OSHA Field Inspection Reference Manual CPL 2.103
Section 6 - Chapter II. Inspection Procedures


OSHA Field Inspection Reference Manual - Table of ContentsOSHA Field Inspection Reference Manual - Table of Contents
  • Chapter Number: II
  • Chapter Title: Inspection Procedures

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NOTICE: This is an OSHA Archive Document, and no longer represents OSHA Policy. It is presented here as historical content, for research and review purposes only.


                              CHAPTER II 


INSPECTION PROCEDURES

A. General Inspection Procedures.

1. Inspection Scope. Inspections, either programmed or unprogrammed, fall into one of two categories depending on the scope of the inspection:

a. Comprehensive. A substantially complete inspection of the potentially high hazard areas of the establishment. An inspection may be deemed comprehensive even though, as a result of the exercise of professional judgment, not all potentially hazardous conditions, operations and practices within those areas are inspected.

b. Partial. An inspection whose focus is limited to certain potentially hazardous areas, operations, conditions or practices at the establishment. A partial inspection may be expanded based on information gathered by the CSHO during the inspection process. Consistent with the provisions of Section 8(f)(2) of the Act, and Area Office priorities, the CSHO shall use professional judgment to determine the necessity for expansion of the inspection scope, based on information gathered during records or program review and walkaround inspection.

2. Conduct of the Inspection.

a. Time of Inspection. Inspections shall be made during regular working hours of the establishment except when special circumstances indicate otherwise. The Assistant Area Director and CSHO shall confer with regard to entry during other than normal working hours.

b. Presenting Credentials.

(1) At the beginning of the inspection the CSHO shall locate the owner representative, 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.

(2) When neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official. The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour. If the person in charge at the workplace cannot be determined, record the extent of the inquiry in the case file and proceed with the physical inspection.

A. 2. c. 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". Unless the circumstances constitute a recognized exception to the warrant requirement (i.e., consent, third party consent, plain view, open field, or exigent circumstances) 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. 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 A.2.c.(4), below, 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 Assistant Area Director. The Area Director shall notify the Regional Solicitor.

(b) If the employer raises no objection to inspection of certain portions of the workplace but objects to inspection of other portions, this shall be documented. Normally, the CSHO shall continue the inspection, confining it only to those certain portions to 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 Assistant Area Director and that the agency may take further action, which may include obtaining legal process.

(d) On multiemployer worksites, valid consent can be granted by the owner, or another co-occupier of the space, for site entry.

(2) Employer Interference. Where entry has been allowed but the employer interferes with or limits any important aspect of the inspection, the CSHO shall determine whether or not to consider this action as a refusal. Examples of interference are refusals to permit the walkaround, the examination of records essential to the inspection, the taking of essential photographs and/or videotapes, the inspection of a particular part of the premises, indispensable employee interviews, or the refusal to allow attachment of sampling devices.

A. 2. c. (3) 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, or authorized Area Director, may issue an administrative subpoena. (See OSHA Instruction ADM 4.4.)

(4) Obtaining Compulsory Process. If it is determined, upon refusal of entry or refusal to produce evidence required by subpoena, that a warrant will be sought, the Area Director shall proceed according to guidelines and procedures established in the Region for warrant applications.

(a) With the approval of the Regional Solicitor, the Area Director may initiate the compulsory process.

(b) The warrant sought when employer consent has been withheld shall normally be limited to the specific working conditions or practices forming the basis of the unprogrammed inspection. A broad scope warrant, however, may be sought when the information available indicates conditions which are pervasive in nature or if the establishment is on the current list of targeted establishments.

(c) 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 a warrant is necessary, all information necessary to obtain a warrant, as determined through contact with the Solicitor, which may include the following:

1 Area/District Office, telephone number, and name of Assistant Area Director involved.

2 Name of CSHO attempting inspection and inspection number, if assigned. Identify whether inspection to be conducted included safety items, health items or both.

3 Legal name of establishment and address including City, State and County. Include site location if different from mailing address.

A. 2. c. (4) (c) 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, walkaround, etc.).

7 Narrative of all actions taken by the CSHO leading up to during and after refusal, including 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.

