OSHA Field Inspection Reference Manual CPL 2.103
Section 8 - Chapter IV. Post-Inspection Procedures
 OSHA Field Inspection Reference Manual - Table of Contents
- Chapter Number: IV
- Chapter Title: Post-Inspection Procedures
| NOTICE: This is an OSHA Archive Document, and no longer represents OSHA Policy. It is presented here as historical content, for research and review purposes only. |
CHAPTER IV
POST-INSPECTION PROCEDURES
A. Abatement.
1. Period. The abatement period shall be the shortest
interval within which the employer can reasonably
be expected to correct the violation. An abatement
date shall be set forth in the citation as a specific
date, not a number of days. When the abatement period
is very short (i.e., 5 working days or less) and it is
uncertain when the employer will receive the citation,
the abatement date shall be set so as to allow for a
mail delay and the agreed-upon abatement time. When
abatement has been witnessed by the CSHO during the
inspection, the abatement period shall be "Corrected
During Inspection" on the citation.
2. Reasonable Abatement Date. The establishment of the
shortest practicable abatement date requires the exercise
of professional judgment on the part of the CSHO.
NOTE: Abatement periods exceeding 30 calendar days
should not normally be necessary, particularly
for safety violations. Situations may arise,
however, especially for health violations, where
extensive structural changes are necessary or
where new equipment or parts cannot be delivered
within 30 calendar days. When an initial
abatement date is granted that is in excess of
30 calendar days, the reason, if not self-evident,
shall be documented in the case file.
3. Verification of Abatement. The Area Director is
responsible for determining if abatement has been
accomplished. When abatement is not accomplished during
the inspection or the employer does not notify the Area
Director by letter of the abatement, verification shall be
determined by telephone and documented in the case file.
NOTE: If the employer's abatement letter indicates
that a condition has not been abated, but the
date has passed, the Area Director shall contact
the employer for an explanation. The Area
Director shall explain Petition for Modification
of Abatement (PMA) procedures to the employer,
if applicable.
4. Effect of Contest Upon Abatement Period. In situations
where an employer contests either (1) the period set for
abatement or (2) the citation itself, the abatement period
generally shall be considered not to have begun until there
has been an affirmation of the citation and abatement
period. In accordance with the Act, the abatement period
begins when a final order of the Review Commission is
issued, and this abatement period is not tolled while an
appeal to the court is ongoing unless the employer has been
granted a stay. In situations where there is an employee
contest of the abatement date, the abatement requirements
of the citation remain unchanged.
A. 4. a. Where an employer has contested only the proposed
penalty, the abatement period continues to run
unaffected by the contest.
b. Where the employer does not contest, he must abide by
the date set forth in the citation even if such date is
within the 15-working-day notice of contest period.
Therefore, when the abatement period designated in the
citation is 15 working days or less and a notice of
contest has not been filed, a followup inspection of
the worksite may be conducted for purposes of
determining whether abatement has been achieved within
the time period set forth in the citation. A failure
to abate notice may be issued on the basis of the
CSHO's findings.
c. Where the employer has filed a notice of contest to the
initial citation within the contest period, the
abatement period does not begin to run until the entry
of a final Review Commission order. Under these
circumstances, any followup inspection within the
contest period shall be discontinued and a failure to
abate notice shall not be issued.
NOTE: There is one exception to the above rule.
If an early abatement date has been
designated in the initial citation and it is
the opinion of the CSHO and/or the Area
Director that a situation classified as
imminent danger is presented by the cited
condition, appropriate imminent danger
proceedings may be initiated notwithstanding
the filing of a notice of contest by the
employer.
d. If an employer contests an abatement date in good
faith, a Failure to Abate Notice shall not be issued
for the item contested until a final order affirming a
date is entered, the new abatement period, if any, has
been completed, and the employer has still failed to
abate.
5. Long-Term Abatement Date for Implementation of Feasible
Engineering Controls. Long-term abatement is abatement
which will be completed more than one year from the
citation issuance date. In situations where it is
difficult to set a specific abatement date when the
citation is originally issued; e.g., because of extensive
redesign requirements consequent upon the employer's
decision to implement feasible engineering controls and
uncertainty as to when the job can be finished, the CSHO
shall discuss the problem with the employer at the closing
conference and, in appropriate cases, shall encourage the
employer to seek an informal conference with the Area
Director.
a. Final Abatement Date. The CSHO and the Assistant
Area Director shall make their best judgment as to a
reasonable abatement date. A specific date for final
abatement shall, in all cases, be included in the
citation. The employer shall not be permitted to
propose an abatement plan setting its own abatement
dates. If necessary, an appropriate petition may be
submitted later by the employer to the Area Director to
modify the abatement date. (See D.2. of this chapter
for PMA's.)
b. Employer Abatement Plan. The employer is required
to submit an abatement plan outlining the anticipated
long-term abatement procedures.
NOTE: A statement agreeing to provide the affected
Area Offices with written periodic progress
reports shall be part of the long-term
abatement plan.
A. 6. Feasible Administrative, Work Practice and Engineering
Controls. Where applicable, the CSHO shall
discuss control methodology with the employer during
the closing conference.
a. Definitions.
(1) Engineering Controls. Engineering controls
consist of substitution, isolation, ventilation
and equipment modification.
(2) Administrative Controls. Any procedure
which significantly limits daily exposure by control
or manipulation of the work schedule or manner
in which work is performed is considered a means of
administrative control. The use of personal
protective equipment is not considered a means
of administrative control.
(3) Work Practice Controls. Work practice controls
are a type of administrative controls by which the
employer modifies the manner in which the employee
performs assigned work. Such modification may
result in a reduction of exposure through such
methods as changing work habits, improving sanitation
and hygiene practices, or making other changes
in the way the employee performs the job.
(4) Feasibility. Abatement measures required to
correct a citation item are feasible when they can
be accomplished by the employer. The CSHO,
following current directions and guidelines, shall
inform the employer, where appropriate, that a
determination will be made as to whether
engineering or administrative controls are
feasible.
(a) Technical Feasibility. Technical
feasibility is the existence of technical
know-how as to materials and methods available or
adaptable to specific circumstances which can be
applied to cited violations with a reasonable
possibility that employee exposure to occupational
hazards will be reduced.
(b) Economic Feasibility. Economic feasibility
means that the employer is financially able
to undertake the measures necessary to abate
the citations received.
NOTE: If an employer's level of compliance
lags significantly behind that of its
industry, allegations of economic
infeasibility will not be accepted.
A. 6. b. Responsibilities.
(1) The CSHO shall document the underlying facts
which give rise to an employer's claim of
infeasibility.
(a) When economic infeasibility is claimed the
CSHO shall inform the employer that,
although the cost of corrective measures to
be taken will generally not be considered as
a factor in the issuance of a citation, it
may be considered during an informal conference
or during settlement negotiations.
(b) Serious issues of feasibility should be
referred to the Area Director for determination.
(2) The Area Director is responsible for making
determinations that engineering or administrative
controls are or are not feasible.
c. Reducing Employee Exposure. Whenever feasible
engineering, administrative or work practice controls
can be instituted even though they are not sufficient
to eliminate the hazard (or to reduce exposure to or
below the permissible exposure limit (PEL)). Nonetheless,
they are required in conjunction with personal
protective equipment to reduce exposure to the lowest
practical level.
B. Citations.
1. Issuing Citations.
a. Sending Citations to the Employer. Citations shall
be sent by certified mail; hand delivery of citations
to the employer or an appropriate agent of the employer
may be substituted for certified mailing if it is
believed that this method would be more effective. A
signed receipt shall be obtained whenever possible;
otherwise the circumstances of delivery shall be
documented in the file.
b. Sending Citations to the Employee. Citations shall
be mailed to employee representatives no later than one
day after the citation is sent to the employer. Citations
shall also be mailed to any employee upon
request.
c. Followup Inspections. If a followup inspection
reveals a failure to abate, the time specified for
abatement has passed, and no notice of contest has been
filed, a Notification of Failure to Abate Alleged
Violation (OSHA-2B) may be issued immediately without
regard to the contest period of the initial citation.
