- Record Type:OSHA Instruction
- Current Directive Number:CPL 02-00-090
- Old Directive Number:CPL 2.90
- Title:Guidelines for Administration of Corporate-Wide Settlement Agreements.
- Information Date:
OSHA Instruction CPL 2.90 June 3, 1991 Directorate of Compliance Programs
Subject: Guidelines for Administration of Corporate-Wide Settlement Agreements
A. Purpose. The purpose of this instruction is to provide guidelines for the administration of corporate-wide settlement agreements (CSAs) by OSHA. The guidelines set forth in this instruction will be adopted into the Field Operations Manual (FOM).
B. Scope. This instruction applies OSHA-wide.
- 1. OSHA Instruction CPL 2.45B, June 15, 1989, the Revised Field
Operations Manual (FOM).
- 2. OSHA Instruction STP 2.22A, May 14, 1986, State Plan Policies
and Procedures Manual.
- 3. Occupational Safety and Health Act (the Act).
- 4. OSHA Instruction CPL 2.80, October 1, 1990, Handling of Cases
to be Proposed for Violation-by-Violation Penalties.
D. Action. OSHA National Office Directors, Regional Administrators and Area Directors shall ensure that the guidelines, policies and procedures set forth in this instruction are followed with regard to CSAs.
- 1. This instruction delineates roles and responsibilities for
field and National Office components; it also describes the corresponding
responsibilities as they will be administered by the Office of the Solicitor
- 2. Procedures for maintenance of agreements, monitoring,
coordination and reporting are provided.
E. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:
- 1. Ensure that this change is promptly forwarded to each State
designee using a format consistent with the plan change two-way memorandum in
Appendix F, OSHA Instruction STP 2.22A, CH-2.
- 2. Explain the technical content of this change to the State
designee as required.
- 3. Advise the State designees of the following:
- a. That, although it is not feasible to involve States in the
negotiation of Federal CSAs, OSHA will notify a State routinely whenever such
agreements are being negotiated with an employer who also has facilities
under the State's jurisdiction. The Regional Administrator will provide the
State a copy of any agreements that result.
- b. That CSAs negotiated by OSHA are not binding on State plans
nor does OSHA intend to monitor facilities of a covered employer that are
located within State plan jurisdictions. However, States are encouraged to
participate by honoring the terms of such CSAs where the covered employer
also has facilities under the State's jurisdiction, or the State may
negotiate its own individual agreement with these employers.
- c. That States can negotiate their own State-wide CSAs under
procedures which are at least as effective as the requirements set out in
this instruction. States shall keep the Regional Administrator informed of
any ongoing State negotiations potentially leading toward a CSA or any other
settlement negotiations with a company with which OSHA is engaged in such
- d. That, if a State chooses to participate in either fashion
in the CSA procedures, the State must follow monitoring procedures comparable
to OSHA's as set forth in I. of this instruction for establishments within
the State and must make the monitoring results available to the Regional
Administrator for review and evaluation.
- 4. Ensure that State designees acknowledge receipt of this Federal
program change in writing to the Regional Administrator as soon as the
State's intention is known but not later than 70 calendar days after the date
of issuance (10 days for mailing and 60 days for response).
- a. This acknowledgment shall include notification of whether
or not, after case-by-case consideration, the State intends to honor the CSAs
concluded by OSHA for covered employers' facilities within the
- b. In addition, this acknowledgment shall include the State's
intentions with regard to establishing a State-wide CSA policy comparable to
that established by this instruction or developing an alternative policy
which is at least as effective as OSHA's.
- c. A plan supplement documenting State adoption must be
submitted within 6 months.
- (1) If a State intends to follow the procedures and
guidelines described in this instruction, the State must submit either a
revised version of this instruction, adapted as appropriate to reference
State law, regulations and administrative structure, or a cover sheet
describing how references in this instruction correspond to the State's
- (2) The State's acknowledgment letter may fulfill the plan
supplement requirement if the appropriate documentation is
- (3) If the State adopts an alternative to Federal
procedures, the State's plan supplement must identify and provide a rationale
for all substantial differences from Federal procedures so that OSHA can
judge whether a different State procedure is as effective as the
corresponding Federal procedure.
- 5. After Regional review of the State plan supplement and
resolution of any comments thereon, forward the State submission to the
National Office in accordance with established procedures. The Regional
Administrator shall provide a judgment on the relative effectiveness of each
substantial difference in the State plan change and an overall assessment
thereof with a recommendation as to approval or disapproval by the Assistant
- 6. Inform the State whenever OSHA initiates negotiations
potentially leading to a CSA and provide copies of federally executed CSAs to
the State whenever such agreements are concluded with an employer who also
has facilities under the State's jurisdiction.
