OSHA Instruction CPL 2.102 March 28, 1994 Directorate of Compliance Programs

Subject: Procedures for Approval of Local Emphasis Programs (LEPs) and Experimental Programs

A. Purpose. This instruction establishes revised procedures for the approval of Local Emphasis Programs (LEPs) and Experimental Programs. It supersedes certain procedures currently given in the Field Operations Manual (FOM) at Chapter II, F.2.b.4.

B. Scope. This instruction applies OSHA-wide.

C. References.

1. OSHA Instruction CPL 2.45B, June 15, 1989, the Field Operations Manual (FOM).

2. OSHA Instruction STP 2.22A, CH-2, January 29, 1990, State Plan Policies and Procedures Manual.

3. OSHA Instruction CPL 2.25H, December 31, 1990, Scheduling System for Programmed Inspections.

4. OSHA Instruction CPL 2.51H, March 22, 1993, Exemptions and Limitations Under the Current Appropriations Act.

5. OSHA Instruction ADM 8.1A, May 1, 1979, OSHA Directives System Manual.

D. Action. OSHA Regional Administrators, Area Directors, and National Office Directors shall ensure that the guidelines and procedures set forth in this instruction are followed for approval of LEPs and Experimental Programs.

E. 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 technical content of this change to the State designee, as requested.

3. Advise the State designees that:

a. This instruction delegates to Regional Administrators the authority to approve new or renewed LEPs, as described at G. of this instruction.

b. States shall coordinate with the Regional Administrator prior to establishing their own LEPs.

(1) OSHA-1 Forms for LEP inspections shall be submitted using an unique Integrated Management Information System (IMIS) modifier code for State tracking and OSHA monitoring purposes.

(2) In order for a State to be assigned an IMIS identifier code for an LEP, a description of the LEP and proposed identifier code must be submitted to the Regional Administrator for review and forwarding to the Office of Management Data Systems with a recommendation to issue an IMIS identifier for the LEP.

(3) Regional Administrators shall resolve any concerns they may have with a State LEP prior to authorizing the assignment of an IMIS identifier.

c. States are encouraged to perform program evaluations as described in Appendix A of this instruction and to submit the results to the Regional Administrator.

4. Ensure that State designees are asked to acknowledge receipt of this Federal program change in writing to the Regional Administrator as soon as possible, but not later than 70 calendar days after the date of issuance (10 days for mailing and 60 days for response).

5. Provide appropriate assistance, upon request, to States that are developing their own LEPs.

F. Delegation and Definitions. OSHA Regional Administrators are hereby delegated the authority to approve those LEPs that deal solely with the targeting of inspections to selected industries or hazards. Such LEPs will henceforth be distinguished from local Experimental Programs, which will continue to require approval at the National Office level. This is being done in the interest of efficiency and good management, to avoid unnecessary levels of review. The following definitions shall apply:

1. Local Emphasis Programs (LEPS) are Special Emphasis Programs as described in the FOM at Chapter II, F.2.b.(4), in which one or more Area Offices of a Region participate, and which depart from FOM procedures only in targeting inspections to selected industries, hazards, or other workplace characteristics (listed at FOM, Chapter II, F.2.b.(4)(a)1). LEPs shall normally be approved by the Regional Administrator, as described at G. of this instruction.

2. Experimental Programs are Special Emphasis Programs in which one or more Area Offices of a Region participate, which depart from FOM procedures in some way other than in simply targeting inspections to selected industries, hazards, or other workplace characteristics. Experimental Programs shall be submitted to the National Office for approval by the Director of Compliance Programs, as described at H. of this instruction. Some examples of possible Experimental Programs include:

a. Use of alternative or novel inspection procedures.

b. Use of alternative targeting lists; e.g., basing high-hazard targeting on State workers' compensation data.

c. Use of alternative addition or deletion criteria for targeting lists; e.g., deleting establishments that have received an inspection within the past 5 years instead of the normal 3 years.

d. Waiver of the requirement to delete establishments with 10 or fewer employees for identified high- hazard industries where the number of employees in a given workplace is frequently below this cutoff figure (e.g., logging), as long as this does not conflict with the restrictions imposed by

Appropriations Act language. (Refer to OSHA Instruction CPL 2.51H or subsequent revision.)

