OSHA Instruction CPL 2.80 October 21, 1990 Directorate of Compliance Programs

Subject: Handling of Cases To Be Proposed for Violation-By-ViolationPenalties

A. Purpose. This instruction establishes procedures for identifying andhandling cases proposed for citation using the additional penalty factor,provided for in the Field Operations Manual (FOM), Chapter VI, B.2.). (4). The procedures set forth in this instruction will be adopted into the FOM.

B. Scope. This instruction applies OSHA-wide.

C. References.

1. OSHA Instruction CPL 2.45B, June 15, 1989, Revised FieldOperations Manual (FOM).

2. OSHA Instruction CPL 2-2.38B, August 15, 1988, InspectionProcedures for the Hazard Communication Standard.

3. OSHA Instruction CPL 2-2.46, January 5, 1989, 29 CFR 1913.10(b)(6): Authorization and Procedures for Reviewing Specific Medical Records toVerify Compliance with 29 CFR 1904.

D. Cancellations.

1. Memorandum from John B. Miles, dated November 20, 1986; Subject:Cases proposed for Citation Using Additional Penalty Factor.

2. Memorandum from Leo Carey, dated June 15, 1987; Subject:Procedures for Handling Potentially Extensive Recordkeeping Violations:Additional Guidelines.

E. Action. Regional Administrators and Area Directors shall ensure thatthe procedures established in this instruction are adhered to in the handlingof cases in which the additional penalty factor is proposed.

F. Federal Program Change. This instruction describes a Federal ProgramChange which affects State programs. Each Regional Administrator shall:

1. Ensure that this change is promptly forwarded to each Statedesignee using a format consistent with the Plan Change Two-way Memorandum inAppendix F, OSHA Instruction STP 2.22A, CH-2.

2. Explain the technical content of this change to the Statedesignee as requested.

3. Advise the State designees that OSHA has determined that theviolation-by-violation citation and penalty policy is an integral part of itsnation-wide overall compliance strategy and, therefore, States are requiredto either adopt OSHA's policy or an alternative "at least as effective as"policy for application to the private sector. States may, but are notrequired to, extend the policy to their public sector programs.

4. Ensure that State designees are asked to acknowledge receipt ofthis Federal program change in writing to the Regional Administrator as soonas the State's intention is known, but not later than 70 calendar days afterthe date of issuance (10 days for mailing and 60 days for response). Thisacknowledgment must include:

a. The State's plan for adopting identical procedures fordocumenting and reviewing violation-by-violation cases, adapted asappropriate to reference State law, regulations and administrativestructure;

b. The State's plan for developing alternative procedures tothose in this instruction which are as effective; or

c. The reasons why it is not necessary for the State to adoptthe Federal procedures.

5. Ensure that the State designees submit State plan supplements inresponse to this instruction, which will be incorporated into the OSHA FieldOperations Manual with the next FOM change instruction.

While States must adopt this change within six months ofissuance, plan change documentation, through State FOM plan changesupplements, is not required to be submitted more than twice a year in response to OSHA's incorporation of Federal program changes in theFOM.

a. If the FOM changes are issued on their next target date(April 1 or October 1), the States shall have 6 months from the changeinstruction issuance date to submit a plan supplement in response to the FOMchange.

b. If an FOM change is not issued within six months of the dateof this instruction, the State shall inform the Regional Administrator of itsadoption of this change by submitting documentation describing the State'sprocedures and implementing instructions. This documentation must besubmitted by the close of the calendar quarter following the next FOM changetarget date which affords the State a 6-month period for implementing thechange. However, a formal plan supplement will not be required untilissuance of the next Federal FOM change.

6. Advise the State designees to notify their RegionalAdministrators when they plan to issue violation-by-violation citations andpenalties. At the State's request, OSHA will provide assistance in reviewingcases involving violation-by-violation citations and penalties. RegionalAdministrators will coordinate this review. The review of such casesinvolving recordkeeping violations similarly may be coordinated with theBureau of Labor Statistics (BLS) through the RegionalAdministrator.

7. Review policies, instructions and guidelines issued by the Stateto determine that this change has been communicated to State compliancepersonnel.

G. Background. Over the past several years, in a limited number of casesOSHA has alleged a separate violation and proposed a separate penalty foreach instance of noncompliance with OSHA recordkeeping regulations, with thesafety and health standards, and with the General Duty Clause [Section5(a)(1) of the Occupational Safety and Health Act (the Act)]. The resultinglarge aggregate penalties are part of a compliance strategy which improvesthe efficiency and effectiveness of the agency and conserves its limitedresources. This instruction is intended to serve as the master documentcovering the procedures applicable in cases where the violation-by-violationcitation and penalty provisions are employed.

1. In the context of the Act, penalties are intended to provide anincentive to employers to prevent safety and health violations in theirworkplaces and to correct such violations which do existvoluntarily.

2. The Act intends that this incentive be directed not only to aninspected employer but also to any employer who has hazards and violations ofstandards or regulations.

a. The large proposed penalties that accompanyviolation-by-violation citations are not, therefore, primarily punitive norexclusively directed at individual sites or workplaces; they serve a publicpolicy purpose; namely, to increase the impact of OSHA's limited enforcementresources.

b. The criteria contained in this instruction are intended toensure that when they are proposed, large penalties serve this publicpurpose.

