[Federal Register Volume 65, Number 146 (Friday, July 28, 2000)]
[Notices]
[Pages 46498-46503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19067]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. W-100]


Final Policy Concerning the Occupational Safety and Health 
Administration's Treatment of Voluntary Employer Safety and Health 
Self-Audits

AGENCY: Occupational Safety and Health Administration, USDOL.

ACTION: Notice of final policy

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    Authority: Sec. 8(a) and 8(b), Pub. L. 91-596, 84 Stat. 1599 (29 
U.S.C. 657)


SUMMARY: The Occupational Safety and Health Administration (OSHA) has 
developed a final policy describing the Agency's treatment of voluntary 
employer self-audits that assess workplace safety and health 
conditions, including compliance with the Occupational Safety and 
Health Act (Act). The policy provides that the Agency will not 
routinely request self-audit reports at the initiation of an 
inspection, and the Agency will not use self-audit reports as a means 
of identifying hazards upon which to focus during an inspection. In 
addition, where a voluntary self-audit identifies a hazardous 
condition, and the employer has corrected the violative condition prior 
to the initiation of an inspection (or a related accident, illness, or 
injury that triggers the OSHA inspection) and has taken appropriate 
steps to prevent the recurrence of the condition, the Agency will 
refrain from issuing a citation, even if the violative condition 
existed within the six month limitations period during which OSHA is 
authorized to issue citations. Where a voluntary self-audit identifies 
a hazardous condition, and the employer promptly undertakes appropriate 
measures to correct the violative condition and to provide interim 
employee protection, but has not completely corrected the violative 
condition when an OSHA inspection occurs, the Agency will treat the 
audit report as evidence of good faith, and not as evidence of a 
willful violation of the Act.

FOR FURTHER INFORMATION CONTACT: Richard E. Fairfax, Occupational 
Safety and Health Administration, Directorate of Compliance Programs, 
Room N-3603, U.S. Department of Labor, 200 Constitution Avenue, NW, 
Washington, DC 20210, Telephone: 202-693-2100.

SUPPLEMENTARY INFORMATION:

I. Background Information

    On October 6, 1999, OSHA published a ``Proposed Policy Statement 
Concerning the Occupational Safety and Health Administration's Use of 
Voluntary Employer Safety and Health Self-Audits'' in the Federal 
Register. 64 FR 54358 (1999). The policy statement described the 
Agency's proposal regarding the manner in which it would treat 
voluntary employer self-audits that assess workplace safety and health 
conditions, including compliance with the Act. The proposed policy 
statement provided that the Agency would not routinely request 
voluntary employer self-audit reports at the initiation of an 
inspection. Further, the proposed policy provided that, where an 
employer identified a hazardous condition through a voluntary self-
audit, and the employer promptly undertook appropriate corrective 
measures, OSHA would treat the audit report as evidence of good faith, 
and not as evidence of a willful violation. It was, and remains, the 
Agency's intention to develop and implement a policy that recognizes 
the value of voluntary self-audit programs that are designed to allow 
employers, or their agents, to identify and promptly correct hazardous 
conditions. In limited situations, however, documentation related to 
voluntary self-audits plays an important role in the Agency's ability 
to effectively and faithfully carry out its inspection and enforcement 
obligations under the Act.
    Although the Agency is not required by the Administrative 
Procedures Act, 5 U.S.C. 551, et seq., to engage in notice and comment 
rulemaking procedures prior to the adoption and implementation of this 
policy, OSHA requested public comment regarding its proposed policy 
statement in order to gain input and insight from employers, employees, 
employee representatives, and other interested parties. OSHA received 
and thoroughly reviewed comments from a variety of sources. The Agency 
has modified the proposed policy to incorporate those comments that 
further OSHA's dual purposes in proposing the voluntary self-audit 
policy--i.e., to provide appropriate, positive treatment that is in 
accord with the value that voluntary self-audits have for employers' 
safety and health compliance efforts, while maintaining the Agency's 
authority to gain access to voluntary self-audit documentation in 
limited circumstances in which access is important to effectively and 
faithfully enforce the Act. The Agency has not incorporated those 
comments that it considered to be contrary to its purposes in proposing 
this policy or that it

[[Page 46499]]

considered to be beyond the scope of its intent in proposing the 
policy.

