DIRECTIVE NUMBER: CPL 2-0.114	EFFECTIVE DATE: May 28, 1998

SUBJECT: Abatement Verification Regulation, 29 CFR 1903.19 - Enforcement Policies and Procedures

Purpose:	This instruction establishes enforcement policy and procedures for the Abatement Verification Regulation
Scope:	OSHA-wide.
References:	OSHA Instruction CPL 2.103, Field Inspection Reference Manual; Federal Register, Vol. 62, No. 61, March 31, 1997, pages 15324 - 15340
Cancellations:	Memorandum for Regional Administrators dated May 27, 1997, providing Abatement Verification Rule -- Interim Enforcement Guidance
State Impact:	See Paragraph V
Action Offices:	National, Regional and Area Offices
Originating Office:	Directorate of Compliance Programs
Contact:	Don Kallstrom (202) 219-8031 Office of General Industry Compliance Assistance Room N3107 Frances Perkins Building 200 Constitution Avenue, N.W. Washington, DC 20210

By and Under the Authority of
Charles N. Jeffress
Assistant Secretary

1. Purpose.

2. Scope.

3. References

4. Action.

5. Federal Program Change

6. Background

7. Citations

8. Citation Issuance Procedures

9. Penalties

10. Special Enforcement Situations

11. Case File Management

12. Outreach

    Appendix A

    INDEX

1. Purpose. This instruction establishes enforcement policy and procedures for the abatement verification regulation.

2. Scope. This instruction applies OSHA-wide.

3. References.
   1. OSHA Instruction CPL 2.103, September 26, 1994, Field Inspection Reference Manual (FIRM).

   2. Federal Register, Vol. 62, No. 61, March 31, 1997, pages 15324 - 15340 Abatement Verification, Final Rule, 29 CFR 1903.19.

   3. OSHA Instruction STP 2.22A, May 14, 1986, State Plan Policies and Procedures Manual (SPM).

   4. Public Law 91-596, December 29, 1970, Occupational Safety and Health Act of 1970 (OSH Act or the Act).

   5. U.S. General Accounting Office, Report to Congressional Requesters, Occupational Safety & Health, OSHA Policy Changes Needed to Confirm that Employers Abate Serious Hazards, May 8, 1991, GAO/HRD-91-35.

   6. Secretary's Order 6-96, December 27, 1996, Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Safety and Health

4. Action. Regional Administrators and Area Directors will ensure that the procedures established by this instruction are followed. Regional Administrator Memorandum dated May 27, 1997, providing interim Abatement Verification Rule enforcement guidance, is rescinded.

5. Federal Program Change. Action by State plan States is required for this instruction because it establishes enforcement policy and procedures for the new Abatement Verification regulation and thus affects the conduct of all inspections where an alleged violation is found. These states must provide documentation to their Regional Administrators within 60 days of issuance of this instruction of their intent to adopt an identical change (modified only to the extent needed to reflect a State's unique structure, or editorial revisions) or to adopt an alternative enforcement policy and procedures.
   1. If a State chooses to adopt an identical enforcement policy and procedures change, the State must implement the change within six months from the date of issuance of this instruction and submit the cover page of the State's implementing instruction or memorandum to the Regional Administrator when the change has been implemented.

   2. If a State plans to propose a new, alternative approach, the State shall submit one copy of a plan supplement to the Regional Administrator within six months from the date of issuance of this instruction. The plan supplement shall consist of a cover letter describing the change, documentation that the change has been implemented and distributed to appropriate staff, and a listing of significant differences with a statement of how the State's change is at least as effective as OSHA's abatement verification enforcement policy and procedures.

   3. OSHA Instruction STP 2.23, June 4, 1997, " Final Rule on Abatement Verification", informed States that they are required to adopt an abatement verification regulation or other equivalent mechanism that can be enforced with citations and penalties. States that already have an abatement verification requirement similar to the March 31, 1997 Federal rule will only need to reissue it as a regulation or other enforceable mechanism.

