A. ACTION: The Assistant Commissioner or his authorized representative shall ensure that enforcement activities are scheduled and conducted in accord with the guidelines set forth in paragraph C. of this instruction.
B. BACKGROUND: This instruction describes a Federal program change which affects MOSH programs. The Federal Program states that - "MOSH cannot be reimbursed for any share of funds expended for activities prohibited by these exemptions and limitations, and that they must be able to demonstrate that no Federal funds have been used for prohibited activities."
C. GUIDELINES: The Appropriations Act maintains certain exemptions and limitations on OSHA/MOSH activities which were implemented in previous fiscal years:
1. Farming Operations. A farming operation is exempt from MOSH inspections if it employs on the day of the inspection, and has had at all times during the preceding 12 months, 10 or fewer employees and does not maintain an active temporary labor camp.
a. The OSHI/IH shall make an exemption determination as soon as possible after arrival at a farming operation, record the information and leave the premises if the operation is exempt.
b. Family members of farm employers shall not be regarded as employees when determining the number of employees.
c. If the farming operation employs 10 or fewer employees and maintains a temporary labor camp which is unoccupied at the time of the inspection and can be expected to remain unoccupied during the subsequent 12-month period, no inspection shall be conducted.
d. If the farming operation employs, or employed, more than 10 employees and/or maintains a temporary labor camp, the OSHI shall conduct the inspection in accord with guidelines in this instruction and other MOSH procedures for inspection of migrant housing facilities.
e. If an inspection is not conducted because a farming employer is exempt, a MDOSH-1 Form shall be completed according to current instructions in the IMIS Forms Manual.
f. For purposes of this instruction:
(1) A "farming operation" is defined as any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming establishments.
(2) A "temporary labor camp" is defined as farm housing directly related to the seasonal or temporary employment of migrant farm workers.
(3) "Housing" includes both permanent and temporary structures located on or off the property of the employer, provided it meets the foregoing definition.
g. Inspections conducted in accordance with the foregoing conditions may include all farm operations covered by MOSH standards or may be limited to migrant housing facilities, depending on the availability of resources. Whether complete or partial, housing inspections on farms employing 10 or fewer employees may be initiated only in response to complaints, accidents, referrals or in instances where information is available that there is good reason to believe that hazardous conditions will be found. If there are questions, the Assistant Commissioner or his authorized representative should be consulted for final determinations as to the advisability of inspecting migrant housing facilities.
2. Employer's Lost Workday Injury Rate Below the National Average. The Appropriations Act exempts from programmed safety inspections any employer with 10 or fewer employees currently and at all times during the last 12 months, who is in an industry that has an occupational lost workday injury (LWDI) rate lower than the national average rate for the private industry sector as most recently published by the Bureau of Labor Statistics at the most precise Standard Industrial Classification (SIC) code for which such data is published, using the 1987 manual.
a. LWDI Rate. Employers with 10 or fewer employees within an industry classified in a SIC code with an LWDI rate less than the current rate shown in Appendix A are exempt from general schedule safety inspections if no exception listed in paragraph C.4 applies. The affected SIC codes are listed in Appendix A.
b. Exemption from Inspection. Regional Supervisors shall determine an employer's SIC code before conducting any general schedule safety inspection.
(1) If the employer is in an industry within an exempt SIC code listed in Appendix A, the Regional Supervisor shall determine if the employer has 10 or fewer employees on the day of the inspection or during the preceding 12 months.
(2) If the number of employees cannot be determined prior to the safety inspection, the inspector shall determine the number during the opening conference.
(3) If the employer currently has and has had 10 or fewer employees at all times during the preceding 12 months, the inspection shall not be conducted.
