United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2001 Decided November 6, 2001

No. 00-1392

Kaspar Wire Works, Inc.,
Petitioner

v.

Secretary of Labor,
Respondent

On Petition for Review of an Order of the
Occupational Safety and Health Review Commission

Vic H. Henry argued the cause and filed the briefs for
petitioner.

John Shortall, Attorney, U.S. Department of Labor, argued
the cause for respondent. With him on the brief were Joseph
M. Woodward, Associate Solicitor, and Bruce F. Justh, Coun-
sel.


Before: Henderson, Randolph and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Kaspar Wire Works, Inc. petitions
for review of the decision of the Occupational Safety and
Health Review Commission holding it responsible for hun-
dreds of willful violations of the Occupational Health and
Safety Act, 29 U.S.C. ss 651-678 (1990), and imposing penal-
ties for each violation. Kaspar Wire contends that the deci-
sion must be reversed for lack of substantial evidence to
support the findings of willfulness, and because the per
instance penalties are unlawful. We deny the petition.

I.

Kaspar Wire Works, Inc. is a manufacturer of custom wire
products and newspaper racks located in Shiner, Texas. Be-
tween 1982 and 1989, the Occupational Safety and Health
Administration ("OSHA") conducted inspections and issued
no citations for injury and illness recordkeeping violations.
However, following a six-month inspection by nine OSHA
inspectors in 1990, the Secretary of Labor issued two cita-
tions against Kaspar Wire for over 400 alleged willful and
serious violations of various standards under the Act, propos-
ing aggregate penalties of $1,236,000. An Administrative
Law Judge found that 382 violations were willful and assessed
an aggregate penalty of $257,700.

The Occupational Safety and Health Commission affirmed
the findings of willfulness and the assessment of per-instance
penalties for most of the recordkeeping violations, resulting in
an aggregate penalty of $224,050. The Commission relied on
evidence that the same personnel had been responsible for
recording serious injuries and illnesses at Kaspar Wire since
1970, that Kaspar Wire had properly reported such incidents
in the past, as reflected in the results of OSHA inspections
from 1982-89, and that OSHA's 1990 inspection revealed that
Kaspar Wire failed to record 357 injuries on form OSHA No.
200, comprising 86.5% of the injuries and illnesses that oc-
curred in its facility during 1988 and 1989. Included among
the unreported injuries were second- and third-degree burns,


a hand ligament injury resulting in 171 lost work days, at
least eight finger amputations (including one employee who
lost three fingers and lost eight weeks of work and another
employee who lost two fingers and lost nine weeks of work),
several broken bones, more than 30 eye injuries, and hun-
dreds of lacerations--all of which were only recorded on
Kaspar Wire's first-aid log. The Commission concluded that
these were knowing and willful violations that reflected a
"profound[ ] change[ ]" in Kaspar Wire's recordkeeping prac-
tices. One Commission member dissented on the ground that
the evidence did not support a finding of willfulness, but only
carelessness. The Commission reversed the Administrative
Law Judge's finding of willfulness with respect to errors in
Kaspar Wire's restricted work day recording, because it had
never recorded such items and had never been cited by
OSHA for such failures in the past.

II.

At the time of the citations in question, the Occupational
Health and Safety Act ("the Act") provided that "Any em-
ployer who willfully or repeatedly violates the requirements
of ... regulations prescribed pursuant to this chapter, may
be assessed a civil penalty of not more than $10,000 for each
violation." 29 U.S.C. s 666(a) (1990).1 The Act further pro-
vided:

Each employer shall make, keep and preserve, and make
available to the Secretary [of Labor] or the Secretary of
Health and Human Services, such records regarding his
activities relating to this chapter as the Secretary [of

__________
1 The penalty amounts were increased in November 1990 to
"not more than $70,000 for each violation, but not less than $5,000
for each willful violation." See id. (1999); Omnibus Budget Recon-
ciliation Act of 1990, Pub. L. No. 101-508, s 3101, 104 Stat. 1388
(1990). In assessing penalties against Kaspar Wire, the Commis-
sion applied the version of the statute in effect in September 1990,
when the citations were issued. The other statutory and regulatory
provisions relevant to this opinion have remained unchanged since
that time.