II. Substantive Modifications to the Proposed Policy

    Based upon input that the Agency received from interested parties, 
OSHA has made several substantive changes to its proposed policy on the 
treatment of voluntary employer self-audits.

1. Modifications to Certain Definitions in the Policy

    In the final policy, the Agency has defined the term ``self-audit'' 
to include health and safety audits conducted for an employer by a 
third party. In addition, in defining the terms ``systematic'' and 
``documented,'' the Agency has added the words ``or for'' before the 
phrase ``the employer'' to clarify that an audit conducted by a third 
party for an employer is covered by the final policy. OSHA values the 
role that independent safety and health professionals play in 
furthering occupational safety and health and encourages employers to 
utilize their services when appropriate.
    The Agency has changed the definition of the word ``objective'' by 
deleting reference to ``safety and health professional[s]'' and by 
broadening the class of persons who may conduct an ``objective'' self-
audit to include competent employees and management officials. Thus, in 
the final policy, a self-audit is ``objective'' if it is conducted ``by 
or under the direction of an individual or group of individuals who are 
competent to identify workplace safety or health hazards, given the 
scope and complexity of the processes under review.'' This modification 
is responsive to suggestions from small business employers, 
organizations such as the National Advisory Committee on Occupational 
Safety and Health, and other members of the public. Employers, 
particularly small business employers, who might not have the financial 
resources to hire an independent consultant, may use their own 
personnel who do not have professional certification, but who do have 
the necessary experience or training to conduct an effective and 
thorough self-audit. In addition, the Agency recognizes the expertise 
that many joint labor-management safety committees have developed with 
respect to workplace safety and health issues and acknowledges that 
audits conducted by such committees should qualify for recognition 
under this policy.

2. Training for Compliance Safety and Health Officers

    In the final policy, the Agency has added the following statement: 
``All OSHA personnel applying this policy will receive instruction in 
order to ensure the consistent and appropriate application of the 
policy.'' The Agency received comments from employers expressing their 
concerns regarding the potential for inconsistent implementation and 
application of the policy. OSHA agrees that an effective policy can be 
achieved only through consistent implementation and application. Thus, 
in the final policy, OSHA has explicitly stated that training will be 
provided, over a period of time, to all personnel who will apply this 
policy in order to ensure its consistent and proper implementation.

3. Citation Policy for Violative Conditions Identified and Corrected 
Through Voluntary Self-Audits

    In response to numerous suggestions from commenters, the Agency has 
added a provision explicitly stating that OSHA will not issue citations 
for violative conditions discovered during a voluntary self-audit and 
corrected prior to the initiation of an inspection (or a related 
accident, illness, or injury that triggers the inspection), even if the 
violative condition existed within the six month limitations period 
during which OSHA is authorized to issue citations. OSHA encourages 
employers to conduct voluntary self-audits and to promptly correct all 
violations of the Act that are discovered in order to ensure safety and 
health in the workplace. Thus, in the final policy, the Agency has 
incorporated its current enforcement practice and will refrain from 
issuing a citation for a violative condition that an employer 
discovered as a result of a voluntary self-audit, if the employer 
corrects the condition prior to the initiation of an OSHA inspection 
(or a related accident, illness, or injury that triggers the OSHA 
inspection), and if the employer has taken appropriate steps to prevent 
a recurrence of the violative condition.

