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• Record Type: Instruction
• Directive Number: CPL 02-00-111
• Old Directive Number: CPL 2.111
• Title: Citation Policy for Paperwork and Written Program Requirement Violations
• Information Date: 11/27/1995

OSHA Instruction CPL 2.111 November 27, 1995 Directorate of Compliance Programs

SUBJECT: Citation Policy for Paperwork and Written Program Requirement Violations

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 H. below.

C. References.

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 mission.
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 workers.
4. This instruction was developed by representatives of OSHA's National Office and field staff in a cooperative effort with the NCFLL.

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); and
(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 issued.
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 be issued.
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; or,
(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 issued.
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 subsequent violations.
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: Examples.

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 issued.

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 be issued.
(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 issued.
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 item.
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 Procedures Manual.
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 successful policy.
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 results.
Joseph A. Dear Assistant Secretary

Distribution: National, Regional and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors Consultation Project Managers

Appendix A

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 potential exposure.

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 inventory?

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 hazardous chemical.

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.


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