Labor], in cooperation with the Secretary of Health and
Human Services, may prescribe by regulation as neces-
sary or appropriate for the enforcement of this chapter
or for developing information regarding the causes and
prevention of occupational accidents and illnesses....

Id. s 657(c)(1). The OSHA recordkeeping regulations re-
quire an employer to:

(1) maintain in each establishment a log and summary of
all recordable occupational injuries and illnesses for that
establishment; and (2) enter each recordable injury and
illness on the log and summary as early as practicable
but no later than 6 working days after receiving informa-
tion that a recordable injury or illness has occurred.

29 C.F.R. s 1904.2(a) (2000). The regulation further specifies
that "[f]or this purpose form OSHA No. 200 or an equivalent
which is as readable and comprehensive to a person not
familiar with it shall be used. The log and summary shall be
completed in the detail provided in the form and instructions
on form OSHA No. 200." Id. "Recordable" is defined in the
regulations to mean:

any occupational injuries or illnesses which result in:

(1) Fatalities, regardless of the time between the injury
and death, or the length of the illness; or

(2) Lost workday cases, other than fatalities, that result
in lost workdays; or

(3) Nonfatal cases without lost workdays which result in
transfer to another job or termination of employ-
ment, or require medical treatment (other than first
aid) or involve: loss of consciousness or restriction
of work or motion. This category also includes any
diagnosed occupational illnesses which are reported
to the employer but are not classified as fatalities or
lost workday cases.

Id. s 1904.12(c). The Commission views the recordkeeping
requirements as "play[ing] a crucial role in providing the
information necessary to make workplaces safer and healthi-

er." General Motors Corp., Inland Div., 8 O.S.H. Cas.
(BNA) 2036 (1980).

Kaspar Wire did not argue either to the Commission or to
the court that its first aid log qualified as an "equivalent" to
OSHA form No. 200. Rather, Kaspar Wire admitted in its
brief and at oral argument that it did not comply with OSHA
recordkeeping requirements. For three reasons it contends,
however, that there is no basis for the Commission's finding
that its violations were willful. First, its recordkeeping per-
sonnel were trained by OSHA staff in 1971, and over the
years OSHA inspectors repeatedly reviewed its practices
without ever citing Kaspar Wire for a recordkeeping violation
until the 1990 inspection. Second, an OSHA inspector testi-
fied that it was reasonable for Kaspar Wire to assume that its
recordkeeping practices were in compliance with OSHA regu-
lations. Third, there is no record evidence that Kaspar Wire
changed its recordkeeping practices at some point in the
1980s. Kaspar Wire concludes, therefore, that its reasonable
reliance precludes a finding of willfulness.

Neither the Act nor the OSHA regulations define the
meaning of the term "willful." This circuit has defined a
"willful violation" in the OSHA context as "an act done
voluntarily with either an intentional disregard of, or plain
indifference to, the Act's requirements." Conie Construction,
Inc. v. Reich, 73 F.3d 382, 384 (D.C. Cir. 1995). The Commis-
sion relied on the Fifth Circuit's virtually identical definition
of a "willful violation" as "one involving voluntary action, done
with either an intentional disregard of, or plain indifference
to, the requirements of the [OSHA] statute." Georgia Elec.
Co. v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979). Under
either definition, actual malice is not required; it is sufficient
that there be substantial evidence of voluntary and intentional
disregard for or indifference to the law. See Conie, 73 F.3d
at 384; Georgia Elec., 595 F.2d at 318-19. Consistent with
our standard of review, see National Eng'g & Contracting Co.
v. OSHRC, 45 F.3d 476, 481 (D.C. Cir. 1995), we conclude that
there was substantial evidence to support the Commission's
finding of willfulness.


Contrary to Kaspar Wire's position, the fact that the same
recordkeeping personnel who had been trained by OSHA
staff were still in charge in 1988 and 1989 actually supports
the Commission's conclusion that Kaspar Wire knowingly and
voluntarily chose to flout the recordkeeping requirements.
That is, Kaspar Wire could have no doubt about what the
regulations required. Kaspar Wire points to testimony by
one OSHA inspector that inspections conducted between 1982
and 1989 indicated that Kaspar Wire was complying with
OSHA's recordkeeping requirements, and that if Kaspar
Wire's recordkeeping practices remained unchanged it could
reasonably assume in March 1990 that its practices con-
formed to OSHA standards. Another inspector testified that
in his view Kaspar Wire's recordkeeping practices had not
changed over time. However, "the Commission is not bound
by the representations or interpretations of OSHA Compli-
ance Officers." L.R. Willson & Sons, Inc. v. Donovan, 685
F.2d 664, 676 (D.C. Cir. 1982). Further, two other OSHA
inspectors testified that based on the 1990 inspection, Kaspar
Wire had clearly and intentionally violated the recordkeeping
requirements of the statute, see 29 U.S.C. s 657(c)(1), and
that the Department of Labor's Bureau of Labor Statistics
had independently confirmed that all of the injuries in ques-
tion should have been recorded on OSHA form No. 200.

From this evidence, the Commission could reasonably infer,
see United States Testing Co., Inc. v. NLRB, 160 F.3d 14, 19
(D.C. Cir. 1998), that sometime prior to 1988, Kaspar Wire's
recordkeeping practices underwent a dramatic change that
was not explainable by changes in the number of persons it
employed. As the Commission found, in addition to the sheer
magnitude of the recordkeeping violations--which the Com-
mission characterized as "far exceed[ing] that of any other
case decided by the Commission"--the nature of the injuries
that were unreported belies Kaspar Wire's claim that its
actions were merely negligent or careless. The violations at
issue were not mere technical omissions; rather, the viola-
tions involved the failure to report injuries as serious as
finger amputations, broken bones, eye injuries and severe
burns that resulted in prolonged absences from work. Kas-


par Wire thus cannot reasonably contend that there was
confusion about whether injuries of this nature had to be
reported on form OSHA No. 200 or its equivalent. Nor can
Kaspar Wire seriously contend that it was entitled to rely on
its lack of prior violations to undermine a finding of willful-
ness. See Cedar Constr. Co. v. OSHRC, 587 F.2d 1303, 1306
(D.C. Cir. 1978); cf. Herman v. Palo Group Foster Home,
Inc., 183 F.3d 468, 473 (6th Cir. 1999); National Steel and
Shipbldg. Co. v. OSHRC, 607 F.2d 311, 317 (9th Cir. 1979).
Otherwise, an employer with no prior citations could choose
to violate a regulatory obligation without risking a finding of
willfulness, contrary to common sense and the definition of a
"willful violation" in the OSHA context.

Conie is instructive. In that case, a construction company
challenged an OSHA citation for the willful violation of a
regulation governing the slope of a trench that had been
excavated to install a sewer manhole. The OSHA compliance
officer testified that the company foreman acknowledged that
the walls of the trench did not comply with the sloping
regulation, but nevertheless opted to ignore the requirement
because he thought the trench was safe. The court upheld
the Commission's finding of willfulness in view of the evidence
that the company knew of the regulation and intentionally
chose not to comply with OSHA's excavation requirements.
See Conie, 73 F.3d at 384; see also Donovan v. Williams
Enterprises, Inc., 744 F.2d 170, 179-80 (D.C. Cir. 1984);
Finer Food Sales Co., Inc. v. Block, 708 F.2d 774, 777-78
(D.C. Cir. 1983). Similarly, here the Commission could rea-
sonably find that Kaspar Wire knew of and intentionally
chose to ignore OSHA recordkeeping regulations, and there-
by jeopardized not only the ability of the Secretary and
OSHA to carry out their statutory responsibilities, but the
health and safety of Kaspar Wire's employees.

Kaspar Wire's attempt to rely on cases cited by the Secre-
tary fails, for they clearly support the Secretary's position.
For example, although the court concluded in L.R. Willson,
685 F.2d at 676, that a finding of willfulness with respect to
an ambiguous safety requirement could not be sustained, this
result was so only because the employer had not been given


adequate notice of what was required. Kaspar Wire makes
no claim there was ambiguity about what the recordkeeping
regulations required. See also Brock v. Morello Bros.
Constr., Inc., 809 F.2d 161 (1st Cir. 1987); Williams Enter-
prises, 744 F.2d at 179-80; Cedar Constr., 587 F.2d at 1306.

Kaspar Wire protests nonetheless that the Commission's
finding of willfulness makes no sense because Kaspar Wire
had nothing to gain by violating the recordkeeping regula-
tions. All of the incidents not reported on form OSHA No.
200 were reported on the first aid log. Also, according to
Kaspar Wire, the incidence of reported violations for 1988 and
1989 on the form 200 exceeded the cutoff of 4.3% needed to
avoid future on-site safety inspections. These contentions
ignore two salient points. First, the Secretary has chosen to
fulfill her statutory responsibilities by requiring injury re-
porting on form OSHA No. 200. See 29 U.S.C.
s 657(c)(1),(c)(2) and (g)(2); 29 C.F.R. s 1904.2(a). There
was evidence before the Commission that Kaspar Wire was
an employer whose records were designed to show a low lost
workday injury rate that would exempt them from an on-site
safety inspection. On three previous occasions, OSHA in-
spections of Kaspar Wire revealed a lost workday injury rate
that was below the national average, thereby exempting the
company from a comprehensive safety inspection. As the
Secretary states in her brief:

Kaspar [Wire]'s indifference to recordkeeping require-
ments and inattention to accurate reporting produced a
picture of working conditions that would mislead employ-
ees and OSHA concerning the true extent of the hazards
at Kaspar [Wire]. By obscuring these injuries, Kaspar
[Wire] effectively perpetuated the hazards to which its
employees were exposed and it disabled an alarm mecha-
nism which might have alerted employees and OSHA to
problem areas in the workplace.

Respondent's Brief at 58.

Second, the Commission's finding of willfulness did not
require evidence of motive. As the Supreme Court explained
in TWA v. Thurston, 469 U.S. 111, 126 n.19 (1985), "an


employer's action may be 'willful' ... even though he did not
have an evil motive or bad purpose." See also Hazen Paper
Co. v. Biggins, 507 U.S. 604, 617 (1993). Although to find
willfulness the Commission had to find that Kaspar Wire's
conduct involved more than mere negligence or carelessness,
see McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133
(1988), there was substantial evidence of Kaspar Wire's know-
ing and intentional disregard of the recordkeeping require-
ments. See Conie, 73 F.3d at 384. The Commission took
note of both the unprecedented volume of violations and the
seriousness of the unreported injuries, as well as the abun-
dant evidence of Kaspar Wire's actual knowledge of what was
required under OSHA regulations based on its own admis-
sions and its past recordkeeping practices. Essentially, then,
the Commission was confronted with a record of unabashed
violations involving serious injuries to employees in the face
of certain knowledge of what was required. Congress and
the Secretary, not Kaspar Wire, have been entrusted with
determining how best to ensure worker health and safety,
and given the evidence of Kaspar Wire's egregious flouting of
regulatory requirements, the Commission's finding of willful-
ness is amply supported by the record.

Kaspar Wire's challenges to the sufficiency of the evidence
supporting the Commission's findings that it willfully failed to
install point-of-operations guards on a punch press, in viola-
tion of 29 C.F.R. s 1910.217(c)(1), and failed to ground porta-
ble lamps, in violation of 29 C.F.R. s 1910.304(f)(5)(V), are
meritless. An OSHA inspector photographed the unguarded
press, and based on the same photograph, an OSHA supervi-
sor determined that a citation was warranted because the
picture of one employee using the machine indicated that
multiple employees were probably using the machine. As to
the lamps, the evidence was unrebutted that the lamps were
portable and "clamp" type. Because the lamps were handled
roughly and used to illuminate trucks that were being loaded,
the Commission could reasonably infer that employees were
exposed to a danger of electric shock.


III.

Kaspar Wire also challenges the lawfulness of the per
instance penalties on statutory and procedural grounds.
Contending that the Secretary lacks statutory authority to
assess per instance penalties for "egregious and willful" viola-
tions, which is not among the four levels of violations set forth
in the Act, see 29 U.S.C. s 666(a)-(c), Kaspar Wire claims that
Congress did not authorize per instance penalties. Kaspar
Wire relies on a structural argument based on the Coal Mine
Health & Safety Act of 1969 ("Coal Mine Act"), 30 U.S.C.
s 801 et seq. (1996), which Congress enacted one year before
it enacted the Occupational Health and Safety Act. Kaspar
Wire further contends that even if the Secretary has authori-
ty to impose per instance penalties, her new policy violates
the Administrative Procedure Act either because her policy is
a rule subject to notice and comment under 5 U.S.C. s 553, or
because her policy was not published in the Federal Register.
None of these contentions has merit.