4. Employers' Prerogative to Voluntarily Provide Self-Audit 
Documentation

    Several parties requested that the Agency provide that, in those 
situations in which the Agency has not requested or used voluntary 
self-audit documentation in conducting its inspection, employers be 
permitted to take advantage of the policy by providing the Agency with 
evidence of their voluntary self-audit program. Since OSHA inspectors 
rarely request voluntary self-audit documentation when conducting 
inspections, and this policy states the Agency's intent that inspectors 
should request such documentation only in limited situations, OSHA 
recognizes that there will be a significant number of instances in 
which the Agency is unaware of an employer's voluntary self-audit 
activities, and thus the employer would not be considered for 
recognition under the policy. Therefore, the final policy provides that 
an employer voluntarily may provide the Agency with self-audit 
documentation, and the employer may be eligible to receive the benefits 
that are detailed in this policy.

III. Comments Not Incorporated Into Final Policy

    A number of parties offered comments that have not been included in 
the final policy. While the Agency considered thoroughly each of the 
comments that it received, OSHA considered the following comments 
either to be inconsistent with the Agency's dual purposes in proposing 
the policy or to be beyond the scope of the proposed policy.

1. Employee Participation in the Voluntary Self-Audit Process

    Two union representatives maintained that OSHA should require 
employers to disclose self-audit results to their employees and their 
representatives and that OSHA should not grant good faith credit to any 
employer who has not disclosed all of the audit results both to OSHA 
and to its employees. OSHA agrees that the interests of workplace 
safety and health are advanced when employers share self-audit results 
with employees and employee representatives. However, because this is 
not a rulemaking procedure, the Agency considers it to be inappropriate 
to use this policy to adopt a practice that may be deemed to modify the 
legal duties of employers. Moreover, insofar as the purpose of this 
statement is to clarify current OSHA practices and to provide 
appropriate, positive treatment that is in accord with the value of 
voluntary self-audits, the Agency believes that it may be 
counterproductive to impose additional requirements on employers in 
order to qualify for inclusion under the policy.

2. More Significant Proposed Penalty Reductions

    Several parties suggested that OSHA should provide a more 
significant proposed penalty reduction for an employer's ``good faith'' 
by offering proposed penalty reductions in excess of 25 percent to 
employers who identify

[[Page 46500]]

violative conditions during voluntary self-audits and who have begun to 
correct the conditions, but who have not completed abatement prior to 
the initiation of an OSHA inspection. OSHA's current guidelines account 
for an employer's ``good faith'' when the Agency calculates a proposed 
penalty for a violation of the Act. These guidelines allow a penalty 
reduction of up to 25 percent in recognition of an employer's ``good 
faith,'' if the employer has developed and implemented a written health 
and safety program, which provides for appropriate management 
commitment and employee involvement; worksite analysis for the purpose 
of hazard identification; hazard prevention and control measures; and 
safety and health training. The Agency has stated that it will treat a 
voluntary self-audit, which results in prompt corrective action and 
appropriate steps to prevent similar violations, as strong evidence of 
the employer's good faith with respect to the matters covered by the 
voluntary self-audit. However, a voluntary self-audit is only one of 
the many steps that employers can and do undertake to protect the 
health and safety of their employees, and OSHA does not believe that 
the goals of the Act would be furthered by an additional ``good faith'' 
penalty reduction that is keyed directly and exclusively to voluntary 
self-audits. Rather, the Agency believes that its current ``good 
faith'' penalty reduction provisions, in conjunction with the inherent 
advantages that employers gain by conducting voluntary self-audits and 
the treatment that this policy provides for voluntary self-audits, 
provide appropriate, positive recognition for voluntary self-audits.
3. Total Prohibition Against the Use of Voluntary Self-Audit 
Documentation
    Many employers and employer associations stated that OSHA should 
refrain totally from using voluntary self-audit information as a part 
of the Agency's enforcement efforts under the Act. The Agency has not 
incorporated this comment into its policy because it believes that a 
complete prohibition is unnecessary in order to provide appropriate, 
positive treatment for voluntary self-audits. In addition, the Agency 
believes that, in some circumstances, a complete prohibition would 
prevent it from effectively enforcing the Act.
    The implementation of this policy will publicly state the Agency's 
policy to request voluntary self-audit documentation only in limited 
situations. A substantial number of employers already conduct voluntary 
self-audits for their own benefit and for the benefit of their 
employees. The Agency believes that this policy, with its explicit 
provisions concerning the Agency's use of voluntary self-audit 
documentation, will provide the assurances that additional employers 
may need in order to conduct voluntary self-audits. Indeed, under the 
policy, employers who respond promptly and appropriately to hazardous 
conditions that are identified in a voluntary self-audit can only be 
rewarded for having conducted the self-audit.
    On the other hand, there are legitimate circumstances in which 
voluntary self-audit data are important to enable the Agency to 
effectively enforce the Act. For example, such information may allow an 
inspector, who has already identified a hazard, to determine the scope 
of the hazard or to assess the manner in which the condition can be 
abated. In addition, pursuant to Occupational Safety and Health Review 
Commission precedent, the Secretary of Labor has the obligation to 
demonstrate that an employer had knowledge of a cited violative 
condition, and, in certain situations, the obligation to demonstrate 
that an employer was so indifferent to recognized occupational health 
or safety hazards that more significant penalties are justified in 
order to effectuate the provisions of the Act. Thus, the Agency 
believes that a complete prohibition against the use of voluntary self-
audit documentation would be an imprudent policy because it would 
hamper OSHA's ability to enforce the Act effectively.