G. Procedures for LEPs. Regional Administrators are authorized to approve LEPs (as defined at F.1. of this instruction) in accordance with the following procedures:

1. Area/District Office. LEPs will usually originate at the Area Office/District Office level; they may also be developed by the Regional Office. Area Directors or District Supervisors requesting a new LEP or renewal of a previously approved LEP shall submit the request to the Regional Administrator after completing the following:

a. Developing a Regional CPL Notice (directive) for the LEP. (Notices differ from instructions in that they remain in effect no longer than one year, and carry a specific cancellation date.) The notice shall conform to the guidelines for directives in OSHA Instruction ADM 8.1A. Appendix B of this instruction illustrates the basic format and typical paragraphs for such a notice.

b. Ensuring that the Regional directive contains:

(1) Appropriate documentation and rationale for the LEP.

(2) A selection process to set forth administratively neutral criteria (e.g., random numbering system) to identify establishments for inspection. (See OSHA Instruction CPL 2.25H.)

(3) An evaluation component for determining the relative success of the LEP. (See also G.4. of this instruction.)

c. Establishing a list of establishments from available sources; e.g., Federal, State, and local agencies, National Directory, and Local Employer Industrial Classification Manual.

NOTE: When an LEP is developed by the Regional Office, the conditions outlined at G.1.a. through c. shall also be met.

2. Regional Office. The Regional Administrator is authorized to approve LEPs requested by an Area Director/District Supervisor or developed by the Regional Office. The following conditions shall apply:

a. For new LEPs, concurrence shall be obtained from the Regional Office of the Solicitor of Labor (SOL) with regard to the legal sufficiency of the proposed targeting system and procedures; i.e., whether neutrality requirements for inspection scheduling are met. The Regional SOL may address additional issues, especially to reflect local experience in obtaining and enforcing compulsory process. LEPs proposed for renewal need not be submitted to the Regional SOL for concurrence unless issues necessitating such concurrence are identified in the LEP evaluation. (See Appendix A of this instruction, question 5.)

b. The Regional Administrator shall ensure that the LEP is assigned an IMIS identifier code for Item 25c of the OSHA-1 Form by the Office of Management Data Systems. The request shall be initiated by calling the Office of Management Data Systems (telephone 202-219-6441).

c. The approval period shall be no more than one year. LEPs may be renewed year-by-year, subject to the recommendations of the LEP evaluation.

d. The Regional Administrator shall provide a copy of the documentation for all approved LEPs (including the IMIS identifier code) to the Regional SOL and the Office of Field Programs.

3. Responsibilities of National Office Units.

a. The Office of Field Programs shall:

(2) Provide copies of LEP documentation to the Office of Management Data Systems and the Directorate of Compliance Programs.

(3) Provide technical assistance and advice to field offices in preparing LEP evaluation criteria and/or reports.

(4) Review LEP evaluation reports submitted by Regional Administrators and look for possible national applications of LEPs.

(5) Provide information on LEPs and LEP evaluation reports from other regions to Regional Administrators for their review regarding possible applications within the region.

(6) Provide copies of LEPs and evaluation reports to the Directorate of Compliance Programs and, if requested, to the regions.

b. The Directorate of Compliance Programs shall:

(1) Provide overall direction and guidance in establishing Agency procedures for LEPs.

(2) Review evaluation reports submitted by Regional Administrators and look for possible national applications of LEPs.

c. The Office of Management Data Systems shall provide requested IMIS codes to Regional Administrators as soon as possible after receipt of the request.