3. Large proposed penalties result from application of existing FOMpenalty calculation guidelines; but, instead of grouping or combiningviolations for penalty purposes, each instance of noncompliance is considereda separate violation and a penalty applied separately. This procedure isknown as the egregious or violation-by-violation penalty procedure.

a. Application of these procedures is appropriate in situationswhere the violations in question constitute willful violations of OSHAstandards or regulations or of the general duty clause of the Act and meetcertain criteria to be discussed later in this instruction atN.2.

b. Since large penalties are likely to result in investigationand widespread public attention, review at the Regional and National Officesof OSHA and the Office of the solicitor of Labor (SOL) is currentlymandated.

c. In all other respects, such cases are handled in accordancewith the FOM.

4. While this practice of citing each violative instance as aseparate violation has been utilized by the agency only since 1986, OSHA isauthorized to use this approach by the language of the statute, itslegislative history, and the agency's historic role as the sole prosecutor ofviolations occurring under the Act.

5. In these cases, as in all other cases, violation-by-violationcitations and penalties are proposed by the Area Director.

H. Guidance.

1. Early Identification of Cases. It is important that the AreaDirector identify cases which may be appropriate for violation-by-violationtreatment as early as possible.

a. Meticulous documentation of evidence for each violation andappropriate involvement of such technical specialists as may be required forinvestigation is essential to the successful pursuit of potential egregiouscases.

b. Coordination with the Regional and the National Offices mustbe scheduled in time for comprehensive review before the expiration of thestatutory 6-month citation period.

c. Early involvement of the Regional solicitor's office willensure adequate legal, evidentiary, and resource coordination.

2. Criteria. In general, this instruction identifies thoseconditions which normally constitute a flagrant violation of the Act or OSHAstandards or regulations such that violation-by-violation handling isappropriate.

a. The criteria given in the following section shall be used bythe Area Director to determine whether to recommend the use ofviolation-by-violation citations and penalties.

b. Cases under consideration for such treatment must beclassified as willful (category (1) below) as well as at least one of thecategories given in (2) through (7).

(a) Of which she/he has actual knowledge at the time of theviolation. Such knowledge may be demonstrated through previous citationhistory, accident experience, widely publicized agency enforcement, directevidence of specific recognized jobsite hazards or other appropriatefactors; and

(b) Intentionally, through conscious, voluntary action orinaction, having made no reasonable effort to eliminate the knownviolation.

(2) The violations resulted in worker fatalities, a worksitecatastrophe, or a large number of injuries or illnesses.

(3) The violations resulted in persistently high rates of workerinjuries or illnesses.

(4) The employer has an extensive history of prior violations ofthe Act.

(5) The employer has intentionally disregarded its safety andhealth responsibilities.

(6) The employer's conduct taken as a whole amounts to clear badfaith in the performance of his/her duties under the Act.

(7) The employer has committed a large number of violations soas to undermine significantly the effectiveness of any safety and healthprogram that might be in place.

3. Penalty Calculation. Penalties for safety and health violationsare to be calculated in accordance with the gravity-based penalty proceduresin Chapter VI of the FOM. (Since egregious cases involve willful violations,the procedures of B.7.a. generally apply except as noted below.)

a. A separate gravity-based penalty shall be calculated foreach violation.

(1) In calculating penalties for each violation, the particularfactors associated with that discrete violation shall be used conservativelyto calculate a gravity-based penalty; e.g., the number of workers exposedwill be low since each violation is to be penalizedseparately.

(2) The adjustment factor for size shall be applied, ifapplicable. Factors for good faith and history will normally not beapplied.

b. The following additional guidelines are provided to assistin calculating penalties for recordkeeping or similarviolations:

NOTE: Only the current and the two previous calendaryears are subject to the violation-by-violation penalty procedures in thecase of recordkeeping violations (unless the company entered a corporate-widesettlement agreement on recordkeeping) The Regional Administrator may furtherlimit the scope based on resource availability.

(1) How many violations are involved and how extensive is theproblem?

(a) Where the total number of violations is less than 20%of the total number of OSHA-200 log entries for the year, assign a numericalweight of 1 "for number of employees exposed."

(b) Where the total number of violations exceeds 20% but isnot more than 50%, assign a numerical weight of 2 for "number of employeesexposed."

(c) Where the total number of violations exceeds 50%,assign a numerical weight of 3 for the "number of employeesexposed."

(a) If the violation results because a record required tobe kept was not made, assign a numerical weight of 3 under "frequency ofexposure."

(b) If the violation resulted because a required record wasimproperly kept, assign a numerical weight of 1 to 3, under "frequency ofexposure," depending on the significance of theviolation.

1 For example, if an injury was recorded as an injurywithout lost workdays when it actually did result in lost workdays, assign a3.

2 If, on the other hand, an injury was correctlyrecorded as a lost workday case but the number of days was incorrectlyrecorded, assign a 1.

(3) Did the recordkeeping violation relate directly to thesafety and health conditions in the plant? Assign a numerical weight ofbetween 1 and 3 under "employee proximity", depending on the strength of thatrelationship.

(4) The following two factors shall be averaged and the result(rounded down to the nearest whole number) entered under"stress."

