OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance SUBJECT: Changes to the Field Operations Manual (FOM) A. Purpose. This instruction transmits page changes to the FOM, OSHA Instruction CPL 2.45B, June 15, 1989. B. Scope. This instruction applies OSHA-wide. C. References. 1. OSHA Instruction CPL 2.51H, March 22, 1993, Exemptions and Limitations under the Current Appropriations Act. 2. OSHA Instruction CPL 2.95, February 10, 1992, Enforcement Authority at the Department of Energy's (DOE) Government-Owned, Contractor-Operated (GOCO) Sites. 3. OSHA Instruction CPL 2.97, January 26, 1993, Fatality/Catastrophe Reports to the National Office ("Flash Reports"). 4. OSHA Instruction DIS .4B, August 29, 1988, Investigator's Manual. D. Background. This OSHA Instruction will update the Field Operations Manual (FOM) by providing guidance to the field on a variety of policy and program changes. It will also serve as interim guidance until the reinvented FOM, which is being developed by the FOM Revision Team, is issued sometime in early 1994. E. Action. Replace existing pages with the attached CH-4 pages as listed below: Existing Pages Replacement Pages Table of Contents, 1 thru 17 Table of Contents, 1 through 16 I-11 through 12 I-11 through 12 II-1 through 36 II-1 through 34 III-37 through 48 III-37 through 48 III-57 through 58 III-57 through 58 III-73 through 88 III-73 through 88 IV-9 through 10 IV-9 through 10 IV-19 through 22 IV-19 through 22 IV-27 through 42 IV-27 through 42 VI-1 through 2 VI-1 through 2 VI-9 through 10 VI-9 through 10 VI-15 through 16 VI-15 through 16 VI-19 through 20 VI-19 through 20 VIII-5 through 10 VIII-5 through 9 IX-1 through 4 IX-1 through 4 IX-9 through 12 IX-9 through 12 X-1 through 15 X-1 XIII-1 through 36 XIII-1 through 28 None XIII-A-1 through 8 None Index-1 through Index-21 F. Federal Agencies. This instruction describes a change that affects Federal agencies. Executive Order 12196, Section 1-201, and 29 CFR 1960.16, maintains that Federal agencies must also follow the enforcement policy and procedures contained in this instruction. G. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall: 1. Ensure that this change is promptly forwarded to each State designee using a format consistent with the Plan Change Two-way Memorandum in Appendix P, OSHA Instruction STP 2.22A, CH-2. 2. Explain the content of this change to the State designees as requested. 3. Advise the State designees of the changes made to the Field Operation Manual (FOM). The States now have six months from the issuance date of this instruction to submit a plan supplement (I.1.a.(3)(a) of the SPM) documenting changes set forth therein. States which have not yet submitted their revised FOM in response to OSHA Instruction CPL 2.45B and 2.45B CH-1, CH-2 and CH-3 shall not delay those submissions to incorporate the changes being transmitted by this instruction. 4. Ensure that State designees are asked to acknowledge receipt of this Federal program change in writing to the Regional Administrator as soon as the State's intention is known, but not later than 70 calendar days after the date of issuance (10 days for mailing and 60 days for response). In the acknowledgment, the State should address the State's intent with regard to new, significant changes listed in Paragraph H. of this instruction. a. If the State intends to follow Federal policies and procedures described in the changes to the FOM, the State must submit revised pages, adapted as appropriate to refer to State law, regulations and administrative structure, or a revised cover page which has been incorporated into the State's adopted manual indicating that the revisions to the Federal FOM had been adopted for State use, how references in the Federal FOM correspond to the State structure, and how it will be applied. b. If the State adopts an alternative to the Federal FOM, the State must submit replacement pages to the FOM within 6 months of the issuance date of the directive transmitting the FOM changes. The plan change supplement must identify and provide a rationale for all substantial differences from the Federal policies and procedures in order for OSHA to judge whether a different State procedure is as effective as comparable Federal procedure. c. The State plan supplement must address the significant changes noted in paragraph H. of this instruction. The following are clarifications and instructions to the States on specific policies and procedures: (1) Targeting - States that use OSHA safety list for high-hazard targeting should be aware that it is now based on Federal OSHA violation history by SIC - not BLS rates (II-10). (2) Case file documentation for willful violations related to fatalities (IV-28). The State revised manual should reflect that when a willful violation is related to a fatality, the case file must contain adequate documentation for not referring the case for criminal prosecution. (3) Where serious penalty calculation would result in a penalty less than $100, then a $100 penalty shall be proposed (VI-2 and VI-19). OSHA has revised its procedure for the calculation of serious penalties to administratively set a $100 minimum penalty when the adjusted proposed penalty for a serious violation would amount to less than $100. In the States' response to this change, they are to follow procedures in the revised FOM or at least as effective alternative procedures. (4) Deleted Discrimination Complaints Chapter - (X-1.) OSHA has deleted Discrimination Complaints Chapter from the FOM and will use only OSHA Instruction DIS .4B, Investigator's Manual. States may similarly delete this chapter. (5) Complaints can allege general duty violations - not just standards and regulations (IX-1). States revised manual should indicate that complaints can also allege general duty violations -- not just standards and regulations. d. The State plan supplement must also: (1) Incorporate the State's own policies in such areas where Federal policy does not apply directly to the State's operations or has not been adopted by a State. (2) Describe how the policies and procedures apply to State and local government sectors, though a separate chapter or appropriate references where a State's FOM is intended to cover both public and private sectors. 6. Ensure, upon receipt of the State plan supplement submitted in response to this Federal program change, that a line-by-line review of the State plan supplement is performed, identifying and evaluating the relative effectiveness of all substantive differences from the Federal provisions. a. If the Regional review shows that the State's plan supplement is incomplete or otherwise less effective than Federal requirements, the Regional administrator shall negotiate with the State to make the necessary changes. b. The Regional Office shall provide any technical assistance for a State to resolve deficiencies in its plan supplement. 7. After Regional review of the State plan supplement and resolution of any comments thereon, forward the State submission to the National Office in accordance with established procedures. The Regional Administrator shall provide a judgment on the relative effectiveness of each substantial difference in the State plan change and an overall assessment thereon with a recommendation as to approval by the Assistant Secretary. 8. In light of the critical importance of a State's FOM to its program effectiveness and some States' historical delinquency in responding to previous compliance policy changes, closely monitor the States' progress in responding to this Federal program change to ensure compliance with its requirements within the specified 6-month period. H. Significant Changes. 1. Updates References to the Appropriation Act in OSHA Instruction CPL 2.51H. (Pages I-12, II-2, II-19, II-36, III-30 and VI-2). 2. Adds Metric System Conversion (Pages II-20, III-47 & 48, IV-9, 10, 19, 20, 22, and 32). 3. Changes "shall" to "may" Regarding Partial Inspections (Page II-2). An exception is provided concerning the mandatory review of employer's injury and illness records and assessment of employer's programs. 4. Adds NOTE Concerning Documentation of Unusual Circumstances that Require Modification of Inspection Priorities (Page II-5). 5. Changes Definition of "High Hazard Industry" in Area of Safety (Page II-9). 6. Replaces BLS Rate Data with IMIS Violation Data Safety Priority (Pages II-10 through 12). Industry priority for safety inspections for FY '94 will be based on a ratio similar to that used for health inspections, which is the number of serious violations of safety standards per safety inspection in that industry. 7. Replaces Reference to "Dodge Reports" and "Dodge Slips" with "OSHA Inspection Construction Reports" (Pages II-11, 21, 22, and 24). 8. Deletes Firms with IMIS Identified Valid Deletion Criteria (Page II-12). Beginning with the FY '94 establishment lists, all establishments with valid deletion criteria will be deleted by the National Office. Caution should be taken when adding establishments to the establishment lists, since establishments will have been deleted in that SIC or may be included in a different SIC. 9. Deletes Sites with Ten or Fewer Employees (Page II-12). In the past all sites with ten or fewer employees were deleted from the list. For FY '94, sites with ten or fewer employees that are part of larger employers will not be deleted. This includes branch locations that show no employment on the Dun's file, but may have large employment. 10. Adds NOTE to Clarify the Calculation of Five Percent Low Hazard and Non-manufacturing (Page II-16). The intent of this provision is that "up to" five percent in each of these categories are to be included for inspection. When the calculation yields a fractional establishment, the factional part is dropped and the integer part is the number to be included. 11. Creates a Single Cycle for the Year (Pages II-17 to 18). One cycle early in the fiscal year should contain the number of planned inspections estimated for the year. If more establishments are needed, another cycle can be selected late in the year to provided enough establishments to finish the year. 12. Merges Lists for Two Consecutive Months for Construction (Page II-20). The lists for two consecutive months may be merged and worked from at the same time. The first month is consider carryover when the second month is merged with the third month. 13. Provides that the Area Office will Directly Notify the Construction Resource Analysis (CRA) Group at the University of Tennessee by Telephone or FAX (Page II-22). 14. Changes Approval Requirements of Local Emphasis Programs (Page II-30). The Director of Compliance Programs no longer has to give approval for all LEPs. 15. Adds a Statement Regarding Construction Activities within DOE Sites (Pages II-34 and III-38). Reference is made to OSHA Instruction CPL 2.95 16. Adds a NOTE Regarding Exception for Partial Inspections (Page III-40). An exception is provided concerning the mandatory review of employer's injury and illness records and assessment of employer's programs. 17. Reserves Section on Hazard Communication (Page III-41). 18. Makes an Editorial Correction in the Second Line of Paragraph D.8.a.(2)(b) 2 e by Striking Out "and investigations" (Page III-45) 19. Adds the Statement "Follow-ups will Normally be Conducted within Three Years." (Page III-46). 20. Removes the Requirement to Provide Copies of Standards to the Employer and Employee Representatives (Page III-58). 21. Replaces Material that was Inadvertently Removed by CH-3, and Adds a NOTE that Lists the Nine Standards which Prohibit Employee Rotation as a Means of Reducing the Hazard as an Administrative Control (Pages III-74 & 75). 22. Corrects a Discrepancy between the FOM and 29 CFR 1903 Regulations to State that the Area Director Shall Make a Determination 15 Days after the Posting, not 15 Days after the Certification (Page III-79). 23. Adds a Requirement for Adequate Documentation of Decisions not to Pursue Criminal Investigations When there is a Willful Violation Related to a Fatality (Page IV-28). 24. Removes Welding from the List of Primary Hazards Regarding the Ventilation Standards (Page IV-34). 25. Adds a Provision Stating the Smallest Proposed Penalty for a Serious Violation will be $100 (Page VI-2). 26. Removes "and history" to Clarify When NOT to Give "Good Faith" (Pages VI-9 and VI-15). 27. Amends Penalty Chart to Replace "Zeros" with "$100," and Adds a Second NOTE (Page VI-19). 28. Replaces Superseded Report Procedures with Reference to CPL 2.97, Fatality/Catastrophe Reports to the National Office ("Flash Reports") (Page VIII-6). 29. Adds "General Duty Clause" (Page IX-1). This clarifies that a complaint can allege a serious hazard that is not covered by a standard. 30. Adds "such as recordkeeping" (Page IX-4). This clarifies what violations are to be considered informal complaints. 31. Removes Requirement to Supply Employer Copy of Standards in Paragraph A.8.a. (Page IX-9). 32. Removes Provisions Regarding Tenth Letter Inspections (Page IX-10). 33. Changes the Time Frame for Informing Complainants about Delays in Issuing a Citation from 15 Working Days to 30 Working Days (Page IX-11). The paperwork burden is increased because of the length of time necessary to receive laboratory results is usually greater than 15 working days. 34. Removes Discrimination Complaints from the FOM and References DIS .4B, Investigator's Manual (Page X-1). 35. Clarifies and Expands the Scope, Jurisdiction, and Definitions Applicable to Federal Agencies (Pages XIII-1 through 4). 36. Eliminates the Requirement for Federal Agencies to Provide OSHA with an Establishment Safety and Health Action Plan for Targeted Inspections (Page XIII-4). 37. Adds Requirement under Conduct of Targeted Inspections to Inspect for Violations of 29 CFR 1960 Citable Program Elements (Page XIII-6). OSHA will not give Federal agencies advance notice when inspections will be conducted (except Federal prisons). 38. Adds Requirement to Inspect for Violations of 29 CFR 1960 Citable Program Elements in Fatality/Catastrophe Investigations (Page XIII-6). 39. Changes Inspection Time Frames for Responding to Complaints to be Consistent with Private Sector (Page XIII-8). 40. Adds Appropriate Instructions when Responding to Complaints when the Agency has a Certified Committee (Page XIII-9). Provision allows announced inspections at agencies with Certified Committees. 41. Adds Provisions to Investigate Reports of Safety and Health Program Violations and to Cite Violations of 29 CFR 1960 Citable Program Elements (Page XIII-11). 42. Adds New Procedure that Decentralizes the Handing of Reprisal Reports to the Regional Administrator (Page XIII-12). 43. Clarifies and Expands Recordkeeping and Reporting Requirements for Federal Agencies (Page XIII-14). 44. Adds Requirement to Include Technical Assistance with Complying with 29 CFR 1960 Citable Program Elements (Page XIII-22). 7 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 45. Clarifies and Expands Procedures for Issuing the OSHA Notice of Unsafe or Unhealthful Working Conditions, OSHA-2H Form (Page XIII-23). The procedures for issuing the OSHA Notice with regard to violations of 29 CFR 1960 citable program elements, general duty clause, and repeat violations, and the multiemployer worksite policy are expanded and clarified. 46. Expands Requirements for Assuring Verification of Abatement (Page XIII-27). 47. Clarifies Position Concerning Federal Agency Requests for Petitions for Modification of Abatement Dates (Page XIII-27). Emphasizes that requests for PMAs should be similar to that for the private industry in Chapter III, even though Review Commission rules do not apply to Federal agencies. 48. Replaces Old Text with more Effective Procedures for Handling Failure to Abate Situations (Page XIII-27). 49. Replaces Appendix (Pages XIII-A-1 through XIII-A-8). Removed old appendix that provided guidance on action plans and replaced it with the citable program elements. 50. Adds an Index (Pages Index-1 through Index-20). After 20 years the FOM now has an index! Joseph A. Dear Assistant Secretary DISTRIBUTION: National, Regional, and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers 8 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance CHAPTER PAGE TABLE OF CONTENTS I. GENERAL RESPONSIBILITIES AND ADMINISTRATIVE PROCEDURES A. Director, Office of Field Programs.. . . . . . . . . . . . I-1 B. Regional Administrator.. . . . . . . . . . . . . . . . . . I-2 C. Area Director. . . . . . . . . . . . . . . . . . . . . . . I-2 D. Supervisor.. . . . . . . . . . . . . . . . . . . . . . . . I-4 E. Compliance Safety and Health Officer.. . . . . . . . . . . I-5 F. Area Office as Full Service Resource Center. . . . . . . . I-7 1. Outreach Program Plan. . . . . . . . . . . . . . . . I-7 2. Regional Office Support Services.. . . . . . . . . . I-8 3. Training and Education Services. . . . . . . . . . . I-9 4. Referral Services. . . . . . . . . . . . . . . . . . I-10 5. Other Services . . . . . . . . . . . . . . . . . . . I-11 6. Public Information Policy. . . . . . . . . . . . . . I-13 II. COMPLIANCE PROGRAMMING A. Program Planning . . . . . . . . . . . . . . . . . . . . . II-1 B. Inspection/Investigation Types . . . . . . . . . . . . . . II-1 C. Inspection Scope . . . . . . . . . . . . . . . . . . . . . II-2 D. Inspection Selection Criteria. . . . . . . . . . . . . . . II-2 E. Inspection Priorities. . . . . . . . . . . . . . . . . . . II-3 F. Inspection Scheduling. . . . . . . . . . . . . . . . . . . II-4 1. Unprogrammed Inspections . . . . . . . . . . . . . . II-4 a. Priorities. . . . . . . . . . . . . . . . . . . II-4 b. Scope . . . . . . . . . . . . . . . . . . . . . II-4 c. Followup Inspections. . . . . . . . . . . . . . II-5 d. Monitoring Inspections. . . . . . . . . . . . . II-7 e. Reinspection Referrals. . . . . . . . . . . . . II-9 2. Programmed Inspections . . . . . . . . . . . . . . . II-9 a. General . . . . . . . . . . . . . . . . . . . . II-9 (1) Policy . . . . . . . . . . . . . . . . . . II-9 (2) Description. . . . . . . . . . . . . . . . II-10 b. Guidelines and Procedures . . . . . . . . . . . II-11 (1) Inspection Scheduling for General Industry (Safety and Health). . . . . . . . . . . . II-11 (a) Industry Rank Report. . . . . . . . . II-11 (b) Establishment Lists . . . . . . . . . II-12 1 High Hazard Establishment Lists for Safety . . . . . . . . . . . . . . II-12 2 Low Hazard Establishment List for Safety . . . . . . . . . . . . . . II-12 3 Nonmanufacturing Establishment List for Safety . . . . . . . . . . . . II-13 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 4 Health Establishment List . . . . . . . . . . . . . . . . . II-13 5 Adjustments . . . . . . . . . . . . . . . . . II-13 a Additions . . . . . . . . . . . . . . . . . II-14 b Deletions . . . . . . . . . . . . . . . . . II-14 (1) (c) Inspection Register . . . . . . . . . II-16 (d) Inspection Cycle . . . . . . . . . . . . . . . . . . . II-17 (e) Inspection Scheduling . . . . . . . . II-17 (f) Deletions and Additions . . . . . . . II-20 (2) Inspection Scheduling for Construction . . II-20 (a) Inspection List . . . . . . . . . . . II-21 (b) OSHA Construction Inspection Reports . . . . . . . . . . . . . . . . . . . II-21 (c) Limitation on Frequency of Selection. II-21 (d) Scheduling Cycle. . . . . . . . . . . II-22 (e) Completion of Inspection List . . . . II-23 (f) Carryovers. . . . . . . . . . . . . . II-23 (g) Area Director Administration of Inspection List . . . . . . . . . . . II-24 (h) Health Construction Inspections . . . II-24 (3) Inspection Scheduling for Maritime . . . . II-25 (a) Maritime Industries Scheduled with General Industry Inspections. . . . . . . . . II-25 (b) Maritime Inspections Scheduled with Construction. . . . . . . . . . . . . II-25 (c) Water Transportation Services (Longshoring, Marine Terminals, Voyage Repair . . . II-25 1 Inspection List . . . . . . . . . . . . . . . . . II-26 2 Numbering of List . . . . . . . . . . . . . . . . . II-27 3 Quarterly Inspection Cycle for Port Areas. . . . . . . . . . . . . . . II-27 4 Annual Inspection Cycle for Employers. . . . . . . . . . . . . II-28 5 Inspection Scheduling . . . . . . . . . . . . . . . . . II-28 6 Deletions. . . . . . . . . . . II-30 7 Other Maritime Industry Inspections. . . . . . . . . . . . II-30 8 Health Maritime. . . . . . . . II-31 (4) Special Emphasis Programs. . . . . . . . . II-31 (a) Description . . . . . . . . . . . . . II-31 (b) Scheduling Inspections. . . . . . . . II-32 (c) Program Evaluation. . . . . . . . . . II-32 (5) Other Special Programs . . . . . . . . . . II-32 G. Exemptions and Limitations . . . . . . . . . . . . . . . . II-35 III. GENERAL INSPECTION PROCEDURES A. CSHO Responsibilities. . . . . . . . . . . . . . . . . . . III-1 B. Preparation. . . . . . . . . . . . . . . . . . . . . . . . III-1 1. General Planning . . . . . . . . . . . . . . . . . . III-1 2. Preinspection Planning . . . . . . . . . . . . . . . III-2 3. Preinspection Compulsory Process . . . . . . . . . . III-2 4. Inspection Materials and Equipment . . . . . . . . . III-2 5. Expert Assistance. . . . . . . . . . . . . . . . . . III-3 6. Safety and Health Rules of the Employer. . . . . . . III-3 7. Immunization and Other Special Entrance Requirements III-4 8. Personal Security Clearance. . . . . . . . . . . . . III-4 C. Advance Notice of Inspections. . . . . . . . . . . . . . . III-6 1. Policy . . . . . . . . . . . . . . . . . . . . . . . III-6 2. Procedures . . . . . . . . . . . . . . . . . . . . . III-8 D. Conduct of the Inspection. . . . . . . . . . . . . . . . . III-9 1. Entry of the Workplace . . . . . . . . . . . . . . . III-9 a. Time of Inspection. . . . . . . . . . . . . . . III-9 b. Severe Weather Conditions . . . . . . . . . . . III-10 c. Presenting Credentials. . . . . . . . . . . . . III-10 d. Refusal to Permit Inspection. . . . . . . . . . III-11 (1) Refusal of Entry or Inspection . . . . . . III-11 (2) Questionable Refusal . . . . . . . . . . . III-12 (3) Employer Interference. . . . . . . . . . . III-12 (4) Administrative Subpoena. . . . . . . . . . III-12 (5) Obtaining Compulsory Process . . . . . . . III-13 (6) Compulsory Process . . . . . . . . . . . . III-17 (7) Action to be Taken Upon Receipt of Compulsory Process. . . . . . . . . . . . . . . . . . III-17 (8) Refused Entry or Interference With a Compulsory Process. . . . . . . . . . . . . . . . . . III-18 (9) Federal Marshal Assistance . . . . . . . . III-18 e. Forcible Interference with Conduct of Inspection or Other Official Duties . . . . . . . . . . . . . III-18 f. Release for Entry . . . . . . . . . . . . . . . III-19 g. Bankrupt or Out of Business . . . . . . . . . . III-19 h. Strike or Labor Dispute . . . . . . . . . . . . III-20 i. No Inspection . . . . . . . . . . . . . . . . . III-20 2. Employee Participation . . . . . . . . . . . . . . . III-20 3. Opening Conference . . . . . . . . . . . . . . . . . III-21 a. Purpose of the Inspection . . . . . . . . . . . III-21 b. Health Inspections. . . . . . . . . . . . . . . III-22 c. Attendance At Opening Conference. . . . . . . . III-23 d. Scope . . . . . . . . . . . . . . . . . . . . . III-23 e. Handouts and Additional Items . . . . . . . . . III-24 f. Program Mix . . . . . . . . . . . . . . . . . . III-24 g. Form Completion . . . . . . . . . . . . . . . . III-24 h. Employees of Other Employers. . . . . . . . . . III-24 i. Voluntary Compliance Programs . . . . . . . . . III-25 j. Other Opening Conference Topics . . . . . . . . III-30 4. Records Review . . . . . . . . . . . . . . . . . . . III-30 a. Procedures for Determining Lost Workday Injury (LWDI) Rate . . . . . . . . . . . . . . . . . . III-30 b. Results of Establishment's LWDI Rate. . . . . . III-36 5. Walkaround Representatives . . . . . . . . . . . . . III-36 a. Employer Representatives. . . . . . . . . . . . III-36 b. Employee Representatives. . . . . . . . . . . . III-36 6. Special Situations . . . . . . . . . . . . . . . . . III-37 a. Preemption by Another Agency. . . . . . . . . . III-37 b. Labor Relations Disputes. . . . . . . . . . . . III-38 c. Expired Collective Bargaining Agreement . . . . III-38 d. Employee Representatives Not Employees of the Employer. . . . . . . . . . . . . . . . . . . . III-39 e. More Than One Representative. . . . . . . . . . III-39 f. Disruptive Conduct. . . . . . . . . . . . . . . III-39 g. Trade Secrets . . . . . . . . . . . . . . . . . III-39 h. Classified Areas. . . . . . . . . . . . . . . . III-40 i. Apparent Violations Observed Prior to the Walkaround. . . . . . . . . . . . . . . . . . . III-40 j. Use of Tape Recorders . . . . . . . . . . . . . III-40 7. Examination of Record Programs and Posting Requirements . . . . . . . . . . . . . . . . . . . . III-40 a. Records . . . . . . . . . . . . . . . . . . . . III-40 b. Posting . . . . . . . . . . . . . . . . . . . . III-42 c. Additional Information. . . . . . . . . . . . . III-42 8. Walkaround Inspection. . . . . . . . . . . . . . . . III-43 a. General Procedures. . . . . . . . . . . . . . . III-43 b. Health Inspections. . . . . . . . . . . . . . . III-50 c. Taking Photographs and/or Videotapes. . . . . . III-54 d. Interviews. . . . . . . . . . . . . . . . . . . III-54 e. Special Circumstances . . . . . . . . . . . . . III-57 9. Closing Conference . . . . . . . . . . . . . . . . . III-58 a. General . . . . . . . . . . . . . . . . . . . . III-58 b. Specific. . . . . . . . . . . . . . . . . . . . III-59 (1) Citation Issued . . . . . . . . . . . . . III-60 (2) Citation Posting . . . . . . . . . . . . . III-60 (3) Complying with Citation and Notification of Penalty. . . . . . . . . . . . . . . . . . III-61 (4) Informal Conference. . . . . . . . . . . . III-61 (5) Penalties . . . . . . . . . . . . . . . . III-62 (6) Contesting Citation and Notification of Penalty. . . . . . . . . . . . . . . . . . III-62 (7) Abatement Action . . . . . . . . . . . . . III-64 (8) Petition for Modification of Abatement Date . . . . . . . . . . . . . . . . . . . III-64 (9) Followup Inspection. . . . . . . . . . . . III-64 (10) Failure to Abate . . . . . . . . . . . . . III-65 (11) False Information. . . . . . . . . . . . . III-65 (12) Employee Discrimination. . . . . . . . . . III-65 (13) Variance . . . . . . . . . . . . . . . . . III-65 (14) SBA Loans. . . . . . . . . . . . . . . . . III-65 (15) De Minimis Violations. . . . . . . . . . . III-66 (16) Referral Inspection. . . . . . . . . . . . III-66 (17) OSHA-funded State Consultation Services. . III-66 (18) Other Agency Services and Program. . . . . III-66 E. Abatement. . . . . . . . . . . . . . . . . . . . . . . . . III-67 1. Period . . . . . . . . . . . . . . . . . . . . . . . III-67 2. Reasonable Abatement Date. . . . . . . . . . . . . . III-67 3. Abatement Periods Exceeding 30 Calendar Days . . . . III-68 4. Verification of Abatement. . . . . . . . . . . . . . III-68 5. Effect of Contest Upon Abatement Period. . . . . . . III-69 6. Feasible Administrative, Work Practice and Engineering Controls in Health Inspections . . . . . . . . . . . III-69 7. Long-term Abatement Date for Implementation of Feasible Engineering Controls. . . . . . . . . . . . III-72 8. Multistep Abatement. . . . . . . . . . . . . . . . . III-73 9. Petitions for Modification of Abatement. . . . . . . III-76 F. Employer Abatement Assistance. . . . . . . . . . . . . . . III-81 1. Policy . . . . . . . . . . . . . . . . . . . . . . . III-81 2. Type of Assistance . . . . . . . . . . . . . . . . . III-81 3. Disclaimers. . . . . . . . . . . . . . . . . . . . . III-81 4. Procedures . . . . . . . . . . . . . . . . . . . . . III-81 5. Services Available to Employers. . . . . . . . . . . III-82 G. Informal Conferences . . . . . . . . . . . . . . . . . . . III-82 1. General. . . . . . . . . . . . . . . . . . . . . . . III-82 2. Procedures . . . . . . . . . . . . . . . . . . . . . III-82 a. Notification of Participants. . . . . . . . . . III-82 b. Telephone Conference. . . . . . . . . . . . . . III-82 c. Participants by OSHA Officials. . . . . . . . . III-83 d. Conduct of the Informal Conference. . . . . . . III-84 e. Decisions . . . . . . . . . . . . . . . . . . . III-85 f. Failure to Abate. . . . . . . . . . . . . . . . III-85 H. Followup Inspections . . . . . . . . . . . . . . . . . . . III-86 1. Inspection Procedures. . . . . . . . . . . . . . . . III-86 2. Failure to Abate . . . . . . . . . . . . . . . . . . III-86 3. Reports. . . . . . . . . . . . . . . . . . . . . . . III-87 4. Followup Files . . . . . . . . . . . . . . . . . . . III-88 I. Conduct of Monitoring Inspection (PMAs and Long-Term Abatement) . . . . . . . . . . . . . . . . . . . . . . . . III-88 1. General. . . . . . . . . . . . . . . . . . . . . . . III-88 2. Procedures . . . . . . . . . . . . . . . . . . . . . III-88 APPENDIX A Narrative, OSHA-1A Form. . . . . . . . . . . . . . . . . . . . III-A-1 Industrial Hygiene Inspection Outline. . . . . . . . . . . . . III-A-6 Notice of Alleged Imminent Danger, OSHA-8 Form . . . . . . . . III-A-13 Photo Mounting Worksheet, OSHA-89 Form . . . . . . . . . . . . III-A-17 Note Taking Sheet, OSHA-94 Form. . . . . . . . . . . . . . . . III-A-21 Inspection Case File Activity Diary. . . . . . . . . . . . . . III-A-25 IV. VIOLATIONS A. Basis of Violations. . . . . . . . . . . . . . . . . . . . IV-1 1. Standards and Regulations. . . . . . . . . . . . . . IV-1 a. Definition and Application of Horizontal and Vertical Standards . . . . . . . . . . . . . . . . . . . IV-1 b. Violation of Variances. . . . . . . . . . . . . IV-3 2. General Duty Requirement . . . . . . . . . . . . . . IV-4 a. Evaluation of Potential 5(a)(1) Situations. . . IV-4 b. Discussion of 5(a)(1) Elements. . . . . . . . . IV-4 (1) A Hazard To Which Employees Were Exposed . IV-4 (2) The Hazard Must be Recognized. . . . . . . IV-7 (3) The Hazard Was Causing or Was Likely to Cause Death or Serious Physical Harm . . . . . . IV-9 (4) The Hazard May Be Corrected by a Feasible and Useful Method. . . . . . . . . . . . . . . IV-10 c. Use of the General Duty Clause. . . . . . . . . IV-11 d. Limitations on Use of the General Duty Clause . IV-12 e. Classification of Violations Cited Under the General Duty Clause . . . . . . . . . . . . . . . . . . IV-14 f. Procedures for Implementation of Section 5(a)(1) Enforcement . . . . . . . . . . . . . . . . . . IV-15 g. Reporting Hazards Not Covered by a Standard . . IV-16 3. Employee Exposure. . . . . . . . . . . . . . . . . . IV-16 a. Definition of Employee. . . . . . . . . . . . . IV-16 b. Observed Exposure . . . . . . . . . . . . . . . IV-16 c. Unobserved Exposure . . . . . . . . . . . . . . IV-16 d. Documenting Employee Exposure . . . . . . . . . IV-17 4. Regulatory Requirements. . . . . . . . . . . . . . . IV-18 5. Hazard Communication . . . . . . . . . . . . . . . . IV-18 B. Types of Violations. . . . . . . . . . . . . . . . . . . . IV-18 1. Serious Violations . . . . . . . . . . . . . . . . . IV-18 2. Other-than-serious Violations. . . . . . . . . . . . IV-24 3. Willful Violations . . . . . . . . . . . . . . . . . IV-24 4. Criminal/Willful Violations. . . . . . . . . . . . . IV-25 5. Repeated Violations. . . . . . . . . . . . . . . . . IV-28 6. De Minimis Violations. . . . . . . . . . . . . . . . IV-31 C. Health Standard Violations . . . . . . . . . . . . . . . . IV-32 1. General. . . . . . . . . . . . . . . . . . . . . . . IV-32 2. Citation of Ventilation Standards. . . . . . . . . . IV-32 3. Violations of the Noise Standard . . . . . . . . . . IV-34 4. Violations of the Respirator Standard. . . . . . . . IV-36 5. Violations of Air Contaminant Standards (29 CFR 1910.1000 Series). . . . . . . . . . . . . . IV-37 6. Classification of Violations of Air Contaminant Standards. . . . . . . . . . . . . . . . . . . . . . IV-38 a. Principles of Classification. . . . . . . . . . IV-38 b. Effect of Respirator Protection Factors . . . . IV-39 c. Additive and Synergistic Effects. . . . . . . . IV-39 7. Guidelines for Issuing Citations of Air Contaminant Violations. (Reserved) . . . . . . . . . . . . . . . IV-39 8. Violations of the Hazard Communication Standard (Reserved). . . . . . . . . . . . . . . . . . . . . .IV-39 9. Citing Improper Personal Hygiene Practices . . . . . IV-39 10. Classification of Violations for the New Health Standards . . . . . . . . . . . . . . . . . . . . . IV-41 V. CITATIONS A. Pre-Citation Consultation. . . . . . . . . . . . . . . . . V-1 1. General. . . . . . . . . . . . . . . . . . . . . . . V-1 2. Procedures . . . . . . . . . . . . . . . . . . . . . V-1 B. Writing Citations . . . . . . . . . . . . . . . . . . . . V-2 1. General. . . . . . . . . . . . . . . . . . . . . . . V-2 2. Specific Instructions . . . . . . . . . . . . . . . V-2 a. Standards and Regulations . . . . . . . . . . . V-2 b. SAVEs Manual. . . . . . . . . . . . . . . . . . V-3 c. Alternative Standards . . . . . . . . . . . . . V-3 d. Ordering of Violations on the Citation. . . . . V-3 C. Grouping and Combining of Violations . . . . . . . . . . . V-3 1. Definitions. . . . . . . . . . . . . . . . . . . . . V-3 2. Combining. . . . . . . . . . . . . . . . . . . . . . V-4 3. Grouping . . . . . . . . . . . . . . . . . . . . . . V-5 a. When to Group . . . . . . . . . . . . . . . . . V-5 b. When Not to Group . . . . . . . . . . . . . . . V-5 D. Employer/Employee Responsibilities . . . . . . . . . . . . V-6 1. Section 5(b) of the Act. . . . . . . . . . . . . . . V-6 2. Employee Refusal to Comply . . . . . . . . . . . . . V-7 E. Affirmative Defenses . . . . . . . . . . . . . . . . . . . V-7 1. Definition . . . . . . . . . . . . . . . . . . . . . V-7 2. Burden of Proof. . . . . . . . . . . . . . . . . . . V-7 3. Explanations . . . . . . . . . . . . . . . . . . . . V-7 F. Issuing Citations - Special Circumstances . . . . . . . . V-9 1. Follow-up Inspections. . . . . . . . . . . . . . . . V-9 2. Multi-Employer Worksites . . . . . . . . . . . . . . V-9 3. Violation by Violation . . . . . . . . . . . . . . . V-10 G. Amending or Withdrawing Citation and Notification of Penalty in Part or In Its Entirety. . . . . . . . . . . V-10 1. Citation Revision Justified. . . . . . . . . . . . . V-10 2. Citation Revision Not Justified. . . . . . . . . . . V-11 3. Procedures for Amending or Withdrawing Citations . . V-11 H. Settlement of Cases By Area Directors. . . . . . . . . . . V-12 1. General (Section 17 Designation) . . . . . . . . . . V-12 2. Pre-Contest Settlement (Informal Settlement Agreement) . . . . . . . . . . . . . . . . . . . . . V-14 3. Post-Contest Settlement (Formal Settlement Agreement) . . . . . . . . . . . . . . . . . . . . . V-16 4. Procedures for Preparing the Informal Settlement Agreement . . . . . . . . . . . . . . . . . . . . . V-17 5. Corporate-wide Settlement Agreements . . . . . . . . V-18 APPENDIX (SAVEs and AVDs) A. General. . . . . . . . . . . . . . . . . . . . . . . . . . V-17 B. SAVEs Manual . . . . . . . . . . . . . . . . . . . . . . . V-17 1. Purpose. . . . . . . . . . . . . . . . . . . . . . . V-17 2. Scope. . . . . . . . . . . . . . . . . . . . . . . . V-17 3. General Instructions . . . . . . . . . . . . . . . . V-18 4. SAVEs Options. . . . . . . . . . . . . . . . . . . . V-18 5. Violations Without SAVEs . . . . . . . . . . . . . . V-18 C. Examples . . . . . . . . . . . . . . . . . . . . . . . . . V-19 D. Citing Health Violations . . . . . . . . . . . . . . . . . V-25 E. Examples of Health SAVEs . . . . . . . . . . . . . . . . . V-25 VI. PENALTIES A. General Policy . . . . . . . . . . . . . . . . . . . . . . VI-1 B. Civil Penalties. . . . . . . . . . . . . . . . . . . . . . VI-1 1. Type of Violation as a Factor. . . . . . . . . . . VI-1 2. Statutory Authority. . . . . . . . . . . . . . . . . VI-1 3. Minimum Penalty. . . . . . . . . . . . . . . . . . . VI-2 4. Penalty Factors . . . . . . . . . . . . . . . . . . VI-2 5. Gravity of Violation . . . . . . . . . . . . . . . . VI-2 6. Severity Assessment . . . . . . . . . . . . . . . . VI-3 7. Probability Assessment . . . . . . . . . . . . . . . VI-3 8. Gravity-based Penalty. . . . . . . . . . . . . . . . VI-6 9. Gravity Calculations for Combined or Grouped Violations . . . . . . . . . . . . . . . . . . . . . VI-7 10. Penalty Adjustment Factors . . . . . . . . . . . . . VI-8 11. Imminent Danger Situations . . . . . . . . . . . . . VI-11 12. Effect on Penalties if Employer Immediately Corrects or Initiates Corrective Action . . . . . . . . . . . . VI-11 13. Failure to Abate . . . . . . . . . . . . . . . . . . VI-11 14. Repeated Violations. . . . . . . . . . . . . . . . . VI-14 15. Willful Violations . . . . . . . . . . . . . . . . . VI-15 16. Violation of 29 CFR 1903 and 1904 Regulatory Requirements . . . . . . . . . . . . . . . . . . . . VI-15 Table VI-1 (PENALTY TABLES). . . . . . . . . . . . . VI-19 C. Criminal Penalties . . . . . . . . . . . . . . . . . . . . VI-20 D. Handling Monies Received from Employers . . . . . . . . . VI-20 1. Responsibility of Area Director. . . . . . . . . . . VI-20 2. Receiving Payments . . . . . . . . . . . . . . . . . VI-20 a. Methods of Payment. . . . . . . . . . . . . . . VI-20 b. Identifying Payment . . . . . . . . . . . . . . VI-20 c. Adjustments to Payments . . . . . . . . . . . . VI-21 d. Incorrect, Unhonored or Foreign Payments. . . . VI-21 e. Endorsing Payments. . . . . . . . . . . . . . . VI-22 f. Depositing Payments . . . . . . . . . . . . . . VI-22 g. Records . . . . . . . . . . . . . . . . . . . . VI-22 3. Returning Penalty Payments . . . . . . . . . . . . . VI-23 E. Debt Collection Procedures . . . . . . . . . . . . . . . . VI-23 1. Policy . . . . . . . . . . . . . . . . . . . . . . . VI-23 2. Time Allowed for Payment of Penalties. . . . . . . . VI-23 3. Guidance for Determining Final Dates of Settlements and Review Commission Orders . . . . . . VI-24 4. Notification Procedures (First Demand Letter) . . . VI-25 5. Notification of Overdue Debt (Second Demand Letter). VI-25 6. Assessment of Additional Charges . . . . . . . . . . VI-26 7. Assessment Procedures. . . . . . . . . . . . . . . . VI-26 8. Application of Payments. . . . . . . . . . . . . . . VI-28 9. Uncollectible Penalties. . . . . . . . . . . . . . . VI-28 10. National Office Debt Collection Procedures . . . . . VI-28 11. Referral of an Uncollected Debt to the Solicitor . . VI-29 12. Compromise of Debts Over $100,000. . . . . . . . . . VI-30 VII. IMMINENT DANGER A. General. . . . . . . . . . . . . . . . . . . . . . . . . . VII-1 1. Definition . . . . . . . . . . . . . . . . . . . . . VII-1 2. Requirements . . . . . . . . . . . . . . . . . . . . VII-1 B. Preinspection Procedures for Handling Imminent Danger Situations . . . . . . . . . . . . . . . . . . . . . . . . VII-1 1. When an Imminent Danger Report Is Received by the Field. . . . . . . . . . . . . . . . . . . . . . . . VII-1 2. Technical Considerations . . . . . . . . . . . . . . VII-2 3. Scheduling . . . . . . . . . . . . . . . . . . . . . VII-3 C. Inspection . . . . . . . . . . . . . . . . . . . . . . . . VII-3 1. Scope. . . . . . . . . . . . . . . . . . . . . . . . VII-3 2. Procedures . . . . . . . . . . . . . . . . . . . . . VII-3 a. Advance Notice. . . . . . . . . . . . . . . . . VII-3 b. Refusal to Permit Inspection. . . . . . . . . . VII-4 c. Preemption Question . . . . . . . . . . . . . . VII-4 3. Elimination of the Imminent Danger . . . . . . . . . VII-4 a. Voluntary Elimination of the Imminent Danger. . VII-4 (1) What Constitutes Voluntary Elimination . . VII-4 (2) Action Where Voluntary Elimination Is Accomplished . . . . . . . . . . . . . . . VII-5 b. Action Where Voluntary Elimination Is Not Accomplished. . . . . . . . . . . . . . . . . . VII-6 4. Issuing Notice of Alleged Imminent Danger. . . . . . VII-6 5. Reporting the Issuance of Imminent Danger Notices (OSHA-8 Form). . . . . . . . . . . . . . . . . . . . VII-7 D. Citations and Proposed Penalties . . . . . . . . . . . . . VII-7 1. Citations and Penalties. . . . . . . . . . . . . . . VII-7 2. Effect of Court Action . . . . . . . . . . . . . . . VII-7 E. Followup Inspection. . . . . . . . . . . . . . . . . . . . VII-8 1. Court Action . . . . . . . . . . . . . . . . . . . . VII-8 2. No Court Action. . . . . . . . . . . . . . . . . . . VII-8 3. Immediate Correction . . . . . . . . . . . . . . . . VII-8 F. Removal of Imminent Danger Notice. . . . . . . . . . . . . VII-8 VIII. FATALITY/CATASTROPHE INVESTIGATIONS A. General. . . . . . . . . . . . . . . . . . . . . . . . . . VIII-1 1. Policy . . . . . . . . . . . . . . . . . . . . . . . VIII-1 2. Definitions . . . . . . . . . . . . . . . . . . . . VIII-1 3. Fatality/Catastrophe Investigations . . . . . . . . VIII-1 B. Action . . . . . . . . . . . . . . . . . . . . . . . . . . VIII-2 1. Preinvestigation Activities. . . . . . . . . . . . . VIII-2 a. Area Director . . . . . . . . . . . . . . . . . VIII-2 b. Preliminary Investigation . . . . . . . . . . . VIII-2 c. Investigation Team. . . . . . . . . . . . . . . VIII-2 d. Selection of CSHO . . . . . . . . . . . . . . . VIII-2 e. Equipment . . . . . . . . . . . . . . . . . . . VIII-3 f. Other Agency. . . . . . . . . . . . . . . . . . VIII-3 2. Investigation Procedures . . . . . . . . . . . . . . VIII-3 a. Scope . . . . . . . . . . . . . . . . . . . . . VIII-3 b. Inspection Strategy When a Comprehensive Inspection Is To Be Performed . . . . . . . . . . . . . . . . VIII-3 c. Abbreviated Opening Conference. . . . . . . . . VIII-3 d. Families of Victims . . . . . . . . . . . . . . VIII-4 e. Criminal. . . . . . . . . . . . . . . . . . . . VIII-6 C. Reports Removed. Refer to OSHA Instruction CPL 2.97. . . . . . . . . . . . . . . . . . . . VIII-6 D. Special Situations . . . . . . . . . . . . . . . . . . . . VIII-6 1. Preemption . . . . . . . . . . . . . . . . . . . . . VIII-6 a. General . . . . . . . . . . . . . . . . . . . . VIII-6 b. Agency Cooperation. . . . . . . . . . . . . . . VIII-7 2. Use of Expert Assistance . . . . . . . . . . . . . . VIII-7 a. National Office Contact . . . . . . . . . . . . VIII-7 b. Choice of Experts . . . . . . . . . . . . . . . VIII-7 c. Other Federal Agency. . . . . . . . . . . . . . VIII-8 d. Consultants . . . . . . . . . . . . . . . . . . VIII-8 e. Legal Advice. . . . . . . . . . . . . . . . . . VIII-8 3. Rescue Operations. . . . . . . . . . . . . . . . . . VIII-8 a. Consultation. . . . . . . . . . . . . . . . . . VIII-8 b. Rescue Operations . . . . . . . . . . . . . . . VIII-8 c. Application of Standards. . . . . . . . . . . . VIII-8 d. Emergency Situations. . . . . . . . . . . . . . VIII-9 4. Public Information Policy. . . . . . . . . . . . . . VIII-9 a. Area Director . . . . . . . . . . . . . . . . . VIII-9 b. Information Officer . . . . . . . . . . . . . . VIII-9 c. Other Officials . . . . . . . . . . . . . . . . VIII-9 IX. COMPLAINTS AND REFERRALS A. Complaints . . . . . . . . . . . . . . . . . . . . . . . . IX-1 1. General. . . . . . . . . . . . . . . . . . . . . . . IX-1 a. Agency Response . . . . . . . . . . . . . . . . IX-1 b. Complainant Identity. . . . . . . . . . . . . . IX-1 2. Definitions. . . . . . . . . . . . . . . . . . . . . IX-1 a. Complaint . . . . . . . . . . . . . . . . . . . IX-1 b. Employee. . . . . . . . . . . . . . . . . . . . IX-2 c. Representative of Employees . . . . . . . . . . IX-2 d. Formal Complaint. . . . . . . . . . . . . . . . IX-2 e. Nonformal Complaint . . . . . . . . . . . . . . IX-3 3. Receiving Complaints . . . . . . . . . . . . . . . . IX-4 4. Evaluating Complaints. . . . . . . . . . . . . . . . IX-5 5. Information Needed for Complaint Evaluation . . . . IX-6 a. Taking Complaints . . . . . . . . . . . . . . . IX-6 b. Additional Information. . . . . . . . . . . . . IX-6 6. Responding to Complaints Alleging Imminent Danger Conditions . . . . . . . . . . . . . . . . . . . . . IX-8 7. Responding to Formal Complaints. . . . . . . . . . . IX-8 a. Determination . . . . . . . . . . . . . . . . . IX-8 b. Priorities for Responding by Inspections to Formal Complaints. . . . . . . . . . . . . . . . . . . IX-8 8. Responding to Nonformal Complaints . . . . . . . . . IX-9 a. Responding by Letter to Nonformal Complaints. . IX-9 b. Responding by Inspection to Nonformal Complaints. . . . . . . . . . . . . . . . . . . IX-9 9. Scope of Inspection. . . . . . . . . . . . . . . . . IX-10 10. Procedures . . . . . . . . . . . . . . . . . . . . . IX-10 a. Copy of the Complaint . . . . . . . . . . . . . IX-10 b. Identity of Complainant . . . . . . . . . . . . IX-11 c. Walkaround Rights . . . . . . . . . . . . . . . IX-11 d. Results of Inspection to Complainant. . . . . . IX-11 e. Notification of Delays. . . . . . . . . . . . . IX-11 f. Citation Not Warranted. . . . . . . . . . . . . IX-11 g. Communication to Complainant. . . . . . . . . . IX-12 B. Referrals. . . . . . . . . . . . . . . . . . . . . . . . . IX-12 1. General. . . . . . . . . . . . . . . . . . . . . . . IX-12 2. Definitions. . . . . . . . . . . . . . . . . . . . . IX-12 3. Procedures . . . . . . . . . . . . . . . . . . . . . IX-15 X. DISCRIMINATION COMPLAINTS Removed. Refer to OSHA Instruction DIS .4B XI. TEMPORARY LABOR CAMP INSPECTIONS A. General. . . . . . . . . . . . . . . . . . . . . . . . . . XI-1 1. Background . . . . . . . . . . . . . . . . . . . . . XI-1 2. Definitions. . . . . . . . . . . . . . . . . . . . . XI-1 B. Enforcement of Temporary Labor Camp Standards. . . . . . . XI-1 1. Choice of Standards. . . . . . . . . . . . . . . . . XI-1 2. Informing Employers . . . . . . . . . . . . . . . . XI-2 C. Migrant Camp Inspection Procedures . . . . . . . . . . . . XI-2 1. Targeted Inspections . . . . . . . . . . . . . . . . XI-2 2. Regional Liaison with Other Agencies . . . . . . . . XI-2 3. Referrals and Complaints . . . . . . . . . . . . . . XI-3 4. Worker Occupied Housing. . . . . . . . . . . . . . . XI-3 5. Primary Concern. . . . . . . . . . . . . . . . . . . XI-3 6. Dimensions . . . . . . . . . . . . . . . . . . . . . XI-4 D. Documentation for Migrant Housing Inspections . . . . . . XI-4 XII. CONSTRUCTION A. General CSHO Responsibilities. . . . . . . . . . . . . . . XII-1 B. Standards. . . . . . . . . . . . . . . . . . . . . . . . . XII-1 1. Applicability . . . . . . . . . . . . . . . . . . . XII-1 2. Enforcement . . . . . . . . . . . . . . . . . . . . XII-2 C. Employer Worksite. . . . . . . . . . . . . . . . . . . . . XII-2 1. General. . . . . . . . . . . . . . . . . . . . . . . XII-2 2. Beyond Single Area Office. . . . . . . . . . . . . . XII-2 3. Administrative Convenience . . . . . . . . . . . . . XII-2 D. Advance Notice . . . . . . . . . . . . . . . . . . . . . . XII-2 1. General. . . . . . . . . . . . . . . . . . . . . . . XII-2 2. Authorized . . . . . . . . . . . . . . . . . . . . . XII-2 E. Entry of the Workplace . . . . . . . . . . . . . . . . . . XII-3 1. Severe Weather Conditions. . . . . . . . . . . . . . XII-3 2. Right to Enter--Refusal to Permit Inspection . . . . XII-3 3. Opening Conference . . . . . . . . . . . . . . . . . XII-3 a. Subcontractors. . . . . . . . . . . . . . . . . XII-3 b. Employee Representatives. . . . . . . . . . . . XII-3 c. Other Agency. . . . . . . . . . . . . . . . . . XII-4 d. Closing Conference. . . . . . . . . . . . . . . XII-4 e. Responsibilities for Common Services. . . . . . XII-4 f. Complaints. . . . . . . . . . . . . . . . . . . XII-4 4. Selecting Employer and Employee Representatives . . XII-4 a. Authorized Representative . . . . . . . . . . . XII-4 b. Employee Interviews . . . . . . . . . . . . . . XII-5 c. Walkaround Provisions . . . . . . . . . . . . . XII-5 d. Too Many Representatives. . . . . . . . . . . . XII-5 F. Closing Conference . . . . . . . . . . . . . . . . . . . . XII-6 1. General. . . . . . . . . . . . . . . . . . . . . . . XII-6 2. Contractor Names and Addresses . . . . . . . . . . . XII-6 G. Citations and Penalties. . . . . . . . . . . . . . . . . . XII-6 1. Mailing. . . . . . . . . . . . . . . . . . . . . . . XII-6 2. Where to Post Citations . . . . . . . . . . . . . . XII-6 XIII. FEDERAL AGENCY SAFETY AND HEALTH PROGRAMS A. Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . XIII-1 1. Statutory Requirements . . . . . . . . . . . . . . . XIII-1 2. Jurisdiction . . . . . . . . . . . . . . . . . . . . XIII-1 3. General Guidance . . . . . . . . . . . . . . . . . . XIII-2 4. Definitions. . . . . . . . . . . . . . . . . . . . . XIII-3 5. References . . . . . . . . . . . . . . . . . . . . . XIII-4 B. Compliance . . . . . . . . . . . . . . . . . . . . . . . . XIII-4 1. Targeted Inspections . . . . . . . . . . . . . . . . XIII-4 a. Targeting List. . . . . . . . . . . . . . . . . XIII-5 b. Special Emphasis Targeting. . . . . . . . . . . XIII-6 c. Scheduling of Targeted Inspections. . . . . . . XIII-6 d. Conduct of Targeted Inspections . . . . . . . . XIII-6 2. Fatality/Catastrophe Investigations . . . . . . . . XIII-6 a. Excluded Agencies . . . . . . . . . . . . . . . XIII-6 b. Receipt of Fatality/Catastrophe Reports . . . . XIII-6 c. Agency Investigation. . . . . . . . . . . . . . XIII-7 d. OSHA Investigation Decision . . . . . . . . . . XIII-7 3. Reports of Unsafe or Unhealthful Working Conditions (Complaints) . . . . . . . . . . . . . . . . . . . . XIII-7 a. Receipt and Recording of Complaints . . . . . . XIII-7 b. Responding to Complaints. . . . . . . . . . . . XIII-8 c. Responding to Complaints When the Agency Has Certified Committees. . . . . . . . . . . . . . XIII-9 d. Responding to Complaints When OSHA Does Not Have Authority. . . . . . . . . . . . . . . . . XIII-11 4. Reports of Safety and Health Program Violations. . . XIII-11 5. Reports of Reprisal. . . . . . . . . . . . . . . . . XIII-12 6. Refusal of Entry . . . . . . . . . . . . . . . . . . XIII-13 7. Warrants/Subpoenas . . . . . . . . . . . . . . . . . XIII-13 8. Recordkeeping and Reporting Requirements . . . . . . XIII-14 a. Occupational Injury/illness Logs (OSHA Logs). . XIII-14 b. OWCP Compensation Forms . . . . . . . . . . . . XIII-14 C. Evaluation . . . . . . . . . . . . . . . . . . . . . . . . XIII-14 1. Purpose. . . . . . . . . . . . . . . . . . . . . . . XIII-14 2. Time Frames. . . . . . . . . . . . . . . . . . . . . XIII-15 3. National Office Responsibilities . . . . . . . . . . XIII-16 4. Regional/Area Office Responsibilities for Evaluations . . . . . . . . . . . . . . . . . . . . XIII-18 D. Agency Technical Assistance Requests (ATARS) . . . . . . . XIII-22 E. Notice of Unsafe or Unhealthful Working Conditions, OSHA-2H Form, (OSHA Notice) . . . . . . . . . . . . . . . XIII-23 1. Issuance of OSHA Notice . . . . . . . . . . . . . . XIII-23 2. Cover Letter . . . . . . . . . . . . . . . . . . . . XIII-25 F. Informal Conference Procedures . . . . . . . . . . . . . . XIII-26 G. Verification of Abatement. . . . . . . . . . . . . . . . . XIII-27 H. Petitions for Modification of Abatement Dates (PMAs) . . . XIII-27 I. Failure-to-Abate . . . . . . . . . . . . . . . . . . . . . XIII-27 APPENDIX A 29 CFR 1960 Citable Program Elements . . . . . . . . . . . . . . . . . . . . . . . . XIII-A-1 XIV. DISCLOSURE A. Policy and Procedures. . . . . . . . . . . . . . . . . . . XIV-1 1. Policy . . . . . . . . . . . . . . . . . . . . . . . XIV-1 2. Procedures . . . . . . . . . . . . . . . . . . . . . XIV-1 B. Specific Guidelines. . . . . . . . . . . . . . . . . . . . XIV-1 1. Enforcement Proceedings. . . . . . . . . . . . . . . XIV-1 2. Disclosability of Records. . . . . . . . . . . . . . XIV-1 3. Requests for Records . . . . . . . . . . . . . . . . XIV-2 4. Disclosable Information on Case File Forms . . . . . XIV-2 5. Nondisclosable Information on Case File Forms. . . . XIV-5 6. Information Which May be Exempt from Disclosure in Whole or in Part on Case File Forms . . . . . . . XIV-7 7. Disclosure of Witnesses' Statements. . . . . . . . . XIV-11 8. Medical Records. . . . . . . . . . . . . . . . . . . XIV-11 9. State Plan Monitoring Files. . . . . . . . . . . . . XIV-11 10. Retention of FOIA Files. . . . . . . . . . . . . . . XIV-12 11. Waiver of Fees . . . . . . . . . . . . . . . . . . . XIV-12 XV. REVIEW COMMISSION A. General. . . . . . . . . . . . . . . . . . . . . . . . . . XV-1 B. Transmittal of Notice of Contest and Other Documents to Commission. . . . . . . . . . . . . . . . . . . . . . . XV-1 1. Notice of Contest . . . . . . . . . . . . . . . . . XV-1 2. Documents to Executive Secretary . . . . . . . . . . XV-2 a. All Notices of Contest . . . . . . . . . . . . XV-2 b. All Contested Citations and Notices of Proposed Penalty or Notice of Failure to Abate Issued in the Case. . . . . . . . . . . . . . . . . . . . . . XV-2 c. Certification Form. . . . . . . . . . . . . . . XV-2 d. Pamphlet or OSHA Forms. . . . . . . . . . . . . XV-3 3. Petitions for Modification of Abatement Dates (PMAs) XV-4 C. Transmittal of File to Regional Solicitor . . . . . . . . XV-4 1. Notification of The Regional Solicitor . . . . . . . XV-4 2. Information Required in Case File. . . . . . . . . . XV-4 3. Parties Served Notice of Contest . . . . . . . . . . XV-5 4. Other Legal Documents. . . . . . . . . . . . . . . . XV-6 5. Subpoena . . . . . . . . . . . . . . . . . . . . . . XV-6 D. Communications with Commission Employees . . . . . . . . . XV-6 E. Dealings With Parties While Proceedings Are Pending Before the Commission. . . . . . . . . . . . . . . . . . . XV-6 1. Clearance with Regional Solicitor. . . . . . . . . . XV-6 2. Inquiries. . . . . . . . . . . . . . . . . . . . . . XV-6 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance F. 4. b. The specific offerings of each of the resources identified shall be determined so that proper use may be made of them. c. Lists of these resources with names of contact persons, addresses and telephone numbers shall be developed and kept on file. They shall be updated at least once a year. d. Caution shall be exercised in making referrals to particular consultants or other private safety and health services or equipment distributors. OSHA does not wish to promote or to give the appearance of promoting specific enterprises. There are organizations to which interested parties can be referred for lists of such businesses. e. In State plan Area Offices, referral services would, of course, include referral to available State plan program services, such as enforcement and other compliance services, and training and education. 5. Other Services. a. Voluntary Compliance Programs. OSHA offers a large variety of voluntary compliance programs which employers shall be encouraged to investigate and in which to participate, when appropriate. (1) Voluntary Protection Programs. The Area Director and staff shall be familiar with the various VPP possibilities and should encourage and assist employers who may be apt participants in such programs. (2) Labor/Management Programs. The Area Director and staff shall also be familiar with programs being conducted. While potential participants in such programs may be limited, appropriate employers shall be encouraged and assisted to develop a program for consideration. b. Abatement Assistance. It is OSHA policy to offer assistance in every feasible manner toward the removal of safety or health hazards from the workplace. Such assistance shall be offered to any interested party as deemed appropriate and feasible by the Area Director in consultation with the Regional Administrator. Abatement assistance may be offered in connection with an enforcement inspection or independently of such an inspection. (1) When connected with citations issued as a result of an inspection, abatement assistance shall be governed by the guidelines in the FOM, Chapter III, F. (2) When no inspection is involved, OSHA shall offer any appropriate off-site assistance in removing hazards from the workplace. OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (a) Employers and employee representatives shall be encouraged to seek such assistance whenever it could be helpful. (b) The offering of such assistance shall be a part of the outreach program plan developed by each Area Director. The means of making known OSHA's policy of offering hazard removal assistance shall be determined as a part of that program plan. NOTE: Full Service Area Office assistance is appropriate when notice of an unsafe or unhealthful working condition comes to the Area Director's attention in an establishment otherwise exempt from enforcement activity by virtue of an industry exemption under the Appropriations Act. (See OSHA Instruction CPL 2.51H, or the most current version.) For example, if a nonformal complaint or a referral is received for such an establishment, it would be appropriate to write a letter to the employer noting the allegation, outlining the requirements of OSHA standards, suggesting voluntary abatement action and either offering offsite abatement assistance or informing the employer of consultation services available. (3) Onsite consultation services shall be made available to Federal agencies which request such assistance. (See Chapter XIII.) c. Other Technical Services. It is OSHA policy to offer technical assistance whenever appropriate. (1) Such services shall be available to any interested party within the Area Office community. They shall not be limited only to employers covered by the OSH Act. (2) The Area Office may loan out selected technical equipment on a limited basis to other Federal agencies, State program administrators, and OSHA contractors, such as 7(c)(1) consultation managers, provided that the borrowers are trained in the use of the equipment, for the purpose of conducting initial monitoring to identify potential health hazards, emergency monitoring, single case monitoring when processes have been changed, or for other legitimate purposes. Loans of equipment for routine monitoring are not feasible. (3) Guidelines shall be developed in each Region governing the lending policies and procedures to be followed in the Area Office. Such policies and procedures shall include the following national guidelines: I-12 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance CHAPTER II COMPLIANCE PROGRAMMING A. Program Planning. 1. Purpose. Compliance Programming provides general guidelines to the Regional Administrator and Area Director in planning compliance operations and related activities and instructions for their implementation. 2. Primary Consideration. The primary consideration in conducting compliance operations is the attainment of maximum effective inspection coverage. To achieve this goal, the guidelines in this chapter shall be used for scheduling inspections. B. Inspection/Investigation Types. 1. Unprogrammed. Inspections scheduled in response to alleged hazardous working conditions that have been identified at a specific worksite are unprogrammed. This type of inspection responds to imminent dangers, fatalities/catastrophes, complaints and referrals. It also includes followup and monitoring inspections scheduled by the Area Office. NOTE: This category includes all employers directly affected by the subject of the unprogrammed activity. 2. Unprogrammed Related. Inspections of employers at multi-employer worksites whose operations are not directly affected by the subject of the conditions identified in the complaint, accident, or referral are unprogrammed related. An example would be a trenching inspection conducted at the unprogrammed worksite, where the trenching hazard was not identified in the complaint, accident report, or referral. 3. Programmed. Inspections of worksites which have been scheduled based upon objective or neutral selection criteria are programmed. The worksites are selected according to national scheduling plans for safety and for health or special emphasis programs. 4. Programmed Related. Inspections of employers at multi-employer worksites whose activities were not included in the programmed assignment such as a low hazard employer at a worksite where programmed inspections are being conducted for all high hazard employers. All high hazard employers at the worksite shall normally be included in the programmed inspections. (See Chapter III, D.3.h.(1).) II-1 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance C. Inspection Scope. Inspections, either programmed or unprogrammed, may fall into one of two categories depending on the scope of the inspection: 1. Comprehensive. A substantially complete inspection of the potentially high hazard areas of the establishment. An inspection may be deemed comprehensive even though, as a result of the exercise of professional judgment, not all potentially hazardous conditions, operations and practices within those areas are inspected. 2. Partial. An inspection whose focus is limited to certain potentially hazardous areas, operations, conditions or practices at the establishment. a. A partial inspection, whether programmed or unprogrammed, may include, in addition to its principal focus, a review of injury and illness records, an assessment of the employer's hazard communication and lockout/tagout programs, an evaluation of the employer's safety and health management program, and a brief walkaround to survey, as deemed appropriate, those areas, conditions, operations, and practices that, based on the exercise of discretion and professional judgment, are believed to have the greatest hazard potential, but see Chapter III, D.1.d.(5)(b) regarding inspection warrants. b. The information gathered during this review and walkaround shall be used to confirm or revise the determination made in accordance with the FOM, Chapter III, D.7.c., as to whether the inspection's scope should be expanded. D. Inspection Selection Criteria 1. General Requirements. OSHA's priority system for conducting inspections is designed to distribute available OSHA resources as effectively as possible to ensure that maximum feasible protection is provided to the working men and women of this country. a. Scheduling. The Area Director shall ensure that inspections are scheduled within the framework of the priorities outlined in this chapter, that they are consistent with the objectives of the Agency, and that appropriate documentation of scheduling practices is maintained. (See OSHA Instruction CPL 2.51H (or most current version) for current congressional exemptions and limitations on OSHA inspection activity.) b. Effect of Contest. If an employer scheduled for inspection, either programmed or unprogrammed, has contested a citation and/or a penalty received as a result of a previous inspection and the case is still pending before the Review Commission, the following guidelines apply: II-2 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (1) If the employer has contested the penalty only, the inspection shall be scheduled in accordance with the guidelines given under F, that is, it shall be scheduled as though there were no contest. (2) If the employer has contested the citation itself or any items thereon, then: (a) Unprogrammed inspections shall be scheduled in accordance with the guidelines in E.1. The scope of such an inspection normally shall be partial. All items under contest shall be excluded from the inspection unless a potential imminent danger is involved. (b) Programmed inspections may be carried over to the next cycle in accordance with the guidelines given under F.2.b.(1)(e) 1, F.2.b.(2)(e) 3, and F.2.b.(3)(c) 5 b. Such inspections may continue to be carried over until the case is no longer before the Commission. If the inspection is done, all items under contest shall be excluded from the inspection unless a potential imminent danger is involved. (c) On rare occasions, when warranted by the particular circumstances involved, programmed safety inspections may be carried over to the next cycle when the employer has contested a previously issued health citation. The same is true for programmed health inspections when the employer has contested a previously issued safety citation. The decision to carry such an inspection over shall be made only after consultation with the Regional Administrator. 2. Employer Contacts. Contacts for information initiated by employers or their representatives shall not trigger an inspection, nor shall such employer inquiries protect them against regular inspections conducted pursuant to guidelines established by the agency. Further, if an employer or his representative indicates that an imminent danger exists or that a fatality or catastrophe has occurred, the Area Director shall act in accordance with established inspection priority procedures. E. Inspection Priorities. 1. Order of Priority. Unless otherwise noted in particular cases, priority of accomplishment and assignment of manpower resources for inspection categories shall be as follows: Priority Category First Imminent Danger Second Fatality/Catastrophe Investigations II-3 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance Third Investigation of Complaints/Referrals Fourth Programmed Inspections 2. Efficient Use of Resources. Unprogrammed inspections normally shall be scheduled and conducted prior to programmed inspections. For efficient use of resources, or when agency objectives so dictate, programmed inspections may occasionally receive a higher priority than unprogrammed inspections. For example, a programmed inspection may be conducted during the response period for a formal other-than-serious complaint. F. Inspection Scheduling. 1. Unprogrammed Inspections. Those inspections conducted in response to specific evidence of hazardous conditions at a worksite are considered unprogrammed inspections. a. Priorities. Unprogrammed inspections (excluding followups and monitoring) shall normally be scheduled with the following priorities: (1) Reports of alleged imminent danger situations from any source, including referrals and complaints regardless of formality (Chapter VII); (2) Fatalities/catastrophes (Chapter VIII); (3) Formal complaints, CSHO referrals, reinspection referrals, and referrals from other agencies, classified as serious (Chapter IX); (4) Media and employer reports of accidents involving serious injuries or hazards of a serious nature (Chapter IX, B.2.b.(6) and (7)); (5) 11(c) nonformal complaint referrals (Chapter IX, B.2.b.(4)); (6) Formal other-than-serious complaints (Chapter IX); (7) Nonformal complaints requiring an inspection (Chapter IX, A.8.b.). b. Scope. Unprogrammed inspections of an establishment are normally partial inspections limited to the specific working conditions or practices forming the basis of the unprogrammed inspection. Depending upon available resources, the scope may be expanded under any of the following circumstances which shall be documented in the case file: II-4 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (1) The establishment is listed on the current Area Office safety or health inspection register and the deletion criteria given in Chapter II or OSHA Instruction ADM 1-1.30, Chapter X, do not apply. (2) A substantially complete inspection of a construction or maritime establishment has not been conducted within the preceding 3 months. (3) OSHA inspection records for the establishment or for the employer in the case of a mobile worksite, indicate a history of significant violations. (4) The allegations providing the basis for the unprogrammed inspection indicate the existence of potential hazards which can be identified by expanding the inspection. (5) Any other legitimate reason as determined by the Area Director. NOTE: Any establishment or worksite covered under the Inspection Exemption through the Consultation Program, the Voluntary Protection Program or another similar qualifying program, normally shall not receive a comprehensive inspection unless the Regional Administrator for good reason decides otherwise. c. Followup Inspections. In cases where a followup inspection is necessary, it shall be conducted as promptly as resources permit. (1) Followup Inspection Priority. Except in unusual circumstances, followup inspections shall be conducted no later than 30 working days after the latest violation abatement date and shall take priority over all programmed inspections and any unprogrammed inspection with hazards evaluated as other- than-serious. The seriousness of the hazards requiring abatement shall determine the priority among followup inspections. NOTE: If unusual circumstances require modification of inspection priorities, the case file shall be documented regarding the unusual circumstances. (2) Required Followup Inspection. Followup inspections normally are required in the following situations: (a) Willful, repeated and high gravity serious violations; (b) Failure to abate notifications; (c) Citations related to an imminent danger situation; II-5 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (d) When the employer fails to respond to a request for notification of abatement action by letter or other means after having been contacted several times; and (e) Whenever the Area Director believes that particular circumstances (e.g., the number and/or the type of violations, past history of the employer, complex engineering controls, and etc.) indicate the need for a followup. NOTE: See Chapter III, D.9.b.(9). (3) Exceptions to Required Followup Inspections. It will not be necessary to conduct a followup inspection if any of the following applies: (a) Unquestionable Proof of Abatement. A followup inspection will not be necessary where unquestionable proof of abatement has been presented such as when the CSHO observed and documented the correction of the cited condition during the inspection. (b) Area Director Determination. The Area Director may determine that a followup inspection is not required. Justification for not conducting followup inspections may include statements by the employee or employer representative or other knowledgeable professionals attesting to the correction of the violation. NOTE: Written signed statements are preferred; however, verbal communications are acceptable if summarized by OSHA personnel in a written memorandum for the case file. (c) Administrative Closing of Case File. Where a required followup inspection has not been conducted within 6 months of the final correction date (and the case has become a final order of the Commission), the case file normally shall be administratively closed after consultation with the Regional Administrator. All administratively closed case files shall contain verification of abatement as well as documentation as to the reasons why the required followup inspection was not conducted. (4) Multiple Abatement Dates. If a followup inspection is to be conducted where an employer has been cited for a number of violations with varying abatement dates, the followup inspection normally shall not be scheduled until after most, if not all, of the abatement dates set forth for the more serious violations in the citation(s) have passed. If satisfactory corrective action has been taken by the employer, additional followup activity normally II-6 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance shall not be scheduled unless the Area Director believes that complex engineering controls or other special factors involved in the case warrant such activity. (5) Notice of Contest Not Filed. Followup inspections may be conducted during the 15- day notice of contest period provided the date set for abatement has passed and the employer has not actually filed such a notice. Normally, however, only those conditions considered high gravity serious shall subject an employer to being scheduled for followup during the contest period. If such a followup inspection reveals a failure to abate, a Notification of Failure to Abate Alleged Violation (OSHA-2B) may be issued immediately without regard to the contest period of the initial citation. (See Chapter V, F.1. and Chapter VI, B.13.a.) (6) Notice of Contest Filed. When a citation is currently under contest, a followup inspection shall not be scheduled regarding the contested items. (a) If the employer contests the proposed penalty but not the underlying citation, a followup inspection normally shall not be conducted unless the violations are considered high gravity and the Area Director decides that a followup is necessary. (b) If a followup inspection is conducted at establishments involved in proceedings before the Review Commission, the CSHO shall explain in the opening conference that the inspection will not involve matters before the Commission. (7) Final Order. When the notice of contest is withdrawn, the proceeding is settled, or the Commission affirms alleged violations that are contested, the abatement period begins; and a followup inspection may be scheduled as appropriate after the Area Director has received clearance from the Regional Solicitor. d. Monitoring Inspections. Monitoring inspections are conducted to ensure that hazards are being corrected and employees are being protected, whenever a long period of time is needed for an establishment to come into compliance. Such Inspections may be scheduled, among other reasons, as a result of a petition for modification of abatement date (PMA) (Chapter III, E.9); a corporate-wide settlement agreement (CSA) (OSHA Instruction CPL 2.90); or to ensure that terms of a permanent variance are being carried out. (1) Monitoring visits shall be conducted for each (PMA) date on serious, willful and repeated violations which extends the final abatement date by more than one year from the citation issuance date. II-7 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (a) These inspections shall be conducted as soon as possible after first contact with the employer but no later than 15 working days following the receipt of certification of posting unless an extension is requested and granted by the Review Commission. (See Chapter III, E.9.f. and g.) (b) Such inspections shall have priority equal to that of serious formal complaints. The seriousness of the hazards requiring abatement shall determine the priority among monitoring inspections. (2) Monitoring visits in response to PMAs for other-than-serious violations or for serious, willful, or repeated violations which would result in a final abatement date of one year or less from the citation issuance date shall be scheduled at the discretion of the Area Director, based on the gravity of the violation and on resource availability. (a) These inspections shall be conducted as soon as possible after first contact with the employer but not later than 15 working days following the receipt of certification of posting unless an extension is requested and granted by the Review Commission. (See Chapter III, E.9.f. and g.) (b) Such inspections shall have priority equal to that of serious formal complaints. The seriousness of the hazards requiring abatement shall determine the priority among monitoring inspections. (3) Monitoring visits shall be scheduled to check on progress made on long-term or multistep abatement plans whenever abatement dates extend beyond one year from the issuance date of the citation. (a) These inspections shall be conducted every 6 months, counted from the citation date until final abatement has been achieved for all cited violations. If the case has been contested, the final order date shall be used as a starting point, instead of the citation date. A settlement agreement may specify an alternative monitoring schedule. (b) If the employer is submitting satisfactory quarterly progress reports and the Area Director agrees, after careful review, that these reports reflect adequate progress on implementation of control measures and adequate interim protection for employees, a monitoring inspection may be conducted every 12 months. (c) Such inspections shall have priority equal to that of serious formal complaints. The seriousness of the hazards requiring abatement shall determine the priority among monitoring inspections. II-8 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (4) Monitoring visits shall be scheduled to verify compliance with the terms of granted variances. (a) The Directorate of Technical Support shall provide to each affected Area Office an updated list of granted variances at the beginning of each fiscal year. (b) The Area Director shall review each variance annually to determine if an inspection is warranted based on: 1 Significant differences from standards; 2 No monitoring for current and previous two fiscal years; or 3 Employer not in compliance with terms on previous inspections. (c) Such inspections shall have priority equal to that of a serious formal complaint. (d) A report on the results of these monitoring visits shall be forwarded to the Director of Technical Support through the Directors of Field Programs and Compliance Programs. (5) Monitoring visits may also be made for other reasons, as outlined in Chapter III, I.1. e. Reinspection Referrals. Once a determination is made that a reinspection referral is required, based on the definition in Chapter IX, B.2.b.(2), the inspection shall be conducted in accordance with the priorities given at F.1.a.(3). 2. Programmed Inspections. A programmed inspection generally is a comprehensive inspection of the worksite but may be limited as necessary in view of resource availability and other enforcement priorities. (Low hazard areas, such as office space, may be excluded from inspection without affecting the comprehensiveness of the inspection.) a. General. Certain considerations are fundamental to the implementation of OSHA's targeting system. (1) Policy. It is OSHA policy that inspections conducted as programmed inspections be primarily in the "high hazard" sectors of employment. (a) In the area of safety, the Agency considers a "high hazard industry" to be one within a Standard Industrial Classification (SIC) with a previous history of serious OSHA safety violations. II-9 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) In the area of health, the agency considers a "high hazard" industry to be one with a previous history of serious OSHA health citations. (c) For the purpose of scheduling programmed inspections, construction and maritime are considered to be categories of high hazard employment. (d) Other specific industries, such as logging, and oil and gas extraction, are also high hazard industries and are frequently scheduled for inspection as special emphasis programs. (2) Description. Both programmed safety inspections and programmed health inspections are scheduled using a multiple-step process. (a) The initial selection of a particular category of employment (e.g., Federal Agency, high hazard general industry, construction, maritime, or high hazard health) is made in accordance with current agency policy with actual numbers of planned inspections taken from the annual Field Operations Program Plan projections made at the Area Office level, reviewed at the Regional and National Office levels and approved by the Assistant Secretary. (See OSHA Instruction PAE 1.1B.) (b) Within a category, priority is established by grouping, such as by industry. Within the grouping establishments are selected for inspection and placed in an inspection cycle. 1 For Federal Agencies, the priority is based on the Lost Time Claims Rate (LTCR) List based on the Office of Worker Compensation Programs LTCR and a list of targeted agencies will be supplied by the National Office after consultations with the Regional Administrator and the agency DASHO. (See Chapter XIII.) 2 For General Industry safety, the priority is based on the number of serious safety violations per safety inspection by industry and the List of establishments within these industries will be provided by the National Office. 3 For General Industry health, the priority is based on the number of serious health violations per health inspection by industry and the list of establishments within these industries will be provided by the National Office. 4 For Construction, the universe of active construction sites is maintained by the Construction Resource Analysis (CRA) group at the University of Tennessee. Each month CRA randomly selects II-10 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance active worksites for inspection. Each area office receives the list from CRA and the OSHA Construction Inspection Reports for each site from F.W. Dodge. 