B. 2. Amending or Withdrawing Citation and Notification of
Penalty in Part or In Its Entirety.
a. Citation Revision Justified. Amendments to or
withdrawal of a citation shall be made when information
is presented to the Area Director which indicates a
need for such revision under certain conditions which
may include:
(1) Administrative or technical error.
(a) Citation of an incorrect standard.
(b) Incorrect or incomplete description of the
alleged violation.
(2) Additional facts establish a valid affirmative
defense.
(3) Additional facts establish that there was no
employee exposure to the hazard.
(4) Additional facts establish a need for
modification of the correction date, or the
penalty, or reclassification of citation items.
b. Citation Revision Not Justified. Amendments to or
withdrawal of a citation shall not be made by the Area
Director under certain conditions which include:
(1) Valid notice of contest received.
(2) The 15 working days for filing a notice of
contest has expired and the citation has become
a final order.
(3) Employee representatives have not been given the
opportunity to present their views unless the
revision involves only an administrative or
technical error.
(4) Editorial and/or stylistic modifications.
B. 2. c. Procedures for Amending or Withdrawing
Citations. The following procedures are to be
followed in amending or withdrawing citations. The
instructions contained in this section, with
appropriate modification, are also applicable to
the amendment of the Notification of Failure to
Abate Alleged Violation, OSHA-2B Form:
(1) Withdrawal of or modifications to the citation
and notification of penalty, shall normally be
accomplished by means of an informal settlement
agreement (ISA). (See D.4.b. of this chapter
for further information in ISA's).
(2) Changes initiated by the Area Director without
an informal conference are exceptions. In such
cases the procedures given below shall be
followed:
(a) If proposed amendments to citation items
change the classification of the items;
e.g., serious to other-than-serious, the
original citation items shall be withdrawn
and new, appropriate citation items issued.
(b) The amended Citation and Notification of
Penalty Form (OSHA-2) shall clearly indicate
that:
1 The employer is obligated under the Act
to post the amendment to the citation
along with the original citation until
the amended violation has been corrected
or for 3 working days, whichever is
longer;
2 The period of contest of the amended
portions of the OSHA-2 will begin from
the day following the date of receipt of
the amended Citation and Notification of
Penalty; and
3 The contest period is not extended as to
the unamended portions of the original
citation.
(c) A copy of the original citation shall be
attached to the amended Citation and
Notification of Penalty Form when the
amended form is forwarded to the employer.
B. 2. c. (2) (d) When circumstances warrant it, a
citation may be withdrawn in its
entirety by the Area Director.
Justifying documentation shall be
placed in the case file. If a
citation is to be withdrawn, the
following procedures apply:
1 A letter withdrawing the Citation and
Notification of Penalty shall be sent to
the employer. The letter shall refer to
the original citation and penalty, state
that they are withdrawn and direct that
the letter be posted by the employer for
3 working days in those locations where
the original citation was posted.
2 When applicable to the specific
situation (e.g., an employee representative
participated in the walkaround
inspection, the inspection was in
response to a complaint signed by an
employee or an employee representative,
or the withdrawal resulted from an informal
conference or settlement agreement
in which an employee representative
exercised the right to participate), a
copy of the letter shall also be sent to
the employee or the employee representative
as appropriate.
C. Penalties.
1. General Policy. The penalty structure provided under
Section 17 of the Act is designed primarily to provide an
incentive toward correcting violations voluntarily, not
only to the offending employer but, more especially, to
other employers who may be guilty of the same infractions
of the standards or regulations.
a. While penalties are not designed primarily as
punishment for violations, the Congress has made
clear its intent that penalty amounts should be
sufficient to serve as an effective deterrent to
violations.
b. Large proposed penalties, therefore, serve the
public purpose intended under the Act; and criteria
guiding approval of such penalties by the Assistant
Secretary are based on meeting this public purpose.
(See OSHA Instruction CPL 2.80.)
c. The penalty structure outlined in this section is
designed as a general guideline. The Area Director may
deviate from this guideline if warranted, to achieve
the appropriate deterrent effect.
2. Civil Penalties.
a. Statutory Authority. Section 17 provides the
Secretary with the statutory authority to propose civil
penalties for violations of the Act.
C. 2. a. (1) Section 17(b) of the Act provides that any
employer who has received a citation for an
alleged violation of the Act which is
determined to be of a serious nature shall
be assessed a civil penalty of up to $7,000
for each violation. (See OSHA Instruction
CPL 2.51H, or the most current version, for
congressional exemptions and limitations
placed on penalties by the Appropriations
Act.)
(2) Section 17(c) provides that, when the violation
is specifically determined not to be of a
serious nature, a proposed civil penalty of up
to $7,000 may be assessed for each violation.
(3) Section 17(i) provides that, when a violation of
a posting requirement is cited, a civil penalty
of up to $7,000 shall be assessed.
b. Minimum Penalties. The following guidelines apply:
(1) The proposed penalty for any willful violation shall
not be less than $5,000. The $5,000 penalty is a
statutory minimum and not subject to administrative
discretion. See C.2.m.(1)(a)1, below, for applicability
to small employers.
(2) When the adjusted proposed penalty for an
other-than-serious violation (citation item)
would amount to less than $100, no penalty shall
be proposed for that violation.
(3) When, however, there is a citation item for a
posting violation, this minimum penalty amount
does not apply with respect to that item since
penalties for such items are mandatory under the
Act.
(4) When the adjusted proposed penalty for a serious
violation (citation item) would amount to less
than $100, a $100 penalty shall be proposed for
that violation.
c. Penalty Factors. Section 17(j) of the Act provides
that penalties shall be assessed on the basis of four
factors:
(1) The gravity of the violation,
(2) The size of the business,
(3) The good faith of the employer, and
(4) The employer's history of previous violations.
C. 2. d. Gravity of Violation. The gravity of the
violation is the primary consideration in
determining penalty amounts. It shall be the basis
for calculating the basic penalty for both serious
and other violations. To determine the gravity of
a violation the following two assessments shall be
made:
(1) The severity of the injury or illness which
could result from the alleged violation.
(2) The probability that an injury or illness could
occur as a result of the alleged violation.
e. Severity Assessment. The classification of the
alleged violations as serious or other-than-serious, in
accordance with the instructions in Chapter III, C.2.,
is based on the severity of the injury or illness that
could result from the violation. This classification
constitutes the first step in determining the gravity
of the violation. A severity assessment shall be
assigned to a hazard to be cited according to the most
serious injury or illness which could reasonably be
expected to result from an employee's exposure as
follows:
(1) High Severity: Death from injury or
illness; injuries involving permanent
disability; or chronic, irreversible illnesses.
(2) Medium Severity: Injuries or temporary,
reversible illnesses resulting in
hospitalization or a variable but limited period
of disability.
(3) Low Severity: Injuries or temporary,
reversible illnesses not resulting in
hospitalization and requiring only minor
supportive treatment.
(4) Minimal Severity: Other-than-serious
violations. Although such violations reflect
conditions which have a direct and immediate
relationship to the safety and health of
employees, the injury or illness most likely to
result would probably not cause death or serious
physical harm.
f. Probability Assessment. The probability that an
injury or illness will result from a hazard has no role
in determining the classification of a violation but
does affect the amount of the penalty to be proposed.
(1) Categorization. Probability shall be
categorized either as greater or as lesser
probability.
(a) Greater probability results when the
likelihood that an injury or illness will
occur is judged to be relatively high.
(b) Lesser probability results when the
likelihood that an injury or illness will
occur is judged to be relatively low.
C. 2. f. (2) Violations. The following circumstances
may normally be considered, as appropriate,
when violations likely to result in injury
or illness are involved:
(a) Number of workers exposed.
(b) Frequency of exposure or duration of
employee overexposure to contaminants.
(c) Employee proximity to the hazardous
conditions.
(d) Use of appropriate personal protective
equipment (PPE).
(e) Medical surveillance program.
(f) Youth and inexperience of workers, especially those under 18 years old.
(g) Other pertinent working conditions.
(3) Final Probability Assessment. All of the
factors outlined above shall be considered
together in arriving at a final probability
assessment. When strict adherence to the
probability assessment procedures would result
in an unreasonably high or low gravity, the
probability may be adjusted as appropriate based
on professional judgment. Such decisions shall
be adequately documented in the case file.
g. Gravity-Based Penalty. The gravity-based penalty
(GBP) is an unadjusted penalty and is calculated in
accordance with the following procedures:
(1) The GBP for each violation shall be
determined based on an appropriate and
balanced professional judgment combining the
severity assessment and the final
probability assessment.