(a) How much does the lost workday injury (LWDI) ratechange if the unrecorded cases are included in arecalculation?

1 If the rate doubles (or more) upon recalculation,assign a weight of 3.

2 If, upon recalculation, the rate does not double,assign a weight of 1.

(b) Were the unrecorded injuries serious, investigated bythe company, or the subject of workers' compensationclaims?

1 If the majority were of a serious nature, or thesubject of workers' compensation claims, and not thoroughly investigated bythe company, assign a numerical weight of 3.

2 If a minority of injuries were of a serious nature,the company did investigate, and workers' compensation was not heavilyinvolved, assign a weight of 1.

(5) The following factors shall be averaged and the result(rounded down to nearest whole number) entered under "otherfactors."

(a) What is the character of the company's safety andhealth history? Does the company's program include training, given toemployees and supervisors, regarding compliance with theregulations?

1 Assign a rating of 3 if over all history is weak andtraining is lacking.

2 Assign a rating of 1 if some evidence exists oftraining; and the company's history does not reveal a pattern of disregardfor safety and health.

(b) Any other significant factors relevant to the violationshall be considered and assigned a value of 1 to 3 depending on their impacton the flagrancy of the violation.

NOTE: No severity factor shall be used inrecordkeeping violations.

(6) Following evaluation of the above-mentioned items, anaverage value or weight of all the factors shall be calculated and roundeddown to the nearest whole number, thereby providing the gravity-based penaltyto be used in the violation-by-violation penalty calculation.

c. Guidance on penalty calculation for violations of the hazardcommunication standard is provided in the FOM, Chapter IV, and in OSHAInstruction CPL 2-2.38B.

d. What will constitute separate violations for purposes ofapplying the violation-by-violation penalty procedures will depend on severalfactors.

(1) In cases involving violations of OSHA standards, thestandard language must support citation of separate violations. Forexample:

(a) 29 CFR 1926.21(b) (2) is a requirement for the employerto train each employee in safety and health. For each employee not so trainedthere is a separate violation of the standard.

(b) 29 CFR 1910.217(c)(1)(i) is a requirement for a pointof operation guard for a mechanical power press. Consequently, eachmechanical power press unguarded point of operation found is a separateviolation of the standard.

(c) 29 CFR 1910.1000(a)(2) limits the exposure of eachemployee to air contaminants regulated in Table Z-1-A. Thus each employeeexposed above the 8-hour time weighted average for a regulated substanceconstitutes a separate violation of the standard.

(d) 29 CFR 1910.1000(e) requires the implementation ofengineering and work practice controls to reduce employee exposure to aircontaminants. With respect to engineering controls, a separate set ofcontrols must be installed at each identifiable source of air contamination. Thus a separate violation exists for each identifiable source of aircontamination to which engineering controls have not been appliedirrespective of the number of employees overexposed.

NOTE: Since overexposures and engineering controls aretwo separate violation types, a violation-by-violation citation and penaltymay be issued for each.

(2) Substantially similar violative conditions cannot bepenalized on a violation-by-violation basis under two different standards.For example:

(a) 29 CFR 1910.1001(c) prohibits exposure of any employeeto airborne concentration of asbestos in excess of 0.2 fibers per cubiccentimeter of air (8 hr TWA). Hence each employee overexposed constitutes aseparate violation.

(b) 29 CFR 1910.1001(g) (1) requires employers to providerespirators to employees overexposed to asbestos and to ensure their usewhenever they are required; e.g., in cases where airborne concentrations ofasbestos exceed the PEL.

1 Employees without respirator protection have alreadybeen cited for overexposure under 29 CFR1910.1001(c).

2 Respirators are required for that very reason. Thusviolation-by-violation penalties for each overexposed employee would betantamount to a second penalty for substantially the same violative conditionand would be inappropriate.

(c) 29 CFR 1910.1001(g)(2) requires that the employerselect the appropriate respirator according to Table 1. For the same reasonas given in subparagraph (b) 1 above, respirators with the incorrect filterscannot be penalized using violation-by-violation penalty procedures whenairborne concentrations exceed the PEL.

(d) When airborne concentrations exceed 50 x PEL and onlyhalf-mask respirators are used, the violation is no longer substantiallysimilar and each such respirator may be penalized as a separate violationwhen provided to an exposed employee for respiratoryprotection.

(3) Violations of the general duty clause [Section 5(a) (1) ofthe Act], if egregious, are to be cited in accordance with the FOM, ChapterIV, A.2.

(a) The hazard must be identified with specificity.Multiple citations may not be issued on the basis of missing controls ordifferent sources or causes of the hazard.

(b) Each employee exposed to the recognized hazard at thetime of the violation constitutes a separate violation.

e. All violations not recommended for consideration asegregious shall be classified and issued separately in accordance with theFOM, Chapter V. They shall not be grouped with violations recommended asegregious.

4. Case Support Requirements. Because these cases involveadministrative and legal issues critical to the effective enforcement of theAct, it is essential to ensure that the highest professional standards aremet in the conduct of inspections, the issuance of citations, and theprosecution of litigation in such cases.

a. Documentation. Whenever a case is proposed forviolation-by-violation treatment, as fully detailed responses to thequestions listed in Appendix A of this instruction as possible must bedeveloped in writing. Supporting documentation shall be provided andcross-referenced whenever possible.

