Standard Interpretations - (Archived) Table of Contents|
| Standard Number:||1908|
April 27, 1998
The Honorable John M. Shimkus
United States House of Representatives
Washington, DC 20515-1320
Dear Congressman Shimkus:
Thank you for your letter of December 22, 1997, to the Occupational Safety and Health Administration (OSHA), on behalf of your constituent [name withheld]. [Name withheld] is the President of [company name withheld], which transports, and then applies, bio-solid waste onto agricultural fields. [Name withheld] has asked about OSHA's ability to issue first instance sanctions following an inspection. In addition, you have asked for information on how OSHA penalties are determined. I apologize for the delay in this response.
Because OSHA does not have the resources to inspect every workplace in America, Congress authorized OSHA to issue penalties, if appropriate, when hazards are first discovered. The goal of this policy is to ensure that employers abate hazards before an OSHA inspection occurs.
OSHA, responding to an employee complaint, conducted an inspection of [company name withheld] on October 22, 1997. The inspection resulted in the issuance of two serious citations to [company name withheld]. Citation number one resulted from not complying with OSHA's "Occupational Noise Exposure" regulation, found at 29 CFR 1910.95. The second citation was for failure to comply with the agency's "Personal Protective Equipment" requirements, found at 29 CFR 1910.132. Penalties for the two serious violations resulted in a total initial fine of $5,000.00.
The primary consideration used in determining a penalty amount is the gravity associated with the serious violation. Gravity requires an assessment of the severity of the injury or illness which could result from the alleged violation and the probability that an injury or illness could occur as a result of the alleged violation. Once the severity and probability associated with the serious violation has been established, the agency can determine the gravity-based penalty (GBP). The amount of a GBP represents the initial monetary penalty.
OSHA also recognizes that other issues should be considered before determining the penalty which will appear on the citation. Therefore, the agency has developed "penalty adjustment factors" which can be used to, when appropriate, reduce the GBP. Factors which are considered in this process include, the size of the business, the employer's "good faith" and the history of previous violations. When the three factors are totaled, it is possible for an employer to receive up to a 95% reduction in the GBP.
As mentioned earlier, OSHA proposed a GBP totaling $5,000.00 ($2,500.00 per violation) for the two serious violations. However, after applying the penalty adjustment factors, OSHA reduced the penalty amount total to $750.00 ($375.00 per violation). The final penalty amount on the citation represents an 85% reduction from the initial GBP. [Company name withheld] abated the hazards, paid the penalty, and the case file was closed.
OSHA realizes that small businesses may not have the resources or expertise to recognize some safety hazards. In order to assist these entities, the agency offers a free consultation service which is completely separate from the enforcement program. The service is funded by federal OSHA, and provided by state governments. No citations or penalties are proposed as a result of this consultation. I have enclosed a publication which explains the consultation program in greater detail for your constituents review. In addition, I have provided you with one of our newest publications, titled "Keeping Your Workplace Safe." This document answers questions which concern small business owners and provides information on what an employer can do if he or she believes they have been treated unfairly by a regulatory agency.
In summary, the agency must, as part of its enforcement strategy, be able to issue first instance sanctions. However, the agency believes that the vast majority of employers, large and small, want to afford their employees safe and healthful working conditions. In recognition of that belief, OSHA has instituted a system which takes into account not only the size of the establishment (as measured by employees) but the employer's safety and health history.
We appreciated your bringing your constituent's concerns to our attention. If we can be of any further assistance, please do not hesitate to contact us.
Charles N. Jeffress
|Standard Interpretations - (Archived) Table of Contents|
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