A. 2. c. (4) (c) 13 Investigative techniques which will be required during the proposed inspection; e.g., personal sampling, photographs, audio/ videotapes, 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 rationale:

a Imminent Danger.

o Description of alleged imminent danger situation.

o Date received and source of information.

o Original allegation and copy of typed report, including basis for reasonable expectation of death or serious physical harm and immediacy of danger.

o Whether all current imminent danger processing procedures have been strictly followed.

b Fatality/Catastrophe.

o The OSHA-36F filled out in as much detail as possible.

c Complaint or Referral.

o Original complaint or referral and copy of typed complaint or referral.

o Reasonable grounds for believing that a violation that threatens physical harm or imminent danger exists, including standards that could be violated if the complaint or referral is true and accurate.

o Whether all current complaint or referral processing procedures have been strictly followed.

o Additional information gathered pertaining to complaint or referral evaluation.

A. 2. c. (4) (c) 14 d Programmed.

o Targeted safety--general industry, maritime, construction.

o Targeted health.

o Special emphasis program--Special Programs, Local Emphasis Program, Migrant Housing Inspection, etc.

e Followup.

o Date of initial inspection.

o Details and reasons followup was to be conducted.

o Copies of previous citations on the basis of which the followup was initiated.

o Copies of settlement stipulations and final orders, if appropriate.

o Previous history of failure to correct, if any.

f Monitoring.

o Date of original inspection.

o Details and reasons monitoring inspection was to be conducted.

o Copies of previous citations and/or settlement agreements on the basis of which the monitoring inspection was initiated.

o PMA request, if applicable.

(5) 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.

A. 2. c. (6) Action to be Taken Upon Receipt of Compulsory Process. The inspection will normally begin within 24 hours of receipt of a warrant or of the date authorized by the warrant for the initiation of the inspection.

(a) The CSHO shall serve a copy of the warrant on the employer and make a separate notation as to the time, place, name and job title of the individual served.

(b) The warrant 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 warrant are to be entered. Upon completion of the inspection, the CSHO will complete the return of service on the original warrant, sign and forward it to the Assistant Area Director for appropriate action.

(c) Even where the walkaround is limited by a warrant or an employer's consent to specific conditions or practices, a subpoena for production of records shall be normally served, if necessary, in accordance with A.2.c.(3), above. The records specified in the subpeona shall include (as appropriate) injury and illness records, exposure records, the written hazards communication program, the written lockout-tagout program, and records relevant to the employer's safety and health management program, such as safety and health manuals or minutes from safety meetings.

(d) The Regional Administrator, or Area Director authorized to do so, may issue, for each inspection, an administrative subpoena which seeks production of the above specified categories of documents. The subpoena may call for immediate production of the records with the exception of the documents relevant to the safety and health management program, for which a period of 5 working days normally shall be allowed.

(e) If circumstances make it appropriate, a second warrant may be sought based on the review of records or on "plain view" observations of other potential violations during a limited scope walkaround.

(7) Federal Marshal Assistance. A U.S. Marshal may accompany the CSHO when the compulsory process is presented.

A. 2. c. (8) Refused Entry or Interference with a Compulsory Process.

(a) When an apparent refusal to permit entry or inspection is encountered upon presenting the warrant, the CSHO shall specifically inquire whether the employer is refusing to comply with the warrant.

(b) If the employer refuses to comply or if consent is not clearly given, the CSHO shall not attempt to conduct the inspection but shall leave the premises and contact the Assistant Area Director concerning further action. The CSHO shall make notations (including all witnesses to the refusal or interference) and fully report all relevant facts. Under these circumstances the Area Director shall contact the Regional Solicitor and they shall jointly decide what further action shall be taken.

d. Forcible Interference with Conduct of Inspection or Other Official Duties. 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.

(1) The Assistant Area Director shall be advised by the most expeditious means.

(2) Upon receiving a report of such forcible interference, the Area Director or designee shall immediately notify the Regional Administrator.

e. Release for Entry.

(1) The CSHO shall not sign any form or release or agree to any waiver. This includes any employer forms concerned with trade secret information.

