴⁾ In addition, on August 3, 1995, the House passed a budget for FY 1996 that would have cut OSHA by 15.5%, leading to meetings in the agency to discuss potential layoffs.⁽⁵⁾

The last factor contributing to the large decline in inspection numbers is the Focused Inspection Initiative in construction. This policy is discussed below in the section on Industry Distribution of Inspections.

The additional substantial reduction in inspections in FY 1996 is attributable to the budget impasse between the administration and Congress that led to Federal Government shutdowns in November 1995 and December 1995/January 1996.

As noted above, inspection numbers recovered in the late 1990s, but not to their earlier levels. Failure to attain earlier levels is at least partially due to fewer Compliance Safety and Health Officers (CSHOs) at the end of the decade and an increase in the average number of hours per inspection (Table 6). The number of CSHOs fluctuated during the 1990s, starting at just over 1,200, dropping to 932 in FY 1996, and then ending at 971 in FY 2000 (Table 6 and Chart 2). Safety inspections averaged 16 to 17 hours in the first half of the 1990s, but increased in the second half of the decade to 20 to 26 hours. One contributor to the increase in average hours per inspection is the higher number of significant enforcement cases in the latter part of the decade. There were fewer than 100 significant enforcement cases per year from FY 1991 to FY 1994 compared with 127 to 199 annually during the rest of the decade. In addition, inspections involving the Process Safety Management Standard issued in 1992 were very time consuming.⁽⁶⁾ The average number of hours per health inspection showed no clear trend during this period.

Industry distribution of inspections

Table 3 provides data on the number of inspections by major industry group. The two industries with the largest number of inspections are construction and manufacturing. Until 1981, OSHA conducted more inspections in manufacturing than construction. Since then, the agency has conducted more in construction.

Construction - With the exception of FY 1995 and FY 1996, construction accounted for more than 50 percent of inspections annually during the 1990s. This continued the experience of most of the 1980s in keeping with a policy adopted in the early 1980s to increase construction inspections to about 50 percent of all inspections.

OSHA implemented its Focused Inspection Initiative for construction safety inspections in October 1994. An August 22, 1994, memorandum from the Deputy Assistant Secretary to regional administrators established the parameters of the program.⁽⁷⁾ Compliance officers would review the controlling contractor's safety and health program to determine if the employer had a program that met OSHA's requirements and an individual responsible for its implementation. If so, the inspection would concentrate on the four leading construction dangers—falls, electrocution, crushing injuries such as trenching cave-ins, and being struck by material or equipment. If no such program existed or the existing program was not satisfactory, the compliance officer would conduct a comprehensive inspection. The memorandum also stated, "The number of inspections is no longer driving the construction inspection program."

Theoretically, the Focused Inspection Initiative should have led to an increase in the number of construction sites inspected by enabling inspectors to limit the scope of some inspections, thereby freeing up time to visit more construction sites. While the number of construction sites visited may have increased, due to a different method for recording inspections, this initiative led to a decrease in reported inspections. Under the new methodology, if an inspector visited a construction site and conducted a focused inspection that did not turn up any violations, he/she completed an inspection form only for the general contractor at the site (resulting in one inspection counted for the site). If the inspector found a violation by a subcontractor, he/she completed a form for both the general contractor and the subcontractor (two inspections counted for the site). If there were a sufficient number of violations, the inspection would revert to a regular programmed inspection and the inspector would complete forms for all subcontractors (multiple inspections counted for the site), as had been the case prior to the Focused Inspection Initiative. The annual numbers of focused inspections conducted since the beginning of the program are shown below:

FY 1995 - 1,371
FY 1996 - 1,789
FY 1997 - 1,966
FY 1998 - 1,789
FY 1999 - 1,600
FY 2000 - 1,819 ⁽⁸⁾

Construction inspections fell from 22,763 in FY 1994 to 13,114 in FY 1995, a 42% reduction, and fell further to 11,514 in FY 1996 due to the government shutdowns discussed above. Construction accounted for almost three-fourths of the decline in inspections from FY 1994 to FY 1995.

Construction inspections rebounded to more than 18,000 in FY 1997, and increased to more than 19,000 in FY2000. The recovery was due partly to a return to normal following the government shutdowns, and also partly to a reaction to concerns that inspection numbers were too low.

Manufacturing - The manufacturing sector continued to account for slightly more than 25 percent of inspections during the 1990s before slipping to slightly less than 24 percent in 2000. There has been a long-term gradual decline in the proportion of inspections conducted in manufacturing coincident with the decline in the relative size of the manufacturing sector (Chart 4).