4. Evaluations. The Regional Administrator shall ensure that an evaluation of each LEP is completed and submitted to the Regional Office within one month prior to the end of each approval year; i.e., no later than August 31.

a. The evaluation shall, at a minimum, respond to the questions outlined in Appendix A of this instruction. (Note that some of the subjects listed in item 3. of Appendix A will not apply to all LEPs.)

b. The Regional Administrator shall provide copies of all evaluation reports to the Office of Field Programs.

H. Procedures for Experimental Programs. Experimental Programs, as defined at F.2. of this instruction, shall be submitted for approval to the Director of Compliance Programs, through the Regional Administrator. Approval shall be granted for a period specified in the Regional CPL Notice; an Experimental Program that extends beyond its planned duration must be resubmitted for approval.

1. Regional Administrator. Experimental Programs may be developed at the Area Office/District Office level, but requests for their approval shall be submitted to the Directorate of Compliance Programs by the Regional Administrator through the Office of Field Programs. This submission shall include:

a. A draft Regional CPL Notice (directive) for the Experimental Program which contains:

(1) Appropriate documentation and rationale for the Experimental Program.

(2) Where pertinent, a selection process to set forth administratively neutral criteria (e.g., random numbering system) to identify establishments for inspection. (See OSHA Instruction CPL 2.25H.)

(3) An evaluation component for determining the relative success of the LEP. (See also H.5. of this instruction.)

NOTE: The notice shall conform to the guidelines for directives in OSHA Instruction ADM 8.1A. Appendix B of this instruction illustrates the basic format and typical paragraphs for such a notice.

b. Where germane to the Experimental Program, documentation of a list of establishments from available sources (as in G.1.c. of this instruction) from which inspections are to be scheduled.

2. Directorate of Compliance Programs. The Director of Compliance Programs is authorized to approve Experimental Programs requested by a Regional Administrator. The Directorate of Compliance Programs shall:

a. Obtain concurrence from the National Office of SOL and shall coordinate all appropriate issues with the Office of Field Programs.

b. Ensure that the Experimental Program is assigned an IMIS identifier code for Item 25c of the OSHA-1 Form by the Office of Management Data Systems. The request shall be initiated by calling the Office of Management Data Systems (telephone 202- 219-6441).

c. Review evaluation reports submitted by Regional Administrators and look for possible national applications of Experimental Programs.

3. The Office of Field Programs shall:

a. Track Experimental Programs in all regions.

b. Provide technical assistance and advice to field offices in preparing Experimental Program evaluation criteria and/or reports.

c. Review Experimental Program evaluation reports submitted by Regional Administrators and look for possible national applications of Experimental Programs.

d. Provide information on Experimental Programs and Experimental Program evaluation reports from other regions to Regional Administrators for their review regarding possible applications within the region.

e. Provide copies of Experimental Programs and evaluation reports to the regions upon their request.

4. The Office of Management Data Systems shall provide requested IMIS codes to the Directorate of Compliance Programs as soon as possible after receipt of the request.

5. Evaluations. The Regional Administrator shall ensure that an evaluation of each Experimental Program is completed and submitted to the Directorate of Compliance Programs, through the Office of Field Programs, within one month prior to the end of each approval year.

a. The evaluation shall, at a minimum, respond to the questions outlined in Appendix A of this instruction. (Note that some of the subjects listed in item 3. of Appendix A will not apply to all Experimental Programs.)

b. The Regional Administrator shall also provide copies of all evaluation reports to the Office of Field Programs.

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

Program Evaluation Items for LEPs and Experimental Programs

The program evaluations of LEPs and Experimental Programs required at G.4. and H.5. of this instruction shall address the following items:

1. What is the goal of the LEP/Experimental Program?

Briefly describe the purpose of the LEP/Experimental Program (e.g., eliminate dangerous process(es), exposure to health hazards, injuries/illnesses, or fatalities) and include any specifics that caused you to choose this program.

2. In your opinion, did the LEP/Experimental Program meet its goal?

Indicate if the program was:

* highly effective,

* effective,

* less than effective, or

* ineffective.