(2) The CSHO may obtain a pass or sign a visitor's register, 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 of liability under the Act.

f. 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 Assistant Area Director. 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.

A. 2. g. 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 Assistant Area Director shall be consulted before any contact is made.

(1) Programmed Inspections. Programmed inspections may 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. 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. 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.

h. Employee Participation. The CSHO shall advise the employer that Section 8(e) of the Act and 29 CFR 1903.8 require that an employee representative be given an opportunity to participate in the inspection.

(1) 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.

(2) If an employer resists or interferes with participation by employee representatives in an inspection and this cannot be resolved by the CSHO, the continued resistance shall be construed as a refusal to permit the inspection and the Assistant Area Director shall be contacted in accordance with A.2.c. of this chapter.

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 walkaround representative by the employees of the establishment.

A. 3. Opening Conference. The CSHO shall attempt to inform all effected employers of the purpose of the inspection, provide a copy of the complaint if applicable, and shall include employees unless employer objects. The opening conference shall be kept as brief as possible and may be expedited through use of an opening conference handout. Conditions of the worksite shall be noted upon arrival as well as any changes which may occur during the opening conference.

NOTE: The CSHO shall determine if the employer is covered by any of the exemptions or limitations noted in the current Appropriations Act (see OSHA Instruction CPL 2.51H, or the most current version), or deletions in OSHA Instruction CPL 2.45B Chapter II, F.2.b.(1)(b)5 b or superseding directive.

a. Attendance at Opening Conference. OSHA encourages employers and employees to meet together in the spirit of open communication. The CSHO shall conduct a joint opening conference with employer and employee representatives unless either party objects. If there is objection to a joint conference, the CSHO shall conduct separate conferences with employer and employee representatives.

b. Scope. The CSHO shall outline in general terms the scope of the inspection, including private employee interviews, physical inspection of the workplace and records, possible referrals, discrimination complaints, and the closing conference(s).

c. Forms Completion. The CSHO shall obtain available information for the OSHA-1 and other appropriate forms.

d. Employees of Other Employers. During the opening conference, the CSHO shall determine whether the employees of any other employers are working at the establishment. If these employers may be affected by the inspection, the scope may be expanded to include others or a referral made at the discretion of the CSHO. At multiemployer sites, copies of complaint(s), if applicable, shall be provided to all employers affected by the alleged hazard(s), and to the general contractor.

e. Voluntary Compliance Programs. Employers who participate in selected voluntary compliance programs may be exempted from programmed inspections. The CSHO shall determine whether the employer falls under such an exemption during the opening conference.

A. 3. e. (1) Section 7(c)(1) and Contract Consultations. In accordance with 29 CFR 1908.7 and Chapter IX of the Consultation Policies and Procedures Manual (CPPM), the CSHO shall ascertain at the opening conference whether an OSHA-funded consultation is in progress or whether the facility is pursuing or has received an inspection exemption through consultation under current procedures.

(a) An on site consultation visit in progress has priority over programmed inspections except as indicated in 29 CFR 1908.7(b) (2)(iv), which allows for critical inspections as determined by the Assistant Secretary.

(b) If a consultation visit is in progress, the inspection may be rescheduled.

(c) If a followup inspection (including monitoring) or an imminent danger, fatality/catastrophe, complaint or referral investigation is to be conducted, the inspection shall not be deferred, but its scope shall be limited to those areas required to complete the purpose of the investigation. The consultant must interrupt the onsite visit until the compliance inspection shall have been completed (Ref. 29 CFR 1908.7).

(2) Voluntary Protection Programs (VPP). In the event a CSHO enters a facility that has been approved for participation in a VPP and is currently under an inspection exemption, the approval letter shall be copied and the inspection either be terminated (if it is a programmed inspection) or limited to the specified items in the complaint or referral (if it is unprogrammed).

f. Walkaround Representatives. Those representatives designated to accompany the CSHO during the walkaround are considered walkaround representatives, and will generally include employer designated and employee designated representatives. At establishments where more than 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 1903.8(a)).

