U.S. Department of Labor

Occupational Safety and Health Administration
Washington, D.C. 20210
Reply to the attention of:

DOL Logo

April 17, 2024

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:
Instance-by-Instance Citation Policy for Serious, Repeat, and Other-Than-Serious Violations

This memorandum rescinds and replaces the policies outlined in the memorandum titled Application of Instance-by-Instance Penalty Adjustments issued on January 26, 2023, and it provides guidance to Regional and Area Offices for discretionary issuance of Instance-by-Instance (IBI) citation items for serious and/or repeat violations of OSHA standards and the General Duty Clause and other-than-serious recordkeeping violations when appropriate as a strategic tool to achieve a deterrent effect. This revised policy will become effective on the date of issuance.

  1. Background

    In 1990, OSHA issued a directive relating to IBI citations that applied only to "egregious" willful citation items. Then, on January 26, 2023, OSHA issued a memorandum giving Regional Administrators discretion to apply the IBI policy to high-gravity serious violations specific to falls, trenching, machine guarding, respiratory protection, permit required confined spaces, lockout tagout, and other-than-serious violations specific to recordkeeping, provided certain factors were present. Through this memorandum, OSHA is revising its IBI citation policy to provide additional discretion to issue IBI penalties for serious and/or repeat violations of any OSHA standard, the General Duty Clause, or other-than-serious violations of OSHA’s recordkeeping requirements. OSHA believes that expanding the application of IBI to any OSHA standard and, in limited cases, the General Duty Clause, will provide OSHA another enforcement tool to use against recalcitrant employers and employers that require additional deterrence.

  2. Scope

    This policy applies to general industry, construction, agriculture, and maritime industries. IBI violations can be issued for serious and repeat violations of OSHA standards and the General Duty Clause, and for other-than-serious violations specific to recordkeeping.

  3. Enforcement Guidance

    1. Applicability

      OSHA may issue IBI citations of OSHA standards only when the text of the relevant standard allows (e.g., per machine, per employee, per location, per entry, etc.), and when instances of the violation cannot be abated by a single method of abatement. IBI citations of the General Duty Clause (Section 5(a)(1) of the OSH Act) are appropriate only when there are separate hazardous conditions and when the violation cannot be abated by a single method of abatement. See Reich v. Arcadian Corp., 110 F.3d 1192 (5th Cir. 1997). In all cases, OSHA must document all elements of the violation for each cited instance. Employer knowledge of and employee exposure to each individual violative condition must be carefully and adequately documented.

      Appendix A provides a non-exhaustive list of examples of standards that may be appropriate for instance-by-instance citation items. Note that Appendix A is not a comprehensive list of all standards that may be cited as IBI, and it is not intended to limit the use of this policy to only those standards listed.

    2. Factors to Consider

      This IBI guidance is not meant to require issuance of IBI citations in any given enforcement matter. Rather, the guidance in this memorandum provides discretion to Regional Administrators and Area Directors to issue IBI citations to employers that meet the criteria set forth below, and when application of the IBI citation policy is necessary to achieve deterrence. In determining whether the IBI citation policy is necessary to achieve deterrence, consideration should be given to the employer’s efforts to comply with the OSH Act, compliance history, and size. The decision to issue IBI citation items must be made on a case-by-case basis. 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.

      IBI citation items may be considered under this memorandum when necessary to achieve deterrence and where one or more of the factors below are met:

      • The violations are related1 to an incident that resulted in a fatality, catastrophe, or permanently disabling injury/illness.
      • The employer has a history of willful, repeat, or failure to abate violations.
      • The inspection revealed one or more willful, repeat, or failure to abate violation(s), or a significant number of serious violations.
      • The inspection revealed widespread recordkeeping deficiencies (for which IBI recordkeeping citation items may be proposed)2.

    Regional Administrators and Area Directors have discretion to apply this IBI policy when its use would achieve an appropriate deterrent effect and advance the goals of the OSH Act. In all cases, the evidence necessary to support IBI for each separate violation and the reasoning for applying the IBI policy shall be described in the inspection case file.

  4. OIS Coding

    All inspections containing instance-by-instance serious, repeat, or other-than-serious citation items will be coded as "N 13 IBI Serious/OTS" under "Additional Codes" in OIS. The Area Director shall ensure that proper OIS coding is entered at the time of issuance or post settlement.

  5. Review

    Regional Administrators will ensure that instance-by-instance serious, repeat, and/or other-than-serious violations are reviewed by OSHA Regional Offices and the Regional Solicitor. If the proposed total penalty exceeds the threshold amount defined in the Procedures for Significant and Novel Enforcement Cases memorandum or CPL-02-00-080, Handling of Cases To Be Proposed For Violation-By-Violation Penalties, the process for OSHA National Office review and approval outlined in that memorandum shall be followed. Any proposed instance-by-instance citation items should be listed, and the reason(s) for using the IBI policy should be provided, in the body of the appropriate memorandum submitted to OSHA National Office, Directorate of Enforcement Programs or Directorate of Construction.

 

1 Violative conditions are "related" to the incident if they contributed to the incident or are substantially similar conditions in other areas of workplace that could result in same type of incident.

2 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.

 

APPENDIX A - Examples of standards appropriate for instance-by-instance citation

  1. Machine Guarding

    Generally, the action required to achieve compliance with a machine guarding requirement is to install a guard on each unguarded machine. Consequently, each machine that lacks guarding may be considered a separate violation of the standard.

    Examples:

    • 29 CFR 1910.212(a)(1) – One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.

    • 29 CFR 1910.217(c)(1)(i) – It shall be the responsibility of the employer to provide and ensure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press.