(2) For serious violations, the GBP shall be
assigned on the basis of the following scale:
Severity Probability GBP Gravity
High Greater $5,000 high ($5,000+)
Medium Greater $3,500----
Low Greater $2,500 |-- moderate
High Lesser $2,500 |
Medium Lesser $2,000----
Low Lesser $1,500 low
NOTE: The gravity of a violation is defined by
the GBP.
o A high gravity violation is one with
a GBP of $5,000 or greater.
o A moderate gravity violation is one
with GBP of $2,000 to $3,500.
o A low gravity violation is one with
a GBP of $1,500.
C. 2. g. (3) The highest gravity classification (high
severity and greater probability) shall
normally be reserved for the most serious
violative conditions, such as those
situations involving danger of death or
extremely serious injury or illness. If the
Area Director determines that it is
appropriate to achieve the necessary
deterrent effect, a GBP of $7,000 may be
proposed. The reasons for this determination
shall be documented in the case file.
(4) For other-than-serious safety and health
violations, there is no severity assessment.
(5) The Area Director may authorize a penalty
between $l,000 and $7,000 for an
other-than-serious violation when it is
determined to be appropriate to achieve the
necessary deterrent effect. The reasons for
such a determination shall be documented in the
case file.
Probability GBP
Greater $1,000 - $7,000
Lesser $0
(6) A GBP may be assigned in some cases without
using the severity and the probability
assessment procedures outlined in this section
when these procedures cannot appropriately be
used.
(7) The Penalty Table (Table IV-1) may be used for
determining appropriate adjusted penalties for
serious and other-than-serious violations.
h. Gravity Calculations for Combined or Grouped
Violations. Combined or grouped violations will
normally be considered as one violation and shall be
assessed one GBP. The following procedures apply to
the calculation of penalties for combined and grouped
violations:
(1) The severity and the probability assessments for
combined violations shall be based on the
instance with the highest gravity. It is not
necessary to complete the penalty calculations
for each instance or subitem of a combined or
grouped violation if it is clear which instance
will have the highest gravity.
C. 2. h. (2) For grouped violations, the following
special guidelines shall be adhered to:
(a) Severity Assessment. There are two
considerations to be kept in mind in
calculating the severity of grouped
violations:
1 The severity assigned to the grouped
violation shall be no less than the
severity of the most serious reasonably
predictable injury or illness that could
result from the violation of any single
item.
2 If a more serious injury or illness is
reasonably predictable from the grouped
items than from any single violation
item, the more serious injury or illness
shall serve as the basis for the
calculation of the severity factor of
the grouped violation.
(b) Probability Assessment. There are two
considerations to be kept in mind in
calculating the probability of grouped
violations:
1 The probability assigned to the grouped
violation shall be no less than the
probability of the item which is most
likely to result in an injury or
illness.
2 If the overall probability of injury or
illness is greater with the grouped
violation than with any single violation
item, the greater probability of injury
or illness shall serve as the basis for
the calculation of the probability
assessment of the grouped violation.
(3) In egregious cases an additional factor of up to
the number of violation instances may be
applied. Such cases shall be handled in
accordance with OSHA Instruction CPL 2.80.
Penalties calculated with this additional factor
shall not be proposed without the concurrence of
the Assistant Secretary. (See also
C.2.k.(2)(c)4 of this chapter.)
i. Penalty Adjustment Factors. The GBP may be reduced
by as much as 95 per cent depending upon the employer's
"good faith," "size of business," and "history of
previous violations." Up to 60-percent reduction is
permitted for size; up to 25-percent reduction for
good faith, and 10-percent for history.
C. 2. i. (1) Since these adjustment factors are based on
the general character of a business and its
safety and health performance, the factors
generally shall be calculated only once for
each employer. After the classification and
probability ratings have been determined for
each violation, the adjustment factors shall
be applied subject to the limitations
indicated in the following paragraphs.
(2) Penalties assessed for violations that are
classified as high severity and greater
probability shall be adjusted only for size and
history.
(3) Penalties assessed for violations that are
classified as repeated shall be adjusted only
for size.
(4) Penalties assessed for regulatory violations,
which are classified as willful, shall be
adjusted for size. Penalties assessed for
serious violations, which are classified as
willful, shall be adjusted for size and history.
NOTE: If one violation is classified as
willful, no reduction for good faith can
be applied to any of the violations
found during the same inspection. The
employer cannot be willfully in
violation of the Act and at the same
time, be acting in good faith.
(5) The rate of penalty reduction for size of
business, employer's good faith and employer's
history of previous violations shall be
calculated on the basis of the criteria
described in the following paragraphs:
(a) Size. A maximum penalty reduction of 60
percent is permitted for small businesses.
"Size of business" shall be measured on the
basis of the maximum number of employees of
an employer at all workplaces at any one
time during the previous 12 months.
1 The rates of reduction to be applied
are as follows:
Employees Percent reduction
1-25 60
26-100 40
101-250 20
251 or more None
2 When a small business (1-25 employees)
has one or more serious violations of
high gravity or a number of serious
violations of moderate gravity,
indicating a lack of concern for
employee safety and health, the CSHO may
recommend that only a partial reduction in
penalty shall be permitted for size of
business.
C. 2. i. (5) (b) Good Faith. A penalty reduction
of up to 25 percent, based on the
CSHO's professional judgment, is
permitted in recognition of an
employer's "good faith".
1 The 25% credit for "good faith" normally
requires a written safety and health
program. In exceptional cases, the
compliance officer may recommend the
full 25% for a smaller employer (1-25
employees) who has implemented an
efficient safety and health program, but
has not reduced it to writing.
a Provides for appropriate management
commitment and employee involvement;
worksite analysis for the purpose of
hazard identification; hazard
prevention and control measures; and
safety and health training.
NOTE: One example of a framework for
such a program is given in
OSHA's voluntary "Safety and
Health Program Management
Guidelines" (Federal Register,
Vol. 54, No. 16,
January 26, 1989, pp. 3904-3916,
or later revisions as
published).
b Has deficiencies that are only
incidental.
2 A reduction of 15 percent shall normally
be given if the employer has a
documentable and effective safety and
health program, but with more than only
incidental deficiencies.
3 No reduction shall be given to an
employer who has no safety and health
program or where a willful violation is found.
4 Only these percentages (15% or 25%) may
be used to reduce penalties due to the
employer's good faith. No intermediate
percentages shall be used.
5 Where young workers (i.e., less than 18
years old) are employed, the CSHO's evaluation must
consider whether the employer's safety and health
program appropriately addresses the particular needs
of such workers with regard to the types of work they
perform and the hazards to which they are exposed.
(c) History. A reduction of 10 percent
shall be given to employers who have not
been cited by OSHA for any serious, willful,
or repeated violations in the past three
years.
(d) Total. The total reduction will
normally be the sum of the reductions for
each adjustment factors.
C. 2. j. Effect on Penalties If Employer Immediately
Corrects or Initiates Corrective Action.
Appropriate penalties will be proposed with respect
to an alleged violation even though, after being
informed of such alleged violation by the CSHO, the
employer immediately corrects or initiates steps to
correct the hazard.
k. Failure to Abate. A Notification of Failure to
Abate an Alleged Violation (OSHA-2B) shall be issued in
cases where violations have not been corrected as
required.
(1) Failure to Abate. Failure to abate
penalties shall be applied when an employer has
not corrected a previously cited violation which
had become a final order of the Commission.
Citation items become final order of the Review
Commission when the abatement date for that item
passes, if the employer has not filed a notice
of contest prior to that abatement date. See
D.5. of this chapter for guidance on determining
final dates of settlements and Review Commission
orders.
(2) Calculation of Additional Penalties. A GBP
for unabated violations is to be calculated for
failure to abate a serious or other-than-serious
violation on the basis of the facts noted upon
reinspection. This recalculated GBP, however,
shall not be less than that proposed for the
item when originally cited, except as provided
in C.2.k.(4), below.