Type of inspection

OSHA prioritizes its inspections in the following order: Top priority goes to imminent danger situations—when workers face an immediate risk of death or serious physical harm. Second priority goes to any fatality or "catastrophe"--an accident that requires hospitalization of three or more workers. Third priority covers employee complaints and referrals. Lower priorities include follow-up inspections to determine whether previously cited violations have been abated and programmed inspections targeted toward high-hazard industries.⁽⁹⁾ Table 2 provides data on the number of inspections by type of inspection (Charts 5A and 5B show the trends).

Accident inspections - Due to the high priority of accident inspections, the factors that caused the large declines in the other types of inspections in FY 1995 and FY 1996 did not affect them. Accident inspections were relatively constant during the 1990s, averaging roughly 1,100 -1,200 inspections annually.

Complaint inspections - Historically, OSHA has always conducted an inspection upon receipt of a formal written complaint of hazardous conditions from employees or their representatives. However, the agency has revised its complaint policy several times in response to resource constraints and outside pressures. For example, it has changed the scope of the inspection conducted in response to a formal written complaint and the way it responds to nonformal complaints (see earlier report).

OSHA Instruction CPL 2.115, issued on June 14, 1996, implemented a new complaint policy whereby complaints were no longer identified as "formal" or "nonformal." Rather, based on new criteria, they would be classified as those that result in onsite inspections and those that result in investigations using telephone and fax. Under this policy, when certain criteria are met or when the employee or employee representative requests the phone/fax method, OSHA telephones the employer, describes the alleged hazards and then follows up with a fax or letter. The employer must respond within five days, identifying in writing any problems found and describing corrective actions taken or planned. If the response is adequate, OSHA generally will not conduct an inspection; however, the person who filed the original complaint is provided a copy of the employer's response, and, if still not satisfied, may then request an on-site inspection.⁽¹⁰⁾

OSHA has handled a substantial number of complaints using the phone/fax method as the following data show:

FY 1997: 20,637
FY 1998: 18,882
FY 1999: 18,534
FY 2000: 19,059
FY 2001: 19,359

During the 1990s, the number of complaint inspections declined from almost 11,000 to about 8,000. The low point of 6,721 occurred in FY 1996, coincident with the government shutdowns noted above and the overall reduction in inspections.

Follow-up inspections - OSHA conducts follow-up inspections to assure that employers abate hazardous conditions cited during previous inspections. The number of follow-up inspections has declined almost continuously since FY 1988, with the 509 conducted in FY 2000 being the lowest in OSHA's history. The continuing decline coincides with OSHA's efforts to strengthen its abatement verification policies, culminating in the March 1997 publication of the Abatement Verification Rule, which requires employers to certify to OSHA that they have abated each cited violation. Improved abatement verification policies lessened the need to conduct follow-up inspections.

Programmed inspections - Throughout its history, OSHA has attempted to target industries and firms thought to be particularly hazardous. The agency has used a variety of targeting methods, many of which are described in the earlier report. However, none relied on individual establishment data. Thus, even though OSHA targeted high hazard industries or focused on specific types of hazards, inspectors frequently ended up at businesses with low injury rates. In response to this situation, OSHA launched the Data Initiative in 1996 to collect data from establishments in high hazard industries in order to identify workplaces with the highest injury and illness rates (the records inspections shown in Table 1 for the late 1990s reflect an audit verification program for the OSHA Data Initiative). In 1999, OSHA's Site Specific Targeting program began to use the data to target individual establishments with high injury rates for inspection. However, it is not known whether this program had any impact on inspection numbers.

During the 1990s, the number of programmed inspections peaked at almost 21,000 in FY 1994 before dropping sharply in FY 1995 and FY 1996 to fewer than 10,000. By FY 2000, they had returned to the levels of the early 1990s.

III. Analysis of Violations and Penalties

Violations

The trend in the number of violations from FY 1991 to FY 2000 followed the same pattern as the trend in the number of inspections, except that violations fell further from FY 1994 to FY 1996 and did not recover as much in subsequent years (Table 4 and Charts 7A and 7B). In the early 1990s OSHA was citing in the neighborhood of 140,000 -150,000 violations annually compared with roughly 75,000 - 80,000 in the late 1990s. The trend was similar for serious violations and other than serious violations, which together account for more than 90 percent of all violations.