- 7. Establish with State designees appropriate procedures for:
- a. Prompt notification by States observing the terms of any
OSHA CSA. If a State elects to honor a Federal CSA, the Regional
Administrator shall offer to provide technical assistance in monitoring the
agreement and shall ensure that the State conducts monitoring of the CSA in a
manner consistent with the guidelines in J. of this
- b. Submission of any State-negotiated agreements with
employers covered by an OSHA CSA or of any State-wide CSAs negotiated by the
State within 10 days after execution.
- c. Making monitoring results available to OSHA.
- 8. The Regional Administrator shall ensure that any CSA negotiated
by a State which is related to an OSHA CSA is thoroughly reviewed by the
Regional staff as well as by the Regional Solicitor. If any question arises
as a result of that review, the CSA shall be forwarded to the Directorate of
Compliance Programs (DCP) for additional review. Any problems found shall be
discussed with the State and a resolution reached.
- 9. The Regional Administrator shall ensure that the results of
State monitoring of CSAs which are related to OSHA CSAs are carefully
reviewed and evaluated and that abatement required under the CSA is being
- 10. The Regional Administrator shall ensure that an electronic copy
of any State-negotiated CSA is sent to DCP for entry into the OSHA
Computerized Information System (OCIS).
- 1. As a matter of policy, OSHA has established corporate-wide
settlement agreements as an appropriate and useful compliance procedure in
dealing with certain employers who have been found in violation of the Act.
The Agency believes that CSAs can result in significant improvement in the
safety and health environment of American workers.
- 2. Formal settlement agreements have been and remain a part of
OSHA's standard operating procedures. (See the FOM, Chapter V, H.)
- a. Such agreements, when entered into on a corporate-wide
basis, enable OSHA to obtain formal recognition by the employer of the cited
hazards and formal acceptance of the obligation to seek out and abate those
hazards throughout all workplaces under its control.
- b. During the past several years, OSHA has made increasing use
of CSAs to diffuse the impact of its resources more widely and thus expend
them more efficiently, to avoid costly and protracted litigation and thereby
to ensure earlier and more uniform abatement of hazards and protection of
- 3. Concurrently with the evolution of CSA policy, the Agency has
undertaken a policy of in-depth inspections for certain employers and for
safety and/or health hazards.
- a. In many of these cases--known informally as "egregious"
cases--OSHA has performed lengthy inspections as a result of which employers
have been found to have willfully and flagrantly violated recordkeeping
regulations, health and safety standards of the Act, and the general duty
clause of the Act [Section 5(a)(1)]. In such cases, larger penalties have
been proposed using violation-by-violation citation and penalty procedures.
(See OSHA Instruction CPL 2.80.)
- b. These cases typically require extensive use of staff
resources; concern for conservation of these resources demands that every
effort be made to ensure the broadest possible effect from them.
Corporate-wide abatement has been a very effective means of extending the
effect of these cases. Without such abatement, the alternative is a series
of similar inspections in each corporate location with similar investments of
staff time and expense.
- c. With a CSA, abatement requirements are extended to all
covered locations of the company, and OSHA gains the administrative
flexibility of deploying its inspection resources more efficiently, provided
that obligations to monitor the abatement process are fully
- 4. Most recently, CSAs have attained national prominence. The
policy began with a series of cases involving extensive recordkeeping
violations, resulting in CSAs wherein employers agreed to adhere to OSHA's
recordkeeping regulations and guidelines.
- a. As a matter of written policy, OSHA has routinely settled
such cases on a corporate-wide basis wherever appropriate. The Solicitor of
Labor (SOL) has delegated authority to negotiate CSAs for recordkeeping cases
to Regional Solicitors to facilitate the implementation of this
- b. Because recordkeeping regulations and guidelines are
straightforward and relatively unambiguous, they can be implemented uniformly
in a variety of workplaces, without regard to differences in product,
establishment size, or technology.
- (1) CSAs for recordkeeping violations are an ideal
compliance vehicle, in that the expectations of OSHA and the employer can
easily be reduced to writing, monitored, and enforced.
- (2) Predictably, more technically based violations are less
easily subject to such agreements and require more complex treatment,
including more intermediate abatement milestones and more intensive
monitoring both by OSHA and the employer.
- 5. OSHA recognizes that a CSA is the product of a voluntary
negotiation process and, therefore, represents the mutual commitments of all
parties, including OSHA, the employer and, where present, the union or other
authorized employee representative.
- a. OSHA further believes that such mutual commitment to the
abatement of cited safety and health hazards is critical to the success of
the CSA policy and that every effort must be made to obtain that mutual
- b. OSHA's commitment to the success of this process must be
manifested throughout the life of the CSA by a spirit of cooperation and
assistance with both employers and employees.
- c. OSHA therefore recommends to employers that, wherever
possible, the union or other authorized employee representative be included
in both the process of negotiating the CSA and in the process of monitoring
G. Negotiation and Execution of Corporate-Wide Settlement Agreements. In general, the following guidelines shall apply to all cases involving potential CSAs:
- 1. CSAs shall normally not be considered in cases other than those
involving a violation-by-violation citation and penalty. Moreover, CSAs
shall normally not be considered for areas of safety and health other than
those that have been the subject of a citation. Exceptions to these general
norms shall be considered on a case-by-case basis.