5 For Low Hazard Manufacturing and Nonmanufacturing safety, the National Office supplies a list of establishments randomly selected from those available in each category and the Area Office selects the number needed from this list. (c) Where no establishment list is provided by the National Office (e.g., maritime and logging categories), the Area Director shall compile a complete list of active establishments (worksites) considering all establishments (worksites) within the coverage of the office and using the best available information (commerce directories, commercial telephone listings, local permits, local knowledge, etc.). From this list worksites for inspection will be selected randomly. b. Guidelines and Procedures. Programmed inspections shall be conducted jointly by both safety and health personnel whenever resources are available and it is likely, based on experience in inspecting similar workplaces, that both safety hazards and health hazards exist to a significant degree. If an inspection is begun as safety only or as health only but the CSHO determines during the course of the inspection that it should be expanded, the CSHO shall contact the Area Director or supervisor, as appropriate. A decision will then be made on the basis of the information available whether the inspection should be expanded and, if so, to what extent. A decision may also be made, based on resource availability, to handle the information as a CSHO referral for inspection at a later time. NOTE: Establishments which appear on both the safety and health registers should be scheduled for a joint safety/health inspection whenever practicable. (See F.2.b.(1)(e) 1 g.) (1) Inspection Scheduling for General Industry (Safety & Health). The following procedures are to be adhered to in programming General Industry safety and health inspections. NOTE: Federal Agency Program targeted inspections and onsite evaluations have a priority equal to that of private sector general industry programmed inspections. The scheduling system for these inspections is outlined in Chapter XIII. (a) Industry Rank Report. The National Office shall provide each Area/District Office with a Statewide Industry Rank Report (SIC List), listing industries by their 4-digit Standard Industrial Classification (SIC) II-11 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance codes where available. These lists are sent electronically at the beginning of each fiscal year. (See OSHA Instructions CPL 2.25H and ADM 1-1.30.) 1 The Safety SIC Lists are statewide listings of industries with a previous history of serious OSHA safety violations. A list is provided with the top 200 safety industries ranked by the industry's number of serious safety violations per inspection. The number of serious safety violations per inspection is calculated by dividing the number of serious safety violations for the previous three calendar years in the industry by the number of safety inspections conducted in the industry. 2 The Health SIC Lists are a statewide listing of industries with a previous history of serious OSHA health violations. A list is provided with the top 200 health industries ranked by the industry's number of serious health violations per inspection. The number of serious health violations per inspection is calculated by dividing the number of serious health violations for the previous five calendar years in the industry by the number of health inspections conducted in the industry. A list in SIC order is also provided. (b) Establishment Lists. The National Office will also provide a series of establishment lists (in rank order) for use by the Area Office in programming inspections. These lists are provided electronically when needed. NOTE: Establishments showing 10 or fewer employees, unless they are part of a larger employer, will be deleted from establishment lists provided by the National Office. 1 High Hazard Establishment List for Safety. A list of establishments located within the Area/District Office jurisdiction for each SIC code on the High Hazard SIC List (the top 200 safety industries) will be provided by the National Office as available to all Area/ District Offices. This list is divided into groups and made available electronically to all Area/District Offices. (See OSHA Instructions CPL 2.25H, Appendix B and ADM 1-1.30, Chapter X.) 2 Low Hazard Establishment List for Safety. A list of randomly selected establishments in industries not included in the top 200 safety industries located within the Area/District Office jurisdiction will be provided by the National Office to all Area/District Offices. A randomly selected pool of these establishments is included in II-12 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance each group of establishments made available electronically to all Area/District Offices. (See OSHA Instruction ADM 1-1.30, Chapter X.) 3 Nonmanufacturing Establishment List for Safety. A list of establishment randomly selected from industries with SIC codes in the ranges 0100 through 0799 and 4000 through 8999 and located within the Area/District Office jurisdiction will be provided by the National Office to all Area/District Offices. A randomly selected pool of these establishments is included in each group of establishments made available electronically to all Area/District Offices. (See OSHA Instruction ADM 1-1.30, Chapter X.) 4 Health Establishment List. A list of establishments located within the Area/District Office jurisdiction for each SIC code on the Health SIC List will be provided by the National Office as available to all Area/District Offices. This list is divided into groups and made available electronically to all Area/District Offices. (OSHA Instruction CPL 2.25H, Appendix A, and ADM 1-1.30, Chapter X.) 5 Adjustments. Prior to use of establishment lists provided by the National Office for scheduling purposes, the Area Director shall make appropriate additions and deletions as follows: NOTE #1: IMIS Codes for additions and deletions are also found in OSHA Instruction ADM 1-1.30, Chapter X, Table I, Update Codes. Additions and deletions may be applied to the inspection register (as defined in F.2.b.(1)(c)). No additions should be made to the Low Hazard Manufacturing and the Nonmanufacturing programmed inspection lists because the lists are a random sample of all establishments in each of these categories. The planning guide software will select the appropriate number of establishments for low hazard manufacturing and nonmanufacturing for each safety cycle. NOTE #2: Beginning with the FY 1994 establishment lists, all establishments with valid deletion criteria will be deleted by the National Office. Caution should be taken when adding establishments to the establishment list, since establishments will have been deleted in that SIC or may be included in a different SIC. II-13 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a Additions. The following updated code shall be used for adding establishments to the list: Code Description AA When information received from local sources reliably indicates that an establishment is classified within a SIC code on one of the SIC Lists but does not appear on the corresponding establishment list provided. Additions shall be placed on the proper SIC List in accordance with the listing criterion used; e.g., alphabetically, by size, etc. b Deletions. The following deletion codes shall be used to update establishment lists. Deletions for any other reason shall be requested from the Regional Administrator and approved by the Director of Compliance Programs. EXCEPTION: Approval from the National Office is not required when the deletion code is used to eliminate duplicate listings or establishments not within OSHA's jurisdiction. Activity Code Description (# = last digit of the fiscal year) A# Activity ceased or process not active. B# Business Closed -- Establishment is no longer in business. C# Consultation -- Establishment has been approved for exemption from inspection through consultation. H# Health ispection -- A substantially complete health inspection was conducted within the current or previous 3 fiscal years with no serious violations cited; or, where serious violations were cited, an acceptable abatement letter or a followup inspection has documented "good faith" efforts to abate all serious hazards. I# Incorrect SIC code -- The correct SIC code for the establishment is not on the current Safety High Hazard SIC List or the current Health High Hazard SIC List or the current Health SIC Lists. This deletion also applies when the correct estblishment II-14 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance SIC code is not on the Low Hazard SIC List when used for scheduling according to F.2.b.(1)(e) 4 a (i.e., when the correct SIC code is a nonmanufacturing code). EXAMPLES: Establishment is listed an incorrect SIC code which is on the High Hazard SIC List but the correct SIC code for the establishment is not on the High Hazard SIC List. Establishment is listed in a SIC code which was on the High Hazard SIC List for the fiscal year in which the Inspection Register was made up initially, but is no longer on the High Hazard SIC List at the time the inspection is scheduled. NOTE: If an establishment is listed on the Low Hazard or the Nonmanufacturing Establishment List for Safety under an incorrect SIC code, the establishment shall not be deleted from those lists unless the correct SIC code is Listed on the High Hazard SIC List. In that case, the establishment shall be removed from the Low Hazard or Nonmanufacturing Establishment List for Safety and added to the High Hazard Establishment List following F.2.b.(1)(f). J# Jurisdictional error -- Not within Area Office geographic area or jurisdiction. L# Location of establishment--Could ot be found. O# Other reasons for deletion not listed above. Approval for deletion shall be requested from the Regional Administrator and approved by the Director of Compliance Programs. P# Plant office or headquarters -- Nonplant facility. S# Safety inspection -- Any comprehensive programmed safety inspection or a substantially complete unprogrammed safety inspection conducted within the current or previous two (2) fiscal years. II-15 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance T# Ten or fewer employees -- Employers who had no more than 10 employees at any time during the previous 12 months. V# Voluntary protection program participation approved. Establishment has been approved to participation in the voluntary protection program. W# Reserved. Y# Carryover (c) Inspection Register. After all the appropriate additions and deletions are made, the Area Office inspection registers shall be made up by determining which establishments are to be scheduled for inspection during the current fiscal year. The number of projected programmed inspections is taken from the revised OSHA-146 Form (OSHA-146 EZ). This number shall be adjusted to reflect the number of planned inspections in each category that are expected to be done in the next year. The number of carryover establishments shall be subtracted to determine the number of establishments required to meet the projected number. 1 The Safety Inspection Register shall consist of the following elements: a Five percent of the total number of projected programmed high hazard safety inspections to be conducted shall be scheduled from the Low Hazard Establishment List; b Five percent of the total number of projected programmed high hazard safety inspections to be conducted shall be scheduled from the Nonmanufacturing Establishment List; NOTE: Since a fractional establishment cannot be inspected, five percent should be read to mean up to, but not exceeding five percent. If, for example the total number is 50, five percent would be 2.5, but only 2, not 3, establishments should be inspected. c Ninety percent of the total number of projected programmed high hazard safety inspections shall be selected in rank order from the High Hazard Establishment List, for the purpose of inspection scheduling. II-16 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 2 The Health Inspection Register shall consist of the total number of projected programmed health inspections selected in rank order from the Health Establishment List. 3 The inspection registers, together with adequate documentation on all additions, deletions, or other modifications, shall be maintained in the Area Office for 3 years following their completion. (See OSHA Instruction ADM 12.5 Appendix F, A.l. and B.1., Records Disposition Schedule NC1-100-82-1, Item 1a.) (d) Inspection Cycle. An inspection cycle is a group of establishments which have been selected for inspection. The cycle has two characteristics: 1) once started all establishments within the cycle must be inspected, and 2) the establishments within the cycle may be inspected in any order. Ideally, the size of the cycle should be such that all establishments will be inspected during the course of the fiscal year and there would be no carry over. It is best to estimate a cycle size of sufficient size to last 10 to 12 months. If the cycle is not large enough to cover the entire fiscal year, when it is about to be finished another cycle can be chosen that is of a size to cover the balance of the fiscal year. The next year's cycle will be selected from next year's register which will have refreshed data. (e) Inspection Scheduling. Within a cycle, establishments may be scheduled and inspected in any order that makes efficient use of available resources. 1 Each inspection cycle shall be completed before another cycle is begun. The only exceptions are as follows: a An establishment may be carried over to another cycle if the establishment is not operating normally because of strikes, seasonal fluctuations, or other factors. b An establishment may be carried over to another cycle if necessary equipment or personnel with necessary experience and qualifications to perform the inspection are not presently available. c An establishment may be carried over to another cycle if it is the last remaining establishment in a cycle, its inspection would require travel in excess of 50 miles and it cannot be combined with other inspection activity. II-17 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance d An establishment may be carried over to another cycle if the employer has not yet completed abatement action required as a result of a previous comprehensive OSHA inspection of the same inspection type (safety or health) because the final abatement date has not yet come. e An establishment may be carried over to another cycle if the employer has contested a citation item issued as a result of a previous OSHA inspection and the case is still pending before the Review Commission. f An establishment may be carried over to another cycle if the inspection cannot be completed due to the employer's refusal to allow the inspection. g An establishment may be carried over to another cycle if the inspection must be deferred because of the presence of a at the worksite or because the establishment has applied has not yet been approved in the Inspection Exemption through has has Consultation Program or a Voluntary Protection Program which carries a temporary exemption from inspection. h Approval for carrying over an establishment for reasons not listed above be requested from the Regional and approved by the Director, Office of Field Programs. NOTE: Although the Area Director is authorized to carry over inspections to another cycle for the reasons given in this subparagraph, in most cases there is no requirement to do so. o There may be good reasons for not carrying an establishment over to another cycle; in that case, the Area Director is free to schedule the inspection. o If an inspection is conducted rather than carried over and if there are items under contest or with an abatement date that is still open, those items shall be excluded from the scope of the inspection unless monitoring of abatement is required; e.g., pursuant to a settlement agreement. (See OSHA Instruction CPL 2.90.) II-18 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 2 As previously described, the inspection cycle is established with the number of projected at the beginning of the fiscal year. Number of inspections actually performed, however, will depend on factors such as staffing, unprogrammed inspection activity and special programs. If all establishments in the inspection cycle are inspected before the end of the fiscal year, another cycle shall be prepared by extending the inspection register. The number of establishments on this inspection cycle will be equal to the estimate of the number of inspections that the Area Office projects it can conduct prior to the end of the fiscal year. The planning guide software will give the 90/5/5 split for high hazard, low hazard and non- manufacturing as each cycle is generated. a If all establishments in the current cycle are inspected before the end of the fiscal year, another cycle shall be prepared by extending the inspection register to the next group consecutively numbered establishments on the high hazard list and randomly generated low hazard and non- manufacturing establishments. b The number of establishments on the extended inspection register will be equal to an estimate of the number of inspections that the Area Office projects it can conduct prior to the end of the fiscal year. 3 Any cycle begun but not yet completed at the end of the fiscal year shall be completed, subject to the exceptions set forth in F.2.b.(1) (e) 1, before beginning the new fiscal year inspection cycle. The number of inspections yet to be completed shall be taken into account in setting the new fiscal year inspection cycle. 4 In the event that inspections have been conducted in all eligible establishments on the Establishment Lists received from the National Office befor completing the planned number of inspections, the Area Director shall: a For safety, request from the National Office, through the Regional Administrator, additional establishments from the Low Hazard Establishment List, selected in rank order, making appropriate adjustments, according to F.2.b.(1)(b) 5. b For health, request from the National Office, through the Regional Administrator, a list of additional establishments within the next group of targeted health SIC codes. II-19 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (f) Deletions and Additions. Once the inspection cycle itself begins, the following policy shall guide additions and deletions: 1 An establishment shall be deleted from an inspection cycle whenever one of the criteria form deletion becomes applicable. For example, an establishment may be out of business or inactive. 2 Where it is learned only after the compliance officer has arrived at the establishment that one of the criteria for deletion applies, the inspection shall not be conducted (or continued if already begun). Citations for the completed portion of the inspection shall still be issued, unless the SIC code is exempted. (See OSHA Instruction 2.51H, or most current version.) 3 If the CSHO learns after arrival that the establishment has been classified in the wrong SIC code, but the correct SIC is on the safety or the health register, the CSHO shall conduct the inspection at that time. Otherwise, the inspection shall be deferred. 4 A newly discovered establishment may be added at any time to the inspection register. If the establishment's SIC was included in an already completed cycle, the inspection shall be performed as part of the next cycle. (2) Inspection Scheduling for Construction. Due to the mobility of the construction industry, the transitory nature of construction worksites and the fact that construction worksites frequently involve more than one construction employer, inspections shall be scheduled from a list of construction worksites rather than construction employers. The National Office will provide to each Area/District Office a randomly selected list of construction projects from all covered active projects. This list should contain the projected number of sites the office plans on inspecting in the next month. (a) Inspection List. OSHA has contracted with F.W. Dodge and the Construction Resources Analysis (CRA) group of the University of Tennessee. Each month F.W. Dodge will provide to CRA information on construction projects which are expected to start in the next 60 days. CRA adds to the Dodge data a time period when each project is active and maintains a file containing all active construction projects. From this file of active construction projects, CRA will generate monthly for each Area Office a randomly selected construction inspection list based upon: 1 Counties located within Area Office boundaries; II-20 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 2 Estimated number of worksites to be inspected during the monthly scheduling period (to be determined by the Area Director); 3 The selection criteria are to be determined by the Area Director based on local conditions, approved by the Regional Administrator, and provided to CRA for entry into the system. These selection criteria may be designed to include any class of worksites within the computerized selection process. Some examples of such criteria are: a A minimum dollar value of the construction project. b A minimum size of the project in square meters. c A certain length of time the project is likely to last. d Specific stages of construction project (in percent complete). e Specific types of construction projects. (b) OSHA Construction Inspection Reports. CRA will order appropriate OSHA Construction Inspection Reports, corresponding to the sites on the randomly selected list for each Area Office. (c) Limitation on Frequency of Selection. Normally, no site shall be selected for inspection more frequently than once per trimester. Therefore, CRA will remove from its master files any project selected for an inspection for a period of four months and reenter it in the fifth month if it is still active. Thus, if a list is not used, CRA should be notified so those sites will be returned to available status. Refer to paragraph F.2.b.(2)(d)4 for return procedures. (d) Scheduling Cycle. The scheduling period (cycle) for construction inspections shall be one calendar month. Each month, each Area Office will receive its programmed construction inspection list from CRA. Within the following 10 days it will receive the OSHA Construction Inspection Reports corresponding to the sites on the inspection list. Offices receiving 10 or fewer OSHA Construction Inspection Reports will receive them by FAX. This list will be dated the following month. It can be used when received and should be completed by the end of the month it is dated. The use of the current list is important because conditions change rapidly and the lists become out- dated. The best planning strategy is to receive from CRA the required number of sites for the month to ensure that the most current list is always being used. II-21 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 1 All sites on the inspection list shall be inspected, and the sites can be scheduled in any order to make efficient use of resources. 2 Complaints shall be treated in accordance with Chapter IX, A. All other information indicating the possible need for a construction inspection at a specific worksite shall be treated as a referral, in accordance with Chapter IX, B. 3 The Area Office shall make no deletions from the inspection list, except where the Area Director documents that: a Little or no construction activity at a worksite on the list has begun or activity has already been substantially completed before an inspection can be made. b A worksite has become ineligible for any reason; e.g., where a substantially complete inspection of the worksite has been conducted as a result of a complaint investigation. c A worksite has been approved for exemption from inspection through or for participation in the voluntary protection program. 4 If a new list is received and it is anticipated that it will not be used, because of a large number of sites remaining on the current list, the CRA shall be notified directly by the Area Office by FAX or phone as soon as practicable so that the unused sites may be restored to be eligible for possible selection on the next list. The unused list shall be marked as such and retained in the scheduling file. (See F.2.b.(2)(g)1.) (e) Completion of Inspection List. By the middle of each cycle, the Area Director shall assess progress in inspecting all sites on the list in order to plan resources for the following cycle. 1 If it appears that not all sites on the list will have been inspected by the end of the month, the Area Director may request a shortened list from CRA for the following month through the Assistant Regional Administrator for Federal-State Operations. 2 If it appears that all sites on the list will have been inspected by the end of the third week of the month, or if fewer employers are inspected than originally the Area Director may request a supplemental inspection list from CRA through the Assistant Regional Administrator for Federal-State Operations. II-22 OSHA Instruction CPL 2.45B CH-4 Office of General Industry Compliance Assistance 3 Consecutive months' lists may be combined and used concurrently. However, all sites from the first month of a combined list shall be inspected before worksites from the second month list are combined with a third month, except when a site is carried over as described at F.2.b.(2)(f) below. That is, lists for two consecutive months can be combined to form one combined cycle; but the first month's list must be completed or classified as carryover before the second months list can be combined with the third months list and so on. (f) Carryovers. Worksites on one inspection list may be carried over to the next cycle only under the following circumstances: 1 A worksite may be carried over to the next cycle if it is not operating normally at the time of the inspection because of strikes, weather or other factors. 2 A worksite may be carried over to the next cycle if necessary equipment or personnel with experience and qualifications to perform the inspection are not presently available. 3 A worksite may be carried over to the next cycle in the interest of efficient use of resources. The number of such carryovers may not exceed 25% of the total number of sites on the original cycle. Any worksite carried over in this manner may not be carried over a second time. 4 A worksite may be carried over to the next cycle if the inspection cannot be completed due to the employer's refusal to allow it. 5 A worksite may be carried over to the next cycle if conditions (construction activity at the site) have not changed substantially since a prior inspection. 6 A worksite may be carried over to the next cycle if the inspection must be deferred because of the presence of a consultant at the worksite. 7 Approval for carrying over a worksite for reasons not listed above must be requested from the Regional Administrator and approved by the Director of Field Programs. NOTE: Although the Area Director is authorized to carry over inspections to another cycle for the reasons given in this subparagraph, there is no requirement to do so. There II-23 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance may be good reasons for not carrying a worksite over to another cycle; in that case the Area Director is free to schedule the inspection. (g) Area Director Administration of Inspection List. The Area Director shall be responsible for maintaining documentation of the construction inspection list and for ensuring that selection criteria are current and appropriate. 1 The monthly construction inspection lists received from CRA and the corresponding OSHA Construction Inspection Reports shall be maintained in the Area Office for a period of 3 years after completion of the cycle whether they are used or not. (Records Disposition Schedule NC1-1800-82-1, Item 1a.) 2 If circumstances indicate a need to modify the Area Office's selection criteria on file with CRA, the Area Director shall contact the Assistant Regional Administrator for Federal- State Operations. All modifications to the Area Office's selection criteria shall be approved by the Regional Administrator and shall be effective for the month following entry into the computer if recieved by the 23rd of the month. (h) Health Construction Inspections. No seperate scheduling method is applied for programmed construction health inspections. Rather, the Area Director shall determine which construction inspections are to be conducted as a joint inspection where serious health hazards are likely to exist at the worksite. However, a local emphasis plan may be submitted and approved for scheduling health construction inspections. (3) Inspection Scheduling for Maritime. The maritime industry is made up of several industrial activities and, due to the unique differences among the industries, several scheduling methods are necessary. Consequently, maritime inspections shall be scheduled either as local emphasis programs as outlined in F.2.b.(4) or as follows: (a) Maritime Industries Scheduled With General Industry Inspections. All fixed maritime (shipyard) establishments listed on the safety or the health inspection registers for each Area Office shall be scheduled and inspected with General Industry as outlined in F.2.b.(1). (b) Maritime Inspections Scheduled With Construction. Maritime construction shall be scheduled with other construction inspections as outlined in F.2.b.(2). II-24 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (c) Water Transportation Services (Longshoring, Marine Terminals, Voyage Repair). Because of differences in conducting water transportation services operations in a large port, where, for example, many stevedores generally conduct longshoring operations, and on rivers and other waterways, where loading and unloading by a single employer is generally involved, water transportation services inspections may be scheduled either by port area or by employer. NOTE #1: The method of selection shall be determined at the beginning of each fiscal year by each Area Director, based on the type of water transportation services activities within the Area Office jurisdiction and on the ability to identify active employers and their worksites. The selection method shall be approved by the Regional Administrator. NOTE #2: Inspections may be scheduled by employer in large ports when the Area Director is able to identify all of the employers (stevedores) working within the port and, when a particular employer is to be inspected, all active worksites (vessels) of that employer. NOTE #3: All marine terminals, which may be associated with a port area or with an employer, and all voyage (mobile, nonfixed or dockside) ship repair operations which may be under way at the time of the scheduled water transportation services inspection shall be inspected along with the inspection of all active longshoring operations. 1 Inspection List. This list shall consist of the worksites from which water transportation services inspections will be scheduled. It may be constructed in either of two ways: a By Port Area. A list of Port Areas shall be prepared at the beginning of the fiscal year by the Area Director, using OSHA inspection history, local knowledge and experience, company schedules, and information from other sources. EXAMPLES: The port of Savannah might be subdivided into three Port Areas; the port of Houston might be subdivided into eight or more Port Areas. Other large ports may be subdivided in the same manner. (i) The list shall be arranged alphabetically by port and within each port by Port Area (location name). II-25 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (ii) This list shall be reviewed and revised as necessary each year and submitted to the Regional Administrator for approval. (iii) The Area Director shall use the Port Area List to prepare a list of all stevedores, marine terminals, and ship-building and repair employers working each Port Area. All of these employers who are actively working in the Port Area at the time of the scheduled inspection of the Port Area shall be included in the programmed inspection of the Port Area. (See, however, F.2.b.(3)(c) 5 a.) (iv) No employer shall be inspected at more than one worksite (vessel) during any Port Area inspection except for imminent danger reports, fatalities, formal complaints and referrals. (v) Port Areas which have received a substantially complete inspection within the preceding quarter (i.e., at least one worksite was inspected each employer working a Port Area at the time of the scheduled inspection) shall be deleted from the Port Area List for the next quarter. b By Employer. A list of all water transportation services employers within the Area Office jurisdiction shall be prepared, based on OSHA inspection history, local knowledge and experience, company schedules, and other sources. (i) If all employers identified are programmed for inspection within a cycle, no additional selection procedure is necessary except as outlined in F.2.b.(3)(c)5. (ii) If not all employers are to be inspected, the list shall be arranged alphabetically by employer name and by location. (iii) Employers who have received a substantially complete inspection in the previous fiscal year shall be deleted from the list for the next fiscal year unless all employers on the list received such an inspection. II-26 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (iv) The list of employees shall be reviewed and revised as necessary each year and submitted to the Regional Administrator for approval initially and whenever revised. 2 Numbering of List. After a list of Port Areas or a list of employers has been prepared and adjusted as necessary, the list is sorted alphabetically by name and location and each Port Area or each employer on the list shall be numbered consecutively, beginning with the number 1. 3 Quarterly Inspection Cycle for Port Areas. Using the number of water transportation services inspections projected for the year on the OSHA-146 EZ Form and divide by 4, a quarterly inspection cycle shall be prepared as follows: a Apply the random number table to the Port Area List which has been prepared as directed in F.2.b.(3)(c)2 a. b Select Port Areas in the order prescribed by the random numbers until the number of inspections estimated (i.e., total number of employers) at least equals the number of inspections projected for the applicable quarter. 4 Annual Inspection Cycle for Employers. Using the number of water transportation services inspections projected for the year in the OSHA-146 EZ Form, one annual inspection cycle shall be prepared as follows: a Apply the random number table to the Employer List which has been prepared as directed in F.2.b.(3)(c)2 b. b Select employers in the order prescribed by the random numbers until the number of inspections estimated at least equals the number of inspections projected projected for the fiscal year. c Random numbers would not be used if all employers on the list are to be inspected. 5 Inspection Scheduling. Within a cycle Port Areas or employers may be scheduled and inspected in any order that makes efficient use of available resources. a When scheduling workplaces in a larger port either by Port Area or by employer in accordance with F.2.b.(3)(c)1 a or c II-27 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance and all active workplaces of the scheduled employer are not to be inspected, the Area Director may select any of the active workplaces for inspection. Due consideration shall be given to resource availability, size and type of project involved, previous activity at the various locations, the potential presence of other related activities such as terminal operations and dockside repair activities, and other relevant factors in selecting the particular worksite(s) to be inspected. b Each inspection cycle shall be completed before the next cycle is begun. The only exceptions are as follows: (i) A worksite may be carried over to the next cycle if it is not operating normally because of strikes, or other factors. (ii) A worksite may be carried over to the next cycle if necessary equipment or personnel with experience and qualifications to perform the inspection are not presently available. (iii) A worksite may be carried over to the next cycle if its inspection would require travel in excess of 50 miles and it cannot be combined with other inspection activity. (iv) (NOT FOR PORT AREAS) An employer may be carried over to another cycle if the employer has not yet completed abatement action required as a result of a previous comprehensive OSHA maritime inspection of the same inspection type (safety or health) because the final abatement date has not yet come. (v) (NOT FOR PORT AREAS) An employer may be carried over to another cycle if the employer has contested a citation or a citation item issued as a result of a previous OSHA inspection of the same inspection type (safety or health) and the case is still pending before the Review Commission. (vi) A worksite may be carried over to the next cycle if the inspection cannot be completed due to the employer's refusal to allow it. II-28 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (vii) A worksite may be carried over to another cycle if the inspection must be deferred because of the presence of a consultant at the worksite or because the worksite is a participant in the Inspection Exemption through Consultation Program or a Voluntary Protection Program which carries a temporary exemption from inspection. (viii) Approval for carrying over a worksite for reasons not listed above must be requested from the Regional Administrator and approved by the Director of Compliance Programs. NOTE: Although the Area Director is authorized to carry over inspections to another cycle for the reasons given this subparagraph, there is no requirement to do so. there may be good reasons for not carrying a worksite over to another cycle; in that case the Area Director is free to schedule the inspection. c If all Port Areas in the quarterly inspection cycle or all employers in the annual cycle have been inspected but fewer employers are inspected than originally predicted, additional Port Areas or employers shall be selected appropriate list, using the order prescribed by the random numbers, until the additional number of inspections at least equals the number of inspections still needed to meet the number of inspections projected for the quarter or the year. d Similarly, if the Area Office is able to do more programmed water transportation services inspections than the number of inspections projected at the beginning of the year, additional Port Areas or employers shall be scheduled for inspection in the order prescribed by the random numbers. e At the end of a fiscal year the number of inspections yet to be completed in that cycle shall be taken into account in setting the new inspection cycle. EXAMPLE: At the end of the fiscal year an Area Office has 2 maritime employers left to inspect. If the projected number of II-29 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance water transportation services inspections for the new fiscal year is 10, the new list shall be used to select 8, rather than 10, maritime employers. 6 Deletions. After the beginning of an inspection cycle, a Port Area or employer shall be deleted from the inspection cycle if a substantially complete inspection of the Port Area or the employer has been conducted during an unprogrammed inspection. NOTE: This paragraph does not preclude further unprogrammed inspections conducted in response to specific evidence of conditions involving imminent danger or serious hazards at a worksite, such as those obtained through direct observations. These instances shall be evaluated by the Area Director and, if appropriate, investigated as referral inspections. 7 Other Maritime Industry Inspections. Maritime industries not covered by one of the above scheduling programs, such as oil and gas extraction and diving operations, shall be scheduled as local emphasis programs under the Special Emphasis Programs procedures outlined in F.2.b.(4). 