OSHA Instruction CPL 2.90 June 3, 1991 Directorate of Compliance Programs

Subject: Guidelines for Administration of Corporate-Wide Settlement Agreements

A. Purpose. The purpose of this instruction is to provide guidelines for the administration of corporate-wide settlement agreements (CSAs) by OSHA. The guidelines set forth in this instruction will be adopted into the Field Operations Manual (FOM).

B. Scope. This instruction applies OSHA-wide.

C. References.

1. OSHA Instruction CPL 2.45B, June 15, 1989, the Revised Field Operations Manual (FOM).

2. OSHA Instruction STP 2.22A, May 14, 1986, State Plan Policies and Procedures Manual.

3. Occupational Safety and Health Act (the Act).

4. OSHA Instruction CPL 2.80, October 1, 1990, Handling of Cases to be Proposed for Violation-by-Violation Penalties.

D. Action. OSHA National Office Directors, Regional Administrators and Area Directors shall ensure that the guidelines, policies and procedures set forth in this instruction are followed with regard to CSAs.

1. This instruction delineates roles and responsibilities for field and National Office components; it also describes the corresponding responsibilities as they will be administered by the Office of the Solicitor of Labor.

2. Procedures for maintenance of agreements, monitoring, coordination and reporting are provided.

E. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this change is promptly forwarded to each State designee using a format consistent with the plan change two-way memorandum in Appendix F, OSHA Instruction STP 2.22A, CH-2.

2. Explain the technical content of this change to the State designee as required.

3. Advise the State designees of the following:

a. That, although it is not feasible to involve States in the negotiation of Federal CSAs, OSHA will notify a State routinely whenever such agreements are being negotiated with an employer who also has facilities under the State's jurisdiction. The Regional Administrator will provide the State a copy of any agreements that result.

b. That CSAs negotiated by OSHA are not binding on State plans nor does OSHA intend to monitor facilities of a covered employer that are located within State plan jurisdictions. However, States are encouraged to participate by honoring the terms of such CSAs where the covered employer also has facilities under the State's jurisdiction, or the State may negotiate its own individual agreement with these employers.

c. That States can negotiate their own State-wide CSAs under procedures which are at least as effective as the requirements set out in this instruction. States shall keep the Regional Administrator informed of any ongoing State negotiations potentially leading toward a CSA or any other settlement negotiations with a company with which OSHA is engaged in such negotiations.

d. That, if a State chooses to participate in either fashion in the CSA procedures, the State must follow monitoring procedures comparable to OSHA's as set forth in I. of this instruction for establishments within the State and must make the monitoring results available to the Regional Administrator for review and evaluation.

4. Ensure that State designees acknowledge receipt of this Federal program change in writing to the Regional Administrator as soon as the State's intention is known but not later than 70 calendar days after the date of issuance (10 days for mailing and 60 days for response).

a. This acknowledgment shall include notification of whether or not, after case-by-case consideration, the State intends to honor the CSAs concluded by OSHA for covered employers' facilities within the State.

b. In addition, this acknowledgment shall include the State's intentions with regard to establishing a State-wide CSA policy comparable to that established by this instruction or developing an alternative policy which is at least as effective as OSHA's.

c. A plan supplement documenting State adoption must be submitted within 6 months.

(1) If a State intends to follow the procedures and guidelines described in this instruction, the State must submit either a revised version of this instruction, adapted as appropriate to reference State law, regulations and administrative structure, or a cover sheet describing how references in this instruction correspond to the State's structure.

(2) The State's acknowledgment letter may fulfill the plan supplement requirement if the appropriate documentation is provided.

(3) If the State adopts an alternative to Federal procedures, the State's plan supplement must identify and provide a rationale for all substantial differences from Federal procedures so that OSHA can judge whether a different State procedure is as effective as the corresponding Federal procedure.

5. After Regional review of the State plan supplement and resolution of any comments thereon, forward the State submission to the National Office in accordance with established procedures. The Regional Administrator shall provide a judgment on the relative effectiveness of each substantial difference in the State plan change and an overall assessment thereof with a recommendation as to approval or disapproval by the Assistant Secretary.

6. Inform the State whenever OSHA initiates negotiations potentially leading to a CSA and provide copies of federally executed CSAs to the State whenever such agreements are concluded with an employer who also has facilities under the State's jurisdiction.

7. Establish with State designees appropriate procedures for:

a. Prompt notification by States observing the terms of any OSHA CSA. If a State elects to honor a Federal CSA, the Regional Administrator shall offer to provide technical assistance in monitoring the agreement and shall ensure that the State conducts monitoring of the CSA in a manner consistent with the guidelines in J. of this instruction.

b. Submission of any State-negotiated agreements with employers covered by an OSHA CSA or of any State-wide CSAs negotiated by the State within 10 days after execution.

c. Making monitoring results available to OSHA.