(a) In those instances where no penalty was
initially proposed, an appropriate penalty
shall be determined after consulting with
the Assistant Area Director. In no case
shall the unadjusted penalty be less than
$1,000 per day.
(b) Only the adjustment factor for size--based
upon the circumstances noted during the
reinspection--shall then be applied to
arrive at the daily proposed penalty.
(c) The daily proposed penalty shall be
multiplied by the number of calendar days
that the violation has continued unabated,
except as provided below:
1 The number of days unabated shall be
counted from the day following the
abatement date specified in the citation
or the final order. It will include all
calendar days between that date and the
date of reinspection, excluding the date
of reinspection.
C. 2. k. (2) (c) 2 Normally the maximum total
proposed penalty for failure
to abate a particular
violation shall not exceed 30
times the amount of the daily
proposed penalty.
3 At the discretion of the Area Director,
a lesser penalty may be proposed with
the reasons for doing so (e.g.,
achievement of an appropriate deterrent
effect) documented in the case file.
4 If a penalty in excess of the normal
maximum amount of 30 times the amount of
the daily proposed penalty is deemed
appropriate by the Area Director, the
case shall be treated under the
violation-by-violation (egregious)
penalty procedures established in OSHA
Instruction CPL 2.80.
(3) Partial Abatement.
(a) When the citation has been partially abated,
the Area Director may authorize a reduction
of 25 percent to 75 percent to the amount of
the proposed penalty calculated as outlined
in C.2.k.(2), above.
(b) When a violation consists of a number of
instances and the followup inspection
reveals that only some instances of the
violation have been corrected, the
additional daily proposed penalty shall take
into consideration the extent that the
violation has been abated.
EXAMPLE: Where 3 out of 5 instances have
been corrected, the daily proposed penalty
(calculated as outlined in C.2.k.(2), above,
without regard to any partial abatement) may be
reduced by 60 per cent.
(4) Good Faith Effort to Abate. When the CSHO
believes, and so documents in the case file,
that the employer has made a good faith effort
to correct the violation and had good reason to
believe that it was fully abated, the Area
Director may reduce or eliminate the daily
proposed penalty that would otherwise be
justified.
l. Repeated Violations. Section 17(a) of the Act
provides that an employer who repeatedly violates the
Act may be assessed a civil penalty of not more than
$70,000 for each violation.
(1) Gravity-Based Penalty Factors. Each
violation shall be classified as serious or
other-than-serious. A GBP shall then be
calculated for repeated violations based on
facts noted during the current inspection.
Only the adjustment factor for size,
appropriate to the facts at the time of the
reinspection, shall be applied.
C. 2. l. (2) Penalty Increase Factors. The amount of
the increased penalty to be assessed for a
repeated violation shall be determined by
the size of the employer.
(a) Smaller Employers. For employers with
250 or fewer employees, the GBP shall be
doubled for the first repeated violation and
quintupled if the violation has been cited
twice before. If the Area Director determines
that it is appropriate to achieve the
necessary deterrent effect, the GBP may be
multiplied by 10.
(b) Larger Employers. For employers with
more than 250 employees, the GBP shall be
multiplied by 5 for the first repeated
violation and multiplied by 10 for the
second repeated violation.
(3) Other-Than-Serious, No Initial Penalty. For
a repeated other-than-serious violation that
otherwise would have no initial penalty, a GBP
penalty of $200 shall be assessed for the first
repeated violation, $500 if the violation has
been cited twice before, and $1,000 for a third
repetition.
NOTE: This penalty will not have the penalty
increase factors applied as discussed
under C.2.l.(2).
(4) Regulatory Violations. For repeated
instances of regulatory violations, the initial
penalty shall be doubled for the first repeated
violation and quintupled if the violation has
been cited twice before. If the Area Director
determines that it is appropriate to achieve the
necessary deterrent effect, the initial penalty
may be multiplied by 10.
NOTE: See Chapter III, C.2.f., for additional
guidance on citing repeated violations.
m. Willful Violations. Section 17(a) of the Act
provides that an employer who willfully violates the
Act may be assessed a civil penalty of not more than
$70,000 but not less than $5,000 for each violation.
(1) Gravity-Based Penalty Factors. Each willful
violation shall be classified as serious or
other-than-serious.
C. 2. m. (1) (a) Serious Violations. For
willful serious violations, a
gravity of high, medium moderate,
or low shall be assigned
based on the GBP of the
underlying serious violation, as
described at C.2.g.(2).
1 The adjustment factor for size shall be
applied as shown in the following chart:
| |
Employees |
Percent Reduction |
| |
|
|
| |
10 or less |
80 |
| |
11-20 |
60 |
| |
21-30 |
50 |
| |
31-40 |
40 |
| |
41-50 |
30 |
| |
51-100 |
20 |
| |
101-250 |
10 |
| |
251 or more |
0 |
2 The adjustment factor for history shall
be applied as described at C.2.i.(5)(c);
i.e., a reduction of 10 percent shall be
given to employers who have not been
cited by OSHA for any serious, willful,
or repeated violations in the past 3
years. There shall be no adjustment for
good faith.
3 The proposed penalty shall then be
determined from the table below:
Penalties to be proposed
|
| Total percentage reduction for size and/or history |
0% |
10% |
20% |
30% |
40% |
50% |
60% |
70% |
80% |
90% |
| High Gravity |
$70,000 |
$63,000 |
$56,000 |
$49,000 |
$42,000 |
$35,000 |
$28,000 |
$21,000 |
$14,000 |
$7,000 |
| Moderate Gravity |
$55,000 |
$49,000 |
$44,000 |
$38,000 |
$33,000 |
$27,500 |
$22,000 |
$16,500 |
$11,000 |
$5,500 |
| Low Gravity |
$40,000 |
$36,000 |
$32,000 |
$28,000 |
$24,000 |
$20,000 |
$16,000 |
$12,000 |
$8,000 |
$5,000 |
4 In no case shall the proposed penalty be
less than $25,000 $5,000.
(b) Other-Than-Serious Violations. For
willful other-than-serious violations, the
minimum willful penalty of $5,000 shall be
assessed.
C. 2. m. (2) Regulatory Violations. In the case of
regulatory violations (see C.2.n., below)
that are determined to be willful, the
unadjusted initial penalty shall be
multiplied by 10. In no event shall the
penalty, after adjustment for size, be less
than $5,000.
n. Violation of 29 CFR Parts 1903 and 1904 Regulatory
Requirements. Except as provided in the
Appropriations Act, Section 17 of the Act provides that
an employer who violates any of the posting
requirements shall be assessed a civil penalty of up to
$7,000 for each violation and may be assessed a like
penalty for recordkeeping violations.
(1) General Application. Unadjusted penalties
for regulatory violations, including posting
requirements, shall have the adjustment factors
for size and history applied (excluding willful
violations, see C.2.m.(2), above).
(2) Posting Requirements. Penalties for
violation of posting requirements shall be
proposed as follows:
(a) OSHA Notice (Poster). If the employer
has not displayed (posted) the notice
furnished by the Occupational Safety and
Health Administration as prescribed in 29
CFR 1903.2 (a), an other-than-serious
citation shall normally be issued. The
unadjusted penalty for this alleged violation
shall be $1,000 provided that the
employer has received a copy of the poster
or had knowledge of the requirement.
(b) Annual Summary. If an employer fails to
post the summary portion of the OSHA-200
Form during the month of February as
required by 29 CFR 1904.5(d)(1), and/or
fails to complete the summary prior to
February 1, as required by 29 CFR
1904.5(b), even if there have been no
injuries, an other-than-serious citation
shall be issued. The unadjusted penalty for
this violation shall be $1,000.
(c) Citation. If an employer received a
citation that has not been posted as
prescribed in 29 CFR 1903.16, an
other-than-serious citation shall normally
be issued. The unadjusted penalty shall be
$3,000.
C. 2. n. (3) Reporting and Recordkeeping Requirements.
Section 17(c) of the Act provides that violations of
the recordkeeping and reporting requirements may
be assessed civil penalties of up to $7,000
for each violation.
(a) OSHA-200 Form. If the employer does not
maintain the Log and Summary of Occupational
Injuries and Illnesses, OSHA-200 Form, as
prescribed in 29 CFR Part 1904, an
other-than-serious citation shall be issued.
