09.12.20.03

.03 Inspection Procedures.

A. Authority For Inspection. An inspector is authorized to:

(1) Conduct inspections in accordance with §5-208 of the Act; and

(2) Review:

(a) Records required by the Act, and by regulations and occupational safety and health standards adopted under the Act; and

(b) Other records which are directly related to the purpose of the inspection.

B. Objection to Inspection.

(1) If an employer refuses to permit an inspector to conduct an inspection in accordance with the Act and applicable regulations and standards, the inspector shall:

(a) Terminate the inspection, or confine the inspection to the area, machine, apparatus, condition, device, equipment, material, structure, record, or interview concerning which no objection is raised;

(b) Attempt to ascertain the reason for the refusal; and

(c) Immediately report the refusal and the reason for the refusal to the supervisor.

(2) The supervisor shall immediately consult with the Commissioner or the Commissioner's authorized representative.

(3) The Commissioner or the Commissioner's authorized representative shall promptly take appropriate action, including compulsory process, if necessary.

C. Waiver.

(1) An employer may not condition the conduct of an inspection upon a waiver of a cause of action, citation, or penalty under the Act.

(2) An inspector may not grant a waiver.

D. Conduct of Inspections.

(1) Subject to the provisions of this regulation, an inspector shall conduct an inspection at the time and place directed by the Commissioner or the Commissioner's authorized representative.

(2) Opening Conference. At the beginning of an inspection, an inspector shall:

(a) Present the inspector's credentials to the owner, operator, or agent in charge of the establishment;

(b) Explain the nature and purpose of the inspection; and

(c) Indicate generally:

(i) The scope of the inspection,

(ii) The records which the inspector wants to review, and

(iii) That the designation of specific records does not preclude access to additional records.

(3) An inspector may:

(a) Take environmental samples;

(b) Take or obtain photographs relating to the purpose of the inspection;

(c) Question privately an employer, owner, operator, agent, or employee at an establishment; and

(d) Employ other reasonable investigative techniques, including but not limited to:

(i) Using devices to measure employee exposures, and

(ii) Attaching personal sampling equipment, such as a dosimeter, pump, badge, or other similar device, to an employee in order to monitor exposures.

(4) An inspector shall:

(a) Comply with all safety and health rules and practices at the establishment being inspected;

(b) Wear appropriate protective clothing and use appropriate protective equipment; and

(c) Take reasonable precaution to ensure that:

(i) When taking pictures and using sampling equipment, the equipment used does not pose a hazard, and

(ii) The operation of the employer's establishment is not unreasonably disrupted.

(5) Closing Conference. At the conclusion of an inspection, the inspector shall:

(a) Confer with the employer or the employer's representative, and informally advise the employer of any apparent safety or health violation disclosed by the inspection; and

(b) Provide the employer the opportunity to bring to the attention of the inspector pertinent information regarding conditions in the workplace.

E. Representatives of Employers and Employees.

(1) An inspector shall:

(a) Be in charge of inspections and of questioning persons; and

(b) Provide an opportunity for a representative of the employer and a representative chosen by employees to accompany the inspector during the physical inspection of a workplace for the purpose of aiding the inspection.

(2) An inspector may permit:

(a) Additional employer or employee representatives to accompany the inspector, if the inspector determines that the additional representatives will further aid the inspection;

(b) A different employer and employee representative to accompany the inspector during each phase of an inspection if this does not interfere with the conduct of the inspection.

(3) If there is no representative chosen by employees, or if the inspector is unable to determine with reasonable certainty who is the representative, the inspector shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

(4) Except as noted in §E(5) of this regulation, the representative chosen by employees shall be an employee of the employer.

(5) If the inspector determines that the inclusion of a third party, such as an industrial hygienist or a safety engineer, who is not an employee of the employer is reasonably necessary to conduct an effective and thorough physical inspection of the workplace, the inspector may permit that individual to participate in the inspection.

(6) An inspector may deny the right of accompaniment to an individual whose conduct interferes with a fair and orderly inspection.

(7) The right of accompaniment in areas containing trade secrets is subject to the provisions of §F of this regulation.

(8) With regard to information classified by an agency of the United States Government in the interest of national security, only an individual authorized to have access to the information may accompany the inspector.

F. Trade Secrets.

(1) At the beginning of an inspection, the employer may identify an area in the establishment which contains or which might reveal a trade secret.

(2) If the inspector has no clear reason to question the identification of the area as involving a trade secret, the inspector shall ensure that all information obtained in the identified area, including negatives and prints of photographs and environmental samples, is:

(a) Labeled "confidential—trade secret"; and

(b) Not disclosed, except in accordance with the provisions of §5-217 of the Act.

(3) Employee Representative.

(a) Upon the request of an employer, the employee, or a representative chosen by employees to accompany the inspector in an area containing trade secrets, shall be an employee in that area or an employee authorized by the employer to enter the area;

(b) If there is no representative or employee, the inspector shall consult with a reasonable number of employees who work in the area concerning matters of safety and health.

G. Consultation With Employees.

(1) An inspector may consult with employees concerning matters of occupational safety and health to the extent the inspector considers necessary for the conduct of an effective and thorough inspection.

(2) During the course of the inspection, employees shall be afforded the opportunity to bring to the attention of the inspector any violation of the Act which the employees have reason to believe exists in the workplace.

H. An employer shall provide the inspector with correct and truthful information including, but not limited to, company name, mailing address, federal employer identification number or other assigned identification number, and company ownership information, such as corporation, partnership, or sole owner.