8. The Regional Administrator shall ensure that any CSA negotiated by a State which is related to an OSHA CSA is thoroughly reviewed by the Regional staff as well as by the Regional Solicitor. If any question arises as a result of that review, the CSA shall be forwarded to the Directorate of Compliance Programs (DCP) for additional review. Any problems found shall be discussed with the State and a resolution reached.

9. The Regional Administrator shall ensure that the results of State monitoring of CSAs which are related to OSHA CSAs are carefully reviewed and evaluated and that abatement required under the CSA is being achieved.

10. The Regional Administrator shall ensure that an electronic copy of any State-negotiated CSA is sent to DCP for entry into the OSHA Computerized Information System (OCIS).

F. Background.

1. As a matter of policy, OSHA has established corporate-wide settlement agreements as an appropriate and useful compliance procedure in dealing with certain employers who have been found in violation of the Act. The Agency believes that CSAs can result in significant improvement in the safety and health environment of American workers.

2. Formal settlement agreements have been and remain a part of OSHA's standard operating procedures. (See the FOM, Chapter V, H.)

a. Such agreements, when entered into on a corporate-wide basis, enable OSHA to obtain formal recognition by the employer of the cited hazards and formal acceptance of the obligation to seek out and abate those hazards throughout all workplaces under its control.

b. During the past several years, OSHA has made increasing use of CSAs to diffuse the impact of its resources more widely and thus expend them more efficiently, to avoid costly and protracted litigation and thereby to ensure earlier and more uniform abatement of hazards and protection of workers.

3. Concurrently with the evolution of CSA policy, the Agency has undertaken a policy of in-depth inspections for certain employers and for safety and/or health hazards.

a. In many of these cases--known informally as "egregious" cases--OSHA has performed lengthy inspections as a result of which employers have been found to have willfully and flagrantly violated recordkeeping regulations, health and safety standards of the Act, and the general duty clause of the Act [Section 5(a)(1)]. In such cases, larger penalties have been proposed using violation-by-violation citation and penalty procedures. (See OSHA Instruction CPL 2.80.)

b. These cases typically require extensive use of staff resources; concern for conservation of these resources demands that every effort be made to ensure the broadest possible effect from them. Corporate-wide abatement has been a very effective means of extending the effect of these cases. Without such abatement, the alternative is a series of similar inspections in each corporate location with similar investments of staff time and expense.

c. With a CSA, abatement requirements are extended to all covered locations of the company, and OSHA gains the administrative flexibility of deploying its inspection resources more efficiently, provided that obligations to monitor the abatement process are fully met.

4. Most recently, CSAs have attained national prominence. The policy began with a series of cases involving extensive recordkeeping violations, resulting in CSAs wherein employers agreed to adhere to OSHA's recordkeeping regulations and guidelines.

a. As a matter of written policy, OSHA has routinely settled such cases on a corporate-wide basis wherever appropriate. The Solicitor of Labor (SOL) has delegated authority to negotiate CSAs for recordkeeping cases to Regional Solicitors to facilitate the implementation of this policy.

b. Because recordkeeping regulations and guidelines are straightforward and relatively unambiguous, they can be implemented uniformly in a variety of workplaces, without regard to differences in product, establishment size, or technology.

(1) CSAs for recordkeeping violations are an ideal compliance vehicle, in that the expectations of OSHA and the employer can easily be reduced to writing, monitored, and enforced.

(2) Predictably, more technically based violations are less easily subject to such agreements and require more complex treatment, including more intermediate abatement milestones and more intensive monitoring both by OSHA and the employer.

5. OSHA recognizes that a CSA is the product of a voluntary negotiation process and, therefore, represents the mutual commitments of all parties, including OSHA, the employer and, where present, the union or other authorized employee representative.

a. OSHA further believes that such mutual commitment to the abatement of cited safety and health hazards is critical to the success of the CSA policy and that every effort must be made to obtain that mutual commitment.

b. OSHA's commitment to the success of this process must be manifested throughout the life of the CSA by a spirit of cooperation and assistance with both employers and employees.

c. OSHA therefore recommends to employers that, wherever possible, the union or other authorized employee representative be included in both the process of negotiating the CSA and in the process of monitoring its implementation.

G. Negotiation and Execution of Corporate-Wide Settlement Agreements. In general, the following guidelines shall apply to all cases involving potential CSAs:

1. CSAs shall normally not be considered in cases other than those involving a violation-by-violation citation and penalty. Moreover, CSAs shall normally not be considered for areas of safety and health other than those that have been the subject of a citation. Exceptions to these general norms shall be considered on a case-by-case basis.