There shall be an unadjusted penalty of
$1,000 for each year the form was not
maintained, for each of the preceding 3
years.
1 When no recordable injuries or illnesses
have occurred at a workplace during the
current calendar year, the OSHA 200 need
not be completed until the end of the
calendar year for certification of the
summary.
2 An OSHA-200 with significant
deficiencies shall be considered as not
maintained.
(b) OSHA-101 Forms. If the employer does
not maintain the Supplementary Record, OSHA
101 Form (or equivalent), as prescribed in
29 CFR Part 1904, an other-than-serious
citation shall be issued. There shall be an
unadjusted penalty of $1000 for each
OSHA-101 Form not maintained.
1 A penalty of $1000 for each OSHA-101
Form not maintained at all up to a
maximum of $7000.
2 A penalty of $1,000 for each OSHA-101
Form inaccurately maintained up to a
maximum of $3000.
3 Minor inaccuracies shall be cited, but
with no penalties.
4 If large numbers of violations or other
circumstances indicate that the
violations are willful, then other
penalties including, violation-by-violation,
may be applied.
C. 2. n. (3) (c) Reporting. Employers are
required to report either orally or
in writing to the nearest Area Office
within 8 hours, any occurrence of an
employment accident which is fatal to
one or more employees or which
results in the hospitalization of
three or more employees.
1 An other-than-serious citation shall be
issued for failure to report such an
occurrence. The unadjusted penalty
shall be $5,000.
2 If the Area Director determines that it
is appropriate to achieve the necessary
deterrent effect, an unadjusted penalty
of $7,000 may be assessed.
3 If the Area Director becomes aware of an
incident required to be reported under
29 CFR 1904.8 through some means other
than an employer report, prior to the
elapse of the 8-hour reporting period
and an inspection of the incident is
made, a citable violation for failure to
report does not exist.
(4) Grouping. Violations of the posting and
recordkeeping requirements which involve the
same document (e.g., summary portion of the
OSHA-200 Form was neither posted nor maintained)
shall be grouped as an other-than-serious
violation for penalty purposes. The unadjusted
penalty for the grouped violations would then
take on the highest dollar value of the
individual items, which will normally be $1,000.
(5) Access to Records.
(a) 29 CFR Part 1904. If the employer fails
upon request to provide records required in
1904.2 for inspection and copying by any
employee, former employee, or authorized
representative of employees, a citation for
violation of 29 CFR 1904.7(b)(1) shall
normally be issued. The unadjusted penalty
shall be $1,000 for each form not made
available.
1 Thus, if the OSHA-200 for the 3
preceding years is not made available,
the unadjusted penalty would be $3,000.
2 If the employer is to be cited for
failure to maintain these records, no
citation of 1904.7 shall be issued.
C. 2. n. (5) (b) 29 CFR 1910.20. If the employer
is cited for failing to provide
records as required under 29 CFR
1910.20 for inspection and copying
by any employee, former employee, or
authorized representative of
employees, an unadjusted penalty of
$1,000 shall be proposed for each
record; i.e., either medical record
or exposure record, on an individual
employee basis. A maximum $7,000 may
be assessed for such violations.
This policy does not preclude the use
of violation-by-violation penalties
where appropriate. (See OSHA
Instruction CPL 2.80.)
EXAMPLE: If all the necessary evidence is
established where an authorized employee
representative requested exposure and medical
records for 3 employees and the request was
denied by the employer, a citation would be
issued for 6 instances of violation of 29 CFR
1910.20, with an unadjusted penalty of $6,000.
(6) Notification Requirements. When an employer
has received advance notice of an inspection and
fails to notify the authorized employee
representative as required by 29 CFR 1903.6, an
other-than-serious citation shall be issued.
The violation shall have an unadjusted penalty
of $2,000.
TABLE IV-1
PENALTY TABLE
==========================================================================
Percent PENALTY
Reduction (in dollars)
==========================================================================
0 | 1,000 | 1,500 | 2,000 | 2,500 | 3,000 | 3,500 | 5,000 | 7,000
__________|________|_______|_______|_______|_______|_______|_______|______
10 | 900 | 1,350 | 1,800 | 2,250 | 2,700 | 3,150 | 4,500 | 6,300
__________|________|_______|_______|_______|_______|_______|_______|______
15 | 850 | 1,275 | 1,700 | 2,125 | 2,550 | 2,975 | 4,250*| 5,950*
__________|________|_______|_______|_______|_______|_______|_______|______
20 | 800 | 1,200 | 1,600 | 2,000 | 2,400 | 2,800 | 4,000 | 5,600
__________|________|_______|_______|_______|_______|_______|_______|______
25 | 750 | 1,125 | 1,500 | 1,875 | 2,250 | 2,625 | 3,750*| 5,250*
__________|________|_______|_______|_______|_______|_______|_______|______
30 | 700 | 1,050 | 1,400 | 1,750 | 2,100 | 2,450 | 3,500 | 4,900
__________|________|_______|_______|_______|_______|_______|_______|______
35 | 650 | 975 | 1,300 | 1,625 | 1,950 | 2,275 | 3,250*| 4,550*
__________|________|_______|_______|_______|_______|_______|_______|______
40 | 600 | 900 | 1,200 | 1,500 | 1,800 | 2,100 | 3,000 | 4,200
__________|________|_______|_______|_______|_______|_______|_______|______
45 | 550 | 825 | 1,100 | 1,375 | 1,650 | 1,925 | 2,750*| 3,850*
__________|________|_______|_______|_______|_______|_______|_______|______
50 | 500 | 750 | 1,000 | 1,250 | 1,500 | 1,750 | 2,500 | 3,500
__________|________|_______|_______|_______|_______|_______|_______|______
55 | 450 | 675 | 900 | 1,125 | 1,350 | 1,575 | 2,250*| 3,150*
__________|________|_______|_______|_______|_______|_______|_______|______
60 | 400 | 600 | 800 | 1,000 | 1,200 | 1,400 | 2,000 | 2,800
__________|________|_______|_______|_______|_______|_______|_______|______
65 | 350 | 525 | 700 | 875 | 1,050 | 1,225 | 1,750*| 2,450*
__________|________|_______|_______|_______|_______|_______|_______|______
70 | 300 | 450 | 600 | 750 | 900 | 1,050 | 1,500 | 2,100
__________|________|_______|_______|_______|_______|_______|_______|______
75 | 250 | 375 | 500 | 625 | 750 | 875 | 1,250*| 1,750*
__________|________|_______|_______|_______|_______|_______|_______|_____
85 | 150 | 225 | 300 | 375 | 450 | 525 | 750*| 1,050*
__________|________|_______|_______|_______|_______|_______|_______|______
95 | 100**| 100**| 100 | 125 | 150 | 175 | 250* | 350*
| | | | | | | |
==========================================================================
* Starred figures represent penalty amounts that would not normally be
proposed for high gravity serious violations because no adjustment for
good faith is made in such cases. They may occasionally be applicable
for other-than-serious violations where the Area Dorectpr has
determined a high unadjusted penalty amount to be warranted.
** Administratively, OSHA will not issue a penalty less than $100 for a
serious violation.
C. 3. Criminal Penalties.
a. The Act and the U.S. Code provide for criminal
penalties in the following cases:
(1) Willful violation of an OSHA standard, rule, or
order causing the death of an employee (Section
17(e)).
(2) Giving unauthorized advance notice. (Section
17(f).)
(3) Giving false information. (Section 17(g).)
(4) Killing, assaulting or hampering the work of a
CSHO. (Section 17(h)(2).)
b. Criminal penalties are imposed by the courts after
trials and not by the Occupational Safety and Health
Administration or the Occupational Safety and Health
Review Commission.
D. Post-Citation Processes.
1. Informal Conferences.
a. General. Pursuant to 29 CFR 1903.19, the
employer, any affected employee or the employee
representative may request an informal conference.
