SUBJECT: Fatality Inspection Procedures

A. Purpose. The purpose of this instruction is to provide guidance for handling fatality/catastrophe inspections and to provide a mechanism to ensure that area directors inform regional administrators of all proposed actions regarding fatality inspections. The instruction also provides guidance for advising the National office of significant fatality/catastrophe inspections and cases appropriate for potential criminal prosecution.

B. Scope. This instruction applies OSHA-wide.

C. References.

1. OSHA Instruction CPL 2.103, September 26, 1994, Field Inspection Reference Manual (FIRM).

2. OSHA Instruction CPL 2.94, July 22, 1991, Response to Significant Events of Potentially Catastrophic Consequences.

3. OSHA Instruction CPL 2.80, October 1, 1990, Handling of Cases to be Proposed for Violation by Violation Penalties.

4. OSHA Instruction ADM 1-1.31, September 20, 1993, Event Processing.

5. 29 CFR 1903.14, Policy on Employee Rescue Efforts.

6. Memorandum dated March 24, 1994 to Regional Administrators from Joseph A. Dear on Enforcement Litigation Strategy.

D. Cancellations. This Instruction cancels CPL 2.77, Critical Fatality/Catastrophe Investigation Factors and CPL 2.97, Fatality/Catastrophe Reports to the National office and shall be applied nationwide to all fatality/catastrophe investigations for which citations may be issued.

E. Background. The Agency provides policy and guidance in a number of documents for the effective and efficient inspection of workplace occurrences involving fatalities/catastrophes. Because such occurrences involve loss of life, hazardous exposure of large numbers of persons or significant damage to property, it was determined that specific instructions should be provided, in a single source, to ensure that such cases are uniformly processed and that decisions regarding the disposition of the cases are reviewed at appropriate levels.

F. Federal Program Change. This instruction describes a Federal program change that affects State programs.

1. Each Regional Administrator shall ensure that this in instruction is promptly forwarded to each State designee and shall discuss its purpose and content with the State.

2. States are encouraged, but not required, to adopt similar procedures for fatality investigations particularly with regard to (1) early determinations as to criminal investigations, (2) contact with family members, (3) pre-citation review and (4) settlement guidelines. Any implementating State procedures adopted should be submitted as a State Plan supplement as soon as possible.

3. States are encouraged to notify their Regional Administrator in advance of citations to be issued as a result of fatality investigations and to continue to follow the procedures in paragraph G of this instruction on early reporting of fatalities and catastrophes.

G. Initial Report. The Fatality/Catastrophe Report Form (OSHA-36F) is a preinspection form that should be completed for all fatalities or catastrophes reported which fall within OSHA's jurisdiction. Processing of the OSHA-36F shall be as follows:

1. The Area Office shall complete and enter into IMIS an OSHA-36F for all fatalities or catastrophes which are to be investigated.

2. The Regional Office shall ensure that an OSHA-36F for each event which will be investigated is telefaxed to the Director of Investigative Assistance at (202) 219-8095 within 48 hours of receipt. All items on the OSHA-36F need not be completed at the time of this initial "Flash Report." The essential items and a sample form are included in Appendix A.

3. In addition, the Regional Administrator shall telephone the Deputy Director of Compliance Programs at (202) 219-9308 to ensure prompt notification of the National office of major events, such as those likely to generate significant public or congressional interest.

H. FATALITY/CATASTROPHE INVESTIGATIONS.

1. Definitions.

a. Fatality. An employee death resulting from a work-related exposure; in general, from an accident, or illness caused by or related to a workplace hazard.

b. Catastrophe. The death or hospitalization of three or more employees resulting from a work-related incident; in general, from an accident or illness caused by a workplace hazard.

c. Hospitalization. To be admitted as an inpatient to a hospital or equivalent medical facility for examination, observation or treatment.

2. Fatalities and catastrophes shall be thoroughly investigated to attempt to determine the cause of the events, whether a violation of OSHA safety or health standards related to the accident has occurred and any effect the standard violation has had on the occurrence of the accident.

3. Area Directors shall assign appropriately trained and experienced compliance officers to conduct fatality/catastrophe investigations. The investigation shall be initiated as quickly as possible.

4. The scope of the fatality/catastrophe investigations shall be determined by the Area Director. Fatality investigations shall be completed in an expeditious manner.