(1) These questions, originally developed for recordkeepingcases, have been adapted as appropriate for safety and healthcases.

(2) Mandatory use of these questions is intended to provide aconsistent format to aid in review of these cases, as well as to ensure asfar as possible uniformity of case development across Regions.

b. Evidence. Documentary support shall ordinarily be plannedfor and obtained early in the investigation.

(1) The evidence necessary to support citations being consideredfor violation-by-violation penalty sanctions shall be included in the casefile. Such evidence must be present for each separateviolation.

(a) Photographs, videotapes, audiotapes, sampling data, andwitness statements shall be used whenever possible to provide supportingevidence of violative conditions.

(b) Company documents supporting knowledge of the standardand the violative conditions as well as willfulness of the violation shall bediligently sought and obtained by subpoena asappropriate.

(c) Examples of such documents are internal audit reports,consultant or insurance company reports, trade association articles, minutesfrom safety meetings, complaints from employees, memoranda and othercorrespondence from safety personnel, especially from plant safety to plantmanagement or corporate safety recognizing violations and bringing them tothe attention of higher management, and notes relating to OSHA activities andindustry practice in other companies or industries.

(a) If and when they recognized the hazardous nature ofeach of the violations;

(b) If they knew what OSHA's standards require, and, if so,what steps the company had taken to abate and why the apparent violations hadnot been corrected;

(c) If they knew of the documents identified undersubparagraph (1) above and what those documentscontained.

(3) Their responses shall be carefully documented in writing(verbatim if possible). An attempt shall be made to have a second personpresent as a witness, particularly when dealing with potentially compromisingmatters.

(4) Signed employee statements shall be obtained routinely tosupport each of these violations in as much detail aspossible.

(5) Employee exposure and the nature and extent of injuries orillnesses related to the violations shall be carefully and adequatelydescribed.

(6) The need for subpoenas and medical access orders shall bedecided and documents obtained as soon as possible.

(7) The need for experts shall also be decided and necessaryarrangements made early. It is anticipated that experts will be needed forcases involving complex violations, such as ergonomics, or abatementmethods.

(8) Particular attention shall be paid to anticipating andpreparing for possible employer defenses, in accordance with the FOM, ChapterV, E.

c. Early involvement of the Regional Solicitor is essential toexamine and evaluate the documentation and other evidence supporting theviolations and to determine whether expert witnesses or depositions will benecessary, as well as to provide sufficient time for the Regional Solicitorto write a legal opinion on the merits of the case.

(1) The Area Director (through the Regional Administrator) shallseek legal guidance (informally) from the Regional Solicitor periodicallythroughout the case development process.

(2) The Regional Administrator shall ensure that suchinvolvement is accomplished at least 4 full months prior to the 6-monthissuance date.

(3) The Regional Administrator shall also ensure that the entirecase file, including OSHA-1Bs, documentary evidence, statements, andphotographs, is made available to the Regional Solicitor 8 weeks prior to the6-month date.

5. Citations. The Act authorizes penalties to be proposed for eachviolation but limits the maximum penalty that can be proposed. In accordancewith the FOM, Chapter V, the following procedures shall be adhered to inissuing citations with violation-by-violation penalties:

a. Each separate violation must have its own Standard AllegedViolation Element (SAVE). (The SAVE must be repeated for each violationinstance.)

b. Each separate violation must have its own Alleged ViolationDescription which will describe the particular conditions associated withthat violation instance.

c. Each separate violation must have its own penalty calculatedin accordance with the procedures given in H.3. of thisinstruction.

6. Regional and National Office Review. The procedures andtimetables given below are to be followed in all cases involvingviolation-by-violation citations.

a. Documentary Package. It is the responsibility of the AreaDirector to provide adequate documentation of cases involvingviolation-by-violation citations.

(1) Two copies of the documentation package for allviolation-by-violation citations shall be forwarded to the RegionalAdministrator for review.

(2) The package submitted for review shall include, at aminimum:

(a) A briefing memorandum summarizing the informationobtained under H.4. of this instruction.

(b) Copies of all OSHA 1-Bs related to the violations to beproposed for egregious penalty handling. (See NOTE at the end ofsubparagraph (4) below.)

(c) Copies of all critical evidence establishing thewillfulness of the violations.

(d) Copies of all critical evidence establishing thejustification for violation-by-violation citation andpenalty.

(e) Copies of samples of each type of violation in theproposed violation-by-violation citations.

(3) If the Regional Administrator, after review of the case filematerial, believes that the case is appropriate for violation-by-violationcitation procedures, a copy of the complete documentation package shall beforwarded to the Regional Solicitor as soon as practicable after completionof the review (but no later than 8 weeks before the citation issuance date)for legal analysis and composition of a legal opinion.

(4) The Regional Administrator shall include a copy of thewritten legal opinion with the documentation package and submit the completepackage to the Directorate of Compliance Programs (DCP) as soon as possibleafter receipt of the legal opinion.

NOTE: It will not be necessary to include copies of allOSHA-1Bs for recordkeeping cases within the documentation package forwardedto DCP. (See H.6.b.(1) of this instruction.)

(5) If the legal opinion has not been received within 5 weeks ofthe 6-month date, the documentation package shall nevertheless be submittedto DCP and the legal opinion forwarded as soon as it isreceived.

