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Proposed Amendments to Chapter 296-900 WAC Administrative Rules - DOSH Penalty Calculations

Background:

This rulemaking is in response to federal changes in policy and mandated measures for calculating penalties that apply to Washington State. The Occupational Safety and Health Administration (OSHA) has changed its policies for calculating penalties to require that the average penalty for serious violations (private sector employers only) be within +/- 25% of the 3-year national average.  In October 2012, OSHA updated the State Activities Mandated Measures (SAMM) Report to require state plan states to meet its new measures for calculating penalties. OSHA expects DOSH to adopt rules and policies that are at least as effective as OSHA's within 6 months of an OSHA rule or policy change.

Per the State Plan Policies and Procedures Manual, CSP 01-00-002, the primary focus of OSHA's monitoring of State Plans concerns the states' achievement of their strategic goals. OSHA must also ensure that states meet the mandates set out in Section 18 of the Occupational Safety and Health Act and 29 CFR 1902. These include such required program elements as responding to complaints and fatalities, citing and penalizing violations, and covering public sector employers and employees.

Penalty money paid as a result of a citation is placed in the Workers' Compensation Supplemental Pension Fund, helping workers and families of those who have died on the job.

Rulemaking documents

Preliminary Draft Rule – Below is a link to the preliminary draft rule. DOSH is providing this in a clean version and a track changes version to show the differences between the draft in June and today's draft. Also below is a link to the comparison document reflecting current rule vs. preliminary draft rule.

In summary the following changes were made:

WAC 296-900-140 Monetary penalties.

  • We added some definitions to the beginning of the rule to aid in understanding terms that DOSH uses throughout the draft.

WAC 296-900-14005 Reasons for monetary penalties.

  • Where dollar amounts are spelled out, we added the numerical equivalent.

WAC 296-900-14010 Base penalties.

  • Deleted redundant language in the portion of the draft relating to how severity is established.
  • Clarified the language for probability.
  • Fixed a typographical error.
  • Deleted the word "result" after Table 6 to fix a grammatical error.

WAC 296-900-14015 Base penalty amounts.

  • Clarified the language where we talked about Tables 8 through 11.
  • Wherever we talked about reductions we added the words "is given" for clarity.
  • Spelled out "accident prevention plan".
  • Added "or high gravity = 9" after Table 11 for consistency.

WAC 296-900-14020 Increases to adjusted base penalties.

  • Clarified the language where we talked about Tables 12 through 14.
  • Wherever we talked about reductions we added the words "is given" for clarity.
  • Fixed a typographical error in Table 15.

Current Rule (leg.wa.gov)

August 2014 Preliminary Draft Rule Language (280 KB PDF)

August 2014 Preliminary Draft Rule Language Tracked Changes version (296 KB PDF)

Comparison Document: August 2014 Preliminary Draft vs. Current Rule. (292 KB PDF)

Proposed rulemaking timeline

  • 4/22/2014 Preproposal (CR-101) (105 KB PDF)
  • 9/30/2014  Proposed Rulemaking (CR-102)
  • November 2014, Date TBD: Public Hearing (Tumwater)
  • 12/16/2014  Rule Adoption (CR-103)
  • 2/01/2015 Effective Date

Stakeholder meetings:

DOSH has scheduled stakeholder meetings to provide an overview of this project, answer questions about the proposed rulemaking, and seek input from stakeholders about how penalties will be calculated in order to be at least as effective as OSHA.

The meeting locations and times are listed below.

Meeting schedule:

Tuesday, August 26, 2014, 9 to 11 a.m.
Labor and Industries Tumwater Service Location

Thursday, August 28, 2014, 9 to 11 a.m.
Enduris Training Facility
1610 South Technology Boulevard, Suite 100
Spokane, WA

Tuesday, September 2, 2014, 9 to 11 a.m.
Labor and Industries Tukwila Service Location

Previous Meetings

Tuesday, June 17, 2014, 9 a.m. to noon
Labor and Industries Tukwila Service Location

Thursday, June 19, 2014, 9 a.m. to noon
Enduris Training Facility
1610 South Technology Boulevard, Suite 100
Spokane, WA

Tuesday, June 24, 2014, 9 a.m. to noon
Labor and Industries Tumwater Service Location

Thursday, February 20, 2014, 9 to 11 a.m.
Labor and Industries Yakima Service Location

Thursday, February 13, 2014, 9 to 11 a.m.
Double Tree by Hilton Hotel – Spokane City Center
322 North Spokane Falls Court
Spokane, WA

Tuesday, February 11, 2014, 1 to 3 p.m.
Double Tree by Hilton Hotel – Seattle Airport
18740 International Boulevard
Seattle, WA

Monday, February 10, 2014, 9 to 11 a.m.
Labor and Industries Tumwater Service Location

If you have any questions about this rulemaking project contact:

Cindy Ireland, Administrative Regulations Analyst
360-902-5522

John Kiely, Safety and Health Specialist
360-902-4928

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