4. More Precisely Defined Limitations on the Agency's Use of Voluntary 
Self-Audit Documentation

    In the proposed policy statement, the Agency had proposed to 
``refrain from routinely requesting reports of voluntary self-audits at 
the initiation of an enforcement inspection.'' OSHA explained that it 
intended to seek access to such reports only in limited situations in 
which the Agency had an independent basis to believe that a specific 
safety or health hazard warrants investigation, and had determined that 
such records may be relevant to identify or determine the circumstances 
or nature of the hazardous condition. However, several employers asked 
that the Agency more precisely detail the specific situations in which 
its inspectors may request voluntary self-audit documentation.
    The Agency has decided not to attempt to modify its proposed policy 
in this manner for several reasons. First, OSHA believes that, given 
the diversity of circumstances that inspectors encounter in conducting 
thousands of workplace inspections each year, it is not feasible to 
comprehensively list or to describe with any specificity each of those 
situations in which it would be appropriate for an inspector to request 
voluntary self-audit documentation. Rather, the Agency believes that 
the implementation of this policy will provide sufficient specificity 
to assure employers that inspectors will seek voluntary self-audit 
documentation only in limited and generally defined situations. Second, 
OSHA recognizes the skill and experience of its inspectors and believes 
that it is essential for the Agency and its inspectors to have some 
discretion in implementing this policy in order to effectively and 
efficiently fulfill the Act's mandate to detect and identify 
occupational safety and health hazards. Third, in refraining from an 
attempt to more specifically define those discrete circumstances in 
which inspectors may request voluntary self-audit documentation, the 
Agency has adopted the comment offered by several employers and their 
representatives who expressed concern that such specificity may in 
practice increase the frequency with which inspectors request voluntary 
self-audit documentation, given the natural human inclination to 
interpret specific examples as situations in which a request for self-
audit documentation is mandated, as opposed to merely permitted, 
pursuant to the policy.