(1) Employees Represented by a Certified or Recognized Bargaining Agent. During the opening conference, the highest ranking union official or union employee representative on-site shall designate who will participate in the walkaround. OSHA regulation 29 CFR 1903.8(b) gives the CSHO the authority to resolve all disputes as to who is the representative authorized by the employer and employees. Title 29 CFR 1903.8(c) states that the representative authorized by the employees shall be an employee of the employer. The CSHO can decide to include others.

A. 3. f. (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 walkaround. If selection of such an employee is impractical, the CSHO shall consult with a reasonable number of employees during the walkaround.

g. Preemption by Another Agency. Section 4(b)(1) of the OSH Act states that the OSH Act 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. Any such situations shall be brought to the attention of the Area Director as soon as they arise, and dealt with on a case by case basis.

h. Disruptive Conduct. The CSHO may deny the right of accompaniment to any person whose conduct interferes with a full and orderly inspection (29 CFR 1903.8(d)). If disruption or interference occurs, the CSHO shall use professional judgment as to whether to suspend the walkaround or take other action. The Assistant Area Director shall be consulted if the walkaround is suspended. The employee representative shall be advised that during the inspection matters unrelated to the inspection shall not be discussed with employees.

i. 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 (29 CFR 1903.9(d)).

A. 3. j. 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)).

k. Examination of Record Programs and Posting Requirements.

(1) Records. As appropriate, the CSHO shall review the injury and illness records to the extent necessary to determine compliance and identify trends. Other OSHA programs and records will be reviewed at the CSHO's professional discretion as necessary.

(2) Lost Workday Injury (LWDI) Rate. The LWDI may in the CSHO's discretion be used in determining trends in injuries and illnesses. The LWDI rate is calculated according to the following formula:

If the number of employees hours worked is available from the employer, use:

LWDI Rate = # LWDI's x 200,000 ------------------ # employee hours worked

Where:

# LWDI's = sum of LWDI's in the reference years.

# employee hours worked = sum of employee hours in the reference years.

200,000 = base for 100 full-time workers, working 40 hours per week, 50 weeks per year.

EXAMPLE: An establishment scheduled for inspection in October 1993 employed an average of 54 workers in 1992, 50 workers in 1991, and 50 workers in 1990. Therefore, injury and employment data for the two preceding calendar years will be used.

# LWDI's in 1991 = 5

# LWDI's in 1992 = 3

# Employee hours worked in 1991 = 100,000

# Employee hours worked in 1992 = 108,000

LWDI Rate = (5 + 3) x 200,000 ----------------- 100,000 + 108,000

= 1,600,000 ------------- 208,000

= 7.69 (rounded to 7.7)

(3) Posting. The CSHO shall determine if posting requirements are met in accordance with 29 CFR Parts 1903 and 1904.

A. 4. Walkaround Inspection. The main purpose of the walkaround inspection is to identify potential safety and/or health 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. Evaluation. The employer's safety and health program shall be evaluated to determine the employer's good faith. See Chapter IV, C.2.i.(5)(b).

b. Record All Facts Pertinent to an Apparent Violation. Apparent violations shall be brought to the attention of employer and employee representatives at the time they are documented. CSHOs shall record at a minimum the identity of the exposed employee, the hazard to which the employee was exposed, the employee's proximity to the hazard, the employer's knowledge of the condition, and the manner in which important measures were obtained.

NOTE: If employee exposure (either to safety or health hazards) is not observed, the CSHO shall document facts on which the determination is made that an employee has been or could be exposed.

c. Collecting Samples.

(1) The CSHO shall determine as soon as possible after the start of the inspection whether sampling, such as but not limited to air sampling and surface sampling, is required by utilizing the information collected during the walkaround and from the pre-inspection review.

(2) 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.

(3) The CSHO may reference the sampling strategy located in OSHA Instruction CPL 2-2.20B for additional information on sampling techniques.