2. If OSHA or SOL is approached by the company seeking a CSA, DCP shall be notified through the Office of Field Programs (OFP) as soon as practicable.

a. As soon as the company makes its desire for a CSA known, OFP shall screen the Integrated Management Information System (IMIS) for open cases involving the company and canvass the Regional Administrators to determine the current status of any such open cases.

b. Once negotiations on a CSA begin, OFP shall notify all of the Regional Administrators and, after consultation with DCP and SOL, shall provide instructions for dealing with any current inspections under way in establishments potentially to be covered by the CSA.

c. The Regional Administrator shall inform the State plan States within the Region of any CSA being negotiated which potentially affects establishments located within their States. Any relevant information provided by the State shall be forwarded to DCP through OFP.

d. Where an authorized employee representative has elected party status, its input shall be sought and considered during the CSA process.

3. The Regional Offices of the Solicitor have been delegated authority to negotiate and enter CSAs in the following situations:

a. Cases involving recordkeeping only.

(1) Such settlements shall not be executed without the prior knowledge, involvement, and concurrence of the Regional Administrator.

(2) The Regional Administrator is responsible for informing DCP of the progress of the negotiations through OFP and for obtaining relevant input from other affected Regional Administrators.

(3) Upon execution of a recordkeeping CSA, the Regional Administrator shall inform DCP through OFP and transmit a copy for entry into OCIS. DCP shall provide an electronic copy to the Salt Lake City Technical Center, which shall be entered into OCIS within 5 days of receipt.

b. Cases involving companies all of whose facilities are located within the jurisdictional boundaries of a single Region.

(1) Such settlements shall not be executed without the prior knowledge, involvement, and concurrence of the Regional Administrator.

(2) Draft copies of proposed language for such CSAs shall be obtained by the Regional Administrator as early in the negotiation process as practicable and sent to DCP for review. DCP shall be responsible for sharing them with SOL.

(3) The concurrences of DCP and SOL are required at the onset of negotiations, the time of the first draft and any penalty reduction offer, and prior to signature of the final document.

4. In cases where a CSA is to be negotiated at the National Office, DCP shall contact affected Regional Administrators and provide them with an opportunity for input.

a. Such CSAs shall not be executed without the prior knowledge, involvement, and concurrence of DCP.

b. DCP shall obtain the concurrence of the Assistant Secretary prior to the execution of CSAs.

5. DCP shall transmit copies of all CSAs to the Regional Administrators involved through OFP as soon as they are executed (signed by all parties) and shall ensure that an electronic copy is provided to the Salt Lake City Technical Center within 60 days of the effective date. The Salt Lake City Technical Center shall add the copy of the CSA to OCIS within 5 days of receipt.

6. Regional Administrators shall establish procedures with the Regional Solicitor to obtain a signed copy of CSAs executed at the Regional level. (See G.3.) The Regional Administrator shall forward a copy of such CSAs to DCP. DCP shall ensure that an electronic copy is provided to the Salt Lake City Technical Center for entry into OCIS within 60 days of the effective date. The Salt Lake City Technical Center shall add the copy of the CSA to OCIS within 5 days of receipt.

H. Administrative Content of Corporate-Wide Settlement Agreements. CSAs typically contain both administrative and technical provisions. The following provisions shall be considered for inclusion in every CSA. Final terms will depend on the individual facts and circumstances of each case.

1. The technical provisions of CSAs deal with the specific hazards and citations which are the subject of the settlement. These provisions shall detail the specific milestones (abatement steps) that are to be accomplished, the dates by which they are to be completed, and the length of the agreement.

a. In particularly complex situations or where an employer has been notably remiss in meeting past abatement commitments, consideration shall be given to requiring the employer to hire an independent consultant to plan, oversee, and verify abatement actions.

b. Where the nature of the violation indicates the failure of a corporate-wide system or process, consideration shall be given to requiring a corporate-wide self-audit with a certified report to OSHA of the results.

2. The administrative provisions deal with the procedures whereby the CSA is to be enforced. These provisions shall address the following matters:

a. Abatement. CSAs typically involve long-term and multi-stage abatements. Such abatement is generally governed by the FOM, Chapter V, H.3. The terms and stages of such abatements shall be explicitly delineated in each CSA.

b. Monitoring. OSHA's right of entry for monitoring purposes shall be explicitly recognized in every agreement.

(1) OFP shall establish a plan for monitoring the company's abatement progress under the CSA in accordance with the provisions of J.2.

(2) This plan shall include the scheduling of inspections, as applicable, for initial (baseline) monitoring, periodic monitoring during the life of the agreement, and followup after completion.

(3) CSAs shall list each corporate location covered by the agreement with the name of its manager and its address. If the company wishes to add additional establishments later for some legitimate reason, it may do so only after contacting the Solicitor's office and requesting such an addition.

