|ENV H 471: ENVIRONMENTAL HEALTH REGULATION||
SUPPLEMNETAL READING #22
OSHA FIELD INSPECTION MANUAL
Chapter II. COMPLIANCE PROGRAMMING
A. Program Planning.
1. Purpose. Compliance Programming provides general guidelines to the Regional Administrator and Area Director in planning compliance operations and related activities and instructions for their implementation.
2. Primary Consideration. The primary consideration in conducting compliance operations is the attainment of maximum effective inspection coverage. To achieve this goal, the guidelines in this chapter shall be used for scheduling inspections.
B. Inspection/Investigation Types.
1. Unprogrammed. Inspections scheduled in response to alleged hazardous working conditions that have been identified at a specific worksite are unprogrammed. This type of inspection responds to imminent dangers, fatalities/catastrophes, complaints and referrals. It also includes follow-ups.
2. Unprogrammed Related. Inspections of employers on multi-employer worksites other than those identified as exposing employers in the complaint, accident report, referral, etc., even if the employees of the unprogrammed related employers are exposed to the same conditions listed in the complaint, accident report referral, etc.
3. Programmed. Inspections of worksites which have been scheduled based upon objective or neutral selection criteria are programmed. The worksites are selected according to national scheduling plans of safety and for health or special emphasis programs.
4. Programmed Related. Inspections of employers on multi-employer worksites whose activities were not included in the programmed assignment; e.g., a low injury rate employer at a worksite where programmed inspections are being conducted for all high injury rate employers. All high rate employers at the worksite shall normally be included in the programmed inspections. (See Chapter III, D.3.h.(1).)
5. Scope Inspections, either programmed or unprogrammed, may fall into one of three categories depending upon the scope of the inspection:
a. Comprehensive. A complete walkaround inspection of the entire establishment with the exception of areas which are clearly low-hazard areas, such as an office area.
b. Partial. An inspection wherein the walkaround was limited to certain areas, operations, or conditions at the establishment and did not include all potentially hazardous areas or an inspection where only recordkeeping violations were investigated. The reason for the limitation does not affect the classification of the inspection as partial.
c. Records Only Inspection. A safety inspection normally limited to an examination of the establishment's injury and/or illness records, an evaluation of compliance with the hazard communication standard, a general review of safety and health management programs at the establishment, and a partial walkaround.
(1) Citations may be issued on records only inspection for 29 CFR 1904 recordkeeping violations (but not for posting violations) and for violations of 29 CFR 1910.1200 If any additional citations are to be issued the inspections shall be classified as partial.
(2) Citations of the hazard communication standard may be issued even if employee interviews are required to determine compliance with 29 CFR 1910.1200(h). Compliance with 29 CFR 1910.1200(f) shall b assessed during the partial walkaround.
(3) If violations of any other standard are observed in plain view and citations are to be issued, such inspection is to be classified as partial.
NOTE: Health inspections cannot be classified as records only inspections; consequently, such inspections shall always be classified as either comprehensive or as partial.
C. Inspection Selection Criteria.
1. General Requirements. OSHA's priority system for conducting inspections is designed to distribute available OSHA resources as effectively as possible to ensure that maximum feasible protection is provided to working the men and women of this country.
a. Scheduling. The Area Director shall ensure that inspections are scheduled within the framework of the priorities outlined in this chapter, that they are consistent with the objective of the agency, and that appropriate documentation of scheduling practices is maintained. (See OSHA Instruction CPL 2.5ID for current congressional exemptions and limitations on OSHA inspection activity.)
b. Effect of Contest. . . . .
2. Employer Contacts. Contacts for information initiated by employers or their representatives shall not trigger an inspection. Nor shall such employer inquiries protect them against regular inspections conducted pursuant to guidelines established by the agency. Further, if an employer or his representative indicates that an imminent danger exists or that a fatality has occurred, the Area Director shall act in accordance with established inspection priority procedures.
D. Inspection Priorities.
1. Order of Priority. Unless otherwise noted in particular cases, priority of accom-plishment and assignment of manpower resources for inspection categories shall be as follows:
First Imminent Danger
Second Fatality/Catastrophe Investigations
Third Investigation of Complaints/Referrals
Fourth Programmed Inspections
2. Efficient Use of Resources. Unprogrammed inspections normally shall be scheduled and conducted prior to programmed inspections. For efficient use of resources, or when Agency objectives so dictate, programmed inspections may occasionally receive a higher priority than unprogrammed inspections. Fro example, a programmed inspection may be conducted during the response period for a formal other-than-serious complaint.
E. Inspection Scheduling.
1. Unprogrammed Inspections. Those inspections conducted in response to specific evidence of hazardous conditions at a worksite are considered unprogrammed inspections.
a. General. Unprogrammed inspections (excluding follow-up and monitoring) shall normally be scheduled with the following priorities:
(1) Reports of alleged imminent danger situations from any source, including referrals and complaints regardless of formality;
(3) Formal serious complaints and CSHO referrals, and referrals from other safety and health agencies, classified as serious;
(4) Media and employer reports of accidents involving serious injuries or hazards of a serious nature (Chapter IX, B.2.b.(5) and (6));
(5) 11(c) nonformal complaint referrals (Chapter IX, B.2.b.(3));
(6) Formal other-than-serious complaints;
(7) Nonformal complaints requiring an inspection.
b. Follow-up Inspections. In cases where a follow-up inspection is necessary, it shall be conducted as promptly as resources permit.
(1) Follow-up Inspection Priority. Except in unusual circumstances, follow-up inspections shall be conducted no later than 10 working days after the latest violation abatement date and shall take priority over all programmed inspections and any unprogrammed inspection with hazards evaluated as other-than-serious. The seriousness of the hazards requiring abatement shall determine the priority among follow-up inspections.
(2) Required Follow-up Inspections. The number of follow-up inspections (excluding monitoring inspections) conducted in a fiscal year may be as much as 10 percent of the total number of inspections. Follow-up inspections are normally required in the following situations:
(a) Willful, repeated and high gravity serious violations;
(b) Failure to abate notifications;
(c) Citations related to an imminent danger situation;
(d) When the employer fails to respond to a request for notification of abatement action by letter or other means after having be contacted several times; and
(e) Whenever the Area Director believes that particular circumstances (e.g., the number and/or type of violations, past history of the employer, complex engineering controls, etc.) indicate the need for a follow-up.
NOTE: See Chapter III, D.9.b.(7)(a) and E.4.
(3) Exceptions to Required Follow-up Inspections. It will not be necessary to conduct a follow-up inspection if any of the following applies:
(a) Unquestionable Proof of Abatement. . . . .
(b) Area Director Determination. . . . .
(c) Administrative Closing of Case File. . . . .
(4) Multiple Abatement Dates. If a follow-up inspection is to be conducted where an employer has been cited for a number of violations with varying abatement dates, the follow-up inspection normally shall not be scheduled until after most, if not all, of the abatement dates set forth for the more serious violations in the citation(s) have passed. If satisfactory corrective action has been taken by the employer, additional follow-up activity normally shall not be scheduled unless the Area Director believes that complex engineering controls or other special factors involved in the case warrant such activity.
(e) Contested Cases. The scheduling of follow-up inspections will be affected in various ways by potential or actual employer contests, depending upon the status of the Notice of Contest.
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c. Monitoring Inspections. Monitoring Inspections are conducted for many reasons.
(1) Monitoring visits shall be conducted for each petition for modification of abatement date on serious, willful and repeated violations which extends the final abatement date by more than one year from the citation issuance date.
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(2) Monitoring visits in responses to PMAs for other-than-serious violations or for serious, willful or repeated violations which would result sin a final abatement date of one year or less from the citation issuance date shall be scheduled at the discretion of the Area Director, based on the gravity of the violation and on resource availability.
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(3) Monitoring visits shall be scheduled to check on progress made on long-term or multi-step abatement plans whenever abatement dates extend beyond one year from the issuance date of the citation.
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(4) Monitoring visits may also be made for other reasons, as outlined in Chapter III, I.1.
d. Reinspection Referrals. Once a determination is made that a reinspection referral is required, based on the definition in Chapter IX, B.2.b.(1)(c), the inspection shall be conducted in accordance with the priorities given in E.1.a. after determining that the previous citation has become a final order.
2. Programmed Inspections. A programmed inspection generally is a comprehensive inspection of the worksite but may be limited as necessary in view of resource availability and other enforcement priorities. (Low hazard areas, such as office space, may be excluded from inspection without affecting the comprehensiveness of the inspection.)
a. General. Certain considerations are fundamental to the implementation of OSHA's targeting system.
(1) Policy. It is OSHA policy that inspections conducted as programmed inspections be primarily in the "high hazard" sectors of employment.
(a) In the area of safety, the agency considers a "high rate" industry to be one within a Standard Industrial Classification (SIC) code having an occupational injury incidence rate equal to or higher than the lowest average attained over the last 5 years within private sector industry as a whole as published by the Bureau of Labor Statistics (BLS).
(b) In the area of health, the agency considers a "high hazard" industry to be one with a previous history of serious OSHA health citations.
(c) For the purpose of scheduling programmed inspections, high rate general industry, construction and maritime are all considered to be categories of high hazard employment.
(d) Other specific industries, such as oil and gas extraction, are also high hazard industries and are frequently scheduled for inspection as special emphasis programs.
(2) Description. Both programmed safety inspections and programmed health inspections are scheduled based upon a multiple-step process.
(a) The initial selection of a particular category of employment (e.g., Federal Agency, high rate general industry, construction, maritime, target health) is made in accordance with current agency policy with actual numbers of planned inspections taken from the annual Field Operations Program Plan projections made at the Area Office level, reviewed at the Regional and National Office levels and approved by the Assistant Secretary.
(b) Within a category, establishments are selected for inspection from the Lost Time Claims Rate List or the SIC List for that category and placed in an inspection cycle. For Federal Agencies, a list of targeted establishments will be supplied by the National Office after consultations with the Regional Administrator and the agency DASHO. (See Chapter (XIII.) For General Industry safety and health categories, establishment lists will ordinarily be provided by the National Office for each SIC and corrected as necessary by the Area Offices. For Construction, worksite lists will be provided to each Area Office, together with appropriate Dodge slips, as contracted for by the National Office through the University of Tennessee -- Construction Resources Analysis Department.
(c) Where no list is provided by the National Office (e.g., maritime category), the Area Director shall compile an establishment (worksite) list considering all establishments (worksites) within the area and using the best available information (manufacturing directories, commercial telephone listings, local knowledge, etc.).
(d) Within an inspection cycle, establishments may be inspected in any order that makes efficient use of resources; but all establishments in a cycle must be inspected, with only limited exceptions, before a new cycle is begun. (See E.w.b.(1)(e)1.
b. Guidelines and Procedures. Programmed inspections shall be conducted jointly by both safety and health personnel whenever resources are available and it is likely, based on experience in inspecting similar workplaces, that both safety hazards and health hazards exist to a significant degree. If an inspection is begun as safety only or as health only but the CSHO determines during the course of the inspection that it should be expanded, the CSHO shall contact the supervisor. A decision will then be made on the basis of the information available whether the inspection should be expanded and, if so, to what extent. A decision may also be made, based on resource availability, to handle the information as a CSHO referral for inspection at a later time.
NOTE: Establishments which appear on both the safety and health inspection registers should be scheduled for a joint safety/health inspection whenever practicable. (See E.2.b.(1)(e)1g.)
(1) Inspection Scheduling for General Industry (Safety & Health). The following procedures are to be adhered to in programming General Industry safety and health inspections.
NOTE: Federal Agency Program targeted inspections and onsite evaluations have a priority at least equal to that of private sector general industry programmed inspections. The scheduling system for these inspections is outlined in Chapter XIII.
(a) Industry Rank Report. The National Office shall provide each Area/District Office with a Statewide Industry Rank Report (SIC List), listing industries by their 4-digit Standard Industrial Classification (SIC) code where available. (See OSHA Instruction CPL 2.25G.)
1) The Safety SIC Lists are statewide listings of:
a) Manufacturing industries within SIC codes with lost workday injury (LWDI) rates equal to or higher than the lowest BLS published national average for all private sector industry for the last 5 years ranked in order of their LWDI rate (the High Rate SIC List).
b) Manufacturing industries within SIC codes with LWDI rates below the lowest BLS published national average for all private sector industry for the last 5 years ranked in order of their LWDI rate (the Low Rate SIC List).
c) Non-manufacturing industries selected from within SIC codes 4000 through 89000 ranked in order of LWDI rate (the Non-manufacturing SIC List). This list will not be provided to the Area Offices. Instead establishment elections shall be made randomly by the National Office.
2) The Health SIC List is a statewide listing of industries within SIC codes with a previous history of serious OSHA health violations.
(b) Establishment Lists. The National Office will also provide a series of establishment lists for use by the Area Office in programming inspections.
NOTE: Establishments showing 10 or fewer employees will have been deleted from establishment lists provided by the National Office.
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(c) Inspection Register. The Area Office inspection registers shall be made up by determining which establishments on the several establishment lists are to be scheduled for inspection during the current fiscal year.
1) To determine the safety register, take the sum of the number of General Industry safety inspections and the number of records inspections projected on the OSHA-146 Form for the fiscal year and double it.
2) To determine the health register, take the number of General Industry health inspections projected on the OSHA-146 Form for the fiscal year and double it.
3) The OSHA-146 projection is doubled because it is estimated that 5 percent of the establishments scheduled for inspection may not be actually inspected. For example, the establishment may have 10 or fewer employees, may no longer be in business or may otherwise be exempt from inspection.
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4) The resulting number will be the total number of establishments selected from the various revised establishment lists to form the safety and the health inspection registers.
a) The Safety Inspection Register shall consist of the following elements:
ï Five percent of the total number of projected programmed high rate safety inspections (OSHA-146, line 15) to be conducted shall be randomly selected from the Low Rate Establishment List;
ï Five percent of the total number of projected programmed high rate safety inspections to be conducted shall be scheduled from the Non-manufacturing Establishment List;
NOTE: The number for Low Rate and Non-manufacturing establishments is not doubled.
ï The number of safety inspections remaining on the register (See E.2.b.(1)(c)1.) shall be selected in rank order from the High Rate Establishment List.
b) The Health Inspection Register shall consist of establish-ments selected in rank order from the Health Establishment List.
(d) Inspection Cycles. The inspection registers of establishments to be inspected during the fiscal year shall be divided into two cycles, each consisting of one-half of the total number of establishments contained within each element on the register. The first half shall be designated as cycle one and the remaining half as cycle two.
(e) Inspection Scheduling. Within a cycle establishments may be scheduled and inspected in any order that make efficient user of available resources.
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(f) Deletions and Additions. Once the inspection cycle itself begins, the following policy shall guide additions and deletions.
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(g) Establishment Records Inspection During Inspections. Calculation of establishment lost workday injury (LWDI) rates shall be performed in accordance with the following principles:
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(h) Low Rate and Non-manufacturing Establishment Lists. Establishments selected from the Low Rate or the Non-manufacturing Establishment Lists in accordance with E.2.b.(1)(c)4a shall receive a records review in accordance with Chapter III, D.4. If the establishment's LWDI rate is below the currently utilized national average rate for non-manufacturing no walkaround inspection shall be conducted, subject to the exceptions in Chapter III, D.4.b.(2). If the establishment's LWDI rate is at or above the currently utilized national average rate for non-manufacturing, a comprehensive inspection normally shall be conducted.
(2) Inspection Scheduling for Construction. Due to the mobility of the construction industry, the transitory nature of construction worksite and the fact that construction worksites frequently involve more than one construction employer, inspections shall be scheduled from a list of construction worksites rather than construction employers.
(a) Inspection List. OSHA has contracted with the University of Tennessee's Construction Resource Analysis Department (UTenn-CRA) to provide computer-generated inspection lists to the Area Offices. UTenn-CRA will receive the information contained in Dodge Reports of Construction Potentials, and will generate monthly for each Area Office a randomly selected construction inspection list based upon:
1) Counties located with Area Office boundaries;
2) Estimated number of worksite inspections to be conducted during the monthly scheduling period (based on the number of construction inspections projected on the OSHA-146 Form); and
3) The Area Office's stated selection criteria, which shall have been determined by the Area Director based upon local conditions, approved by the Regional Administrator and provided to UTenn-CRA for entry into the computer. . . . .