A. 4. d. Taking Photographs and/or Videotapes. Photographs and/or videotapes shall be taken whenever the CSHO judges there is a need. Photographs that support violations shall be properly labeled, and may be attached to the appropriate OSHA-1B. The CSHO shall ensure that any photographs relating to confidential or trade secret information are identified as such. All film and photographs shall be retained in the case file. Videotapes shall be properly labeled and stored. Refer to OSHA Instruction CPL 2.98 for further information on videotaping.

e. 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 or other individuals 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. Employee interviews are also an effective means to determine if advance notice of inspection, when given under the guidelines in Chapter I, E.3., has adversely affected the inspection conditions.

(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 shall be kept as brief as possible. Individual interviews are authorized even when there is an employee representative present.

(2) Employee Right of Complaint. 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 hazard, where possible, and record the findings. If a written complaint is received, the written response procedures in Chapter I shall be followed.

(3) Time and Location. Interviews shall be conducted in a reasonable manner and normally will be conducted during the walkaround; however, they may be conducted at any time during an inspection. If necessary, interviews may be conducted at locations other than the workplace.

(4) Privacy. Employers shall be informed that the interview is to be in private. Whenever an employee expresses a preference that an employee representative be present for the interview, the CSHO shall make a reasonable effort to honor that request. Any employer objection to private interviews with employees may be construed as a refusal of entry and handled in accordance with the procedures in A.2.c. of this chapter.

A. 4. e. (5) Interview Statements. Interview statements of employees or other individuals shall be obtained whenever the CSHO determines that such statements would be useful in documenting adequately an apparent violation.

(a) Interviews shall normally be reduced to writing, and the individual shall be encouraged to sign and date the statement. The CSHO shall assure the individual that the statement will be held confidential to the extent allowed by law, but they may be used in court/hearings. See OSHA Instruction CPL 2.98 for guidance on videotaping.

(b) Interview statements shall normally be written in the first person and in the language of the individual.

1 Any changes or corrections shall be initialed by the individual; otherwise, the statement shall not be changed, added to or altered in any way.

2 The statements shall end with wording such as: "I have read the above, and it is true to the best of my knowledge." The statement shall also include the following: "I request that my statement be held confidential to the extent allowed by law." The individual, however, may waive confidentiality. The individual shall sign and date the statement and the CSHO shall then sign it as a witness.

3 If the individual refuses to sign the statement, the CSHO shall note such refusal on the statement. The statement shall, nevertheless, be read to the individual and an attempt made to obtain agreement. A note that this was done shall be entered into the case file.

(c) A transcription of a recorded statement shall be made if necessary.

f. Employer Abatement Assistance.

(1) Policy. CSHOs shall offer appropriate abatement assistance during the walkaround as to how workplace hazards might be eliminated. The information shall provide guidance to the employer in developing acceptable abatement methods or in seeking appropriate professional assistance. CSHO's shall not imply OSHA endorsement of any product through use of specific product names when recommending abatement measures. The issuance of citations shall not be delayed.

A. 4. f. (2) Disclaimers. The employer shall be informed that:

(a) The employer is not limited to the abatement methods suggested by OSHA;

(b) The methods explained are general and may not be effective in all cases; and

(c) The employer is responsible for selecting and carrying out an effective abatement method.

g. 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 areas, including all negatives, photographs, videotapes, 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 Act or, when relevant, in any proceeding under the Act.

A. 4. g. (1) (b) 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 secret materials shall not be labeled as "Top Secret," "Secret," or "Confidential," nor shall these 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 and Videotapes. If the employer objects to the taking of photographs and/or videotapes 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 CFR 1903.9. If the employer still objects, the CSHO shall contact the Assistant Area Director.

(2) 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. Referrals shall be made using appropriate Regional procedures (see A.3.g. of this chapter).

5. Closing Conference.

a. At the conclusion of an inspection, the CSHO shall conduct a closing conference with the employer and the employee representatives, jointly or separately, as circumstances dictate. The closing conference may be conducted on site or by telephone as deemed appropriate by the CSHO.