  2. Control of Hazardous Energy (Lockout/Tagout)

    The LOTO standard requires employers to develop, document and utilize specific energy control procedures, and ensure isolation of each machine or piece of equipment prior to permitting workers to conduct service and/or maintenance work. Generally, a separate violation of the applicable portion of the standard may be cited for each failure to control hazardous energy.

    Examples:

    • 29 CFR 1910.147(c)(4)(i) – Procedures shall be developed, documented, and utilized for the control of potentially hazardous energy when employees are engaged in the activities covered by this section.

    • 29 CFR 1910.147(d)(1) through (6) – Application of Controls

  3. Training

    Per 29 CFR 1910.9(b), Training, "Standards in this part requiring training on hazards and related matters, such as standards requiring that employees receive training or that the employer train employees, provide training to employees, or institute or implement a training program, impose a separate compliance duty with respect to each employee covered by the requirement. The employer must train each affected employee in the manner required by the standard, and each failure to train an employee may be considered a separate violation."

    Examples:

    • 29 CFR 1910.147(c)(7)(i)(A) – Each authorized employee shall receive training in the recognition of applicable hazardous energy sources, the type and magnitude of the energy available in the workplace, and the methods and means necessary for energy isolation and control.

    • 29 CFR 1926.20(f)(2) – Standards in this part requiring training on hazards and related matters, such as standards requiring that employees receive training or that the employer train employees, provide training to employees, or institute or implement a training program, impose a separate compliance duty with respect to each employee covered by the requirement. The employer must train each affected employee in the manner required by the standard, and each failure to train an employee may be considered a separate violation.

  4. PPE

    Per 29 CFR 1910.9(a), Personal protective equipment, "Standards in this part requiring the employer to provide personal protective equipment (PPE), including respirators and other types of PPE, because of hazards to employees impose a separate compliance duty with respect to each employee covered by the requirement. The employer must provide PPE to each employee required to use the PPE, and each failure to provide PPE to an employee may be considered a separate violation."

    Examples:

    • 29 CFR 1910.133(a)(1) – The employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapors, or potentially injurious light radiation.

    • 29 CFR 1926.20(f)(1) – Standards in this part requiring the employer to provide personal protective equipment (PPE), including respirators and other types of PPE, because of hazards to employees impose a separate compliance duty with respect to each employee covered by the requirement. The employer must provide PPE to each employee required to use the PPE, and each failure to provide PPE to an employee may be considered a separate violation.

  5. Occupational Noise Exposure

    A hearing conservation program requires some individual actions for each employee to achieve compliance such as providing an audiogram for each employee. A citation item may be proposed for the lack of compliance action for each exposed employee.

    Example:

    • 1910.95(g)(6) – At least annually after obtaining the baseline audiogram, the employer shall obtain a new audiogram for each employee exposed at or above an 8-hour time-weighted average of 85 decibels.

  6. Respiratory Protection

    The respirator standard requires individual actions to be completed for each employee for elements such as provision of respirators, medical evaluations, and fit testing. A citation item may be proposed for the lack of compliance for each exposed employee.

    Example:

    • 1910.134(a)(2) – A respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee. The employer shall provide the respirators which are applicable and suitable for the purpose intended. The employer shall be responsible for the establishment and maintenance of a respiratory protection program, which shall include the requirements outlined in paragraph (c) of this section. The program shall cover each employee required by this section to use a respirator.

  7. Substance Specific Health Standards

    Substance specific health standards have various requirements that apply to each exposed employee, such as provision of a respirator and medical surveillance. A citation may be proposed for each employee for such items.

    Examples:

    • Vinyl Chloride, 1910.1017(k) – A program of medical surveillance shall be instituted for each employee exposed, without regard to the use of respirators, to vinyl chloride in excess of the action level. The program shall provide each such employee with an opportunity for examinations and tests in accordance with this paragraph. All medical examinations and procedures shall be performed by or under the supervision of a licensed physician and shall be provided without cost to the employee.

    • Lead, 1910.1025(f)(1) – For employees who use respirators required by this section, the employer must provide each employee an appropriate respirator that complies with the requirements of this paragraph.

    • Silica, 1910.1053(e)(4) - The employer shall provide each employee and the employee's designated representative entering a regulated area with an appropriate respirator in accordance with paragraph (g) of this section and shall require each employee and the employee's designated representative to use the respirator while in a regulated area.

  8. Scaffold Platform Construction

    The construction standard for scaffolds requires actions specific to each working level of the scaffold and can thus be cited for each level that is not fully planked.

    Example:

    • 1926.451(b)(1) – Each platform on all working levels of scaffolds shall be fully planked or decked between the front uprights and the guardrail supports.

  9. Fall Protection

    Fall protection requirements are generally focused on each employee when personal fall arrest systems are the means of abatement, and as such can be cited as instance-by-instance.

    However, fall protection standards generally provide employers with multiple options for protecting employees from falls and, therefore, CSHOs should carefully assess the evidence to ensure that each exposure to a fall requires a distinct, individualized method of abatement. For instance, if the employer had an available guardrail system on site that if used would provide fall protection to all exposed workers, and there is evidence that the employer’s policy is to use a guardrail system, CSHOs should not recommend to cite a violation of this standard as instance-by-instance [per employee] because all instances of the violation could be abated by a single method of abatement (i.e., the guardrail system).

    Examples:

    • 1926.501(b)(1) –Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.

    • 1926.760(a)(1) – Except as provided by paragraph (a)(3) of this section, each employee engaged in a steel erection activity who is on a walking/working surface with an unprotected side or edge more than 15 feet (4.6 m) above a lower level shall be protected from fall hazards by guardrail systems, safety net systems, personal fall arrest systems, positioning device systems or fall restraint systems.