OSHA Instruction CPL 2.111 November 27, 1995 Directorate of Compliance
SUBJECT: Citation Policy for Paperwork and Written Program Requirement
A. Purpose. The purpose of this instruction is to revise and
clarify OSHA's policy regarding issuance of citations for violation of
"paperwork" and "written program" requirements.
B. Scope. This instruction applies OSHA-wide. The OSHA program
is delivered in 40% of the nation's workplaces by the 25 States that operate
OSHA-approved State plans. These States are encouraged to adopt similar
policies but may choose to develop and implement alternatives. See paragraph
1. OSHA Instruction CPL 2.80, October 21, 1990, Handling of
Cases to Be Proposed for Violation-By-Violation Penalties.
2. OSHA Instruction CPL 2.103, September 26, 1994, Field
Inspection Reference Manual (FIRM).
3. OSHA Instruction STP 2.22A, May 14, 1986, State Plan Policies
and Procedures Manual (SPM).
4. Memorandum to Regional Administrators from John B. Miles, Jr.
Director, Compliance Programs, March 21, 1995, "Hazard Communication
Standard: Documentation of Citations Related to the Exposure to Hazardous
Substances and Consumer Products" (Attached).
D. Action. This instruction supersedes certain provisions of the
FIRM. OSHA Regional Administrators (RAs) shall ensure that field staff
follow this instruction when evaluating violations of paperwork and written
program requirements. The FIRM will be changed, with the National Council of
Field Labor Locals (NCFLL) participation, to incorporate this instruction.
E. Application. This instruction applies to all inspections of
general industry, construction, maritime, and agriculture employers.
F. Background. OSHA recognizes that in some situations,
violations of certain standards which require the employer to have a written
program to address a hazard, or to make a written certification (e.g., hazard
communication, personal protective equipment, permit-required confined
spaces, and others), are perceived to be "paperwork deficiencies" rather than
critically important implementation problems. In other circumstances,
violations of such standards have a significant adverse impact on employee
safety and health.
1. OSHA is involved in an effort to re-direct limited resources
to those activities which most promote its central mission. Unnecessary
issuance of citations for minor technical violations of paperwork and written
program requirements undermines the agency's efforts to promote the agency
2. The purpose of this instruction is to provide guidance which
will lead to consistent and effective enforcement of OSHA's standards,
particularly where technical violations involve employer obligations for
posting, recordkeeping and documentation of performance, and have no adverse
impact on worker safety and health.
3. Application of these guidelines will require informed
professional judgment on the part of Compliance Safety and Health Officers
(CSHO) and careful attention to the circumstances in the workplace which
affect the impact of violations on the health and safety of
4. This instruction was developed by representatives of OSHA's
National Office and field staff in a cooperative effort with the
G. Procedures for Evaluation and Citation. The "paperwork" and
"written program" requirements addressed by this directive include
recordkeeping, posting of the OSHA Notice, written program requirements in
standards such as lockout-tagout, permit-required confined spaces, bloodborne
pathogens, hazard communication, personal protective equipment, and other
essentially similar requirements found in OSHA standards. The following
guidance is to assist OSHA staff in the determination of appropriate
citations and penalties in particular circumstances. OSHA staff shall adhere
to the following procedures when evaluating and citing violations of
paperwork and written program requirements.
1. Failure to Post the OSHA Notice (1903).
a. The employer shall be provided a copy of the Notice
and shall be advised of the legal requirement to post it for employees. The
employer shall also be informed of the consequences of failure to post the
Notice. These actions shall be noted in the case file. This policy applies
in all cases, except as noted in "b" below.
b. A citation for failure to post the OSHA Notice is
warranted if: the pattern of violative conditions for a particular
establishment demonstrates a consistent disregard for the employer's
responsibilities under the Occupational Safety and Health Act of 1970 (Act);
(1) Interviews show that employees are unaware of
their rights under the Act; or
(2) The employer has been previously cited or advised
by OSHA of the posting requirement.