I. Investigation Documentation. All fatality and catastrophe investigations shall be documented in accordance with the guidance provided for Stage IV cases in Section A.2.D. of the FIRM and where pertinent shall include:

1. Personal Data - Victim.

a. Name

b. Address

c. Telephone

d. Age

e. Sex

f. Job Title

g. Date of Employment

h. Time in Position

i. Training for Job being performed at time of accident

j. Employee Deceased/Injured

k. Nature of Injury -- Fracture, Amputation, etc.

l. Prognosis of injured employee

2. Accident Data.

a. How and why did accident occur

b. Physical Layout

c. Sketches/Drawings

d. Measurements

e. Video/Photos - Identifying sources

3. Equipment Involved or Process.

a. Machine Type

b. Manufacturer

c. Model

d. Manufacturer's Instructions

e. Kind of Process

f. Condition

g. misuse

h. Maintenance Program

i. Equipment Inspection (Logs, Reports)

j. Warning Devices (Detectors)

k. Tasks Performed

l. How often equipment used

m. Energy sources and disconnecting means identified

n. Supervision or instruction provided to employees involved in accident

4. Witnesses.

a. Public

b. Fellow Employees

c. Management

5. Safety and Health Program.

a. Does employer have a safety or health program

b. Does the program address the type of hazard which resulted in the fatality/catastrophe

J. Potential Criminal Investigations.

1. 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 the violation caused the death of an employee.

2. Early in investigations the Area Director shall make an initial determination whether there is potential for a criminal violation, based on the following criteria.

a. A fatality has occurred.

b. There is evidence that an OSHA standard has been violated and that the violation contributed to the death.

c. There is reason to believe that the employer was aware of the requirement of the standard and knew it was in violation of the standard.

3. Regional Offices shall advise the Director of the Office of Investigative Assistance at 202-219-8095 at the time a case is referred from the Regional Office to the Regional Solicitor for criminal review, using the format in Appendix B.

4. Follow-up reports shall be provided to indicate any subsequent actions, using the format in Appendix B.

K. Rescue Operations. OSHA has no authority to direct rescue operations--this is the responsibility of the employer and/or local political subdivisions or State Agencies. OSHA does have the authority to monitor and inspect 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. See 29 CFR 1903.14, Interpretive Rule, Policy on Employee Rescue Efforts, dated December 27, 1994.

L. 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 issue periodic updates on the progress of the investigation. The Area Director or his/her designee shall normally handle responses to media inquiries.

M. Families Of Victims.

1. Family members of employees involved in fatal occupational accidents or illnesses shall be contacted at an early point in the investigation and given an opportunity to discuss the circumstances of the accident or illness. When practical, personal contacts with family member will be made, which will require special tact and good judgement.

2. The standard information letter should be sent to the family member(s) of the person(s) listed as the emergency contact indicated on the victim's employment records within 5 working days of their identities being established.

NOTE: In some circumstances, these procedures should not be followed to the letter, i.e. in some small businesses, the employer, owner or supervisor may be a relative of the victim. The form letter should be modified accordingly.

3. If the family member(s) do not respond to the information letter, no further contacts need be attempted.

4. If the family member(s) or representatives respond to the information letter, the following will apply:

a. The CSHO, when taking a statement from families of the victims, shall explain that the interview will be kept confidential to the extent allowed by law and the interview will be handled following the same procedures as employee interviews. The greatest sensitivity and professionalism is required for such an interview. The information received must be carefully evaluated and corroborated during the investigation.

b. Follow-up 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. In such cases, the family members shall be provided a copy of all citations, subsequent settlement agreements, or Review Commission decisions, concurrently with the issuance of such documents,

N. Pre-citation Review.

1. The Area Director or Assistant Area Director shall review all fatality/catastrophe investigation case files to ensure that the case has been properly developed in accordance with the Assistant Secretary's memo of March 24, 1995, "Enforcement Litigation Strategy", and in particular, Section III.B, titled "Case Selection and Development for Litigation."

2. Review of any proposed violation-by-violation penalties shall be conducted in accordance with CPL 2.80.

3. Review of citations covered by Regional OSHA/SOL workload agreements shall be carried out in accordance with those agreements.

4. Each Regional Administrator shall establish a procedure to ensure that all fatality/catastrophe are thoroughly investigated and processed in accordance with established policy.