(b) Dodge Slips. UTenn-CRA will also order the appropriate Dodge slips, corresponding to the sites on the list selected by the computer, for each Area Office.
(c) Limitation on Frequency of Selection. Normally no site shall be selected for inspection more frequently than once per trimester. Therefore, UTenn-CRA will remove from its computer files any project selected for an inspection list for a period of 4 months and reenter it in the fifth month if it is still active.
(d) Scheduling Cycle. The scheduling period (cycle) for construction inspections shall be one calender month. Each month, each Area Office will receive its programmed construction inspection list from UTenn-CRA. Within the following 10 tens days it will receive the Dodge slips corresponding to the sites on the inspection list.
1 All sites on the inspection list shall be inspected, in any order that makes efficient use of resources. . . . .
(e) Completion of Inspection List. By the middle of each cycle, the Area Director shall assess progress in inspecting all sites on the list in order to plan resources for the following cycles.
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(f) Carryovers. Worksites on one inspections list may be carried over to the next cycle only under the following circumstances:
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(g) Area Director Administration of Inspection List. The Area Director shall be responsible for maintaining documentation of the construction inspection list and for ensuring that selection criteria are current and appropriate.
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(h) Health Construction Inspections. No separate scheduling method is applied for programmed construction health inspections. Rather the Area Director shall determine which construction inspections are to be conducted as a joint inspection where serious health hazards are likely to exist at the worksite. However, a local emphasis plan may be submitted and approved for scheduling health construction inspections.
(3) Inspection Scheduling for Maritime. The maritime industry is made up of several industrial activities and, due to the unique differences among the industries, several scheduling methods are necessary. Consequently, maritime inspections shall be scheduled either as local emphasis programs as outlined in E.2.b.(4) or as follows:
(a) Maritime Industries Scheduled With General Industry Inspections. All fixed maritime (shipyard) establishments listed on the safety or health SIC Lists for each Area Office shall be scheduled and inspected with General Industry as outlined in E.2.b.(1).
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(b) Maritime Inspections Scheduled With Construction. Maritime construction shall be scheduled with other construction inspections as outlined in E.2.b.(2).
(c) Water Transportation Services (Longshoring, Marine Terminals, Voyage Repair). Because of differences in conducting water transportation services operations in a large port, where for example, many stevedores generally conduct longshoring operations, and on rivers and other waterways, where loading and unloading by a single employer is generally involved,water transportation services inspections may be scheduled either by port areas or by employer.
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(4) Special Emphasis Programs. Special Emphasis Programs provide for programmed inspections in high potential injury or illness situations which are not covered by the scheduling systems outlined in the preceding subsections of E.2.b. or, if covered, are not addressed to the extent considered adequate under specific circumstances present. Special Emphasis programs may also be used to set up alternative scheduling procedures or other departures from national procedures. They include National Emphasis Programs and Local Emphasis Programs.
(a) Description. The description of, and reasons for, specific National Emphasis Programs will be set forth in appropriate instructions or notices as the occasion arises. Local Emphasis Programs may be developed by the Area Office or by the Regional Office, depending on the matter addressed. Such programs shall be submitted for approval to the Director of Compliance Programs, through the Regional Administrator. Approval shall be granted on a fiscal year basis and must be resubmitted for approval annually.
1) The subject matter of the particular Special Emphasis Program shall be identified by one or more of the following:
a) Specific industry;
d) Type of workplace operation;
e) Type/kind of equipment;
f) Other identifying characteristic.
2) The scope of a Special Emphasis Program shall be described and may be limited by geographic boundaries, size of worksite or similar considerations.
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(b) Scheduling Inspections. The following guidelines shall apply in scheduling Special Emphasis Program inspections:
1) Certain Special Emphasis Programs identify the specific worksites and/or industries that will be inspected; therefore, the only action remaining to be taken is the scheduling of inspections.
2) Other Special Emphasis Programs identify only the subject matter of the program and contemplate that not all worksites within the program will necessarily be inspected.
3) If no special worksites are identified within the program, the Regional Administrator or Area Director shall use available information to compile a worksite list.
4) Where no procedures for scheduling worksites for inspection are specified by the National Office, the Regional Administrator or Area Director shall develop such procedures. The procedures set forth in E.2.b.(2) for scheduling construction inspections may be used for scheduling worksites within Special Emphasis Programs. Scheduling procedures other than those those specified in E.2.b(2) shall be submitted for approval to the Director of Compliance Program through the Regional Administrator.
(c) Program Evaluation. Agency policy currently requires the Regional Administrator to evaluate any special emphasis program approved for inspection within the Region. This evaluation shall consist in a report of the program's success in accomplishing its identified goals. Every program submitted for approval shall contain a program evaluation element.
(5) Other Special Programs. The agency may develop programs to cover special categories of inspections which are not "high hazard" or "high rate" inspections and thus not covered under the planning guide or under Special Emphasis Programs. Currently migrant farmworker camp inspections have been designated as such a program.
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F. Exemptions and Limitations. Congress may place exemptions and limitations on OSHA activities through the annual Appropriations Act. Refer to current OSHA Instructions for guidelines on how to apply current exemptions and limitations to compliance programming. (See OSHA Instruction CPL.251d.)
Chapter III. GENERAL INSPECTION PROCEDURES
A. CSHO Responsibilities
1. The primary responsibility of the Compliance Safety and Health Officer (CSHO) is to carry out the mandate given to the Secretary of Labor, namely, "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions..." To accomplish this mandate the Occupational Safety and Health Administration employs a wide variety of programs and initiatives, one of which is enforcement of standards through the conduct of effective inspections to determine whether employers are:
a. Furnishing places of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to their employees, and
b. Complying with safety and health standards and regulations promulgated under the Act.
2. The conduct of effective inspections requires identification, professional evaluation and accurate reporting of safety and health conditions and practices. Inspections may vary considerably in scope and detail, depending upon the circumstances in each case.
1. General Planning. It is most important that the CSHO spend an adequate amount of time preparing for an inspection.
a. CSHOs shall plan individual work schedules in advance in coordination with their supervisor reflecting the priorities in Chapter II.
b. Data available at the area Office shall be reviewed for information relevant to the establishments scheduled for inspection. These may include inspection files, other establishment files and reference materials. When CSHOs need additional information concerning the type of industry to be inspected, the supervisor shall be consulted.
2. Pre-inspection Planning. Due to the wide variety of industries and associated hazards likely to be encountered, pre-inspection preparation is essential to the conduct of a quality inspection. The CSHO together with the supervisor shall carefully review:
a. All pertinent information contained in the establishment file and appropriate reference sources to become knowledgeable in the potential hazards and industrial processes that may be encountered and shall identify the personal protective equipment necessary for protection against these anticipated hazards.
b. Appropriate standards and sampling methods and, based on experience and information on file concerning the establishment, shall select the instruments and equipment that will be needed for the inspection and prepare them according to the standard methods of sampling and calibration.
3. Pre-inspection Compulsory Process. 29 CFR 1903.4 authorizes the agency to seek a warrant in advance of an attempted inspection if circumstances are such that "pre-inspection process (is) desirable or necessary." The Act authorizes the agency to issue administrative subpoenas to obtain necessary evidence with no time restrictions.
a. Although agency policy is generally not to seek warrants without evidence that the employer is likely to refuse entry, the Regional Administrator may, on a case-by-case basis, authorize the Area Director to seek compulsory process in advance of an attempt to inspect or investigate whenever circumstances indicate the desirability of such warrants.
NOTE: Examples of such circumstances would be evidence of being denied entry in previous inspections, or awareness that a job will only last a short time or that job processes will be changing rapidly.
b. Administrative subpoenas may also be issued prior to any attempt to contact the employer or other person for evidence related to an OSHA inspection or investigation.
4. Inspection Material and Equipment. The CSHO shall have all report forms and handouts available and in sufficient quantities to conduct the inspection and all assigned personal protective equipment available for use and in serviceable condition.
a. If, based on the pre-inspection review or upon facts discovered at the worksite, a need for unassigned personal protective equipment is identified, the supervisor shall ensure that any required equipment is provided. Prior to the inspection, the supervisor shall ensure that the CSHO has been trained in the uses and limitations of such equipment.
b. Unless an exception is authorized by the supervisor because of the nature of the worksite (e.g., a worksite where no overhead hazards, no eye hazards and/or no foot hazards are likely to be present), approved hardhats, approved safety glasses with permanently or rigidly attached side shields and approved safety shoes shall be worn by CSHOs on the walk-around phase of all inspections. This will set an example for industry and provide minimum acceptable protection for the CSHO.
c. Inspections involving the use of negative pressure respirators shall not be assigned without the CSHOs having had an adequate quantitative fit test within the last year. Since respirators with tight-fitting facepieces require the skin to be clean shaven at the points where sealing occurs, CSHOs assigned to conduct inspections which involve the use of such respirators shall not have interfering facial hair.
d. If there is a need for special or additional inspection equipment,the supervisor shall be consulted to ensure that training in the use and limitation of such equipment has been accomplished prior to the inspection. The supervisor shall ensure that a review or recheck in the use of all equipment is given to the CSHO at least once a year.
5. Expert Assistance. The Area Director shall arrange through the Regional Administrator for a specialist from within OSHA to assist in an inspection or investigation when the need for such expertise is identified. If OSHA specialists are not available, or when otherwise desirable, the Regional Administrator shall arrange for the procurement of the services of qualified consultants. For further details on the selection of experts, see Chapter VIII,D.2.
a. Expert assistance may be necessary during inspections for the implementation of engineering or administrative controls involving, but not limited to, noise, air contaminants, complicated machine guarding and construction.
b. OSHA specialists may accompany the CSHO or perform their tasks separately. Outside consultants must be accompanied by a CSHO. OSHA specialists and outside consultants shall be briefed on the purpose of the inspection and personal protective equipment to be utilized.
c. All data, conclusions and recommendations from the assigned specialists shall be made part of the inspection report, including information on any resultant actions.
6. Safety and Health Rules of the Employer. 29 CFR 1903.7(c) requires that the CSHO comply with all safety and health rules and practices at the establishment and wear or use the safety clothing or protective equipment required by OSHA standards or by the employer for the protection of employees.
7. Immunization and Other Special Entrance Requirements. Many pharmaceutical firms, medical research laboratories and hospitals have areas which have special entrance requirements. These requirements may include proof of up-to-date immunization and the use of respirators, special clothing or other protective devices or equipment.
a. The CSHO will not enter any area where special entrance restriction apply until the required precautions have been taken. It shall be ascertained prior to inspection, if possible, if an establishment has areas with immunization or other special entrance requirements. If the supervisor and CSHO cannot make a determination through consultation, the Area Director or supervisor may telephone the establishment using the following procedures. Such communication will NOT be considered advance notice. (See 29 CFR 1903.6 and C of this chapter if advance notice is to be given.)
(1) Telephone as far in advance of the proposed inspection date as possible so the employer cannot determine a time relationship between the communication and a possible future inspection.
(2) State the purpose of the inquiry and that an inspection may be scheduled in the future. DO NOT GIVE A SPECIFIC DATE.
(3) Determine the type of immunization(s) and/or special precautions required and the building or area which has restricted access.
b. If immunization is required, the supervisor shall ensure that the inspecting CSHO has the proper immunization and that any required incubation or waiting period is met prior to the inspection. Those immunizations necessary to complete inspections will be provided by the Region. (See D.8.e.(2) for procedures to follow if immunization areas are initially identified during walk-around.)
8. Personal Security Clearance. Some establishments have areas which contain material or processes which contain material or processes which are classified by the U.S. Government in the interest of national security. Whenever an inspection is scheduled for an establishment containing classified areas, the supervisor shall assign a CSHO who has the appropriate security clearances. The Regional Administrator shall ensure that an adequate number of CSHOs with appropriate security clearances are available within the Region.
a. Clearance Procedures. Appropriate U.S. Department or agency security clearance, such as those required by the Department of Defense (DoD) or the Department of Energy (DoE) may be required both at civilian establishments with Government contracts requiring security areas and at Government installations that have civilian contractor operations.
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b. Employer Resistance. For work-sites with limited areas subject to DoD security regulations, where the CSHO does not have the necessary clearance requirements, the employer shall be asked to immediately contact the cognizant DoD Regional Industrial Security Office and shall make arrangements which allow the CSHO to complete the investigation or inspection without breaching security requirements. Resistance to CSHOs with the proper clearances which can be telephonically checked shall constitute an unwarranted resistance and shall be immediately brought to the attention of the Area Director.
c. Classified Information and Trade Secrets. Any classified information and/or personal knowledge of such information by OSHA personnel shall be handled in accordance with the regulation of the responsible agency. The collection of such information, and the number of exposed personnel shall be limited to the minimum necessary for the conduct of such compliance activities.
C. Advance Notice of Inspections.
1. Policy. Section 17(f) of the Act and 29 CFR 1903.6 contain a general prohibition against the giving of advance notice of inspections, except as authorized by the Secretary or the Secretary's designees.
a. The Occupational Safety and Health Act regulates many conditions which are subject to speedy alteration and disguise by employers. To forestall such changes in worksite conditions, the act, in Section 4(a), prohibits unauthorized advance notice and authorizes OSHA to enter work-sites "without delay" in order to preserve the element of surprise.
b. There may be occasions when advance notice is necessary to conduct an effective investigation. These occasions are narrow exceptions to the statutory prohibition against advance notice.
c. Advance notice of inspections may be given only in the following situations:
(1) In cases of apparent imminent danger to enable the employer to correct the danger as quickly as possible;
(2) When the inspection can most effectively be conducted after regular business hours or when special preparations are necessary;
(3) To ensure the presence of employer and employee representatives or other appropriate personnel who, as determined by the Area Director, are needed to aid in the inspection; and
(4) When the area Director determines that giving advance notice would enhance the probability of an effective and thorough inspection; e.g., in complex fatality investigations.
d. Advance notice exists whenever the Area Director sets up a specific date or time with the employer for the CSHO to begin an inspection, or to continue an inspection that was interrupted or delayed more than 5 working days as described in C.1.d.(3). It generally does not include nonspecific indications of potential future inspections.
(1) Although advance notice normally does not exist after the CSHO has arrived at the worksite, presented credentials and announced the inspection, many causes can serve to delay or interrupt the continued conduct of the inspection. For example, the employer representative on site may request a delay of entry pending the return of the president or some other higher ranking official, or sampling may have to be delayed for some reason after completion of the initial walk-around.
(a) Such delays shall be as short as possible. If an employer's (or an employee's) representative request for delay appears reasonable, the CSHO may delay or interrupt the inspection for up to an hour. The supervisor shall be contacted if the delay lasts or is anticipated to last longer than one hour.
(b) The supervisor shall decide whether the circumstances justify a delay of more than one hour and, if so, for how long. If the delay appears reasonable, the inspection may be delayed or interrupted for the time judged necessary, but in no case for longer than 5 working days except as indicated in C.1.d.(3).
(c) In cases where screening sampling is performed and laboratory analysis of the samples is required, there shall be no more than 5 working days between receipt of screening results and the onset of full shift sampling.
(d) The inspection shall be resumed as soon as reasonably possible. Delays or interruptions of less than 5 working days shall not require implementation of advance notice procedures.
(2) If the employer or the employee representative requests a delay which the supervisor believes is unreasonable or without sufficient justification (e.g., too long, not in good faith) or if the delay requested is for more than 5 working days except as indicated in C.1.d.(3), the CSHO shall inform the requester that agency policy does not allow for such a delay. If the employer representative continues to insist on the delay, the situation shall be treated as a refusal of entry and shall be handled in accordance with the procedures in D.1.d.(1).