(4) A list of all locations within State plan States with essentially the same operations as locations covered under the CSA shall also be provided to the Regional Administrator through OFP for distribution to the States affected.

c. Enforceability. Each CSA shall contain appropriate provisions for enforcement of the agreement.

(1) CSAs shall contain the employer's assent that the CSA is a final order of the Occupational Safety and Health Review Commission (OSHRC). CSAs shall normally be filed with the OSHRC.

(2) In cases where conditions warrant such action (e.g., cases where there has been a previous repeated violation or failure to abate), the employer may be required to consent to a Section 11(b) order at the time of settlement.

(3) Depending on circumstances, CSAs may require the employer to certify the accuracy of any abatement reports required by subsection H.2.e. of this instruction and submitted to OSHA; such certification may provide the basis for a referral for criminal prosecution for falsification under Section 17(g) of the Act if evidence of such falsification can be established. (See the FOM, Chapter III.)

(4) CSAs shall provide terms for Petitions for Modification of Abatement (PMAs) by the employer if they differ from the provisions of the FOM, Chapter III, E.9.

(a) The company shall file a PMA with the Area Director having jurisdiction over the affected workplace no later than the agreed-upon date specified by the CSA.

(b) If a PMA is received from an employer covered by a CSA related to an action required under the CSA, the Area Director shall ensure that all of the requirements of a PMA have been met at the covered establishment in accordance with the FOM. This shall specifically include provision of notice to affected employees or their authorized representative as described in the FOM, Chapter III., E.9.c.(5)(b).

(c) The Area Director shall request additional time (at least 45 days) from the OSHRC so that an Agency position on the PMA can be formulated.

(d) Upon assurance that all of the requirements set forth in the FOM for submitting PMAs have been met at the establishment submitting the PMA, the Area Director shall immediately forward a copy of the PMA to OFP through the Regional Administrator, with a recommendation as to whether it should be granted or denied. The Area Director shall include any objections received from affected employees or their authorized representative in accordance with the FOM, Chapter III., E.9.h.

(e) The OFP coordinator (See I.1.b.(2)(a).) shall notify all affected Regional Administrators of the receipt of a PMA.

(f) The coordinator shall consult with the Regional Administrator, DCP, and SOL prior to reaching a decision on the PMA.

1 If OFP decides to approve the PMA, all affected Area Directors shall be notified as soon as practicable through the Regional Administrator.

2 The Area Director originally receiving the PMA shall proceed in accordance with the FOM, Chapter III, E.9.g.(3).

3 If OFP decides to object to the PMA, the Area Director originally receiving the PMA shall be immediately notified through the Regional Administrator.

4 The Area Director shall then proceed in accordance with the FOM, Chapter III, E.9.g.(5).

5 Copies of all granted PMAs shall be sent to affected Regional Administrators for dissemination to the appropriate Area Directors.

(5) In the absence of a PMA, the employer's failure to accomplish any action or to adhere to any agreed-upon milestone at any covered location by the date for abatement agreed upon in the CSA may be considered for enforcement in accordance with K. of this instruction.

d. Inspections. OSHA's normal inspection scheduling procedures are NOT affected by CSAs for parts of the establishment(s) or for hazards not explicitly included in the CSAs.

(1) Thus, a CSA which addresses abatement of ergonomics hazards on specific production lines or areas of a plant does not preclude inspection for and citation of other safety and health hazards which are not included in the agreement.

(2) The conduct of unprogrammed inspections is not normally affected by CSAs, although there may be limitations on the extent to which citations may be issued relative to conditions covered by the CSA.

(a) Formal complaints concerning conditions covered by the CSA for which valid progress reports have been received do not require an inspection.

(b) Instead, the Area Director shall contact the complainant and inform him/her of the situation.

(c) If the complainant insists that the company's reports do not accurately describe the action being taken in the establishment, this fact shall be reported to the coordinator for consideration in scheduling followup monitoring inspections.

(3) If a programmed or an unprogrammed inspection is to be conducted in an establishment covered under a CSA, the Area Director shall contact the Regional Administrator for guidance prior to completing onsite inspection activity.

(a) In such cases the Regional Administrator shall contact the OFP coordinator for a determination as to whether a monitoring inspection should be conducted to verify adherence to terms of the agreement and, if so, to what extent.

(b) The coordinator shall consult with the DCP in making this determination.

(c) If a monitoring inspection is not to be conducted, the Area Director shall be so informed and shall conduct the investigation in accordance with current procedures.

e. Periodic Reports. CSAs shall include specific requirements for submission of periodic written progress reports to OSHA by the employer. (See the FOM, Chapter III, E.7. and 8.)

(1) Progress reports shall be required on a periodic basis when abatement dates are beyond one year from the date of the opening conference.