(6) The Regional Administrator shall also be responsible forcomposing a 1- or 2-page summary of the most cogent reasons supporting theegregiousness of the violation and the appropriateness of the application ofthe additional penalty factor. The summary shall include thefollowing:

(a) Outline of the facts of the inspection, includinginspection type, company name and size, operation involved and employeerepresentative, if any.

(b) OSHA inspection history (nationwide and at thisplant).

(c) Brief summary of violations found, the number andnature of proposed citations and the amount of the proposedpenalty.

(e) Novel issues involved in the case or issues withnational implication for program or litigation policy.

(7) The Regional Administrator shall ensure that copies of thesummary and the complete documentation package are provided to the Directorof Compliance Programs and the National Office of theSolicitor.

b. Recordkeeping Violations. If the case involvesrecordkeeping violations which are being considered for additional penalties,two further steps are necessary.

(1) The Area Director shall provide an additional (third) copyof the documentary package (See H.6.a.) to the Regional Administrator whichwill be forwarded to the National Office for review. This extra copy will beused by BLS for its review and must include all OSHA-1Bs related to proposedegregious recordkeeping violations.

(2) Copies of evidence supporting each recordkeeping violationproposed as egregious, as developed from the company's occupational injuryand illness logs and supplementary records, workers' compensation records,medical records, first aid logs and other sources, shall be included in thepackage. (See Appendix B.)

(3) This evidence must support the existence of a violation forboth nonrecorded and misrecorded cases. It must include the particularrecordability criteria involved: whether the case involved days away fromwork and/or days of restricted work activity beyond the day of injury oronset of illness as well as evidence that the case was workrelated.

NOTE: Medical records contained in the case fileshall be handled in accordance with OSHA Instruction CPL 2-2.46,K.2.

c. Timetable. It is critical to the development of a uniformnational policy that all cases appropriate for violation-by-violationcitation be handled as such. Regional Administrators and Area Directorsshall adhere as closely as possible to the timetables describedbelow.

(1) Failure to supply the required documentation by the timesdesignated in the following subsections may preclude issuance ofviolation-by-violation citations in otherwise appropriatecases.

(2) Regional Administrators and Area Directors shall take carenot to expand the inspection beyond what they can reasonably expect toaccomplish within these time frames.

(3) Within one month after the start of an inspection whichappears to be appropriate for consideration for violation-by-violationcitation:

(a) The Area Director shall notify the RegionalAdministrator of a potential egregious case. The Regional Administrator inturn shall notify the Director of Compliance Programs (Attention: Director,Office of General Industry Compliance Assistance, FTS 523-8041) of thefollowing:

5 General type of apparent violations (e.g., safety,health, recordkeeping)

(b) The Regional Administrator shall notify the RegionalSolicitor of the impending case and seek advice as to necessary documentationand involvement of outside experts.

(4) The Regional Administrator shall establish an appropriatetimetable for periodic submission of the case by the Area Director forRegional Office and Regional Solicitor review.

(a) After 60 days onsite, the Area Director shall ensurethat the case is submitted to the Regional Office forinformation.

(b) The Regional Administrator shall submit the case to theRegional Solicitor for an interim legal review, evaluation andguidance.

(c) As the case is being developed and as additionalinformation becomes available, the Regional Administrator shall ensure thatthis information is submitted to the Regional Solicitor for additionalevaluation.

(5) No later than 8 weeks before the 6-month date, the entirecase file shall be submitted to the Regional Solicitor for final legalanalysis and for a written legal opinion as outlined inH.4.c.(3).

(6) At the same time, a copy of the complete briefing packageand relevant portions of the case file as described in K.6.a. and b. shall besubmitted to the Director of Compliance Programs.

(7) No later than 15 days before the 6-month issuance date, at atime to be scheduled by the Director of Compliance Programs, the RegionalAdministrator shall send appropriate field compliance staff (including thecompliance officer(s) conducting the inspection) to the National Office todiscuss the proposed citations in detail.

d. National Office Review. Upon receipt of the documentarypackage, the Director of General Industry Compliance Assistance shalldistribute copies to the reviewers.

(1) Copies shall be provided within 2 working days of receipt tothe appropriate DCP Compliance Assistance Office, the Office of FieldPrograms and SOL. The Office of Information and Consumer Affairs shall alsobe notified.

(2) At the same time a financial profile of the firm shall berequested from the Directorate of Policy, Office of DataAnalyses.

(3) Within 10 days of receipt of the documentary package, aNational Office technical and legal review shall have been conducted. Following completion of that review, any identified problems or deficienciesshall be conveyed in writing as soon as practicable, but no later than 2 daysafter the review, to the Regional Administrator for response.

(4) After obtaining any needed additional information, ascreening session shall be scheduled with the Deputy Assistant Secretary forpresentation of the case. Such screening shall be scheduled no later than 2weeks before the 6-month issuance date.

(a) Prior to presentation of the case to the AssistantSecretary or the Deputy Assistant Secretary, the case shall be prescreened bythe Director of Compliance Programs and the Associate Solicitor ofLabor.

(b) If the case is judged egregious as a result of theprescreening, the case shall normally be presented to the Assistant Secretaryor the Deputy Assistant Secretary by the Director of CompliancePrograms.