(3) In unusual circumstances, the Area Director may decide that a delay of more than 5 working days is necessary; e.g., the process to be sampled may not be activated within that time or compliance personnel may not be available in the Area Office because of higher priority demands. Any situation involving a delay of more than 5 working days, whatever the justification, shall be handled as advance notice and must be approved by the Area Director. . . .
. . . .
2. Procedures. In the situations described in C.1.c. and d.(3), advance notice may be given by the CSHO only after authorization by the Area Director. In cases of apparent imminent danger, however, advance notice may be given by the CSHO without such authorization if the Area Director is not immediately available. The Area Director shall be notified as soon as possible and kept apprised of all details.
. . . . .
D. Conduct of the Inspection.
1. Entry of the Workplace. The CSHO shall enter the establishment to be inspected with an attitude reflecting a professional, balanced, and thorough concern for safety and health.
a. Time of inspection. Inspections shall be made during regular hours of the establishment except when special circumstances indicate otherwise. The supervisor shall be contacted before entry during other than normal working hours.
b. Severe Weather Conditions. If severe weather conditions encountered during an inspection cause workplace activities to shut down, the inspection shall be continued at a later time as soon as weather permits.
(1) If work continues during adverse weather conditions but the CSHO decides that the weather interferes with the effectiveness of the inspection, it shall be terminated and continued when conditions improve.
(2) If work continues and the CSHO decides to continue the inspection in spite of bad weather, hazardous conditions created by the weather shall be noted since they may be the subject of later citation.
c. Presenting Credentials. At the beginning of the inspection the CSHO shall attempt to locate the owner, operator or agent in charge at the workplace and present credentials. On construction sites this will most often be the representative of the general contractor. In the following circumstances, the CSHO shall:
(1) When the person in charge is not present at the beginning of the inspection, identify the top management official. This person may be the foreman, leadman, gang boss or senior member of the crew.
(2) When neither the person in charge nor a management official is present, contact the employer by telephone and request the presence of the owner, operator or management official. The inspection shall not be delayed unreasonable to await the arrival of the employer representative. This delay shall not normally exceed one hour.
(3) If the person in charge at the workplace cannot be determined by (1) and (2) above, record the extent of the inquiry in the case file and proceed with the physical inspection after contacting the supervisor. If the person in charge arrives during the inspection,an abbreviated opening conference shall be held, and the person shall be informed of the status of the inspection and included in the continued walk-around.
(4) When an inspection is scheduled for a military base or other Federal facility, first contact the base commander and/or other government person in charge to inform him or her of OSHA's presence on the facility, to request permission to inspect a contractor and to invite appropriate participation.
(5) On multi-employer sites ask the superintendent, project manager or other representative of the general or prime contractor to identify the subcontractors or other contractors on the site together with the names of the individuals in charge of their operations.
(a) The CSHO shall then request that these individuals be contacted and asked to assemble in the general contractor's office or other suitable location, together with their employee representatives, if any.
(b) The inspection shall not be postponed or unreasonably delayed because of the unavailability of one or more representatives.
(c) If a Federal contracting agency representative is on-site, the general contractor shall be asked to contact the representative, advising him or her of the inspection and extending an invitation to attend the opening conference and to participate in the inspection.
d. Refusal to Permit Inspection. Section 8 of the Act provides that CSHOs may enter without delay and at reasonable times any establishment covered under the Act for the purpose of conducting an inspection. An employer has a right to require that the CSHO seek an inspection warrant prior to entering an establishment and may refuse entry without such a warrant.
NOTE: On a military base or other Federal government facility, the following guidelines do not apply. Instead, a representative of the controlling authority shall be informed of the contractor's refusal and asked to take appropriate action to obtain cooperation.
(1) Refusal of Entry or Inspection. The CSHO shall not engage in argument concerning refusal. When the employer refuses to permit entry upon being presented proper credentials or allows entry but then refuses to permit or hinders the inspection in some way, a tactful attempt shall be made to obtain as much information as possible about the establishment. (See D.1.d.(5)(b)7 for the information the CSHO shall attempt to obtain.)
(a) If the employer refuses to allow an inspection of the establishment to proceed, the CSHO shall leave the premises and immediately report the refusal to the supervisor. The Area Director shall notify the Regional Administrator.
(b) If the employer raises no objection to the inspection of portions of the workplace, the CSHO, after informing the supervisor of the partial refusal, shall normally continue the inspection, confining it to the portions concerning which the employer has raised no objections.
(c) In either case the CSHO shall advise the employer that the refusal will be reported to the supervisor and that the agency may take further action, including obtaining legal process.
(2) Questionable Refusal. When permission to enter or inspect is not clearly given, the CSHO shall make an effort to clarify the employer's intent.
(a) If there is doubt as to whether the employer intends to permit an inspection, the CSHO shall not proceed but shall contact the supervisor immediately. When the employer's intent is clarified, the CSHO shall either conduct the inspection or proceed as outlined in D.1.d.(1).
(b) When the employer hesitates or leaves for a period of time so that permission is not clearly given within one hour of initial entry, the CSHO shall contact the supervisor, who shall decide whether or not permission is being refused.
1) The CSHO may answer reasonable questions presented by the employer; e.g., the scope of the inspection,purpose, anticipated length.
2) The CSHO shall avoid giving any impression of unyielding insistence or intimidation concerning the right to inspect.
(c) If it becomes clear that the employer is refusing permission to enter, the CSHO shall leave the establishment and contact the supervisor.
(3) Employer Interference. Where entry has been allowed but the employer interferes with or limits any important aspect of the inspection, the CSHO shall immediately contact the supervisor for instruction on whether or not to consider this action as a refusal. Examples of interference are refusals to permit the walk-around, the examination of records essential to the inspection, the taking of essential photographs, the inspection of a particular part of the premises, indispensable employee interviews, or the refusal to allow attachment of sampling devices.
(4) Administrative Subpoena. Whenever there is a reasonable need for records, documents, testimony and/or other supporting evidence necessary for completing an inspection scheduled in accordance with any current and approved inspection scheduling system or an investigation of any matter properly falling within the statutory authority of the agency, the Regional Administrator may issue an administrative subpoena. (For medical records, however, see D.7.a(4).)
(a) If an employer refuses to provide requested information,the CSHO shall explain the reason for the request. If he/she still refuses to produce the information requested, the CSHO shall inform the employer that the refusal will be reported to the supervisor and that the agency may take further legal action.
(b) Upon receipt of notification of an employer's refusal,the Area Director shall consult with the Regional Solicitor for legal guidance. If an administrative subpoena appears to be indicated, a subpoena shall be prepared for the Regional Administrator's signature. The draft subpoena, together with written supportive documentation shall be forwarded as soon as practicable to the Regional Administrator.
(c) The Regional Administrator shall evaluate the documentation and decide whether to issue a subpoena. In cases with potential national implications, the Director, Office of Field Programs, shall be contacted for concurrence.
(d) If the Regional Administrator, after consultation with the Regional Solicitor, believes that the subpoena should be issued, he/she shall sign it and forward the signed document to the Area Director or other local supervisor for service.
(e) Upon receipt, the subpoena shall be prepared for service on the appropriate party. It shall normally be served by personal service. In exceptional circumstances service may be by certified mail with return receipt requested.
(f) The employer shall be informed that he is legally bound to honor the subpoena by making the requested information or testimony available to the CSHO.
(g) The employer may comply with the subpoena by making this material available immediately to the CSHO upon service. He may also comply by contacting the Area Director and arranging for an acceptable method of delivery of the required documents or by mailing them to the Area Office.
(h) Arrangements for compliance with the subpoena must be made prior to the date for production of the documents if such a date is indicated on the subpoena document. The Area Director shall not normally allow more than 5 days beyond the date for production (or the date of service) to produce the required information.
(i) If the employer honors the subpoena, the inspection or other investigation shall proceed as usual.
(j) If the employer refuses to honor the subpoena, the Area Director shall proceed as usual for cases involving a refusal of entry and shall refer the matter, through the Regional Administrator, to the Regional Solicitor for appropriate action.
(5) Obtaining Compulsory Process. If it is determined, upon refusal of entry or upon refusal to produce required evidence, that a warrant will be sought, the Area Director shall proceed according to guidelines and procedures established in the Region for warrant application.
(a) With the approval of the Regional Administrator and the Regional Solicitor, the Area Director may initiate the compulsory process.
(b) If the warrant is to be obtained by the Regional Solicitor, the Area Director shall transmit in writing to the Regional Solicitor, within 48 hours after the determination is made that compulsory process (warrant) is necessary, the following information:
1) Area/District Office, telephone number (FTS), and the name of supervisor involved.
2 Name of CSHO attempting inspection and inspection number, if assigned. Identify whether inspections to be conducted included safety items, health items or both.
3) Legal name of establishment and address including city, State and country. Include site location if different form mailing address.
4) Estimated number of employees at inspection site.
5) SIC Code and high hazard ranking for that specific industry within the State as obtained from statistics provided by the National Office.
6) Summary of all facts leading to the refusal of entry or limitation of inspection, including the following:
a Date and time of entry.
b Date and time of denial.
c Stage of denial (entry, opening conference,walk-around, etc.)
7) Narrative of all actions taken by the CSHO leading up to, during and after refusal including, as a minimum,the following information:
a Full name and title of the person to whom CSHO presented credentials.
b Full name and title of person(s) who refused entry.
c Reasons stated for the denial by person(s) refusing entry.
d Response, if any, by CSHO to c above.
e Name and address of witnesses to denial of entry.
8) All previous inspection information, including copies of the previous citations.
9) Previous requests for warrants. Attach details, if applicable.
10) As much of the current inspection report as has been completed.
11) If a construction site involving work under contract from any agency of the Federal Government, the name of the agency, the date of the contract, and the type of work involved.
12) Other pertinent information such as description of the workplace; the work process; machinery, tools, and materials used; known hazards and injuries associated with the specific manufacturing process or industry.
13) Investigate techniques which will be required during the proposed inspection; e.g., personal sampling,photographs, examination of records, access to medical records, etc.
14) The specific reasons for the selection of this establishment for the inspection including proposed scope of the inspection and the rationale:
a) Imminent danger.
ï Description of alleged imminent danger situation.
ï Date received and source of information.
ï Original allegation and copy of typed report, including basis for reasonable expectation of death or serious physical harm and immediacy of danger.
ï Whether all current imminent danger processing procedures have been strictly followed.
ï Type of accident--fatality, catastrophe.
ï Method of accident notification--telephone, news media (attach copy of report), employee representative, other.
ï Number of employees involved--fatalities, injuries, number hospitalized.
ï Original complaint and copy of typed complaint.
ï Reasonable grounds for believing that a violation that threatens physical harm or imminent danger exists, including standards that could be violated if the complaint is true and accurate.
ï Whether all current complaint processing procedures have been strictly followed.
ï Additional information gathered pertaining to complaint evaluation.
ï Original referral and copy of completed Referral Form, OSHA-90.
ï Specific description of the hazards observed and the potential injury or illness that may result from the specific hazards.
ï Number of employees affected by the specific hazards.
ï Corroborative information or other supporting material to demonstrate potential existence of a hazard and employee exposure, if known.
ï Whether all current referral processing procedures have been strictly followed.
ï Additional information gathered pertaining to referral evaluation.
ï High rate safety--general industry, maritime, construction.
ï Targeted health.
ï Special emphasis program--SpecialPrograms, local Emphasis Program, Migrant Housing Inspection, etc.
ï Date of initial inspection.
ï Details and reasons follow-up was to be conducted.
ï Copies of previous citations on the basis of which the follow-up was initiated.
ï Copies of settlement stipulations and final orders, if appropriate.
ï Previous history of failure to correct, if any.
ï Date of Original inspection.
ï Details and reasons monitoring inspection was to be conducted.
ï Copies of previous citations on the basis of which the monitoring inspection was initiated.
ï PMA request, if applicable.
(6) Compulsory Process. When a court order or warrant is obtained requiring an employer to allow an inspection, the CSHO is authorized to conduct the inspection in accordance with the provisions of the court order or warrant. All questions from the employer concerning reasonableness of any aspect of an inspection conducted pursuant to compulsory process shall be referred to the Area Director.
(7) Action to be Taken Upon Receipt of Compulsory Process. The inspection will normally begin within 24 hours of receipt of compulsory process or of the date authorized by compulsory process for the initial of the inspection.
(a) The CSHO shall serve a copy of the compulsory process on the employer and make a separate notation as to the time, place, name and job title of the individual served.
(b) The compulsory process may have a space for a return of service entry by the CSHO in which the exact dates of the inspection made pursuant to the compulsory process are to be entered. Upon completion of the inspection, the CSHO will complete the return of service on the original compulsory process, sign and forward it to the supervisor for appropriate action.
(c) If physical resistance or interference by the employer is anticipated, the Area Director shall notify the Regional Administrator; and appropriate action shall be determined.
(8) Refused Entry or Interference With a Compulsory Process. When an apparent refusal to permit entry or inspection is encountered upon presenting the compulsory process, the CSHO shall specifically inquire whether the employer is refusing to comply with the compulsory process.
(a) If the employer refuses to comply or if consent is not clearly given (for example, the employer expresses an objection of the inspection), the CSHO shall not attempt to conduct the inspection but shall leave the premises and contact the supervisor concerning further action. The CSHO shall make notations (including all possible witnesses to the refusal or interference) and fully report all relevant facts.
(b) The Area Director shall contact both the Regional Administrator and the Regional Solicitor, either orally or in writing, as appropriate, concerning the refusal to comply or the inference.
(c) The Regional Administrator, jointly with the Regional Solicitor, shall decide what further action shall be taken.
e. Forcible Interference with Conduct of Inspection or Other Official Duties. It is a Federal criminal offence to kill "any officer or employee... of the Department of Labor assigned to perform investigate, inspection or law enforcement functions, while engaged in the performance of his official duties."
(1) Agency Response. Whenever an OSHA official or employee encounters forcible resistance, opposition, interference, etc., or is assaulted or threatened with assault while engaged in the performance of official duties, all investigative activity shall cease.
(a) The supervisor shall be advised by the most expeditious means.
(b) Upon receiving a report of such forcible interference, the Area Director or designee shall immediately notify the Regional Administrator.
(2) Types of Interference. Although the employer is legally entitled to refuse permission to conduct an inspection without a warrant, the Act does not permit forcible conduct against the CSHO. The following illustrates the type of forcible conduct which shall be immediately reported to the supervisor:
(a) Anyone physically holding, grabbing, pushing, shoving, or in any way limiting the official's or employee's freedom of action or choice of action is included.
(b) Anyone striking, kicking, or in any way inflicting or attempting to inflict injury, pain or shock on the official or employee. The threat of such actions is included as is oral abuse which menaces or causes concern for the official's or employee's safety.
(c) Anyone assaulting or threatening the official or employee with a weapon of any kind. The handling or display of weapons in a menacing manner is included.
f. Release for Entry. The CSHO shall not sign any form or release or agree to any waiver. This includes any employer forms concerned with trade secret information.
(1) If the employer requires that a release be signed before entering the establishment, the CSHO shall inform the employer of the Secretary's authority under Section 8(a) of the Act. If the employer still insists on the signing of a release, the CSHO shall suspend the inspection and report the matter promptly to the supervisor who shall decide if the situation is to be treated as a refusal of entry.
(2) The CSHO may sign a visitor's register, plant pass, or any other book or form used by the establishment to control the entry and movement of persons upon its premises. Such signature shall not constitute any form of a release or waiver of prosecution or liability under the Act.
(3) In case of any doubt, the CSHO shall consult the supervisor before signing any document.
g. Bankrupt or Out of Business. If the establishment scheduled for inspection is found to have ceased business and there is no known successor, the CSHO shall report the facts to the supervisor. If an employer, although adjudicated bankrupt, is continuing to operate on the date of the scheduled inspection the inspection shall proceed. An employer must comply with the Act until the day the business actually ceases to operate.
h. Strike or Labor Dispute. Plants or establishments may be inspected regardless of the existence of labor disputes involving work stoppages, strikes or picketing. If the CSHO identifies an unanticipated labor dispute at a proposed inspection site, the supervisor shall be consulted before any contact is made.