6. Background.
   1. On May 8, 1991, the General Accounting Office (GAO) issued a report to Congress (GAO/HRD-91-35 OSHA: Confirming Abatement of Hazards) on the adequacy of OSHA's policies and procedures for determining whether serious hazards have been abated. GAO found OSHA's policies incomplete in two ways: (1) they do not require, but merely request, employers to provide evidence of abatement, and (2) they inadequately address verification of abatement of hazards found at construction worksites. OSHA published a final rule to remedy these deficiencies in the Federal Register on March 31, 1997.

      The new regulation codifies, simplifies and streamlines the abatement certification procedures that OSHA has previously used. The new procedures will reduce both employer's and OSHA's administrative and paperwork burdens, enhance employee participation in the abatement process, increase the number of cited hazards that are quickly abated, and standardize OSHA's abatement procedures.

   2. Important terms and concepts.
      1. Abatement verification includes abatement certificates, abatement documents, abatement plans, and progress reports.

      2. Affected employee means those employees who are exposed to the hazards(s) identified as violations(s) in a citation. This term is critical for the proper application of paragraph (g) Employee notification.

      3. Final order date means:

         (i) For an uncontested citation item, the fifteenth working day after the employer's receipt of the citation;

         (ii) For a contested citation item:

         (A) The thirtieth day after the date on which a decision or order of a Commission administrative law judge has been docketed with the Commission, unless a member of the Commission has directed review; or

         (B) Where review has been directed, the thirtieth day after the date on which the Commission issues its decision or order disposing of all or pertinent part of a case; or

         (C) The date on which a federal appeals court issues a decision affirming the violation in a case in which a final order of OSHRC has been stayed.

      4. Movable equipment means a hand-held or non-hand-held machine or device, powered or unpowered, that is used to do work and is moved within or between worksites. Hand-held equipment is equipment that is hand-held when operated. Basically, hand-held equipment is equipment that can be picked up and operated with one or two hands, such as a hand grinder, skill saw, portable electric drill, nail gun, etc.

      5. Worksite is, for the purpose of enforcing this regulation, the physical location specified under the heading "Description" in the citation; if no location is specified, the worksite shall be the inspection site where the cited violation occurred.

7. Citations. The effective date of the regulation is May 30, 1997. OSHA will apply the regulation for all inspections initiated after May 31, 1997. The policies and procedures contained herein supersede the FIRM's guidance on verification of abatement found in paragraph A.3. of chapter IV.
   1. Except for the application of tags on movable equipment [1903.19(i), requiring attachment of the tag or citation immediately after receiving the citation], the abatement verification regulation does not impose any requirements on the employer until a citation item has become a final order of the Occupational Safety and Health Review Commission.

   2. All "final order" citation items, no matter what the characterization, require abatement certification within 10 calendar days of the abatement. Where there has been a contest of a violation or abatement date (not penalty), the abatement date is calculated by adding the original amount of time for abatement to the final order date.

   3. Employers are not required to certify abatement for violations which they promptly abate during the on-site portion of the inspection and whose abatement the CSHO observes. Area Directors may use their discretion in extending the "24 hours" time limit to document abated conditions during the inspection. Observed abatement will be documented on the OSHA 1-B for each violation following the guidelines of the Field Inspection Reference Manual (FIRM) Chapter IV, as well as on the citation.

   4. By regulation [paragraph (d)(1)], all willful and repeat citations require abatement documentation, such as written, videographic or photographic evidence of abatement.

   5. Also by regulation [paragraph (d)(1)], the employer must provide abatement documentation for any serious violation for which the Agency indicates on the citation that such abatement documentation is required. OSHA policy is that all high gravity serious citations will require abatement documentation. Where, in the opinion of the Area Director, abatement documentation is not required for a high gravity serious violation, the reasoning will be noted in the case file.

      This directive sets new policy regarding whether an employer must provide abatement documentation for moderate and low gravity citations. Normally, moderate or low gravity serious citations shall not require abatement documentation. The exception is, that the Area Director shall require evidence of abatement for moderate and low gravity serious citations under the following circumstances:

      1. If the establishment has been issued a citation for a willful violation or a failure-to-abate notice for any standard which has become final order in the previous 3 years; OR

      2. If the employer has any history of a violation that resulted in a fatality or an OSHA 200 log entry indicating serious physical harm to an employee in the past 3 years. The standard being cited must be similar to the standard cited in connection with the fatality or serious injury or illness.