8 Health Maritime Construction and Water Transportation Services) Inspections. No seperate programmed maritime health inspections. Rather, the Area Director shall determine which maritime inspections are to be conducted as joint inspections because serious health hazards are likely to exist at the worksite, or scheduled as a local emphasis program. (4) Special Emphasis Programs. Special Emphasis Programs provide for programmed inspections in high potential injury or illness rate situations which are not covered by the scheduling systems outlined in the preceding subsections of F.2.b. or, if covered, are not addressed to the extent considered adequate under the specific circumstances present. Special emphasis programs may also be used to set up alternative scheduling procedures or other departures from national procedures. They include National Emphasis Programs and Local Emphasis Programs. (a) Description. The description of and the reasons for specific National Emphasis Programs will be set forth in appropriate instructions or notices as the occasion arises. Local Emphasis Programs may be developed by the Area Office or by the Regional Office, depending on the matter addressed. II-30 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 1 The description of the particular Special Emphasis Program shall be identified by one or more of the following: a Specific industry. b Trade/craft. c Substance or other hazard. d Type of workplace operation. e Type/kind of equipment. f Other identifying characteristic. 2 The reasons for and the scope of a Special Emphasis Program shall be described described and may be limited by geographic boundaries, size of worksite, or similar considerations. 3 National or local pilot programs may also be established under Special Emphasis Programs. Such programs may be conducted for the purpose of assessing the actual extent of suspected or potential hazards, determining the feasibility of new or experimental compliance procedures, or for any other legitimate reason. (b) Scheduling Inspections. The following guidelines shall apply in scheduling Special Emphasis Program inspections: 1 Certain Special Emphasis Programs identify the specific worksites and/or industries that will be inspected; therefore, the only action remaining to be taken is the scheduling of inspections. 2 Other Special Emphasis Programs identify only the subject matter of the program and contemplate that not all worksites within the program will necessarily be inspected. 3 If no special worksites are identified within the program, the Regional Administrator or the Area Director shall use available information to compile a worksite list. 4 Where no procedures for scheduling worksites for inspection are specified by the National Office, the Regional Administrator or the Area Director shall develop such procedures. The procedures set forth in F.2.b.(2) for scheduling construction inspections may be used for scheduling worksites within Special Emphasis Programs. II-31 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance Scheduling procedures other than those specified in F.2.b(2) shall be submitted for approval to the Director of Compliance Programs through the Regional Administrator. (c) Program Evaluation. Agency policy currently requires the Regional Administrator to evaluate any special emphasis program approved for inspection within the Region. This evaluation shall consist of a report of the program's successes and difficulties in accomplishing its identified goals. Every program submitted for approval shall contain a program evaluation element. (5) Other Special Programs. The Agency may develop programs to cover special categories of inspections which are not covered under the planning guide or under Special Emphasis Programs. Currently migrant farmworker camp inspections have been designated as such a program. (a) In accordance with 20 CFR Part 42, OSHA has agreed to conduct migrant farmworker camp inspections annually, the number to be assigned by the Assistant Secretary in accordance with in accordance with current program plan procedures. These inspections are to be distributed among the Regions in accordance with traditional levels of such activity. (b) At the beginning of each season, the Regional Administrators for the Employment Standards Administration (ESA) will provide each Regional Administrator with a list of migrant farmworker camps which ESA does not intend to inspect itself. 1 The list will contain all known migrant camps except the ones to be inspected by ESA. 2 The list will also contain all known migrant camps not subject to ESA inspection because they do not have farm labor contractors associated with them. (c) When the list is received, the Regional Administrator shall determine what procedure is to be used for scheduling migrant camp inspections. These inspections may be scheduled either by the the Regional Office or by the Area Office. If the scheduling is to be done by the Area Office, the list received from ESA shall be subdivided by geographical area and forwarded to the appropriate Area Office as soon as possible. II-32 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (d) The Regional Administrator is responsible, under either scheduling procedure, for ensuring that the minimum number of inspections mandated for the Region is accomplished. Area Offices may be assigned a proportional number of the inspections for which the Region is responsible or some other equitable distribution procedure may be used. (e) The office responsible for scheduling these inspections shall proceed as follows: 1 Add to the ESA list (if one is recieved) all additional known migrant camps, using all available information, including OSHA inspection history, local knowledge and experience, and information from other relevant sources. This list shall be reviewed and revised as necessary each year. 2 Delete any camps known to be inactive from past experience or from other reliable sources from the list referred to in the preceding subparagraph. 3 If the total number of camps on the list is equal to or less than the number of inspections to be conducted, all of the camps shall be scheduled for inspection. 4 If the total number of camps exceed the number of inspections to be conducted, number the adjusted list consecutively beginning with 1. 5 Using a random number method and following the guidelines in OSHA Instruction CPL 2.25H, Appendix C, select farmworker camp sites in the order prescribed by the random numbers numbers until the number of camps selected equals the number of projected inspections for the year. The resulting list shall constitute the annual cycle. 6 If the Regional Office has scheduled the inspections for the whole Region, the list shall be subdivided and assigned to the appropriate Area Offices for inspection. 7 Camps on the list for inspection may be selected and inspected in any order that makes efficient use of available resources. II-33 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 8 The inspection cycle shall be completed before the end of the current growing season. The only exceptions are as follows: a An establishment may be carried over to the next cycle (next growing season) if substantially all activity has been completed at the site where the migrant camp is located and the camp itself has been vacated before the inspection could be conducted. b An establishment may be carried over to the next cycle if the inspection cannot be completed due to the employer's refusal to allow it and there is not enough time to obtain a warrant. c Approval for carrying over a worksite for reasons not listed above must be requested from the Regional Administrator and approved by the Director, Office of Field Programs. 9 As the cycle progresses, each time a camp is deleted as not inspectable or is carried over to the next cycle (year) for some legitimate reason, another camp shall be immediately selected from the migrant camp list in the order prescribed by the the random numbers and added to the inspection list until the number of inspections conducted equals the number of inspections needed to meet the total number projected for the Area (Regional) Office or until the list of known migrant camps is exhausted. G. Exemptions and Limitations. 1. Congress may place exemptions and limitations on OSHA activities through the annual Appropriations Act. Refer to current OSHA Instructions for guidelines on how to apply current exemptions and limitations to compliance programming. (See OSHA Instruction CPL 2.51H., or most current version.) 2. New construction activities within DOE sites will no longer be considered part of OSHA's jurisdiction. When such sites appear on targeting lists, they shall be deleted. If inspections are underway at such sites, they shall be terminated with appropriate explanations to the employer and to employee representative. Complaints from employees at such sites shall be referred to the DOE for resolution. See CPL 2.95, Enforcement Authority at the Department of Energy's (DOE) Government-Owned, Contractor-Operated (GOCO) Sites, February 10, 1992. II-34 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (1) Employees Represented by a Certified or Recognized Bargaining Agent. During the opening conference, the highest ranking union official or union employee representative shall designate who will participate in the walkaround. (2) Safety Committee. The employee members of an established plant safety committee or the employees at large may have designated an employee representative for OSHA inspection purposed or agreed to accept as purposes or agreed to accept as their representative the employee designated by the committee to accompany the CSHO during an OSHA inspection. (3) No Certified or Recognized Bargaining Agent. Where employees are not represented by an authorized representative, where there is no established safety committee, or where employees have not chosen or agreed to an employee representative for OSHA inspection purposes whether or not there is a safety committee, the CSHO shall determine is the CSHO shall determine if any other employees would suitably represent the interests of employees on the walkaround. (a) If selection of such employee representatives is impractical, the inspection shall be conducted without an accompanying employee representative; and the CSHO shall consult with a reasonable number of employees during the walkaround in accordance with the provisions of 29 CFR 1903.8 and Section 8(e) of the Act. (b) Employees selected for interviewing shall include individuals judged know knowledgeable about the area or process being inspected. 6. Special Situations. a. Preemption by Another Agency. Section 4(b)(1) states that the OSH Act does not apply to working conditions over which other Federal agencies exercose statutory responsibility. The determination of preemption by another Federal agency is, in many cases, a highly complex matter. To preclude as much as possible any misunderstanding with other agencies and to avoid consequent adverse actions by employers (or agencies) the Area Director shall observe the following guidelines whenever a situation arises involving a possible preemption of jurisdiction question: (1) The Area Director shall be alert to potential conflicts with other agencies at all times. If a question arises, usually upon receipt of a complaint, referral, or other inquiry, the OSHA Directives System shall be consulted immediately to determine if the issue has been addressed there in a Memorandum of Understanding or other agreement with the agency involved. III-37 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance NOTE: New construction activities within DOE sites are no longer considered part of OSHA's jurisdiction. See CPL 2.95, Enforcement Authority at the Department of Energy's (DOE) Government-Owned, Contractor- Operated (GOCO) Sites, February 10, 1992. (2) If not, the Area Director shall consult with the Regional Administrator who shall provide clarification of the issue after consulting with the Regional Solicitor, if appropriate, or with the other Federal agency's local or Regional Office. NOTE: Routine contact with other Federal agencies at the local and regional levels is highly desirable where Section 4(b)(1) issues may arise. Regional Administrators and Area Directors shall maintain active liason with their counterparts in other agencies to ensure full cooperation in the event a situation requires clarification. (3) If the Regional Office is unable to clarify the issue, it shall be referred to the Director, Office of Field Programs. (4) At times an inspection may have already begun when the Section 4(b)(1) question arises. In such cases the CSHO shall interrupt the inspection and contact the supervisor for guidance. (5) If, following an inspection, there remains any doubt as to OSHA coverage, the proposed citation and penalty shall be cleared with the Regional Solicitor, through the Regional Administrator, and, if necessary, the Director of Compliance Programs, prior to issuance. (6) If it is determined that OSHA does not have jurisdiction, the case shall be referred to the appropriate agency if if there is reason to believe that violations may exist. b. Labor Relations Disputes. The CSHO shall not become involved in labor relations disputes either between a recognized union and the employer or between two or more unions competing for bargaining rights. However, if there is a recognixed union, the highest ranking official available will designate the authorized walkaround representative even though another union may be seeking recognition. c. Expired Collective Bargaining Agreement. When a union contract has expired, the CSHO shall assume that the incumbent union remains as the bargaining agent unless that union is decertified officially replaced, or has abandoned bargaining agent status. III-38 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance d. Employee Representatives Not Employees of the Employer. Walkaround representatives authorized by employees will usually be employees of the employer. If, however, a a non-employee (union official, industrial hygienist, safety engineer, or other experienced safety or health person) is designated by the employees as their representative to accompany the CSHO during the inspection, such a person inspection, such a person normally shall be accorded walkaround rights consistent with 29 CFR 1903.8(c). Questionable circumstances, including delays of more than one hour, shall be referred to the supervisor. A non-employee representative shall be cautioned by the CSHO not to discuss matters pertaining to operations of the employer during the inspection. e. More Than One Representative. At establishments where more than one employer is present or in situations where groups of employees have different representatives, it is acceptable to have a different employer/employee representative for different phases of the More than one employer and/or representative may accompany the CSHO throughout or during any of an inspection if the CSHO determines that such additional will aid and not interfere with the inspection (29 CFR 1903.8(a)). (1) Whenever appropriate to avoid a large group, the CSHO shall encourage multiple employers to agree upon and choose a limited number of for walkaround accompaniment purposes. If necessary, during the employer representatives not on the walkaround shall be contacted to in particular phases of the inspection. (2) As an alternative, the CSHO shall divide a multi-employer inspection into separate phases; e.g., excavation, steel erection, mechanical, electrical, etc., encourage employer representatives to in different phases, as appropriate. (3) The same principles shall govern the selection of employee representatives when several are involved. f. Disruptive Conduct. The CSHO may deny the right of accompaniment to any person whose conduct interferes with a full and orderly inspection (29 1903.8(d)). If disruption or interference occurs, the CSHO shall use professional judgment to whether to suspend the walkaround or take other action. The supervisor shall be consulted the walkaround is suspended. The employee representative shall be advised that during the matters unrelated to the inspection shall not be discussed with employees. g. Trade Secrets. The CSHO shall ascertain from the employer if the employee representative is authorized to enter any trade secret area(s). If the CSHO shall consult with a reasonable number of employees who work in the area (29 CFR 1903.9(d)). III-39 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance h. Classified Areas. In areas containing information classified by an agency of the U.S. Government in the interest of national security, persons authorized to have access to such information may accompany a CSHO (29 CFR must also have the proper security clearances to enter these areas. i. Apparent Violations Observed Prior to the Walkaround. When an apparent violation is the CSHO prior to the walkaround, it shall be noted. All such apparent violations during the walkaround and cited if appropriate. When possible, serious violations and documented immediately at the commencement of the walkaround. j. Use of Tape Recorders. The use of tape recorders during the required conferences may inhibit the free exchange of information, and care be exercised in their use. Tape recorders may be used by the CSHO only after authorization by the supervisor. (1) The use of tape recorders may be authorized whenever circumstances justify it, such as where there is conflicting evidence that the preservation of statements is advisable or where securing statements from affected employees will delay the expeditious completion of the investigation. (2) The tape recorder shall not be used in locations where it may be hazardous. (3) If the employer, employer representative, affected employees, or any other witnesses object to recording their statements during part of the investigation, the inspection shall be continued without the tape recorder. 7. Examination of Record Programs and Posting Requirements. a. Records. As appropriate, the CSHO shall comply with the records review procedures that follow, and document the findings in the case file. NOTE: Exception -- For partial inspections, whether programmed or unprogrammed, the CSHO may, but is not required to, include a review of the injury and illness records and an assessment of some or all of the employer's programs. See Chapter II, C.2.a. (1) Injury and Illness Records. At the time of the inspection, all injury and illness records required by 29 CFR 1904 shall be examined. If the records have been examined during the current calendar year by a CSHO of same discipline, the CSHO need only review the injury and illness records since last inspection. The OSHA-200 data need not be entered on the OSHA-1, unless: III-40 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (a) The OSHA-200 data was not available at the time of the last inspection, but has now become available; or (b) The calendar year has changed since the last inspection and new OSHA-200 data is available. NOTE: The CSHO shall not request access to the Bureau of Labor Statistics survey questionnaire (OSHA-200S) or even ask if the employer has participated in the survey program. (2) Access to Employee Exposure and Medical Records. During all health inspections and safety inspections when designated by the supervisor, whatever the LWDI rate, the CSHO shall determine if applicable exposure and medical records are being maintained in accordance with the medical surveillance recordkeeping requirements of applicable standards or of 29 CFR 1910.20. CSHO access to the employee medical records is authorized under Other Regulations and Procedures, 29 CFR 1913.10(b)(4), for the limited purpose of verifying the existence of required records. Review of the content of such medical records may require a written access order or express employee consent. (See OSHA Instructions CPL 2-2.32, CPL 2-2.33, and CPL 2-2.46.) (3) Hazard Communication. [RESERVED] (4) Lockout/Tagout. Evaluations of compliance with lockout/tagout standards shall be conducted during all general industry inspections within the scope of the standard. The review of records shall include special attention to injuries related to maintenance and servicing operations. (See OSHA Instruction STD 1-7.3.) III-41 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (5) Other Records. Any other records which fall within the scope of the inspection and which are related directly to the purpose of the inspection (29 CFR 1903.3(a)) shall be examined. These may include, but are not limited to: (a) Required certification records properly completed and any available equipment inspection and maintenance records; (b) Medical surveillance or monitoring records, employee exposure records and other medical records not covered under the hazard communication standard. (See D.7.a.(3).) NOTE: Whenever circumstances indicate or whenever assigned by their supervisors, adequately cross-trained CSHOs conducting a safety inspection shall also conduct a survey of records required by various health standards to be maintained by the employer. These required records may be evaluated by the CSHO at the site or may be copied for examination by the health staff. (c) Safety committee minutes; checklists; records of inspections conducted by plant safety and health committees, insurance companies, or consultants; if voluntarily supplied by the employer. (d) Variance documentation. b. Posting. The CSHO shall determine if posting requirements are met in accordance with 29 CFR 1903 and CFR 1904. These include, but are not limited to: (1) OSHA poster informing employees of their rights and obligations under the Act. (2) Log and Summary of Occupational Injuries and Illnesses during the month of February. (3) Current citations, if any. (4) Petitions for Modification of Abatement Date (PMAs). c. Additional Information. It is OSHA policy that all safety and health inspections include an entry into and survey of the workplace. Physical inspection of the workplace offers the opportunity not only to identify hazards, but also to verify the effectiveness of safety and health programs. III-42 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (1) Accordingly, for all safety and health inspections, the CSHO shall review the employer's overall safety and health management program and specific programs such as those related to personal protective equipment and respiratory protection to evaluate their effectiveness and identify deficiencies. (2) This review shall include a brief survey of the workplace, focusing on any high hazard areas. (3) A partial inspection may be expanded, in consultation with the Area Director, based on the following factors: (a) Lack of comprehensive safety and health management program. (See D.8.a.(2) and Chapter III Appendix, "Narrative," B.18.) (b) Significant deficiencies in critical programs such as respiratory protection programs, hazard communication, lockout/tagout, wire rope inspection for cranes, or fire protection programs. (c) Moderate to high gravity serious violations of safety and health standards uncovered during the plant tour. (d) Concentrations of injuries or illnesses in specific areas of the plant. (e) Has a high injury and illness rate relative to their industry (SIC). (4) If it is determined to expand the inspection, the employer shall be immediately so notified. (5) Observed violations shall be documented and cited appropriately. 8. Walkaround Inspection. The main purpose of the walkaround is to identify potential safety and/or health hazards in the workplace. The CSHO shall conduct the inspection in such a manner as to eliminate unnecessary personal exposure to hazards and to minimize unavoidable personal exposure to the extent possible. a. General Procedures. It is essential during the walkaround portion of every inspection for the CSHO to: (1) Become familiar with plant processes, collect information on hazards, observe employees' activities and interview them as appropriate. (a) For health inspections, a preliminary tour of the establishment normally shall be accomplished before any decision to conduct an in-depth industrial hygiene investigation. III-43 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) Such a preliminary walkaround shall survey existing engineering controls and collect screening samples, when appropriate, to determine the need for full-scale sampling. 1 If screening reveals potentially high exposure levels, a comprehensive health inspection shall be conducted. 2 If screening samples must be sent to the laboratory for analysis, the employer shall be so informed. a If the laboratory results show that potentially high employee exposure levels exist, full-scale sampling of the potentially hazardous areas will be conducted. b If the results are negative, the file will be closed. (2) Evaluate the employer's safety and health program (whether written or not) as follows: (a) By ascertaining the degree to which the employer is aware of potential hazards present in the workplace and the methods in use to control them: 1 What plans and schedules does the employer have to institute, upgrade and maintain engineering and administrative controls? 2 What is the employer's work practices program? (b) By determining employee knowledge of any hazards which exist in the establishment; the extent to which the employer's program covers the precautions to be taken by employees actually or potentially exposed to plant hazards; emergency procedures and inspection schedules for emergency personal protective equipment; the program for the selection, use and maintenance of routine personal protective equipment; and overall quality and extent of the educational and training program and the degree of employee participation in it. 1 Compliance with the training requirements of any applicable safety and/or health standard shall be determined. 2 The following specific elements of the establishment safety and health program shall be evaluated in the detail appropriate to the circumstances of the inspection: III-44 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a Comprehensiveness. Evaluate the degree to which the employer's safety and health program addresses the full range of hazards normally encountered in the employers operations. This is an overall evaluation and shall take into account the evalutions of the remaining categories. Indicate whether the program is written. b Communication. Evaluate the employees' awareness of the access to the safety and health program, taking into account the principal means by which the program is communicated to them (e.g., oral instructions, booklets, memorandums, posters, etc.). Consider whether safety meetings are held by the employer, their frequency and the persons conducting them (e.g., crew foremen, intermediate level supervisors, safety director, etc.). The effectiveness of these means shall be considered in the evaluation. c Enforcement. Evaluate the degree to which safety and health rules are actually enforced, taking into account the principal methods used (e.g., warnings, written disciplinary action, discharge, etc.) and the effectiveness of these methods. Determine whether there is a staff (or one specific person) with assigned safety or health responsibilities and consider the effectiveness of the staff's performance. d Safety/Health Training Program. Evaluate separately any safety and health training programs the employer has. Factors to be considered include the need for special training in view of the hazards likely to be encountered or of specific requirements for such training and the need for ongoing or periodic training or retraining of employees. e Investigations. Evaluate the employer's efforts to make accident/ injury/illness investigations and indicate whether adequate corrective and preventive actions are taken as a result. (3) Determine compliance with specific performance standards that require emphases such as hazard communication and lockout/tagout. (4) Identify locations and conditions that recieved citations during a previous inspection and include follow-up or monitoring activities as part of the walkaround to ensure proper abatement or to determine abatement progress, if the citations are a final, unstayed order of the Review Commission. Follow-up and monitoring activities do not constitute a separate inspection when they are conducted as part of another investigation. No separate III-45 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance OSHA-1 should be submitted. Follow-ups will normally be conducted within three years. (a) Record all facts pertinent to an apparent failure to abate, repeated or willful violation on the appropriate compliance worksheets, as described in D.8.a.(5). (b) Determine if a letter of abatement previously received from the employer accurately described the correction of a previously cited violation. (c) Apparent violations shall be brought to the attention of employer and employee representatives at the time they are documented. (5) Record all facts pertinent to an apparent violation on the appropriate compliance worksheets. Apparent violations shall be brought to the attention of employer and employee representatives at the time they are documented. (a) All notes, observations, analyses, and other information shall be either recorded on the worksheet or attached to it. 1 Because this documentation is required for each instance of an alleged violation, the CSHO shall normally use one worksheet to describe each instance as it is note. 2 If identical violations of the same standard or of several related standards are noted in one general location in the establishment and if the documentation is essentially the same, all of those violations may be treated as a single instance description and only one worksheet need be completed for that instance. 3 Photographs, videotapes, sketches, and descriptions that are attached to the worksheet are part of the inspection record and shall be noted on the form. The original field notes, as a basic documentation of the violation, shall be attached to the worksheet and retained in the case file. See OSHA Instruction ADM 12.5, Pages D-8 and 9, for filing arrangement . (b) The CSHO shall provide as much detailed information as practical to establish the specific characteristics of each violation as follows: 1 Describe the observed hazardous conditions or practices (i.e., the facts which constitute a hazardous condition, operation or practice and the essential facts as to how and/or why a standard III-46 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance is allegedly violated). Specifically identify the hazards to which employees have been or could be exposed. Describe the type of accident which the violated standard was designed to prevent in this situation, or note the name and exposure level of any contaminant or harmful physical agent to which employees are, have been or could be exposed. If more than one type of accident or exposure could reasonably be predicted to occur, describe the one which would result in the most serioud injury illness. For the type of accident described, include: a All factors about the violative condition which could significantly affect the nature and severity of the resulting of the resulting injuries, (e.g., "fall of 20 feet (6 meters) onto protruding rebar"; "fall into water-filled excavation") b Other factors which could affect the probability that an injury would occur, such as: o Proximity of the workers to the point of danger of the operation. o Stress producing characteristics of the operation (e.g., speed, heat, repetitiveness, noise, position of employee). c For contaminants and physical agents, any additional facts which clarify the nature of employee exposure. d The identification of the equipment and process which pose the hazards, i.e., serial numbers, equipment types, trade names, manufacturers, and etc. Include a sketch when appropriate. e The specific location of the violation: o Building No. 3, second floor, column no. 6. o Machine Shop, N.E. corner, Department 12. o Foundry, N.W. corner, shakeout area. f State the nature of the more serious types of injury or illness which it is reasonably predictable and could result from the accident or health exposure. III-47 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance o Thus, the entry for the "fall from 20 feet (6 meters) onto protruding rebar" might read "death rebar" might read "death from multiple injuries." For exposure to asbestos, the entry might read "asbestosis, cancer and death." o Broad categories of injuries and health effects (such as "electric shock," "burns," or "lacerations") shall be qualified to indicate whether the injuries or health effects are major or minor. o In identifying the illnesses which a standard regulating exposure to an air contaminant or harmful physical agent is designed to prevent in a particular worksite, it may be necessary to consider not only the level of exposure but also the frequency and duration of exposure to the contaminant or agent. g Any specific measurements taken during the inspection (e.g., "20 ft. (6 m) distance from top of scaffold platform to ground level"; "employee standing 2 ft. (60 cm) from unguarded floor edge"; "employee seated 2 ft. (60 cm) from source of metal fumes") which will further document the nature of the hazardous conditions and operations. o Describe how measurements were taken during the inspection. o Identify the measuring techniques and equipment used and those who were present; i.e., employee or employer representative who observed the measurements being taken. o Include calibration dates and description of calibration procedures used, if appropriate. h Exposure facts so as to present a picture of employee exposure to the hazard for each particular occupation, including: o The occupation and the employer of the exposed employees if the employer is different from the one on the corresponding OSHA-1. o The number of exposed employees in that occupation. III-48 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (c) A transcription of a recorded statement shall be made if necessary; the transcription shall meet the requirments of D.8.d(5)(a) and (b). e. Special Circumstances. (1) Trade Secrets. Trade secrets are matters that are not of public or general knowledge. A trade secret is any confidential formula, pattern, process, equipment, list, blueprint, device or compilation of information used in the employer's business which gives an advantage over competitors who do not know or use it. (a) Policy. It is essential to the effective enforcement of the Act that the CSHO and all OSHA personnel preserve the confidentiality of all information and investigations which might reveal a trade secret. (b) Restrictions and Controls. When the employer identifies an operation or condition as a trade secret, it shall be treated as such. Information obtained in such areas, including all negatives, photographs, videotapes, and OSHA documentation forms, shall be labeled: "ADMINISTRATIVELY CONTROLLED INFORMATION" "RESTRICTED TRADE INFORMATION" 1 Under Section 15 of the Act, all information reported to or obtained by a CSHO in connection with any inspection or other activity which contains or which might reveal a trade secret shall be kept confidential. Such information shall not be disclosed except to other OSHA officials concerned with the enforcement of the Act or, when relevant, in any proceeding under the Act. 2 Title 18 of the United States Code, Section 1905, provides criminal penalties for Federal employees who disclose such information. These penalties include fines of up to $1,000 or inprisonment of up to one year, or both, and removal from office or employment. 3 Trade secret materials shall not be labeled as "Top Secret," "Secret," or "Confidential," nor shall these security classification designations be used in conjunction with other words unless the trade secrets are also classified by an agency of the U.S. Government in the interest of national security. (c) Photographs and Videotapes. If the employer objects to the taking of photographs and/or videotapes because trade secrets would or may be disclosed, the CSHO should advise the employer of the protection III-57 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance against such disclosure afforded by Section 15 of the Act and 29 CFR 1903.9. If the employer still objects, the CSHO shall contact the supervisor. (2) Areas Requiring Immunization. If, during an inspection, a non-immunized CSHO encounters an area requiring immunization, the CSHO shall not enter that area but shall note a description of the area, immunization required, employees exposed, location and other pertinent information in the case file. (a) Nonimmunized CSHO. The CSHO shall consult with the supervisor about scheduling a properly immunized CSHO for an immediate or later inspection, as applicable. The CSHO shall then complete the inspection of all other areas of the establishment. (b) Nonimmunized Walkaround Representative. If, during an inspection, a properly immunized CSHO finds that walkaround representatives of employers and employees are not properly immunized and, therefore, not authorized in the area, a reasonable number of employees and the supervisor of that area shall be consulted concerning workplace health and safety. (See B.7. for additional information.) (3) Violations of Other Laws. If a CSHO observes apparent violations of laws enforced by other government agencies, such cases shall be referred to the appropriate agency. Referrals shall be made using appropriate Regional procedures. 9. Closing Conference. At the conclusion of an inspection, the CSHO shall conduct a closing conference with the employer and the employee representatives. (On multi-employer worksites, the CSHO shall decide whether separate closing conferences will be held with each employer representative.) A joint closing conference shall be held with the employer and the employee representatives whenever practicable. Where either party wishes to have a separate conference or where it is not practical to hold a joint closing conference, separate closing conferences shall be held. A written summary of each conference shall be included in the case file. A copy of the written summaries will be available from the Area Director upon request by the employer or the employee representatives. a. General. The CSHO shall describe the apparent violations found during the inspection and indicate the applicable sections of the standards which may have been violated. During the closing conference, both the employer and the employee representatives shall be advised of their rights to participate in any subsequent conferences, meetings or discussions. III-58 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (2) Whether or not a plan is submitted before issuing a citation, an abatement plan shall be provided for in the citation in addition to a final abatement date. (3) When the plan is submitted, if the engineering or administrative corrections proposed by the employer appear to be all that are feasible based on the current technology, this fact may be stipulated and agreed to between OSHA and the employer. (a) Such an agreement shall permit assurances in advance to the employer that the establishment will be in compliance where the provisions of the plan are fully implemented. (b) It shall be made clear in the agreement that the employer is not relieved from instituting further engineering (or administrative) controls as they become technically feasible, it is likely that such further controls will lower employee exposure when exposure without personal protective equipment (PPE) remains over the PEL. (c) In all situations where an agreement is proposed, the advice of the Regional Solicitor shall be sought on the legal implications. (d) If an agreement is acceptable, the Regional Solicitor shall be requested to assist in drafting the agreement. Agreements having interregional implications shall be cleared with the Director, Office of Field Programs. (4) A statement agreeing to provide the affected Area Offices with written periodic progress reports shall be part of the long-term abatement plan. (See Chapter II and Chapter V for monitoring requirements.) 8. Multistep Abatement. Citations with multistep abatement periods normally will be issued only in those situations in which ultimate abatement will require the implementation of feasible engineering controls, as distinguished from feasible administrative controls or the use of PPE. Multistep abatements shall be based on the conditions cited and related feasibility considerations. a. General. A step-by-step program for abatement provides a tool for the CSHO to monitor abatement progress after a citation has been issued, for the employer to make abatement decisions and to set up schedules efficiently, and for the employees to understand the changes being made to the working environment. (1) Although abatement of an air contaminant citation normally requires the implementation of feasible engineering and/or administrative controls, III-73 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance abatement may be accomplished in rare cases through the use of PPE, even when engineering or administrative controls are feasible (see E.8.c.