| OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. |
September 30, 2003
| MEMORANDUM FOR: |
REGIONAL ADMINISTRATORS
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| FROM: |
R. DAVIS LAYNE
Deputy Assistant Secretary
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| SUBJECT: |
Interim Implementation of OSHA's Enhanced Enforcement Program (EEP) |
Assistant Secretary John L. Henshaw's memorandum of March 12, 2003, entitled "Enhanced Enforcement Program for Employers Who Are Indifferent to Their Obligations Under the OSH Act," described the need to address employers who, despite OSHA's enforcement and outreach efforts, ignore their OSH Act obligations, thereby placing their employees at risk.
Effective immediately, each Regional Administrator will implement the following steps of OSHA's Interim Enhanced Enforcement Program (EEP) for all Priority Enforcement Cases. These steps will be followed whenever an Area Director determines that a case meets the Priority Enforcement Case criteria.
State Plan Impact. This memorandum implements a new Federal program that State Plan States are not required to adopt. However, as this is an important Federal initiative, States should consider establishing parallel programs within the authority of State law that will focus appropriate attention on employers who are indifferent to their occupational safety and health obligations. States adopting such enhanced enforcement programs should notify their Regional Administrator and provide appropriate documentation through a State Plan change submission within 30 days of adoption.
Priority Enforcement Case (PEC). A PEC is defined as any inspection that meets one or more of the following criteria at the time the citation is issued:
- A fatality inspection in which OSHA finds a high gravity serious (or willful or repeated) violation related to the death;
- An inspection that results in three or more high gravity serious violations classified as willful or repeat violations (or any combination of willfuls and repeats adding to three or more);
- An inspection that results in two failure-to-abate notices where the underlying violations were classified as high gravity serious;
Any fatality inspection in which OSHA finds that a willful violation of a standard caused the death of an employee will, in addition to being subject to these PEC procedures, also be considered for criminal referral under section 17(e) of the Act.
Inspections that initially met the PEC criteria and where serious, willful or repeated violations have been reclassified as "unclassified" in a settlement agreement will normally only invoke some elements of the PEC as appropriate.
Grouped and combined violations will be counted as one violation for PEC purposes.
The actions described in Paragraphs B.1, B.2, B.3, C, and D below may be taken before a case meeting the PEC criteria results in a final order of the Review Commission.
When the Area Director determines that a case meets the PEC criteria, the Regional Administrator will notify the Directorate of Enforcement Programs (DEP) on a biweekly basis. DEP will notify the Directorate of Construction (DOC) as appropriate. The notification shall include the name of the employer, the Area Office involved, and the action taken (i.e., follow-up inspection, related inspection, News Release, letter to company headquarters, etc.)
- PEC Follow-up Inspections. For any inspection completed after March 12, 2003, which results in a PEC, a follow-up inspection will normally be conducted even if abatement of the cited violations has been verified. The primary purposes of follow-up inspections in PECs are to assess whether the cited violation(s) were abated and whether the employer is committing similar violations. If there is a compelling reason not to conduct a follow-up inspection, that reason shall be documented in the file. The Region shall also communicate to either the Director of Enforcement Programs or the Director of Construction those cases where a follow-up inspection was not conducted and the reason that a follow-up was not initiated.
- Inspections of Other Sites. OSHA views a PEC citation as an indication that the employer is indifferent to its OSH Act obligations. Therefore, when circumstances warrant, OSHA will inspect other sites of the same company-wide employer to determine whether the compliance problems at the PEC site are indicative of a company-wide problem.
- Expanded Site-Specific Targeting (SST) Primary List. When an inspection results in a PEC citation, any related establishments of the same employer that are on that year's SST secondary list will be moved to the primary list. The Regional Office will notify the Office of Statistical Analysis (OSA) in its biweekly report, as mentioned above, of any PECs. OSA will notify the appropriate Area Office(s) of any sites that have moved to the primary list.
- General Industry Worksites. Whenever a PEC citation is issued to a general industry employer, other sites of the same company-wide employer may be inspected if an investigation provides substantial reason to believe that the safety and health problems identified in the PEC citation are part of a broader company-wide problem. This determination requires that OSHA gather information showing the extent to which the violations found at the first establishment suggest a lax overall company-wide approach to safety and health either in general or with respect to particular issues.
- Expanded Investigations. Whenever an investigation appears likely to lead to a PEC citation, information should be obtained to determine whether the same company parent operates other worksites and, if so, whether there is evidence indicating a company-wide indifference to safety and health. At the request of the Regional Administrator, OSA will identify other worksites of the same employer within the region.