When an informal conference is conducted, it shall be
conducted within the 15 working day contest period. If
the employer's intent to contest is not clear, the Area
Director shall contact the employer for clarification.
b. Procedures. Whenever an informal conference is
requested by the employer, an affected employee or the
employee representative, both parties shall be afforded
the opportunity to participate fully. If either party
chooses not to participate in the informal conference,
a reasonable attempt shall be made to contact that
party to solicit their input prior to signing an
informal settlement agreement if the adjustments
involves more than the penalty. If the requesting
party objects to the attendance of the other party,
separate informal conferences may be held. During the
conduct of a joint informal conference, separate or
private discussions shall be permitted if either party
so requests. Informal conferences may be held by any
means practical.
(1) The employer shall be requested to complete and
post the form found at the end of the informal
conference letter until after the informal
conference has been held.
(2) Documentation of the Area Director's actions
notifying the parties of the informal conference
shall be placed in the case file.
D. 1. c. Participation by OSHA Officials. The
inspecting CSHOs and their Assistant Area Directors
shall be notified of an upcoming informal
conference and, if practicable, given the
opportunity to participate in the informal
conference (unless, in the case of the CSHO, the
Area Director anticipates that only a penalty
adjustment will result).
(1) At the discretion of the Area Director, one or
more additional OSHA employees (in addition to
the Area Director) may be present at the informal
conference. In cases in which proposed
penalties total $100,000 or more, a second OSHA
staff member shall attend the informal conference.
(2) The Area Director shall ensure that notes are
made indicating the basis for any decisions
taken at or as a result of the informal
conference. It is appropriate to tape record
the informal conference and to use the tape
recording in lieu of written notes.
d. Conduct of the Informal Conference. The Area
Director shall conduct the informal conference in
accordance with the following guidelines:
(1) Opening Remarks. The opening remarks shall
include discussions of the following:
(a) Purpose of the informal conference.
(b) Rights of participants.
(c) Contest rights and time restraints.
(d) limitations, if any.
(e) Settlements of cases.
(f) Other relevant information.
(g) If the Area Director states any views on the
legal merits of the employer's contentions,
it should be made clear that those views are
personal opinions only.
(2) Closing. At the conclusion of the
discussion the main issues and potential courses
of action shall be summarized. A copy of the
summary, together with any other relevant notes
or tapes of the discussion made by the Area
Director, shall be placed in the case file.
D. 1. e. Decisions. At the end of the informal
conference, the Area Director shall make a decision
as to what action is appropriate in the light of
facts brought up during the conference.
(1) Changes to citations, penalties or abatement
dates normally shall be made by means of an
informal settlement agreement in accordance with
current OSHA procedures; the reasons for such
changes shall be documented in the case file.
For more detail on settlement agreements, see
D.4.b., below.
(2) Employers shall be informed that they are
required by 29 CFR 1903.19 to post copies of
all amendments to the citation resulting from
informal conferences. Employee representatives
must also be provided with copies of such
documents. This regulation covers amended
citations, citation withdrawals and settlement
agreements.
f. Failure to Abate. If the informal conference
involves an alleged failure to abate, the Area Director
shall set a new abatement date in the informal settlement
agreement, documenting for the case file the time
that has passed since the original citation, the steps
that the employer has taken to inform the exposed
employees of their risk and to protect them from the
hazard, and the measures that will have to be taken to
correct the condition.
2. Petitions for Modification of Abatement Date (PMA).
Title 29 CFR 1903.14a governs the disposition of PMAs. If
the employer requests additional abatement time after the
15-working-day contest period has passed, the following
procedures for PMAs are to be observed:
a. Filing Date. A PMA must be filed in writing with
the Area Director who issued the citation no later than
the close of the next working day following the date on
which abatement was originally required.
(1) If a PMA is submitted orally, the employer shall
be informed that OSHA cannot accept an oral PMA
and that a written petition must be mailed by
the end of the next working day after the
abatement date. If there is not sufficient time
to file a written petition, the employer shall
be informed of the requirements below for late
filing of the petition.
(2) A late petition may be accepted only if
accompanied by the employer's statement of
exceptional circumstances explaining the delay.
b. Failure to Meet All Requirements. If the
employer's letter does not meet all the requirements of
1903.14a(b)(1)-(5), the employer shall be contacted
within 10 working days and notified of the missing
elements. A reasonable amount of time for the employer
to respond shall be specified during this contact with
the employer.
D. 2. b. (1) If no response is received or if the
information returned is still insufficient,
a second attempt (by telephone or in
writing) shall be made. The employer shall
be informed of the consequences of a failure
to respond adequately; namely, that the PMA
will not be granted and the employer may,
consequently, be found in failure to abate.
(2) If the employer responds satisfactorily by
telephone and the Area Director determines that
the requirements for a PMA have been met, appropriate
documentation shall be placed in the case
file.
c. Delayed Decisions. Although OSHA policy is to
handle PMAs as expeditiously as possible, there are
cases where the Area Director's decision on the PMA is
delayed because of deficiencies in the PMA itself, a
decision to conduct a monitoring inspection and/or the
need for Regional Office or National Office
involvement. Requests for additional time (e.g., 45
days) for the Area Director to formulate a position
shall be sent to the Review Commission through the
Regional Solicitor. A letter conveying this request
shall be sent at the same time to the employer and the
employee representatives.
d. Area Office Position on the PMA. After 15 working
days following the PMA posting, the Area Director shall
determine the Area Office position, agreeing with or
objecting to the request. This shall be done within 10
working days following the 15 working days (if
additional time has not been requested from the Review
Commission; in the absence of a timely objection, the
PMA is automatically granted even if not explicitly
approved). The following action shall be taken:
(1) If the PMA requests an abatement date which is
two years or less from the issuance date of the
citation, the Area Director has the authority to
approve or object to the petition.
(2) Any PMA requesting an abatement date which is
more than two years from the issuance date of
the citation requires the approval of the
Regional Administrator as well as the Area
Director.
(3) If the PMA is approved, the Area Director shall
notify the employer and the employee
representatives by letter.
(4) If supporting evidence justifies it (e.g.,
employer has taken no meaningful abatement
action at all or has otherwise exhibited bad
faith), the Area Director or the Regional
Administrator, as appropriate and after consultation
with the Regional Solicitor, shall object
to the PMA. In such a case, all relevant
documentation shall be sent to the Review
Commission in accordance with 29 CFR
1903.14a(d). Both the employer and the
employee representatives shall be notified of
this action by letter, with return receipt
requested.
D. 2. d. (4) (a) The letters of notification of the
objection shall be mailed on the same
date that the agency objection to the
PMA is sent to the Review Commission.
(b) When appropriate, after consultation with
the Regional Solicitor, a failure to abate
notification may be issued in conjunction
with the objection to the PMA.
e. Employee Objections. Affected employees or their
representatives may file an objection in writing to an
employer's PMA with the Area Director within 10 working
days of the date of posting of the PMA by the employer
or its service upon an authorized employee
representative.
(1) Failure to file such a written objection with
the 10-working-day period constitutes a waiver
of any further right to object to the PMA.
(2) If an employee or an employee representative
objects to the extension of the abatement date,
all relevant documentation shall be sent to the
Review Commission.
(a) Confirmation of this action shall be mailed
(return receipt requested) to the objecting
party as soon as it is accomplished.
(b) Notification of the employee objection shall
be mailed (return receipt requested) to the
employer on the same day that the case file
is forwarded to the Commission.
3. Services Available to Employers. Employers requesting
abatement assistance shall be informed that OSHA is willing
to work with them even after citations have been issued.
4. Settlement of Cases By Area Directors.
a. General. Area Directors are granted settlement
authority, using the following policy guidelines to
negotiate settlement agreements.
(1) Except for egregious cases, or cases which
affect other jurisdictions, Area Directors are
authorized to enter into Informal Settlement
Agreements with an employer before the employer
files a written notice of contest.
NOTE: After the employer has filed a written
notice of contest, the Area Director may
proceed toward a Formal Settlement Agreement
with the concurrence of the Regional
Solicitor in cases where a settlement
appears probable without the need for active
participation by an attorney.
D. 4. a. (2) Area Directors are authorized to change
abatement dates, to reclassify violations
(e.g., willful to serious, serious to
other-than-serious), and to modify or
withdraw a penalty, a citation or a citation
item if the employer presents evidence
during the informal conference which convinces
the Area Director that the changes are justified.