(a) Such reports shall address in sufficient detail the activities undertaken by the company to implement the requirements of the CSA, including such information as:

1 The number of employees receiving training;

2 The number of employees receiving medical treatment and the type of treatment given;

3 The progress of job analyses, symptom surveys, and the like;

4 Description of control measures implemented, including engineering controls and administrative and work practice controls;

5 Description of steps taken to correct recordkeeping deficiencies.

NOTE: The company shall be encouraged to submit the required documentation in the form of videotapes and photographs.

(b) Other specific reports linked to abatement milestones (such as implementation of a training program, completion of an engineering study, or implementation of a medical management program) shall normally be required as appropriate.

(c) The timing of such reports shall be linked as much as possible to a specific calendar date as determined by the sequence of abatement steps.

(2) Certain reports required of employers will be due only to OFP while others will be due to the Area Offices having jurisdiction over the covered establishments, including State plan offices as appropriate.

(a) Reports covering program requirements with corporate-wide application (e.g., medical management programs, training programs, hazard evaluation programs, general engineering control strategies) shall be sent for evaluation to OFP.

1 OFP shall be responsible for coordinating a review and evaluation of the program elements submitted by the company by appropriate National Office units, including DCP and the Directorate of Technical Support (DTS).

2 OFP shall also be responsible for disseminating the results of National Office evaluations to the affected Regional Administrators, and shall provide copies of the reports received to them upon request.

3 If any of the reports required to be sent to the National Office under the CSA are not received when they are due, the coordinator shall contact the company within 10 days after the due date to attempt to determine the reason for the delay and when the report might be expected.

4 If the reports are still not received within a reasonable time or if the company responds (without adequate justification) that no report will be submitted, the coordinator shall contact the Regional Administrator, DCP, and SOL to determine a suitable response.

(b) Progress reports covering the effectiveness of actual in-plant implementation of these corporate program elements shall be sent to the Area Offices having jurisdiction over the covered establishments.

1 The Area Director shall be responsible for reviewing and evaluating the implementation progress being made by the covered establishment as described in the periodic progress reports.

2 Each periodic progress report shall be carefully reviewed and the company's abatement progress (as required under the CSA) evaluated.

3 The Area Director shall also discuss the results of the review of the periodic progress report with the company and with the authorized employee representative, if any, and ask for any additional information which might be helpful in the evaluation. Particular attention shall be paid to the abatement progress that the company has made as to the particular milestones agreed upon in the CSA. The Area Director shall discuss in particular any weakness or deficiencies.

4 Within 30 calendar days of receipt of the periodic progress report, the Area Director shall prepare a written statement of the status of the company's compliance with the agreement and forward it to the Regional Administrator.

5 The Regional Administrator in turn shall summarize the Area Directors' statements and forward the summary to OFP within 15 calendar days of receipt of the statements from the Area Directors. Any inconsistencies or items that should be explored with other Regions shall be identified for the OFP coordinator.

6 OFP shall review the Regional summaries for each CSA and take appropriate action to ensure complete and consistent abatement.

(3) DCP shall ensure, where appropriate, that each agreement specifies which reports are to be sent to the National Office and which are to be sent to the Area Offices. The employer also may be requested to provide additional copies of reports to each affected Regional Office, the Associate Solicitor of Labor, and to any other affected parties such as unions.

(4) If any of the reports required to be sent to the Area Office under the CSA are not received when they are due, or if reports are received but are judged to be inadequate, the Area Director shall contact the company within 10 days after the due date to attempt to determine the reason for the delay and/or the inadequacy and when the report might be expected.

(a) If suitable reports are still not received within a reasonable time or if the company responds (without adequate justification) that no report will be submitted, the Area Director shall contact the Regional Administrator for advice.

(b) In such cases the Regional Administrator shall confer with the Regional Solicitor and the Director of Field Programs. OFP, in consultation with DCP and SOL, shall decide what action shall be taken.

f. Termination. Each CSA shall contain appropriate provisions detailing the circumstances under which it may be terminated and procedures for so doing.

I. Roles and Responsibilities. The purpose of this section is to outline the major roles and responsibilities of OSHA National Office and field components with respect to CSAs in addition to those already indicated.

NOTE: CSAs are a joint product of SOL and OSHA. OSHA, having prepared the case and issued citations, coordinates further input from the field and other Agency staff during the settlement process; SOL is responsible for the negotiation of the agreement.

l. National Office.

a. Directorate of Compliance Programs. The general function of DCP is to provide guidance to field components relating to compliance policies and procedures and to communicate such policies and procedures to SOL.

(1) Coordination. In coordinating CSAs, DCP shall:

(a) Send copies of all signed CSAs with a summary of the major elements, including pertinent timetables, to the Regional Administrators through OFP within 30 days of receipt from SOL. A copy of the summary and timetables shall simultaneously be provided to SOL.

