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 21, 2009

John H. Fitch, Jr.
Senior Vice-President, Advocacy
National Funeral Directors Association (NFDA)
Government Relations Office
400 C Street, NE
Washington, DC 20002

Dear Mr. Fitch:

Thank you for your letter dated July 30, 2009, to Jordon Barab, Acting Assistant Secretary for the Occupational Safety and Health Administration (OSHA), in which you stated that you read that OSHA is reviewing its penalty policy and intends to update the penalty section of its Field Operations Manual (FOM). Your letter was referred to the Directorate of Enforcement Programs to respond to your specific concerns.

You state that the National Funeral Directors Association (NFDA) represents all funeral directors in the United States and that the majority of NFDA members are small businesses with fewer than six employees. As a representative of these small employers, you say that the discretion the OSHA FOM gives the OSHA Area Directors in adjusting penalty amounts, based on employer size, good faith, and OSHA inspection history, is appropriate for your membership, as evidenced by the industry's low injury and illness rate and that this underscores that full compliance rather than punishment should be OSHA's ultimate goal.

As you may know, the Occupational Safety and Health Act (OSH Act) has only been amended once since 1970 to increase penalties and that was in 1990, nearly twenty years ago. Therefore, OSHA is reviewing its penalty policies and procedures to determine if some adjustments may be appropriate. The OSH Act requires consideration be given to the appropriateness of the penalty with respect to employer size, the gravity of the violation, the good faith of the employer, and the history of previous violations. Any adjustments OSHA may make to its penalty chapter in the FOM will certainly keep these statutory considerations in the forefront, especially any decisions that will affect small employers.

We appreciate your offer to provide further information, but OSHA field directives are not subject to the legal and procedural requirements used in the OSHA rulemaking process. Because OSHA's directives are internal enforcement policies and procedures providing direction to OSHA employees, they are not subject to public hearings, and the agency does not solicit public comment on them.

Thank you for your interest in occupational safety and health and your letter expressing NFDA's concern regarding its membership. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.


Richard E. Fairfax, Director
Directorate of Enforcement Programs