Appendix A (non-mandatory) contains guidelines for the type of inquiry that should be conducted to obtain relevant information. If, during the inspection, the CSHO has identified the case as one that could lead to a PEC citation, questions like those outlined in Appendix A should be asked during the inspection. Such information can be sought by letter, telephone, or, if necessary, by subpoena.
- Decision to Take Further Action. The Regional Administrator is responsible for deciding whether there is sufficient evidence of a company-wide problem to justify inspection of additional company worksites within the region. Before conducting such an inspection, the Regional Administrator will consult with the Regional Solicitor to determine whether OSHA has probable cause to conduct the inspection.
- Notification to National Office. The Regional Administrator shall notify the Director of Enforcement Program whenever he or she determines that there is sufficient evidence of a company-wide problem to justify further action. The Deputy Assistant Secretary, in consultation with the Director of Enforcement Programs and the affected Regional Administrators, will develop a plan for further action, which may include inspections of establishments in other regions.
- Construction Worksites. Whenever a PEC citation has been issued to an employer in the construction industry, the Regional Administrator shall determine whether further investigation of the employer's OSH Act compliance is justified. If so, at least one other worksite of the cited employer should be inspected to determine whether the employer is committing violations similar to those in the PEC citation. The following means may be used to identify other worksites of the cited employer.
- If the PEC citation is resolved through a settlement, the agreement should require the employer to notify OSHA of its other current jobsites and whenever it begins work at a new construction site during the next year.
- An administrative subpoena may be issued, as needed, to an employer for the production of existing records that identify the location of worksites where employees of that employer are presently working or are expected to be working within the next 12 months. Although subpoenas for such records will usually be issued after PEC citations have become final, a subpoena may be issued at any time during an investigation if it appears that the investigation is likely to result in a PEC and the Area Director determines (after consultation with the RA) that the hazards disclosed by the inspection and the inadequacy of the employer's response to those hazards indicate that a broader response by OSHA may be appropriate.
- Where a Regional Administrator determines that there is sufficient evidence of a company-wide problem that may cross regional lines, the procedure in 2.c will be followed.
- Increased Company Awareness of OSHA Enforcement.
- Company Headquarters Notification. For all establishments that are the subject of a PEC, an information copy of the citation and notification of penalty will be mailed to the employer's national headquarters. In cases where OSHA determines that the establishment's safety and health problems need to be addressed at the company headquarters level, the following actions may also be taken.
- A meeting may be held between OSHA and company officials to discuss how the company intends to address safety and health compliance.
- A letter may be sent from the Assistant Secretary to the company President expressing OSHA's concern with the company's violations.
- Necessary information about the company will be disseminated through the OSHA intranet and e-mail.
- Enhanced Settlement Provisions.Most settlement agreements require the employer to abate all violations and pay a penalty. In some settlements, however, particularly those in egregious cases and other significant enforcement actions, OSHA has insisted that employers take steps to address systemic compliance problems or to provide OSHA with information that will enable it to take follow-up action.
In coordination with the Office of the Solicitor, OSHA will make greater use of settlement provisions designed to ensure future compliance. For all establishments that are the subject of a PEC and are seeking a settlement with the agency, OSHA will consider including some or all of the following within the terms of the settlement agreement:
Note: These enhanced settlement terms may also be considered in cases that do not meet the PEC criteria.
- Requiring the employer to hire a consultant to develop a process to implement an effective safety and health program with management support in the facility;
- Applying the agreement company-wide;
- In construction (and where appropriate, in general industry), using settlement agreements to obtain from employers a list of other job sites;
- Requiring the employer to submit to OSHA its Log of Occupational Injuries and Illnesses on a quarterly basis, and to consent to OSHA's conducting an inspection based on the report;
- Requiring the employer to notify the Area Office of any serious injury or illness requiring medical attention and consenting to an inspection; and
- Obtaining employer consent to entry of a court enforcement order under Section 11(b) of the Act.
See also section E.3. below for guidance on drafting settlement agreements that can maximize the deterrent affect of a Section 11(b) order.
- Federal Court Enforcement under Section 11(b) of the OSH Act. An employer's obligation to abate a cited violation arises when there is a final order of the Review Commission upholding the citation.
- Section 11(b) Summary Enforcement Orders. Section 11(b) of the OSH Act authorizes OSHA to obtain court orders enforcing final Review Commission orders.