(1) Programmed Inspections. As a rule, programmed inspections will be deferred during a strike or labor dispute, either between a recognized union and the employer or between two unions competing for bargaining rights in the establishment.
(2) Unprogrammed Inspections. As a rule, unprogrammed inspections (complaints, fatalities, etc.) will be performed during strikes or labor disputes. However, the seriousness and reliability of any complaint shall be thoroughly investigated by the supervisor prior to scheduling an inspection to ensure as far as possible that the complaint reflects a good faith belief that a true hazard exists and is not merely an attempt to harass the employer or to gain a bargaining advantage for labor. If there is a picket line at the establishment, the CSHO shall inform the appropriate union official of the reason for the inspection prior to initiating the inspection.
i. No Inspection. If a scheduled inspection cannot be conducted, the CSHO shall document the reasons for not conducting the inspection, and shall include the names of persons contacted on the OSHA-1A form to be included in the case file.
2. Employee Participation. CSHOs shall determine as soon as possible after arrival whether the employees at the worksite to be inspected are represented and, if so, shall ensure that employee representatives are afforded the opportunity to participate in all phases of the workplace inspection. If an employer resists or interferes with participation by employee representatives in an inspection and this cannot be resolved by the CSHO, the employer shall be informed of the right of the employee representative to participate. Continued resistance by the employer shall be construed as a refusal to permit the inspection and the supervisor shall be contacted in accordance with D.1.d.(1).
NOTE: For the purpose of this chapter, the term "employee representative" refers to (1) a representative of the certified or recognized bargaining agent, or if none, (2) an employee member of a safety and health committee who has been chosen by the employees (employee committee members or employees at large) as their OSHA representative, or (3) an individual employee who has been selected as the walk-around representative by the employees of the establishment.
3. Opening Conference. The CSHO shall inform the employer of the purpose of the inspection and shall obtain the employer's consent to include participation of an employee representative, as defined in D.2, when appropriate. The opening conference shall be kept as brief as possible, normally not to exceed one hour. Conditions of the worksite shall be noted upon arrival as well as any changes which may occur during the opening conference. Pursuant to 29 CFR 1903.8, the employer and the employee representatives shall be informed of the opportunity to participate in the physical inspection of the workplace.
NOTE: An abbreviated opening conference shall be conducted whenever the CSHO believes that the circumstances at the worksite dictate that the walk-around begin as promptly as possible. In such cases the opening conference shall be limited to the bare essentials; namely, identification purpose of the visit, and a request for employer and employee representatives. The other elements shall be fully addressed in the closing conference.
a. Purpose of the Inspection. The employer shall be informed as to the reason for the inspection as follows:
(1) Imminent Danger Situations. When responding to an alleged imminent danger situation, the CSHO is required to get to the location of the alleged hazard(s) as quickly as possible. Under these circumstances, an expedited opening conference shall be conducted by limiting activities to presenting credentials and explaining the nature, scope and purpose of the inspection.
(a) Potential safety and health hazards that may be encountered during the inspection shall be identified and appropriate steps taken to provide for personal protection.
(b) The presence of employer and employee representatives shall be requested; however, the inspection shall not be unreasonably delayed to await their arrival.
(c) The employer shall be advised that, because of the abbreviated nature of the opening conference, there will be a more extensive discussion at the closing conference.
(d) Unreasonable delays shall be reported immediately to the supervisor.
(2) Fatality/Catastrophe Investigations. The employer shall be informed that an investigation will be conducted and extensive interviews with witnesses will be necessary. The purpose of an accident investigation shall be explained, namely, to determine:
(a) The cause of the accident.
(b) Whether a violation of OSHA safety or health standards related to the accident occurred.
(c) What effect the standard violation had on the occurrence of the accident.
(d) If OSHA standards should be revised to correct the hazardous working condition that led to the accident.
(3) Complaint Investigations. For a complaint investigation, the CSHO shall provide a copy of the complaint(s) to the employer and the employee representatives at the beginning of the opening conference.
(4) Referral Investigations. During the opening conference of a referral investigation, the CSHO shall inform the employer that the investigation is a result of a referral (e.g., from another agency, from a previous OSHA inspection or in response to specific evidence of probable violations at a worksite).
(5) Records Review. In any inspection where a records review is to be performed to determine whether a comprehensive safety inspection of the workplace will be conducted, the CSHO either shall hold an abbreviated opening conference prior to the records inspection (safety) or shall cover the records review procedures during the regular opening conference (health) The conference shall include:
(a) Explaining the procedures for selecting an establishment and for determining whether it will be subject to a comprehensive safety inspection based on its lost workday injury case rate or on random selection or to a partial inspection based on indications of existing safety problems;and that in any case the inspection will include a review of the establishment's compliance with any applicable provisions of the Hazard Communication Standard and a brief plant tour reviewing the employer's overall safety and health management program, focusing on any high hazard areas.
(b) Providing the employer and the employee representatives, at the conclusion of this discussion, with a letter confirming these procedures and with a copy of the "Record keeping Requirements" booklet.
NOTE: If a comprehensive or partial safety inspection is to be conducted after the records review, a complete opening conference shall be conducted prior to the inspection.
b. Health Inspections. During a health inspection or, as appropriate, during a safety inspection when evaluating potential health hazards, the CSHO shall provide the employer with a copy of the letter explaining the procedures for selecting an establishment for a health inspection and shall include in the opening conference the following additional procedures:
(1) Request process flow charts and plant layouts relevant to the inspection. If the plant layout and process flow charts are not available, sketch a plant layout as necessary during the course of the initial walk-around, identifying the operations and the relative dimensions of the work area. Distribution of major process equipment, including engineering controls in use, shall also be included on the sketch.
(2) Make a brief examination of all workplace records pertinent to the inspection.
(a) If detailed review is necessary, the CSHO may wish to proceed with the initial walk-around and return later to examine the records more thoroughly.
(b) Many valuable insights can be obtained from an examination of required and other records (e.g., symptomatology which may relate to workplace exposure, frequency of injuries or illnesses, dermatitis, personal protective equipment usage, monitoring data, audiometric test results, ventilation tests, process flow charts and a list of hazardous raw, intermediate,and final product materials) to ensure a more effective inspection and such an examination shall not be omitted if it can be done.
(c) In some plants, sampling for obvious health hazards can be initiated soon after the opening conference. Details of the walk-around can be accomplished while collecting the samples.
c. Attendance At Opening Conference. The CSHO shall conduct a joint opening conference or separate conferences as follows:
(1) Joint Conference. Whenever practicable, a joint opening conference shall be held with the employer and the employee representatives (if there is an employee representative as defined in D.2. of this chapter).
(2) Separate Conferences. Where either party chooses not to have a joint conference, separate conferences shall be held for the employer and the employee representatives. A written summary of each conference shall be made and attached to the case file. A copy of the written summaries will be available from the Area Director upon request by the employer or the employee representative. Where it is determined that separate conferences will unacceptably delay observation or evaluation of the workplace safety or health hazards, each conference shall be brief, and if appropriate, reconvened after the inspection of the alleged hazards.
d. Scope. The CSHO shall outline in general terms the scope of the investigation, including private employee interviews, physical inspections of the workplace and records, possible referrals, discrimination complaints, and the closing conference(s).
e. Handouts and Additional Items. During the opening conference of every inspection (including records inspections), the CSHO shall provide:
(1) The employer representatives with copies of the OSHA poster and with blank OSHA-200 Forms, a copy of the standards as well as other applicable laws and regulations, and informational handouts and materials. The CSHO shall also inform the employer representatives of procedures for obtaining additional copies of any materials of which the CSHO may not have a sufficient quantity on hand.
(2) The employee representatives with a copy of the standards, upon request, as well as other applicable laws and regulations, and informational handouts and materials. The CSHO shall also inform them that additional copies and other materials can be obtained from the local Area or District number on hand. The employee representatives shall be given an opportunity to read the brief introductory material before the inspection begins.
f. Program Mix. The CSHO shall briefly indicate that OSHA shares the employer's goal of reducing workplace injuries and illnesses, that the agency is developing a variety of different cooperative approaches which are designed to assist the employer in achieving this goal, and that a more detailed discussion will take place during the closing conference.
g. Forms Completion. The CSHO shall obtain available information for the OSHA-1 and other appropriate forms and complete applicable sections during the opening conference.
h. Employees of Other Employers. During the opening conference, the CSHO shall determine whether the employees of any other employers are working at the establishment.
(1) If there are such employees and any questions arise as to whether their employers should be included in the inspection, the CSHO shall contact the supervisor to ascertain whether additional inspections shall be conducted and what limitations there may be to such inspection activity.
(a) All high rate employers potentially present at any scheduled worksite normally shall be included within the scope of the inspection, except as indicated in (b) and (c) below. Thus, for example, all construction contractors working at a manufacturing establishment scheduled for inspection are to be included in the inspection assignment.
(b) When, however, the criteria given in Chapter IX,B.2.b.(1)(d), are met, a CSHO referral may be made and an inspection conducted under guidelines outlined in Chapter IX.
(c) When a construction operation is too large to be efficiently handled during the inspection of the programmed manufacturing establishment, the operation shall be treated as a referral for inspection at a later time, in accordance with Chapter IX, B.
(2) If additional inspections are authorized, both employer and employee representatives of the other employers shall be invited to the opening conference. The inspection shall not be delayed to wait for these employer or employee representatives longer than would be reasonably necessary for either to arrive.
(3) If the site is a multi-employer site, such as construction, the CSHO shall determine during the opening conference who is responsible for providing common services available to all employees on site; e.g., sanitation, first aid, handrails, etc. It shall be pointed out to all contractors that, apart from any arrangements that may have been made, each employer remains responsible for his or her own employees.
i. Voluntary Compliance Programs. Employers who participate in selected voluntary compliance programs may be exempted form programmed inspections. The CSHO shall determine, in accordance with the following guidelines,whether the employer falls under such an exemption during the opening conference.
. . . .
j. Other Opening Conference Topics. The CSHO shall determine at the beginning of the opening conference:
(1) Legislative Limitations. Whether or not the employer is covered by any of the exemptions or limitations noted in the current Appropriations Act (See OSHA Instruction CPL 2.51D.) or in Chapter II.
(2) Employer Name. What the correct legal name of the employer is, what type of legal entity is it, and whether it is a subsidiary of any other business entity.
(3) Coverage. What facts show that the employer is covered under the Act; i.e., that the operations conducted at the worksite to be inspected affect interstate commerce.
(4) Trade Secrets. Whether the employer wishes to identify areas in the establishment which contain or might reveal trade secrets. If trade secrets are identified, the CSHO will explain that OSHA is required by law to preserve the confidentiality of all information which might reveal a trade secret in accordance with 29 CFR 1903.9.(See D.8.e(1) for further instructions.)
(5) Photographs. Whether the employer has any objection to taking photographs as permitted by 29 CFR 1903.7(b). If the employer does object, the CSHO shall immediately notify the supervisor in accordance with D.1.d.(3).
(6) Potential Hazards. Whether there are any safety and health hazards to which the walk-around party may be exposed during the inspection. The CSHO shall ensure that all members of the inspection party are advised as to the appropriate personal protective equipment that is required based on this information.
4. Records Review. A records review for the purpose of calculating the establishment's lost workday injury (LWDI) rate shall be conducted for all inspections (safety or health), including those for which an administrative subpoena and/or warrant is being served, whether the inspection is programmed or unprogrammed. This procedure applied if the establishment is within an industry whose SIC code is on the Safety SIC List currently used for scheduling General Industry inspections or if the establishment is listed on the Low Rate Establishment List or Non-manufacturing Establishment List for the current fiscal year. An LWDI rate need not be calculated for an establishment if one has already been calculated for an establishment during the current calendar year or if the establishment meets one of the deletion criteria for a safety inspection listed in Chapter II, E.2.b.(1)(b)5b.
a. Procedures for Determining Lost Workday Injury (LWDI) Rate. During or immediately following the opening conference, the CSHO shall request the injury and employment data described in D.4.a.(3) and (4) for use in calculating the establishment's LWDI rate. The CSHO shall advise the employer of the provisions of Section 17(g) of the Act; i.e., whoever knowingly makes any false statement, representation, or certification in any record required by the Act is subject to a fine of not more than$10,000, or by imprisonment for not more than 6 months, or both. The employer shall be given a reasonable amount of time to gather the information requested (See, however, C.1.d.(1)(a).
. . . .
b. Interpretation of Establishment LWDI Rate. The LWDI rate calculated for the establishment shall be compared to the lowest national rate for manufacturing published by BLS over the past 5 years (BLS rate). The CSHO shall determine the scope of the inspection according to the following criteria:
(1) LWDI Rate Below the National Rate for Manufacturing. If the calculated LWDI rate is below the BLS rate, a comprehensive safety inspection normally shall not be conducted. (See, however,D.7.a.(2). and D.7.c.)
(a) The results of the records review, including the calculated LWDI rate, shall be given to both employer and the employee representatives.
(b) If there is no employee representative at a worksite where a comprehensive safety inspection will not be conducted due to a low LWDI rate, the employer shall be asked to post a form letter for the employees' information for at least 3 working days.
(2) Exception. There may be occasions for unprogrammed inspections as well as for programmed inspections scheduled from one of the Safety SIC Lists when a comprehensive or a partial inspection may be conducted even when the establishment's LWDI rate is below the BLS rate.
. . . .
5. Walk-around Representatives. Those representatives designated to accompany the CSHO during the walk-around are considered walk-around representatives.
a. Employer Representatives. Anyone designated by the employer as a representative is acceptable. In cases of isolated or remote locations,the senior supervisor, foreman, gang boss or head technician on-site at the time of inspection is the employer representative. Subject to the guidelines given in D.6.e, every reasonable effort shall be made to afford general walk-around rights to every employer representative on a multi-employer worksite.
b. Employee Representatives. Subject to the guidelines in D.6.e, one or more employee representatives shall be given an opportunity to accompany the CSHO during the walk-around phase of the inspection to provide appropriate involvement of employees in the physical inspection of their own places of employment and to give them an opportunity to point out hazardous conditions. 29 CFR 1903.8(b) gives the CSHO authority to resolve disputes as to who represents the employees for walk-around purposes. The following guidelines shall be utilized for determining employee representatives:
(1) Employees Represented by a Certified or Recognized Bargaining Agent. During the opening conference, the highest ranking union official or union employee representative shall designate who will participate in the walk-around.
(2) Safety Committee. The employee members of an established plant safety committee or the employees at large may have designated an employee representative for OSHA inspection purposes or agreed to accept as their representative the employee designated by the committee to accompany the CSHO during an OSHA inspection.
(3) No Certified or Recognized Bargaining Agent. Where employees are not represented by an authorized representative, where there is no established safety committee, or where employees have not chosen or agreed to an employee representative for OSHA inspection purposes whether or not there is a safety committee, the CSHO shall determine if any other employees would suitably represent the interests of employees on the walk-around.
(a) If selection of such employee representatives is impractical, the inspection shall be conducted without an accompanying employee representative; and the CSHO shall consult with a reasonable number of employees during the walk-around in accordance with the provisions of 29 CFR 1903.8 and Section 8(e) of the Act.
(b) Employees selected for interviewing shall include individuals judged knowledgeable about the area or process being inspected.
6. Special Situations.
a. Preemption by Another Agency. Section 4(b)(1) states that the OSHAct does not apply to working conditions over which other Federal agencies exercise statutory responsibility. The determination of preemption by another Federal agency is in many cases a highly complex matter. To preclude as much as possible any misunderstanding with other agencies and to avoid consequent adverse actions by employers (or agencies) the Area Director shall observe the following guidelines whenever a situation arises involving a possible preemption of jurisdiction question:
(1) The Area Director shall be alert to potential conflicts with other agencies at all times. If a question arises, usually upon receipt of a complaint, referral, or other inquiry, the OSHA Directives System shall be consulted immediately to determine if the issue has been addressed there in a Memorandum of Understanding or other agreement with the agency involved.