(3)). (2) In such cases the Regional Administrator shall contact the Directorate of Compliance Programs through the Office of Field Programs prior to approving final abatement through the use of PPE. b. Interim and Long-range Abatement. When the cited employer is found to have no effective personal protection program, in addition to long-term abatement through the use of feasible administrative or engineering controls, proper abatement will include a short-term requirement that appropriate PPE be provided. (1) The Area Director, in issuing the citation, shall set a short-range abatement date for prompt temporary protection to employees pending formulation and implementation of long-range feasible engineering and/or administrative controls. Short-range administrative controls and PPE shall be specified in the citation as the interim protection. (See Chapter V, Appendix, E. (Page V-26) for examples.) (2) If it has been determined that the employer will use engineering controls to achieve abatement, a specific date shall be set by which the employer can reasonably be expected to implement engineering controls, including enough time for the development of engineering plans and designs for such controls, as well as necessary construction or installation time. c. Considerations. In providing for multistep abatement the following factors shall be taken into consideration: (1) In general, engineering controls afford the best protection to employees, and the employer shall be required to utilize such controls in all instances to the extent feasible. The noise standards and 29 CFR 1910.1000 require the use of either engineering or administrative controls if any such controls are feasible. Engineering and work practice controls are to be used in preference to respirators and other personal protective equipment. In certain circumstances, administrative controls can be successful in controlling employee exposure to contaminants; e.g., maintenance operations involving toxic substances can sometimes be performed at night in the absence of the usual production staff. NOTE: Employee rotation is an administrative control that OSHA prohibits as a method of complying with the permissible exposure limits of carcinogens in the following standards: Asbestos 29 CFR 1910.1001(f)(2)(iv) III-74 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 29 CFR 1926.58(g)(3) Cadmium 29 CFR 1910.1027(f)(1)(v) 29 CFR 1915.1027(f)(1)(v) 29 CFR 1926.63(f)(1)(iv) Ethylene Oxide 29 CFR 1910.1047(f)(2)(iv) HAZWOPER 29 CFR 1910.120(g)(1)(iii) MDA 29 CFR 1910.1050(g)(3) 29 CFR 1926.60(h)(4) (2) Economic feasibility is a major issue to be considered when imposing such controls. Requirements that would threaten the economic viability of an entire industry cannot be considered economically feasible under the OSH Act. (3) OSHA may decide not to require engineering controls for abatement but to allow the use of PPE to abate the violation, at least until such time as engineering controls become a less significant burden for the company when the following conditions are met: (a) If significant reconstruction of a single establishment involving a capital expenditure which would seriously jeopardize the financial condition of the company is the only method whereby the employer could achieve effective engineering controls; (b) If there are no feasible administrative or work practice controls; and (c) If adequate personal protective equipment or devices are available. (4) Proper evaluation of the economic feasibility of engineering or administrative controls does not require the Area Director to understand all available economic information before deciding that the issue of potential economic infeasibility is involved. It is sufficient that the employer produce evidence of economic hardship adequate to convince the Area Director that abatement by such controls would involve considerable financial difficulty. (5) Whenever an employer complains that an unbearable economic burden would result from implementation of engineering or administrative controls, the Area Director shall request evidence from the employer. III-75 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (a) Such evidence shall address the reasonableness of the estimated costs of engineering or administrative controls, including installation, maintenance, and lost productivity, whenever applicable, as well as the progress of the employer compared to that of industry in installing such controls. (b) The relative costs of engineering or administrative controls versus PPE may also be provided. Such comparisons shall take replacement costs into account. (6) The Area Director shall discuss the problem with the Regional Administrator, whenever appropriate. The Regional Administrator shall determine whether engineering controls are economically infeasible. In cases with potential national implications, the decision (together with supporting evidence) shall be brought to the attention of the Director of Compliance Programs through the Director of Field Programs. (7) In those limited situations where there are no feasible engineering or administrative controls, full abatement can be allowed by PPE. 9. Petitions for Modification of Abatement Date (PMA). 29 CFR 1903.14a governs the disposition of PMAs. If the employer requests additional abatement time after the 15-working-day contest period has passed, the following procedures for PMAs are to be observed: a. Filing Date. A PMA must be filed in writing with the Area Director who issued the citation no later than the close of the next working day following the date on which abatement was originally required. (1) If a PMA is submitted orally, the employer shall be informed that OSHA cannot accept an oral PMA and that a written petition must be mailed by the end of the next working day after the abatement date. If there is not sufficient time to file a written petition, the employer shall be informed of the requirement of E.9.a.(2). (2) A late petition may be accepted only if accompanied by the employer's statement of exceptional circumstances explaining the delay. b. When a PMA Is Anticipated. Whenever a citation for engineering controls or other violation which the Area Director believes can reasonably be expected to give rise to a future PMA, the following procedures shall apply: (1) A followup date 45 days prior to the final abatement date shall be entered into the information retrieval system used by the Area Office. When that III-76 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance followup date arrives, the file shall be pulled and reviewed by the supervisor and the CSHO involved. (2) After review, the Area Director shall contact the employer to determine abatement progress. Information on the status of abatement shall be obtained and documented in the case file. The potential need for additional time shall be discussed with the employer. If the employer indicates that more time will be necessary to complete correction of the citations, this need shall be documented; and the procedures for seeking a PMA shall be explained. c. Requirements for a PMA. If a letter is received from an employer requesting a modification of an abatement date, the Area Director shall ensure that all of the following five requirements listed in 29 CFR 1903.14a are set forth in sufficient detail in the employer's petition: (1) All steps taken by the employer and the dates of such action in an effort to achieve compliance during the prescribed abatement period. (2) The specific additional abatement time estimated to achieve compliance. (3) The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date. (4) Interim steps being taken to safeguard the employees against the cited hazard during the abatement period. (5) Written certification, including a copy of the posted and served petition and the date upon which such posting and service was made, that a copy of the petition addressing, as appropriate, each of the requirements set forth in (1) through (4) of this subsection: (a) Has been posted in a conspicuous place near the location where the violation occurred or where all affected employees will have notice thereof. The petition shall remain posted for 10 working days. (b) Has been served on the authorized representative of affected employees where affected employees are represented by an authorized representative. d. Failure to Meet All Requirements. If the employer's letter does not meet all the requirements of E.9.c., a letter spelling out these requirements and identifying the III-77 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance missing elements shall be sent to the employer within 10 working days, specifying a reasonable amount of time for the employer to return the completed PMA. (1) If no response is received or if the information returned is still insufficient, a second attempt (by telephone or in writing) shall be made. The employer shall be informed of the consequences of a failure to respond adequately; namely, that the PMA will not be granted and the employer may, conse- quently, be found in failure to abate. (2) If the employer responds satisfactorily be telephone and the Area Director determines that the requirements for the PMA have been met, appropriate documentation shall be placed in the case file. e. Abatement Efforts. The Area Director shall take the steps necessary to ensure that the employer is making a good faith attempt to bring about abatement as expeditiously as possible. (1) Where engineering controls have been cited or required for abatement, a monitoring inspection shall be scheduled to evaluate the employer's abatement efforts. Failure to conduct a monitoring inspection shall be fully explained in the case file. (2) Where no engineering controls have been cited but more time is needed for other reasons not requiring assistance from OSHA, such as delays in receiving equipment, a monitoring visit need not normally be scheduled. (3) Monitoring inspections shall be scheduled as soon as possible after the initial contact with the employer and shall not be delayed until actual receipt of the PMA. (See E.9.b.(2).) (4) The CSHO shall decide during the monitoring inspection whether sampling is necessary and, if so, to what extent; i.e., spot sampling, short-term sampling, or full-shift sampling. (5) The CSHO shall include pertinent findings in the narrative along with recommendations for action. To reach a valid conclusion when recommending action, it is important to have all the relevant factors available in an organized manner. The following factors shall be considered: (a) Progress reports or other indications of the employer's good faith, demonstrating effective use of technical expertise and/or management skills, accuracy of information reported by the employer, and timeliness of progress reports. III-78 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) The employer's assessment of the hazards by means of surveys performed by in- house personnel, consultants and/or the employer's insurance agency. (c) Other documentation collected by area office personnel, including verification of progress reports, success and/or failure of abatement efforts, and assessment of current exposure levels of employees. (d) Employer and employee interviews. (e) Specific reasons for requesting additional time including specific plans for controlling exposure and specific calendar dates. (f) Personal protective equipment. (g) Medical programs. (h) Emergency action plans. NOTE: Not all these factors will be pertinent in every PMA review. Neither are all the factors listed which must be considered in every case. f. Delayed Decisions. Although OSHA policy is to handle PMAs as expeditiously as possible, there are cases where the Area Director's decision on the PMA is delayed because of deficiencies in the PMA itself, a decision to conduct a monitoring inspection and/or the need for Regional Office or National Office involvement. Requests for additional time (e.g., 45 days) for the Area Director to formulate a position shall be sent to the Review Commission through the Regional Solicitor. A letter conveying this request shall be sent at the same time to the employer and the employee representatives. g. Area Office Position on the PMA. After 15 working days following the PMA posting, the Area Director shall determine the Area Office position, agreeing with or objecting to the request. This shall be done within 10 working days following the 15 days (if additional time has not been requested from the Review Commission). The following action shall be taken: (1) If the PMA requests an abatement date which is one year or less from the issuance date of the citation, the Area Director has the authority to approve or object to the petition. (2) Any PMA requesting an abatement date which is more than one year from the issuance date of the citation requires the approval of the Regional Administrator as well as the Area Director. III-79 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (3) If the PMA is approved, the Area Director shall notify the employer and the employee representatives by letter. (4) If, after a second contact with the employer, the information required under E.9.c. continues to be substantially insufficient, the Area Director shall contact the Regional Administrator who, after consultation with the Regional Solicitor, shall object to the PMA. The relevant documentation shall be filed with the Review Commission in accordance with 29 CFR 1903.14a(d). (5) If supporting evidence justifies it (e.g., employer has taken no meaningful abatement action at all or has otherwise exhibited bad faith), the Area Director or the Regional Administrator, as appropriate and after consultation with the Regional Solicitor, shall object to the PMA. In such a case, all relevant documentation shall be sent to the Review Commission in accordance with 29 CFR 1903.14a(d). Both the employer and the employee representatives shall be notified of this action by letter, with return receipt requested. (a) The letters of notification of the objection shall be mailed on the same date that the agency objection to the PMA is sent to the Review Commission. (b) When appropriate, after consultation with the Regional Solicitor, a failure to abate notification may be issued in conjunction with the objection to the PMA. NOTE: If no objection is filed within the time frame in E.9.g., the PMA is automatically granted even if not explicitly approved. h. Employee Objections. Affected employees or their representatives may file an objection in writing to an employer's PMA with the Area Director within 10 working days of the date of posting of the PMA by the employer or its service upon an authorized employee representative. (1) Failure to file such a written objection with the 10-working-day period constitutes a waiver of any further right to object to the PMA. (2) If an employee or an employee representative objects to the extension of the abatement date, all relevant documentation shall be sent to the Review Commission. (a) Confirmation of this action shall be mailed (return receipt requested) to the objecting party as soon as it is accomplished. III-80 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) Notification of the employee objection shall be mailed (return receipt requested) to the employer on the same day that the case file is forwarded to the Commission. F. Employer Abatement Assistance. 1. Policy. CSHOs shall offer appropriate abatement assistance during the walkaround as to how workplace hazards might be eliminated. The information shall provide guidance to the employer in developing acceptable abatement methods or in seeking appropriate professional assistance. 2. Type of Assistance. The type of abatement assistance provided will depend on the needs of the employer and the complexity of the hazard. Where standards specify abatement methods, such as guarding of belts and pulleys, the CSHO shall, at a minimum, ensure that the employer is aware of the specifications. For more complex problems, the CSHO shall offer general information on types of controls or procedures commonly used to abate the hazard. Alternative methods shall be provided whenever possible. (See E.6 for more specific requirements on health inspections.) 3. Disclaimers. The employer shall be informed that: a. The employer is not limited to the abatement methods suggested by OSHA; b. The methods explained are general and may not be effective in all cases; and c. The employer is responsible for selecting and carrying out an effective abatement method. 4. Procedures. Information provided by OSHA to assist the employer in identifying possible methods of abatement for alleged violations shall be provided to the employer as it becomes available or necessary. The issuance of citations shall not be delayed. a. Assistance Provided During An Inspection. CSHOs shall utilize their knowledge and professional experience in providing the employer with abatement assistance during the inspection. (1) Before leaving an inspection site and, preferably, during the walkaround when an apparent violation is noted, CSHOs shall determine whether the employer wishes to discuss possible means of abating apparent violations. The discussion may continue at the closing conference. (2) CSHOs shall briefly document abatement information provided to the employer or the employer's negative response to the offer of assistance on the appropriate OSHA-1B Form. III-81 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance b. Assistance Provided After An Inspection. If a CSHO cannot provide assistance during an inspection or if the employer has abatement questions after the inspection, the Area Director shall ensure that additional information, if available, is obtained and provided as soon as possible to the employer. Any communications with the employer shall be documented in the case file. 5. Services Available to Employers. Employers requesting abatement assistance shall be informed that OSHA is willing to work with them even after citations have been issued. In addition, employers shall be made aware of the availability of OSHA-funded State Consultation Services for which they may qualify. (See D.9.b.(17).) G. Informal Conferences. 1. General. Pursuant to 29 CFR 1903.19, the employer, any affected employee or the employee representative may request an informal conference. NOTE: An informal conference may not be scheduled after receipt of a written Notice of Intent to Contest without prior approval of the Regional Solicitor. If the intent to contest is not clear, the Area Director shall contact the employer for clarification. 2. Procedures. Whenever an informal conference is requested by the employer, an affected employee or the employee representative, both parties shall be afforded the opportunity to participate fully. If the requesting party objects to the attendance of the other party, separate informal conferences shall be held. During the conduct of a joint informal conference, separate or private discussions shall be permitted if either party so requests. a. Notification of Participants. After an informal conference has been scheduled, the Area Director shall notify the affected parties of the date, time and place, by telephone and, if considered useful, in writing. (1) The employer shall be requested to complete and post the form found at the end of the informal conference letter until after the informal conference has been held. (2) Documentation of the Area Director's actions notifying the parties of the informal conference shall be placed in the case file. b. Telephone Conferences. The agency believes that better settlements can be arrived at by means of personal conferences between the Area Director and the employer; consequently, informal conferences shall normally not be held by telephone. III-82 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (1) When circumstances exist (e.g., the employer or the employee representatives would be required to travel long distances, there is insufficient time remaining for travel, or only the penalty amount is likely to be at issue) which the Area Director believes will justify a telephone conference, such circumstances shall be documented in the case file. (2) If a telephone conference is held, all of the procedures regarding notification of affected parties, participation of OSHA officials, conduct of the conference, documentation of discussions, and decision-making, outlined in G.2.a., c., d., and e., shall be followed as far as practicable. (3) The reasons justifying any departures from those procedures shall be explained in the case file. c. Participation by OSHA Officials. The inspecting CSHOs and their supervisors shall be notified of an upcoming informal conference and, if practicable, given the opportunity to participate in the informal conference (unless, in the case of the CSHO, the Area Director anticipates that only a penalty adjustment will result). They shall be advised of any changes made by the Area Director in the event that they were unable to participate. (1) In complex cases, in order to ensure that discussions of any possible settlement or modifications to the citation(s) and/or penalty may be completely and accurately recalled, at least one other OSHA employee (in addition to the Area Director) may be present at the informal conference. This employee may be the CSHO, supervisor, a clerical staff member, or other assigned person. (2) A second OSHA staff member (compliance officer, supervisor, or other assigned person) shall attend all informal conferences in the following situations: (a) Cases which involve total proposed penalties of $100,000 or more. (b) Cases which are so lengthy or complex that an additional individual is needed to provide assistance to the principal OSHA representative. (3) The Area Director shall ensure that notes are made indicating the basis for any decisions taken at or as a result of the informal conference. It is appropriate to tape record the informal conference and to use the tape recording in lieu of written notes, but the tape recording is not a substitute for the second OSHA conference participant under paragraph (2) above. III-83 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance d. Conduct of the Informal Conference. The Area Director shall conduct the informal conference in accordance with the following guidelines: (1) Opening Remarks. The opening remarks shall include discussions of the following: (a) Purpose of the informal conference. (b) Rights of participants. (c) Contest rights and time restraints. (d) Limitations, if any. (e) Settlements of cases. (f) Other relevant information. (2) Conference. The conference shall include discussion of any relevant matters including citations, safety and health programs, conduct of the inspection, means of correction, and penalties, in accordance with the following: (a) All parties shall be encouraged to participate fully so their views can be properly considered. (b) Positions on all issues discussed shall be fully considered before making a determination regarding possible settlement of the case in accordance with current OSHA procedures. (c) OSHA representatives shall make every effort to assist both the employer and the affected employees and/or their representatives to improve safety and health in the workplace. (d) If the Area Director states any views on the legal merits of the employer's contentions, it should be made clear that those views are personal opinions only. (3) Closing. At the conclusion of the discussion the main issues and potential courses of action shall be summarized. A copy of the summary, together with any other relevant notes or tapes of the discussion made by the Area Director, shall be placed in the case file. III-84 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance e. Decisions. At the termination of the informal conference, the Area Director shall make a decision as to what action is appropriate in the light of facts brought up during the conference. (1) When preparing to make a decision to settle a case, the Area Director shall make a reasonable effort to obtain the views of the employee representative, if there is one and if he/she was not in attendance at the conference. (There is no need to contact the employee representative if only a penalty adjustment is involved.) (2) Changes to citations, penalties or abatement dates normally shall be made by means of an informal settlement agreement in accordance with current OSHA procedures; the reasons for such changes shall be documented in the case file. (3) Employers shall be informed that they are required by 29 CFR 1903.19 to post copies of all amendments to the citation resulting from informal conferences. Employee representatives must also be provided with copies of such documents. This regulation covers amended citations, citation withdrawals and settlement agreements. (4) Affected parties shall be notified of the results and/or decisions of the informal conference in accordance with current OSHA procedures. (5) The CSHOs who conducted the inspection and their supervisors shall be informed of the results and/or decisions of informal settlement agreements and/or amended citations. (6) For more detail on settlement agreements, see Chapter V, H. f. Failure to Abate. If the informal conference involved an alleged failure to abate, the Area Director may set a new abatement date in the informal settlement agreement, documenting for the case file the time that has passed since the original citation, the steps that the employer has taken to inform the exposed employees of their risk and to protect them from the hazard, and the measures that will have to be taken to correct the condition. (1) One a new abatement date has been set, a modification of abatement date following current IMIS procedures shall be entered into the data system. (2) A letter shall be sent to the employer reminding him/her in the strongest possible terms that abatement is legally required if no written notice of contest is submitted within the contest period for the Notification of Failure to Abate Alleged Violation. III-85 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (3) The employer shall also be reminded that if there is any problem in meeting the new abatement date after it becomes a final order, a written PMA must be filed with the Area Director in accordance with E.9.a. H. Followup Inspections. 1. Inspection Procedures. The primary purpose of a followup inspection is to determine if the previously cited violations have been corrected. Normally, there shall be no additional inspection activity unless, in the judgment of the CSHO, there have been significant changes in the workplace which warrant further inspection activity. In such a case, the supervisor shall be consulted. 2. Failure to Abate. A failure to abate exists when the employer has not corrected a violation for which a citation has been issued or has not complied with interim measures involved in a multi-step abatement within the time given. a. Initial Followup. The initial followup is the first followup inspection after issuance of the citation. (1) If a violation is found not to have been abated, the CSHO shall inform the employer that the employer is subject to a Notification of Failure to Abate Alleged Violation and proposed additional daily penalties while such failure or violation continues. (2) Failure to comply with enforceable interim abatement dates involving multi-step abatement shall be subject to a Notification of Failure to Abate Alleged Violation. (3) Where the employer has implemented some controls, but other technology was available which would have brought the levels of airborne concentrations or noise to within the regulatory requirements, a Notification of Failure to Abate Alleged Violation normally shall be issued. If the employer has exhibited good faith, a late PMA for extenuating circumstances may be considered in accordance with E.9.a.(2). (4) Where an apparent failure to abate by means of engineering controls is found to be due to technical infeasibility, no failure to abate notice shall be issued; however, if proper administrative controls, work practices or personal protective equipment are not utilized, a Notification of Failure to Abate Alleged Violation shall be issued. (5) There may be times during the initial followup when, because of an employer's flagrant disregard of a citation or an item on a citation, or other factors, it will be apparent that additional administrative enforcement actions will be futile. In such cases, action shall be initiated under Section III-86 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 11(b) of the Act in the U.S. Court of Appeals. The Area Director shall notify the Regional Administrator, in writing, of all the particular circumstances of the case for referral to the Regional Solicitor. b. Second Followup. Any subsequent followup after the initial followup dealing with the same violations is a second followup. (1) After the Notification of Failure to Abate Alleged Violation has been issued, the Area Director shall allow a reasonable time for abatement of the violation before conducting a second followup. If the employer contests the proposed additional daily penalties, a followup inspection shall still be scheduled to ensure correction of the original violation. (2) If a second followup inspection reveals the employer still has not corrected the original violations, a second Notification of Failure to Abate Alleged Violation with additional daily penalties shall be issued if the Area Director, after consultation with the Regional Administrator and Regional Solicitor, believes it to be appropriate. If a Notification of Failure to Abate Alleged Violation and additional daily penalties are not to be proposed, the Area Director shall immediately contact the Regional Administrator, in writing, detailing the circumstances so the matter can be referred to the Regional Solicitor for action, as appropriate, in the U.S. Court of Appeals in accordance with Section 11(b) of the Act. 3. Reports. The applicable identification and description sections of the OSHA-1B/1B-IH Form shall be used for documenting correction of willful, repeated and serious violations and failure to correct items during followup inspections. If violation items were appropriately grouped in the OSHA-1B/1B-IH in the original case file, they may be grouped on the followup OSHA-1B, if not, individual OSHA-1B/1B-IH Forms shall be used for each item. The correction of other-than-serious violations may be documented in the narrative portion of the case file. a. Proper Documentation. The correction circumstances observed by the CSHO shall be specifically described in the OSHA-1B/1B-IH, including any applicable dimensions, materials, specifications, personal protective equipment, engineering controls, measurements or readings, or other conditions. Brief terms such as "corrected" or "in compliance" will not be accepted as proper documentation for violations having have been corrected. When appropriate this written description shall be supplemented by a photograph and/or a videotape to illustrate correction circumstances. Only the item description and identification blocks need be completed on the followup OSHA-1B/1B-IH with an occasional inclusion of an applicable employer statement concerning correction under the employer knowledge section, if appropriate. III-87 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance b. Sampling. The CSHO conducting a followup inspection to determine compliance with violations of air contaminants and noise standards shall decide whether sampling is necessary, and if so, what kind; i.e., spot sampling, short-term sampling or full-shift sampling. If there is reasonable probability of an issuance of a Notification of Failure to Abate Alleged Violation, full-shift sampling is required. c. Narrative. The CSHO shall include in the narrative the findings pursuant to the inspection, along with recommendations for action. In order to reach a valid conclusion when recommending action, it is important to have all the pertinent factors available in an organized manner. d. Failure To Abate. In the event that any item has not been abated, complete documentation shall be included on an OSHA-1B. 4. Followup Files. The followup inspection reports shall be included with the original (parent) case file. I. Conduct of Monitoring Inspection (PMAs and Long-Term Abatement). 1. General. An inspection shall be classified as a monitoring inspection when a safety/health inspection is conducted for one or more of the following purposes: a. To determine the progress an employer is making toward final correction. b. To ensure that the target dates of a multi-step abatement plan are being met. c. To ensure that an employer's petition for the modification of abatement dates is made in true and good faith and that the employer has attempted to implement necessary controls as expeditiously as possible. d. To ensure that the employees are being properly protected until final controls are implemented. e. To ensure that the terms of a permanent variance are being carried out. f. To provide abatement assistance for items under citation. 2. Procedures. Monitoring inspections shall be conducted in the same manner as followup inspections described under H of this chapter. III-88 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) Employer Recognition. A recognized hazard can be established by evidence of actual employer knowledge. Evidence of such recognition may consist of written or oral statements made by the employer or other management or supervisory personnel during or before the OSHA inspection. 1 Company memorandums, safety rules, operating manuals or operating procedures, and collective bargaining agreements may reveal the employer's awareness of the hazard. In addition, accident, injury and illness reports prepared for OSHA, workmen's compensation, or other purposes may show this knowledge. 2 Employee complaints or grievances to supervisory personnel may establish recognition of the hazard, but the evidence should show that the complaints were not merely infrequent, off-hand comments. 3 The employer's own corrective action may serve as the basis for establishing employer recognition of the hazard if the employer did not adequately continue or maintain the corrective action or if the corrective action did not afford any significant protection to the employees. (c) Common-sense Recognition. If industry or employer recognition of the hazard cannot be established in accordance with (a) and (b), recognition can still be established if it is concluded that any reasonable person would have recognized the hazard. This theory of recognition shall be used only in flagrant cases. EXAMPLE: In a general industry situation, a court has held that any reasonable person would recognize that it is hazardous to dump bricks from an unenclosed chute into an alleyway between buildings which is 26 feet (7.8 meters) below and in which unwarned employees work. (In construction, 5(a)(1) could not be cited in this situation because 29 CFR l926.252 or 1926.852 applies.) (3) The Hazard Was Causing or Was Likely to Cause Death or Serious Physical Harm. This element of a Section 5(a)(1) violation is virtually identical to the substantial probability element of a serious violation under Section 17(k) of the Act. Serious physical harm is defined in B.1. of this chapter. This element of a Section 5(a)(1) violation can be established by showing that: (a) An actual death or serious injury resulted from the recognized hazard, whether immediately prior to the inspection or at other times and places; or IV-9 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) If an accident occurred, the likely result would be death or serious physical harm. For example, an employee is standing at the edge of an unguarded piece of equipment, 25 feet (7.6 meters) above the ground. Under ese circumstances if the falling incident occurs, death or serious physical harm (e.g., broken bones) is likely. (c) In a health context, establishing serious physical harm at the cited levels may be particularly difficult if the illness will require the passage of a substantial period of time to occur. Expert testimony is crucial to establish that serious physical harm will occur for such illnesses. It will generally be easier to establish this element for acute illnesses, since the immediacy of the effects will make the causal relationship clearer. In general, the following must be shown to establish that the hazard causes or is likely to cause death or serious physical harm when such illness or death will occur only after the passage of a substantial period of time: 1 Regular and continuing employee exposure at the workplace to the toxic substance at the measured levels reasonably could occur; 2 Illness reasonably could result from such regular and continuing employee exposure; and 3 If illness does occur, its likely result is death or serious physical harm. (4) The Hazard May Be Corrected by a Feasible and Useful Method. To establish a Section 5(a)(1) violation the agency must identify a method which is feasible, available and likely to correct the hazard. The information shall indicate that the recognized hazard, rather than a particular accident, is preventable. (a) If the proposed abatement method would eliminate or significantly reduce the hazard beyond whatever measures the employer may be taking, a Section 5(a)(1) citation may be issued. A citation shall not be issued merely because the agency knows of an abatement method different from that of the employer, if the agency's method would not reduce the hazard significantly more than the employer's method. It must also be noted that in some cases only a series of abatement methods will alleviate a hazard. In such a case all the abatement methods shall be mentioned. (b) Feasible and useful abatement methods can be established by reference to: IV-10 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance b. The four-step analysis as outlined below is necessary to make the determination that an apparent violation is serious. Apparent violations of the general duty clause shall also be evaluated on the basis of these steps to ensure that they represent serious violations. The four elements the CSHO shall consider are as follows: (1) Step 1. The type of accident or health hazard exposure which the violated standard or the general duty clause is designed to prevent. (a) The CSHO need not establish the exact way in which an accident, or health hazard exposure would occur. The exposure or potential exposure of an employee is sufficient to establish that an accident or health hazard exposure could occur. However, the CSHO shall note the facts which could affect the severity of the injury or illness resulting from the accident or health hazard exposure. (b) If more than one type of accident or health hazard exposure exist which the standard is designed to prevent, the CSHO shall determine which type could reasonably be predicted to result in the most severe injury or illness and shall base the classification of the violation on that determination. (c) The following are examples of a determination of the type of accident or health hazard exposure which a violated standard is designed to prevent: 1 Employees are observed working at the unguarded edge of an open-sided floor 30 feet (9 meters) above the ground in apparent violation of 29 CFR 1926.500(d)(1). This regulation requires that the edge of the open-sided floor be guarded by standard railings. The type of accident which the violated standard is designed to prevent involves an employee falling from the edge of the floor, 30 feet (9 meters) to the ground below. 2 Employees are observed working in an area in which debris is located in apparent violation of 29 CFR 1915.91(b). The type of accident which the violated standard is designed to prevent involves an employee tripping on debris. 