O. Post-citation Procedures.

1. Informal Settlement Agreements. Area Directors are authorized to enter into Informal Settlement Agreements on fatality cases in accordance with the guidance provided in the FIRM, Chapter IV.D.4., Settlement of Cases by Area Directors, and any Regional Instructions which govern the conduct of Informal Conferences.

2. Formal Settlement Agreements.

a. Area Director Settlements: Contested cases can be settled by the Area Director in accordance with current procedures if the employer expresses a willingness to continue settlement negotiations at the Area Office level.

b. SOL Settlements: If the case cannot be settled at the Area Office level, it shall be referred to the Regional Solicitor's Office in accordance with the procedures established by the Regional

OSHA/SOL Workload Agreements. The Solicitor's office shall be informed of the terms of any settlement offer made by the Area Director and shall discuss with the Area Director any subsequent concessions which may be necessitated by the legal facts of the case. If an acceptable settlement cannot be achieved, the case shall be considered for litigation in accordance with the Regional OSHA/SOL Agreements.

3. Abatement Verification. Because of the transient nature of many of the worksites where fatalities occur and because worksites may be destroyed by the catastrophic event, it is frequently impossible to conduct follow-up inspections. Therefore, the Area Director shall obtain abatement information from the employer along with an assurance that appropriate safety and health programs have been put in place to prevent the hazards from recurring. In addition, abatement language and safety and health program implementation language shall be included in the settlement agreement. Where the worksite continues to exist, a follow-up inspection shall normally be conducted, if serious citations have been issued. Follow-up inspection need not be conducted if the CSHO has verified abatement during the inspection or if the employer has provided other proof of abatement.

P. Audit Procedures. The following procedures will be implemented to evaluate compliance with and the effectiveness of this directive:

1. In accordance with this instruction, the Regional offices shall incorporate the review and analysis of fatality/catastrophe files into their audit functions and include their findings in their regular audit reports to the National office. This review and analysis shall utilize random case file reviews to address the following:

a. Inspection Findings: Assure that hazards have been appropriately addressed and violations have been properly classified. Checks shall also be made to assure that criminal referrals are made, when appropriate.

c. Settlement Terms: Assure that settlement terms are appropriate, including violation reclassification, penalty reductions, additional abatement language, etc.

d. Abatement Verification: Assure that abatement verification has been obtained.

2. Additionally, computer IMIS reports shall be reviewed to identify any trends or cases which may indicate that a further review of those cases may be necessary.

Joseph A. Dear Assistant Secretary

Distribution: National, Regional, and Area Offices All Compliance Officers State Designees Consultation Project Officers

Establishment Name: ______________________________________________

Inspection Number: _______________________________________________

Date referred to the Regional Office: ____________________________

Description of the possible criminal activity: ___________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

What standards are involved: _____________________________________

Update Information:

Date of Report: __________________________________________________

Date case declined for litigation: _______________________________

Organization that declined litigation: ___________________________

Reason for declining: ____________________________________________

__________________________________________________________________

Date Regional Office referred case to the Regional Solicitor:

Date Regional Solicitor referred to National Solicitor or U.S.

Attorney: ________________________________________________________

Date National Solicitor referred to DOJ: _________________________

Date Department of Justice assigned to USA: ______________________

Current Status: __________________________________________________

__________________________________________________________________

MEMORANDUM FOR: Regional Administrator

FROM: Area Director

SUBJECT: Notification of Results of Fatality Investigation

The following information supplements the OSHA-170, regarding investigation of the accident at Farmers Gin Company, Inc., which occurred on June 15, 1995.

Establishment Information:

Farmers Gin Company, Inc., located at Grainfield Road, Grossfield, USA, has no previous inspection history. The company has a work force of 32 employees and operates on a seasonal basis, usually June to November.

Family Involvement:

The next of kin information was obtained from the company and the CSHO telephoned to verify the information and advise the family that an investigation is in progress. The standard information letter was sent. There has been no further contact from the family.

Union Involvement:

There is no union at this location.

Proposed Action:

Issue citations for serious and other violations of machine guarding, open floor holes, hazard communication and recordkeeping with a penalty total of $5,475. A 5(a)(1) letter outling the hazards to be corrected which were not clearly addressed by 29 CFR 1928 Safety and Health Standards for agriculture and for which other OSHA Standards are not applicable will also be mailed to the company.

The six month date for this case is December 15, 1995