   6. For abatement periods greater than 90 calendar days, the regulation allows the Area Director flexibility in either requiring or not requiring monitoring information. Note that Paragraphs (e) and (f) of 1903.19 have limits; the Area Director is not allowed to require abatement plan for abatement periods less than 91 days or for citations characterized as other-than-serious. Progress reports may not be required unless abatement plans are specifically required. The requirement for abatement plans and progress reports must be indicated for the citation item to which they relate. The regulation places an obligation on employers, where necessary, to identify how employees are to be protected from exposure to the violative condition during the abatement period. One way of ensuring that interim protection is included in the abatement plan is to note this requirement on the citation. There is nothing in this directive or the regulation prohibiting progress reports as a result of settlement agreements.

   7. All settlement agreements (informal, formal, and corporate-wide) that have citation(s) characterized as "Section 17"or "Unclassified" must contain language stating that the employer must comply with the requirements of 29 CFR 1903.19 for all final order citations.

   8. Only equipment, whether hand-held or not, which is moved within the worksite or between worksites, is required to be tagged. The tag is intended to provide an interim form of protection to employees through notification for those who may not have knowledge of the citation or the inherent hazardous condition. Compliance Officers should make every effort to be as detailed as possible when documenting the initial location where the violation occurred. This documentation is critical to the enforcement of the tagging requirement [1903.19(i)] because the tagging provision is triggered upon movement of the equipment.

   9. Tag-related citations must be observed by a CSHO before a citation is issued for failure to initially tag cited movable equipment. OSHA must be able to prove the employer's initial failure to act (tag the movable equipment upon receipt of the citation). Where there is insufficient evidence to support a violation of the employer's initial failure to tag or post the citation on the cited movable equipment, a citation may be issued for failure to maintain the tag or copy of the citation using paragraph (i)(6).

   10. An initial minor non-substantive omission in an abatement certificate (e.g., lack of a definitive statement stating that the information being submitted is accurate) should be considered a de minimis violation of the regulation. If there are minor deficiencies such as omitting the signature or date, the employer should be contacted by telephone to verify that the documents received were the ones they intended to submit. If so, the date stamp of the Area Office can serve as the date on the document. A certification with an omitted signature should be returned to the employer to be signed, when the Area Director believes it would be beneficial.

   11. Like tag-related citations, evidence of an employer's failure to notify employees by posting must be obtained at the worksite. Where an employer claims that posting at the location where the violation occurred would ineffectively inform employees [paragraph (g)(2)], the employer may post the document or a summary of the document in a location where it will be readily observable by affected employees and their representatives or may otherwise communicate fully with affected employees and their representatives about abatement activities. The CSHO must determine not only whether the documents or summaries were appropriately posted but also whether, as an alternative, other communication methods, such as meetings or employee publications, were used.

   12. As a matter of policy, a Petition for Modification of Abatement Date (PMA) received and processed in accordance with the guidance of the FIRM will suspend the 10-day time period for receipt of the abatement certification for the item for which the PMA is requested. Thus, no citation will be issued for this item for failure to submit the certificate within 10 days of the abatement date. If the PMA is denied, the 10-day time period for submission to OSHA begins on the day the employer receives notice of the denial.

   13. Also as a matter of policy, OSHA will not be issuing citations for failure to submit an abatement certificate for violations of 29 CFR 1903.19(c).

8. Citation Issuance Procedures. Citations for failure to certify can be issued without formal followup activities by following the procedures identified below.
   1. If abatement certification and any required documentation are not received within 13 calendar days after the abatement date [the regulation requires filing within 10 calendar days after the abatement date; and another 3 calendar days is added for mailing], telephone the employer and remind him/her of the requirement to submit the material, and tell the employer that a citation may be issued.