3. MOSH Continuation Of Fewer Than 10 Total Violations.
a. As in previous years, MOSH continues to waive assessment of civil penalties for first instance other violations resulting from the inspection of an establishment, unless such establishment is cited for 10 or more total violations.
b. No penalty shall be proposed for a first-instance other violation unless 10 or more total violations are cited. Serious, willful, and repeated violations and failure to correct notices shall be counted to determine the total number of violations. If 10 or more violation are subject to proposed penalties calculated in accordance with the instruction in the Field Operations Manual.
c. Penalties shall be assessed for serious, willful and repeated violations and failure to correct notices, regardless of the total number of violations in accordance with the MOSH Law.
d. If upon reinspection of a workplace an employer is cited for violation of the same subsection of a standard as was cited during a previous inspection, the violation shall be treated as a second-instance violation that may be accompanied by a proposed penalty regardless of whether the alleged violation is cited as other, serious, willful, repeated, or failure to correct.
e. This limitation applies to all regulatory violations; i.e., regulatory violations shall be treated as other violations for purposes of this limitation.
f. The combining of several instances of violation of a specific standard in one citation item shall be considered a single violation.
g. The grouping of other violations of more than one specific standard, which when considered together constitute a serious violation, shall be considered a single violation.
h. The Assistant Commissioner or his authorized representative shall issue a citation as soon as possible after an inspection for safety violations and those health violations that do not require laboratory analysis. Penalties shall be assessed, in accord with the stated restriction, on the basis of the number of violations in these citation(s). When alleged health violations are cited at a later date, after receipt of laboratory results, for example, penalties shall be proposed based on the number of violations in this later citation(s). The number of violations on this later citation(s) shall not be totaled with the earlier citation(s) to make the 10 violations determination.
i. Amendments and withdrawals of citations, or any part thereof, are subject to this limitation. Therefore, whenever the total number of violations is reduced to less than 10, the Assistant Commissioner or his authorized representative shall delete all penalties for other and regulatory violations from the amended citations.
j. This limitation is applicable to penalties involved in proceedings before the Hearing Examiner. The Assistant Commissioner and Assistant Attorney General shall take appropriate action to ensure conformity with these instructions in amendments or settlements that reduce the total number of violations to less than 10.
4. Exceptions in the Appropriations Act. The following activities are permissible in establishments of employers that are otherwise exempt under C.2, even if there are 10 or fewer employees.
a. MOSH Consultation, technical assistance, and educational and training services may be provided; and surveys and studies may be conducted.
b. Inspections may be scheduled in response to a formal employee complaint in accordance with current complaint procedures.
c. MOSH may take any action authorized by the MOSH Law and Regulations and Field Operations Manual with respect to alleged imminent danger situations.
d. MOSH may take any action authorized by the MOSH Law and Regulations and Field Operations Manual with respect to health hazards.
(1) General Schedule, complaint, accident, fatality, catastrophe, imminent danger health inspections shall be scheduled, observed health hazards cited, and penalties assessed for all classifications of violations in accordance with current procedures.
(2) Apparent safety violations noted during a health inspection of an establishment exempted from safety inspections shall not be cited or referred for later inspection unless such violations result from hazards alleged in a formal complaint, a report of imminent danger, or a fatality/catastrophe or accident report.
e. MOSH may take any action authorized by MOSH Law and Regulations and Field Operations Manual with respect to employment accidents. All apparent violative conditions involving safety or health may be cited and penalties proposed regardless of whether the conditions were related to the accident.
f. MOSH may take any action authorized by the Act with respect to alleged discrimination against employees.
5. Exemption After Inspection. If it is learned after an inspection that the employer was exempt at the time of the inspection, the Assistant Commissioner or his authorized representative shall ensure that no citations are issued or penalties proposed contrary to the provisions of this instruction.
(1) The Assistant Commissioner or his authorized representative shall ensure that no contested citations or penalties are prosecuted before the MOSH Hearing Examiner, and that no penalties are collected in violation of this exemption. The Assistant Commissioner shall provide such information to the Assistant Attorney General for appropriate action if the citation or penalties have been contested.
(2) If already issued, any such citation or proposed penalty shall be withdrawn.
(3) If the employer has already filed a notice of intent to contest, the Assistant Commissioner or his authorized representative shall inform the Assistant Attorney General who shall take appropriate action to ensure that the case is not pursued.
(4) If such citations and penalties have become a final order, the Assistant Commissioner or his authorized representative shall ensure that no penalties are collected or, if collected, that they are refunded to the employer.
(signed) Keith L. Goddard, Assistant Commissioner
John P. O'Connor
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