On January 26, 2023, the Occupational Safety and Health Administration (OSHA) announced new enforcement guidance to its field offices and the State OSH Plans set to take effect on March 27, 2023. This new guidance is sure to increase the financial ramifications for certain violations.
The purpose of this memorandum is to guide Regional and Area Offices when issuing Instance-By-Instance (IBI) citations for high-gravity severe 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 the 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 on January 26, 2023.
Instance-By-Instance (IBI) citations
According to The National Law Review, “On Jan. 26, 2023, the Occupational Safety and Health Administration (OSHA) issued a memorandum to Regional and Area Offices providing guidance when issuing Instance-By-Instance (IBI) citations for “high-gravity” serious violations of Occupational Safety and Health Act (OSH Act) standards.
According to the memorandum, effective March 27, 2023, Regional and Area Offices will have the authority to cite certain violations as “instance-by-instance” for cases where OSHA identifies “high-gravity” serious violations. Violations of OSHA’s lockout/tag-out, machine guarding, permit-required confined space, respiratory protection, falls, trenching, and other-than-serious violations related to recordkeeping are all subject to OSHA’s new IBI policy. Notably, these OSHA Act standards are among many of the most frequently cited standards.
On the same day OSHA issued its memorandum announcing changes to its IBI policy, it issued a separate memorandum reminding Regional Administrators and Area Directors of their authority to use their discretion not to group violations in appropriate cases to achieve a deterrent effect. Generally speaking, OSHA groups violations when the same abatement measures correct multiple violations and/or when there are substantially similar violative conditions. Grouping violations significantly reduces the monetary penalty associated with OSHA citations.”
“Instance-by-Instance (IBI), or per-instance enforcement, is one of OSHA’s most powerful tools to ratchet up civil penalties. It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties, i.e., training each employee, guarding each machine, requiring a hard hat for each employee, etc. As a result, rather than a single citation with a single penalty for an employer’s failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.” (The OSHA Defense Report)
Enforcement Guidance of Instance-by-Instance Penalties
The US Department of Labor and OSHA delineate the guidance and application of IBI citations.
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. However, 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 typically be based on consideration of one or more factors listed below. The factors to be considered include the following:
- The employer has received a willful, repeat, or failure to abate the 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 relate to injury or illness(es) due to 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. In addition, the case file must contain a fully documented justification for IBI citations.
Separate Penalties for Each Violation
A separate penalty shall be assessed for each violation, and the adjustment factors shall be applied in accordance with the FOM, Chapter 6, Penalties and Debt Collection.
- 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.
The Field Operations Manual (FOM Chapter 4-Violations, Section X. Combining and Grouping Violations) and several other compliance directives provide scenarios where grouping violations should normally be considered. Grouping is appropriate when the same abatement measures correct multiple violations and/or when substantially similar violative conduct or conditions giving rise to the violations are involved. Grouping violations should be considered when:
- two or more serious or other-than-serious violations constitute a single hazardous condition that is overall classified by the most serious item
- grouping two or more other-than-serious violations considered together creates a substantial probability of death or serious physical harm, or
- grouping two or more other-than-serious violations results in a high gravity other-than-serious violation.
In cases where grouping does not elevate the gravity or classification and resulting penalty, violations should not be grouped if the evidence allows separate citations. In situations where an existing directive encourages grouping, discretion may be used to cite separately, such as but not limited to, in cases where violations have differing abatement methods, each violative condition may result in death or serious physical harm, and each violative condition exposes workers to a related but different hazard. Area Offices shall document decisions not to group violations in the case file when discretion is used to achieve an additional deterrent effect.
Be Prepared for an OSHA Inspection
OSHA inspections are a part of daily life, and being ready for them establishes a positive experience. Understanding the process of an OSHA inspection and being prepared can ensure a successful OSHA inspection. In addition, strong organizational leadership and consistent training create an environment of engaged employees resulting in a reduction of lost time and safety infractions.
Catamount Consulting provides mining, construction, and general industry businesses with specialized leadership training programs, safety services, consultation, and compliance strategies. Catamount Leadership Coaches total over 35 years of experience leading organizations to develop greater emotional intelligence, leading to a more engaged and committed workforce.
If you have questions regarding the Instance by Instance (IBI) Citation Policy or are concerned about how this could impact your business, Contact us to learn more or schedule an appointment.
Resources: National Law Review, OSHA, (The OSHA Defense Report)