(a) If an employer, having been cited as
willfully or repeatedly violating the Act,
decides to correct all violations, but
wishes to purge himself or herself of the
adverse public perception attached to a
willful or repeated violation classification
and is willing to pay all or almost all of
the penalty and is willing to make
significant additional concessions, then a
Section 17 designation may be applicable.
Decisions to make a Section 17 designation
shall be based on whether the employer is
willing to make significant concessions.
NOTE: Significant concessions may include the
company entering into a corporate-wide
settlement agreement subject to OSHA
Instruction CPL 2.90, providing employee
training of a specified type and
frequency, hiring a qualified safety and
health consultant and implementing the
recommendations, effecting a
comprehensive safety and health program,
reporting new construction jobs or other
worksites to OSHA, or waiving warrants
for specified inspections/periods.
(b) A Section 17 designation also may be
considered if the employer has advanced
substantial reasons why the original
classification is questionable but is
willing to pay the penalty as proposed.
NOTE: Where the original classification
clearly was excessive, Section 17 is not
appropriate. Instead, the citation
shall be amended to the appropriate
classification.
(3) The Area Director has authority to actively
negotiate the amount of penalty reduction,
depending on the circumstances of the case and
what improvements in employee safety and health
can be obtained in return.
D. 4. a. (4) Employers shall be informed that they are
required by 29 CFR 1903.19 to post copies
of all amendments or changes resulting from
informal conferences. Employee
representatives must also be provided with
copies of such documents. This regulation
covers amended citations, citation
withdrawals and settlement agreements.
b. Pre-Contest Settlement (Informal Settlement
Agreement). Pre-contest settlements generally will
occur during, or immediately following, the informal
conference and prior to the completion of the 15
working day contest period.
(1) If a settlement is reached during the informal
conference, an Informal Settlement Agreement
shall be prepared and the employer
representative shall be invited to sign it. The
Informal Settlement Agreement shall be effective
upon signature by both the Area Director and the
employer representative so long as the contest
period has not expired. Both shall date the
document as of the day of actual signature.
(a) If the employer representative requests more
time to consider the agreement and if there
is sufficient time remaining of the
15-working-day period, the Area Director shall
sign and date the agreement and provide the
signed original for the employer to study
while considering whether to sign it. A
letter explaining the conditions under which
the agreement will become effective shall be
given (or mailed by certified mail, return
receipt requested) to the employer and a
record kept in the case file.
(b) The Area Director shall sign and date the
agreement and provide the original (in
person, or by certified mail, return receipt
requested) to the employer if any other
circumstances warrant such action; the
agreement may also be sent to the employer
for signature, and returned to the Area
Director, via facsimile if circumstances
warrant.
1 If the signed agreement is provided to
the employer, a copy shall be kept in
the case file and the employer informed
in writing that no changes are to be
made to the original by the employer
without explicit prior authorization for
such changes from the Area Director.
2 In every case the Area Director shall
give formal notice in writing to the
employer that the citation will become
final and unreviewable at the end of the
contest period unless the employer
either signs the agreement or files a
written notice of contest.
D. 4. b. (1) (b) 3 If the employer representative
wishes to make any changes to
the text of the agreement, the
Area Director must agree to
and authorize the proposed
changes prior to the
expiration of the contest
period.
a If the changes proposed by the
employer are acceptable to the Area
Director, they shall be authorized
and the exact language to be written
into the agreement shall be worked
out mutually. The employer shall be
instructed to incorporate the
agreed-upon language into the
agreement, sign it and return it to the
Area Office as soon as practicable by
telefacsimile, if possible.
b Annotations incorporating the exact
language of any changes authorized by
the Area Director shall be made to
the retained copy of the agreement,
and a dated record of the
authorization shall be signed by the
Area Director and placed in the case
file.
4 Upon receipt of the Informal Settlement
Agreement signed by the employer, the
Area Director shall ensure that any
modified text of the agreement is in
accordance with the notations made in
the case file.
a If so, the citation record shall be
updated in IMIS in accordance with
current procedures.
b If not, and if the variations
substantially change the terms of the
agreement, the agreement signed by
the employer shall be considered as a
notice of intent to contest and
handled accordingly. The employer
shall be so informed as soon as
possible.
5 A reasonable time shall be allowed for
return of the agreement from the
employer.
a After that time, if the agreement has
still not been received, the Area
Director shall presume that the
employer is not going to sign the
agreement; and the citation shall be
treated as a final order until such
time as the agreement is received,
properly signed prior to the
expiration of the contest period.
b The employer shall be required to
certify that the informal settlement
agreement was signed prior to the
expiration of the contest period.
D. 4. b. (2) If the Area Director's settlement efforts
are unsuccessful and the employer contests
the citation, the Area Director shall state
the terms of the final settlement offer in
the case file.
c. Procedures for Preparing the Informal Settlement
Agreement. The Informal Settlement Agreement shall
be prepared and processed in accordance with current
OSHA policies and practices. For guidance for
determining final dates of settlements and Review
Commission orders see D.5., below.
d. Post-Contest Settlement (Formal Settlement
Agreement). Post-contest settlements will generally
occur before the complaint is filed with the Review
Commission.
(1) Following the filing of a notice of contest, the
Area Director shall, unless other procedures
have been agreed upon, notify the Regional
Solicitor when it appears that negotiations with
the employer may produce a settlement. This
shall normally be done at the time when the
notice of contest transmittal memorandum is sent
to the Regional Solicitor.
(2) If a settlement is later requested by the
employer with the Area Director, the Area
Director shall communicate the terms of the
settlement to the Regional Solicitor who will
then draft the settlement agreement.
e. Corporate-Wide Settlement Agreements.
Corporate-wide Settlement Agreements (CSAs) may be
entered into under special circumstances to obtain
formal recognition by the employer of cited hazards and
formal acceptance of the obligation to seek out and
abate those hazards throughout all workplaces under its
control. Guidelines, policies and procedures for
entering into CSA negotiations are found in OSHA
Instruction CPL 2.90.
5. Guidance for Determining Final Dates of Settlements and
Review Commission Orders.
a. Citation/Notice of Penalty Not Contested. The
Citation/Notice of Penalty and abatement date becomes a
final order of the Commission on the date the
15-working-day contest period expires.
D. 5. b. Citation/Notice of Penalty Resolved by Informal
Settlement Agreement (ISA). The ISA becomes
final, with penalties due and payable, 15 working
days after the date of the last signature.
NOTE: A later due date for payment of penalties may be
set by the terms of the ISA.
NOTE: The Review Commission does NOT review the ISA.
c. Citation/Notice of Penalty Resolved by Formal
Settlement Agreement (FSA). The Citation/Notice of
Penalty becomes final 30 days after docketing of the
Administrative Law Judge's (ALJ's) Order
"approving" the parties' stipulation and settlement
agreement, assuming there is no direction for review.
The Commission's Notice of Docketing specifies the
date upon which the decision becomes a final order. If
the FSA is "approved" by a Commission's Order, it
will become final after 60 days.
NOTE: A later due date for payment of penalties may be
set by the terms of the FSA.
NOTE: Settlement is permitted and encouraged by the
Commission at any stage of the proceedings. (See
29 CFR 2200.100(a).)
d. Citation/Notice of Penalty Resolved by an ALJ
Decision. The ALJ decision/report becomes a final
order of the Commission 30 days after docketing
unless the Commission directs a review of the case.
The Commission's Notice of Docketing specifies the
date upon which the decision becomes a final order.
e. ALJ Decision is Reviewed by Commission. According
to Section 11 of the OSH Act, the Commission decision
becomes final 60 days after the Notice of Commission
Decision if no appeal has been filed with the U.S.
Court of Appeals. The Notice of Commission
Decision specifies the date the Commission decision
is issued.
f. Commission Decision Reviewed by the U.S. Court of
Appeals. The U.S. Court of Appeals' decision becomes
final 90 days after the entry of the judgment, if no
appeal has been filed with the U.S. Supreme Court.
E. Review Commission.
1. Transmittal of Notice of Contest and Other Documents to
Commission.
a. Notice of Contest. In accordance with the
Occupational Safety and Health Review Commission
(OSHRC) revised Rules of Procedure (51 F.R. 32020,
No. 173, September 8, 1986), the original notice of
contest, together with copies of all relevant documents
(all contested Citations and Notifications of Penalty
and Notifications of Failure to Abate Alleged
Violation, and proposed additional penalty) shall be
transmitted by the Area Director to the OSHRC post-marked
prior to the expiration of 15 working days after
receipt of the notice of contest (29 CFR 2200.33).
