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.
August 14, 1991
MEMORANDUM FOR: ALL REGIONAL ADMINISTRATORS THROUGH: LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS FROM: PATRICIA K. CLARK, DIRECTOR DIRECTORATE OF COMPLIANCE PROGRAMS SUBJECT: Section 17 Designation
The legislative history of Section 17 of the OSH Act, which, as you know, is concerned with penalties, indicates that the Congress devised the citation classification system outlined in Section 17 so that penalties might be proposed and assessed at various levels which would correspond to the nature and severity of the violations found. In fact, Section 17 is the only section of the Act which deals with violations classification. The classification system there assumes that a recalcitrant employer will only be dissuaded from further violation by a significantly higher penalty as compared to first time violators. The legislative reason for classifying violations, therefore, is to enable the Agency to propose a penalty appropriate to the violation.
If an employer, having been cited as willfully or repeatedly violating the Act, decides to correct all violations but wishes to purge himself 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 to make other significant concessions, then the fundamental public purpose of the Act has been accomplished. By removing the specific violation classification and applying a Section 17 designation, the Agency does not concede that the violation is not willful or repeated as originally charged in the citation. Rather, the Agency is indicating that, in the particular case, the actual classification of a violation is secondary to other considerations; such as, obtaining valuable concessions while at the same time achieving swift and sure abatement of hazardous conditions.
Decisions to make a Section 17 designation should be based on whether the employer is willing to make any significant concessions. Examples of significant concessions an employer may be willing to make can be one or more of the following:
- Agreement to hire a safety or health consultant and to implement the consultant's recommendations,
- Agreement to effect a comprehensive safety and health program,
- Agreement to report to OSHA new construction jobsites,
- Agreement to not demand a warrant for specified inspections or for a specified period.
A Section 17 designation may also be considered if the employer has advanced substantial reasons why the original classification is questionable but is willing to pay the penalty as proposed. It should be noted, however, that a Section 17 designation is not appropriate where it is clear that the original classification was excessive.
The Regional Administrators may delegate the use of the Section 17 designation to the Area Directors. However, the Regional Administrators are responsible for developing the policies and procedures including case file documentation necessary for using the tracking Section 17 cases. On the OSHA-166, Citation Record Update, a Section 17 designation will be noted by placing a "P" for "post settlement redesignation" in the proper place under item 19, "Type".
We would like to monitor the utility of the Section 17 designation. Therefore, for a period of one year from the date of this memorandum, all settlements in which the Section 17 classification is used shall be forwarded to the Director of Compliance Programs. This will be a post-settlement review, for the purpose of assessing the effectiveness of this tool and tracking the kind of terms to which employers will agree in exchange for a Section 17 classification. This information in turn can be disseminated to the Area Directors to assist in settlement negotiations.
If you have any questions, they may be directed to Ray Donnelly or Art Buchanan at FTS 523-8041.