2. Injury and illness records (1904).
a. Where no records are maintained and there have
been injuries or illnesses which meet the requirements for recordability, as
determined by other records or by employee interviews, a citation for failure
to maintain records shall normally be issued.
b. Where no records are maintained and there have been
no injuries or illnesses, as determined by employee interviews, a citation
shall not be issued.
c. When the required records are maintained but no entry
is made for a specific injury or illness which meets the requirements for
recordability, a citation for failure to record the event shall normally be
d. When the required records are maintained but have not
been completed with the detail required by the regulation, or the records
contain minor inaccuracies, the records shall be reviewed to determine if
there are deficiencies that materially impair the understandability of the
nature of hazards, injuries and illnesses in the workplace. If the records
are defective to this degree, a citation for failure to record shall normally
e. In all other cases, the employer shall be provided
information on maintaining the records for the employer's analysis of
workplace injury trends and on the means to maintain the records accurately.
The employer's promised actions to correct the deficiencies shall be recorded
and no citation shall be issued.
f. Where citations are issued, penalties shall be
proposed only in the following cases:
(1) Where OSHA can document that the employer was
previously informed of the requirements to keep records;
(2) Where the employer's deliberate decision to
deviate from the recordkeeping requirements, or the employer's plain
indifference to the requirements, can be documented.
3. Requirements for a Written Plan or Certification: General
Principles. (Such as requirements in the Respiratory Protection,
Confined Spaces, Bloodborne Pathogens, Lockout/Tagout, Personal Protective
Equipment Standards, and other Similar Standards.) The following general
principles apply to issuance of citations for violation of requirements that
an employer prepare a written plan or certification to address a hazard. In
each of the situations discussed below: (1) the employer is covered by a
standard that requires a written plan or certification to address a hazard,
(2) OSHA finds that the written plan or certification is missing or
deficient, and (3) the violation is not willful.
a. When the employer has failed or is likely to fail to
follow protective measures required by the standard in a manner that is
related to the deficiency in the plan, so that employees are exposed to a
risk of serious harm, a citation for a serious violation of the standard with
a penalty shall normally be issued. Penalties shall be proposed in
accordance with an assessment of the exposure.
b. When the employer has followed the proper protective
measures required by the standard, and it is unlikely that the deficiency in
the plan will result in failure to follow proper practices in the future, a
citation for an other-than- serious violation with no penalty shall normally
be issued. In addition, the employer shall be: (1) provided literature to
assist it in developing a proper written plan, and (2) informed of possible
penalties for subsequent violations.
c. When a standard requires an evaluation of a potential
hazard in the workplace, and the employer has failed to conduct the
evaluation, but no such hazard exists or could reasonably be anticipated in
the future in the employer's workplace, or the hazard could not be present at
a level to present a risk to employees, no citation shall be
d. When the employer has complied fully with a
requirement in a standard (e.g., for taking particular protective measures,
for an evaluation, or for training), except that the employer has failed to
make a required written certification that the action was taken, no citation
shall be issued. The requirement for a certification and the reasons for the
requirement shall be explained to the employer and the action noted in the
case file. The employed shall also be informed of possible penalties for
e. When the employer's written plan to address a hazard
is deficient, it will ordinarily be appropriate to issue one citation for all
of the deficiencies in the plan. In rare instances, the specifics of a case
may indicate that citing each deficiency separately may be warranted. In
such cases, a careful review of the facts and objectives behind all citation
items must be conducted. These cases typically would enter the litigation
case selection process. The total penalties for plan deficiencies shall not
exceed the penalties that would be imposed for complete lack of a plan,
unless the case meets the requirements of OSHA Instruction CPL 2.80 and the
current litigation case selection criteria.
4. Requirements for a Written Plan or Certification:
a. Permit Required Confined Spaces (1910.146).
(1) When an employer did not perform an evaluation of
the workplace to determine whether there were permit required confined spaces
that would be subject to the standard, and no such spaces are discovered
during the inspection, no citation shall be issued.
(2) When an employer did not perform an evaluation of
the workplace to determine whether there were permit required confined spaces
that would be subject to the standard, and such hazardous spaces are
discovered during the inspection, a citation with penalty shall normally be
b. Personal Protective Equipment (1910.132).
(1) When an employer carries out the required
assessment of workplace hazards and determines, correctly, that there are no
hazards which require personal protective equipment, but has not completed
the required documentary certification of the assessment, no citation shall
(2) When an employer carries out the required
assessment of workplace hazards and determines, correctly, that there are
hazards which require personal protective equipment and has provided the
appropriate PPE, but has not completed the required documentary certification
of the assessment, no citation shall be issued.