5. Adoption of a Formal Rule Regarding the Agency's Treatment of 
Voluntary Self-Audits

    Several commenters suggested that the Agency should adopt the 
``Final Policy Concerning the Occupational Safety and Health 
Administration's Treatment of Voluntary Employer Safety and Health 
Self-Audits'' as a formal rule that would be legally binding on the 
Agency. However, OSHA has declined to incorporate this comment and 
believes that the policy, as adopted, provides sufficient assurance 
that employers who conduct voluntary self-audits, and who take prompt 
and appropriate steps to address occupational hazards that are 
identified in such audits, will not be penalized by OSHA for conducting 
voluntary self-audits. In addition, since this policy is an internal 
policy that is intended only to provide OSHA inspectors with guidance 
regarding the circumstances under which the Agency considers it 
appropriate to review and consider documentation generated by employers 
as a result of voluntary self-audits, the Agency believes it is 
imprudent and unnecessary to expend the time, money,

[[Page 46501]]

and other resources required to promulgate a formal rule. Finally, the 
Agency believes that a rule that creates legal rights for third parties 
would be more likely to produce unproductive litigation than will a 
policy that only provides guidance to OSHA inspectors. This type of 
litigation would not further the health and safety purposes of the Act.

6. No Citation for Partial or Planned Correction of Violative 
Conditions Identified through a Voluntary Self-Audit

    A number of employers stated that the Agency should refrain from 
issuing a citation in any situation in which an employer has identified 
a hazardous condition and is in the process of correcting that 
condition, or has developed a plan or program for correcting that 
condition, at the time that OSHA conducts an inspection of the 
employer's facility. OSHA has decided not to incorporate this comment 
into the final policy for several reasons. First, the agency recognizes 
that the prompt correction of hazardous workplace conditions is 
essential for the prevention of occupational illnesses, injuries, and 
fatalities. The Agency is concerned that a policy that excuses an 
employer for an abatement plan alone, or for abatement actions that do 
not constitute the complete elimination of the hazard, may serve to 
diminish an employer's incentive to promptly and completely eliminate 
workplace hazards. Second, the Agency believes that such a policy would 
be inconsistent with the Act's mandate, which is to assure, so far as 
possible, safe and healthful working conditions for every working man 
and woman in the Nation. In enforcing the Act, OSHA only issues 
citations in cases in which employees actually are exposed to hazards 
associated with violative conditions. While the final policy recognizes 
that employers who identify hazardous conditions through the use of 
voluntary self-audits, and are in the process of correcting those 
hazards, may deserve a ``good faith'' reduction in the penalty that 
OSHA proposes for the violation, the Agency does not believe that the 
Act contemplates that OSHA will refrain totally from issuing citations 
in situations in which employees are working in an environment in which 
they are exposed to serious occupational hazards.