3 An 8-hour time-weighted average sample reveals regular, ongoing employee overexposure to beryllium at .004 mg/M3 in apparent violation of 29 CFR 1910.1000(b)(1). This is .002 mg/M3 above the PEL of health hazard exposure which the violated standard is designed to prevent. IV-19 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 4 An 8-hour time-weighted average sample reveals regular, ongoing employee overexposure to acetic acid at 20 ppm in violation of 29 CFR 1910.1000(a)(2). This is 10 ppm above the PEL of health hazard exposure which the violated standard is designed to prevent. (2) Step 2. The type of injury or illness which could reasonably be expected to result from the type of accident or health hazard exposure identified in Step 1. (a) In making this determination, the CSHO shall consider all factors which would affect the severity of the injury or illness which could reasonably be predicted to result from an accident or health hazard exposure. The CSHO shall not give consideration at this point to factors which relate to the probability that an injury or illness will occur. The following are examples of a determination of the types of injuries which could reasonably be predicted to result from an accident: 1 If an employee falls from the edge of an open-sided floor 30 feet (9 meters) to the ground below, that employee could break bones, suffer a concussion, or experience other more serious injuries. 2 If an employee trips on debris, that employee could experience abrasions or bruises, but it is only marginally predictable that the employee could suffer a substantial impairment of a bodily function. If, however, the area were littered with broken glass or other sharp objects, it would be reasonable to predict that an employee who tripped on debris could suffer a deep cut which could require suturing. (b) For conditions involving exposure to air contaminants or harmful physical agents, the CSHO shall consider the concentration levels of the contaminant or physical agent in determining the types of illness which could reasonably result from the condition. The Chemical Information Manual, OSHA Instruction CPL 2-2.43A, shall be used to determine toxicological properties of substances listed as well as a Health Code Number. A preliminary violation classification shall be assigned in accordance with the instructions given in C.6.a. of this section. (c) In order to support a preliminary classification of serious, OSHA must establish a prima facie case that exposure at the sampled level would, if representative of conditions to which employees are normally exposed, lead to illness. Thus the CSHO must make every reasonable attempt to show that the sampled exposure is in fact representative of employee exposure under normal working conditions. The CSHO shall, therefore, IV-20 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance identify and record all available evidence which indicates the frequency and duration of employee exposure. Such evidence would include: 1 The nature of the operation from which the exposure results. 2 Whether the exposure is regular and on-going or of limited frequency and duration. 3 How long employees have worked at the operation in the past. 4 Whether employees are performing functions which can be expected to continue. 5 Whether work practices, engineering controls, production levels and other operating parameters are typical of normal operations. (d) Where such evidence is difficult to obtain or where it is inconclusive, the CSHO shall estimate the frequency and duration from the evidence available. In general, if the evidence tends to indicate that it is reasonable to predict that regular, ongoing exposure could occur, the CSHO shall presume such exposure in determining the types of illness which could result from the violative condition. The following are examples of determination of types of illnesses which could reasonably result from a health hazard exposure: 1 If an employee is exposed regularly and continually to beryllium at .004 mg/M3, it is reasonable to predict that berylliosis or cancer could result. 2 If an employee is exposed regularly and continually to acetic acid at 20 ppm, it is reasonable to predict that the illness which could result, viz., irritation to nose, eyes throat, would not involve serious physical harm. (3) Step 3. Whether the types of injury or illness identified in Step 2 couold include death or a form of serious physical harm. (a) In making this determination, the CSHO shall utilize the following definition of "serious physical harm": 1 Inpairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually IV-21 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance require treatment by a medical doctor. Examples of injuries which constitute such harm include: a Amputation (loss of all or part of a bodily appendage which includes the loss of bone). b Concussion. c Crushing (internal, even though skin surface may be intact). d Fracture, simple or compound. e Burn or scald, including electric and chemical burns. f Cut, laceration, or puncture involving significant bleeding and/or requiring suturing. 2 Illnesses that could shorten life or significantly reduce physical or mental efficiency by inhibiting the normal function or a part of the body. Some examples of such illnesses include cancer, silicosis, asbestosis, byssinosis, hearing impairment, central nervous system impairment and visual impairment. Examples of illnesses which constitute serious physical harm include: a Cancer. b Poisoning (resulting from the inhalation, ingestion or skin absorption of a toxic substance which adversely affects a bodily system). c Lung diseases, such a asbestosis, silicosis, anmthrancosis. d Hearing loss. (b) The following are examples of determinations of whether the types of injury or illnesses which could reasonably result from an accident or health hazard exposure could include death or serious physical harm. 1 If an employee, upon falling 30 feet (9 meters) to the ground, suffers broken bones or a concussion, that employee would experience substantial impairment of the usefulness of a part of the body and would require treatment by a medical doctor. This injury would constitute serious physical harm. IV-22 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance b Company officials were aware of a continuing compliance problem but made little or no effort to avoid violations. EXAMPLE: Repeated issuance of citations addressing the same or similar conditions. c An employer representative was not aware of any legal requirement, but was aware that a condition or practice was hazardous to the safety or health of employees and made little or no effort to determine the extent of the problem or to take the corrective action. Knowledge of a hazard may be gained from such means as insurance company reports, safety committee or other internal reports, the occurrence of illnesses or injuries, media coverage, or, in some cases, complaints of employees or their representatives. d In flagrant situations, willfulness despite lack of knowledge of either a legal requirement or the existence of a hazard if the circumstances show that the employer would have placed no importance on such knowledge even if he or she had possessed it. (c) The violation of the standard caused the death of an employee. In order to prove that the violation of the standard caused the death of an employee, there must be evidence in the file which clearly demonstrates that the violation of the standard was the cause of or a contributing factor to an employee's death. (2) Area Director Responsibilities. Although it is generally not necessary to issue "Miranda" warnings to an employer when a criminal/willful investigation is in progress, the Area Director shall seek the advice of the Regional Solicitor on this question. (a) If the Area Director determines that expert assistance is needed to prove the causal connection between an apparent violation of the standard and the death of an employee, such assistance shall be obtained in accordance with instructions in Chapter III, B.5. (b) Following the investigation, if the Area Director decides to recommend criminal prosecution, a memorandum containing that recommendation shall be forwarded promptly to the Regional Administrator. It shall include an evaluation of the possible criminal charges, taking into consideration the greater burden of proof which requires that the Government's case be proven beyond a reasonable doubt. In addition, if the correction of the hazardous condition appears to be an issue, this IV-27 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance shall be noted in the transmittal memorandum because in most cases the prosecution of a criminal/willful case delays the affirmance of the civil citation and its correction requirements. (c) The Area Director shall normally issue a civil citation in accordance with current procedures even if the citation involves allegations under consideration for criminal prosecution. The Regional Administrator shall be notified of such cases, and they shall be forwarded to the Regional Solicitor as soon as practicable for possible referral to the U.S. Department of Justice. (d) When a willful violation is related to a fatality, the Area Director shall ensure the case file contains documentation regarding the decision not to make a criminal referral. The documentation should indicate which elements of a criminal violation make the case unsuitable for criminal referral. For example, the case file documentation could state the evidence gathered for a specific criminal/willful element did not meet the greater burden of proof for criminal prosecution. 5. Repeated Violations. An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition and the citation has become a final order. a. Identical Standard. Generally, similar conditions can be demonstrated by showing that in both situations the identical standard was violated. EXCEPTION: Previously a citation was issued for a violation of 29 CFR 1910.132(a) for not requiring the use of safety-toe footwear for employees. A recent inspection of the same establishment revealed a violation of 29 CFR 1910.132(a) for not requiring the use of head protection (hardhats). Although the same standard was involved, the hazardous conditions found were not substantially similar and therefore a repeated violation would not be appropriate. b. Different Standards. In some circumstances, similar conditions can be demonstrated when different standards are violated. EXAMPLE: A citation was previously issued for a violation of 29 CFR 1910 .28(d)(7) for not installing standard guardrails on a tubular welded frame scaffold platform. A recent inspection of the same establishment reveals a violation of 29 CFR 1910.28(c)(14) for not installing guardrails on a tube and coupler scaffold platform. Although there are different standards involved, the hazardous conditions found were substantially similar and therefore a repeated violation would be appropriate. IV-28 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance c. Geographical Limitations. For purposes of determining whether a violation is repeated, the following criteria shall apply: (1) High Gravity Serious Violations. When high gravity serious violations are to be cited, the Area Director shall obtain a history of citations previously issued to this employer at all of his identified establishments, nationwide, (Federal enforcement only) within the same two-digit SIC code. If these violations have been previously cited within the time limitations described in B.5.d. and have become a final order of the Review Commission, a Repeated Citation shall be issued. Under special circumstances, the Regional Administrator, in consultation with the Regional Solicitor, may also issue citations for repeated violations without regard for the SIC code. (2) Violations of Lesser Gravity. When violations of lesser gravity than high gravity serious are to be cited, Agency policy is to encourage the Area Director to obtain a national inspection history whenever the circumstances of the current inspection will result in a large number of serious, repeat, or willful citations. This is particularly so if the employer is known to have establishments nationwide and if significant citations have been issued against the employer in other areas, or at other mobile worksites. (a) Although such a history would be useful for almost all inspections, the Agency recognizes that the resource demands, if such histories were to be required in every case, would be higher than the resources available. (b) If, for any reason, a history is obtained, that history may be used to support a repeated violation for any violation found during the current inspection (not just high gravity serious). All violations found in the current inspection may be cited as repeated if the citation history shows that they have previously been cited within the 3-year limitation described at B.5.d. (c) Where a national inspection history has not been obtained, the following criteria regarding geographical limitations shall apply: 1 Multifacility Employer. A multifacility employer shall be cited for a repeated violation if the violation recurred at any worksite within the same OSHA Area Office jurisdiction. EXAMPLE: Where the construction site extends over a large area and/or the scope of the job is unclear (such as road building), that portion of the workplace specified in the employer's contract which falls within the Area Office jurisdiction is the establishment. If an employer's activities at a jobsite are performed in two or more Area Office jurisdictions, a violation in Area A cannot serve as the basis IV-29 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance for a repeated violation in Area B. If, on the other hand, an employer has several worksites within the same Area Office jurisdiction, a citation of a violation at Site A will serve as the basis for a repeated citation in Area B. 2 Longshoring Establishment. A longshoring establishment will encompass all longshoring activities of a single stevedore within any single port area. Longshoring employers are subject to repeated violation citations based on prior violations occurring anywhere. 3 Other Maritime Establishments. Other maritime employers covered by OSHA standards (e.g., shipbuilding, ship repairing) are multifacility employers as defined in 1 above. d. Time Limitations. Although there are no statutory limitations upon the length of time that a citation may serve as a basis for a repeated violation, the following policy shall be used in order to ensure uniformity. (1) A citation will be issued as a repeated violation if: (a) The citation is issued within 3 years of the final order of the previous citation, or, (b) The citation is issued within 3 years of the final abatement date of that citation, whichever is later. (2) When a violation is found during an inspection and a repeated citation has been issued for a substantially similar condition which meets the above time limitations, the violation may be classified as a second instance repeated violation with a corresponding increase in penalty (See Chapter VI, B.14.b.) EXAMPLE: An inspection is conducted in an establishment on 10/17/90. A violation of 29 CFR 1910.217(c)(1)(i) is found. On 12/9/87 a repeated violation of the same standard was issued. The violation found during the current inspection may be treated as a second instance repeated violation. (3) For any further repetition, the Regional Administrator shall be consulted for guidance. e. Repeated vs. Willful. Repeated violations differ from willful violations in that they may result from an inadvertent, accidental or ordinarily negligent act. Where a repeated violation may also meet the criteria for willful but not clearly so, a citation for a repeated violation shall normally be issued. IV-30 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance f. Repeated vs. Failure to Abate. A failure to abate situation exists when an item of equipment or condition previously cited has never been brought into compliance and is noted at a later inspection. If, however, the violation was not continuous (i.e., if it had been corrected and then reoccurred), the subsequent occurrence is a repeated violation. g. Area Director Responsibilities. After the CSHO makes the initial recommendation that the violation be cited as "repeated," the Area Director shall: (1) Ensure that the violation meets the criteria outlined in the preceding subparagraphs of this section. (2) Ensure that the case file includes a copy of the prior violation citation which serves as the basis for the repeated citation. If the prior violation citation is not available, the basis for the repeated citation shall, nevertheless, be adequately documented in the case file. (3) In questionable circumstances when it is not clear that the violation meets the criteria outlined in this section, consult with the Regional Administrator before issuing a repeated citation. (4) If a repeated citation is issued, ensure that the cited employer is fully informed of the previous violations serving as a basis for the repeated citation, either by telephone or by notation in the AVD portion of the citation, using the following or similar language: THE (COMPANY NAME) WAS PREVIOUSLY CITED FOR A VIOLATION OF THIS OCCUPATIONAL SAFETY AND HEALTH STANDARD OR ITS EQUIVALENT STANDARD (NAME PREVIOUSLY CITED STANDARD) WHICH WAS CONTAINED IN OSHA INSPECTION NUMBER ____________, CITATION NUMBER ____________, ITEM NUMBER ____________, ISSUED ON (DATE). 6. De Minimis Violations. De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they shall be documented in the same way as any other violation but shall not be included on the citation. a. Explanation. The criteria for finding a de minimis violation are as follows: (1) An employer complies with the clear intent of the standard but deviates from its particular requirements in a manner that has no direct or immediate relationship to employee safety or health. These deviations may involve IV-31 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance distance specifications, construction material requirements, use of incorrect color, minor variations from recordkeeping, testing, or inspection regulations, or the like. EXAMPLE 1. 29 CFR 1910.27(b)(1)(ii) allows 12 inches (30 centimeters) as the maximum distance between ladder rungs. Where the rungs are 13 inches (33 centimeters) apart, the condition is de minimis. EXAMPLE 2. 29 CFR 1910.28(a)(3) requires guarding on all open sides of scaffolds. Where employees are tied off with safety belts in lieu of guarding, often the intent of the standard will be met, and the absence of guarding may be de minimis. EXAMPLE 3. 29 CFR 1910.217(e)(1)(ii) requires that mechanical power presses be inspected and tested at least weekly. If the machinery is seldom used, inspection and testing prior to each use is adequate to meet the intent of the standard. (2) An employer complies with a proposed standard or amendment or a consensus standard rather than with the standard in effect at the time of the inspection and the employer's action clearly provides equal or greater employee protection or the employer complies with a written interpretation issued by the OSHA Regional or National Office. (3) An employer's workplace is at the "state of the art" which is technically beyond the requirements of the applicable standard and provides equivalent or more effective employee safety or health protection. b. Professional Judgment. Maximum professional discretion must be exercised in determining the point at which noncompliance with a standard constitutes a de minimis violation. c. Area Director Responsibilities. Area Directors shall ensure that the de minimis violation meets the criteria set out in B.6.a. C. Health Standard Violations. 1. General. The classification of health violations involves the exercise of maximum professional judgment. All relevant factors must be carefully considered when making classification decisions. 2. Citation of Ventilation Standards. In cases where a citation of a ventilation standard may be appropriate, consideration shall be given to standards intended to control exposure to recognized hazardous levels of air contaminants, to prevent fire or IV-32 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance explosions, or to regulate operations which may involve confined space or specific hazardous conditions. In applying these standards, the following guidelines shall be observed: a. Health-Related Ventilation Standards. An employer is considered in compliance with a health-related airflow ventilation standard when the employee exposure does not exceed appropriate airborne contaminant standards; e.g., the PELs prescribed in 29 CFR 1910.1000. (1) Where an over-exposure to an airborne contaminant is detected, the appropriate air contaminant engineering control requirement shall be cited; e.g., 29 CFR 1910.1000(e). In no case shall citations of this standard be issued for the purpose of requiring specific volumes of air to ventilate such exposures. (2) Other requirements contained in health-related ventilation standards shall be evaluated without regard to the concentration of airborne contaminants. Where a specific standard has been violated and an actual or potential hazard as been documented, a citation shall be issued. b. Fire- and Explosion-Related Ventilation Standards. Although they are not technically health violations, the following guidelines shall be observed when citing fire- and explosion-related ventilation standards: (1) Adequate Ventilation. In the application of fire- and explosion-related ventilation standards, OSHA considers that an operation has adequate ventilation when both of the following criteria are met: (a) The requirement of the specific standard has been met. (b) The concentration of flammable vapors is 25 percent or less of the lower explosive limit (LEL). EXCEPTION: Certain standards specify violations when 10 percent of the LEL is exceeded. These standards are found in maritime and construction exposures. (2) Citation Policy. If 25 percent (10 percent when specified for maritime or construction operations) of the LEL has been exceeded and: (a) The standard requirements have not been met, the standard violation normally shall be cited as serious. IV-33 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) There is no applicable specific ventilation standard, Section 5(a)(1) of the Act shall be cited in accordance with the guidelines given in A.2. of this chapter. c. Special Conditions Ventilation Standards. The primary hazards in this category are those resulting from confined space operations. (1) Overexposure need not be shown to cite ventilation requirements found in the standards themselves. (2) Other hazards associated with confined space operations, such as potential oxygen deficiency or toxic overexposure, must be adequately documented before a citation may be issued. 3. Violations of the Noise Standard. Current enforcement policy regarding 29 CFR 1910.95(b)(1) allows employers to rely on personal protective equipment and a hearing conservation program rather than engineering and/or administrative controls when hearing protectors will effectively attenuate the noise to which the employee is exposed to acceptable levels as specified in Tables G-16 or G-16a of the standard. Professional judgment is necessary to supplement the general guidelines provided here. a. Citations for violations of 29 CFR 1910.95(b)(1) shall be issued when engineering and/or administrative controls are feasible, both technically and economically; and (1) Employee exposure levels are so high that hearing protectors alone may not reliably reduce noise levels received by the employee's ear to the levels specified in Tables G-16 or G-16a of the standard. Given the present state of the art, hearing protectors which offer the greatest attenuation may not reliably be used when employee exposure levels border on 100 dBA (See OSHA Instruction CPL 2-2.35A, Appendix.); or (2) The costs of engineering and/or administrative controls are less than the cost of an effective hearing conservation program. NOTE: See Chapter III for guidelines ontechnical and economic feasibility. The Director of Technical Support can provide additional information on engineering control costs and technological feasibility when requested by the Regional Administrator. b. A control is not reasonably necessary when an employer has an ongoing hearing conservation program and the results of audiometric testing indicate that existing controls and hearing protectors are adequately protecting employees. (In making IV-34 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance this decision such factors as the exposure levels in question, the number of employees tested, and the duration of the testing program shall be taken into consideration.) c. When employee noise exposures are less than 100 dBA but the employer does not have an ongoing hearing conservation program or the results of audiometric testing indicate that the employer's existing program is not working, the CSHO shall consider whether: (1) Reliance on an effective hearing conservation program would be less costly than engineering and/or administrative controls. (2) An effective hearing conservation program can be established or improvements can be made in an existing hearing conservation program which could bring the employer into compliance with Tables G-16 or G-16a. (3) Engineering and/or administrative controls are both technically and economically feasible. d. If noise levels received by the employee's ear can be reduced to the levels specified in Tables G-16 or G-16a by means of hearing protectors and an effective hearing conservation program, citations under the hearing conservation standard shall normally be issued rather than citations requiring engineering controls. (1) If improvements in the hearing conservation program cannot be made or, if made, cannot be expected to reduce exposure sufficiently and feasible controls exist, a citation under 1910.95(b)(1) shall normally be issued. (2) The Area Director shall discuss such cases with the Regional Administrator prior to issuing a citation. If the Regional Administrator agrees that controls are justifiable, a citation shall be issued. e. When hearing protection is required but not used and employee exposure exceeds the limits of Table G-16, 29 CFR 1910.95(i)(2)(i) shall be cited and classified as serious (See C.3.h.) whether or not the employer has instituted a hearing conservation program. 29 CFR 1910.95(a) shall no longer be cited except in the case of the oil and gas drilling industry. NOTE: Citations of 29 CFR 1910.95(i)(2)(ii)(b) shall also be classified as serious. f. If an employer has instituted a hearing conservation program and a violation of the hearing conservation amendment (other than 1910.95 (i)(2)(i) or (i)(2)(ii)(b)) is found, a citation shall be issued if employee noise exposures equal or exceed an 8-hour time-weighted average of 85 dB. IV-35 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance g. If the employer has not instituted a hearing conservation program and employee noise exposures equal or exceed an 8-hour time-weighted average of 85 dB, a citation for 1910.95(c) only shall be issued. h. Violations of 1910.95(i)(2)(i) from the hearing conservation amendment may be grouped with violations of 29 CFR 1910.95(b)(1) and classified as serious when an employee is exposed to noise levels above the limits of Table G-l6 and: (1) Hearing protection is not utilized or is not adequate to prevent overexposure to an employee; or (2) There is evidence of hearing loss which could reasonably be considered: (a) To be work-related, and (b) To have been preventable, at least to some degree, if the employer had been in compliance with the cited provisions. i. When an employee is overexposed but effective hearing protection is being provided and used, an effective hearing conservation program has been implemented and no feasible engineering or administrative controls exist, a citation shall not be issued. 4. Violations of the Respirator Standard. When considering a citation for respirator violations, the following guidelines shall be observed: a. In Situations Where Overexposure Does Not Occur. Where an overexposure has not been established: (1) But an improper type of respirator is being used (e.g., a dust respirator being used to reduce exposure to organic vapors), a citation under 29 CFR 1910.134(b)(2) shall be issued, provided the CSHO documents that an overexposure is possible. (2) And one or more of the other requirements of 29 CFR 1910.134 is not being met; e.g., an unapproved respirator is being used to reduce exposure to toxic dusts, generally a de minimis violation shall be recorded in accordance with OSHA procedures. (Note that this policy does not include emergency use respirators.) The CSHO shall advise the employer of the elements of a good respirator program as required under 29 CFR 1910.134. (3) In exceptional circumstances a citation may be warranted if an adverse health condition due to the respirator itself could be supported and documented. Examples may include a dirty respirator that is causing dermatitis, a worker's health being jeopardized by wearing a respirator due to an inadequately IV-36 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance evaluated medical condition or a significant ingestion hazard created by an improperly cleaned respirator. b. In Situations Where Overexposure Does Occur. In cases where an overexposure to an air contaminant has been established, the following principles apply to citations of 1910.134: (1) 29 CFR 1910.134(a)(2) is the general section requiring employers to provide respirators ". . . when such equipment is necessary to protect the health of the employee" and requiring the establishment and maintenance of a respiratory protection program which meets the requirements outlined in 29 CFR 1910.134(b). Thus, if no respiratory program at all has been established, 1910.134(a)(2) alone shall be cited; if a program has been established and some, but not all, of the requirements under 1910.134(b) are being met, the specific standards under 1910. 134(b) that are applicable shall be cited. (2) An acceptable respiratory protection program includes all of the elements of 29 CFR 1910.134; however, the standard is structured such that essentially the same requirement is often specified in more than one section. In these cases, the section which most adequately describes the violation shall be cited. 5. Violations of Air Contaminant Standards (29 CFR 1910.1000 Series). The standard itself provides several requirements. a. 29 CFR 1910.1000(a) through (d) provide ceiling values and 8-hour timeweighted averages (threshold limit values) applicable to employee exposure to air contaminants. b. 29 CFR 1910.1000(e) provides that to achieve compliance with those exposure limits, administrative or engineering controls shall first be identified and implemented to the extent feasible. When such controls do not achieve full compliance, protective equipment shall be used. Whenever respirators are used, their use shall comply with 29 CFR 1910.134. c. 29 CFR 1910.134(a) provides that when effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used. Their use shall comply with requirements contained in 29 CFR 1910.134 which provide for the type of respirator and the proper maintenance. d. The situation may exist where an employer must provide feasible engineering controls as well as feasible administrative controls (including work practice controls) and personal protective equipment. 29 CFR 1910.1000(e) has been interpreted to allow employers to implement feasible engineering controls and/or IV-37 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance administrative and work practice controls in any combination the employer chooses provided the abatement means chosen eliminates the overexposure. e. Where engineering and/or administrative controls are feasible but do not or would not reduce the air contaminant levels below the applicable ceiling value or threshold limit value, the employer, nevertheless, must institute such controls. Only where the implementation of all feasible engineering and administrative controls fails to reduce the level of air contaminants below applicable levels will the use of personal protective equipment constitute satisfactory abatement. In such cases, usage of personal protective equipment shall be mandatory. 6. Classification of Violations of Air Contaminant Standards. When it has been established that an employee is exposed to a toxic substance in excess of the PEL established by OSHA standards (without regard to the use of respirator protection), a citation for exceeding the air contaminant standard shall be issued. The violation shall be classified as serious or other-than-serious on the basis of the requirements in the Chemical Information Manual, OSHA Instruction CPL 2-2.43A, and the use of respiratory protection at the time of the violation. Classification of violations is dependent upon the determination that the illness is reasonably predictable at that exposure level, whether the illness is serious or other-than-serious and that the employer knew or could have known through reasonable diligence that a hazardous condition existed. a. Principles of Classification. Exposure to a substance shall be considered serious if the exposure could cause impairment to the body as described in B.1.b.(3). (1) In general, substances having a single health code of 13 or less shall be considered as serious at any level above the Permissible Exposure Limit (PEL). Substances in categories 6, 8 and 12, however, are not considered serious at levels where only mild, temporary effects would be expected to occur. (2) Substances causing irritation (i.e., categories 14 and 15) shall be considered other-than-serious up to levels at which "moderate" irritation could be expected. (3) For a substance (e.g., cyclohexanol), having multiple health codes covering both serious and other-than-serious effects, a classification of other-than-serious shall be applied up to the level at which a serious effect(s) could be expected to occur. (4) For a substance having an ACGIH Threshold Limit Value (TLV) or a NIOSH recommended value, but no OSHA PEL, a citation for exposure in excess of the recommended value shall be considered under Section 5(a)(1) of the Act in accordance with the guidelines given in A.2. IV-38 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (5) If an employee is exposed to concentrations of a substance below the PEL, but in excess of a recommended value (e.g., ACGIH TLV or NIOSH recommended value), a citation for inhalation cannot normally be issued. The CSHO shall advise the employer that a reduction of the PEL has been recommended. (6) For a substance having an 8-hour PEL with no ceiling PEL but which a ceiling ACGIH TLV or NIOSH ceiling value has been recommended, the case shall be referred to the Regional Administrator in accordance with A.2.d.(2) of this chapter. If no citation is to be issued, the CSHO shall, nevertheless, advise the employer that a ceiling value has been recommended. b. Effect of Respirator Protection Factors. The CSHO shall consider protection factors for the type of respirator in use as well as the possibility of overexposure if the respirator fails. If protection factors are exceeded and if the potential for overexposure exists, a citation for failure to control excessive exposure shall be issued. c. Additive and Synergistic Effects. Substances which have a known additive effect and, therefore, result in a greater probability/severity of risk when found in combination shall be evaluated using the formula found in 29 CFR 1910.1000(d)(2). (1) The use of this formula requires that the exposures have an additive effect on the same body organ or system. Caution must be used in applying the additive formula, and prior consultation with the Regional Administrator is required. (2) If the CSHO suspects that synergistic effects are possible, it shall be brought to the attention of the supervisor, who shall refer the question to the Regional Administrator. If it is decided that there is a synergistic effect of the substances found together, the violations shall be grouped, when appropriate, for purposes of increasing the violation classification severity and/or the penalty. 7. Guidelines for Issuing Citations of Air Contaminant Violations. Reserved. 8. Violations of the Hazard Communication Standard. Reserved. 9. Citing Improper Personal Hygiene Practices. The following guidelines apply when citing personal hygiene violations: a. Ingestion Hazards. A citation under 29 CFR 1910.141(g)(2) and (4) shall be issued where there is reasonable probability that, in areas where employees IV-39 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance consume food or beverages (including drinking fountains), a significant quantity of a toxic material may be ingested and subsequently absorbed. (1) For citations under 29 CFR 1910.141(g)(2) or (4) wipe sampling results shall be adequately documented to establish a serious hazard. (2) Where, for any substance, a serious hazard is determined to exist due to the potential of ingestion or absorption of the substance for reasons other than the consumption of contaminated food or drink (e.g., smoking materials contaminated with the toxic substance), a serious citation shall be considered under Section 5(a)(1) of the Act. (3) Such citations do not depend on measurements of airborne concentrations. b. Absorption Hazards. A citation for exposure to materials which can be absorbed through the skin or which can cause a skin effect (e.g., dermatitis) shall be issued where appropriate personal protective equipment (clothing) is necessary but not worn. (See 29 CFR 1910.1000, Table Z-1, substances marked "skin".) The citation shall be issued under 29 CFR 1910.132(a) as either a serious or other-than-serious citation according to the hazard. (1) Such citations do not depend on measurements of airborne concentrations. (2) If a serious skin absorption or dermatitis hazard exists which cannot be eliminated with protective clothing, a 5(a)(1) citation may be considered. Engineering or administrative (including work practice) controls shall be required in these cases to prevent the hazard. c. Wipe Sampling. In general, wipe sampling (not air sampling) will be necessary to establish the presence of a toxic material posing a potential absorption or ingestion hazard. (See the OSHA Technical Manual for sampling procedures.) d. Issuing Citation. There are two primary considerations when issuing a citation of an ingestion or absorption hazard, such as a citation for lack of protective clothing: (1) A health risk exists as demonstrated by one of the following: (a) A potential for an illness, such as dermatitis, and/or (b) The presence of a toxic material that can be ingested or absorbed through the skin or in some other manner. (See the Chemical Information Table.) IV-40 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (2) The potential that the toxic material can be ingested or absorbed, e.g., that it can be present on the skin of the employee, can be established by evaluating the conditions of use and determining the possibility that a health hazard exists. (3) The conditions of use can be documented by taking both qualitative and quantitative results of wipe sampling into consideration when evaluating the hazard. e. Supporting Citation. There are four primary considerations which must be met to support a citation: (1) The potential for ingestion or absorption of the toxic material must exist. (2) The ingestion or absorption of the material must represent a health hazard. (3) The toxic substance must be of such a nature and exist in such quantities as to pose a serious hazard. The substance must be present on surfaces which have hand contact (such as lunch tables, cigarettes, etc.) or on other surfaces which, if contaminated, present the potential for ingestion or absorption of the toxic material (e.g., a water fountain). (4) The protective clothing or other abatement means would be effective in eliminating or significantly reducing exposure. f. Biological Monitoring. If the employer has been conducting biological monitoring, the CSHO shall evaluate the results of such testing. The results may assist in determining whether a significant quantity of the toxic material is being ingested or absorbed through the skin. g. Determination of Source. Prior to the issuance of a citation, the CSHO shall carefully investigate the source or cause of the observed hazards to determine if some type of engineering, administrative or work practice control, or combination thereof, may be applied which would reduce employee exposure. 