(3) When an employer has failed to conduct the
required assessment and does not provide personal protective equipment needed
to guard against a serious risk of eye injury, a citation with penalty shall
normally be issued.
c. Lockout/Tagout (1910.147). An employer's
lockout procedures incorrectly call for use of control circuitry rather than
acceptable energy control devices during covered servicing or maintenance
procedures. A citation, with penalty, shall normally be
5. Hazard Communication (1910.1200 and 1926.59).
a. Where employees are exposed or potentially exposed to
a hazardous chemical; and labeling, MSDS, chemical inventory, and
training requirements are met; but there is no written plan;
then violations of 1920.1200(e) shall be noted as De Minimis and no
citations shall be issued.
b. Where employees are exposed to a hazardous chemical
and, for example, they did not receive the information necessary to safely
handle or use the substance, and the employer had developed no written
program (or a deficient one), one citation item shall be issued for the
grouped violations of (1) lack of written program, and (2) the most directly
applicable portion of the standard.
EXAMPLE: Where employees were exposed to a
hazardous substance because the appropriate control measures had not been
covered in training, and where there was no written plan, violations of
1910.1200(e) and 1910.1200(h)(2)(ii) shall be grouped to make one citation
c. For specific guidance on the application of the
Hazard Communication Standard to consumer products and articles, refer to the
March 21, 1995 memorandum to Regional Administrators from John B. Miles, Jr.,
Director, Directorate of Compliance Programs. This memorandum is included as
Appendix A of this instruction.
d. Violations of the Hazard Communications standard are
normally to be grouped into a single citation item.
H. Federal Program Change. This is a Federal Program Change that
impacts State Programs.
1. The RA shall ensure that this change is promptly forwarded to
each State designee using a format consistent with the Plan Change Two-Way
Memorandum in Appendix A, OSHA Instruction STP 2.22A, State Plan Policies and
2. The RA shall explain the content of this change to the State
designees and coordinate appropriate training.
3. States are encouraged, but not required, to adopt an
identical or alternative policy. States shall be asked to provide
preliminary notification to the RA within 30 days from the date of
this instruction of their intent to (1) adopt a parallel policy; (2) defer
adoption pending evaluation of the new Federal policy and continue to utilize
current procedures; or (3) develop an alternative policy. The State shall
formally respond to this change with an indication of their intent within 70
days in accordance with paragraph I.1.a.(2)(a) and (b), Chapter III of Part I
of the SPM. (If the States' 30-day notification is in accordance with Part
I, Chapter III, I.1.a.(2)(b), this will fulfill the 70-day requirement.) A
State Plan supplement documenting State adoption of identical or equivalent
policies with regard to the policies and procedures in this instruction shall
be submitted within six months from the date of this instruction or upon
State adoption of the policy.
4. State designees also may wish to include alternative policies
in a pilot Performance Agreement to be negotiated between the State and the
RA and approved by the Assistant Secretary. Such agreements shall define
interim indicators of effectiveness and the results anticipated from a
5. The RA shall review policies, instructions, and guidelines
issued by the State and monitor their implementation as provided in a
Performance Agreement or through routine monitoring focusing on impact and
Joseph A. Dear Assistant Secretary
Distribution: National, Regional and Area Offices All Compliance Officers
State Designees NIOSH Regional Program Directors Consultation Project
March 21, 1995
Memo To: ALL REGIONAL ADMINISTRATORS
From: JOHN B. MILES JR., DIRECTOR DIRECTORATE OF COMPLIANCE PROGRAMS
Subject: Hazard Communication Standard: Documentation of Citations
Related to the Exposure to Hazardous Substances and Consumer Products
This memorandum provides clarification and guidance for the Hazard
Communication Standard, (HCS) 29 CFR 1910.1200, 1915.1200, 1917.28, 1918.90,
and 1926.59, when applied to the standard's provisions for exemptions of
consumer products and articles.