- 2. If OSHA or SOL is approached by the company seeking a CSA, DCP
shall be notified through the Office of Field Programs (OFP) as soon as
- a. As soon as the company makes its desire for a CSA known,
OFP shall screen the Integrated Management Information System (IMIS) for open
cases involving the company and canvass the Regional Administrators to
determine the current status of any such open cases.
- b. Once negotiations on a CSA begin, OFP shall notify all of
the Regional Administrators and, after consultation with DCP and SOL, shall
provide instructions for dealing with any current inspections under way in
establishments potentially to be covered by the CSA.
- c. The Regional Administrator shall inform the State plan
States within the Region of any CSA being negotiated which potentially
affects establishments located within their States. Any relevant information
provided by the State shall be forwarded to DCP through OFP.
- d. Where an authorized employee representative has elected
party status, its input shall be sought and considered during the CSA
- 3. The Regional Offices of the Solicitor have been delegated
authority to negotiate and enter CSAs in the following situations:
- a. Cases involving recordkeeping only.
- (1) Such settlements shall not be executed without the
prior knowledge, involvement, and concurrence of the Regional
- (2) The Regional Administrator is responsible for informing
DCP of the progress of the negotiations through OFP and for obtaining
relevant input from other affected Regional
- (3) Upon execution of a recordkeeping CSA, the Regional
Administrator shall inform DCP through OFP and transmit a copy for entry into
OCIS. DCP shall provide an electronic copy to the Salt Lake City Technical
Center, which shall be entered into OCIS within 5 days of
- b. Cases involving companies all of whose facilities are
located within the jurisdictional boundaries of a single
- (1) Such settlements shall not be executed without the
prior knowledge, involvement, and concurrence of the Regional
- (2) Draft copies of proposed language for such CSAs shall
be obtained by the Regional Administrator as early in the negotiation process
as practicable and sent to DCP for review. DCP shall be responsible for
sharing them with SOL.
- (3) The concurrences of DCP and SOL are required at the
onset of negotiations, the time of the first draft and any penalty reduction
offer, and prior to signature of the final document.
- 4. In cases where a CSA is to be negotiated at the National
Office, DCP shall contact affected Regional Administrators and provide them
with an opportunity for input.
- a. Such CSAs shall not be executed without the prior
knowledge, involvement, and concurrence of DCP.
- b. DCP shall obtain the concurrence of the Assistant Secretary
prior to the execution of CSAs.
- 5. DCP shall transmit copies of all CSAs to the Regional
Administrators involved through OFP as soon as they are executed (signed by
all parties) and shall ensure that an electronic copy is provided to the Salt
Lake City Technical Center within 60 days of the effective date. The Salt
Lake City Technical Center shall add the copy of the CSA to OCIS within 5
days of receipt.
- 6. Regional Administrators shall establish procedures with the
Regional Solicitor to obtain a signed copy of CSAs executed at the Regional
level. (See G.3.) The Regional Administrator shall forward a copy of such
CSAs to DCP. DCP shall ensure that an electronic copy is provided to the
Salt Lake City Technical Center for entry into OCIS within 60 days of the
effective date. The Salt Lake City Technical Center shall add the copy of
the CSA to OCIS within 5 days of receipt.
H. Administrative Content of Corporate-Wide Settlement Agreements. CSAs typically contain both administrative and technical provisions. The following provisions shall be considered for inclusion in every CSA. Final terms will depend on the individual facts and circumstances of each case.
- 1. The technical provisions of CSAs deal with the specific hazards
and citations which are the subject of the settlement. These provisions
shall detail the specific milestones (abatement steps) that are to be
accomplished, the dates by which they are to be completed, and the length of
- a. In particularly complex situations or where an employer has
been notably remiss in meeting past abatement commitments, consideration
shall be given to requiring the employer to hire an independent consultant to
plan, oversee, and verify abatement actions.
- b. Where the nature of the violation indicates the failure of
a corporate-wide system or process, consideration shall be given to requiring
a corporate-wide self-audit with a certified report to OSHA of the
- 2. The administrative provisions deal with the procedures whereby
the CSA is to be enforced. These provisions shall address the following
- a. Abatement. CSAs typically involve long-term and
multi-stage abatements. Such abatement is generally governed by the FOM,
Chapter V, H.3. The terms and stages of such abatements shall be explicitly
delineated in each CSA.
- b. Monitoring. OSHA's right of entry for monitoring purposes
shall be explicitly recognized in every agreement.
- (1) OFP shall establish a plan for monitoring the company's
abatement progress under the CSA in accordance with the provisions of
- (2) This plan shall include the scheduling of inspections,
as applicable, for initial (baseline) monitoring, periodic monitoring during
the life of the agreement, and followup after completion.
