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. DOSH received formal notification on January 12, 2015 from OSHA (67 KB PDF) indicating that our performance in the area of penalty calculations needs to be addressed immediately.

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.

History of rule development

• Rule development discussions began with the WISHA Advisory Committee in November 2012, resulting in a discussion draft of possible changes in September 2013. 
• Three statewide public meetings were held in February 2014 to gather stakeholder input on the discussion draft. 
• The Preproposal (CR-101) statement of inquiry (105 KB PDF) was filed on April 22, 2014.
• In June, 2014, a preliminary draft rule was distributed and posted to the L&I website.  Three statewide public meetings were held in May – June 2014 to get input on the preliminary rule draft. 
• Based on stakeholder input, additional changes were incorporated and a second preliminary draft rule was developed and statewide public meetings were held.  Additionally, outreach was provided to several business and labor organizations.
• The proposed rule language (129 KB PDF) was filed on February 3, 2015.
• Public Hearings were held March 10 – March 20, 2015:
  • A summary of public comments and L&I's response can be found in the Concise Explanatory Statement (150 KB PDF).
• The adopted rule language (390 KB PDF) was filed on June 9, 2015.

Rulemaking timeline

• April 22, 2014, Preproposal (CR-101) (105 KB PDF).
• February 3, 2015, Proposed Rulemaking (CR 102) (351 KB PDF).
• June 9, 2015, Rule Adoption (CR-103) (390 KB PDF).
• September 1, 2015, Effective Date.

If you have any questions about this rulemaking project

Contact Cindy Ireland, 360-902-5522, administrative regulations analyst.

Contact John Kiely, 360-902-4928, safety and health specialist.