OSHA has reviewed its enforcement history with respect to instances where
the consumer product safety/hazardous substance (1910.1200(b)(ix)) or article
(1910.1200(b)(v)) exemptions could have been applied. HCS citations have
been issued for materials, such as bricks, rebar, lubricating oils, welding
rods and dishwashing liquid without adequate documentation of employee
exposure to a specific hazardous chemical or that their use fails to meet
OSHA's consumer product exemption. It is not the intent of the standard that
we issue citations for consumer products and articles except for conditions
of use that greatly exceed those of a normal consumer or are outside the
products normal intended use. As a matter of policy, OSHA Compliance
Officers shall not issue HCS citations for consumer products unless there is
documentation that exposure(s) causing serious injury or illness are
occurring. Please be aware that exposure is defined in the HCS to include
The performance-oriented nature of HCS makes it difficult to draw clear,
exact lines for the number of times a consumer product or the circumstances
under which an article can be used before the provisions of the rule apply.
During the course of an inspection, to justify a citation, it is imperative
that the compliance officer document that employee use of a consumer product
containing hazardous ingredients at his or her workplace is such that
frequency or duration clearly exceeds what a reasonable person would concede
to be normal consumer use in a home or household environment. Situations
where employee use of a consumer product is similar to the way a consumer
would use a product or where the hazardous chemical under consideration meets
the definition of an article shall not be cited as a violation of HCS.
To ensure that citations of HCS for consumer products are appropriate, the
following elements must be included as documentation in the case file:
1. Document what information establishes the chemical as a consumer
product. Was the container labeled with a label that is subject to the
regulations of the Consumer Product Safety Act?
2. Document the hazardous chemical(s) present in the consumer product
that employees where exposed to. Does the chemical present an acute or
chronic hazard? Was the chemical on the employer's hazardous chemical
3. Document the duration of use, the period of time the chemical was
used during the workshift and week. Did it greatly exceed normal or expected
use by a consumer?
4. Document the frequency or pattern of use. Did it greatly exceed
normal or expected use by a consumer?
5. Document the purpose of use. Was the consumer product used as
recommended by the manufacturer or proscribed by the manufacturer?
6. Document the manner of use; was the consumer product used in a
concentrated form or solution? What amount (i.e., the liters or grams) of
the chemical was used?
7. Attach the MSDS, where available, for the cited product, i.e., is it
defined as a hazardous chemical; what is its intended use(s)?
When citing HCS violations involving consumer products, identify in the
citation the specific hazardous chemical and the concentration of the
hazardous chemical present in the consumer product. In addition, the
frequency and duration of use that resulted in exposures significantly
greater than those of a consumer must be documented. The Agency shall not
issue any citations simply stating the "glue" or "dishwashing liquid" was the
In a similar fashion, for HCS violations involving manufactured items or
commercial products which under normal conditions of use may release
hazardous chemicals and do not meet the criteria of the "article" exemption
(1910.1200(c)), the specific hazardous chemical identified in the specific
item shall be described int he citation. In the case of mixtures, the
concentration of the specific hazardous chemical shall be included in the
citation. For example, the Agency shall not issue any citations specifically
for brick. In this case, compliance officers shall identify the specific
hazardous chemical, such as silica, present in the item, the concentration of
the specific hazardous chemical in the item, the product name of the item,
the specific operation(s) where an employee is or may be exposed to a
physical or health hazard and the duration of employee exposure.
To ensure that citations of HCS for items that appear to be "articles"
(rebar, bricks, structural steel beams, etc.) are appropriate, the following
elements must be included as documentation in the case file:
1. Document the hazardous chemical(s) and the concentration that was
present in the item that employees were exposed to. Was the chemical on the
employer's hazardous chemical inventory?
2. Document the activities or operations that resulted in employee
exposure to the hazardous chemical(s) in the item and the duration of use.
3. Attach the MSDS, where available, for the cited product, ie., does it
defines it as a hazardous chemical and any statements of its intended use(s)?
In summary, the specific hazardous chemical identify shall be provided in
any HCS citation. The commercial or product name shall not be used by itself
to identify a hazardous chemical. If the hazardous chemical is an ingredient
in a mixture, compliance officers shall identify in the citation the specific
hazardous chemical(s) present, and the relative concentration(s) of the
chemical(s) present, and the relative concentration(s) of the chemical(s) in
the mixture. In addition, the specific operations where an employee is or
may be exposed to a physical or health hazard and the duration of employee
exposure shall also be identified.
Should you have any questions regarding this issue, please call Tom Galassi
in the Office of Health Compliance Assistance at (202) 219-8036.