(2) If not, the Area Director shall consult with the Regional Administrator who shall provide clarification of the issue after consulting with the Regional Solicitor, if appropriate, or with the other Federal agency's local or Regional Office.
NOTE: Routine contact with other Federal agencies at the local and regional levels is highly desirable where Section 4(b)(1) issues may arise. Regional Administrators and Area Directors shall maintain active liaison with their counterparts in other agencies to ensure full cooperation in the event a situation requires clarification.
(3) If the Regional Office is unable to clarify the issue, it shall be referred to the Director, Office of Field Programs.
(4) At times an inspection may have already begun when the Section 4(b)(1) question arises. In such cases the CSHO shall interrupt the inspection and contact the supervisor for guidance.
(5) If, following an inspection, there remains any doubt as to OSHA coverage, the proposed citation and penalty shall be cleared with the Regional Administrator, and if necessary, the Director of Compliance Programs, prior to issuance.
(6) If it is determined that OSHA does not have jurisdiction, the case shall be referred to the appropriate agency if there is reason to believe that violations may exist.
b. Labor Relations Disputes. The CSHO shall not become involved in labor relations disputes either between a recognized union and the employer or between two or more unions competing for bargaining rights. However, if there is a recognized union, the highest ranking official available will designate the authorized walk-around representative even though another union may be seeking recognition.
c. Expired Collective Bargaining Agreement. When a union contract has expired, the CSHO shall assume that the incumbent union remains as the bargaining agent unless that union is decertified, officially replaced, or has abandoned bargaining agent status.
d. Employee Representatives Not Employees of the Employer. Walk-around representatives authorized by employees will usually be employees of the employer. If, however, a non-employee (union official, industrial hygienist, safety engineer, or other experienced safety of health person)is designated by the employees as their representative to accompany the CSHO during the inspection, such a person normally shall be accorded walk-around rights consistent with 29 CFR 1903.8(c). Questionable circumstances, including delays of more that one hour, shall be referred to the supervisor. A non-employee representative shall be cautioned by the CSHO not to discuss matters pertaining to operations of the employer during the inspection.
e. More Than One Representative. At establishments where more that one employer is present or in situations where groups of employees have different representatives, it is acceptable to have a different employer/employee representative for different phases of the inspection. More than one employer and/or employee representative may accompany the CSHO throughout or during any phase of an inspection if the CSHO determines that such additional representatives will aid and not interfere with the inspection (29 CFR 1093.8(a)).
(1) Whenever appropriate to avoid a large group, the CSHO shall encourage multiple employers to agree upon and choose a limited number of representatives for walk-around accompaniment purposes. If necessary, during the inspection, employer representatives not on the walk-around shall be contacted to participate in particular phases of the inspection.
(2) As an alternative, the CSHO shall divide a multi-employer inspection into separate phases; e.g., excavation, steel erection,mechanical, electrical, etc., and encourage different employer representatives to participate in different phases, as appropriate.
(3) The same principles shall govern the selection of employee representatives when several are involved.
f. Disruptive Conduct. The CSHO may deny the right of accompaniment to any person whose conduct interferes with a full and orderly inspection (29CFR 1903.8(d)). If disruption or interference occurs, the CSHO shall use professional judgement as to whether to suspend the walk-around or take other action. The supervisor shall be consulted if the walk-around is suspended. The employee representative shall be advised that during the inspection matters unrelated to the inspection shall not be discussed with employees.
g. Trade Secrets. The CSHO shall ascertain from the employer if the employee representative is authorized to enter any trade secret area(s). If not, the CSHO shall consult with a reasonable number of employees who work in the area (20 CFR 1903.9 (d)).
h. Classified Areas. In areas containing information classified by an agency of the U.S. Government in the interest of national security, only persons authorized to have access to such information may accompany a CSHO(29 CFR 1903.8(d)). The CSHO must also have the proper security clearances to enter these areas.
i. Apparent Violations Observed Prior to the Walk-around. When an apparent violation is observed by the CSHO prior to the walk-around, it shall be noted. All such apparent violations shall be rechecked during the walk-around and cited if appropriate. When possible, serious violations shall be rechecked and documented immediately at the commencement of the walk-around.
j. Use of Tape Recorders. The use of tape recorders during the required conferences may inhibit the free exchange of information, and care shall be exercised in their use. Tape recorders may be used by the CSHO only after authorization by the supervisor.
(1) The use of tape recorders may be authorized whenever circumstances justify it, such as where there is conflicting evidence indicating that the preservation of statements is advisable or where securing signed statements from affected employees will delay the expeditious completion of the investigation.
(2) The tape recorder shall not be used in locations where it maybe hazardous.
(3) If the employer, employer representative, affected employees,or any other witnesses object to recording their statements during any part of the investigation, the inspection shall be continued without the tape recorder.
7. Inspection of Records and Posting. Every inspection of an employer required to keep injury and illness records, including follow-up inspections, shall include an examination and verification of such records. Examination of other records and of the posting requirements shall be performed as appropriate in accordance with current procedures.
NOTE: For unprogrammed inspections (including follow-up inspections) at an establishment where a records review has already been performed during the current calendar year, the CSHO need only review the illness and injury records since the last inspections. The OSHA-200 data need not be entered on the OSHA-1 unless:
1) The OSHA-200 data was not available at the time of the last inspection but has now become available; or
2) The calendar year has changed since the last inspection an new OSHA-200 data is available.
a. Records. The CSHO shall comply with the records review procedures that follow for all inspections, programmed or unprogrammed, of employers required to keep the records in question. Findings shall be documented in the case file.
(1) Injury and Illness Records. Irrespective of the establishment's LWDI rate, all injury and illness records required by 29 CFR 1904 (if not already reviewed during the records review)shall be examined. Medical and first aid records may also be reviewed under a written medical access order as described in D.4.a(4)(b) 1.
NOTE: The CSHO shall not request access to the Bureau of Labor Statistics survey questionnaire (OSHA-200S) or even ask if the employer has participated in the survey program.
(2) Hazard Communication. For all safety and health inspections,regardless of the LWDI rate, the CSHO shall determine if the employer is covered by the hazard communication standard. If so,the CSHO shall ensure that the applicable requirements of 29 CFR1910.1200 have been met and that the program is effective. (See OSHA Instruction CPL 2-2.38B.) This shall be done even if the establishment LWDI rate is below the BLS average. Citations for violations of the standard shall be issued in accordance with the provisions of Chapter II, B.5.c. To ensure that the employer has an effective hazard communication program, the following shall be performed:
(a) The CSHO shall confirm his/her analysis regarding recordkeeping and training by conducting employee interviews and documenting their responses in the case file.
(b) The CSHO shall conduct a brief tour of the facility to confirm compliance with the following elements of the hazard communication standard:
1) The existence of a written hazard communication program.
2) The required list of hazardous chemicals.
3) The existence of and reliance upon hazard determination procedures.
4) The existence and availability of material safety data sheets in the work area.
5) In plant and shipped container labeling programs.
6) The effectiveness of required training.
(3) Access to Employee Exposure and Medical Records. During all health inspections and safety inspections when designated by the supervisor, whatever the LWDI rate, the CSHO shall determine if applicable exposure and medical records are being maintained in accordance with the medical surveillance recordkeeping requirements of applicable standards or of 29 CFR 1910.20. CSHO access to the employee medical records is authorized under 29 CFR 1913.10(b)(4)for the limited purpose of verifying employer compliance with those requirements. Review of the content of such medical records may require a written access order or express employee consent. (See OSHA Instructions CPL 2-2.32 and CPL 2-2.33.)
(4) Other Records. Any other records which fall within the scope of the inspection and which are related directly to the purpose of the inspection (29 CFR 1903.3(a)) shall be examined. These may include, but are not limited to:
(a) Required certification records properly completed and any available equipment inspection and maintenance records;
(b) Medical surveillance or monitoring records, employee exposure records and other medical records not falling under D.7.a.(3).
NOTE: Whenever circumstances indicate or whenever assigned by their supervisors, adequately cross-trained CSHOs conducting a safety inspection shall also conduct a survey of records required by various health standards to be maintained by the employer. These required records may be evaluated by the CSHO at the site or may be copied for examination by the health staff.
(c) Safety committee minutes; checklists; records of inspections conducted by plant safety and health committees,insurance companies, or consultants; if voluntarily supplied by the employer.
(d) Variance documentation.
b. Posting. The CSHO shall determine if posting requirements are met in accordance with 29 CFR 1903 and 29 CFR 1904. These include, but are not limited to:
(1) OSHA poster informing employees of their rights and obligations under the Act.
(2) Log and Summary of Occupational Injuries and Illnesses during the month of February.
(3) Current citations, if any.
(4) Petitions for Modification of Abatement Date (PMAs).
c. Additional Information to Supplement Records Review. It is OSHA policy that all safety and health inspections, including an entry into and survey of the workplace. The information gathered during this survey will supplement the records review and serve to confirm or revise the determination as to whether the inspection's scope should be expanded.
(1) Accordingly, for all safety and health inspections, regardless of the LWDI rate, the CSHO shall review the employer's overall safety and health management program and specific programs such as those related to personal protective equipment and respiratory protection to evaluate their effectiveness and identify deficiencies.
(2) This review shall include a brief survey of the workplace,focusing on any high hazard areas. This survey will normally be conducted in conjunction with the tour of the facility to assess hazard communication compliance described at A.7.a.(2)(b).
(3) The inspection shall be expanded to either a partial or a comprehensive inspection, following consultation with the Area Director, based on the following factors.
(a) Lack of a comprehensive safety and health management program. (See D.8.a.(2) and Chapter III Appendix,"Narrative," B.18.)
(b) Significant deficiencies in specific programs such as respiratory protection programs, hazard communication, wire rope inspection for cranes, and fire protection programs.
(c) Serious violations of safety and health standards uncovered during the plant tour.
(d) Concentrations of injuries or illnesses in specific areas of the plant.
(e) Significant past history of serious safety and health violations at the plant.
(4) If it is determined to expand the inspection to either a partial or comprehensive inspection, the employer shall be immediately so notified.
(5) Observed violations shall be documented and cited appropriately. The scope of the inspection as recorded on the OSHA-1 shall be "records only" UNLESS citations are issued for violations of standards OTHER THAN 29 CFR 1904 or 29 CFR 1910.1200.
8. Walk-around Inspection. The main purpose of the walk-around is to identify potential safety and/or hazards in the workplace. The CSHO shall conduct the inspection in such a manner as to eliminate unnecessary personal exposure to hazards and to minimize unavoidable personal exposure to the extent possible.
a. General Procedures. It is essential during the walk-around portion of every inspection for the CSHO to:
(1) Become familiar with plant processes, collect information on hazards, observe employees' activities and interview them as appropriate.
(a) For health inspections, a preliminary tour of the establishment normally shall be accompanied before any decision to conduct an in-depth industrial hygiene investigation.
(b) Such a preliminary walk-around shall survey existing engineering controls and collect screening samples, when appropriate, to determine the need for full-scale sampling.
1) If screening reveals potentially high exposure levels, a comprehensive health inspection shall be conducted.
2) If screening samples must be sent to the laboratory for analysis, the employer shall be so informed.
a) If the laboratory results show that potentially high employee exposure levels exist,full-scale sampling of the potentially hazardous areas will be conducted.
(2) Evaluate the employer's safety and health program (whether written or not) as follows:
(a) By ascertaining the degree to which the employer is aware of potential hazards present in the workplace and the methods in use to control them;
1 What plans and schedules does the employer have to institute, upgrade and maintain engineering and administrative controls.
(b) By determining employee knowledge of any hazards which exist in the establishment; the extent to which the employer's program covers the precautions to be taken by employees actually or potentially exposed to plant hazards; emergency procedures and inspection schedules for emergency personal protective equipment; the program for the selection, use and maintenance of routine personal protective equipment; and the overall quality and extent of the educational and training program and the degree of employee participation in it.
1) Compliance with the training requirements of any applicable safety and/or health standard shall be determined.
2) The following specific elements of the establishment safety and health program shall be evaluated in the detail appropriate to the circumstances of the inspection:
a) Comprehensiveness. Evaluate the degree to which the employer's safety and health program addresses the full range of hazards normally encountered in the employer's operations. This is an overall evaluation and shall take into account the evaluations of the remaining categories. Indicate whether the program is written.
b) Communication. Evaluate the employees' awareness of and access to the safety and health program, taking into account the principal means by which the program is communicated to them(e.g., oral instructions, booklets, memorandums,posters, etc.) Consider whether safety meetings are held by the employer, their frequency and the persons conducting them (e.g., crew foremen,intermediate level supervisors, safety director,etc.). The effectiveness of these means shall be considered in the evaluation.
c) Enforcement. Evaluate the degree to which safety and health rules are actually enforced,taking into account the principal method used(e.g., warnings, written reprimands, disciplinary action, discharge, etc.) and the effectiveness of the staff's performance.
d) Safety/Health Training Program. Evaluate separately any safety and health training programs the employer has. Factors to be considered include the need for special training in view of the hazards likely to be encountered or of specific requirements for such training and the need for ongoing or periodic training or retraining of employees.
e) Investigations. Evaluate the employer's efforts to make accident/injury/illness investigations and indicate whether adequate corrective and preventative actions are taken asa result.
(3) Record all facts pertinent to an apparent violation on the appropriate compliance worksheets. Apparent violations shall be brought to the attention of employer and employee representatives at the time they are documented.
(a) All notes, observations, analysis, and other information shall be either recorded on the worksheet or attached to it.
1) Because this documentation is required for each instance of an alleged violation, the CSHO shall normally use one worksheet to describe each instance as it is noted.
2) If identical violations of the same standard or of several related standards are noted in one general location in the establishment and if the documentation is essentially the same, all of those violations may be treated as a single instance description and only one worksheet need be completed for that instance.
3) Photographs, sketches, and descriptions that are attached to the worksheet are part of the inspection record and shall be noted on the form. The original field notes, as a basic documentation of the violation,shall be attached to the worksheet and retained in the case file.
(b) The CSHO shall provide as much detailed information as practical to establish the specific characteristics of each violation as follows:
1) Describe the observed hazardous conditions or practices (i.e., the facts which constitute a hazardous condition, operation or practice and the essential facts as to how and/or why a standard is allegedly violated). Specifically identify the hazards to which employees have been or could be exposed. Describe the type of accident which the violated standard was designed to prevent in this situation, or note the name and exposure level of any contaminant or harmful physical agent to which employees are, have been or could be exposed. If more than one type of accident or exposure could reasonably be predicted to occur, describe the one which would result in the most serious injury or illness. For the type of accident described, include:
a) All factors about the violative condition which could significantly affect the nature and severity of the resulting injuries (e.g., "fall of 20 feet onto protruding rebar"; "fall into water-filled evacuation").
b) Other factors which could affect the probability that an injury would occur, such as:
ï Proximity of the workers to the point of danger of the operation.
ï Stress producing characteristics of the operation (e.g., speed, heat,repetitiveness, noise, position of employee).
c) For contaminants and physical agents, any additional facts which clarify the nature of employee exposure.
d) The identification of the equipment and process which pose the hazards; i.e., serial numbers, equipment types, trade names,manufacturers, etc. Include a sketch when appropriate.
e) The specific location of the violation;e.g.:
ï Building No. 3, second floor, column no.6.
ï Machine Shop, N.E. corner, Department 12.
ï Foundry, N.W. corner, shakeout area.
f) State the nature of the more serious types of injury or illness which it is reasonably predictable could result form the accident or health exposure.
ï Thus, the entry for the "fall from 20 feet onto protruding rebar" might read "death from multiple injuries." For exposure to asbestos, the entry might read "asbestosis, cancer and death."
ï Broad categories of injuries and health effects (such as "electric shock," "burns,"or "lacerations") shall be qualified to indicate whether the injuries or health effects are major or minor.
ï In identifying the illnesses which a standard regulating exposure to an air contaminant or harmful physical agent is designed to prevent in a particular worksite, it may be necessary to consider not only the level of exposure but also the frequency and duration of exposure to the contaminant or agent.
g) Evaluate the probability of an injury and explain the selection of probability and severity factors.
h) Any specific measurements taken during the inspection (e.g., "20 ft. distance from top of scaffold platform to ground level"; "employee standing 2 ft. from unguarded floor edge";"employee seated 2 ft. from source of metal fumes") which will further document the nature of the hazardous conditions and operations.
ï Describe how measurements were taken during the inspection.
ï Identify the measuring techniques and equipment used and those who were present;i.e., employee or employer representative who observed the measurements being taken.
ï Include calibration dates and description of calibration procedures used, if appropriate.
i) Exposure facts so as to present a picture of employee exposure to the hazard for each particular occupation, including:
ï The occupation and the employer of the exposed employees if the employer is different from the one on the corresponding OSHA-1.
ï The number of exposed employees in that occupation.
ï The length of time that the alleged violation has existed.
ï The duration and frequency that the employees are exposed (e.g., 2 hrs./wk).
ï The name, address (with zip code) and telephone number of at least one exposed employee in each occupation. If necessary,signed and dated witness statements shall be obtained and attached to the worksheet.
EXAMPLE: A radial arm saw has been on a construction site for 3 months and has never been guarded during that time. All of the employer's 14 carpenters on the job use the saw. One of the carpenters is John Doe. Total use of the saw on a daily basis is approximately 4 hours.
j) Any facts which establish that the employer knew of the hazardous condition or could have known of that condition with the exercise of reasonable diligence. Enter any facts which show that:
ï The employer actually knew of the hazardous condition which constitutes the violation. In this regard, a supervisor represents the employer and supervisory knowledge amounts to employer knowledge.
ï The employer could have known of the hazardous condition if all reasonable steps had been taken to identify hazards to which employees may have been exposed. As a general rule, the CSHO can presume that the employer could have discovered the condition through the exercise of reasonable diligence.
NOTE: If the CSHO has reason to believe that the violation may be a willful violation, facts shall be included to show that the employer knew that the condition existed and, in addition, knew that, bylaw, he had to do something to abate the hazard (e.g., the employer was previously cited for the same condition; a CSHO had already told the employer about the requirement; knowledge of the requirement was brought to the employer's attention by an employee safety committee, etc.). Also include facts showing that, even if he was not consciously violating the Act, the employer was aware that the violative condition existed and made no reasonable effort to eliminate it.
k) Any pertinent employer or employee remarks made during the walk-around and/or the closing conference, especially comments directly related to the instance described.
ï Include employer comments which may be characterized as admissions of the specific violations described.
ï Include any other facts which may assist in evaluating the situation or in reconstructing the total picture in preparation for testimony in possible legal actions.
ï Include any additional comments (by the CSHO), particularly any explanation of abatement of dates when necessary (e.g.,when longer than 5 days for a serious violation or when an abatement period exceeding 30 days is recommended for an item.
2) If employee exposure (either to safety or health hazards) is not observed, state facts on which the determination is made that an employee has been or could be exposed. In appropriate cases, state what the employer could have or should have done to be in compliance. When violations are grouped, describe the reason for grouping. If a specific type of hazard exposure is caused be the combination of violations,describe it in sufficient detail.
3) If the cited employer neither created nor controlled the violative condition, state the name and relationship of the responsible party; e.g., prime contractor, electrical subcontractor, building owner or equipment lessor. Describe any steps taken by the cited employer to have the condition corrected.
b. Health Inspections. There are special documentation requirements for health inspections. (See Appendix, Narrative, OSHA-1A Form, Industrial Hygiene Inspection Outline.) During such inspections, the CSHO shall:
(1) Record all relevant information concerning potential exposure to chemical substances or physical hazards such as symptomatology,duration and frequency of the hazard, pertinent employee comments,sources of potential health hazards, locations of employees pertinent to the inspection, types of engineering controls, use of personal protective devices including respirators, ear and eye protection, clothing, etc.; and collect Material Safety Data Sheets where available and appropriate.
(2) Observe employee activities throughout the establishment,concentrating particularly on potentially hazardous areas, and
(a) Estimate numbers of employees at each operation to be evaluated, indicating whether they are engaged in stationary or transient activities.
(b) Interview employees.
(c) Record the duration and frequency of cyclic work processes, describing potential exposures during each phase of the cycle.
(3) Request and evaluate information on the following aspects of the employer's occupational safety and health program (Findings shall be discussed in detail at the closing conference.):
(a) Monitoring. The employer's program for monitoring safety and health hazards in the establishment should include a program for self-inspection. The CSHO shall discuss the employer's maintenance schedules and inspection records. Additional information shall be obtained concerning such employer activities as sampling and calibration procedures,ventilation measurements, preventive maintenance programs for engineering controls, laboratory services, use of industrial hygienists and accredited laboratories. Compliance with the monitoring requirement of any applicable standard shall be determined.
(b) Medical. The CSHO shall determine whether the employer provides the employees with pre-placement and periodic medical examinations. The medical examination protocol shall be requested to determine the extent of the medical examinations and, if applicable, compliance with the medical surveillance requirements of any applicable standard.
(c) Recordkeeping. The CSHO shall determine the extent of the employer's recordkeeping program. This is not to be limited to OSHA-required records, but shall be extended to information pertinent to the inspection such as:
1) If records pertaining to employee exposure and medical records are being preserved in accordance with 29 CFR 1910.20, and
2) Where a specific standard has provisions for employee access to the records, whether the results of environmental measurements and medical examinations are accessible to the affected employees.
(d) Compliance. The employer's compliance program may include engineering, work practice and administrative controls and the use of personal protective equipment. The CSHO shall identify as follows:
1) Engineering Controls. Pertinent engineering controls consist of substitution, isolation, ventilation and equipment modification.
2) Work Practice and Administrative Controls. These control techniques include personal hygiene,housekeeping practices and rotation of employees.
a) There should be a program of employee training and education to utilize work practice controls effectively. Where pertinent, the CSHO shall obtain a detailed description of such controls.
b) The CSHO shall evaluate the overall effect of such practices and programs, considering the employees' knowledge of their exposures.
c) Rotation of employees as an administrative control requires employer knowledge of the extent and duration of exposure.
3) Personal Protective Equipment. An effective personal protective equipment program should exist in the plant. A detailed evaluation of the program shall be made to determine compliance with the specific standards which require the use of protective equipment(e.g., 29 CFR 1910.95, 1910.132, 1910.1340).
(e) Regulated Areas. The CSHO shall investigate compliance with the requirements for regulated areas as specified by certain standards.
1) Regulated areas must be clearly identified and known to all appropriate employees.
2) The regulated area designations must be maintained according to the prescribed criteria of the applicable standard.
(f) Emergency Procedures. The CSHO shall evaluate the employer's emergency program.
1) When standards provide that specific emergency procedures be developed where certain hazardous substances are handled, the evaluation shall determine if:
a Potential emergency conditions are included in the written plan.
b Emergency conditions have been explained to employees.
c There is a training scheme for the protection of affected employees including use and maintenance of personal protective equipment.
2) Where hazardous substances are handled for which there are no standards requiring emergency procedures,the CSHO shall, nevertheless, determine if such procedures have been established. (See OSHA Instruction CPL 2-2.45.)
(4) Collecting Samples. The CSHO shall determine as soon as possible after the start of the inspection whether sampling is required by utilizing the information collected during the walk-around and from the pre-inspection review.
(a) If sampling is necessary, a sampling strategy shall be developed by considering potential and physical hazards,number of samples to be taken, and the operations and locations to be sampled.
1) There shall be no undue delay between development of the sampling strategy and the actual sampling or between receipt of the results of spot or screen sampling and full-shift sampling, when the results indicate its necessity. (See C.1.d.)
2) If a delay of more than 5 working days is unavoidable, the reasons for the delay shall be included in the case file. Such situations shall be handled in accordance with C.1.d.(3).
(b) When work schedules other than the usual 8-hour day are encountered, e.g., 4 10-hour days per week, the following procedures shall be used when the standard itself does not cover such exposures:
1) Sampling for 8-hour exposure levels shall be performed as usual; separate sampling shall be conducted to determine any additional exposure beyond the 8 hours.
2) The results from the 8-hour sampling shall be compared to the Permissible Exposure Level (PEL) to determine whether or not an overexposure exists.
3) If it appears that the 8-hour exposure limits do not provide adequate protection from health hazards when longer workday schedules are used, the Area Director shall contact the Regional Administrator for additional instructions on further sampling that may be indicated as well as for guidance on evaluation of sampling data.
4) The Regional Administrator, in such cases, shall contact the Director of Technical Support through the Director, Office of Field Programs for assistance in determining appropriate sampling procedures and in evaluating the resulting data.
(c) If either the employer or the employee representative requests sampling results, summaries of the results shall be provided to the requesting representative as soon as practicable after consultation with the supervisor.
c. Taking Photographs. Photographs shall be taken whenever the CSHO judges there is a need. Developed photographs shall be properly labeled and placed in the case file.
NOTE: The CSHO shall ensure that using flash or spark-producing equipment will not be hazardous and that employees are not unexpectedly startled by the use of flash equipment.
d. Employee Interviews. A free and open exchange of information between the CSHO and employees is essential to an effective inspection. Interviews provide an opportunity for employees to point out hazardous conditions and, in general, to provide assistance as to what violations of the Act may exist and what abatement action should be taken.
(1) Purpose. Section 8(a)(2) of the Act authorizes the CSHO to question any employee privately during regular working hours in the course of an OSHA inspection. The purpose of such interviews is to obtain whatever information the CSHO deems necessary or useful in carrying out the inspection effectively. Such interviews, however,shall be conducted within reasonable limits and in a reasonable manner and shall be kept as brief as possible. Individual interviews are authorized even when there is an employee representative.
(2) Employee Right of Complaint. Even when employees are represented on the walk-around, the CSHO may consult with any employee who desires to discuss a possible violation. Upon receipt of such information, the CSHO shall investigate the alleged violation, where possible, and record the findings.
(a) 29 CFR 1903.10 affords any employee an opportunity to bring any condition believed to violate a standard or Section 5(a)(1) of the Act to the attention of the CSHO during an inspection.
(b) In certain instances, the employer and/or the employee walk-around representative may not be able to provide all the necessary information regarding an accident or possible violation. The CSHO shall consult with employees who may have knowledge of pertinent facts.
(3) Time and Location. Interviews normally will be conducted during the walk-around; however, they may be conducted at any time during an inspection.
(a) Workplace. If requested by the employee and considered useful by the CSHO, additional consultation shall be scheduled at a mutually convenient time. In retail or service establishments or in continuous production operations (e.g.,assembly line), interviews shall be scheduled to afford minimum interference with the employee's duties and the employer's business operations.
(b) Other Than Workplace. Interviews may be held at the employee's home, the OSHA Area Office, or at any other suitable place in the community where privacy can be maintained.
(4) Privacy. At the time of the interview employees shall be asked if they desire the interview to be in private. Whenever an employee expresses a preference that an interview be held in private, the CSHO shall make a reasonable effort to honor that request. Even in the absence of such a request, every reasonable effort shall be made to conduct interviews with employees in private.
NOTE: "In private" refers to the exclusion of the employer representative, not the employee representative unless the employee expresses a desire to be interviewed out of hearing of both the employer and the employee representatives.
(5) Interview Statements. Interview statements shall be obtained whenever the CSHO determines that such statements would be useful in documenting adequately an apparent violation.
(a) Interviews shall normally be written, and the employee shall be encouraged to sign and date the statement. The CSHO shall assure the employee that the statement will be held confidential to the extent allowed by law. Following are some examples of situations where the CSHO shall normally obtain written statements:
1) When there is an actual or potential controversy between the employer and employee as to a material fact concerning a violation.
2) When there is a conflict or difference among employee statements as to the facts.
3) When there is a potential willful or repeated violation.
4) In accident investigations, when attempting to determine if apparent violation(s) existed at the time of the accident.
(b) Interview statements shall normally be written in the first person and in the language of the employee. The wording of the statement shall be understandable to the employee and reflect only what has been brought out in the interview.
1) Any changes or corrections shall be initialed by the employee; otherwise, the statement shall not be changed, added to or altered in any way.
2) The statements shall end with working such as: "I have read the above, and it is true to the best of my knowledge." The employee shall sign and date the statement and the CSHO shall then sign it as a witness.
3) If the employee refuses to sign the statement, the CSHO shall note such refusal on the statement. The statement shall, nevertheless, be read to the employee and an attempt made to obtain agreement. A note that this was done shall be entered into the case file.
(c) If the employee interview has been recorded, the conversation shall be transcribed; the transcription shall meet the requirements of D.8.d.(5)(a) and (b).
e. Special Circumstances.
(1) Trade Secrets. Trade secrets are matters that are not of public or general knowledge. A trade secret is any confidential formula, pattern, process, equipment, list, blueprint, device or compilation of information used in the employer's business which gives an advantage over competitors who do not know or use it.
(a) Policy. It is essential to the effective enforcement of the Act that the CSHO and all OSHA personnel preserve the confidentiality of all information and investigations which might reveal a trade secret.
(b) Restrictions and Controls. When the employer identifies an operation or condition as a trade secret, it shall be treated as such. Information obtained in such area, including all negatives, photographs and OSHA documentation forms shall be labeled:
"ADMINISTRATIVELY CONTROLLED INFORMATION"
"RESTRICTED TRADE INFORMATION"
1) Under Section 15 of the Act, all information reported to or obtained by a CSHO in connection with any inspection or other activity which contains or which might reveal a trade secret shall be kept confidential. Such information shall not be disclosed except to other OSHA officials concerned with the enforcement of the Actor , when relevant, in any proceeding under the Act.
2) Title 18 of the United States Code, Section 1905,provides criminal penalties for Federal employees who disclose such information. These penalties include fines of up to $1,000 or imprisonment of up to one year,or both, and removal from office or employment.
3) Trade secrets materials shall not be labeled as "Top Secret," "Secret," or "Confidential," nor shall the security classification designations be used in conjunction with other words unless the trade secrets are also classified by an agency of the U.S. Government in the interest of national security.
(c) Photographs. If the employer objects to the taking of photographs because trade secrets would or may be disclosed,the CSHO should advise the employer of the protection against such disclosure afforded by Section 15 of the Act and 29 CFR1903.9. If the employer still objects, the CSHO shall contact the supervisor.
(2) Areas Requiring Immunization. If, during an inspection, a non-immunized CSHO encounters an area requiring immunization, the CSHO shall not enter that area but shall note a description of the area,immunization required, employees exposed, location and other pertinent information in the case file.
(a) Non-immunized CSHO. The CSHO shall consult with the supervisor about scheduling a properly immunized CSHO for an immediate or later inspection, as applicable. The CSHO shall then complete the inspection of all other areas of the establishment.
(b) Non-immunized Walk-around Representatives. If, during an inspection, a properly immunized CSHO finds that walk-around representatives of employers and employees are not properly immunized and, therefore, not authorized in the area, a reasonable number of employees and the supervisor of that area shall be consulted concerning workplace health and safety. (See B.7. for additional information.)
(3) Violations of Other Laws. If a CSHO observes apparent violations of laws enforced by other government agencies, such cases shall be referred to the appropriate agency.
9. Closing Conference. At the conclusion of an inspection, the CSHO shall conduct a closing conference with the employer and the employee representatives. (On multi-employer work-sites, the CSHO shall decide whether separate closing conferences will be held with each employer representative.) A joint conference shall be held with the employer and the employee representatives whenever practicable. Where either party wishes to have a separate conference or where it is not practical to hold a joint closing conference, separate closing conferences shall be held. A written summary of each conference shall be included in the case file. A copy of the written summaries will be available from the Area Director upon request by the employer or the employee representatives.
a. General. The CSHO shall describe the apparent violations found during the inspection and indicate the applicable sections of the standards which may have been violated. Copies of the standards shall be given to both the employer and the employee representatives (if not already given during the opening conference). During the closing conference, both the employer and the employee representatives shall be advised of their rights to participate in any subsequent conferences,meetings or discussions.