(c) The Regional Administrator shall be prepared to presentthe facts and other evidentiary details of the case.

(d) The Regional Solicitor will be prepared to discuss thepotential litigation aspects of the case.

e. The Assistant Secretary or the Deputy will render a decisionon the merits of the case and will give appropriate instructions on how thecase is to be handled. Such instructions will address the final penaltyamount to be proposed, the date of citation issuance, the coordination of anypress releases, and the like.

f. Within 48 hours after issuance, the Area Director shall senda copy of the citation to the Director of Compliance Programs; electronictransmission is acceptable.

I. Delegation of Authority. It is agency policy eventually to delegateauthority for decisions regarding the use of the violation-by-violationcitation and penalty procedures to the Regional Administrator. The actualdelegation of this authority will be addressed in future changes to thisinstruction.

Gerard F. Scannell Assistant Secretary

DISTRIBUTION: National, Regional, and Area Offices All Compliance OfficersState Plan Designees NIOSH Regional Program Directors 7(c) (1) ProjectManagers

1. Scope of Inspection.

a. Date initiated.

b. Latest date for issuance of citations (6-month date).

c. Type of inspection (e.g., safety, health, programmed, complaint,referral).

d. Nature of employer's business, corporate-wide and at this facility.

e. Number of employees (overall; in plant).

f. Names of unions representing employees.

2. Inspection History.

a. Numbers and dates of previous inspections.

b. Previous violation history at this establishment and in thecorporation, nationwide.

3. Inspection Methodology.

a. Procedures followed in conducting the investigation:

(1) Were warrants, medical access orders or administrativesubpoenas necessary? Why? Were they obtained and used?

(2) What written records or other documents were examined orobtained?

(3) What are the names of the compliance officers conducting theinspection?

(4) Were experts or other consultants used in the inspection? If so what are their names and qualifications?

(5) Have depositions been taken? Are any planned? Who will bedeposed?

b. For recordkeeping violations:

(1) Who has the responsibility for maintaining and certifyingthe OSHA-200, Log and Summary of Occupational Injuries and Illnesses, andrelated materials?

(2) Were medical or injury and illness records reviewed by OSHAphysician(s)?

4. Findings.

a. Summary of violations:

(1) Number and classification.

(2) Types of violations:

(b) General Duty Clause (Section 5(a) (1) of the Act) violationstogether with applicable industry standards, NIOSH recommendations, ANSIstandards, and other supporting guidelines.

NOTE: In recordkeeping cases violations shall becategorized by year and according to either failure to record or misrecordinginvolvement of days away from work and/or days of restricted work activity,loss of consciousness, job transfer, restriction of work or motion (i.e., restricted work activity on the day of injury/illness only), medicaltreatment and other.

They shall also be prepared by injury or illnesstype.

b. Proposed citations:

(1) How is the violation-by-violation penalty to be applied?

(2) How many violations?

(3) Are there additional violations, not egregious?

c. For recordkeeping violations:

(1) How many cases were not recorded for the previous 2 years? How many were recorded? Of those not recorded, how many were lost workdaycases?

(2) What is the LWDI rate according to company records? According to OSHA findings?

(3) What is the LWDI rate among production employees (or amongclasses of employees affected by the proposed citation) according to companyrecords? According to OSHA findings?

(4) Were any previous inspections terminated because of a lowLWDI rate?

5. Documentation Relating to Additional Penalty Factors.

a. Determination of willfulness:

(1) What were the firm's guidelines or policies relating tosafety and health in general and, in particular, to the subject violation(e.g., recordkeeping, hazard communication, machine guarding, use ofrespirators, maintenance of pressure vessels)? What was the local facility'ssafety and health program?

(2) Do corporate or plant policies or guidelines differ fromOSHA requirements, or other relevant standards, regulations or guidelines?What is management's explanation for differences between its policies andOSHA's requirements?

(3) Did responsible persons actually know of the requirements ofthe relevant OSHA standards, guidelines or instructions? Who were they andhow did such persons come to know OSHA's requirements?

(4) Did responsible persons actually know of the existinghazardous conditions? Did they recognize the hazardous nature of theseconditions? If so, who were these persons and for how long had theyrecognized the hazard?

(5) How did the employer explain the existence of theviolations? Did the employer claim that any steps to abate had already beentaken? Was any documentation available to support such previousaction?

(6) Had the company done anything toward identifying, evaluatingor correcting the hazardous conditions prior to OSHA's visit? Was anabatement program in place or had one been proposed? What progress had beenmade toward implementing it? Does it seem adequate? What was the company'sexplanation as to why more progress had not been made?

(7) Are any memoranda, letters, minutes, accident reports orother documents addressing the hazards, violations or corrective measuresavailable? Describe them. Did management admit knowledge of thesedocuments? Had management responded in any to them? How?

b. Penalty factors:

(1) How many violations of each standard are involved and howextensive (pervasive) is the problem?

(a) What is the nature of the violation? (How many machines? Howmany different engineering controls? How many employeesexposed?)

(b) What does the Regional Administrator propose as the"multiplier" for penalty calculation purposes? (See H.3.e.) Why thatmultiplier?