- (3) CSAs shall list each corporate location covered by the
agreement with the name of its manager and its address. If the company
wishes to add additional establishments later for some legitimate reason, it
may do so only after contacting the Solicitor's office and requesting such an
- (4) A list of all locations within State plan States with
essentially the same operations as locations covered under the CSA shall also
be provided to the Regional Administrator through OFP for distribution to the
- c. Enforceability. Each CSA shall contain appropriate
provisions for enforcement of the agreement.
- (1) CSAs shall contain the employer's assent that the CSA
is a final order of the Occupational Safety and Health Review Commission
(OSHRC). CSAs shall normally be filed with the OSHRC.
- (2) In cases where conditions warrant such action (e.g.,
cases where there has been a previous repeated violation or failure to
abate), the employer may be required to consent to a Section 11(b) order at
the time of settlement.
- (3) Depending on circumstances, CSAs may require the
employer to certify the accuracy of any abatement reports required by
subsection H.2.e. of this instruction and submitted to OSHA; such
certification may provide the basis for a referral for criminal prosecution
for falsification under Section 17(g) of the Act if evidence of such
falsification can be established. (See the FOM, Chapter
- (4) CSAs shall provide terms for Petitions for Modification
of Abatement (PMAs) by the employer if they differ from the provisions of the
FOM, Chapter III, E.9.
- (a) The company shall file a PMA with the Area Director
having jurisdiction over the affected workplace no later than the agreed-upon
date specified by the CSA.
- (b) If a PMA is received from an employer covered by a
CSA related to an action required under the CSA, the Area Director shall
ensure that all of the requirements of a PMA have been met at the covered
establishment in accordance with the FOM. This shall specifically include
provision of notice to affected employees or their authorized representative
as described in the FOM, Chapter III., E.9.c.(5)(b).
- (c) The Area Director shall request additional time (at
least 45 days) from the OSHRC so that an Agency position on the PMA can be
- (d) Upon assurance that all of the requirements set
forth in the FOM for submitting PMAs have been met at the establishment
submitting the PMA, the Area Director shall immediately forward a copy of the
PMA to OFP through the Regional Administrator, with a recommendation as to
whether it should be granted or denied. The Area Director shall include any
objections received from affected employees or their authorized
representative in accordance with the FOM, Chapter III.,
- (e) The OFP coordinator (See I.1.b.(2)(a).) shall
notify all affected Regional Administrators of the receipt of a
- (f) The coordinator shall consult with the Regional
Administrator, DCP, and SOL prior to reaching a decision on the
- 1 If OFP decides to approve the PMA, all affected
Area Directors shall be notified as soon as practicable through the Regional
- 2 The Area Director originally receiving the PMA
shall proceed in accordance with the FOM, Chapter III,
- 3 If OFP decides to object to the PMA, the Area
Director originally receiving the PMA shall be immediately notified through
the Regional Administrator.
- 4 The Area Director shall then proceed in accordance
with the FOM, Chapter III, E.9.g.(5).
- 5 Copies of all granted PMAs shall be sent to
affected Regional Administrators for dissemination to the appropriate Area
- (5) In the absence of a PMA, the employer's failure to
accomplish any action or to adhere to any agreed-upon milestone at any
covered location by the date for abatement agreed upon in the CSA may be
considered for enforcement in accordance with K. of this
- d. Inspections. OSHA's normal inspection scheduling
procedures are NOT affected by CSAs for parts of the establishment(s) or for
hazards not explicitly included in the CSAs.
- (1) Thus, a CSA which addresses abatement of ergonomics
hazards on specific production lines or areas of a plant does not preclude
inspection for and citation of other safety and health hazards which are not
included in the agreement.
- (2) The conduct of unprogrammed inspections is not normally
affected by CSAs, although there may be limitations on the extent to which
citations may be issued relative to conditions covered by the
- (a) Formal complaints concerning conditions covered by
the CSA for which valid progress reports have been received do not require an
- (b) Instead, the Area Director shall contact the
complainant and inform him/her of the situation.
- (c) If the complainant insists that the company's
reports do not accurately describe the action being taken in the
establishment, this fact shall be reported to the coordinator for
consideration in scheduling followup monitoring
- (3) If a programmed or an unprogrammed inspection is to be
conducted in an establishment covered under a CSA, the Area Director shall
contact the Regional Administrator for guidance prior to completing onsite
- (a) In such cases the Regional Administrator shall
contact the OFP coordinator for a determination as to whether a monitoring
inspection should be conducted to verify adherence to terms of the agreement
and, if so, to what extent.
- (b) The coordinator shall consult with the DCP in
making this determination.
- (c) If a monitoring inspection is not to be conducted,
the Area Director shall be so informed and shall conduct the investigation in
accordance with current procedures.
- e. Periodic Reports. CSAs shall include specific requirements
for submission of periodic written progress reports to OSHA by the employer.