(1) Since the CSHO may not have sample results prior to the first closing conference, a second closing conference shall be held by telephone or in person to inform the employer and the employee representatives whether the establishment is in compliance.
(a) If the results indicate noncompliance, apparent violations, correction procedures, and interim methods of control shall be discussed.
(b) Even if the employer is in compliance, sample results which equal or exceed 50 percent of the permissible exposure limit and any recommendations of the CSHO on good safety and health practices shall be discussed with the employer and the employee representatives.
(2) When closing conferences are delayed pending receipt of sampling data or for any other reason, the employee representative shall be afforded an opportunity to participate in such delayed conferences.
(3) The strengths and weaknesses of the employer's occupational safety and health program shall be discussed at the closing conference.
(4) During the discussion of apparent violations the CSHO shall note any comments on the OSHA-1B and obtain input for establishing correction dates.
(5) The CSHO shall advise the employee representatives that:
(a) Under 29 CFR 2200.20 of the Occupational Safety and Health Review Commission regulations, if the employer contests, the employees have a right to elect "partly status"before the Review Commission.
(b) They must be notified by the employer if a notice of contest is filed.
(c) They have 11(c) rights. (See D.9.b.-(12).)
(d) They have a right to contest the abatement date. (See D.9.b.(4)(a) 2.) Such contest must be in writing and must be filed within 15 working days after receipt of the citation.
b. Specific. During the closing conference the CSHO shall give the employer the publication, "Employer Rights and Responsibilities Following an OSHA Inspection," which explains the responsibilities and courses of action available to the employer if a citation is received. The CSHO shall then briefly discuss the information in the booklet and answer any questions. All matters discussed during the closing conference shall be documented in the case file, including a note describing printed materials distributed.
(1) Citation Issued. If citations are issued, the original shall be sent to the employer representative at the establishment. In the case of a non-fixed worksite, the original normally shall be sent to the worksite, the original normally shall be sent to the worksite and a copy sent to the employer's headquarters. If it is clear that the employer representative at the worksite does not receive mail deliveries or will not be at the site at the time of delivery, the circumstances shall be documented in the case file; and the original shall be sent to the location designated as most appropriate by the employer representative at the site. In addition, copies shall be sent to any other employer representatives as requested by the attending employer representative.
NOTE: The original citation shall be sent by certified mail, return receipt requested.
(a) The "Employer Rights and Responsibilities" publication (OSHA-3000) shall also be provided with each copy of the citation, and the employer shall be urged to read both the citation and the publication carefully. If the employer has any questions regarding a citation, the employer may contact the OSHA Area Director at the address on the citation.
(b) Letters informing the employer of the right to an informal conference and of the requirement that any Notice of Intent to Contest must be in writing shall be sent with each copy of the citation.
(c) Notification of assessment of interest, additional charges for nonpayment and administrative costs shall be included with each copy of the citation whenever there is an associated proposed penalty.
(d) If the employer is a contractor on a military base or other government facility, copies of the citation shall be sent to the base commander or other government officer in charge.
(2) Citation Posting. The citation or a copy of it must be posted at or near the place where each violation occurred to inform the employees of hazards to which they may be exposed. If, because of the nature of the employer's operation, it is not practical to post the citation at or near the place where each violation occurred, the citation must be posted in a prominent place where it will be readily observed by all affected employees. The citation must remain posted for 3 working days or until the violation is corrected, whichever is longer.
(a) If the citation is amended as a result of an informal conference or other procedure, a copy of the amended citation must be posted along with copy of the original citation.
(b) Even if contested, a copy of the citation still must be posted.
(c) If there is an authorized employee representative at the establishment, copies of the original citation and any subsequent citation amendments shall be sent to that representative as soon as possible after receipt of these documents by the employer. The appropriate informal conference letter shall be sent with each copy of the citation.
(3) Complying with Citation and Notification of Penalty. If the employer does not contest the citation and the penalty and it becomes a final order, then:
(a) The cited conditions must be abated by the dates set in the citation, and
(b) The penalty must be paid if one was proposed.
(4) Contesting Citation and Notification of Penalty. The CSHO shall advise the employer that the citation, the penalty and/or the abatement date may be contested if, in good faith, the employer does NOT agree to the citation, penalty or abatement date.
(a) Notice of Contest. The CSHO shall tell the employer that, in order to contest, the Area Director must be notified in writing within 15 working days after receipt of the citation and notification of penalty. (Working days are Monday through Friday, excluding Federal holidays.) It shall be emphasized that a notice of intent to contest given orally will not satisfy this requirement to give written notification.
NOTE: The written notification must be postmarked no later than the 15th working day after receipt of the citation.
1) Employer Contest. This written notification,called a Notice of Intent to Contest, must clearly state what is being contested--which item of the citation, the penalty, the correction date, or any combination. The CSHO shall ask the employer to read the pamphlet accompanying the citation for additional details.
a) If the employer wishes only a later abatement date and there is a valid reason, the Area Director should be contacted. The Area Director may issue an amended citation changing an abatement date prior to the expiration of the 15-working-day period without the employer's filing a contest.
b) If the employer contests only the penalty or only some of the citation items, all uncontested items must still be abated by the dates indicated on the citation and the corresponding penalties paid within 15 days of notification.
2) Employee Consent. The CSHO shall indicate that the Act provides that employees or their authorized representative(s) have the right to contest in writing any or all of the abatement dates set for a violation if they believe the date(s) to unreasonable.
(b) Contest Process. The CSHO shall explain that, when the Notice of Intent to Contest is properly filed, the Area Director is required to forward the case to an independent agency, the Occupational Safety and Health Review Commission(the Review Commission) at which time the case if officially in litigation.
1) Upon receipt of the Notice of Intent to Contest,the Review Commission will assign the case to an administrative law judge, who will schedule a hearing in a public place close to the workplace.
2) The Review Commission will inform the employer of the procedural requirements which must be observed throughout the proceedings.
3) The administrative law judge may uphold, modify or eliminate any item of the citation or the penalty which the employer has challenged.
(5) Informal Conference. The CSHO shall advise those attending the closing conference:
(a) That a request for an informal conference with the OSHA Area Director is strongly encouraged. The informal conference provides an opportunity to:
1) Resolve disputed citations and penalties without the necessity of recourse to the contest litigation process which can be time-consuming and expensive;
2) Obtain a more complete understanding of the specific safety or health standards which apply;
3) Discuss ways to correct the apparent violations;
4) Discuss questions concerning proposed penalties;
5) Discuss problems with proposed abatement dates;
6) Discuss problems concerning employee safety and health practices;
7) Learn more of other OSHA program projects and services available;
8) Obtain answers to other questions.
(b) That, if a citation is issued, an informal conference or the request for one does not extend the 15-working-day period in which the employer or the employee representative may contest.
(c) That an oral statement of disagreement with or intent to contest a citation, penalty or abatement date during an informal conference will not take the place of the required written notice of intent to contest.
(d) That the employer representative(s) have the right to participate in any informal conference or negotiations between the Regional Administrator or Area Director and the employees.
(e) That the employee representative(s) have the right to participate in any informal conferences or negotiations between the Regional Administrator or Area Director and the employer in accordance with the guidelines given in G of this Chapter.
(6) Penalties. The CSHO shall explain that penalties must be paid within 15 working days after the employer receives the citation and notification of penalty. If, however, the employer contests the citation and/or the penalty in good faith, the penalties need not be paid for those items contested until a final decision is made.
(7) Abatement Action. The CSHO shall explain the following:
(a) For violations the employer does not contest, the employer is expected to notify the Area Director promptly by letter that the cited conditions have been corrected by the abatement date set in the citation. Failure to do so may trigger a follow-up inspection. The notification must explain the specific action taken with regard to each violation and the approximate date the corrective action was completed. (See E.4. and Chapter II, E.1.b.(2).)
(b) When the citation permits an extended time for abatement,the employer must ensure that employees are adequately protected during this time. For example, the citation may require the immediate use of personal protective equipment by employees while engineering controls are being installed. The employer may be requested to send periodic progress reports on actions to correct these violations.
(8) Petition for Modification of Abatement Date. The CSHO shall advise the employer that abatement dates are established on the basis of the information available at the time the citations are issued. When uncontrollable events or other circumstances prevent the employer from meeting an abatement date and the 15-working-day contest period has expired, a petition may be submitted in writing for modification of the abatement date. Further information on petitions for modifications of abatement dates is included in the pamphlet accompanying any citation that is received. Details may be obtained from the Area Director.
(9) Follow-up Inspection. The CSHO shall explain that:
(a) If the employer receives a citation, a follow-up inspection may be conducted to verify that the employer has:
1) Posted the citation as required.
2) Corrected the violations as required in the citation.
3) Adequately protected the employees during multi-step or lengthy abatement periods.
(b) The employer also has a continuing responsibility to comply with the Act. Any new violations discovered during a follow-up inspection will be cited.
(10) Failure to Abate. The CSHO shall explain that to achieve abatement by the date set forth in the citation, it is important that corrective efforts be promptly initiated. The employer shall be reminded that, under the Act, additional penalties of up to$1,000 per day per violation may be proposed if the employer is found during a follow-up inspection to have failed to abate by the time required on the OSHA-2 any violations which have not been contested.
(11) False Information. The CSHO shall explain that, if the employer knowingly provides false information relating to efforts to correct cited conditions or in records required to be maintained or in any other matter related to the Act, criminal penalties are specified in the Act.
(12) Employee Discrimination. The CSHO shall emphasize that the Act prohibits employers from discharging or discriminating in any way against an employee who has exercised any right under the Act,including the right to make safety or health complaints or to request an OSHA inspection. Complaints from employees who believe they have been discriminated against will be evaluated by OSHA. If the investigation discloses a probable violation of employee rights,OSHA may initiate legal action on behalf of employees whose rights have been violated.
(13) Variance. The CSHO shall explain that the Act permits, and the agency encourages, the employer to apply to OSHA for a temporary variance from a newly promulgated standard if the employer is unable to comply by the effective date because of the unavailability of materials, equipment, or technical personnel. The employer also is encouraged to apply for a permanent variance from a standard if the employer believes that the facilities or methods of operation at the establishment under consideration are at least as safe and healthful as would be ensured by the OSHA standard. All variance applications must be submitted in writing and must include all applicable items specified in 29 CFR 1905. More complete information on variances may be obtained from the Area Director.
(14) SBA Loans. If asked by the employer, the CSHO shall explain that SBA does not currently provide either direct or guaranteed loans for OSHA compliance.
(15) De Minimis Violations. The CSHO shall discuss all conditions noted during the walk-around considered to be de minimis, indicating that such conditions are subject to review by the Area Director in the same manner as apparent violations but, if finally classified as de minimis, will not be included on the citation. In addition, the CSHO shall explain to the employer and employee representatives that a condition is considered to be de minimis when it has no direct or immediate relationship to employee safety and health or when it is apparent that the employer is complying with the clear intent of the standard but deviates in a minor, technical or trivial way. Employer comments shall be noted on the OSHA-1B. (See Chapter IV,B.6.)
(16) Referral Inspection. When applicable, the CSHO shall explain that apparent serious violations which have been observed during the inspection, but which are not within the scope of the CSHO's expertise, will be subject to referral to the supervisor and, as a result, additional inspections may be scheduled at a later date.
(17) Consultative Services. The CSHO shall explain thoroughly the consultative services available to the employer, including confidentiality provisions, safety and health program assistance,training and education service and the inspection exemption program. On-site consultation may be sought concerning any and all citation items that have become final orders as well as items not involving citations. Such consultation may be of help when specialized or extensive abatement measures appear to be required.
(18) Other Agency Services and Programs. The CSHO shall briefly explain the various other services and programs currently in effect in the agency and shall provide copies of program descriptions to any interested employer. Examples are the following:
(a) Voluntary Protection Programs. These programs are designed for those employers who want to cooperate with the agency to demonstrate the importance of functioning internal safety and health systems for the prevention of injuries and illnesses. OSHA encourages program participants to set realistic goals for the elimination or reduction of workplace hazards and for improved safety and health planning and programming. In all of the programs that have been developed thus far, as in all agency initiatives, OSHA insists that participation in any of these programs shall not in any way diminish existing employer or employee rights and responsibilities under the Act. The three currently existing programs are:
1) The STAR program,
2) The MERIT program, and
3) The DEMONSTRATION program.
(b) Employer Abatement Assistance. The employer shall be made aware in greater detail of OSHA's commitment to aid as much as practicable in the process of correcting workplace hazards. Any questions regarding abatement can be discussed with the employer during the closing conference with more complete information provided as necessary as soon as possible after the completion of the inspection. (See F for more details.)
(c) Training and Education Programs. The CSHO shall inform the employer of any OSHA-funded training and education programs that are available, including those from the OSHA Training Institute and those from "New Directions" grantees.
1. Period. The abatement period shall be the shortest interval within which the employer can reasonably be expected to correct the violation. An abatement date shall be set forth in the citation as a specific date, not a number of days. When the abatement period is very short (i.e., 5 working days or less) and it is uncertain when the employer will receive the citation, the abatement date shall be set so as to allow for a mail delay and the agreed-upon abatement time. When abatement is witnessed by the CSHO during the inspection, the abatement period shall be "Immediately upon receipt" of the citation.
2. Reasonable Abatement Date. The establishment of an abatement date requires the exercise of maximum professional judgement on the part of the CSHO.
a. The exercise of this judgement shall be based on data found during the inspection and/or whatever subsequent information gathering is deemed necessary. In all cases, the employer shall be asked for any available information relative to the time required to accomplish abatement and/or any factors unique to the employer's operation which may have an effect on the time needed for abatement.
b. All pertinent factors shall be considered in determining what is a reasonable period. The following considerations may be useful in arriving at a decision.
(1) The gravity of the alleged violation.
(2) The availability of needed equipment, material, and/or personnel.
(3) The time required for delivery, installation, modification or construction.
(4) Training of personnel.
3. Abatement Periods Exceeding 30 Calendar Days. Abatement periods exceeding 30 calendar days should not normally be necessary, particularly for safety violations. Situations may arise, however, especially for health violations,where additional time is required; e.g., a condition where extensive structural changes are necessary or where new equipment or parts cannot be delivered within 30 calendar days. When an initial abatement date is granted that is in excess of 30 calendar days, the reason shall be documented in the case file. Initial abatement dates in excess of one year from the citation issuance date may not be granted by the Area Director without prior approval of the Regional Administrator.
4. Verification of Abatement. The Area Director is responsible for determining if abatement has been accomplished. When abatement is not accomplished at the time of the inspection or the employer does not notify the Area Director by letter of the abatement, verification shall be determined by telephone contact or by follow-up inspection. When abatement is verified by telephone,documentation shall be included in the case file as to the specific corrective action taken for each violation cited. (See D.9.b.(7)(a) and Chapter II,E.1.b.(2).)
5. Effect of Contest Upon Abatement Period. In situations where an employer contests either (1) the period set for abatement or (2) the citation itself, the abatement period generally shall be considered not to have begun until there has been an affirmation of the citation and abatement period. In accordance with the Act, the abatement period begins when a final order of the Review Commission is issued, and this abatement period is not tolled while an appeal is ongoing unless the employer has been granted a stay by the court. In situations where there is an employee contest of the abatement date, the abatement requirements of the citation remain unchanged.
a. Where the Review Commission or a court alters the abatement period,the abatement period as altered shall be the applicable abatement period.
b. Where an employer has contested only the amount of the proposed penalty, the abatement period continues to run unaffected by the contest.
c. Where the employer does not contest, he must abide by the date set forth in the citation even if such date is within the 15-day notice of contest period. Therefore, when the abatement period designated in the citation in 15 days or less and a notice of contest has not been filed, a follow-up inspection of the worksite may be conducted for purposes of determining whether abatement has been achieved within the time period set forth in the citation. A failure to abate citation may be issued on the basis of the CSHO's findings.
d. Where the employer has filed a notice of contest to the initial citation within the proper contest period, the abatement period shall be discontinued and a failure to abate citation shall not be issued.