(2) For recordkeeping cases:

(a) Did the unreported or misrecorded cases tend to hideviolative safety and health conditions in the establishment?

(d) Were the unrecorded injuries or illnesses the subject ofworkers' compensation claims?

(3) What kind of safety and health program exists in the plant?What is management's attitude toward safety and health? What do managementofficials actually say?

(4) What training was given to employees and supervisorsregarding compliance with the standard or regulation, or abatement of therecognized hazard? If none is given, what did management admit or whatexplanation did they offer?

(5) Did the company enforce its own policies and guidelines?

(6) What were the most serious reasonably predictable injuriesor illnesses that could result from exposure to the hazard? Would thesepotential injuries or illnesses be classified as serious? Did managementadmit recognition of the potential for these injuries andillnesses?

(7) What was the company's record (especially relating toworkers' compensation claims) for injuries and/or illnesses associated withalleged violations? What kind and how many such injuries orillnesses?

(8) Are the abatement methods used by the company sufficient? Are the hazards well known in the industry? What is industry practice withrespect to the hazards? Are appropriate methods to correct the hazards wellrecognized in the industry? What is industry practice with respect to thehazards? Why had the employer not implemented them? Were any interimprotection measures in place? If not, why not?

NOTE: All of the above questions are to be directlyasked of management personnel and their responses carefully recorded. Asecond CSHO or other reliable witness shall be present if at all possible.Documentary evidence shall be sought throughout the investigation, usingadministrative subpoenas promptly and freely, as appropriate.

Case files for recordkeeping citations to be considered forviolation-by-violation penalty procedures shall be set up to groupviolations, using a numerical code as shown below, fol-lowed by the casenumber of the violation as may be recorded in the optional recordkeeping caseoutline.

A. Case types are as follow:

INJURY:

01--Laceration 02--Puncture wound 03--Fracture 04--Eye injury05--Burn 06--Contusion 07--Strain/sprain 08--Hernia 09--Other (majorcategory) 10--ALL other injuries (non-specific)

ILLNESS:

11--Dermatitis 12--Cumulative trauma disorder 13--Hearing loss14-Poisoning 15--Respiratory disorder 16--Cancer 17--Other (major category)18--All other illnesses (non-specific)

B. For burns, there shall be some estimate of the size of the burn. Thiscan be given in the "Detailed Description of Event" column on the suggestedrecordkeeping case outline.

C. Using the suggested recordkeeping case outline or some other appropriateformat, include the following types of information for each violation under"Detailed Description of Event":

1. Work relationship.

EXAMPLE: "While working as a welder...."

2. Injury.

EXAMPLE: Employee sprained his left wrist. Employeefractured her right index finger.

3. Basis of recordability: injury or illness.

EXAMPLE: Employee was to take prescription medicine(Naprosyn) for 5 days and received heat therapy on three subsequentvisits.

D. Each violation must have:

1. A unique case file number;

2. A way to be identified, either by name or employee clock number;

3. The reason the instance is a violation of the BLS guidelines; and

4. A detailed description of the event (injury or illness).

E. Five guides are included in this appendix and in Appendix C for use indetermining recordability:

1. Chart 1. Guide to Recordability of Cases Under the OccupationalSafety and Health Act.

2. Chart 2. Guidelines for establishing Work Relationship.

NOTE: The charts are from the BLS September 1986Recordkeeping Guidelines for Occupational Injuries and Illnesses.

3. Medical Treatment vs. First Aid Guidelines.

4. A partial list of prescription and nonprescription drugs basedon previous recordkeeping investigation history.

5. Physician's Abbreviations Guide.

For Pages B-4 and B-5 refer to printed copy of CPL 2.80

CHART ONE - Guide to Recordability of Cases Under the Occupational Safety

and Health Act

CHART TWO - Guidelines for Establishing Work Relationship

The following procedures are generally considered medical treatment.Workrelated injuries for which these types of treatment were provided orshould have been provided are recordable:

- Treatment of INFECTION;

- Treatment of SECOND OR THIRD DEGREE BURN(S);

- Application of SUTURES (stitches);

- Application of BUTTERFLY ADHESIVE DRESSING(S) or STERI STRIP(s)in lieu of sutures;

- Removal of FOREIGN BODIES EMBEDDED IN EYE;

- Removal of FOREIGN BODIES FROM WOUND if procedure is COMPLICATEDbecause of depth of embedment, size, or location;

- Use of PRESCRIPTION MEDICATIONS (except a single doseadministered on first visit for minor injury or discomfort);

- Use of hot or cold SOAKING THERAPY during second or subsequentvisit to medical personnel;

- Application of hot or cold COMPRESS(ES) during second orsubsequent visit to medical personnel;

- CUTTING AWAY DEAD SKIN (Surgical debridement);

- Application of HEAT THERAPY during second or subsequent visit tomedical personnel;

- Use of WHIRLPOOL BATH THERAPY during second or subsequent visitto medical personnel;

- POSITIVE X-RAY DIAGNOSIS (e.g., fractures, broken bones);

- ADMISSION TO A HOSPITAL or equivalent medical facility FORTREATMENT.

The following procedures are generally considered first aid treatment (e.g.,one-time treatment and subsequent observation of minor injuries) andwork-related injuries involving such procedures are not recordable unlessthey involve loss of consciousness, restriction of work or motion, ortransfer to another job.