10. Classification of Violations for the New Health Standards. In general, classification decisions regarding violations of the exposure limits of the new health standards shall be governed by the Chemical Information Manual. IV-41 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance CHAPTER VI PENALTIES A. General Policy. The penalty structure provided under Section 17 of the Act is designed primarily to provide an incentive toward correcting violations voluntarily, not only to the offending employer but, more especially, to other employers who may be guilty of the same infractions of the standards or regulations. 1. OSHA has always taken the position that penalties are not designed as punishment for violations nor as a source of income for the Agency. The Congress has made clear its intent, however, that penalty amounts should be sufficient to serve as an effective deterrent to violations. 2. Large proposed penalties, as Congress has clearly recognized, serve the public purpose intended under the Act; and criteria guiding approval of such penalties by the Assistant Secretary are based on meeting this public purpose. (See B.9.d. and OSHA Instruction CPL 2.80.) B. Civil Penalties. 1. Type of Violation as a Factor. In proposing civil penalties for violations, a distinction is made between serious violations and other violations. There is no statutory requirement that a penalty be proposed when the violation is not serious; but a penalty must be proposed when the violation is serious. a. The maximum penalty that may be proposed for a serious or an other-than-serious violation is $7,000. b. In the case of willful or repeated violations, a civil penalty of up to $70,000 may be proposed; but the penalty may not be less than $5,000 for a willful violation. c. For other specific violations of the Act, civil penalties of up to $7,000 may be proposed. d. Penalties for failure to correct a violation may be up to $7,000 for each calendar day that the violation continues beyond the final abatement date. 2. Statutory Authority. Section 17 provides the Secretary with the statutory authority to assess civil penalties for violations of the Act. VI-1 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a. Section 17(b) of the Act provides that any employer who has received a citation for an alleged violation of the Act which is determined to be of a serious nature shall be assessed a civil penalty of up to $7,000 for each violation. (See OSHA Instruction CPL 2.51G for current Congressional exemptions and limitations placed on penalties by the Appropriations Act.) b. Section 17(c) provides that, when the violation is specifically determined not to be of a serious nature, a proposed civil penalty of up to $7,000 may be assessed for each violation. c. Section 17(i) provides that, when a violation of a posting requirement is cited, a civil penalty of up to $7,000 shall be assessed. 3. Minimum Penalties. The following guidelines apply: a. The proposed penalty for any willful violation shall not be less than $5,000. This is a statutory minimum and not subject to administrative discretion. b. When the adjusted proposed penalty for an other-than-serious violation (citation item) would amount to less than $100, no penalty shall be proposed for that violation. c. When, however, there is a citation item for a posting violation, this minimum penalty amount does not apply with respect to that item since penalties for such items are mandatory under the Act. d. When the adjusted proposed penalty for a serious violation (citation item) would amount to less than $100, a $100 penalty shall be proposed for that violation. 4. Penalty Factors. Section 17(j) of the Act provides that penalties shall be assessed on the basis of four factors: a. The gravity of the violation, b. The size of the business, c. The good faith of the employer, and d. The employer's history of previous violations. 5. Gravity of Violation. The gravity of the violation is the primary consideration in determining penalty amounts. It shall be the basis for calculating the basic penalty for both serious and other violations. VI-2 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a. Since these adjustment factors are based on the general character of a business and its safety and health performance, the factors generally shall be calculated only once for each employer. After the classification and probability ratings have been determined for each violation, the adjustment factors shall be applied subject to the limitations indicated in the following paragraphs. b. Penalties assessed for violations that are classified as high severity and greater probability shall be adjusted only for size and history. c. Penalties assessed for violations that are classified as repeated shall be adjusted only for size. d. Penalties assessed for violations classified as willful shall be adjusted only for size. NOTE: If one violation is classified as willful, no reduction for good faith can be applied to any of the violations found during the same inspection. The employer cannot be willfully in violation of the Act and at the same time, be acting in good faith. e. The rate of penalty reduction for size of business, employer's good faith and employer's history of previous violations shall be calculated on the basis of the criteria described in the following paragraphs: (1) Size. A maximum penalty reduction of 60 percent is permitted for small businesses. "Size of business" shall be measured on the basis of the maximum number of employees of an employer at all workplaces at any one time during the previous 12 months. Information on the total number of an employer's employees can generally be obtained at the inspected worksite. However, on occasion it may be necessary to obtain or confirm the information from the employer's headquarters. (a) The rates of reduction to be applied are as follows: Employees Percent reduction 1-25 60 26-100 40 101-250 20 251 or more None (b) An employer's ability to pay a penalty shall not normally be investigated or considered in determining the penalty reduction for size of business. VI-9 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (c) However, if an employer presents convincing evidence of inability to pay a penalty because of financial difficulties at an informal conference, the Area Director may determine that a penalty reduction is appropriate. Such a determination shall be documented in the case file. (d) When a small business has one or more serious violations of high gravity or a number of serious violations of moderate gravity, indicating a lack of concern for employee safety and health, the Area Director may determine that only a partial reduction in penalty shall be permitted for size of business. (2) Good Faith. A penalty reduction of up to 25 percent is permitted in recognition of an employer's "good faith". EXCEPTION: If one willful violation is found, no reduction for good faith can be applied to any of the violations found during the same inspection. An employer cannot be willfully in violation of the Act and at the same time, be acting in "good faith". (a) A reduction of 25 percent shall normally be given if the employer has a written safety and health program (as documented during the inspection) that has been effectively implemented in the workplace and also: 1 Provides for appropriate management commitment and employee involvement; worksite analysis for the purpose of hazard identification; hazard prevention and control measures; and safety and health training. NOTE: One example of a framework for such a program is given in OSHA's voluntary "Safety and Health Program Management Guidelines" (Federal Register, Vol. 54, No. 16, January 26, 1989, pp. 3904- 3916, or later revisions as published). 2 Includes all programs required under OSHA standards applicable to the workplace (e.g., hazard communication, lockout-tagout, hazardous materials and emergency response, safety and health programs for construction [29 CFR 1926.20] and trenching and excavation). VI-10 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance d. Regulatory Violations. For repeated violations of regulatory violations (see B.16.), the initial penalty shall be doubled for the first repeated violation and quintupled if the violation has been cited twice before. If the Regional Administrator determines that it is appropriate to achieve the necessary deterrent effect, the initial penalty may be multiplied by 10. NOTE: See Chapter IV, B.5., for additional guidance on citing repeated violations. 15. Willful Violations. Section 17(a) of the Act provides that an employer who willfully violates the Act may be assessed a civil penalty of not more than $70,000 but not less than $5,000 for each violation. a. Gravity-Based Penalty Factors. Each willful violation shall be classified as serious or other-than-serious. After determining the gravity of the violation, a GBP shall be determined based on the facts noted during the inspection. The adjustment factor for size shall be applied. (1) Serious Violations. For willful serious violations, the adjusted GBP shall be multiplied by seven. (a) In no case shall the proposed penalty be less than $5,000. (b) The Regional Administrator may assess a higher penalty (up to the statutory maximum of $70,000) or a lower penalty than that calculated in accordance with B.15.a.(1), upon consideration of such factors as the degree of willfulness involved in the violation and the achievement of an appropriate deterrent effect. The reasons for such action shall be documented in the case file. (2) Other-than-serious Violations. For willful other-than-serious violations, the minimum willful penalty of $5,000 shall be assessed. b. Regulatory Violations. In the case of regulatory violations [see B.16] that are determined to be willful, the unadjusted initial penalty shall be multiplied by seven. In no event shall the penalty, after adjustment for size and history, be less than $5,000. 16. Violation of 29 CFR 1903 and 1904 Regulatory Requirements. Except as provided in the Appropriations Act, Section 17 of the Act provides that an employer who violates any of the posting requirements shall be assessed a civil penalty of up to $7,000 for each violation and may be assessed a like penalty for recordkeeping violations. For egregious violations, an additional factor may be applied, as described at B.9.d, in accordance with the procedures set forth in OSHA Instruction CPL 2.80. VI-15 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a. General Application. The procedures that follow shall be used in determining proposed penalties for violations of 29 CFR 1903 and 1904 regulatory requirements only when the employer has received a copy of the OSHA-200 Form through the Recordkeeping Requirements booklet or from any other source, or has knowledge of the requirements. (1) If the employer has not received the booklet or the OSHA-200 Form, and does not have knowledge, citations without proposed penalties will be issued. (2) All proposed penalties for regulatory violations shall have the adjustment factors for size and history applied. b. Posting Requirements. Penalties for violation of posting requirements shall be proposed as follows: (1) OSHA Notice. If the employer has not displayed (posted) the notice furnished by the Occupational Safety and Health Administration as prescribed in 29 CFR 1903.2 (a), an other-than-serious citation shall normally be issued. The unadjusted penalty for this alleged violation shall be $1,000. (2) Annual Summary. If an employer fails to post the summary portion of the OSHA-200 Form during the month of February as required by 29 CFR 1904.5(d)(1), and/or fails to complete the summary prior to February 1, as required by 29 CFR 1904.5(b), even if there have been no injuries, an other-than-serious citation shall be issued with an unadjusted penalty of $1,000. (3) Citation. If an employer received a citation that has not been posted as prescribed in 29 CFR 1903.16, an other-than- serious citation shall normally be issued. The unadjusted penalty shall be $3,000. c. Reporting and Recordkeeping Requirements. Section 17(c) of the Act provides that violations of the recordkeeping and reporting requirements may be assessed civil penalties of up to $7,000 for each violation. (1) OSHA-200 Form. If the employer does not maintain the Log and Summary of Occupational Injuries and Illnesses, OSHA-200 Form, as prescribed in 29 CFR 1904, an other-than-serious citation shall be issued. There shall be an unadjusted penalty of $1,000 for each year the form was not maintained. VI-16 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance TABLE VI-1 PENALTY TABLE Percent Reduction PENALTY (in dollars) 0 1,000 1,500 2,000 2,500 3,000 3,500 5,000 7,000 10 900 1,350 1,800 2,250 2,700 3,150 4,500 6,300 15 850 1,275 1,700 2,125 2,550 2,975 4,250* 5,950* 20 800 1,200 1,600 2,000 2,400 2,800 4,000 5,600 25 750 1,125 1,500 1,875 2,250 2,625 3,750* 5,250 30 700 1.050 1,400 1,750 2,100 2,450 3,500 4,900 35 650 975 1,300 1,625 1,950 2,275 3,250* 4,550* 40 600 900 1,200 1,500 1,800 2,100 3,000 4,200 45 550 825 1,100 1,375 1,650 1,925 2,750* 3,850* 50 500 750 1,000 1,250 1,500 1,750 2,500 3,500 55 450 675 900 1,125 1,350 1,575 2,250* 3,150* 60 400 600 800 1,000 1,200 1,400 2,000 2,800 65 350 525 700 875 1,050 1,225 1,750* 2,450* 70 300 450 600 750 900 1,050 1,500 2,100 75 250 375 500 625 750 875 1,250* 1,750* 85 150 225 300 375 450 525 750* 1,050* 95 100** 100** 100 125 150 175 250* 350* * Starred figures represent penalty amounts that would not normally be proposed for high gravity serious violations because no adjustment for good faith is made in such cases. They may occasionally be applicable for other-than-serious violations where the Regional Administrator has determined a high unadjusted penalty amount to be warranted. ** Administratively, OSHA will not issue a penalty less that $100. VI-19 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance C. Criminal Penalties. 1. The Act and the U.S. Code provide for criminal penalties in the following cases: a. Willful violation of an OSHA standard, rule, or order causing the death of an employee (Section 17(e)). b. Giving unauthorized advance notice. (Section 17(f).) c. Giving false information. (Section 17(g).) d. Killing, assaulting or hampering the work of a CSHO. (Section 17(h)(2).) 2. Criminal penalties are imposed by the courts after trials and not by the Occupational Safety and Health Administration or the Occupational Safety and Health Review Commission. D. Handling Monies Received from Employers. 1. Responsibility of Area Director. It is OSHA policy to collect penalties owed the government as a result of the legitimate exercise of statutory authority. The Area Director is responsible for informing employers of OSHA's debt collection procedures, collecting assessed penalties from employers, reporting penalty amounts collected and those due, calculating interest and other charges on overdue penalty amounts, referring cases with uncollected penalties to the National Office, transferring selected cases to the Regional Solicitor for legal action and tracking such cases, and mailing collected monies in accordance with the procedures given in this chapter and in OSHA Instruction ADM 1-1.12B, Chapter XXIII, and other relevant OSHA Instructions. 2. Receiving Payments. The Area Director shall be guided by the following with regard to penalty payments: a. Methods of Payment. Employers assessed penalties shall remit the total payment to the Area Office by certified check, personal check, company check, postal money order, bank draft or bank money order, payable to the U.S. Department of Labor -- OSHA. Payment in cash shall not be accepted. Upon request of the employer and for good cause, alternate methods of payment are permissible, such as payments in installments. b. Identifying Payment. The Reporting I.D. of the Area Office concerned, along with the Inspection Number, MUST BE PLACED in the upper left corner of the face of the payment instrument. The date of receipt MUST BE STAMPED in the upper right corner. VI-20 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a Being informed at inspection milestones; and, b The offer to meet personally to answer questions. c Subject to the requirements of 29 CFR Part 70, a free copy of releasable information from the case file at the time the file is closed; i.e., after the investigation is completed and any resulting OSHA enforcement proceedings have been concluded. (c) If the next-of-kin or the emergency contact person(s) cannot be determined through the employment records or fellow-employee interviews, the Area Director shall make a reasonable effort to identify the next-of-kin through a search of police reports, hospital admission records, coroner's records, and newspapers. (d) When the additional search does not identify a family member, the case file shall be documented to reflect the search and the extent to which it was carried out. (e) If the letter is returned as undeliverable, the letter and envelope shall be put in the case file and the date of return entered in the case file. (3) The compliance officer, when taking a statement pursuant to B.2.d.(2)(b)3, shall explain that the interview will be kept confidential to the extent allowed by law. The greatest sensitivity and professionalism is required for such an interview. The information received must be carefully evaluated and corroborated during the investigation. (4) Followup contact shall be maintained with a key family member or other contact person, when requested, so that the survivors can be kept up-to-date on the status of the investigation. Such contact can be by personal visit, telephone or letter, as requested, by the family member. These contacts shall be made at appropriate times; e.g., after the citation issuance, after an informal conference has been conducted, after the contest has been received, and when the case has been closed. (5) The victim's family members shall be provided a copy of all citations issued as a result of the accident investigation within 5 working days of issuance. (6) All OSHA staff are cautioned, when discussing the Freedom of Information Act (FOIA) with the family, not to mislead them about the speed with which they can obtain a copy of the disclosable information prior to closing the case file. Staff are further cautioned that the employer's rights must be protected. There should be no premature release of facts or findings during VIII-5 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance any meeting with non-OSHA personnel, before the investigation and subsequent litigation is completed. e. Criminal. Section 17(e) of the Act provides criminal penalties for an employer who is convicted of having willfully violated an OSHA standard, rule or order when that violation caused the death of an employee. In an investigation of this type, therefore, the nature of the evidence available is of paramount importance. There shall be early and close liaison between the CSHO/team leader, the Area Director, the Regional Administrator and the Regional Solicitor in developing any finding which might involve a violation of Section 17(e) of the Act. Staff with criminal investigation training shall be assigned at an early stage to assist in developing the case. C. Reports. Refer to OSHA Instruction CPL 2.97, Fatality/Catastrophe Reports to the National Office ("Flash Reports"). D. Special Situations. 1. Preemption. There may be situations where it is not clear whether OSHA's authority to investigate fatalities or catastrophes has been preempted. In such cases the guidelines given in Chapter III, D.6.a. shall be observed with the following special considerations: a. General. If it is reasonably certain that OSHA coverage has not been preempted, the Area Director shall start the investigation at once and not let potential 4(b)(1) problems interfere with either notification or investigation. (1) If the Regional Administrator cannot resolve a preemption problem at the local level, all pertinent information shall be relayed to the Director of Compliance Programs, along with additional facts as they become available. A clear interpretation will be provided as soon as possible. (2) Where prior determinations have been made that OSHA authority has been preempted, such as coal mine accidents, no investigation shall be conducted. (3) If OSHA jurisdiction has been preempted only partially, the investigation shall be conducted as usual; and all apparent violations shall be noted, including those for which jurisdiction has been preempted. A referral shall be made to the local office of the appropriate agency for such violations as soon as practicable. VIII-6 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance b. Agency Cooperation. If other Federal agencies will be involved and are on site, the CSHO and/or the investigative team shall work with the other agencies as closely as possible to: (1) Obtain all available information concerning the fatality or catastrophe. (2) Assist each other in inspection of the accident site. 2. Use of Expert Assistance. The decision as to the need for experts to assist in the conduct of the investigation shall be made as soon as possible after the Team/CSHO has arrived on site. That decision shall be made by the Area Director in consultation with the Regional Administrator upon the recommendation of the Team Leader/CSHO. a. National Office Contact. If a particular Regional Administrator has no knowledge of or cannot locate an expert, the Director, Office of Field Programs, may be contacted for information regarding safety and health professionals within OSHA who are experts in their fields. Based on this information, the Regional Administrator shall contact the appropriate Regional Administrator and request the services of the expert. Experts shall normally be made available by their Regional Administrators both for investigations of fatalities/catastrophes and for testifying in any subsequent legal proceedings. b. Choice of Experts. OSHA and NIOSH Regional and Area personnel shall generally be the first choice as experts, rather than "outside" experts. Any available 7(c)(1) consultation personnel shall be called upon as experts whenever appropriate. (1) If an expert from another OSHA Region is required, the requesting Regional Administrator shall coordinate with the supplying Regional Administrator to make the necessary arrangements. (2) If no Regional or Area experts are available, OSHA National Office personnel or NIOSH personnel, in that order, are next in order of preference, followed by 7(c)(1) contract personnel. (a) If National Office personnel are to be used, the Regional Administrator shall contact the Director, Office of Field Programs, who will make the arrangements with the Directorate concerned. (b) Arrangements for NIOSH experts shall be made by the Regional Administrator with the NIOSH Regional or National Office, as appropriate. (c) For 7(c)(1) contract personnel, the Regional Administrator shall make the necessary arrangements directly with the contractor. VIII-7 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (3) Outside experts shall generally be selected only when no one qualified is available from the above listed sources. c. Other Federal Agency. If an expert from another Federal agency is required, the Regional Administrator shall contact the Regional Office or other appropriate office of the other agency to arrange the details, or the Director, Office of Field Programs, to handle the request at the National level. If necessary, a letter to the appropriate Federal agency shall be prepared for the signature of the Assistant Secretary to confirm telephone requests for such assistance. d. Consultants. In general, a consultant or "outside expert" is a person from the private sector paid a fee for special expertise. Procedures for identifying and obtaining the services of a consultant shall be established by each Regional Administrator and approved by the Director, Office of Field Programs. e. Legal Advice. The advice of an attorney may be necessary at a very early stage of the investigation. The Area Director shall contact the Regional Solicitor through the Regional Administrator if assistance is required. 3. Rescue Operations. OSHA has no authority to direct rescue operations -- this is the responsibility of the employer and/or of local political subdivisions or State agencies. OSHA does have the authority to monitor and inspect the working conditions of covered employees engaged in rescue operations to make certain that all necessary procedures are being taken to protect the lives of the rescuers. a. Consultation. OSHA shall be available for consultation on the safest or most effective way to conduct rescue operations. This information, based on technical knowledge of competent OSHA personnel at the scene, shall be given freely, if requested. b. Rescue Operations. If the CSHO is aware that the employer intends to use some rescue procedure that may be in violation of a standard or the general duty clause and the CSHO believes other, less hazardous procedures are more desirable, the employer shall be advised of this belief. The employer shall be encouraged to use the personnel and facilities of local fire and police departments for their specialized knowledge and training in rescue operations. c. Application of Standards. If rescue work is performed by the employer, OSHA standards are applicable. The employer is required to take such steps as are necessary to eliminate, if at all possible, or to minimize recognized hazards likely to cause death or serious physical harm, considering the urgency in a particular rescue operation. VIII-8 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance d. Emergency Situations. Emergencies created by fatalities or catastrophes generally necessitate immediate rescue work, firefighting, etc., and any loss of time may increase injuries and/or fatalities. Therefore, when nonstandard equipment; e.g., tractors, bulldozers, etc., without rollover protection, is available for use in an emergency situation, OSHA shall permit its use without citing the employer rather than cause a delay waiting for equipment which meets OSHA standards. The use of such equipment by private employers shall be limited to the actual emergency situation of fighting fire, rescue work, etc. Use in cleanup or reconstruction work shall warrant the issuance of citations when appropriate. 4. Public Information Policy. The OSHA public information policy regarding response to fatalities and catastrophes is to explain Federal presence to the news media. It is not to provide a continuing flow of facts nor to issue periodic updates on the progress of the investigation. a. Area Director. The Area Director or his designee shall normally handle responses to media inquiries. Where particularly sensitive investigations are involved, or where difficult information requests are received, the Area Director shall contact the Regional Administrator for advice and guidance. The Regional Administrator may request the help of a National Office information official and, when possible, that official will go to the scene to assist in handling publicity. The investigation is not to be delayed, however, to await the arrival of the information official. b. Information Officer. The principal role of the information officer at the scene is to brief reporters there that OSHA has responded and is investigating. If a rescue operation is required, the information officer shall state, "OSHA policy is to cooperate and assist wherever possible, but the direction of such operations will be left to those experienced in such matters." c. Other Officials. The information officer shall inform the news media that the Secretary of Labor, the Assistant Secretary for Occupational Safety and Health, the Director of Public Affairs and other appropriate officials are continually informed of developments. VIII-9 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance CHAPTER IX COMPLAINTS AND REFERRALS A. Complaints. 1. General. The discussion of complaints in this chapter is confined to when a complaint is received and processed at the Area Office before an inspection rather than when it is given to the CSHO at the time the establishment is inspected. a. Agency Response. The agency's response to a complaint will take a variety of forms, ranging from an inspection to a response by letter, depending upon the formality of the complaint, the nature of the hazard and the abatement response of the employer. b. Complainant Identity. The identity of formal and nonformal complainants who wish to remain anonymous will be kept confidential, pursuant to Section 8(f)(1) of the Act. 2. Definitions. The following definitions apply in this chapter: a. Complaint. A complaint is a notice of a hazard or a violation of the Act believed to exist in a workplace given by an employee, a representative of employees, or any other source not listed in B.2.b. to the Secretary or his authorized representative. (1) To constitute a complaint the notice must allege that a hazard exists in the workplace or that the Act (meaning a standard or the general duty clause) is violated. (a) If the notice is so vague and unsubstantiated that the Area Director is unable to make a reasonable judgment as to the existence of the alleged workplace hazard, there is no valid complaint. In such a case, however, every reasonable attempt shall be made to contact the person giving the notice to obtain more specific information. (b) If, as a result of a recent inspection or on the basis of other objective evidence, the Area Director determines that the hazard which is the subject of the notice is not present; e.g., it has already been corrected, such a notice is not a valid complaint. (2) The workplace must be one wherein OSHA's jurisdiction has not been preempted under Section 4(b)(1) of the Act. Thus, if the notice involves conditions inside a mine, any hazard or violation clearly falls within an area wherein OSHA's jurisdiction has been preempted. In such a circumstance IX-1 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance the notice is not a complaint. Such notices shall be promptly transferred to the appropriate agency for its action. b. Employee. For purposes of submitting a complaint, an employee is either of the following: (1) A present employee of the employer about whose establishment the complaint is being made. (2) A present employee of another employer if that employee is working at or near some other employer's workplace and is exposed to hazards of that workplace. NOTE: Former employees are not considered employees for purposes of submitting a formal complaint. They can only submit nonformal complaints. c. Representative of Employees. For purposes of submitting a complaint, a representative of employees is any of the following: (1) An authorized representative of the employee bargaining unit, such as a certified or recognized labor organization; (2) An attorney acting for an employee; (3) Any other person acting in a bona fide representative capacity; e.g., a member of the employee's family or an elected official. In this situation, a complainant purporting to act as a representative of an employee shall be presumed to be so acting unless the CSHO obtains information that the complaint was not submitted with the knowledge of or on behalf of the employee. d. Formal Complaint. To meet the formality requirements outlined in Section 8(f) of the Act and in 29 CFR 1903.11, a complaint shall: (1) Be reduced to writing either on a Notice of Alleged Safety or Health Hazards (OSHA-7 Form) or in a letter; (2) Allege that an imminent danger or a violation threatening physical harm (i.e., a hazard covered by a standard or by the general duty clause) exists in the workplace; IX-2 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (3) Set forth with reasonable particularity the grounds upon which it is based. This does not mean that the complaint must specify a particular standard; it need only specify a condition or practice that is hazardous and, if uncommon, why it is hazardous; and (4) Be signed by at least one employee or employee representative. (5) The following are examples of deficiencies which would result in the failure of an apparent formal complaint to meet the requirements of the definition: (a) A thorough evaluation of the complaint does not establish reasonable grounds to believe that the alleged violation can be classified as an imminent danger or that the alleged hazard is covered by a standard or, in the case of an alleged serious condition, by the general duty clause (Section 5(a)(1)). (b) The complaint concerns a workplace condition which has no direct relationship to safety or health and does not threaten physical harm; e.g., a violation of a recordkeeping or other regulation or a violation of a standard that is classified as de minimis. (c) The complaint alleges a hazard which violates a standard but describes no actual workplace conditions and gives no particulars which would allow a proper evaluation of the hazard. In such a case the Area Director shall make a reasonable attempt to obtain such information. e. Nonformal Complaint. Any complaint, such as the examples given under A.2.d.(5), which does not meet any or all of the formality requirements in A.2.d. is a nonformal complaint and is to be handled in accordance with the procedures in A.8. (1) Examples. Other examples of such complaints include the following: (a) Oral complaints filed by employees. (b) Unsigned written complaints filed by employees. (c) Written and oral complaints filed by nonemployees (persons or groups other than current employees or their representatives). (d) Complaints of hazards not covered by a standard or by the general duty clause. IX-3 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (e) Complaints of violations of regulations, such as recordkeeping (rather than standards). (f) Complaints of violations of standards that are classified as de minimis. (2) Referrals from Other Agencies. Reports from sources listed in B.2.b, however, are referrals and are to be handled in accordance with the procedures in B.3. 3. Receiving Complaints. An incoming notice of hazards or alleged violations shall first be referred to a designated professional who shall obtain all available information from the person reporting it. The notice shall thereafter be forwarded to the supervisor to complete the evaluation. a. Employee Rights. When an oral notice is received from an employee or employee representative, that person shall be informed of the right to file a formal complaint in writing under Section 8(f)(1) and of the right, as a matter of law and OSHA policy, to have the complainant's identity held confidential, if requested, regardless of the formality of the complaint. b. Workplace Inspections. The person giving notice shall be informed that formal complaints generally lead to workplace inspections while nonformal complaints usually result in letters requesting employers to undertake corrective action. c. Formalizing Oral Complaints. If the person is filing a notice orally and makes a request to formalize the complaint, the supervisor or designated professional, after confirming that the complainant is an employee or employee representative, shall complete the OSHA-7 Form to the extent possible prior to mailing for the complainant's signature. (1) If the signed complaint form is not returned within 10 working days, it shall be treated as a nonformal complaint; and a letter shall be sent to the employer. If, nevertheless, a signed complaint is received after 10 working days but before a letter has been sent to the employer, the complaint is to be considered formal and evaluated as such. (2) If a complainant filing orally declines to formalize his complaint, the supervisor or designated professional shall nevertheless attempt to obtain the complainant's name, address and telephone number. d. Discrimination Complaint. The complainant shall be advised of the protection against discrimination afforded by Section 11(c) of the Act and shall be informed of the procedure for filing an 11(c) complaint. IX-4 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (4) If a late complaint inspection is to be conducted, the Area Director may contact the complainant to ensure that the alleged hazards are still existent. 8. Responding to Nonformal Complaints. All nonformal complaints shall receive a response. The procedures described below include responses to nonformal complaints designed to ensure correction of hazards identified in the complaint: a. Responding by Letter to Nonformal Complaints. Upon receipt and evaluation of a nonformal complaint, the Area Director, as soon as possible, shall prepare a letter to the employer advising him of the complaint, informing him of the standards allegedly violated and outlining the means to assess the hazard and/or the corrective action required. The employer shall be asked to investigate the alleged conditions and respond to OSHA within a specified time. This letter shall be sent by certified mail with return receipt requested. (1) Posting. The employer shall be requested to post copies of OSHA's letter of notification referred to in the previous subparagraph together with all subsequent correspondence dealing with the complaint items including the employer's response until such time as the case is closed by the Area Office. The employer shall be informed that a copy of the letter and subsequent correspondence will be sent to the complainant. (2) Letter to Complainant. Concurrent with the letter to the employer, a letter to the complainant shall be prepared explaining that the employer has been informed of the complaint. It shall request the complainant to notify the Area Director if no corrective action has been taken or at least initiated within 30 calendar days (or less if so indicated in the letter to the employer) or if any adverse or discriminatory action or threats are made against the complainant. A copy of the letter to the employer shall be included with the letter to the complainant. Copies of all subsequent correspondence shall also be sent to the complainant. (3) Employer Response. If a response is received from the employer and it appears that appropriate corrective action has been taken or that no hazard is present, the case file shall be closed. The complainant shall be informed of all responses received from the employer. b. Responding by Inspection to Nonformal Complaints. Where the employer fails to respond or submits an inadequate response within the period specified in the letter or where the complainant informs OSHA that no corrective action has been taken or the action taken is inadequate, the Area Director shall contact the employer to determine what further action he/she plans to take. If no action has been taken and none is planned, the nonformal complaint shall be activated for inspection pursuant to the priorities in A.7.b.(2). IX-9 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (1) Status of Corrective Action. Where an ambiguity exists or where the employer has a correction plan which he has not yet had time to implement fully, the Area Director shall communicate further, as appropriate, with the employer and/or the complainant to determine what interim protective steps have been taken until the corrective action shall have been completed and, later, whether the hazard has been adequately corrected. On the basis of information available, the Area Director shall decide whether an inspection is warranted. 9. Scope of Inspection. Complaint inspections shall include a complete investigation of the circumstances of the complaint. These investigations may be expanded at the discretion of the Area Director when any of the conditions described in Chapter II, F.1.b. exists, but see Chapter III, D.1.d.