NOTE: When conducting separate closing conferences for employers and labor representatives (where the employer has declined to have a joint closing conference with employee representatives), the CSHO shall normally hold the conference with employee representatives first, unless the employee representative requests otherwise. This procedure will ensure that worker input, if any, is received--and that any needed changes are made--before employers are informed of violations and proposed citations.

b. The CSHO shall describe the apparent violations found during the inspection and other pertinent issues as deemed necessary by the CSHO. Both the employer and the employee representatives shall be advised of their rights to participate in any subsequent conferences, meetings or discussions, and their context rights. Any unusual circumstances noted during the closing conference shall be documented in the case file.

A. 5. b. (1) Since the CSHO may not have all pertinent information at the time of the first closing conference, a second closing conference may be held by telephone or in person to inform the employer and the employee representatives whether the establishment is in compliance.

(2) 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 "party status" before the Review Commission.

(b) They must be notified by the employer if a notice of contest or a petition for modification of abatement date is filed.

(c) They have Section 11(c) rights.

(d) They have a right to contest the abatement date. Such contest must be in writing and must be filed within 15 working days after receipt of the citation.

B. Special Inspection Procedures.

1. Followup and Monitoring Inspections.

a. Inspection Procedures. The primary purpose of a followup inspection is to determine if the previously cited violations have been corrected. Monitoring inspections are conducted to ensure that hazards are being corrected and employees are being protected, whenever a long period of time is needed for an establishment to come into compliance, or to verify compliance with the terms of granted variances. Issuance of willful, repeated and high gravity serious violations, failure to abate notifications, and/or citations related to imminent danger situations are examples of prime candidates for followup or monitoring inspections. Followup or monitoring inspections would not normally be conducted when evidence of abatement is provided by the employer or employee representatives. Normally, there shall be no additional inspection activity unless, in the judgment of the CSHO, there have been significant changes in the workplace which warrant further inspection activity.

B. 1. b. Failure to Abate.

(1) A failure to abate exists when the employer has not corrected a violation for which a citation has been issued and abatement date has passed or which is covered under a settlement agreement, or has not complied with interim measures involved in a long-term abatement within the time given.

(2) If the cited items have not been abated, a Notice of Failure to Abate Alleged Violation shall normally be issued. If a subsequent inspection indicates the condition has still not been abated, the Regional Solicitor shall be consulted for further guidance.

NOTE: If the employer has exhibited good faith, a late PMA may be considered in accordance with Chapter IV, D.2. where there are extenuating circumstances.

(3) If it is determined that the originally cited violation was abated but then recurred, a citation for repeated violation may be appropriate.

c. Reports.

(1) A copy of the previous OSHA-1B, OSHA-1BIH, or citation can be used, and "corrected" written on it, with a brief explanation of the correction if deemed necessary by the CSHO, for those items found to be abated. This information may alternately be included in the narrative or in video/audio documentation.

(2) In the event that any item has not been abated, complete documentation shall be included on an OSHA-1B.

d. Followup Files. The followup inspection reports shall be included with the original (parent) case file.

2. Fatality/Catastrophe Investigations. For guidance on conducting fatality and catastrophe inspections, refer to OSHA Instruction CPL 2.77 and CPL 2.94.

a. Definitions. The following definitions apply for purposes of this section:

(1) Fatality. An employee death resulting from a work-related incident or exposure; in general, from an accident or illness caused by or related to a workplace hazard.

B. 2. a. (2) Catastrophe. The hospitalization of three or more employees resulting from a work-related incident; in general, from an accident or illness caused by a workplace hazard.

(3) Hospitalization. To be admitted as an inpatient to a hospital or equivalent medical facility for examination or treatment.

(4) Reporting. Area Directors shall report all job-related fatalities and catastrophes which may result in high media attention or have national implications and that appear to be within OSHA's jurisdiction as soon as they become aware of them to the Regional Administrator. See CPL 2.97.

b. Selection of CSHO. A CSHO, preferably with expertise in the particular industry or operation involved in the accident or illness, shall be selected by the Area Director and sent to the establishment as soon as possible. If a potential criminal violation appears possible during the inspection, staff who have received criminal investigation training at the Federal Law Enforcement Training Center shall be assigned, if available.

c. Families of Victims.

(1) Family members of employees involved in fatal occupational accidents or illnesses shall be contacted at an early point in the investigation, given an opportunity to discuss the circumstances of the accident or illness, and provided timely and accurate information at all stages of the investigations as directed in (2), below.