(b) Keep copies of all CSAs on file, both those negotiated at the National Office and those negotiated at the Regional level.

(c) Provide copies of all CSAs and target abatement dates to the Salt Lake City Technical Center within 30 days of the CSA's effective date, and ensure that the Salt Lake City Technical Center makes this information available electronically to all OSHA offices, within 5 days of receipt.

(2) Contact. For OSHA's field organization, the point of contact for information on CSAs under negotiation is DCP's Office of General Industry Compliance Assistance. The point of contact for CSAs after execution is OFP's CSA coordinator.

(3) Interpretation. Should it become necessary to resolve differences (between OSHA and the company or between different OSHA field units) regarding the interpretation of the provisions of a CSA, the matter shall be referred to DCP through OFP.

(4) Negotiation. CSAs are negotiated on OSHA's behalf by the Office of the Associate Solicitor of Labor (SOL).

(a) During the negotiation of these agreements, DCP serves as the contact point for SOL regarding requests for information from the field or National Office sources.

(b) DCP normally represents the Agency during the negotiation process. It is DCP's responsibility to keep the Deputy Assistant Secretary, OFP, and (through OFP) the affected Regional Administrators apprised of the progress of negotiations to obtain their input as well as that of the affected State plan States within their Regions.

(c) DCP shall ensure, to the extent feasible, that verifiable abatement milestones are included in the CSA to enable effective monitoring of the agreement.

b. Office of Field Programs. OFP has two major roles in the administration of CSAs. These are (1) the allocation of resources and (2) the coordination and evaluation of monitoring activities.

(1) Resource Allocation. OFP is responsible for ensuring that adequate resources are allocated by the Regional Administrators for the monitoring of CSAs in accordance with current policy.

(a) OFP shall ensure that Regional Administrators conduct monitoring as required by the guidelines provided in J. of this instruction and as indicated in each CSA.

(b) OFP shall ensure that Regional and Area workplans are adjusted to reflect monitoring requirements.

(2) Coordination and Evaluation of Monitoring Activities. The term refers to the process of ensuring that abatement action conducted under CSAs is tracked effectively and consistently across all covered companies and sites.

(a) OFP shall appoint a CSA monitoring coordinator (the coordinator) to track CSAs and make determinations on the progress being made by the covered companies, to ensure an exchange of information among field offices with covered establishments and between the National Office and the field offices, and to set priorities for monitoring.

(b) The coordinator, in conjunction with the affected Regional Administrators, shall outline a monitoring plan for each employer as soon as practicable (but no more than 60 days) after the effective date of the CSA.

1 Coordinate the review of corporate abatement reports submitted to the National Office.

2 Review Regional summaries of employer abatement reports and take appropriate action to ensure timely, complete, and consistent abatement.

(d) The coordinator shall ensure that frequent, open and effective communication between the National Office and the field offices as well as among affected Regional Administrators (and Area Directors) occurs regarding all issues related to CSAs; in particular, abatement steps and time frames required of the company and the results of monitoring visits, so as to support a consistent acceptance or rejection of specific means of abatement.

1 Such communication may include conference calls or periodic meetings among the affected Regions.

2 Where necessary and when resources permit, cross-Regional monitoring visits shall be encouraged to ensure complete understanding of the corporate-wide abatement process.

(3) Acceptance of Abatement Measures. It is difficult to achieve absolute uniformity throughout the corporation in abatement methods because of local conditions.

(a) Because of these differences in abatement methods, legitimate disagreements may arise regarding the adequacy of abatement measures taken under CSAs by different establishments of the same corporation.

(b) It is expected that most abatement issues can be resolved through OFP coordination among Regional Administrators and Regional Solicitors.

(c) Cases that give rise to differences which cannot be resolved in this manner, or which involve major policy resolutions, shall be resolved by OFP in consultation with DCP and SOL.

c. Regional Administrators. Regional Administrators are responsible for input into and implementation of CSAs within their Regions.

(1) The Regional Administrator shall implement monitoring plans for covered establishments pursuant to each CSA in accordance with J. of this instruction. An estimate of monitoring obligations shall be included with each year's workplan.

(2) The Regional Administrator shall ensure that Area Directors having jurisdiction carefully review all reports submitted by or on behalf of workplaces covered under a CSA for accuracy, completeness, and adequacy.

(3) The Regional Administrator shall ensure that all reports submitted by the company under a CSA or generated by OSHA in evaluating those reports are distributed to State plans with facilities of the covered company within their jurisdictions. (See H.2.e.)

(4) The Regional Administrator shall monitor State program involvement with CSAs (e.g., acceptance of OSHA agreements as negotiated or negotiation of separate agreements and monitoring of abatement progress in covered facilities).