An employer who violates such a court order can be found in contempt of court. Potential sanctions for contempt include the daily failure-to-abate penalties provided in the Act (including prospective daily penalties) and other fines, recovery of the Secretary's costs of bringing the action, incarceration of an individual company officer who flouts the court's order, and any other sanction necessary to secure compliance.
Employers who ignore ordinary enforcement actions may be induced to comply by the severity of these potential contempt sanctions.
Section 11(b) orders can be an effective and speedier alternative to failure-to-abate notices that are typically issued when an employer does not abate a violation within the allowed time. They can be used whether the final order results from a Review Commission or ALJ decision, a settlement agreement, or an uncontested citation.
- Selection of Cases for Sec. 11(b) Action. All PEC final orders should be considered for 11(b) enforcement. In addition, 11(b) enforcement should be considered in cases where final orders do not meet the PEC criteria but where the following factors suggest that an 11(b) petition should be filed:
- Employer's citation history and other indications of serious compliance problems, such as widespread violations at multiple establishments or construction worksites. The OSHA IMIS database should be searched for the employer's history of violations;
- Employer statements indicating reluctance or refusal to abate significant hazards, or behavior that demonstrates indifference to employee safety;
- Repeated violations of the Act, particularly of the same standard, which continue undeterred by the traditional remedies of civil money penalties and Review Commission orders to abate;
- Repeated refusal to pay penalties;
- Filing false or inadequate abatement verification reports;
- Disregard of a previous settlement agreement, particularly one that includes a specific or company-wide abatement plan.
- Drafting of Citations and Settlements to Facilitate Sec. 11(b) Enforcement. Proper drafting of citations and settlement agreements can maximize the deterrent effect of an 11(b) order.
Where possible, OSHA should attempt to identify cases that may warrant 11(b) enforcement a least a month before issuing the citation. When OSHA identifies such a case, it will contact the Regional Solicitor to discuss citation language that is in accord with 11(b) enforcement. If a case identified for potential 11(b) action is being resolved through a settlement agreement whether formal or informal, language should be sought in the agreement that commits the employer to specific ongoing abatement duties.
Language in a settlement agreement that imposes a specific duty on the employer, such as a requirement that the employer hire a consultant to develop a safety program or provide OSHA with a list of other worksites, can be enforced under Section 11(b).
- Coordination. The Directorate of Enforcement Programs will be the National Office point of contact for all initial coordination of the EEP. Any questions should be addressed to Richard E. Fairfax or Tom Galassi at (202) 693-2100 or to H. Berrien Zettler at (202) 693-2020 for construction related cases. All Regional Administrators will name a Priority Enforcement Case Coordinator.
- Relationship to Other Programs
- Unprogrammed Inspections. If the occasion for an unprogrammed inspection arises with respect to an establishment that is to receive an EEP inspection, the two inspections may be conducted either concurrently or separately. This memorandum does not affect in any way OSHA's ability to conduct unprogrammed inspections.
- Programmed Inspections. Some establishments may be selected for inspection under the EEP and also under one or more other OSHA initiatives such as Site-Specific Targeting (SST), National Emphasis (NEP), or Local Emphasis (LEP). These programs can be run concurrently with the EEP.
- Recording and Tracking of Inspections. This applies to follow-up inspections discussed in section A. above, SST inspections of establishments that were moved from the secondary list to the primary list, inspections of related establishments, and enhanced settlement agreements related to PECs.
All IMIS case file data for PECs conducted since March 12, 2003, should be modified to include the appropriate codes. Once a case has been identified as a PEC, complete the OSHA-1 by entering the code "EEP" in Item 42, Optional Information, for the inspection. EXAMPLE:
If the case is also determined to be a significant case, modify the existing record to add the significant case code using "SIGCASE" as shown below:
Remember, if the inspection is a Non-Primary Insp in a Multiple Insp Significant Case the ( S + Activity Number of Primary Inspection) code is to be used, as shown below:
If the case also receives an Enhanced Enforcement Settlement Agreement, modify the existing record to add the enhanced enforcement settlement agreement code using "ENHSA."
| N |
08 |
EEP,SIGCASE,ENHSA |
| N |
08 |
EEP,S#########,ENHSA |
In addition, enter all applicable SST, NEP, LEP program codes in Item(s) 25c and 25d when an inspection is conducted and the inspection also meets the protocol for other program(s). Also, enter all applicable Strategic Management Plan hazard/industry codes in Item 25f.