(See the FOM, Chapter III, E.7. and 8.)
- (1) Progress reports shall be required on a periodic basis
when abatement dates are beyond one year from the date of the opening
- (a) Such reports shall address in sufficient detail the
activities undertaken by the company to implement the requirements of the
CSA, including such information as:
- 1 The number of employees receiving
- 2 The number of employees receiving medical treatment
and the type of treatment given;
- 3 The progress of job analyses, symptom surveys, and
- 4 Description of control measures implemented,
including engineering controls and administrative and work practice
- 5 Description of steps taken to correct recordkeeping
- NOTE: The company shall be encouraged to submit
the required documentation in the form of videotapes and
- (b) Other specific reports linked to abatement
milestones (such as implementation of a training program, completion of an
engineering study, or implementation of a medical management program) shall
normally be required as appropriate.
- (c) The timing of such reports shall be linked as much
as possible to a specific calendar date as determined by the sequence of
- (2) Certain reports required of employers will be due only
to OFP while others will be due to the Area Offices having jurisdiction over
the covered establishments, including State plan offices as
- (a) Reports covering program requirements with
corporate-wide application (e.g., medical management programs, training
programs, hazard evaluation programs, general engineering control strategies)
shall be sent for evaluation to OFP.
- 1 OFP shall be responsible for coordinating a review
and evaluation of the program elements submitted by the company by
appropriate National Office units, including DCP and the Directorate of
Technical Support (DTS).
- 2 OFP shall also be responsible for disseminating the
results of National Office evaluations to the affected Regional
Administrators, and shall provide copies of the reports received to them upon
- 3 If any of the reports required to be sent to the
National Office under the CSA are not received when they are due, the
coordinator shall contact the company within 10 days after the due date to
attempt to determine the reason for the delay and when the report might be
- 4 If the reports are still not received within a
reasonable time or if the company responds (without adequate justification)
that no report will be submitted, the coordinator shall contact the Regional
Administrator, DCP, and SOL to determine a suitable
- (b) Progress reports covering the effectiveness of
actual in-plant implementation of these corporate program elements shall be
sent to the Area Offices having jurisdiction over the covered
- 1 The Area Director shall be responsible for
reviewing and evaluating the implementation progress being made by the
covered establishment as described in the periodic progress
- 2 Each periodic progress report shall be carefully
reviewed and the company's abatement progress (as required under the CSA)
- 3 The Area Director shall also discuss the results of
the review of the periodic progress report with the company and with the
authorized employee representative, if any, and ask for any additional
information which might be helpful in the evaluation. Particular attention
shall be paid to the abatement progress that the company has made as to the
particular milestones agreed upon in the CSA. The Area Director shall
discuss in particular any weakness or deficiencies.
- 4 Within 30 calendar days of receipt of the periodic
progress report, the Area Director shall prepare a written statement of the
status of the company's compliance with the agreement and forward it to the
- 5 The Regional Administrator in turn shall summarize
the Area Directors' statements and forward the summary to OFP within 15
calendar days of receipt of the statements from the Area Directors. Any
inconsistencies or items that should be explored with other Regions shall be
identified for the OFP coordinator.
- 6 OFP shall review the Regional summaries for each
CSA and take appropriate action to ensure complete and consistent
- (3) DCP shall ensure, where appropriate, that each
agreement specifies which reports are to be sent to the National Office and
which are to be sent to the Area Offices. The employer also may be requested
to provide additional copies of reports to each affected Regional Office, the
Associate Solicitor of Labor, and to any other affected parties such as
- (4) If any of the reports required to be sent to the Area
Office under the CSA are not received when they are due, or if reports are
received but are judged to be inadequate, the Area Director shall contact the
company within 10 days after the due date to attempt to determine the reason
for the delay and/or the inadequacy and when the report might be
- (a) If suitable reports are still not received within a
reasonable time or if the company responds (without adequate justification)
that no report will be submitted, the Area Director shall contact the
Regional Administrator for advice.
- (b) In such cases the Regional Administrator shall
confer with the Regional Solicitor and the Director of Field Programs. OFP,
in consultation with DCP and SOL, shall decide what action shall be
- f. Termination. Each CSA shall contain appropriate provisions
detailing the circumstances under which it may be terminated and procedures
for so doing.
I. Roles and Responsibilities. The purpose of this section is to outline the major roles and responsibilities of OSHA National Office and field components with respect to CSAs in addition to those already indicated.
- NOTE: CSAs are a joint product of SOL and OSHA. OSHA,
having prepared the case and issued citations, coordinates further input from
the field and other Agency staff during the settlement process; SOL is
responsible for the negotiation of the agreement.
- l. National Office.
