U.S. Department of Labor           Assistant Secretary for
                                             Occupational Safety and Health
                                             Washington, D.C. 20210

OSHA Instruction STP 2-1.163 MAY 13, 1991 Office of State Programs

Subject: Revised Federal Penalty Levels

A. Purpose. This instruction describes a Federal Program Change to the Regions and State designees.

B. Scope. This instruction applies OSHA-wide.

C. References.

1. OSHA Instruction CPL 2.45B, CH-2, March 1, 1991, Change to the Revised Field Operations Manual (FOM).

2. OSHA Instruction STP 2.22A, CH-2, January 29, 1989, and CH-3, February 27, 1990, the State Plan Policies and Procedures Manual.

D. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that a copy of this instruction 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 the amendment to section 17 of the Occupational Safety and Health Act effected by the Omnibus Budget Reconciliation Act of 1990, and of the implementing procedures in Change 2 of CPL 2.45B, the FOM, to the State designees as requested.

3. Offer training on the new penalty procedures to State representatives in conjunction with the training of Federal staff.

4. Encourage States to implement the $5,000 floor for willful penalties administratively, concurrently with Federal OSHA's implementation, for inspections beginning on or after March 1, 1991, for violations which occurred after November 5, 1990. (This floor is within currently authorized penalty limits.) Inform States that implementation of this provision must begin no later than September 1, 1991.

OSHA Instruction STP 2-1.163 MAY 13, 1991 Office of State Programs

5. Inform each State designee that in order to be considered at least as effective as the Federal program, States must have statutory penalty authority for their private sector programs that at least reflects the new Federal maximums ($7,000 for serious, other than serious, failure to abate, and posting violations, and $70,000 for willful and repeat violations) as well as the $5000 floor for willful violations. States may, but are not required to, have comparable penalty provisions for their public sector programs.

6. 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). This acknowledgment should address both the statutory change and the FOM change, and should include (a) the State's plan to adopt and implement an identical change, (b) the State's plan to develop an alternative change, which is as effective, or (c) reasons why no change is necessary to maintain the "at least as effective" status of the state plan.

7. Encourage States to effect necessary statutory changes by September 1, 1991, six months from the date Federal implementation of the statutory change. Inform States that if additional time is necessary because of State legislative schedules, they should contact the Regional Administrator as soon as possible with the reasons for the delay and a schedule for legislative consideration and enactment of the change.

8. Encourage States which have experienced difficulties in the timely adoption of Federal standards changes because of statutory or administrative constraints to consider using this opportunity to effect at the same time statutory changes to remedy this problem through such mechanisms as providing the authority for the State to adopt/enforce Federal standards on an interim basis until a State standard can be promulgated and put into effect.

 

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OSHA Instruction STP 2-1.163 MAY 13, 1991 Office of State Programs

9. Inform the States that a plan change supplement concerning the statutory changes must be submitted within 30 days of their enactment. The supplement should identify any differences between Federal and State authority and the reasons why the State provisions are at least as effective as the Federal legislation.

10. Encourage States to begin developing implementing procedures based on CPL 2.45B, CH-2, as soon as possible so that they will be ready to go into effect as soon as the legislative changes are effected.

11. Inform the States that a plan change supplement in response to CPL 2.45B, CH-2, is due by September 1, 1991, or within 30 days of State enactment of the new penalty authority if that occurs after September 1, 1991.

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 manual have 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. 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 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.

 

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OSHA Instruction STP 2-1.163 MAY 2-1.163 Office of State Programs

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.

12. Ensure, upon receipt of the State FOM change 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. (An information copy of the State's submission should be provided to the Office of State Programs upon receipt.)

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.

13. After Regional review of the State plan supplements 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.

14. Provide assistance to States, upon request, to accomplish all changes as soon as possible.

15. Monitor the implementation of the penalty procedures to ensure that State performance in this area remains at least as effective as the Federal program.

 

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OSHA Instruction STP 2-1.163 MAY 13, 1991 Office of State Programs

E. Background.

1. Amendments to section 17 of the Occupational Safety and Health Act were signed into law on November 5, 1990 to provide for increased penalty levels for violations of the Act.

The amendments provide for a minimum of $5,000 for each willful violation, a maximum of $70,000 for willful and repeat violations, a maximum of $7,000 for serious, other than serious, and posting violations, and a maximum of 7,000 per day for failure to abate violations.

2. OSHA's procedures for implementing the revised provisions are contained in Chapter VI of the FOM, as revised by CPL 2.45B, Ch-2.

The new procedures apply to all inspections initiated on or after March 1, 1991 and will be used for calculation of penalties for all violations determined to be existing on or after November 5, 1990.

3. Some States have experienced difficulties in adopting Federal standards within the required six-month time frame, because of statutory or administrative requirements for a lengthy promulgation process. Since the amendments to Federal penalty levels require that States amend their statutes, it is an appropriate occasion for any States experiencing such difficulties to make statutory changes to expedite the standards promulgation process.

Gerard F. Scannell Assistant Secretary

Distribution: National and Regional Offices State Designees 18(b) State Monitors OSHA Training Institute

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