NOTE: There is one exception to the above rule. If an early abatement date has been designated in the initial citation and it is the opinion of the CSHO and/or the Area Director that a situation classified as imminent danger is presented by the cited condition, appropriate imminent danger proceedings may be initiated notwithstanding the filing of a notice of contest by the employer.
6. Feasible Administrative, Work Practice and Engineering Controls in Health Inspections. Where applicable (generally, during health inspections), the CSHO shall discuss control methodology with the employer during the closing conference.
a. Engineering Controls. Engineering controls consist of substitution,isolation, ventilation and equipment modification.
(1) Substitution may involve process change, equipment replacement or material substitution.
(2) Isolation results in the reduction of the hazard by providing a barrier around the material, equipment, process or employee. This barrier may consist of a physical separation or isolation by distance.
(3) Ventilation controls are more fully discussed in the Industrial Hygiene Technical Manual, OSHA Instruction CPL 2-2.20A.
(4) Equipment modification will result in increased performance or change in character, such as the application of sound absorbent material.
b. Administrative Controls. Any procedure which significantly limits daily exposure by control or manipulation of the work schedule or manner in which work is performed is considered a means of administrative control. The use of personal protective equipment is not considered a means of administrative control.
c. Work Practice Controls. Work practice controls are a type of administrative control by which the employer modifies the manner in which the employee performs assigned work. Such modification may result in a reduction of exposure through such methods as changing work habits,improving sanitation and hygiene practices, or making other changes in the way the employee performs the job.
d. Feasibility. Abatement measures required to correct a citation item are feasible when they can be accomplished by the employer. The CSHO,following current directions and guidelines, shall inform the employer,where appropriate, that a determination will be made as to whether engineering or administrative controls are feasible.
(1) Types of Feasibility. In general there are two types of feasibility determinations that OSHA must make with regard to potential abatement methods. Each will be discussed separately.
(2) Technical Feasibility. Technical feasibility is the existence of technical know-how as to materials and methods available or adaptable to specific circumstances which can be applied to cited violations with a reasonable possibility that employee exposure to occupational hazards will be reduced.
(a) Sources which can provide information useful in making this determination are the following:
1) Similar situations observed elsewhere where adequate engineering controls do, in fact, reduce employee exposure.
2) Written source materials or conference presentations that indicate that equipment and designs are available to reduce employee exposure in similar situations.
3) Studies by a qualified consulting firm,professional engineer, industrial hygienist, or insurance carrier that show engineering controls are technically feasible.
4) Studies and materials collected and prepared by the Directorate of Compliance Programs, the Directorate of Technical Support and/or the Assistant Regional Administrator for Technical Support.
5) Equipment catalogs and suppliers that indicate engineering controls are technically feasible and are available.
6) Information provided by other government agencies when their regulations apply to the operations involved and which may affect or limit the design or type of controls that may be used for abatement.
(b) OSHA's experience indicates that feasible engineering or administrative controls exist for most hazardous exposures.
(c) The Regional Administrator is responsible for making determinations that engineering or administrative controls are not feasible.
(3) Economic Feasibility. Economic feasibility means that the employer is financially able to undertake the measures necessary to abate the citations received. The CSHO shall inform the employer that, although the cost of corrective measures to be taken will generally not be considered as a factor in the issuance of a citation, it will considered during an informal conference or during settlement negotiations.
(a) If the cost of implementing effective engineering,administrative, or work practice controls or some combination of such controls, would seriously jeopardize the employer's financial condition so as to result in the probable shut down of the establishment or a substantial part of it, and extended abatement date shall be set when postponement of the capital expenditures would have a beneficial effect on the financial performance of the employer.
(b) If the employer raises the issue that the company has other establishments or other locations within the same establishment with equipment or processes which, although noticed as a result of the present inspection, nevertheless would require the same abatement measures as those under citation, the economic feasibility determination shall not be limited to the cited items alone. In such cases, although the employer will be required to abate the cited items within the time allowed for abatement, the opportunity to include both the cited and the additional items in a long-range abatement plan shall be offered.
(c) When additional time cannot be expected to solve the employer's financial infeasibility problem, the Area Director shall refer the problem to the Regional Administrator who shall consult with the Director, Office of Field Programs. (See E.8.c.)
e. Reducing Employee Exposure. Where ever feasible engineering, administra-tive or work practice controls can be instituted even though they are not sufficient to reduce exposure to or below the permissible exposure limit (PEL), nonetheless, they shall be required in conjunction with personal protective equipment to reduce exposure to the lowest practical level.
7. Long-term Abatement Date for Implementation of Feasible Engineering Controls. In situations where it is difficult to set a specific abatement date when the citation is originally issued; e.g., because of extensive redesign requirements consequent upon the employer's decision to implement feasible engineering controls and uncertainty as to when the job can be finished. The CSHO shall discuss the problem with the employer at the closing conference and, inappropriate cases, shall encourage the employer to seek a future informal conference with the Area Director when further information is available.
a. Final Abatement Date. The CSHO and the Area Director shall make their best judgement as to a reasonable abatement date. A specific date for final abatement shall, in all cases, be included in the citation. The employer shall not be permitted to propose an abatement plan setting his own abatement dates. If necessary, an appropriate petition may be submitted later by the employer to the Area Director to modify the abatement date.
b. Employer Abatement Plan. The employer is required to submit an abatement plan outlining the anticipated long-term abatement procedures.
(1) Such a plan may be submitted for consideration by the Area Director before setting the citation abatement date.
(a) In that case, the citation may be delayed for a brief period with a notation explaining the delay placed in the case file.
(b) If it appears that the citation might be delayed beyond 6 months from the date of alleged violation, the citation shall be issued prior to full consideration of the plan; but the employer shall be given the opportunity to provide as much input as practicable in the setting of the abatement period.
(2) Whether or not a plan is submitted before issuing a citation,an abatement plan shall be provided for in the citation in addition to a final abatement date.
(3) When the plan is submitted, if the engineering or administrative corrections proposed by the employer appear to be all that are feasible based on the current technology, this fact may be stipulated and agreed to between OSHA and the employer.
(a) Such an agreement shall permit assurances in advance to the employer that the establishment will be in compliance where the provisions of the plan are fully implemented.
(b) It shall be made clear in the agreement that the employer is not relieved from instituting further engineering (or administrative) controls as they become technically feasible,if it is likely that such controls will lower employee exposure without personal protective equipment (PPE) remains over the PEL.
(c) In all situations where an agreement is proposed, the advice of the Regional Solicitor shall be sought on the legal implications.
(d) If an agreement is acceptable, the Regional Solicitor shall be requested to assist in drafting the agreement. Agreements having inter-regional implications shall be cleared with the Director, Office of Field Programs.
8. Multi-step Abatement. Citations with multi-step abatement periods normally will be issued only in those situations in which ultimate abatement will require the implementation of feasible engineering controls, as distinguished from feasible administrative controls or the use of PPE. Multi-step abatements shall be based on the conditions cited and related feasibility considerations.
a. General. A step-by-step program for abatement provides a tool for the CSHO to monitor abatement progress after a citation has been issued,for the employer to make abatement decisions and to set up schedules efficiently, and for the employees to understand the changes being made to the working environment.
(1) Although abatement of an air contaminant citation normally requires the implementation of feasible engineering and/or administrative controls, abatement may be accomplished in rare cases through the use of PPE, even when engineering or administrative controls are feasible. (See E.8.c.(3).)
(2) In such cases the Regional Administrator shall contact the Directorate of Compliance Programs through the Office of Field Programs prior to approving final abatement through the use of PPE.
b. Interim and Long-range Abatement. When the cited employer is found to have no effective personal protection program, in addition to long-term abatement through the use of feasible administrative or engineering controls, proper abatement will include a short-term requirement that appropriate PPE be provided.
(1) The Area Director, issuing the citation, shall set a short-range abatement date for prompt temporary protection to employees pending formulation and implementation of long-range feasible engineering and/or administrative controls. Short-range administrative controls and PPE shall be specified in the citation as the interim protection. (See Chapter V, B.2.b.(7).)
(2) If it has been determined that the employer will use engineering controls to achieve abatement, a specific date shall be set by which the employer can reasonably be expected to implement engineering controls, including enough time for the development of engineering plans and designs for such controls, as well as necessary construction or installation time.
c. Considerations. In providing for multi-step abatement the following factors shall be taken into consideration:
(1) In general, engineering controls afford the best protection to employees, and the employer shall be required to utilize such controls in all instances to the extent feasible. The noise standards and 29 CFR 1910.1000 require the use of either engineering or administrative controls if any such controls are to be used in preference to respirators and other personal protective equipment. In certain circumstances, administrative controls can be successful in controlling employee exposure to contaminants; e.g., maintenance operations involving toxic substances can sometimes be performed at night in the absence of the usual production staff.
NOTE: Employee rotation is an administrative control that OSHA prohibits as a method of complying with the permissible exposure limits of carcinogens.
(2) Economic feasibility is a major issue to be considered when imposing such controls. Requirements that would threaten the economic viability of an entire industry cannot be considered economically feasible under the OSH Act.
(3) OSHA may decide not to require engineering controls for abatement but to allow the use of PPE to abate the violation, at least until such time as engineering controls become a less significant burden for the company when the following conditions are met:
(a) If significant reconstruction of a single establishment involving a capital expenditure which would seriously jeopardize the financial condition of the company is the only method whereby the employer could achieve effective engineering controls;
(b) If there are no feasible administrative or work practice controls; and
(c) If adequate personal protective equipment or devices are available.
(4) Proper evaluation of the economic feasibility of engineering or administrative controls does not require the Area Director to understand all available economic information before deciding that the issue of potential economic hardship adequate to convince the Area Director that abatement by such controls would involve considerable financial difficulty.
(5) Whenever an employer complains that an unbearable economic burden would result from implementation of engineering or administrative controls, the Area Director shall request evidence from the employer.
(a) Such evidence shall address the reasonableness of the estimated costs of engineering or administrative controls,including installation, maintenance, and lost productivity,whenever applicable, as well as the progress of the employer compared to that of the industry in installing such controls.
(b) The relative costs of engineering or administrative controls versus PPE may also be provided. Such comparisons shall take replacement costs into account.
(6) The Area Director shall discuss the problem with the Regional Administrator, whenever appropriate. The Regional Administrator shall determine whether engineering controls are economically infeasible. In cases with potential national implications, the decision (together with supporting evidence) shall be brought to the attention of the Director of Compliance Programs through the Director of Field Programs.
(7) In those limited situations where there are no feasible engineering or administrative controls, full abatement can be allowed by PPE.
9. Petitions for Modification of Abatement Date (PMA). 29CFR 1903.14.a governs the disposition of PMAs. If the employer requests additional abatement time after the 15-working-day contest period has passed, the following procedures for PMAs are to be observed:
a. Filing Date. A PMA must be filed in writing with the Area Director who issued the citation no later than the close of the next working day following the date on which abatement was originally required.
(1) If a PMA is submitted orally, the employer shall be informed that OSHA cannot accept an oral PMA and that a written petition must be mailed by the end of the next working day after the abatement date. If there is not sufficient time to file a written petition,the employer shall be informed of the requirement of E.9.a.(2).
(2) A late petition may be accepted only if accompanied by the employer's statement of exceptional circumstances explaining the delay.
b. When a PMA is Anticipated. Whenever a citation for engineering controls or other violation which the Area Director believes can reasonably be expected to give rise to a future PMA, the following procedures shall apply:
(1) A follow-up date 45 days prior to the final abatement date shall be entered into the information retrieval system used by the Area Office. When that follow-up date arrives, the file shall be pulled and reviewed by the supervisor and the CSHO involved.
(2) After review the Area Director shall contact the employer to determine abatement progress. Information on the status of abatement shall be obtained and document in the case file. The potential need for additional time shall be discussed with the employer if the employer indicates that more time will be necessary to complete correction of the citations, this need shall be documented; and the procedures for seeking a PMA shall be explained.
c. Requirements for a PMA. If a letter is received from an employer requesting a modification of an abatement date, the Area Director shall ensure that all of the following five requirements listed in 29 CFR1903.14a are set forth in sufficient detail in the employer's petition:
(1) All steps taken by the employer and the dates of such action in an effort to achieve compliance during the prescribed abatement period.
(2) The specific additional abatement time estimated to achieve compliance.
(3) The reasons such additional time is necessary, including the unavailability of professional or technical personnel or of materials and equipment, or because necessary construction or alteration of facilities cannot be completed by the original abatement date.
(4) Interim steps being taken to safeguard the employees against the cited hazard during the abatement period.
(5) Written certification, including a copy of the posted and served petition and the date upon which such posting and service was made, that a copy of the petition addressing, as appropriate, each of the requirements set forth in (1) through (4) of this subsection:
(a) Has been posted in a conspicuous place near the location where the violation occurred or where all affected employees will have notice thereof. The petition shall remain posted for 10 working days.
(b) Has been served on the authorized representative of affected employees where affected employees are represented by an authorized representative.
d. Failure to Meet All Requirements. If the employer's letter does not meet all the requirements of E.9.c, a letter spelling out these requirements and identifying the missing elements shall be sent to the employer within 10 working days, specifying a reasonable amount of time for the employer to return the completed PMA.
(1) If no response is received or if the information returned is still insufficient, a second attempt (by telephone or in writing)shall be made. The employer shall be informed of the consequences of a failure to respond adequately; namely, that the PMS will not be granted and the employer may, consequently, be found in failure to abate.
(2) If the employer responds satisfactorily by telephone and the Area Director determines that the requirements for the PMA have been met, appropriate documentation shall be placed in the case file.
e. Abatement Efforts. The Area Director shall take steps necessary to ensure that the employer is making a good faith attempt to bring about abatement as expeditiously as possible.
(1) Where engineering controls have been cited or required for abatement, a monitoring inspection shall be scheduled to evaluate the employer's abatement efforts. Failure to conduct a monitoring inspection shall be fully explained in the case file.
(2) Where no engineering controls have been cited but more time is needed for other reasons not requiring assistance from OSHA, such as delays in receiving equipment, a monitoring visit need not normally be scheduled.
(3) Monitoring inspections shall be scheduled as soon as possible after the initial contact with the employer (See E.9.B.(2).) and shall not be delayed until actual receipt of the PMA.
(4) The CSHO shall decide during the monitoring inspection whether sampling is necessary and, if so, to what extent; i.e., spot sampling, short-term sampling, or full shift sampling.
(5) The CSHO shall include pertinent findings in the narrative along with recommendations for action. To reach a valid conclusion when recommending action, it is important to have all the relevant factors available in an organized manner. The following factors shall be considered:
(a) Progress reports or other indications of the employer's good faith, demonstrating effective use of technical expertise and/or management skills, accuracy of information reported by the employer, and timeliness of progress reports.
(b) The employer's assessment of the hazards by means of surveys performed by in-house personnel, consultants and/or the employer's insurance agency.
(c) Other documentation collected by area office personnel,including verification of progress reports, success and/or failure of abatement efforts, and assessment or current exposure levels of employees.
(d) Employer and employee interviews.
(e) Specific reasons for requesting additional time including specific plans for controlling exposure and specific calendar dates.
(f) Personal protective equipment.
(g) Medical programs.
(h) Emergency action plans.
NOTE: Not all these facts will be pertinent in every PMA review. Neither are all the factors listed which must be considered in every case.
f. Delayed Decisions. Although OSHA policy is to handle PMAs as expeditiously as possible, there are cases where the Area Director's decision on the PMA is delayed because of deficiencies in the PMA itself,a decision to conduct a monitoring inspection and/or the need for Regional Office or National Office involvement. Requests for additional time(e.g., 45 days) for the Area Director to formulate a position shall be sent to the Review Commission through the Regional Solicitor. A letter conveying this request shall be sent at the same time to the employer and the employee representatives.
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