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(continued)

NOTE: The selected claims and the points assigned to the selected claims will be identified by the agency in a Program Directive.

(c) The field office manager will provide selected Compliance Officers the construction and/or logging lists. The Compliance Officers will make a reasonable effort to locate and inspect those employers on the construction and logging lists, however failure to inspect all employers on a list will not invalidate subsequent inspections.

(6) Scheduling of Fixed Places of Employment for Health Inspections.

(a) The health scheduling lists are designed as an electronic scheduling system used by health enforcement managers to schedule fixed site inspections for each compliance officer. The scheduling lists will be sorted by field office. Employers will be selected and placed on one of four lists based on the following criteria:

(A) List E -- Fixed places of employment in SIC of 13, 15-51, 598, 72-76, 80, 822, 8731, 8734, 8744, or 922 which have 11 or more employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more disabling health claims in the previous 36 months; or

(ii) A health inspection with one or more health violations in the previous 36 months; and

(iii) No comprehensive health inspection within the previous 24 months.

(B) List F -- Fixed places of employment in SIC of 13, 15-51, 598, 72-76, 80, 822, 8731, 8734, 8744, or 922 which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more disabling health claims in the previous 36 months; or

(ii) A health inspection with one or more health violations in the previous 36 months; and

(iii) No comprehensive health inspection within the previous 24 months.

(C) List G -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 11 or employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more disabling health claims in the previous 36 months; or

(ii) A health inspection with one or more health violations in the previous 36 months; and

(iii) No comprehensive health inspection within the previous 24 months.

(D) List H -- Agriculture places of employment (SIC 01, 02, 0711, 0721, 0722, 0723, 0761, 0762, 0783, 0811) which have 10 or fewer employees. The following neutral administrative criteria will be used to place employers on this list:

(i) One or more disabling health claims in the previous 36 months; or

(ii) A health inspection with one or more health violations in the previous 36 months; and

(iii) No comprehensive health inspection within the previous 24 months.

(b) Ranking Factors: The employers on the scheduling lists are ranked using Location Weighted Claims Count, Location Violation History, Employer Weighted Claims Count, Employer Violation History, SIC Claims Count, SIC Violation History, and High Hazard SIC. The rankings from each factor are combined to produce a score for each employer, and the employers are ranked by field office based on their score.

(A) Location Weighted Claims Count: Selected location health claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim, and these points are totaled for each employer. Employers are ranked on the total points with the employer having the most points receiving a rank of one followed by the employer with the next highest points receiving a ranking of two, etc.

(B) Location Violation History: Employers with a location health violation history will be assigned points for each health violation per health inspection at the location that have become a final order within the past 36 months. Willful violations are assigned five points, failure to abate violations four points, repeat violations three points, serious violations two points, and other-than-serious violations one point. Points are added together with the employer having the most points receiving a ranking of one followed by the employer with the next highest points receiving a ranking of two, etc.

(C) Employer Weighted Claims Count: Employer selected health claims from the first 12 of the previous 18 months are assigned points based on the seriousness of the claim, and these points are totaled for each employer. Employers are ranked on the total points with the employer having the most points receiving a rank of one followed by the employer with the next highest points receiving a ranking of two, etc.

(D) Employer Violation History: Employers with a health violation history are assigned points for each health violation received per health inspection that have become a final order within the past 36 months. Willful violations are assigned five points, failure to abate violations four points, repeat violations three points, serious violations two points, and other-than-serious violations one point. Points are added together with the employer with the most points receiving a ranking of one followed by the employer with the next most points receiving a ranking of two, etc.

(E) SIC Claims Count: Employers are ranked in this category by the number of selected claims in their three-digit SIC over the previous 36 months and the weight factor assigned to the selected claims with the highest number receiving a ranking of one followed by the second highest receiving a ranking of two, etc.

(F) SIC Violation History (not weighted): Employers are ranked in this category by the number of health violations per number of health inspections in their three-digit SIC in the previous 36 months. The three- digit SIC with the most violations receives a ranking of one followed by the second most receiving a ranking of two, etc.

(G) High Hazard SIC: The High Hazard SIC ranking comes from the Bureau of Labor and Statistics (BLS) with employers in an industry with the number one ranking by BLS receiving a ranking of one and employers in an industry with a ranking of 200 by BLS receiving a ranking of 200. Employers in a SIC not ranked by BLS receive a rank of 999. For Agriculture lists, all employers receive the same ranking of 999 since Agriculture SICs are not ranked by BLS.