- a. Directorate of Compliance Programs. The general function
of DCP is to provide guidance to field components relating to compliance
policies and procedures and to communicate such policies and procedures to
- (1) Coordination. In coordinating CSAs, DCP
- (a) Send copies of all signed CSAs with a summary of
the major elements, including pertinent timetables, to the Regional
Administrators through OFP within 30 days of receipt from SOL. A copy of the
summary and timetables shall simultaneously be provided to
- (b) Keep copies of all CSAs on file, both those
negotiated at the National Office and those negotiated at the Regional
- (c) Provide copies of all CSAs and target abatement
dates to the Salt Lake City Technical Center within 30 days of the CSA's
effective date, and ensure that the Salt Lake City Technical Center makes
this information available electronically to all OSHA offices, within 5 days
- (2) Contact. For OSHA's field organization, the point of
contact for information on CSAs under negotiation is DCP's Office of General
Industry Compliance Assistance. The point of contact for CSAs after execution
is OFP's CSA coordinator.
- (3) Interpretation. Should it become necessary to resolve
differences (between OSHA and the company or between different OSHA field
units) regarding the interpretation of the provisions of a CSA, the matter
shall be referred to DCP through OFP.
- (4) Negotiation. CSAs are negotiated on OSHA's behalf by
the Office of the Associate Solicitor of Labor (SOL).
- (a) During the negotiation of these agreements, DCP
serves as the contact point for SOL regarding requests for information from
the field or National Office sources.
- (b) DCP normally represents the Agency during the
negotiation process. It is DCP's responsibility to keep the Deputy Assistant
Secretary, OFP, and (through OFP) the affected Regional Administrators
apprised of the progress of negotiations to obtain their input as well as
that of the affected State plan States within their
- (c) DCP shall ensure, to the extent feasible, that
verifiable abatement milestones are included in the CSA to enable effective
monitoring of the agreement.
- b. Office of Field Programs. OFP has two major roles in the
administration of CSAs. These are (1) the allocation of resources and (2)
the coordination and evaluation of monitoring activities.
- (1) Resource Allocation. OFP is responsible for ensuring
that adequate resources are allocated by the Regional Administrators for the
monitoring of CSAs in accordance with current policy.
- (a) OFP shall ensure that Regional Administrators
conduct monitoring as required by the guidelines provided in J. of this
instruction and as indicated in each CSA.
- (b) OFP shall ensure that Regional and Area workplans
are adjusted to reflect monitoring requirements.
- (2) Coordination and Evaluation of Monitoring Activities.
The term refers to the process of ensuring that abatement action conducted
under CSAs is tracked effectively and consistently across all covered
companies and sites.
- (a) OFP shall appoint a CSA monitoring coordinator (the
coordinator) to track CSAs and make determinations on the progress being made
by the covered companies, to ensure an exchange of information among field
offices with covered establishments and between the National Office and the
field offices, and to set priorities for monitoring.
- (b) The coordinator, in conjunction with the affected
Regional Administrators, shall outline a monitoring plan for each employer as
soon as practicable (but no more than 60 days) after the effective date of
- 1 Coordinate the review of corporate abatement
reports submitted to the National Office.
- 2 Review Regional summaries of employer abatement
reports and take appropriate action to ensure timely, complete, and
- (d) The coordinator shall ensure that frequent, open
and effective communication between the National Office and the field offices
as well as among affected Regional Administrators (and Area Directors) occurs
regarding all issues related to CSAs; in particular, abatement steps and time
frames required of the company and the results of monitoring visits, so as to
support a consistent acceptance or rejection of specific means of
- 1 Such communication may include conference calls or
periodic meetings among the affected Regions.
- 2 Where necessary and when resources permit,
cross-Regional monitoring visits shall be encouraged to ensure complete
understanding of the corporate-wide abatement
- (3) Acceptance of Abatement Measures. It is difficult to
achieve absolute uniformity throughout the corporation in abatement methods
because of local conditions.
- (a) Because of these differences in abatement methods,
legitimate disagreements may arise regarding the adequacy of abatement
measures taken under CSAs by different establishments of the same
- (b) It is expected that most abatement issues can be
resolved through OFP coordination among Regional Administrators and Regional
- (c) Cases that give rise to differences which cannot be
resolved in this manner, or which involve major policy resolutions, shall be
resolved by OFP in consultation with DCP and SOL.
- c. Regional Administrators. Regional Administrators are
responsible for input into and implementation of CSAs within their
- (1) The Regional Administrator shall implement monitoring
plans for covered establishments pursuant to each CSA in accordance with J.
of this instruction. An estimate of monitoring obligations shall be included
with each year's workplan.
- (2) The Regional Administrator shall ensure that Area
Directors having jurisdiction carefully review all reports submitted by or on
behalf of workplaces covered under a CSA for accuracy, completeness, and
- (3) The Regional Administrator shall ensure that all
reports submitted by the company under a CSA or generated by OSHA in
evaluating those reports are distributed to State plans with facilities of
the covered company within their jurisdictions. (See
- (4) The Regional Administrator shall monitor State program
involvement with CSAs (e.g., acceptance of OSHA agreements as negotiated or
negotiation of separate agreements and monitoring of abatement progress in
- (5) The Regional Administrator shall provide the OFP
coordinator with summaries of all reports submitted by the company under a
CSA, or generated by OSHA in evaluating those reports, or provided by State
plans with facilities of the covered company within their
- (6) In CSA cases, legitimate disagreements may arise
regarding the adequacy of abatement measures taken under CSAs by different
establishments of the same corporation. When such disagreements arise, the
Regional Administrator shall bring them to the attention of
J. Monitoring of Corporate-wide Settlement Agreements. The success of the CSA program depends on abatement of cited violations by employers covered by such agreements. It is essential that such abatement be comprehensive and consistent across all of the covered employer's facilities.
- 1. All parties to CSAs must recognize that OSHA is committed to
monitoring the employer's abatement progress to ensure that violations are
properly corrected, particularly when previously recalcitrant employers are
involved or in complex abatement situations where new technologies are
emerging and abatement may be hard to obtain in practice. In all monitoring
inspections, OSHA shall ensure that employees or their authorized
representative are afforded the opportunity to participate as described in
the FOM, Chapter III., D.2.
- 2. Monitoring of CSAs is likely to require a considerable
commitment of resources and all components of the agency must be prepared to
devote the necessary resources to the monitoring effort.
- 3. Effective monitoring requires baseline, periodic, and followup
- a. Baseline Monitoring. Baseline monitoring is monitoring for
the purpose of determining the extent to which the hazardous condition(s)
covered in the CSA exist in a particular worksite. Such monitoring may be
required of the company under the terms of the CSA, depending on the nature
of the violations.
- (1) When the company is required to conduct initial or
baseline monitoring at each covered location, it must gather the information
specified in the agreement, and provide it to the Area Office having
- (a) If the company does not conduct the required
baseline survey of its facility, the Area Director shall determine the
- (b) If the reasons are not satisfactory and the company
still refuses to conduct the baseline survey, the Area Director shall so
inform the Regional Administrator.
- (c) The Regional Administrator shall evaluate the
company's rationale for not conducting the survey, and if judged not
adequate, shall refer the matter to OFP for
- (d) OFP shall consult with DCP and in deciding what
action is appropriate.
- (2) When the company provides baseline data, an onsite OSHA
baseline monitoring inspection of the covered establishment will not normally
be necessary unless the Area Director has reason to believe that the data is
- (3) In cases where such monitoring is not required of the
company; e.g., where OSHA is already familiar with conditions in the plant,
the Area Director having jurisdiction over the covered establishments shall
determine the need for a baseline monitoring inspection and, if judged
necessary and after consultation with the Regional Administrator, shall
schedule one as soon after the effective date of the CSA as resources
- (4) OSHA's initial monitoring shall be extensive enough to
establish the degree to which hazards covered by the agreement exist and the
steps which the company must take to abate the hazards at the affected
- (5) In the case of the inspected establishment which was
the focus of the settlement, inspection case file data will ordinarily
provide adequate baseline information.
- (6) Baseline monitoring may also be omitted when recent
inspection history provides adequate knowledge of conditions in the
- b. Periodic Monitoring. Periodic monitoring is monitoring to
determine abatement progress being made in an establishment and to verify
reported progress. Such monitoring follows baseline
- (1) Periodic progress reports are required in each CSA and
shall be handled in accordance with H.2.e. of this instruction. These
reports are part of the periodic monitoring process and shall be carefully
reviewed by the Area Director having jurisdiction.
- (2) Periodic monitoring inspections shall be included in
the monitoring plan developed by the coordinator under
- (3) Monitoring inspections of covered workplaces may be
scheduled at any time during the life of the agreement. (See
- c. Followup Monitoring. Followup monitoring is monitoring for
the purpose of determining if the covered establishment has completed all
abatement action required under the CSA.
- (1) Followup monitoring shall be included in the monitoring
plan developed by the coordinator under I.1.b.(2)(b).
- (2) Like periodic monitoring, followup monitoring may be
combined with other programmed or unprogrammed
- (3) Followup inspections shall be scheduled as indicated in
- d. Scheduling of Monitoring Inspections. The manner of
scheduling both periodic and followup monitoring inspections shall be as
- (1) As soon as practicable, but no later than 60 days after
the effective date of the CSA, the coordinator, in conjunction with the
affected Regional Administrators, shall determine how many monitoring
inspections of establishments covered under the CSA shall be
- (a) Each covered corporation shall initially be
scheduled for an onsite monitoring inspection in at least 10 percent of its
listed establishments each year.
- (b) At least one site from each covered corporation
shall be scheduled each year.
- (2) The monitoring plan may be modified based on the
findings of the evaluations of the periodic progress reports received by the
- (3) The coordinator shall select the workplaces for onsite
monitoring inspections in consultation with the appropriate Regional
Administrators. The Regional Administrator shall in turn inform the
appropriate Area Director of the selection. Care shall be taken to avoid any
appearance of advance notice.
- (a) When scheduling such monitoring inspections, the
Area Director shall take into consideration any milestone dates established
in the CSA.
- (b) Such monitoring inspections shall have an
inspection priority equal to serious formal
- (4) The scope of monitoring inspections shall normally be
limited to the conditions covered by the CSA since their purpose is to ensure
that the company is adhering to the provisions of the CSA. Where potential
violations are observed that require investigation but which are outside the
conditions covered by the CSA, a referral shall be made in accordance with
the FOM, Chapter IX, B.2.b.(1)(d).
- NOTE: As noted at J.3.c., monitoring
inspections may be combined with other programmed or unprogrammed
inspections. Where this is the case, observed violations lying outside the
scope of the monitoring inspection shall normally be addressed through the
other inspection activity.
- (5) The Area Director shall be responsible for analyzing
the results of the monitoring inspections together with appropriate
- (a) Conclusions shall be communicated to the Regional
Administrator as soon as practicable, but not later than 2 weeks after the
analysis shall have been completed.
- (b) Particular attention shall be paid to the abatement
progress that the company has made as to the particular milestones agreed
upon in the CSA.
- (6) The Regional Administrator shall summarize the results
of the Area Office analyses of monitoring inspections to the coordinator, who
shall discuss them with DCP and SOL to determine what, if any, further action
will be appropriate.
- (7) Whenever periodic progress reports submitted by the
company raise suspicions about their truthfulness or indicate a lack of
adequate abatement progress, or when it is necessary to investigate
complaints that the agreement is not being properly implemented, the Area
Director shall consult with the Regional Administrator, who in turn shall
consult with the OFP coordinator who, after consultation with DCP, shall
determine whether a monitoring inspection should be
K. Enforcement of CSAs. If violations of the terms of the CSA are documented during monitoring of a covered worksite, appropriate enforcement action shall be taken, depending on the nature of the violations.
- 1. Such enforcement actions may range from warning letters to
Section 11(b) actions.
- 2. To promote uniform enforcement and to ensure the continued
effectiveness of CSAs, the following procedures shall be adhered
- a. If, after a review of the evidence, an Area Director
believes that the employer is not fulfilling the abatement responsibilities
agreed upon in the CSA, the procedures given below shall be
- (1) As soon as practicable after reaching this conclusion,
the Area Director shall con- tact the employer for an
- (a) If the employer appears to be making a good-faith
effort to abate and this is corroborated by the employee representative or
the employees themselves, no failure-to-abate (FTA) shall be proposed,
provided the employer agrees to remedy the
- (b) If the employer has no reasonable explanation for
the deficiency and refuses to remedy it, the Area Director shall proceed to
recommend an FTA.
- (c) If the employer believes that the deficiency is not
covered under the CSA, the Area Director shall attempt to resolve the
- 1 Failing that, the case shall be referred to the
Regional Administrator for resolution.
- 2 If the question still cannot be resolved, the case
shall be referred to the coordinator, who shall consult with DCP and SOL, for
a final decision.
- (2) Any establishment covered by the agreement may be
considered for FTA even if that location was not originally cited and is not
currently under citation for the violation. Similarly, an abatement action
required by the CSA may be considered for FTA even if was not addressed by
the original citation.
- b. Any proposed FTA or any other proposed enforcement action
related to issues covered in a CSA must be submitted to the Regional
Administrator for approval prior to issuance.
- c. The Regional Administrator shall consult with the Regional
Solicitor and decide upon a recommended course of action.
- d. The Regional Administrator shall report this recommended
course of action to OFP. The Director of Field Programs shall discuss the
regional recommendation with the Director of Compliance
- e. The Director of Compliance Programs shall consult with SOL
to decide upon a response to the regional recommendation. If necessary a
meeting shall be scheduled to discuss available options.
- f. Actual enforcement action shall be decided by the Director
of Field Programs, with the concurrence of DCP and SOL.
L. Final Abatement. If the company informs the Area Director or the Regional Administrator that it believes that abatement action under the CSA has been completed in all of its covered facilities or for any particular facility, the coordinator shall be so advised.
- 1. The coordinator shall schedule followup inspections in
accordance with J.3.d.
- 2. After completing followup inspection activity in 10 percent of
covered establishments and finding that all feasible abatement measures have
been implemented with no significant deficiencies, the CSA shall be
considered completed and all open case files related to the CSA shall be
- 3. The coordinator shall inform all Regional Administrators having
covered establishments that the company has fulfilled its obligations under
the CSA. The Regional Administrator shall then inform, as appropriate, the
affected Area Directors and State plan States.
M. Reporting and Recording in IMIS. Uniform procedures for reporting and recording information related to CSAs in IMIS will be provided in a forthcoming update to the IMIS Users' Manual.
Gerard F. Scannell Assistant Secretary
DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers
State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers