Current through Register Vol. 51, No. 6, March 22, 2024
A. In this regulation, the following terms have the meanings indicated.
B. Terms Defined.
(1) "Controlling employer" means the employer who is responsible, by contract or through actual practice, for safety and health conditions on the worksite, whether or not its own employees are exposed, such as an employer who has the authority for ensuring that hazardous conditions are corrected.
(2) "Correcting employer" means the employer who has the responsibility for actually correcting the hazard, whether or not its own employees are exposed.
(3) "Creating employer" means the employer who actually created the hazard through its action or inaction, whether or not its own employees are exposed.
(4) "Exposing employer" means the employer whose employees are exposed to the hazard or have access to the hazard.
C. After an inspection, the Commissioner or the Commissioner's authorized representative shall review the inspector's inspection report.
D. If, on the basis of the report, the Commissioner or the Commissioner's authorized representative is of the opinion that the employer has violated a provision of the Act, or of a standard, regulation, or an order promulgated under the Act, the Commissioner or the Commissioner's authorized representative shall issue to the employer either:
(1) A citation; or
(2) For a violation which has no direct or immediate relationship to safety or health, a notice of de minimis violations.
E. Issuance of Citations.
(1) On multiemployer worksites, more than one employer may be cited for a hazardous condition that violates a provision of the Act or of a standard, regulation, or order promulgated under the Act.
(2) The following employers may be cited:
(a) The exposing employer;
(b) The creating employer;
(c) The controlling employer; and
(d) The correcting employer.
F. An appropriate citation or notice of de minimis violations may be issued even if, after being informed of an alleged violation by the inspector, the employer immediately abates, or initiates steps to abate, the alleged violation.
G. The citation shall note that the issuance of a citation is not a finding that a violation of the Act has occurred unless:
(1) There is a failure to contest as provided for in the Act; or
(2) If contested, the citation is affirmed by the Commissioner.
H. Complaint Inspections.
(1) After an inspection conducted in response to a request for inspection under Regulation .04A(1) of this chapter or a notification of violation under Regulation .04B of this chapter:
(a) If a citation is issued, a copy of the citation or notice of de minimis violations shall be sent to the employee or employee representative who made the request; and
(b) If a determination is made that a citation is not warranted with respect to a danger or violation alleged to exist, the Commissioner or the Commissioner's authorized representative shall notify the complaining party and the employer in writing of the determination.
(2) When a determination is made that a citation is not warranted under §H(1)(b) of this regulation:
(a) The informal review procedures in Regulation .04C(2)-(4) of this chapter are applicable;
(b) After considering all views presented in an informal review under Regulation .04C of this chapter, the Commissioner or the Commissioner's authorized representative may:
(i) Affirm the determination;
(ii) Order a reinspection; or
(iii) Issue a citation if the Commissioner believes that the inspection disclosed a violation.
(3) The Commissioner or the Commissioner's authorized representative shall furnish the complaining party and the employer with written notification of the Commissioner's determination and the reason for it.
I. The citation shall include any notice of proposed penalty.
