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NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.


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.

Attachment
QUESTIONS AND ANSWERS ON THE NEW PENALTY SYSTEM GATHERED DURING THE FIVE REGIONAL EXPLANATORY SESSIONS

A. PROCEDURES - GENERAL
    A.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 FAITH
B.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 - PENALTIES
    B.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.

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.


Standard Interpretations - Table of Contents Standard Interpretations - (Archived) Table of Contents