(2) All of the following require special tact and good judgment on the part of the CSHO. In some situations, these procedures should not be followed to the letter; e.g., in some small businesses, the employer, owner, or supervisor may be a relative of the victim. In such circumstances, such steps as issuance of the form letter may not be appropriate without some editing.

(a) As soon as practicable after initiating the investigation, the CSHO shall attempt to compile a list of all of the accident victims and their current addresses, along with the names of individual(s) listed in the employer's records as next-of-kin (family member(s)) or person(s) to contact in the event of an emergency.

(b) The standard information letter should be sent to the family member(s) or the person(s) listed as the emergency contact person(s) indicated on the victims' employment records within 5 working days of the time their identities have been established.

(c) The compliance officer, when taking a statement from families of victims, shall explain that the interview will be kept confidential to the extent allowed by law and that the interview will be handled following the same procedures as employee interviews. The greatest sensitivity and professionalism is required for such an interview. The information received must be carefully evaluated and corroborated during the investigation.

(d) Followup contact shall be maintained with a key family member or other contact person, when requested, so that the survivors can be kept up-to-date on the status of the investigation. The victim's family members shall be provided a copy of all citations issued as a result of the accident investigation within 5 working days of issuance.

B. 2. d. Criminal. Section 17(e) of the Act provides criminal penalties for an employer who is convicted of having willfully violated an OSHA standard, rule or order when that violation caused the death of an employee. In an investigation of this type, therefore, the nature of the evidence available is of paramount importance. There shall be early and close liaison between the OSHA investigator, the Area Director, the Regional Administrator and the Regional Solicitor in developing any finding which might involve a violation of Section 17(e) of the Act. An OSHA investigator with criminal investigation training shall be assigned at an early stage to assist in developing the case.

e. Rescue Operations. OSHA has no authority to direct rescue operations--this is the responsibility of the employer and/or of local political subdivisions or State agencies. OSHA does have the authority to monitor and inspect the working conditions of covered employees engaged in rescue operations to make certain that all necessary procedures are being taken to protect the lives of the rescuers. See also memorandum on Policy Regarding Voluntary Rescue Activities, dated March 31, 1994, to the Regional Administrators from H. Berrien Zettler, Deputy Director, Directorate of Compliance Programs.

f. Public Information Policy. The OSHA public information policy regarding response to fatalities and catastrophes is to explain Federal presence to the news media. It is not to provide a continuing flow of facts nor to issue periodic updates on the progress of the investigation. The Area Director or his/her designee shall normally handle responses to media inquiries.

3. Imminent Danger Investigations.

a. Definition. Section 13(a) of the Act defines imminent danger as ". . . any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act."

B. 3. b. Requirements. The following conditions must be met before a hazard becomes an imminent danger:

(1) It must be reasonably likely that a serious accident will occur immediately (see B.3.c.(2)(b), below) or, if not immediately, then before abatement would otherwise be required (see B.3.c.2.(c), below). If an employer contests a citation, abatement will not be required until there is a final order of the Review Commission affirming the citation.

(2) The harm threatened must be death or serious physical harm. For a health hazard, exposure to the toxic substance or other health hazard must cause harm to such a degree as to shorten life or cause substantial reduction in physical or mental efficiency even though the resulting harm may not manifest itself immediately.

c. Inspection.

(1) Scope. CSHO may consider expanding the scope of inspection based on the information available during the inspection process.

(2) Elimination of the Imminent Danger. As soon as reasonably practicable after it is concluded that conditions or practices exist which constitute an imminent danger, the employer shall be so advised and requested to notify its employees of the danger and remove them from exposure to the imminent danger. The employer should be encouraged to do whatever is possible to eliminate the danger promptly on a voluntary basis.

(a) Voluntary Elimination of the Imminent Danger. The employer may voluntarily and permanently eliminate the imminent danger as soon as it is pointed out. In such cases, no imminent danger proceeding need be instituted; and, no Notice of Alleged Imminent Danger completed. An appropriate citation and notification of penalty shall be issued.