One factor contributing to the lower level of violations was a change in OSHA's policy regarding paperwork violations. In November 1995, OSHA issued Instruction CPL 2.111, which revised its citation policy for companies failing to display the OSHA poster or failing to meet written program requirements in standards such as lockout-tagout, permit-required confined spaces, bloodborne pathogens, hazard communication, and personal protective equipment. In the case of the OSHA poster, rather than cite employers without the poster, the compliance officer would provide them posters. However, OSHA would cite employers if they had previously been cited or informed of the posting requirement, or if there was a pattern of violations. The number of poster violations declined from almost 1,000 in FY 1994 to fewer than 30 in FY 1996 and thereafter.

A second factor that likely led to fewer violations (and penalties) was a change in policy announced by OSHA's Assistant Secretary in 1994. As he stated in testimony before Congress: "Many employers have complained that OSHA inspectors care less about worker safety than they do about meeting perceived "quotas" for citations and penalties. While OSHA has never used quotas, it has used citations and penalties as performance measures. Last year I put a stop to this practice. OSHA's performance will now be measured by its success in making safety and health improvements."⁽¹¹⁾

Penalties

Penalties increased dramatically in the early 1990s in the wake of passage of the Omnibus Budget Reconciliation Act of 1990, which increased the maximum penalty for violations seven-fold and imposed a minimum proposed penalty of $5,000 for willful violations. The new penalty levels applied to citations issued for inspections begun after March 1, 1991. Proposed penalties peaked at almost $96 million in FY 1994, declined to about $49 million in FY 1996, and then rose to the $60-70 million range in subsequent years (Table 5 and Chart 8A). In addition to the impact of the new method of measuring performance noted above, OSHA's Quick Fix policy announced in the May 1995 National Performance Review report contributed to lower penalty levels after FY 1994. Under this policy, OSHA reduced penalties for employers who immediately fixed nonserious hazards or low-gravity serious hazards.

Looking at penalties per violation, the Omnibus Budget Reconciliation Act of 1990 had the largest dollar impact on willful violations (Table 7). Prior to the legislation, the highest average penalty was about $9,400 in FY 1987. Subsequent to the legislation, the average willful penalty has ranged from $12,000 to $28,000. Average penalties for serious, repeat, and failure to abate violations have been about three to four times higher under the new law.

On August 14, 1991, OSHA instituted a policy whereby the agency would remove willful and repeat violations and replace them with "Section 17 designations" in certain situations.⁽¹²⁾ Specifically, the agency authorized these changes "If an employer, having been cited as willfully or repeatedly violating the Act, decides to correct all violations but wishes to purge himself of the adverse public perception attached to a willful or repeated violation classification and is willing to pay all or almost all of the penalty and to make other significant concessions..." The Unclassified column in Tables 4 and 5 shows the number of citations and penalties for these violations. The biggest penalty impact came in FY 1995, when unclassified violations accounted for almost $13 million in penalties.

IV. State Plan States

OSHA's state plan states operate their own OSHA programs, including an enforcement component. Tables 8 - 14 provide the same information for state plan states that Tables 1 - 7 provide for the Federal program, except that the data begin with FY 1991. During the 1990s, 23 states and territories operated OSHA programs, and New York and Connecticut operated programs covering public employees. Since the aggregate state plan data are a compilation of data from 25 enforcement programs that may vary somewhat from state to state, this section does not attempt to explain trends in the enforcement data. Rather, it simply describes the basic characteristics of the data.

In FY 1991, state plan states conducted more than 84,000 inspections, about twice the number conducted by the Federal program. However, by FY 2000, the more rapid decline in state plan inspections reduced the difference to about 20,000. In contrast to Federal OSHA, which experienced a large decline in inspections in FY 1995 and FY 1996 and the subsequent recovery, state inspections declined steadily throughout the decade (Chart 9).

The industry distribution of inspections has been somewhat different in the state programs (Table 10 and Chart 11). Whereas construction inspections generally accounted for more than 50 percent of all inspections in the Federal program, they accounted for less than 45 percent in the state plan states. The states conducted a larger proportion of their inspections in industries other than construction and manufacturing.

The number of violations cited by the states declined substantially from FY 1991 to FY 2000. As shown in Table 11, the number of violations dropped by more than 50 percent for each type of violation, except for serious violations, which stayed about the same. States have consistently cited more violations than Federal OSHA. However, the difference is mostly found in the "other than serious" category. For example, in FY 2000, the states cited about 141,000 violations, roughly 61,000 more than Federal OSHA; "other than serious" violations accounted for about 90 percent of the difference. In the early 1990s, Federal OSHA cited more serious violations than the states, but since FY 1995, the states have cited more. Willful violations is the only category in which Federal OSHA has consistently cited more violations than the states.