   2. If abatement verification documents are not received within 7 calendar days after the telephone call, issue a dunning letter to the employer.

   3. If the certification and/or documentation is not received within the next 7 calendar days, a single other-than-serious citation will be issued combining all the individual instances where the employer has not submitted abatement certification and/or abatement documentation. This "other" citation will be issued under the same inspection number which contained the original violations cited. The "abatement date" for this citation shall be set 30 days from the date of issuance.

      Note: Each violation of 1903.19(c), (d), (e), or (f) with respect to each original citation item is a separate item.

   4. If abatement certification and/or documentation is not received by the time that the 30-day abatement period expires, consult the Regional Administrator [and the Regional Solicitor] to discuss the suitability of the case for further enforcement action, or the necessity for a followup inspection.

      Notes:

      1. During the time between the reminder letters and citation issuance, efforts should be made to speak with the employer and determine why he/she has not complied. All communication efforts will be documented in the case file.

      2. For those rare instances where the reminder letter is returned to the Area Office by the Post Office as undeliverable and telephone contact efforts fail, the Area Director has the discretion to stop further efforts to locate the employer and document in the case file the reason for no abatement certificate.

   5. For those situations where the abatement date falls within the 15-day informal conference time period, and an informal conference request is likely, enforcement activities should be delayed for these citations until it is known if the citation's characterization or abatement period is to be modified.

9. Penalties
   1. The penalty provisions of Section 9 and 17 of the OSH Act apply to all citations issued under this regulation. The general application for adjustment factors for size and history as found in the FIRM in Chapter IV, C.2.n.(1) will also apply. No "Good Faith" credit shall be given to employers being cited for failure to certify abatement.

   2. The penalty for failing to submit abatement certification documents [1903.19(c)(1)] will be $1,000, adjusted for size and history. In no case, will the penalty for failure to submit abatement verification documents ever exceed the penalty for the entire original citation.

   3. The penalty for not notifying employees and tagging [paragraphs (g)(1), (g)(2), (g)(4), (i)(1), (i)(2), (i)(3), (i)(5) and (i)(6)] will follow the same penalty structure (unadjusted $3,000) which is currently being applied for failure-to-post citations in the FIRM Chapter IV C.2.n.(2)(c).

10. Special Enforcement Situations.
    1. Under Secretary's Order 6-96, the authority to conduct inspections and issue citations for field sanitation and most temporary labor camps in agricultural employment has been delegated to the Employment Standards Administration (ESA). An employer's obligation under the abatement verification regulation still applies. However, ESA's delegation of authority does not cover other OSHA regulations or standards, including 29 CFR 1903.19. In situations where ESA determines employers are in violation of §1903.19, the following procedures are to be followed.
       1. Wage and Hour District Directors, after following the procedures outlined in the Citation Issuance Procedures paragraphs (VIII. A. and B.) of this directive, will send a copy of the inspection case file or a summary memorandum to the OSHA Regional Administrator's Office for referral following established practice.

       2. The OSHA Regional Office shall forward appropriate case files to the Area Office having jurisdiction to open a NEW inspection (coded as a Referral) and process citation(s) for failure to comply with 29 CFR 1903.19. Upon receipt of the abatement verification documents related to the ESA inspection, OSHA will fax them to ESA.

          Note: All field sanitation and temporary labor camp cases will automatically comply with the Appropriations Act rider because the field sanitation standard does not apply to employers with 10 or fewer employees and the rider does not apply to temporary labor camps.

       3. Penalties will be collected and processed following normal procedures. Upon receipt of penalties for the OSHA-issued 29 CFR 1903.19 citations, OSHA's case file will be closed.

       4. In situations where an employer does not respond to OSHA's issuance of violations of 1903.19 and dunning efforts outlined in paragraph H.1. fail, ESA shall be informed through memorandum and the OSHA case file closed with the penalties referred for debt collection.

    2. Construction activities pose situations requiring special consideration.
       1. Construction site closure or hazard removal due to completing of the structure or project will only be accepted as abatement without certification where a CSHO directly verifies the site closure. Without CSHO-observed verification, the employer must certify to OSHA that the hazards have been abated by the submission of an abatement certificate. Site closure is an acceptable method of abatement.