- Dun & Bradstreet Number. The Data Universal Numbering System (DUNS) number, which is a required entry for all EEP inspections, must be recorded in the appropriate field on the Establishment detail Screen. In establishments where ownership has changed, enter the DUNS number for the new owner. If the new owner does not have a new DUNS number, enter the old DUNS. Since the DUNS number is site-sensitive the old number will give some useful data. The field on the Establishment Detail Screen can be accessed by pressing F5 in Item 8 to access establishment processing. Once establishment processing is completed, the DUNS number will appear in Item 9b.
Note: The Office of Statistical Analysis will be able to assist in identifying both the DUNS number and the company-wide family tree.
- End of the Year Report. Regional Administrators will submit an End of the Year report on the Region's EEP activity to the Directorate of Enforcement Programs. This report will cover the period from March 12, 2003 through December 31, 2003. The report will be due January 30, 2004, and will include the following information:
- Number of follow-up inspections initiated;
- Number of SST establishments that were moved from the secondary inspection list to the primary list with an inspection initiated;
- Number of notifications sent to company headquarters;
- Number of News Releases issued on EEP enforcement actions;
- Number of signed Settlement Agreements with enhanced provisions;
- Number of Section 11(b) Court Actions initiated by sending required documentation to the Regional Solicitor;
- Number of Section 11(b) Court Actions approved by the OSH Division of the Office of the Solicitor; and
- Number of Section 11(b) Court Actions filed with court.
Appendix A - Inspection Subjects for Determining Company Structure and Safety and Health Organization
(Non-Mandatory)
When determining whether to inspect other worksites of a company that receives a PEC citation, it should first be determined whether compliance problems and issues found during inspections are localized or are likely to exist at other, similar facilities owned and operated by the employer. If the problem at the local plant appears to be symptomatic of a broader company neglect of worker and safety and health, the company structure should be investigated so that if the decision is made to inspect other facilities, there will be a basis for finding them and looking for specific conditions similar to those found in the initial inspection.
- Extent of Compliance Problems. Are violative conditions a result of a company decision or interpretation concerning a standard or hazardous condition? Ask these types of questions of the plant manager, safety and health personnel and line employees.
- Who made the decision concerning the violative operation, local management or company headquarters? If the decision was from company headquarters, what's their explanation?
- Is there a written company-wide safety program? If so, does it address this issue? If so, how is the issue addressed?
- Is there a company-wide safety department? If so, who are they and where are they located? How does company headquarters communicate with facilities? Are facility management and safety and health personnel trained by the company?
- Do personnel from company headquarters visit facilities? Are visits on a regular or irregular basis? What subjects are covered during visits? Are there audits of safety and health conditions? Were the types of violative conditions being cited discussed during corporate visits?
- Does the company have facilities other than the one being inspected that does similar or substantially similar work or produce like products? If so, where are they?
- What is the overall company attitude concerning safety and health? Does the facility receive good support from company headquarters on safety and health matters?
- Ask whether the facility's overall condition is better or worse at present compared to past years? If it's worse, ask why? Has new management or ownership stressed production over safety and health? Is the equipment outdated or in very poor condition?
- Is there an active and funded maintenance department? Have they identified these problems and tried to fix them?
- Has the management person being interviewed worked at or visited other similar facilities owned by the company? How was this issue being treated there?
- Identifying Company Structure Where are other facilities and how are they linked to the one being inspected? Sometimes facility management will not have a clear understanding of the company structure, just an awareness of facts concerning control and influence from the corporate office.
- Is the facility or the company that owns the facility owned by another legal entity (parent company)? If so, what's the name and location? Try to find out whether the inspected facility is a "division" or a "subsidiary" of the parent company? (Note: A "division" is a wholly owned part of the same company that may be differently named, e.g. Pontiac is a division of GM. A "subsidiary" is a company controlled or owned by another company which owns all or a majority of its shares.) Try to determine if the parent company has divisions or subsidiaries other than the one that owns the facility being inspected. If so, try to get the names and the type of business they are involved in. Sometimes this type of information can be found on a website or in Dun and Bradstreet. Another good source of information is the office of the Secretary of State within the state government.
- Are there other facilities controlled by these entities that do the same type of work and might have the same kinds of safety and health concerns?
- Are the company entities publicly held (have publicly traded shares) or are they closely held (owned by one or more individuals)?
- What are the names, positions and business addresses of relevant company personnel of whom interviewees are aware? For which entities do the company safety and health personnel work?
- On what kind of safety and health-related issues or subjects do personnel from company headquarters give instructions?
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