(5)(b). Any departure from these guidelines shall be supported by adequate documentation. 10. Procedures. In general, the procedures in Chapter III shall be followed in conducting complaint inspections. Particular attention, however, is directed to the following special requirements for complaint investigations: a. Copy of the Complaint. A copy of the complaint shall be given to the employer at the opening conference. (1) In the case of a multi-employer worksite, such as a construction site, a copy of every complaint, including those against subcontractors, shall be provided to the general contractor as well as to the employer against whom the complaint has been filed. IX-10 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (2) A copy of every complaint against the general contractor or against one or more of the subcontractors shall be provided, if possible, to each subcontractor whose employees may be exposed to the alleged hazard. b. Identity of Complainant. Section 8(f)(1) of the Act requires that, if the complainant so requests, names shall be deleted from the employer's copy of the complaint. If handwritten, the complaint shall be typed, and reworded if necessary, so that the identity of the complainant cannot be discerned by the employer. The Regional Administrator or the Area Director may decide, as a matter of general policy, that names shall be deleted from all complaints unless the complainant explicitly requests that his or her name be revealed. c. Walkaround Rights. In a complaint inspection the walkaround rights of an employer and an employee representative shall be applicable in accordance with Chapter III. The employee representative will be chosen according to the procedures in Chapter III and, thus, the complainant will not necessarily be the employee representative for walkaround purposes. d. Results of Inspection to Complainant. After the completion of an inspection based on a formal or a nonformal complaint (except for a tenth letter inspection), the complainant shall be informed of the results as follows:. (1) Each complaint item shall be addressed with a reference to a citation item on an attached copy of the OSHA-2 issued as a result of the complaint inspection and/or with a sufficiently detailed description of the findings and why they did or did not result in a citation. (2) Except for cases involving changes of penalty only, the complainant shall be informed of any subsequent modification of the citation due to an informal conference, a settlement agreement, or a decision of the Review Commission or a court, together with the reasons for the modification. e. Notification of Delays. If unusual delays are met in issuing a citation resulting from a complaint inspection, the complainant and, if appropriate, the employee representative shall be informed of such delays. A delay of more than 30 working days following the inspection would warrant such notification. f. Citation Not Warranted. If the Area Director determines that a citation is not warranted, the complainant shall be informed in writing of such determination as outlined in A.10.d.(1). (1) The complainant shall be told of his or her right to seek further clarification for the determination from the Area Director if any questions remain. IX-11 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (2) At the same time, the complainant shall also be informed that, if dissatisfaction with the determination still remains after further conversation with the Area Director, the person may request that the Regional Administrator investigate and determine if the Area Director's decision was made in accordance with current policy. (a) It is OSHA's policy to grant the right of informal review by the Regional Administrator of such determination. (b) The rules of procedure for obtaining such a review are specified in 29 CFR 1903.12. The complainant should be furnished with a copy of that procedure and assisted to such extent as may be reasonable. (3) OSHA has administratively extended the same right of informal review to cover the complainant's disagreement with any substantive element of the outcome of the inspection. g. Communication to Complainant. Written communications to a complainant shall be sent to the employee's home address unless specific instructions have been given that such mail be sent to the place of employment. B. Referrals. 1. General. As a rule, referrals will be handled in a manner similar to that of complaints. 2. Definitions. For purposes of this chapter, a referral is normally distinguished from a complaint by the source providing information on the alleged hazard. a. Notices of hazards or alleged violations originated by the sources listed in b. of this section shall be considered as referrals except as noted in b.(3). All other notices of hazards shall be considered as complaints, including employee complaints transmitted to the agency by 18(b) States. Formal and nonformal complaints received by other government agencies and simply forwarded to OSHA for action are complaints since they do not originate with the agency or its employees. (See B.2.b.(4).) b. Referrals may originate from the following sources: (1) CSHO Referrals. Serious hazards shall normally be investigated by the CSHO who observes them (after consultation with the supervisor if required). On occasion, however, special expertise may be needed to assess the hazard. This may be obtained through the referral process. (a) Types of Referrals. There are two types of CSHO referrals. IX-12 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance CHAPTER X DISCRIMINATION COMPLAINTS This chapter has been removed. Refer to OSHA Instruction DIS .4B, Investigator's Manual X-1 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance CHAPTER XIII FEDERAL AGENCY PROGRAMS A. Scope. 1. Statutory Requirements. Only two Sections of the Occupational Safety and Health Act (the Act) apply to Federal agencies, Sections 19 and 24. Section 19(a) requires each Federal agency to maintain a comprehensive safety and health program for its employees. The Executive Order 12196 require Federal agencies to comply with OSHA standards issued under Section 6 of the Act. These standards are 29 CFR Parts 1910, 1915, 1916, 1917, 1918, 1926, and 1928. The Executive Order requires the Secretary of Labor to issue a set of basic program elements for agency heads to follow in establishing an effective occupational safety and health program. These program elements are found in 29 CFR Part 1960. Section 24(a) and the Executive Order require the development and maintenance of an effective program of collection, compilation, and analysis of occupational safety and health statistics. OSHA's recordkeeping requirements for Federal agencies are found in 29 CFR Part 1960, Subpart I. NOTE: The 29 CFR Parts 1903, 1904, 1905, and 2200 regulations do not apply to Federal agencies. 2. Jurisdiction. OSHA's Federal agency jurisdiction varies according to the activity being performed. a. Federal Agency Compliance. OSHA is authorized to conduct unannounced inspections in Federal agency establishments unless: (1) The agency has Certified Safety and Health Committees. NOTE: OSHA can conduct announced inspections in agencies with Certified Safety and Health Committees. (2) The work is performed by military personnel or involves "uniquely military equipment, systems and operations." NOTE: Workplaces and operations similar to those of industry are not excluded from OSHA coverage. (3) The agency is in the legislative or the judicial branch of Government. XIII-1 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (4) Another Federal agency has jurisdiction. b. Private Sector Compliance on Federal Property. Section 19 of the Act, the Executive Order, and 29 CFR Part 1960 program elements do not apply to employees or working conditions of employees of private contractors performing work under Government contracts. Protection of employees of private contractors performing operations on Federal property is assured by other provisions of the Act. Enforcement shall be conducted following procedures developed under those sections. (1) The multiemployer worksite policy may apply between the private sector contractors and the Federal agency. The Area Office shall confer with the regional Federal Agency Program Officer (FAPO) who will advise the Director, Office of Federal Agency Programs (OFAP) of the circumstances in cases of high complexity. If appropriate, Notices of Unsafe and Unhealthful Working Conditions, OSHA-2H Form, (OSHA Notice) will be issued to Federal agencies for failing to oversee their contractors' safety and health programs. (2) Where an authorized State program is in existence, the State program shall have jurisdiction over private sector contractors unless the work being performed is at a location of "exclusive Federal jurisdiction" within the Federal property. The Regional Administrator shall refer to State Plan Operational agreements to determine "exclusive Federal jurisdiction". If the agreement is not clear the legal staff having management authority over the Federal property shall be consulted. c. Government-Owned Contractor-Operated Facilities (GOCO's). OSHA compliance policies concerning GOCO operations are described in separate Memoranda of Understanding, applicable to specific agencies. Further information may be obtained from the Directorate for Policy, Office of Intra-governmental Affairs at 202-219-8021. d. Evaluation. OSHA evaluates Executive Branch agencies, whether they have Certified Safety and Health Committees or not. Evaluations include such scheduled headquarters, regional, and workplace reviews as the Secretary deems necessary. e. Assistance. OSHA may provide training, hazard abatement advice, and program assistance for all Federal agencies, including those in the legislative and judicial branches of Government. 3. General Guidance. Policies and procedures for Federal agencies are to be as similar as appropriate to those followed in the private sector. Relevant FOM chapters and compliance directives are to be followed for Federal agency activities. This chapter XIII-2 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance points out areas where Federal sector procedures differ from those of the private sector. Area Office questions concerning policies, procedures, or standards interpretations involving Federal agencies should be directed to the FAPO for coordination with other Regional staff or the OFAP, as appropriate. a. Form letters have been developed for Federal agency correspondence regarding complaints, inspections, and PMAs. (See OSHA Instruction ADM 1-1.27, Chapters IX, X, and XI.) b. The Federal agency equivalent of a "citation" is the Notice of Unsafe and Unhealthful Working Conditions, OSHA-2H Form, (OSHA Notice). Instructions for completing the Notice is found in OSHA Instruction ADM 1-1.12B, Chapter X. c. Inspections or evaluations at Federal prisons are to be conducted following guidelines found in OSHA Instruction FAP 1.2, Federal Agency Safety and Health Programs with the Bureau of Prisons, U.S. Department of Justice, dated September 23, 1985. 4. Definitions. The following definitions apply to Federal agencies: a. General Duty Clause. Executive Order 12196, Section 201(a), and 29 CFR 1960.8(a) mandate the head of each agency to furnish to each employee a workplace free from recognized hazards. OSHA Notices shall refer to 29 CFR 1960.8(a) to enforce serious violations that are not addressed by a specific OSHA standard or program element. NOTE: Section 5(a)(1) of the Act is the "general duty clause" for the private sector and does not apply to Federal agencies. b. Citable Program Elements. Specific program elements in 29 CFR Part 1960 that may be cited when found not in compliance during inspections or evaluations. c. Establishment. A single physical location where business is conducted or services or operations are performed. Where distinctly separate activities are performed at a single physical location, each activity shall be treated as a separate "establishment". Typically, an "establishment" refers to a field activity, Regional Office, Area Office, installation, or facility. Examples are as follows: (1) Major organizational units with distinct lines of authority shall be counted as separate establishments. (2) Agencies or bureaus in an agency would be separate establishments even if they occupied the same building. XIII-3 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (3) Each component of the Department of Defense (Army, Navy, etc.) and each major command located at an installation would be a separate establishment. (4) Lower organizational units such as offices or divisions within a bureau or shops within a command are not considered separate establishments. d. Multiemployer Policy. An OSHA procedure for determining which establishment has responsibility for employee safety and health when more than one establishment has employees exposed to the same hazard. e. Establishment Official. The highest ranking person at a Federal establishment with authority over the establishment's working conditions. 5. References. a. "Occupational Safety and Health Act of 1970," Sections 19 and 24. b. Executive Order 12196, February 26, 1980, "Occupational Safety and Health Programs for Federal Employees." c. 29 CFR Part 1960, "Basic Program Elements for Federal Employee Occupational Safety and Health Programs and Related Matters," October 21, 1980. d. OSHA Publication 2014, revised 1986, "Recordkeeping and Reporting Guidelines for Federal Agencies." e. OSHA Instruction ADM 1-1.27, April 2, 1990, "The IMIS Standard Form Letters Manual." f. OSHA Instruction ADM 1-1.12B, December 29, 1989, "Integrated Management Information System Forms Manual." g. OSHA Instruction FAP 1.2, September 23, 1985, "Federal Agency Safety and Health Programs with Bureau of Prisons, U.S. Department of Justice." B. Compliance. 1. Targeted Inspections. Targeted inspections are inspections programmed under the criteria given in this section. XIII-4 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a. Targeting List. OFAP shall develop a targeting list for the next fiscal year as follows: (1) During the second quarter of each fiscal year, OFAP shall list Federal agency establishments with a significant number of claims, using annual Office of Workers' Compensation Programs (OWCP) compensation data on lost-time cases created during the previous fiscal year. (2) OFAP shall obtain employment data for these establishments from the agencies and calculate a lost-time claims rate (LTCR) for each establishment. The formula for calculating the LTCR is: Number of lost-time claims X 100 -------------------------------- Number of Employees (3) OFAP shall also calculate an average LTCR for the Government as a whole, using the same LTCR formula as above, based on OWCP lost- time claims data for all agencies. (4) OFAP shall then develop a list showing all Executive Branch establishments with an LTCR higher than the Government average (interim list). (5) OFAP shall subdivide the interim list by agency and send a copy of each agency's targeted establishments to its Designated Agency Safety and Health Official (DASHO) with copies to Regional Administrators having listed establishments within their jurisdiction, for a 30 calendar day review. (6) OFAP may add additional sites to the list, in coordination with the DASHO, when OWCP data identify an agency or agency component as having high LTCR's, but are insufficiently precise to identify its high-hazard workplaces. (7) Establishments may be added or deleted by OFAP if the DASHO supplies information warranting changes within 30 calendar days of receipt of the interim list. (8) Establishments may be deleted by the Regional Administrator only with the concurrence of the Director, OFAP. Establishments may be deleted using the same criteria as used for safety inspections in the manufacturing sector described in Chapter II, F.2.b.(1)(b)5b. (9) OFAP shall finalize the interim list and send the final targeting list to Regional Administrators and agencies before the beginning of the fiscal year. XIII-5 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance b. Special Emphasis Targeting. Regional Administrators who develop special emphasis programs shall obtain the concurrence of the Director, OFAP, before scheduling inspections. c. Scheduling of Targeted Inspections. Area Directors shall schedule all Federal agency inspections within the fiscal year. (1) Establishments which have been scheduled for a targeted inspection within the last 2 fiscal years will have been deleted by OFAP. (2) Targeted inspections may be conducted in any order. d. Conduct of Targeted Inspections. (1) All targeted inspections shall be initiated within the fiscal year. If for some reason an inspection cannot be initiated within the fiscal year, the Regional Administrator shall notify OFAP of the worksites which were not inspected during the fiscal year. OFAP shall determine whether to "carry over" the site to the next fiscal year or delete it. (2) The Area Director may conduct a comprehensive inspection or may limit the inspection to those areas with the greatest potential for injuries and illnesses. (3) OSHA targeted inspections shall identify violations of OSHA standards and citable program elements of 29 CFR Part 1960. The citable program elements are listed in Appendix A of this chapter. 2. Fatality/Catastrophe Investigations. OSHA has authority to investigate fatal or catastrophic accidents to Federal employees in agencies subject to OSHA inspections. NOTE: A catastrophe is an incident that results in five or more people being admitted to a hospital, at least one of whom is a Federal civilian employee. a. Excluded Agencies. If an accident report is received concerning a Federal agency not under OSHA's jurisdiction, the person reporting the accident shall be referred to that agency's safety and health staff. b. Receipt of Fatality/Catastrophe Reports. Executive Branch agencies are required to report all civilian fatalities and catastrophes to OSHA within 48 hours. (1) Reports Initially Received in the National Office. OFAP shall record the necessary information and immediately telephone the information to the appropriate Regional Administrator for transmittal to the Area Director. XIII-6 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (2) Reports Initially Received in the Regional Office. The Regional Administrator shall record the necessary information and immediately telephone the information to the appropriate Area Director and to OFAP. (3) Reports Initially Received in the Area Office. The Area Director shall record the necessary information and notify the Regional Administrator by telephone, who shall notify OFAP. c. Agency Investigation. Agencies are required to conduct an investigation of each fatal or catastrophic incident and, upon request, to provide OSHA with a report of findings upon completion of the investigation. The Area Director within whose jurisdiction the incident took place may contact the establishment official and request that a copy of the report or a summary be sent to the Area Office upon its completion. d. OSHA Investigation Decision. The Area Director, with the concurrence of the Regional Administrator, shall determine whether OSHA will conduct an investigation of the incident, OSHA may conduct an independent investigation or participate in the agency's investigation. (1) If the Area Director decides to conduct an investigation, the establishment official shall be notified in advance of the planned date for the inspection. (2) When OSHA joins an agency investigation, the CSHO shall participate fully with the investigation and not be subject to "observer status" by the agency. (3) Identified violations of authorized program elements and OSHA standards shall be cited using the OSHA Notice. 3. Reports of Unsafe or Unhealthful Working Conditions (Complaints). OSHA has authority over complaints by Federal employees except as indicated in A.2.a. of this chapter. a. Receipt and Recording of Complaints. Upon receipt of a complaint, the receiving office shall determine if OSHA has the authority to conduct an inspection. If so, the procedures outlined in Chapter IX, A.3., apply except as follows: (1) Complaints Initially Received in the National Office. OFAP shall ensure that sufficient information for handling the complaint is recorded and forwarded to the appropriate Regional Administrator for transmittal to the Area Director. When telephone complaints are received, it may be more appropriate to identify the responsible Area Office and have the complainant contact it directly. XIII-7 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (2) Complaints Initially Received in the Regional Office. The Regional Administrator shall ensure that sufficient information for handling the complaint is recorded and forwarded to the appropriate Area Director. When telephone complaints are received it may be more appropriate to identify the responsible Area Office and have the complainant contact it directly. (3) Oral Complaints. The designated professional receiving an oral complaint shall ask if the complaint has been directed to safety and health personnel in the complainant's agency. If not, the complainant shall be encouraged to do so. If the complainant does not desire to submit a complaint to his/her own agency, the complaint shall be accepted and processed in accordance with the procedures found in B.3.b. below. To formalize an oral complaint an OSHA-7 Form shall be sent along with complaint form letter "c" ("OSHA-7 For Signature"). b. Responding to Complaints. Federal agency complaints where OSHA has enforcement authority shall be responded to in accordance with Chapter IX, A.6. through A.10., except as follows: (1) Formal other-than-serious complaints must be handled by inspection within 120 days or handled by letter to the establishment official with permission of the complainant. (2) Non-formal serious complaints shall be handled by letter to the establishment official or by inspection. (3) If the complaint is handled by inspection, the Area Director shall notify the complainant of inspection results using complaint form letter, "h" ("Notification to Complainant with Inspection Results") and shall send the complainant a copy of the OSHA Notice, if issued. (4) If the complaint is handled by letter, the establishment official shall be informed by certified mail, using complaint form letter "h" ("Complaint Notification for Employer Inspection - Without Certified Committee"), that the establishment must conduct an investigation within 3 working days for potentially serious conditions and within 20 working days for other-than-serious hazards (1960.28(d)(3)). (a) A report of findings shall be provided to OSHA within 30 calendar days after completion of the agency's investigation. (b) Any necessary corrective action must be completed or an acceptable abatement plan must be submitted to the Area Director within 30 calendar days after the close of the investigation. XIII-8 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (c) The complainant shall be notified using complaint form letter "e" ("Complainant Notification with Letter D") that the complaint has been forwarded to the establishment official for investigation and that OSHA will inform him/her of the investigation findings. (d) The agency shall be informed that OSHA will provide a copy of the report of findings to the complainant. (e) If the agency response is satisfactory, OSHA will notify the complainant using complaint form letter "g" ("Notification to Complainant with Satisfactory Employer Response"). (f) If the agency response is unsatisfactory or the complainant informs OSHA that the hazard has not been abated, the Area Director shall notify the establishment official using complaint form letter "j" ("Correcting but Additional Information Needed"). The Area Director shall also inform the complainant using complaint form letter "l" ("Notification to Complainant with Unsatisfactory Employer Response"). The Area Director may schedule an inspection. c. Responding to Complaints when the Agency has Certified Occupational Safety and Health Committees (Certified Committee). OSHA is authorized to conduct announced inspections in response to employee complaints. Response timeframes shall be the same as private sector complaints. (See Chapter IX, A.6. through A.10.) The following agencies have Certified Committees: Panama Canal Commission Central Intelligence Agency Securities and Exchange Commission Interstate Commerce Commission General Services Administration Department of Labor Tennessee Valley Authority U.S. International Trade Commission (1) Complaints from employees in agencies with Certified Committees are to be handled by the receiving office as follows: (a) In the case of imminent danger, OSHA shall notify the establishment official by telephone of his or her responsibility to investigate the alleged imminent danger and shall notify the official that OSHA will conduct an investigation to evaluate the validity of the allegation. XIII-9 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (b) Send formal or nonformal complaints by mail to the establishment official, with a copy to the FAPO with complaint form letter "d2" ("Notification to Employer - With Certified Committee"). (c) Announced inspections are to be handled by the receiving Area Offices as follows: 1 Notify the establishment official at least one day in advance of the scheduled inspection using complaint form letter "d3" ("Notification to Employer with Certified Committee -- Announced Inspection"). The letter may be hand-carried or sent by electronic means in case of imminent danger. 2 Complaints alleging an imminent danger situation shall be inspected the same day received, where possible, but not later than the agency's next working day after receipt of the report by the Area Office. 3 Formal, serious complaints shall be inspected within 30 working days after evaluation and confirmation that an inspection is necessary. 4 The complainant shall be informed of the findings using complaint form letter "h" ("Notification to Complainant with Inspection Results") and sent a copy of the OSHA Notice, if issued. 5 Send the results of the announced inspection with inspection form letter "a" ("Notification to Employer -- Inspection Results") to the establishment official who will be requested to share the results with the Certified Committee. A copy of the inspection results shall also be forwarded to the Agency DASHO. (d) If OSHA does not conduct an inspection, the Area Director shall request the establishment official to provide copies of the complaint, responses, and the investigation findings to the appropriate Certified Committee. (2) When half the members of record of an agency's Certified Committee agree, a request can be made for OSHA to evaluate an agency's response to a report of unsafe or unhealthful working conditions. When such a request is received, OSHA will conduct an inspection classified as a complaint inspection. XIII-10 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance d. Responding to Complaints When OSHA Does Not Have Authority. If OSHA does not have compliance authority over the complainant's agency, he/she shall be advised to contact his/her employer's safety and health staff. Every effort shall be made to assist in identifying the proper person to be contacted. The receiving OSHA office shall: (1) Transmit written complaints evaluated as a potential imminent danger to the agency by telephone or other electronic means, followed as soon as possible by a confirming letter with the complaint attached. (2) Transmit other written complaints by mail to the agency's safety and health staff as soon as possible. (3) Acknowledge all written complaints with complaint form letter "f2" ("Acknowledgment to Complainant -- Referral to Another Agency"), informing complainants that their agency does not fall under OSHA's compliance authority and that their complaint has been forwarded to their agency for action. When a complaint is received in person or by telephone, the complainant shall be given the same information and shall be informed that the complaint must be directed to their agency for action. 4. Reports of Safety and Health Program Violations. When complaints from Federal employees or employee representatives include allegations of violations of citable program elements of 29 CFR Part 1960, the Area Director may (at his or her discretion) schedule an inspection or respond by letter. NOTE: Citable program elements of 29 CFR Part 1960 are listed in Appendix A of this chapter. a. If an inspection is conducted, an OSHA Notice may be issued for violations of citable program elements of 29 CFR Part 1960. (1) Standard Alleged Violation Elements (SAVES) shall be used to describe violations of citable program elements of 29 CFR Part 1960 on the OSHA Notice. (2) Violations of citable program elements of 29 CFR Part 1960 shall be classified as "other- than-serious" unless they are considered a contributing factor to a serious safety or health standard violation (e.g., where lack of supervisory training contributed to an unshored trench, both the trenching standard and 29 CFR 1960.55 would be cited as "serious"). b. If an inspection is not scheduled, alleged violations of 29 CFR Part 1960 program elements shall be handled by letters to the establishment official and the complainant with the following additional requirements and exceptions: XIII-11 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (1) Complaint form letters "d1" or "d2" ("Complainant Notification for Employer Inspection With/Without Certified Committee") to establishment officials shall list the alleged violations with reference to pertinent sections of 29 CFR Part 1960 program elements. The establishment official shall be requested to review the operation of his or her program in light of the alleged violations to take any appropriate corrective action, and to advise the Area Director of his or her findings. (2) Send complaint form letter "e" (Complainant Notification with Letter D") to complainants which will advise them that their concerns about the program at their facility have been brought to the attention of their establishment official and that the agency response will be provided to them. c. If the alleged violations of program elements affect many facilities of the same agency and/or cover more than one OSHA region, the report shall be forwarded to OFAP for review. OFAP shall determine if a special study evaluation of the agency program should be conducted. 5. Reports of Reprisal. The Executive Order 12196 and 29 CFR Part 1960, which establish safety and health programs for Federal employees, do not give OSHA authority to take remedial action on behalf of Federal employees who believe that they have suffered reprisal. 29 CFR 1960.46 requires each agency to establish procedures to protect Federal employees from reprisal for filing a report of unsafe or unhealthful working conditions. In addition, the Federal employee may have protection for such activity under the Whistleblower Protection Act of 1989, enforced by the Office of Special Council. NOTE: Section 11(c) of the Act does not apply to Federal employees. a. Reports of alleged reprisal falling within the scope of 29 CFR 1960.46 received in the Regional/Area Offices shall be handled as follows: (1) When possible, the receiving office should obtain details showing the nature of the reprisal, the agency's reasoning for the action, and the alleged link to actions under 29 CFR 1960.46. (2) The allegation shall be forwarded to the Regional Office, FAPO, for review to ensure that the alleged reprisal meets the requirements for a valid discrimination complaint based on safety and health activities. (3) If the report of alleged reprisal contains a valid safety or health complaint as well, such complaints shall be investigated by the affected Area Office. XIII-12 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance (4) If the alleged reprisal occurred because of a safety and health complaint that has already been investigated, the FAPO shall obtain the inspection results as part of the supporting documentation for the alleged reprisal. (5) The FAPO shall refer the allegation of reprisal, along with appropriate supporting documentation, to the Office of Special Council ("Reprisal Letter for Special Council"), unless the employee's agency is exempted from the Whistleblower Protection Act. Complaint form letter "m1" ("Reprisal letter for Covered Federal Employee") shall be sent to the complainant explaining OSHA's authority and referral of the allegation to the Special Council. (6) If the Federal employee's agency is exempted from the Whistleblower Act, the alleged reprisal shall be forwarded to the DASHO. Complaint form letter "m2" ("Reprisal Letter for Non-covered Federal Employee") shall be sent to the complainant explaining OSHA's authority and referral of the allegation to the agency's DASHO. (7) The FAPO shall send a copy of the letters to the Director, OFAP. b. When allegations do not fall within the scope of 29 CFR 1960.46, such as a reprisal for filing a compensation claim, for having an injury, or for refusing to work when the threat of bodily harm was not imminent, the complainant shall be so informed by the receiving office using complaint form letter "k" ("Notification to Complainant - Invalid Allegation of Reprisal"). 6. Refusal of Entry. If a Federal agency scheduled for an inspection refuses entry, the Area Director shall attempt to resolve the issue with the establishment official. a. If a resolution cannot be worked out, the Area Director shall contact the Regional Administrator. The Regional Administrator shall contact the equivalent agency organizational level with responsibility and authority for the establishment's working conditions to discuss the refusal. If agreement cannot be reached, the Regional Administrator shall contact the Director, OFAP, for resolution with the DASHO. b. A written record of all actions taken to resolve the issue shall be kept in the case file. 7. Warrants/Subpoenas. Administrative subpoenas or warrants will not be used for Federal agencies. Issues unresolved at the Area Office shall be transferred to the Regional, and, if necessary, National Office, OFAP. XIII-13 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance 8. Recordkeeping and Reporting Requirements. Federal agency recordkeeping requirements are outlined in Part 1960 program elements, Subpart I, and in "Recordkeeping and Reporting Guidelines for Federal Agencies" (OSHA Publication 2014). NOTE: The lost workday injury (LWDI) rate (Item 33) and the occupational injury/illness cases (Item 34) are not to be completed for Federal agency activity on the OSHA-1. a. Occupational Injury/Illness Logs (OSHA Logs). OSHA Logs may be maintained at Regional or Area levels if quarterly updated copies are available to the establishment. (See OSHA Publication 2014.) (1) Agencies may use their own forms to log injuries and illnesses, but the forms must include all data elements listed in OSHA Publication 2014, Appendix A. (2) As new OSHA standards are published under Section 6(b) of the Act that require certain injuries/illnesses to be recorded on the OSHA Log, Federal agencies will also be required to enter this information on their injury/illness log. For example, needle sticks, carpel tunnel syndrome, and threshold shifts in hearing loss are now required to be recorded. b. OWCP Compensation Claim Forms. Agencies are required to complete OSHA- related items on OWCP compensation claim forms CA-1, CA-2, and CA-6. NOTE: OWCP forms printed since 1986 include specific blocks for Type, Source, and Duty Station Zip Codes which are OSHA- required information. (1) CSHOs shall review a sufficient number of claim forms to determine whether facilities are, for the most part, accurately coding data required by OSHA. (2) CSHOs shall pay special attention to the "employee's duty station" zip code to ensure the code is for the duty station and not a central collection point at another location. C. Evaluation. 1. Purpose. Federal agency heads are required by the Act to operate effective occupational safety and health programs. OSHA is required to evaluate the effectiveness of those programs. XIII-14 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance a. Effectiveness is determined by analyzing injury/illness statistics and comparing the agency's written program with 29 CFR Part 1960 program elements by conducting onsite field reviews and special studies at agency establishments to evaluate program implementation. NOTE: The purpose of onsite visits is to evaluate implementation of the agency's occupational safety and health program at the worksite level and not to evaluate specific establishments or managers. b. Evaluations may be classified by scope as follows: (1) Full-scale evaluations include headquarters, intermediate organizational levels, and worksite reviews of the entire occupational safety and health program. (2) Special Study evaluations include headquarters, intermediate organizational levels, and worksite reviews but focus only on specific issues. (3) Headquarters-only evaluations do not include worksite reviews. (4) Agency self-evaluations may be substituted for an OSHA evaluation when recommended by the Director, OFAP, and approved by the Secretary. 2. Time Frames. In the evaluation process there is a specific time frame within which OSHA and the evaluated agency must operate to meet the requirements of 29 CFR Part 1960 program elements. a. 60 Calendar Days before Opening of Evaluation. OFAP shall send a letter signed by the Secretary notifying the Federal agency head of OSHA's impending evaluation. b. 30 Calendar Days before Opening of Evaluation. OFAP shall hold an informal meeting with the agency's occupational safety and health program staff to plan the opening conference, develop a list of worksites to visit, and obtain agency safety and health documents for background information. c. 21 Calendar Days after the National Opening Conference. All subordinate office visits and all establishment onsite visits shall be completed within 21 calendar days of the conclusion of the opening conference with the agency head. If field visits are delayed by the agency, they shall be completed within 14 calendar days after the Director, OFAP, notifies the Regional Administrator that they may begin. d. 9 Calendar Days after the Field Visit Closing Conference. Compliance officers' findings shall be provided to the Regional Administrator within 9 days after the worksite closing conference. XIII-15 OSHA Instruction CPL 2.45B CH-4 December 13, 1993 Office of General Industry Compliance Assistance e. 30 Calendar Days after the Field Visit Closing Conference. Each Regional Administrator shall send the Director, OFAP, a short narrative report summarizing the results of the worksite surveys. f. 90 Calendar Days after the National Opening Conference. OFAP shall schedule a closing conference with the agency head and other appropriate agency management officials. g. 90 Calendar Days after the National Closing Conference. The final report concerning the evaluation shall be presented to the Secretary of Labor for signature. The Federal agency has 60 calendar days to comment on the report. After comments have been received by OFAP or the 60 calendar days have elapsed, the report is a public document and may be released upon request. 3. National Office Responsibilities. The Director, OFAP, shall: a. Train FAPOs on evaluation criteria, policies, and procedures. b. Select agencies for evaluation based on size and hazard indicators, such as injury/illness compensation data. Reported program deficiencies may also be considered. c. Determine the scope of the evaluation. d. Notify the head of the Federal agency to be evaluated by letter from the Secretary at least 2 months prior to the opening conference. e. Contact the OSHA Regional Administrators to discuss potential locations for onsite visits, tentative evaluation time frames,
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