       2. Equipment-related and all program-related (e.g., crane inspection, hazcom, respirator, training, competent person, qualified persons, etc.) violations will always require employer certification of abatement.

       3. For situations where the main office of the employer being cited is physically located in another Regional jurisdiction, the Area Director having the jurisdiction over the work site will proceed as if the employer's main office were in the Area Director's own jurisdiction, and notify the affected Regional Office (FSO) of the communication with the employer.

          Where a followup inspection to verify abatement is deemed necessary, the affected Regions and Area Offices will determine the most efficient and mutually beneficial approach to conducting the inspection.

11. Case File Management.
    1. The closing of a case file without abatement certificate(s) must be justified through a statement in the case file by the Area Director or his/her designee, addressing the reason for accepting each uncertified violation as an abated citation.

    2. The Area Offices are encouraged to review employer-submitted abatement verification materials as soon as possible but no later than 30 days after receipt. If the review will be delayed, notify the employer that the material will be reviewed by a date certain, and that the case will be closed, if appropriate after that time.

    3. As in the past, the decision of whether to keep abatement documentation (photos, employer programs, etc.) is left to Regional/Area Office policy. The regulation's requirement for their submission was to assist the Area Directors in determining abatement.

12. Outreach. To encourage voluntary compliance, the subject matter of the regulation must be distributed to the affected employees and employers. Regional and Area Offices are encouraged to actively seek out employer and employee groups to inform them of the regulation. The National Office prepared outreach materials for this regulation which are available through the Regional Offices and the OSHA homepage. Some suggested outreach approaches are:
    1. Opening conference. During the opening conference the Compliance Officer should explain to the employer the advantages of immediate abatement and that there are no certification requirements for violations quickly corrected during the inspection. The agency's new Form 197 (Warning tag) is available through the normal procurement process by the Area Office. Compliance Officers are encouraged to offer "WARNING TAGS" to employers during the inspection. CSHOs must not apply the tags to any equipment; this is an employer responsibility.

    2. Closing conference. During the closing conference the Compliance Officer should thoroughly explain to the employer the abatement verification requirements.
       1. Abatement certification is required for all citation item(s) which the employer receives except for those citation items which are identified as "Corrected During Inspection."

       2. The violation(s) that will reflect on-site abatement and will be identified in the citations as "Corrected During Inspection" shall be reviewed at the closing conference.

       3. Abatement documentation, the employer's physical proof of abatement, is required to be submitted along with each willful, repeat and designated serious violations. To minimize confusion, the distinction between abatement certification and abatement documentation should be discussed.

       4. Where abatement periods for citations are expected to exceed 90 calendar days, the submission and requirements of abatement plans and progress reports are to be explained.

       5. The required placement of tags or the citation [1903.19(i)] must also be discussed at the closing conference, if it has not been discussed during the walkaround portion of the inspection.

    3. Incorporate OSHA's abatement verification policy and requirements into local speeches, presentations, press releases, or other public information. A special effort should be placed on approaches that can reach those small employers who would not normally be informed about new OSHA standards or regulations.

    4. Initiate mailing programs to local industry associations and employee unions, to publicize the regulation and encourage voluntary compliance.

    5. Advise and provide the local Federal Advisory Council on Safety and Health with OSHA materials such as: the regulation and this instruction.

Abatement certification

Abatement Date

Abatement documentation

Abatement Plan

Affected employee

Area Director

Area Office

Citation

Closing Conference

CSHO

De Minimis

De Minimis Violation

Employment Standards Administration

ESA

Federal Program Change

Field Inspection Reference Manual

Followup Inspection

Hand-held equipment

Informal Conference

Jurisdiction

Labor Camp

Opening Conference

OSHA 1

OSHRC

Penalties

Penalty

PMA

Regional Administrator

Regional Office

Repeat

Review Commission

Serious

State Plan

Tag

Temporary Labor Camp

Verification

Violation

Willful