OSHA Field Inspection Reference Manual CPL 2.103
Section 8 - Chapter IV. Post-Inspection Procedures


OSHA Field Inspection Reference Manual - Table of ContentsOSHA Field Inspection Reference Manual - Table of Contents
  • Chapter Number: IV
  • Chapter Title: Post-Inspection Procedures

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NOTICE: This is an OSHA Archive Document, and no longer represents OSHA Policy. It is presented here as historical content, for research and review purposes only.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.



Archive Notice - OSHA Archive

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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