New Mexico Administrative Code
Title 11 - LABOR AND WORKERS' COMPENSATION
Chapter 5 - OCCUPATIONAL HEALTH AND SAFETY
Part 1 - OCCUPATIONAL HEALTH AND SAFETY - GENERAL PROVISIONS
Section 11.5.1.23 - ISSUANCE OF CITATIONS AND PROPOSED PENALTIES; FAILURE TO CORRECT VIOLATIONS
Universal Citation: 11 NM Admin Code 11.5.1.23
Current through Register Vol. 35, No. 18, September 24, 2024
A. Citations; notices of de minimis violations:
(1) The secretary or the secretary's
authorized representative shall review the compliance officer's inspection
report. If, on the basis of the report, the secretary or authorized
representative believes that the employer has violated a requirement of Section
50-9-5
NMSA 1978, or any provision of 11.5.1 NMAC through 11.5.4 NMAC or 11.5.6 NMAC,
he shall issue to the employer, by certified mail, either a citation or, for
violations that have no direct or immediate relationship to health or safety, a
notice of de minimis violations. An appropriate citation or notice of de
minimis violations shall be issued even though after being informed of an
alleged violation by the compliance officer, the employer immediately abates,
or initiates steps to abate, such alleged violation. Any citation or notice of
de minimis violations shall be issued with reasonable promptness after
termination of the inspection. No citation may be issued under this subsection
after the expiration of six months following the occurrence of any alleged
violation.
(2) Any citation shall
describe with particularity the nature of the alleged violation, including a
reference to the provision(s) of the state act or of 11.5.1 NMAC through 11.5.4
NMAC or 11.5.6 NMAC (including incorporated federal standard) alleged to have
been violated. Any citation shall also fix a reasonable time or times for the
abatement of the alleged violation.
(3) If a citation or notice of de minimis
violations is issued for a violation alleged in a request for inspection under
Subsection A of 11.5.1.20 NMAC, or a notification of violation under Subsection
D of 11.5.1.20 NMAC, a copy of the citation or notice of de minimis violations
shall be sent to the employee or representative of employees who made such
request or notification.
(4) After
an inspection, if the secretary or authorized representative determines that a
citation is not warranted with respect to a danger or violation alleged to
exist in a request for inspection under Subsection A of 11.5.1.20 NMAC, or a
notification of violation under Subsection D of 11.5.1.20 NMAC, the informal
review procedures prescribed in Subsections F through H of 11.5.1.20 NMAC shall
be applicable.
(5) Every citation
shall state that the issuance of a citation does not constitute a finding that
a violation of the state act has occurred unless there is a failure to contest
as provided for in the state act, or if contested, unless the citation is
affirmed by the commission.
B. Proposed penalties:
(1) After, or concurrent with, the issuance
of a citation and within a reasonable time after the termination of the
inspection, the department shall notify the employer by certified mail of the
penalty, if any, proposed to be assessed under the state act, or that no
penalty is being proposed. Any notice of proposed penalty shall state that the
proposed penalty shall be deemed to be the final order of the commission and
not subject to review by any court or agency unless, within 15 working days
from the date of receipt of such notice, the employer notifies the department
in writing that he intends to contest the citation or the notification of
proposed penalty before the commission.
(2) The department shall determine the amount
of any proposed penalty, giving due consideration to the appropriateness of the
penalty with respect to the size of the business of the employer being charged,
the gravity of the violation, the good faith of the employer, and the history
of previous violations.
(3)
Appropriate penalties may be proposed with respect to an alleged violation even
though after being informed of such alleged violation by the compliance
officer, the employer immediately abates, or initiates steps to abate such
alleged violation. Penalties shall not be proposed for de minimis
violations.
C. Failure to correct a violation for which a citation has been issued:
(1) If an inspection discloses that an
employer has failed to correct an alleged violation for which a citation has
been issued within the period permitted for its correction, the department
shall notify the employer by certified mail of such failure and of the
additional penalty proposed under the act by reason of such failure. The period
for correction of a violation for which a citation has been issued shall not
begin to run until the entry of a final order of the commission in the case of
any review proceedings initiated by the employer in good faith and not solely
for delay or avoidance of penalties.
(2) Any employer receiving a notification of
failure to correct a violation and of proposed additional penalty may notify
the department in writing that he intends to contest such notification or
proposed additional penalty before the commission. Such notice of intention to
contest shall be postmarked within 15 working days of the receipt by the
employer of the notification of failure to correct a violation and of proposed
additional penalty. The department shall immediately transmit such notice to
the commission in accordance with the rules of procedure prescribed by the
commission.
(3) Each notification
of failure to correct a violation and of proposed additional penalty shall
state that it shall be deemed to be the final order of the commission and not
subject to review by any court or agency unless, within 15 working days from
the date of receipt of such notification, the employer notifies the department
in writing that he intends to contest the notification or the proposed
additional penalty before the commission.
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