January 26, 2023

MEMORANDUM FOR:

REGIONAL ADMINISTRATORS
STATE PLAN DESIGNEES

THROUGH:

AMANDA L. EDENS
Deputy Assistant Secretary

FROM:

KIMBERLY A. STILLE, Director
Directorate of Enforcement Programs

SCOTT C. KETCHAM, Director
Directorate of Construction

SUBJECT:

Application of Instance-by-Instance Penalty Adjustments

The purpose of this memorandum is to provide guidance to Regional and Area Offices when issuing Instance-By-Instance (IBI) citations for high-gravity serious violations of OSHA standards specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations of OSHA standards specific to recordkeeping. Regional Administrators and Area Directors have discretion to apply IBI penalty adjustments in appropriate cases to achieve a deterrent effect. This new Instance-by-Instance Penalty Adjustments policy outlined in this memorandum will become effective 60 days from the date of issuance of this memorandum.

1. Background

   This memorandum provides guidance concerning the expanded application of instance-by-instance (IBI) citations. Current IBI policy, published in 1990, applies only to willful citations. OSHA believes that a more expansive application of IBI will incentivize employers to proactively prevent workplace fatalities and injuries and provide OSHA another tool to use on its mission to ensure safe and healthful working conditions for America's workforce.

2. Scope

   The scope of this guidance is limited to high-gravity serious violations specific to falls, trenching, machine guarding, respiratory protection, permit required confined space, lockout tagout, and other-than-serious violations specific to recordkeeping. The scope applies to general industry, agriculture, maritime, and construction industries.

3. Enforcement Guidance

   The guidance provided is part of OSHA's enforcement policy and shall generally be applied for the purpose of additional deterrence to employers meeting the criteria set forth below. Regional Administrators and Area Directors can exercise discretion to depart from this IBI policy in cases where IBI penalty adjustments do not advance the deterrent goal of this memo.

   A decision to use instance-by-instance citations should normally be based on consideration of one or more of the factors listed below. The factors to be considered include:

   • The employer has received a willful, repeat, or failure to abate violation within the past five years where that classification is current.
   • The employer has failed to report a fatality, inpatient hospitalization, amputation, or loss of an eye pursuant to the requirements of 29 CFR 1904.39.
   • The proposed citations are related to a fatality/catastrophe.
   • The proposed recordkeeping citations are related to injury or illness(es) that occurred as a result of a serious hazard.

   Instance-by-instance citations may be applied when the text of the relevant standard allows (such as, but not limited to, per machine, location, entry, or employee), and when the instances of violation cannot be abated by a single method of abatement. When an inspection may result in instance-by-instance violations, each instance should be documented thoroughly, e.g., type of material being processed, equipment, facility conditions, human factors, personal protective equipment, etc. The case file must contain fully documented justification for IBI citations.

   A separate penalty shall be assessed for each violation and the adjustment factors shall be applied in accordance with the FOM, Chapter 6. Recordkeeping violations must be processed and categorized following guidance in OSHA Directive CPL 02-00-080, Handling of Cases To Be Proposed for Violation-By-Violation Penalties. Area Directors have discretion to apply IBI citations to some, but not all violations resulting from the same inspection. Additionally, the use of IBI does not preclude the use of other OSHA initiatives, directives, or emphasis programs within the same inspection.

4. Enforcement Guidance

   Following the Regional Administrator’s review of proposed IBI citations, the proposed citations shall undergo additional pre-issuance review as follows:

   1. The Regional Office of the Solicitor (RSOL) should be consulted prior to issuance of any IBI citations.
   2. If the proposed total penalty exceeds the threshold for National Office approval as defined in the Processing Significant and Novel Enforcement Cases memo, the process for National Office approval outlined in that memo shall be followed. The IBI citations should be thoroughly justified in the body of the Significant Case memo, comparable to willful citations documentation.

   All inspections proposing IBI serious/OTS citations will be coded as "N 13 IBI Serious/OTS" under the Additional Codes in OIS. The Area Office shall ensure that proper OIS coding is complete at the time of issuance.

   Following issuance of IBI citations, OSHA will issue a press release for the purpose of furthering deterrence.

¹ The Regional Administrator and Area Director have discretion to apply IBI citations in the absence of one or more criteria when exigent factors indicate that the application of IBI citations would advance the deterrent goal of this memo. Justification for the use of IBI in such circumstance must be detailed in the case file.