(b) Action Where the Danger is Immediate and Voluntary Elimination Is Not Accomplished. If the employer either cannot or does not voluntarily eliminate the hazard or remove employees from the exposure and the danger is immediate, the following procedures shall be observed:

B. 3. c. (2) (b) 1 The CSHO shall post the OSHA-8 and call the Area Director, who will decide whether to contact the Regional Solicitor to obtain a Temporary Restraining Order (TRO). The Regional Administrator shall be notified of the TRO proceedings.

NOTE: The CSHO has no authority to order the closing of the operation or to direct employees to leave the area of the imminent danger or the workplace.

2 The CSHO shall notify employees and employee representatives of the posting of the OSHA-8 and shall advise them of their Section 11(c) rights.

3 The employer shall be advised that Section 13 of the Act gives United States District Courts jurisdiction to restrain any condition or practice which is an imminent danger to employees.

4 The Area Director and the Regional Solicitor shall assess the situation and make arrangements for the expedited initiation of court action, if warranted, or instruct the CSHO to remove the OSHA-8.

5 The CSHO's first priority in scheduling activities is to prepare for litigation related to TRO's in imminent danger matters.

(c) Action Where the Danger is that the Harm will Occur Before Abatement is Required. If the danger is that the harm will occur before abatement is required, i.e. before a final order of the Commission can be obtained in a contested case, the CSHO shall contact the Area Director and Regional Solicitor.

1 In many cases, the CSHO or the AD may not decide there is such an imminent danger at the time of the physical inspection of the plant. Further evaluation of the file or additional evidence may warrant consultation with the Regional Solicitor.

2 In appropriate cases, the imminent danger notice may be posted at the time citations are delivered or even after the notice of contest is filed.

B. 4. Construction Inspections.

a. Standards Applicability. The standards published as 29 CFR Part 1926 have been adopted as occupational safety and health standards under Section 6(a) of the Act and 29 CFR 1910.12. They shall apply to every employment and place of employment of every employee engaged in construction work, including non-contract construction work.

b. Definition. The term "construction work" means work for construction, alteration, and/or repair, including painting and decorating. These terms are discussed in 29 CFR 1926.13. If any question arises as to whether an activity is deemed to be construction for purposes of the Act, the Director of Compliance Programs shall be consulted.

c. Employer Worksite.

(1) General. Inspections of employers in the construction industry are not easily separable into distinct worksites. The worksite is generally the site where the construction is being performed (e.g., the building site, the dam site). Where the construction site extends over a large geographical area (e.g., road building), the entire job will be considered a single worksite. In cases when such large geographical areas overlap between Area Offices, generally only operations of the employer within the jurisdiction of any Area Office will be considered as the worksite of the employer.

(2) Beyond Single Area Office. When a construction worksite extends beyond a single Area Office and the CSHO believes that the inspection should be extended, the affected Area Directors shall consult with each other and take appropriate action.

B. 4. d. Entry of the Workplace.

(1) Other Agency. The CSHO shall ascertain whether there is a representative of a Federal contracting agency at the worksite. If so, the CSHO shall contact the representative, advise him/her of the inspection and request that he/she attend the opening conference. (For Federal Agencies, see Chapter XIII and following Appendix A, of OSHA Instruction CPL 2.45B or a superseding directive).

(2) Complaints. If the inspection is being conducted as a result of a complaint, a copy of the complaint is to be furnished to the general contractor and any affected sub-contractors.

e. Closing Conference. Upon completion of the inspection, the CSHO shall confer with the general contractors and all appropriate subcontractors or their representatives, together or separately, and advise each one of all the apparent violations disclosed by the inspection to which each one's employees were exposed, or violations which the employer created or controlled. Employee representatives participating in the inspection shall also be afforded the right to participate in the closing conference(s).

B. 5. Federal Agency Inspections. Policies and procedures for Federal agencies are to be the same as those followed in the private sector, except as specified in Chapter XIII, and the following Appendix A, of OSHA Instruction CPL 2.45B or a superseding directive.

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and no longer represents OSHA Policy. It is presented here as historical content, for research and review purposes only.



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