IV. Description of the Final Policy

    The policy applies to audits (1) that are systematic, documented, 
and objective reviews conducted by, or for, employers to review their 
operations and practices to ascertain compliance with the Act, and (2) 
that are not mandated by the Act, rules or orders issued pursuant to 
the Act, or settlement agreements. A systematic audit is planned, and 
it is designed to be appropriate to the scope of the hazards that it 
addresses and to provide a basis for corrective action. Ad hoc 
observations and other ad hoc communications concerning a hazardous 
condition made during the ordinary course of business are not included 
within the definition of a ``self-audit'' or ``voluntary self-audit 
report.'' The findings resulting from the systematic self-audit must be 
documented contemporaneously (at the time the condition is discovered 
or immediately after completion of the audit) so as to assure that they 
receive prompt attention.
    The self-audit also must be conducted by or supervised by a 
competent person who is capable of identifying the relevant workplace 
hazards. Employees or management officials who have the training or 
experience that is necessary to identify workplace safety or health 
hazards, given the scope and complexity of the processes under review, 
are considered to be competent persons under the policy, even though 
they may not maintain engineering, scientific, industrial hygiene, or 
other relevant professional accreditation.
    In order to qualify for inclusion under the policy, a self-audit 
need not review or analyze an entire plant, facility, or operation. For 
example, a voluntary self-audit designed to identify hazards associated 
with a particular process or hazard (as opposed to an entire plant, 
facility, or operation) will qualify for consideration under the 
policy.
    The policy provides that OSHA will not routinely request voluntary 
self-audit reports when initiating an inspection, and that the Agency 
will not use voluntary self-audit reports as a means of identifying 
hazards upon which to focus during an inspection. Rather, OSHA intends 
to seek access to such reports only in limited situations in which the 
Agency has an independent basis to believe that a specific safety or 
health hazard warrants investigation, and has determined that such 
records may be relevant to identify or determine the circumstances of 
the hazardous condition. For example, an inspector might seek access to 
self-audit documentation following a fatal or catastrophic accident 
when OSHA is investigating the circumstances of the accident to assess 
compliance and to assure that hazardous conditions are abated. 
Likewise, it would be consistent with this policy to request self-audit 
documentation when the Agency has an independent basis for believing 
that a hazard exists. The Agency believes that this provision is 
responsive to the concerns of employers who sought assurances that OSHA 
would not use voluntary self-audit documentation during an inspection 
as a ``road map'' to identify violations of the Act.
    OSHA emphasizes that it is not seeking through this policy to 
expand the situations in which it requests production of voluntary 
self-audit reports beyond its present practice. In addition, OSHA 
intends to seek access only to those audit reports, or portions of 
those reports, that are relevant to the particular matters that it is 
investigating.
    OSHA has defined ``voluntary self-audit report'' to include 
information obtained in the audit, as well as analyses and 
recommendations. The effect is to include audit information in the 
documents that OSHA will not routinely request at the initiation of the 
inspection. OSHA has defined the term this way because the Agency 
believes that the definition responds to the concerns raised by 
employers about the effect of routine OSHA requests for voluntary self-
audit findings.
    The policy also contains provisions designed to assure that 
employers who respond with prompt corrective actions will receive 
corresponding benefits following an OSHA inspection. These provisions 
would come into play when OSHA obtains a voluntary self-audit report, 
either because the employer has voluntarily provided it to OSHA, as 
commonly occurs, or because OSHA has required production of the report. 
In response to public comment, OSHA has expressly stated in the final 
policy that employers may voluntarily provide OSHA with self-audit 
documentation and that those employers may be eligible to receive the 
benefits detailed in the policy.
    The policy explains that OSHA will refrain from issuing a citation 
for a violative condition that an employer has discovered through a 
voluntary self-audit and has corrected prior to the initiation of an 
inspection (or a related accident, illness, or injury that triggers the 
inspection), if the employer also has taken appropriate steps to 
prevent the recurrence of the condition. In situations in which the 
corrective steps have not been completed at the time of the inspection, 
OSHA will treat the voluntary self-audit report as evidence of good 
faith, not as evidence of a willful violation, provided that the 
employer has responded promptly with appropriate corrective action to 
the violative conditions identified in the

[[Page 46502]]

audit. Accordingly, if the employer is responding in good faith and in 
a timely manner to correct a violative condition discovered in a 
voluntary self-audit, and OSHA detects the condition during an 
inspection, OSHA will not use the report as evidence of willfulness. A 
timely, good faith response includes promptly taking diligent steps to 
correct the violative condition, while providing effective interim 
employee protection, as necessary.
    OSHA will treat a voluntary self-audit that results in prompt 
corrective action of the nature described above and appropriate steps 
to prevent similar violations, as strong evidence of the employer's 
good faith with respect to the matters addressed. Good faith is one of 
the statutory factors that OSHA is directed to take into account in 
assessing penalties. 29 U.S.C. 666(j). Where OSHA finds good faith, 
OSHA's Field Inspection Reference Manual (the ``FIRM'') authorizes up 
to a 25 percent reduction in the penalty that otherwise would be 
assessed. The FIRM treats the presence of a comprehensive safety and 
health program as a primary indicator of good faith. A comprehensive 
safety and health program includes voluntary self-audits, but is 
broader in concept, covering additional elements. In this policy, OSHA 
has concluded that a voluntary self-audit/correction program is 
evidence of good faith. OSHA believes that the policy will provide 
appropriate positive recognition of the value of voluntary self-audits, 
while simultaneously enabling the Agency to enforce the provisions of 
the Occupational Safety and Health Act effectively.