(5) The Regional Administrator shall provide the OFP coordinator with summaries of all reports submitted by the company under a CSA, or generated by OSHA in evaluating those reports, or provided by State plans with facilities of the covered company within their jurisdictions.

(6) In CSA cases, legitimate disagreements may arise regarding the adequacy of abatement measures taken under CSAs by different establishments of the same corporation. When such disagreements arise, the Regional Administrator shall bring them to the attention of OFP.

J. Monitoring of Corporate-wide Settlement Agreements. The success of the CSA program depends on abatement of cited violations by employers covered by such agreements. It is essential that such abatement be comprehensive and consistent across all of the covered employer's facilities.

1. All parties to CSAs must recognize that OSHA is committed to monitoring the employer's abatement progress to ensure that violations are properly corrected, particularly when previously recalcitrant employers are involved or in complex abatement situations where new technologies are emerging and abatement may be hard to obtain in practice. In all monitoring inspections, OSHA shall ensure that employees or their authorized representative are afforded the opportunity to participate as described in the FOM, Chapter III., D.2.

2. Monitoring of CSAs is likely to require a considerable commitment of resources and all components of the agency must be prepared to devote the necessary resources to the monitoring effort.

3. Effective monitoring requires baseline, periodic, and followup monitoring.

a. Baseline Monitoring. Baseline monitoring is monitoring for the purpose of determining the extent to which the hazardous condition(s) covered in the CSA exist in a particular worksite. Such monitoring may be required of the company under the terms of the CSA, depending on the nature of the violations.

(1) When the company is required to conduct initial or baseline monitoring at each covered location, it must gather the information specified in the agreement, and provide it to the Area Office having jurisdiction.

(a) If the company does not conduct the required baseline survey of its facility, the Area Director shall determine the reasons.

(b) If the reasons are not satisfactory and the company still refuses to conduct the baseline survey, the Area Director shall so inform the Regional Administrator.

(c) The Regional Administrator shall evaluate the company's rationale for not conducting the survey, and if judged not adequate, shall refer the matter to OFP for resolution.

(d) OFP shall consult with DCP and in deciding what action is appropriate.

(2) When the company provides baseline data, an onsite OSHA baseline monitoring inspection of the covered establishment will not normally be necessary unless the Area Director has reason to believe that the data is not reliable.

(3) In cases where such monitoring is not required of the company; e.g., where OSHA is already familiar with conditions in the plant, the Area Director having jurisdiction over the covered establishments shall determine the need for a baseline monitoring inspection and, if judged necessary and after consultation with the Regional Administrator, shall schedule one as soon after the effective date of the CSA as resources permit.

(4) OSHA's initial monitoring shall be extensive enough to establish the degree to which hazards covered by the agreement exist and the steps which the company must take to abate the hazards at the affected establishment.

(5) In the case of the inspected establishment which was the focus of the settlement, inspection case file data will ordinarily provide adequate baseline information.

(6) Baseline monitoring may also be omitted when recent inspection history provides adequate knowledge of conditions in the workplace.

b. Periodic Monitoring. Periodic monitoring is monitoring to determine abatement progress being made in an establishment and to verify reported progress. Such monitoring follows baseline monitoring.

(1) Periodic progress reports are required in each CSA and shall be handled in accordance with H.2.e. of this instruction. These reports are part of the periodic monitoring process and shall be carefully reviewed by the Area Director having jurisdiction.

(2) Periodic monitoring inspections shall be included in the monitoring plan developed by the coordinator under I.1.b.(2)(b).

(3) Monitoring inspections of covered workplaces may be scheduled at any time during the life of the agreement. (See J.3.d.)

c. Followup Monitoring. Followup monitoring is monitoring for the purpose of determining if the covered establishment has completed all abatement action required under the CSA.

(1) Followup monitoring shall be included in the monitoring plan developed by the coordinator under I.1.b.(2)(b).

(2) Like periodic monitoring, followup monitoring may be combined with other programmed or unprogrammed inspections.

(3) Followup inspections shall be scheduled as indicated in H.3.d.

d. Scheduling of Monitoring Inspections. The manner of scheduling both periodic and followup monitoring inspections shall be as follows:

(1) As soon as practicable, but no later than 60 days after the effective date of the CSA, the coordinator, in conjunction with the affected Regional Administrators, shall determine how many monitoring inspections of establishments covered under the CSA shall be conducted.

(a) Each covered corporation shall initially be scheduled for an onsite monitoring inspection in at least 10 percent of its listed establishments each year.

(b) At least one site from each covered corporation shall be scheduled each year.

(2) The monitoring plan may be modified based on the findings of the evaluations of the periodic progress reports received by the Agency.

(3) The coordinator shall select the workplaces for onsite monitoring inspections in consultation with the appropriate Regional Administrators. The Regional Administrator shall in turn inform the appropriate Area Director of the selection. Care shall be taken to avoid any appearance of advance notice.

