1. CFR 1903 INSPECTIONS, CITATIONS AND PROPOSED PENALTIES 1-hour Lesson Sam Mason, CMfgT, CSTM Authorized OSHA Trainer Morehead State University

2. Background  The OSH Act of 1970, Public Law 91-596, establishes a General Duty for all covered employers.  Section 5(a)(1) of the Act :  Every employer shall furnish to his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees

3. Background  The OSH Act of 1970 requires:  The Act also requires that employers comply with occupational safety and health standards promulgated under the Act, and that;

4.  Section 8 of The Act authorizes the Department of Labor to conduct inspections, issue citations and proposed penalties  8(a); OSHA representatives are authorized to: (1) enter without delay, at reasonable times, and; (2) inspect during regular working hours and at reasonable times and; (3) To question privately employers and employees Background

5. Most Frequently Cited Serious Violations in General Industry – FY 2000 *Hazard Communication - Written program Machine guards - General Eye & body flushing facilities Point of operation Open-sided floors Pulleys Lockout - Program Grinders - Tongue guards *Hazard Communication - Training Note: There were also 1023 Section 5(a)(1) General Duty Clause violations cited during this period. Live electrical parts * 1910.1200 violations include both General Industry and Construction due to the consolidation of standards.

6.  The Act contains provisions for adjudication of violations  Periods prescribed for the abatement of violations Background 1903.1

7.  The purpose of Part 1903 is:  To prescribe rules and to set forth general policies for enforcement of the inspection, citation, and proposed penalty provisions of the Act. Background 1903.1 Rules

8. 1903.2 Postings, Availability of the Act, Regulations & Standards  Employers must post notice(s) provided by OSHA informing employees of the protections and obligations provided for in the Act and:  For assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor.  Posted in conspicuous location(s)  Not altered, defaced or covered  Failure to comply with above subject to fine and penalty

9. 1903.2 Postings, Availability of the Act, Regulations & Standards  All OSHA regulations are available at all Area Offices  The employer’s OSHA materials must be provided to employees upon request  Failure to comply with the provisions of 1903.2 can result in citations and fines

10. 1903.3 Authority for Inspection  Authority granted by Section 8 of The Act  CSHO’s can enter workplaces and conduct inspections where employees are working  Inspect and investigate conditions equipment, structures, machines and materials  To question owners, employees or representatives  To review records required by the act or directly pertinent to the inspection

11. 1903.4 Objection to Inspection  CSHO’s must be allowed to enter and inspect at reasonable times, and be accompanied by an employee representative  Upon refusal by the employer to comply with the above the CSHO will:  Terminate the inspection, or;  Limit the inspection to areas where no objection is raised  Obtain the reason for refusal  Report the refusal and reason to the Area Director

12. 1903.4 Objection to Inspection  In some cases compulsory processes will be sought in advance of an inspection:  Employer’s past practice  Inspections far away from the local office  When special equipment or experts are needed

13.  Permission to enter, inspect, review records, or question any person, is not a waiver of any cause of action, citation, or penalty under the Act  Compliance Safety and Health Officers (CSHO) are not authorized to grant any such waiver 1903.5 Entry not a waiver

14. 1903.6 Advance notice of inspections  Advance notice of inspections is not given except:  Imminent danger  Off-hour inspections  To assure the presence of necessary personnel  Special circumstances determined by the Area Director  Penalty for unauthorized notice, up to $1,000, six months, or both

15. 1903.7 Conduct of Inspections  CSHO arrives & shows credentials  Nature, purpose and scope of inspection  Can include photos, IH samples, questioning personnel, etc..

16.  CSHO follows company’s safety procedures  Precludes unreasonable disruption of work  Closing conference to:  CSHO discuss apparent violations found  Employer opportunity to discuss workplace conditions 1903.7 Conduct of Inspections

17. 1903.8 Representatives of Employers & Employees  (a) Representatives may accompany to aid in inspection  (b) CSHO shall resolve all disputes to determine authorized representative or will consult with reasonable number of employees  (c) Employee representatives are employees of employer unless special circumstances  (d) Interference with CSHO’s inspection prohibited  are authorized to deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection.

18.  Employer trade secrets are protected  Violations can result in $ 1,000 fine, 1 year in jail, and work removal 1903.9 Trade Secrets

19. 1903.10 Consultation with Employees  CSHO’s may consult with employees on matters of safety & health  Employees have a right to point out apparent OHSA violations to the CSHO

20. 1903.11 Complaints by Employees  Employees may file written complaints to OSHA  Complaint shown to employer no later than inspection date  Employees can request anonymity  Employer retaliation is prohibited

21. 1903.12 Inspection not warranted; informal review  Area Director determines if reasonable grounds exist for inspections resulting from employee complaints  An informal conference may be scheduled at the discretion of the Assistant Regional Director

22. 1903.13 Imminent danger  When CSHO finds, after an inspection, imminent danger, they will inform employers and employees of it  CSHO will recommend civil action to restrain such conditions or practices

23. Inspection Priorities  Imminent Danger, given top priority  Employees notify employer of imminent danger  If no action taken, notify OSHA