V. Final Policy Concerning the Occupational Safety and Health 
Administration's Treatment of Voluntary Employer Safety and Health 
Self-Audits

A. Purpose

    1. This policy statement describes how the Occupational Safety and 
Health Administration (OSHA) will treat voluntary self-audits in 
carrying out Agency civil enforcement activities. Voluntary self-
audits, properly conducted, may discover conditions that violate the 
Occupational Safety and Health Act (Act) so that those conditions can 
be corrected promptly and similar violations prevented from occurring 
in the future. This policy statement is intended to provide 
appropriate, positive treatment that is in accord with the value 
voluntary self-audits have for employers' safety and health compliance 
efforts, while also recognizing that access to relevant information is 
important to the Secretary of Labor's inspection and enforcement duties 
under the Act.
    2. This policy statement sets forth factors that guide OSHA in 
exercising its informed discretion to request and use the information 
contained in employers' voluntary self-audit reports. All OSHA 
personnel applying this policy will receive instruction in order to 
ensure the consistent and appropriate application of the policy. The 
policy statement is not a final Agency action. It is intended only as 
general, internal OSHA guidance, and is to be applied flexibly, in 
light of all appropriate circumstances. It does not create any legal 
rights, duties, obligations, or defenses, implied or otherwise, for any 
party, or bind the Agency.
    3. This policy statement has four main components:
    (a.) It explains that OSHA will refrain from routinely requesting 
reports of voluntary self-audits at the initiation of an enforcement 
inspection;
    (b.) It explains that OSHA will refrain from issuing a citation for 
a violative condition that an employer has discovered through a 
voluntary self-audit and has corrected prior to the initiation of an 
OSHA inspection (or a related accident, illness, or injury that 
triggers the inspection), if the employer also has taken appropriate 
steps to prevent the recurrence of the condition;
    (c.) It contains a safe-harbor provision under which, if an 
employer is responding in good faith to a violative condition 
identified in a voluntary self-audit report, and OSHA discovers the 
violation during an enforcement inspection, OSHA will not treat that 
portion of the report as evidence of willfulness;
    (d.) It describes how an employer's response to a voluntary self-
audit may be considered evidence of good faith, qualifying the employer 
for a substantial civil penalty reduction, when OSHA determines a 
proposed penalty. See 29 U.S.C. 666(j). Under this section of the Act, 
a proposed penalty for an alleged violation is calculated giving due 
consideration to the ``good faith'' of the employer.

B. Definitions

    1. ``Self-Audit'' means a systematic, documented, and objective 
review by or for an employer of its operations and practices related to 
meeting the requirements of the Act.
    (a.) ``Systematic'' means that the self-audit is part of a planned 
effort to prevent, identify, and correct workplace safety and health 
hazards. A systematic self-audit is designed by or for the employer to 
be appropriate to the scope of hazards it is aimed at discovering, and 
to provide an adequate basis for corrective action;
    (b.) ``Documented'' means that the findings of the self-audit are 
recorded contemporaneously and maintained by or for the employer;
    (c.) ``Objective'' means that the self-audit is conducted by or 
under the direction of an individual or group of individuals who are 
competent to identify workplace safety or health hazards, given the 
scope and complexity of the processes under review.
    2. ``Voluntary'' means that the self-audit is not required by 
statute, rule, order, or settlement agreement. Voluntary self-audits 
may assess compliance with substantive legal requirements (e.g., an 
audit to assess overall compliance with the general machine guarding 
requirement in 29 CFR 1910.212).
    3. ``Voluntary self-audit report'' means the written information, 
analyses, conclusions, and recommendations resulting from a voluntary 
self-audit, but does not include matters required to be disclosed to 
OSHA by the records access rule, 29 CFR 1910.1020, or other rules.
    4. ``Good faith'' response means an objectively reasonable, timely, 
and diligent effort to comply with the requirements of the Act and OSHA 
standards.

C. OSHA's Treatment of Voluntary Self-Audit Reports

    1. No Routine Initial Request for Voluntary Self-Audit Reports
    (a.) OSHA will not routinely request voluntary self-audit reports 
at the initiation of an inspection. OSHA will not use such reports as a 
means of identifying hazards upon which to focus inspection activity.
    (b.) However, if the Agency has an independent basis to believe 
that a specific safety or health hazard warranting investigation 
exists, OSHA may exercise its authority to obtain the relevant portions 
of voluntary self-audit reports relating to the hazard.
    (c.) An employer voluntarily may provide OSHA with self-audit 
documentation and may be eligible to receive the benefits that are 
detailed in this policy.
2. No Citations for Violative Conditions Discovered During a Voluntary 
Self-Audit and Corrected Prior to an Inspection (or a Related Accident, 
Illness, or Injury That Triggers the Inspection)
    It is OSHA's current enforcement practice to refrain from issuing a 
citation for a violative condition that an

[[Page 46503]]

employer has corrected prior to the initiation of an OSHA inspection 
(and prior to a related accident, illness, or injury that triggers the 
inspection), if the employer has taken appropriate steps to prevent a 
recurrence of the violative condition, even if the violative condition 
existed within the six month limitations period during which OSHA is 
authorized to issue citations. Consistent with this enforcement 
practice, OSHA will not issue a citation for a violative condition that 
an employer has discovered as a result of a voluntary self-audit, if 
the employer has corrected the violative condition prior to the 
initiation of an inspection (and prior to a related accident, illness, 
or injury that triggers the inspection) and has taken appropriate steps 
to prevent a recurrence of the violative condition that was discovered 
during the voluntary self-audit.
3. Safe Harbor--No Use of Voluntary Self-Audit Reports as Evidence of 
Willfulness
    A violation is considered willful if the employer has intentionally 
violated a requirement of the Act, shown reckless disregard for whether 
it was in violation of the Act, or demonstrated plain indifference to 
employee safety and health. Consistent with the prevailing law on 
willfulness, if an employer is responding in good faith to a violative 
condition discovered through a voluntary self-audit and OSHA detects 
the condition during an inspection, OSHA will not use the voluntary 
self-audit report as evidence that the violation is willful.
    This policy is intended to apply when, through a voluntary self-
audit, the employer learns that a violative condition exists and 
promptly takes diligent steps to correct the violative condition and 
bring itself into compliance, while providing effective interim 
employee protection, as necessary.
4. ``Good Faith'' Penalty Reduction
    Under the Act, an employer's good faith normally reduces the amount 
of the penalty that otherwise would be assessed for a violation. 29 
U.S.C. 666(j). OSHA's FIRM provides up to a 25 percent penalty 
reduction for employers who have implemented an effective safety and 
health program, including voluntary self-audits. OSHA will treat a 
voluntary self-audit that results in prompt action to correct 
violations found, in accordance with paragraph C.3. above, and 
appropriate steps to prevent similar violations, as strong evidence of 
an employer's good faith with respect to the matters covered by the 
voluntary self-audit. This policy does not apply to repeat violations.

D. Federal Program Change

    This policy statement describes a Federal OSHA Program change for 
which State adoption is not required; however, in the interest of 
national consistency, States are encouraged to adopt a similar policy 
regarding voluntary self-audits.

E. Effective Date

    This policy is effective July 28, 2000.
    This document was prepared under the direction of Charles N. 
Jeffress, Assistant Secretary for Occupational Safety and Health, US 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210.

    Signed at Washington, D.C. this 24th day of July, 2000.
Charles N. Jeffress,
Assistant Secretary of Labor.
[FR Doc. 00-19067 Filed 7-27-00; 8:45 am]
BILLING CODE 4510-26-P