The Regional Solicitor shall be consulted in
questionable cases.
E. 1. a. (1) The envelope that contained the notice of
contest shall be retained in the case file
with the postmark intact.
(2) Where the Area Director is certain that the
notice of contest was not mailed; i.e.,
postmarked, within the 15-working-day period
allowed for contest, the notice of contest shall
be returned to the employer who shall be advised
of the statutory time limitation. The employer
shall be informed that OSHRC has no jurisdiction
to hear the case because the notice of contest
was not filed within the 15 working days allowed
and, therefore, that the notice of contest will
not be forwarded to the OSHRC. A copy of all
untimely notices of contest shall be retained in
the case file.
(3) If the notice of contest is submitted to the
Area Director after the 15-working-day period,
but the notice contests only the reasonableness
of the abatement period, it shall be treated as
a Petition for Modification of Abatement and
handled in accordance with the instructions in
D.2. of this chapter.
(4) If written communication is received from an
employer containing objection, criticism or
other adverse comment as to a citation or
proposed penalty, which does not clearly appear
to be a notice of contest, the Area Director
shall contact the employer as soon as possible
to clarify the intent of the communication.
Such clarification must be obtained within 15
working days after receipt of the communication
so that if, in fact, it is a notice of contest,
the file may be forwarded to the Review Commission
within the allowed time. The Area Director
shall make a memorandum for the case file
regarding the substance of this communication.
(5) If the Area Director determines that the
employer intends the document to be a notice of
contest, it shall be transmitted to the OSHRC in
accordance with E.1.a., above. If the employer
did not intend the document to be a notice of
contest, it shall be retained in the case file
with the memorandum of the contact with the
employer. If no contact can be made with the
employer, communications of the kind referred to
in E.1. a.(4), above, shall be timely
transmitted to the OSHRC.
(6) If the Area Director's contact with the employer
reveals a desire for an informal conference, the
employer shall be informed that an informal conference
does not stay the running of the 15-working-day period
for contest.
E. 1. b. Documents to Executive Secretary. The
following documents are to be transmitted within
the 15-working day time limit to the Executive
Secretary, Occupational Safety and Health Review
Commission, 1825 K Street, N.W., Washington, D.C.
20006:
NOTE: In order to give the Regional Solicitor the
maximum amount of time to prepare the
information needed in filing a complaint with
the Review Commission, the notice of contest and
other documents shall not be forwarded to the
Review Commission until the final day of the
15-working-day period.
(1) All Notices of Contest. The originals are
to be transmitted to the Commission and a copy
of each retained in the case file.
(2) All Contested Citations and Notices of
Proposed Penalty or Notice of Failure to Abate
Issued in the Case. The signed copy of each
of these documents shall be taken from the case
file and sent to the Commission after a copy of
each is made and placed in the case file.
(3) Certification Form. The certification form
shall be used for all contested cases and a copy
retained in the case file. It is essential that
the original of the certification form, properly
executed, be transmitted to the Commission.
(a) When listing the Region number in the
heading of the form, do not use Roman
numerals. Use 1, 2, 3, 4, 5, 6, 7, 8, 9, or
10. Insert "C" in the CSHO Job Title block
if a safety CSHO or "I," if a health CSHO.
(b) Item 3 on the certification form shall be
filled in by inserting only the word
"employer" or "employee" in the space
provided. This holds true even when the
notice of contest is filed by an attorney
for the party contesting the action. An
item "4" shall be added where other documents,
such as additional notices of contest, are
sent to the Commission.
(c) Use a date stamp with the correct date
for each item in the document list under
the column headed "Date".
(d) Be sure to have the name and address of the
Regional Solicitor or attorney who will
handle the case inserted in the box
containing the printed words "FOR THE
SECRETARY OF LABOR." The Commission
notifies this person of the hearing date and
other official actions on the case. If this
box is not filled in by the Area Director,
delay in receipt of such notifications by
the appropriate Regional Solicitor or
attorney could result.
E. 1. b. (4) Documents Sent to OSHRC. In most cases,
the envelope sent to the OSHRC Executive
Secretary will contain only four
documents--the certification form, the
employer's letter contesting OSHA's action,
and a copy of the Citation and Notification
of Penalty Form (OSHA-2) or of the Notice of
Failure to Abate Form (OSHA-2B).
c. Petitions for Modification of Abatement Dates
(PMAs).
(1) In accordance with the OSHRC Rules of Procedure
the Secretary or duly authorized agent shall
have the authority to approve petitions for
modification of abatement filed pursuant to 29
CFR 2200.37(b) and (c).
(2) The purpose of this transfer of responsibility
is to facilitate the handling and to expedite
the processing of PMAs to which neither the
Secretary nor any other affected party objects.
The Area Director who issued the citation is the
authorized agent of the Secretary and shall
receive, process, approve, disapprove or
otherwise administer the petitions in accordance
with 29 CFR 2200.37 and 2200.38, 29 CFR
1903.14a, and D.2. of this chapter. In
general, the Area Director shall:
(a) Ensure that the formal requirements of
2200.37(b) and (c) and 1903.14a are met.
(b) Approve or disapprove uncontested PMA's
within 15 working days from the date the
petition was posted where all affected
employees could have notice of the petition.
(c) Forward to the Review Commission within 10
working days after the 15-working-day
approval period all petitions objected to by
the Area Director or affected employees.
(d) File a response setting forth the reasons
for opposing granting of the PMA within 10
working days after receipt of the docketing
by the Commission.
E. 2. Transmittal of File to Regional Solicitor.
a. Notification of the Regional Solicitor. Under the
Commission's Rules of Procedure the Secretary of Labor
is required to file a complaint with the Commission
within 20 calendar days after the Secretary's receipt
of a notice of contest.
b. Subpoena. The Commission's rules provide that any
person served with a subpoena, whether merely to
testify in any Commission hearing or to produce records
and testify in such hearing, shall, within 5 days after
the serving of the subpoena, move to revoke the
subpoena if the person does not intend to comply with
the subpoena. These time limitations must be complied
with, and expeditious handling of any subpoena served
on OSHA employees is necessary. In addition, OSHA
personnel may be subpoenaed to participate in
nonthird-party OSHA actions. In both types of cases,
the Solicitor will move to revoke the subpoena on OSHA
personnel. Therefore, when any such subpoena is served
on OSHA personnel, the Regional Solicitor shall
immediately be notified by telephone.
3. Communications with Commission Employees. There shall
be no ex parte communication, with respect to the merits of
any case not concluded, between the Commission, including
any member, officer, employee, or agent of the Commission
who is employed in the decisional process, and any of the
parties or interveners. Thus, CSHOs, Area Directors,
Regional Administrators, or other field personnel shall
refrain from any direct or indirect communication relevant to
the merits of the case with Administrative Law Judges or
any members or employees of the Commission. All inquiries
and communications shall be handled through the Regional
Solicitor.
4. Dealings With Parties While Proceedings Are Pending
Before the Commission.
a. Clearance with Regional Solicitor. After the
notice of contest is filed and the case is within the
jurisdiction of the Commission, there shall be no
investigations of or conferences with the employer
without clearance from the appropriate Regional
Solicitor. Such requests shall be referred promptly to
the Regional Solicitor for a determination of the
advisability, scope and timing of any investigation,
and the advisability of and participation in any
conference. To the maximum extent possible, there
shall be consultation with the Solicitor on questions
of this nature so as to insure no procedural or legal
improprieties.
E. 4. b. Inquiries. Once a notice of contest has been
filed, all inquiries relating to the general
subject matter of the Citation and Notification of
Penalty raised by any of the parties of the
proceedings, including the employer and affected
employees or authorized employee representative,
shall be referred promptly to the Regional
Solicitor. Similarly, all other inquiries, such as
from prospective witnesses, insurance carriers,
other Government agencies, attorneys, etc., shall
be referred to the Regional Solicitor.
| NOTICE: This is an OSHA Archive Document, and no longer represents OSHA Policy. It is presented here as historical content, for research and review purposes only. |
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