§ 1903.14 Citations; notices of de minimis violations; policy regarding employee rescue activities.

(a) The Area Director shall review the inspection report of the Compliance Safety and Health Officer. If, on the basis of the report the Area Director believes that the employer has violated a requirement of section 5 of the Act, of any standard, rule or order promulgated pursuant to section 6 of the Act, or of any substantive rule published in this chapter, he shall, if appropriate, consult with the Regional Solicitor, and he shall issue to the employer either a citation or a notice of de minimis violations which have no direct or immediate relationship to safety or health. An appropriate citation or notice of de minimis violations shall be issued even though after being informed of an alleged violation by the Compliance Safety and Health 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 section after the expiration of 6 months following the occurrence of any alleged violation.

(b) Any citation shall describe with particularity the nature of the alleged violation, including a reference to the provision(s) of the Act, standard, rule, regulation, or order alleged to have been violated. Any citation shall also fix a reasonable time or times for the abatement of the alleged violation.

(c) If a citation or notice of de minimis violations is issued for a violation alleged in a request for inspection under § 1903.11(a) or a notification of violation under § 1903.11(c), a copy of the citation or notice of de minimis violations shall also be sent to the employee or representative of employees who made such request or notification.

(d) After an inspection, if the Area Director determines that a citation is not warranted with respect to a danger or violation alleged to exist in a request for inspection under § 1903.11(a) or a notification of violation under § 1903.11(c), the informal review procedures prescribed in § 1903.12(a) shall be applicable. After considering all views presented, the Assistant Regional Director shall affirm the determination of the Area Director, order a reinspection, or issue a citation if he believes that the inspection disclosed a violation. The Assistant Regional Director shall furnish the complaining party and the employer with written notification of his determination and the reasons therefor. The determination of the Assistant Regional Director shall be final and not subject to review.

(e) Every citation shall state that the issuance of a citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless the citation is affirmed by the Review Commission.

(f) No citation may be issued to an employer because of a rescue activity undertaken by an employee of that employer with respect to an individual in imminent danger unless:

(1)

(i) Such employee is designated or assigned by the employer to have responsibility to perform or assist in rescue operations, and

(ii) The employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment; or

(2)

(i) Such employee is directed by the employer to perform rescue activities in the course of carrying out the employee's job duties, and

(ii) The employer fails to provide protection of the safety and health of such employee, including failing to provide appropriate training and rescue equipment; or

(3)

(i) Such employee is employed in a workplace that requires the employee to carry out duties that are directly related to a workplace operation where the likelihood of life-threatening accidents is foreseeable, such as a workplace operation where employees are located in confined spaces or trenches, handle hazardous waste, respond to emergency situations, perform excavations, or perform construction over water; and

(ii) Such employee has not been designated or assigned to perform or assist in rescue operations and voluntarily elects to rescue such an individual; and

(iii) The employer has failed to instruct employees not designated or assigned to perform or assist in rescue operations of the arrangements for rescue, not to attempt rescue, and of the hazards of attempting rescue without adequate training or equipment.

(4) For purposes of this policy, the term “imminent danger” means the existence of any condition or practice that could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.

[36 FR 17850, Sept. 4, 1971, as amended at 59 FR 66613, Dec. 27, 1994]