Citing a violation while an earlier citation is contested

July 2, 1975

MEMORANDUM FOR: David H. Rhone
Assistant Regional Director for Occupational Safety and Health
Subject: Multi-Plant Employers

I concur with your premise that a violation of a standard should be cited even though that company has a previous citation contested. As stated in paragraph B.5.d., Chapter VIII, of the Field Operations Manual for repeated violations: Where a violation of a previously cited condition is apparent and the first violation has been contested and has not yet become a final order of the Review Commission, the second violation should nevertheless be cited. Such a citation is automatically rescinded if the prior citation does not become a final order of the Review Commission. Your suggestion to make this applicable to all violations will be included in a change to the FOM.

Care should be taken to assure that a determination is made whether the violation is an occurrence at a separate establishment of the same company or a repeat violation at a previously cited establishment. Reference paragraph 5.B.e., Page 12, Chapter VIII of the FOM; and 29 CFR 1903.2(b).

Barry J. White
Associate Assistant Secretary for
Regional Programs