Section 17(a) of the Act provides that "[a]ny employer who
willfully or repeatedly violates the requirements of ... regu-
lations prescribed ... may be assessed a civil penalty of not
more than $10,000 for each violation." 29 U.S.C. s 666(a)
(emphasis added). The plain language of the Act could
hardly be clearer. The Commission has long agreed that per
instance citations and penalties are allowed. See Pepperidge
Farm, Inc., 17 O.S.H. Cas. (BNA) 1993, 2001 (1997); Sanders
Lead Co., 17 O.S.H. Cas. (BNA) 1197, 1204-05 (1995); J.A.
Jones Constr. Co., 15 O.S.H. Cas. (BNA) 2201, 2213-14 (1993);
Caterpillar, Inc., 15 O.S.H. Cas. (BNA) 2153, 2173 (1993);
Hoffman Constr. Co., 6 O.S.H. Cas. (BNA) 1274, 1275 (1978).
The availability of such penalties is consistent with the gener-
al principle that each violation of a statutory duty exposes the
violator to a separate statutory penalty. See, e.g., Missouri,
Kansas, & Texas Ry. Co. v. United States, 231 U.S. 112, 119
(1913); Used Equip. Sales, Inc. v. Dep't of Transp., 54 F.3d
862, 865 (D.C. Cir. 1995). The statutory language is consis-
tent, moreover, with discretionary per instance assessments
for "egregious and willful" violations, which the OSHA field
operations manual defines as "willful, repeated and high


gravity serious citations and failures to abate." Caterpillar,
Inc., 15 O.S.H. Cas. (BNA) 2153, 2170 (1993) (quoting OSHA
Instruction CPL 2.45A, Field Operations Manual, Ch. VI,
s A.2.i.(4), at VI-8 (Sept. 21, 1987)).

Kaspar Wire's reliance on the language of the Coal Mine
Act is misplaced. Section 111(a) of the Coal Mine Act (since
repealed and redesignated as the Federal Mine Safety and
Health Act of 1977) provides that "[e]ach occurrence of a
violation of a mandatory health or safety standard may
constitute a separate offense." 30 U.S.C. s 820(a). Howev-
er, as the Secretary points out, there is nothing to suggest
that Congress patterned the Act after the Coal Mine Act.
The Coal Mine Act employed a significantly different adminis-
trative structure, with rulemaking, enforcement and adjudica-
tory functions concentrated in the Secretary of the Interior.
See 29 U.S.C. ss 801 et seq. (1976). Only in 1977 was the
administrative structure made to conform to the Act's, with
the vesting of rulemaking and enforcement authority in the
Secretary of Labor and the establishment of an independent
review commission for adjudications. See 30 U.S.C. ss 814-
816, 961(a) (1986). In any event, Congress is not limited in
the language it may use across statutes to provide that per
instance penalties are authorized. Moreover, even had Con-
gress had not spoken directly to the question of per instance
penalties, the Secretary's interpretation would be entitled to
deference given her official duty, specialized expertise, inves-
tigatory knowledge, and other experience relevant to carrying
out the purposes of the Act. See United States v. Mead
Corp., 121 S.Ct. 2164, 2175 (2001) (citing Skidmore v. Swift &
Co., 323 U.S. 134, 138 (1944)); cf. Anthony Crane Rental, Inc.
v. Reich, 70 F.3d 1298, 1302 (D.C. Cir. 1995) (citing Martin v.
OSHRC, 499 U.S. 144, 150-51 (1991)); Used Equip. Sales, 54
F.3d at 864-65.