Although they cite more violations than Federal OSHA, the states generally assess lower penalties per violation (Table 14) and, as a result, aggregate penalties (Table 12) have been lower than those assessed by Federal OSHA. The difference varied from $11 to $52 million during the 1990s.

Throughout the 1990s, the states had more compliance officers than Federal OSHA and averaged fewer hours per inspection (Table 13). The result, as noted above, is that the states conducted considerably more inspections than Federal OSHA.

V. Conclusions

During the additional years covered by this report, FY 1992 through FY 2000, the number of inspections conducted by OSHA declined by about 14 percent and the number of violations dropped by about 48 percent (compared with FY 1991). Proposed penalties increased slightly; however, if history repeats, the reported penalty figure for FY 2000 may decline as cases begun that year are adjudicated or settled (see Appendix). The number of compliance officers declined by about 14 percent during this period. The only major measure reviewed here that increased significantly during this period was the average penalty per violation, which increased from $468 in FY 1991 to about $900 by FY 2000.

The major events affecting the enforcement program occurred in FY 1995 and FY 1996. OSHA instituted reinvention efforts in FY 1995 that directly led to fewer inspections — including a new method for counting construction inspections — and fewer violations. The budget impasse and resulting government shutdown in FY 1996 reduced inspections and violations even further. By the last few years of the period, inspections, violations and proposed penalties had stabilized, though at levels below those in the early 1990s.

OSHA state plan states consistently conducted more inspections and cited more violations, but assessed lower penalties than Federal OSHA. During the period reviewed, the number of inspections and violations declined substantially, though they remained above Federal OSHA levels.

Appendix

As noted in the Introduction, data in OSHA's Integrated Management Information System (IMIS) are subject to revision due to new reports coming in after the end of a fiscal year and due to revisions in violations cited and penalties assessed when employers settle or contest citations. The impact of these changes is generally marginal for inspection numbers, small for violation numbers, but significant for penalty figures. For example, a November 1997 computer run for the Federal program for FY 1997 showed 34,264 inspections, 83,710 violations, and $89.4 million in penalties. The June 2002 computer run used for this paper showed 34,382 inspections (an increase of 0.3 percent), 82,432 violations (a decrease of 1.5 percent), and $68.3 million in penalties (a decrease of 24 percent).

The earlier paper used 1991 computer runs as the source of data for the Federal program from FY1972 - FY 1991. This paper uses a June 2002 computer run for FY 1992 - FY 2000, and also to revise the data for FY 1990 - FY 1991. With the exception of penalty data, the differences between data from the new computer run and data from the earlier computer runs are negligible for years prior to FY1990 (i.e., well under 1 percent). However, the newer data indicate substantial reductions in penalties for FY 1987 to 1989 (about 10 percent) and significant changes in some of the violation figures. Therefore, the more recent data are used in this paper. No adjustments were made to any of the pre FY1987 data from the earlier paper, since any revisions would have been well under 1 percent and would not have affected any of the conclusions in the paper.

All data for state plan states are from a June 2002 computer run.

1. Reinventing Labor Regulations, Summary Report, Eliminating and Improving Regulations: Recommendations for Removal, Reinvention, and Retention, U.S. Department of Labor; June 15, 1995

2. Conversation with Bill Smith, OSHA Directorate of Compliance Programs

3. February 1, 1995 OSH Reporter, The Bureau of National Affairs, Inc.

4. March 29, 1995 OSH Reporter, The Bureau of National Affairs, Inc.

5. August 9, 1995 OSH Reporter, The Bureau of National Affairs, Inc.

6. Conversation with Bill Smith, OSHA Directorate of Compliance Programs

7. Memorandum from James Stanley to Regional Administrators, August 22, 1994

8. Source: OSHA Integrated Management Information System

9. OSHA Field Inspection Reference Manual CPL 2.103. OSHA Web site.

10. Under the previous policy, nonformal complaints other than those involving an imminent danger or "extremely hazardous working condition" were handled by letter. OSHA closed the case if it received a satisfactory response from the employer, though the agency did select for inspection every tenth satisfactory response.

11. Statement of Joseph A. Dear, Assistant Secretary for Occupational Safety and Health United States Department of Labor, Before the House Appropriations Subcommittee on Labor, Health and Human Services, Education and Related Agencies, February 23, 1995

12. August 14, 1991 Memorandum to Regional Administrators from Patricia Clark, Director, Directorate of Compliance Programs