- Treatment of FIRST DEGREE BURN(S);

- Application of BANDAGE(S) during any visit to medical personnel;

- Use of ELASTIC BANDAGE(S) during first visit to medical personnel;

- Removal of FOREIGN BODIES NOT EMBEDDED IN EYE if only irrigationis required;

- Removal of FOREIGN BODIES FROM WOUND if procedure isUNCOMPLICATED and is, for example, by tweezers or other simpletechnique;

- Use of NONPRESCRIPTION MEDICATION AND administration of singledose of PRESCRIPTION MEDICATION on first visit for minor injury ordiscomfort;

- SOAKING THERAPY on initial visit to medical personnel or removalof bandages by SOAKING;

- Application of hot or cold COMPRESS(ES) during first visit tomedical personnel;

- Application of OINTMENTS to abrasions to prevent drying orcracking;

- Application of HEAT THERAPY during first visit to medicalpersonnel;

- Use of WHIRLPOOL BATH THERAPY during first visit to medicalpersonnel;

- NEGATIVE X-RAY DIAGNOSIS;

- OBSERVATION OF injury during visit to medical personnel.

The following procedure, by itself, is not considered medical treatment.

- Administration of TETANUS SHOT(S) or BOOSTER(S).

However, these shots are often given in conjunction with moreserious injuries; consequently, injuries requiring these shots may berecordable for other reasons.

The following list is intended to supply a reference list ofdrugs currently requiring a prescription. The list is not to be exhaustivebut merely to list some of the more commonly encountered prescription drugs. This list is currently accurate but is subject to change and must be verifiedif a listed drug is found during an inspection. (See Physicians DeskReference or contact a druggist or physician.)

Adsorbonac Motrin Anaprox Nalfon Anapux Naprosyn Antivert tablets Naproxen Aristocort cream Neomycin sulfate tablets Atropinesulfate injection Neosporin drops Atropine sulfate ophthalmic Neosporin ophthal-

A-S cream Neo-decadron Benadrylcapsules-not lotion ophthalmic Butazolidin NorflexChloramphenicol ophthalmic Norgesic solution 5% Norgesicforte Chloroptic ophthalmic solution Papase Clinoril Parafon forte Cobisic Penicillin Cortisporin Phenergan Cortisporin drops Phisohex Cortisporin oticsolution Ponstel Darvocet Robaxisal Darvon Rufen Decadron phosphate sterile Silvadene creamophthalmic ointment Skelaxin Dolobid SnyestionDuricef Solatene Elavil Somacompound with Elixir of Turpin Hydrate Codeine Feldene Strifon forte Gantrissin drops Synalar cream Garamycinointment Synalgos-DC capsules Halcion tablets Tetracycline Hydrochlorothiazide Thiamine HydrochlorideHydrocortisone cream 1% Tobrex Indocin Tobrexophthalmic solution Keflex Tolectin Maxitrol Tylenol #2 Meclomen Tylenol #3 Medrol Valisone cream Xylocain w/EPT. 2%

The following list is intended to supply a reference list of drugs notcurrently requiring a prescription. The list is not intended to beexhaustive but merely to list some of the more commonly encounteredover-the-counter (OTC) drugs, many of were recently dispensed only byprescription. This list is currently as accurate as possible but is subjectto change.

Acetaminophen Advil Bacitracin Betadine Chlor-Trimeton tablets Hydrocortisone cream 0.5 %Ibuprofen (OTC generic) Motrin 1B Neosporin ointment Nuprin Percogesic Robitussin Sudafed syrup Tylenol

Pt - Patient b.i.d. - twice daily q.1. - as muchas desired t.i.d. - thrice daily q.p. - as much as you please q.i.d. - 4 times a day QOD - every other day q.r.n. - whennecessary q.h. - every hour q.s. - as much as sufficesq.d.s. - 4 times a day Qd - per day pp - postprandial (after eating) m - milligrams c - with a - same quantity p - after po - by mouth pr - by rectum IPPB - Intermittent positive pressurebreathing Dx - Diagnosis Fx - Fracture Thx - Therapy WT - Weight Hx - History CBC - Complete blood IV - Intravenous countPhx - Physical exam UA - Urinalysis EKG - Electrocardiogram ECG - See EKG EEG - Electroencephalogram SZ - Seizure Rx - Treatment, treated CXR - Chest X-rayPA - Posterior-anterior (kind of CXR) LAT - Lateral (refers toX-ray view) RUQ - Right upper quadrant (abdomen) LUQ - Left upperquadrant (abdomen) RLQ - Right lower quadrant (abdomen) LLQ - Leftlower quadrant (abdomen)

VS - Vital signs (there are four vital signs)

BP = Blood Pressure T = Temperature P = Pulse RR = Respiratory or Rate HR = Heart rate

LBP - Low Back Pain CTS - Carpal tunnel Syndrome

SMA 20-20 channel chemistry test

Na - Sodium K - Potassium

Cl - Chloride BAN - Blood area nitrogen

Cr - Creatinine Ca - Calcium

Ph - Phosphate Gln - Glucose

Alb - Albumin

Chol - Cholesterol

SGOT, SGPT, Alkphos GGTP are Liver Enzymes

Bili Direct Total-Bilirubin