(a) When scheduling such monitoring inspections, the Area Director shall take into consideration any milestone dates established in the CSA.

(b) Such monitoring inspections shall have an inspection priority equal to serious formal complaints.

(4) The scope of monitoring inspections shall normally be limited to the conditions covered by the CSA since their purpose is to ensure that the company is adhering to the provisions of the CSA. Where potential violations are observed that require investigation but which are outside the conditions covered by the CSA, a referral shall be made in accordance with the FOM, Chapter IX, B.2.b.(1)(d).

NOTE: As noted at J.3.c., monitoring inspections may be combined with other programmed or unprogrammed inspections. Where this is the case, observed violations lying outside the scope of the monitoring inspection shall normally be addressed through the other inspection activity.

(5) The Area Director shall be responsible for analyzing the results of the monitoring inspections together with appropriate staff.

(a) Conclusions shall be communicated to the Regional Administrator as soon as practicable, but not later than 2 weeks after the analysis shall have been completed.

(b) Particular attention shall be paid to the abatement progress that the company has made as to the particular milestones agreed upon in the CSA.

(6) The Regional Administrator shall summarize the results of the Area Office analyses of monitoring inspections to the coordinator, who shall discuss them with DCP and SOL to determine what, if any, further action will be appropriate.

(7) Whenever periodic progress reports submitted by the company raise suspicions about their truthfulness or indicate a lack of adequate abatement progress, or when it is necessary to investigate complaints that the agreement is not being properly implemented, the Area Director shall consult with the Regional Administrator, who in turn shall consult with the OFP coordinator who, after consultation with DCP, shall determine whether a monitoring inspection should be conducted.

K. Enforcement of CSAs. If violations of the terms of the CSA are documented during monitoring of a covered worksite, appropriate enforcement action shall be taken, depending on the nature of the violations.

1. Such enforcement actions may range from warning letters to Section 11(b) actions.

2. To promote uniform enforcement and to ensure the continued effectiveness of CSAs, the following procedures shall be adhered to:

a. If, after a review of the evidence, an Area Director believes that the employer is not fulfilling the abatement responsibilities agreed upon in the CSA, the procedures given below shall be followed:

(1) As soon as practicable after reaching this conclusion, the Area Director shall con- tact the employer for an explanation.

(a) If the employer appears to be making a good-faith effort to abate and this is corroborated by the employee representative or the employees themselves, no failure-to-abate (FTA) shall be proposed, provided the employer agrees to remedy the deficiency.

(b) If the employer has no reasonable explanation for the deficiency and refuses to remedy it, the Area Director shall proceed to recommend an FTA.

(c) If the employer believes that the deficiency is not covered under the CSA, the Area Director shall attempt to resolve the dispute.

1 Failing that, the case shall be referred to the Regional Administrator for resolution.

2 If the question still cannot be resolved, the case shall be referred to the coordinator, who shall consult with DCP and SOL, for a final decision.

(2) Any establishment covered by the agreement may be considered for FTA even if that location was not originally cited and is not currently under citation for the violation. Similarly, an abatement action required by the CSA may be considered for FTA even if was not addressed by the original citation.

b. Any proposed FTA or any other proposed enforcement action related to issues covered in a CSA must be submitted to the Regional Administrator for approval prior to issuance.

c. The Regional Administrator shall consult with the Regional Solicitor and decide upon a recommended course of action.

d. The Regional Administrator shall report this recommended course of action to OFP. The Director of Field Programs shall discuss the regional recommendation with the Director of Compliance Programs.

e. The Director of Compliance Programs shall consult with SOL to decide upon a response to the regional recommendation. If necessary a meeting shall be scheduled to discuss available options.

f. Actual enforcement action shall be decided by the Director of Field Programs, with the concurrence of DCP and SOL.

L. Final Abatement. If the company informs the Area Director or the Regional Administrator that it believes that abatement action under the CSA has been completed in all of its covered facilities or for any particular facility, the coordinator shall be so advised.

1. The coordinator shall schedule followup inspections in accordance with J.3.d.

2. After completing followup inspection activity in 10 percent of covered establishments and finding that all feasible abatement measures have been implemented with no significant deficiencies, the CSA shall be considered completed and all open case files related to the CSA shall be closed.

3. The coordinator shall inform all Regional Administrators having covered establishments that the company has fulfilled its obligations under the CSA. The Regional Administrator shall then inform, as appropriate, the affected Area Directors and State plan States.

M. Reporting and Recording in IMIS. Uniform procedures for reporting and recording information related to CSAs in IMIS will be provided in a forthcoming update to the IMIS Users' Manual.

Gerard F. Scannell Assistant Secretary

DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers