OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
April 8, 1991
|MEMORANDUM FOR:||ALL REGIONAL ADMINISTRATORS|
|THROUGH:||LEO CAREY, DIRECTOR
Office of Field Programs
|FROM:||PATRICIA K. CLARK, DIRECTOR
Directorate of Compliance Programs
|SUBJECT:||Questions and Answers on the New Penalty System|
Many questions were asked during the five regional explanatory sessions of the new penalty system. Attached are the answers to some of those questions that reflect current policy, and can be disseminated to all staff members for their use.
We will continue to develop answers to the remaining questions along with answers to new questions that are being asked, and forward them to you as quickly as possible.
QUESTIONS AND ANSWERS ON THE NEW PENALTY SYSTEM GATHERED DURING THE FIVE REGIONAL EXPLANATORY SESSIONS
A. PROCEDURES - GENERALA.1. Q. Can the Area Director delegate the authority to conduct an informal conference?A. Yes, this responsibility may be delegated to safety/health supervisors. (FOM I,C.2.)A.2. Q. Can OSHA's desire to conserve resources be listed as documentation of the reason for penalty reduction for encouragement to settle a case?A. Yes, OSHA can be forthright about this reason to be willing to reduce penalties.A.3. Q. During an informal conference do two OSHA people have to be present?A. Yes, for the protection of the person conducting the conference, another OSHA witness must be present.A.4. Q. Will employers be able to pay penalties with a credit card?A. Not now, but probably in time.A.5. Q. Can an informal conference be conducted by telephone and fax? (See FOM Chapter III - Barbara Burr for exception.)A. Informal conferences shall normally not be held by telephone. People need to meet in person to exchange documents and to sign agreements.B. PROCEDURES - GOOD FAITHB.1. Q. What are incidental (minor) deficiencies?
A. Incidental (minor) deficiencies occur when a safety and health program is documentable and effective, but in the implementation of the program one or two units may be missing. For example, employees are being trained, but one or two new employees, on the job for a week, have not been trained yet, or most MSDS are properly posted, but one or two are missing.B.2. Q. Can percentage increments between 0% and 25% be used?A. No, only those percentages stated, 15% and 25%, may be used to reduce penalties due to the employer's good faith efforts in safety and health.B.3. Q. When 15% reduction for good faith is given, what does "documented" mean?A. "Documented" means the employer can show evidence that the safety and health program at this site is operative and effective. Examples of such documentable evidence could be minutes of safety and health meetings held, employee training sessions completed, receipts for personal protective equipment bought, employees' safety and health suggestions implemented.B.4. Q. If regulatory violations are cited (for which good faith reductions cannot be given), can good faith reductions be given for other safety and health violations found on the same inspection?A. Yes.B.5. Q. If one of the violations found is willful, can good faith reductions be given on other violations found on the same inspection?A. No, the employer cannot be found willful and in good faith at the same time.B.6. Q. Does the safety and health program have to be effective and implemented for the 15% good faith reduction to be given?A. Yes.B.7. Q. If the employer corrects the violation immediately, can a good faith reduction be given?A. No, the good faith must have been established before the inspection.B. PROCEDURES - PENALTIESB.1. Q. Does OSHA have to prove that the employer received the recordkeeping booklet and/or the poster before proposing regulatory penalties for this employer for recordkeeping or posting violations?A. Yes, this regulation continues to be the same. (FOM VI,B.16.a. (1))B.2. Q. Can the Area Office reduce the penalties more than sixty percent?A. No, the Area Office can reduce penalties no more than sixty percent. (FOM V,H.1.c.(3))B.3. Q. The FOM, at VI,B.8.e.(1), page VI-7, states that other than serious safety and health violations judged to be of greater probability shall be assigned a GBP of $1000 to which the appropriate adjustment factors shall be applied. However, B.8.e.(3) states that the Regional Administrator may authorize a penalty up to $7000 if the RA believes the greater penalty is necessary to achieve a deterrent effect. Does "up to" mean that the RA may authorize a penalty amount at any dollar figure between $1000 and $7000? When would the RA use this authority?A. Although the RA has the authority to assess increased penalties up to $7000, currently there are no criteria for making such increased assessments. We believe the use of this authority will be extremely rare.B.4. Q. If the injury occurred before November 15, 1990, which penalty system applies?A. If the violation which caused the injury still exists, penalties will be assessed under the new system.B.5. Q. In FOM VI,B.16.c.(1), page VI-16, does "each OSHA form not maintained" mean each 101 form for each entry on the 200 and each 200 form not maintained for each year the forms are missing?A. No, an unadjusted penalty of $1000 for each OSHA 200 form missing may be assessed for each of the preceding three years. If no OSHA 101 forms (or equivalent) have been kept, for any entries during the year, an unadjusted penalty of $1000 may be assessed for the current and each of the preceding three years. If egregious sanctions are appropriate, an unadjusted penalty of $1000 per 101 form (or equivalent) missing for the current and three preceding years may be assessed. When no recordable injuries or illnesses have occurred at a workplace during the current calendar year, the 200 form shall be considered as having been maintained, since no entries would appear in them. See also FOM VI, B.16.d. if grouping is appropriate.B.6. Q. Should the penalties of $50 and $75 listed in the penalty table on page VI-18 of the FOM be assessed?A. No, penalties under $100 should not be assessed. (FOM VI,B.3.b)B.7. Q. When the violations fall both under the new and the old penalty system, how shall they be grouped or calculated?A. For all situations except recordkeeping, use the old penalty system. For recordkeeping, both penalty systems shall be used as appropriate. However, if the recordkeeping system violations on the OSHA 200 log are continuing, apply the new system.B.8. Q. When the violation cited occurred prior to March 1, 1991, but the violation is either repeated or has been found not abated after March 1, 1991, how should the penalties be calculated?A. Calculate additional penalties under the new system.B.9. Q. If grouping is used as a penalty reduction tool during an informal conference, does the reduction cap apply before or after the citations are grouped?A. The sixty percent reduction cap must be applied to the initial proposed penalties before grouping.