Nor was the imposition of per instance penalties unlawful
on procedural grounds. The Secretary's decision to assess
per instance penalties reflects use of an enforcement tool
within her authority. Cf. United Steelworkers of Am. v.
Herman, 216 F.3d 1095, 1097 (D.C. Cir. 2000). Her decision
followed a comprehensive review of Kaspar Wire's record-


keeping practices, and its virtual admission that it had not
complied with the recordkeeping rule. The Secretary has
never taken the position that she lacks authority or would
decline to issue per instance citations to employers who
commit multiple violations of the same regulatory require-
ment, and in fact has exercised her discretion to propose
separate penalties for discrete violations over the years. See,
e.g., RSR Corp., 11 O.S.H. Cas. (BNA) 1163, 1180-81 (1983);
Wheeling-Pittsburgh Steel Corp., 10 O.S.H. Cas. (BNA) 1242
(1981); Morris-Knudsen & Assoc., 8 O.S.H. Cas. (BNA) 2231,
2239 (1980); Hoffman Constr. Co., 6 O.S.H. Cs. (BNA) 1274
(1978). Consequently, the line of cases that require rulemak-
ing upon a change of policy are inapplicable. See, e.g., Nat'l
Ass'n of Home Health Agencies, v. Schweiker, 690 F.2d 932,
949 (D.C. Cir. 1982); cf. Aulenback, Inc. v. Fed. Highway
Admin., 103 F.3d 156, 168 (D.C. Cir. 1997) (citing 5 U.S.C.
s 553). In addition, there is nothing to Kaspar Wire's con-
tention that per-instance penalties "encode[ ] a substantive
value judgment or put[ ] a stamp of approval or disapproval
on a given type of behavior," American Hosp. Ass'n v.
Bowen, 834 F.2d 1037, 1047 (D.C. Cir. 1987), thereby render-
ing the policy ineligible for the procedural rule exemption
from notice and comment requirements. See 5 U.S.C.
s 553(b)(A). Such reasoning, as JEM Broadcasting Co., Inc.
v. FCC, 22 F.3d 320 (D.C. Cir. 1994), points out, "threatens to
swallow the procedural exception to notice and comment, for
agency housekeeping rules often embody a judgment about
what mechanics and processes are most efficient." Id. at 328.
Kaspar Wire's reliance on the Fifth Circuit's "substantial
impact" standard for notice and comment requirements, see
Brown Express, Inc. v. United States, 607 F.2d 695, 702 (5th
Cir. 1979), is unavailing because this circuit has expressly
rejected that standard. See American Postal Workers Un-
ion, AFL-CIO v. United States Postal Serv., 707 F.2d 548,
560 (D.C. Cir. 1983). Furthermore, because the statutory
authorization of per instance penalties is so clear from the
statutory language, publication in the Federal Register was
not required. See Malkam FM Assoc. v. FCC, 935 F.2d 1313,
1318 (D.C. Cir. 1991); 5 U.S.C. s 552(a)(2).


Finally, OSHA penalties are meant to "inflict pocket-book
deterrence." Atlas Roofing Co. v. OSHRC, 518 F.2d 990,
1001 (5th Cir. 1975), aff'd, 430 U.S. 442 (1977). Section 666(j)
of the Act provides that the Commission is to give "due
consideration to the appropriateness of the penalty with
respect to the size of the business of the employer charged,
the gravity of the violation, the good faith of the employer,
and the history of previous violations." The Commission
found that Kaspar Wire is a moderate-to-large sized company
employing approximately 850 to 900 employees with a history
of few previous OSHA violations, none of which pertained to
recordkeeping. It noted that the gravity of recordkeeping
violations is generally considered low. It reasonably declined,
however, to accord good faith credit to Kaspar Wire in light
of the fact that the bulk of the violations were willful and the
failures to record were "largely so obvious." The Commis-
sion affirmed the Administrative Law Judge's per instance
penalties in the amount of $250-$1000 per item, and upon
deducting $17,000 for various vacated items, affirmed an
aggregate penalty of $210,500 for willful recordkeeping viola-
tions. The Commission also affirmed an aggregate penalty of
$4,875 for non-serious restricted workday recording violations
based on the change in characterization. Kaspar Wire does
not contend that the Commission failed to give due consider-
ation to these penalty criteria, nor (apart from its objection to
the Secretary's authority to impose per-instance penalties)
does it claim that the specific penalty amounts assessed for
each violation were excessive.

Accordingly, we deny the petition for review.