24. Inspection Priorities  Catastrophes and Fatal Accidents, given second priority

25. Inspection Priorities  Employee Complaints, Third priority  Referrals from employees & outside agencies of unsafe or unhealthful conditions  Informal review available for decisions not to inspect  Confidentiality is maintained on request

26. Inspection Priorities  Programmed High-Hazard Inspections, given fourth priority  Aimed at high hazard industries, occupations, or health substances  Selection criteria examples: Death Injury and illness incidence rate Exposure to toxic substances

27. Follow-up Inspections  Determines whether previously cited violations have been corrected.  “Notification of Failure to Abate” Failure to Abate

28.  1st; Imminent Danger  2nd; Catastrophes and Fatal Accidents  3rd; Employee Complaints and Referrals  4th; Programmed High-Hazard Inspections  5th; Follow-Up Inspections OSHA Inspection Priority Review

29. Inspection Process  Compliance Safety and Health Officer (CSHO) becomes familiar with facility  History  Nature of business  Relevant standards  IH equipment selection and PPE

30. Inspector’s Credentials  Inspection begins when CSHO arrives at facility  Displays credentials  Employers should always verify the identity of the CSHO  United States Department of Labor ID including photo and serial number  Employer should verify by phoning OSHA

31. Opening Conference  CSHO explains why facility was selected  Explains purpose of visit, inspection scope and applicable standards  Complaint copies distributed (if applicable)  Employee representative may be summoned

32. Inspection Tour  Route and duration determined by CSHO  Consults with employees  Photos  Instrument readings  Examine records

33.  CHSO will point out unsafe conditions observed & possible corrective action if employer requests  Some apparent violations can be corrected immediately and,  May still result in citation Inspection Tour

34.  Discussion of problems, questions and answers  Discussion of recommended citations  Time needed for abatement  Only Area Director issues citations and assess $$$ amounts Closing Conference

35. 1903.14 Citations  Area Director reviews CSHO’s inspection report  After the compliance officer reports findings, the area director determines what citations, if any will be issued, and what penalties, if any, will be proposed  Six month limit to issue citation following occurrence of alleged violation  Citations will describe particular violation of The Act, standards, etc..

36. Types of Violations  Other Than Serious Violation  Normally would not cause death or serious injury  Normally do not accompany fines  Adjusted downward as much as 95%, if fines are levied  Factors: Good faith History of violations Size of business

37.  Serious Violation  High probability of death or serious harm  Mandatory fine, up to $ 7,000  Adjusted downward:  Good faith  Gravity of alleged violation  Violation history  Size of business Types of Violations

38.  Willful Violation  Employer knowingly commits with plain indifference to the law  Either knows action is a violation, or is aware of hazardous condition with no effort to eliminate  Up to $ 70,000 for each  Minimum of $ 5,000 Types of Violations

39.  Willful Violation  If convicted of WV that has resulted in death: court imposed fine up to six months in jail, or both  Criminal conviction: up to $ 250,000 for individual; and years in jail $ 500,000 corporation Corporate officers may be imprisoned Types of Violations

40.  Repeat Violation  Same or substantially similar, up to $ 70,000 for each violation Types of Violations

41.  Failure to Abate  Up to $ 7000/day for each violation not abated, for a maximum of 30 days Types of Violations

42.  De Minimis Violation  No direct relationship to safety or health  Least serious of all violations  Is recorded but not issued as a citation or fined Types of Violations

43. Additional Violations  Falsifying records  Up to $ 10,000  six months in jail, or both  Violations of posting requirements  Civil fine up to $ 7,000  Assaulting, interfering with, intimidating a CSHO while performing their duties  up to three years prison and  $ 5,000 fine

44. 1903.14a Petitions for modification of abatement date  Employer may petition for extension of abatement date after good faith effort to comply:  Petition in writing  Steps and dates of action taken  How much more time is requested and reasons  Interim safeguards to protect employees against cited hazard

45. 1903.15 Proposed Penalties  Notice to employers of proposed penalties for citations issued  Penalties are final unless employer notifies Area Director (AD) in writing within 15 days  AD determines penalties based upon:  Size of business  Gravity of violation  Good faith of employer  History of previous violations

46. 1903.16 Posting of Citations  Citations posted unedited immediately at the location of the alleged violation  Posted for 3 working days or until the violation is abated, whichever is longer  Employer notice of contest can be posted alongside

47. 1903.17 Employer and employee contests  Notify Area Director in writing within 15 days of receipt of proposed penalty  Specify if: Contesting citation Contesting penalty Both  Employees can contest abatement time

48. 1903.18 Failure to correct violation  AD will notify employer of failure to correct and of additional penalties  Employer may appeal  Notification of failure to correct are final orders unless AD is notified in writing within 15 days

49. 1903.19 Abatement verification  The purpose of OHSA inspections:  Result in abatement of violations of the Act  Employer must certify to OSHA that violations have been abated within 10 days of the abatement date  The employer must inform affected employees and their representative(s) about abatement activities

50. 1903.20 Informal conferences  Employers can request an informal conference within 15 working days of the receipt of citations  Employee(s) may participate in the informal conference at the discretion of the Assistant Regional Director  Legal counsel allowed  Does not extend 15 day ‘Notice of Contest’ provisions

51. The End