If this determination is not possible, indicate accordingly and briefly explain.

3. What data and information do you have to support your conclusion(s)?

At a minimum, consider the following areas of information in making your response. Note that some of the subjects listed at 3.a. through g. will not apply to every LEP or Experimental Program. Where a subject is clearly not applicable or no responsive information can be ascertained, this should be so noted in the evaluation.

a. Enforcement statistics. Include:

* Number of inspections;

* Number of inspections in compliance;

* Number of "no inspection" cases;

* Percent of violations cited that are serious;

* Number of employees covered by inspection;

* Amount of penalties assessed;

* Percent of citations contested; and

* Any other data which may be relevant to supporting your conclusion.

b. Egregious cases.

List and briefly describe all egregious cases, if any.

c. Serious hazards eliminated.

In responding, consider important:

(1) Hazards cited and abated, but that recur over time for a given employer on different projects such as unshored trenches; and

(2) Hazards cited for a given employer that do not reappear once abated, such as hazardous airborne substances in an unventilated workplace area.

d. Evaluate and briefly comment on the overall list of standards cited to determine whether the LEP/Experimental Program is addressing the goal.

e. Decline in occupational injuries, illnesses and fatalities for the establishments covered by the LEP/Experimental Program:

* Have injuries, illnesses, and/or fatalities declined in the Region because of the program?

* Did the program cause a reduction of specific injuries, illnesses and/or fatalities that are common to the covered industries?

f. Impact on covered, non-inspected employers (deterrent effect on employers):

Were covered employers who were not inspected aware of the LEP/Experimental Program, and did they eliminate serious hazards targeted by the program? If so, briefly describe significant example(s).

NOTE: Information regarding a deterrent effect might be detected from outreach sessions, new constituency groups, informal conferences, and speech and information requests.

g. Impact on suppliers of production equipment (shadow effect on suppliers):

Were manufacturers of production equipment aware of the LEP/Experimental Program, and did they respond by modifying their products to minimize employee exposure to occupational hazards? If so, briefly describe significant example(s).

4. Should the LEP/Experimental Program be continued?

Answer "yes" or "no" and give a brief rationale.

5. Have any legal issues arisen that would necessitate SOL review before renewal of the LEP/Experimental Program could be approved?

If "yes," describe them in sufficient detail for SOL to make a determination.

6. Are there any other comments or recommendations?

Consider any findings which might influence Regional or National OSHA programs and policies. Also, consider economic and technological factors impacting industries covered under the LEP/Experimental Program which could only be changed by revising the production process and would be beyond the employer's current financial capabilities.

Example of Typical Format for LEP/Experimental Program Directive

For each LEP or Experimental Program, a Regional directive must be developed, as described at G.1. and H.1.a. of this instruction. This Regional CPL Notice shall conform to the guidelines for directives in OSHA Instruction ADM 8.1A. The following illustrates the basic format and typical paragraphs for such a notice.

[Name of Region] Regional Notice CPL 2 (DATE) Office of Federal and State Operations

Subject: Local Emphasis Program (LEP)/Experimental Program for _________________

A. Purpose. This notice establishes an LEP/Experimental Program for ___________________.

B. Scope. This notice applies [Region-wide] [to the _______ Area Office].

C. References. (If applicable.)

D. Cancellation. (If applicable.)

E. Expiration. This notice expires _________. (Normally no more than one year from issuance.)

F. Action. OSHA compliance personnel shall ensure that the procedures contained in this notice are followed in conducting the LEP/Experimental Program for _______.

G. Background. (Include appropriate documentation and rationale for the LEP/Experimental Program. In this or another paragraph, describe--where pertinent--the selection process to set forth administratively neutral criteria [e.g., random numbering system] to identify establishments for inspection.

H. Procedures. (Include all necessary guidance.)

I. Recording in IMIS. (Provide necessary coding guidelines.)

J. Evaluation. (Describe evaluation requirements and deadlines.)

__________

Regional Administrator

DISTRIBUTION: _____________

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