NOTE: The selected claims and the points assigned to the selected claims will be identified by the agency in a Program Directive.

(c) The Field Office Managers will provide each Compliance Officer a list of inspections that are assigned in descending order from lists E through H. The Compliance Officer will make a reasonable effort to inspect each employer on that list prior to receiving another list, however failure to inspect all employers on a list will not invalidate subsequent inspections. The Compliance Officer's list will generally be followed in descending order but may be inspected in any order to utilize the Compliance Officer's time efficiently.

(d) No more than one scheduled comprehensive health inspection will be made at any particular fixed place of employment in any 24-month period unless the place of employment has five or more accepted disabling claims or has processes or operations which vary within the 24-month period.

(7) Scheduling of Non Fixed Places of Employment for Health Inspections -- An inspection may be scheduled when from information available to the Division, recognized health hazards known to be associated with certain processes, are reasonably thought to exist at the place of employment, and the Division determines the location of a work-site.

(8) Random Inspections -- The Division will conduct random inspections of places of employment that are scheduled and conducted pursuant to written neutral administrative standards. The standards will be issued as Program Directives and changed when the Director believes it necessary to preserve the random nature of the inspections.

(9) Emphasis Inspections -- An inspection may be made if the place of employment is included in a National or Local safety or health Emphasis Program. Emphasis programs are established by identifying the most hazardous industries and processes through information obtained from the Department of Consumer and Business Services claim files, the Bureau of Labor Statistics Occupational Injury and Illness Survey, and knowledge of recognized hazards associated with certain processes. Program Directives will be issued to establish and describe emphasis programs and the neutral administrative criteria that will be used to schedule the inspections.

(10) Farm Labor Housing Inspections -- Farm labor housing is a National and Local Emphasis program. A list of all known farm housing locations will be sent to field offices annually. Locations may be selected and inspected in any order to make efficient use of available resources. Housing locations not on the list may also be inspected. Farm Labor Housing is not an agricultural operation, therefore the agriculture exemption for employers of 10 or fewer permanent, year-round employees does not apply to farm labor housing inspections.

(11) The Division will make reasonable efforts to notify, in writing, each employer whose accepted disabling claims rate is above the state average for its standard industrial classification and each employer whose industry is rated as one of the most unsafe industries in the state of the increased likelihood of inspection of their places of employment and of the availability of consultative services.

(a) Notification will be done on an annual basis and sent, by regular mail, to the last known address on record with the Division.

(b) Failure to provide notification to an employer pursuant to this section will not invalidate a subsequent inspection.

(12) Agricultural Employers with 10 or fewer permanent, year-round employees, both full-time and part-time, will be subject to scheduled inspections only if any of the following has occurred:

(a) A valid complaint has been filed pursuant to ORS 654.062; or

(b) Within a two-year period preceding the proposed inspection date, an accident at the agricultural employer's establishment has resulted in death or an injury or illness resulting in an overnight hospital admission for medical treatment or more than three days of lost work; or

(c) The employer and principal supervisors of the agricultural establishment have not completed annually at least 4 hours of instruction on agricultural safety or health rules and procedures. This instruction must be documented.

(A) The instruction will include any conducted or accepted by OR-OSHA. Instruction related to agricultural safety and health that is offered or approved by any public or private college or university or governmental agency will be deemed to be automatically accepted. Documentation of instruction must be maintained by the employer. Such documentation must include the date, provider and duration of the instruction, the subject covered and the signature of the person completing the instruction.

NOTE: Certified Applicator Training Core A and B offered by the Oregon Department of Agriculture, will satisfy a portion of the required training. One hour credit will be allowed annually for this training.

(B) For purposes of these sections, the time period begins to run when the instruction is received; or

(d) Within the preceding four-year period the agricultural establishment has not had a comprehensive consultation by an individual acting in a public or private consultant capacity. For purposes of this section, the time period begins to run when the consultation is received; or

(e) If the consultation was done, the agricultural employer has failed to correct violations noted in the consultation report within 90 days of receipt of the report.

NOTE: For purposes of determining the number of employees, members of the agricultural employer's immediate family are excluded. This includes grandparents, parents, children, step-children, foster children and any blood relative living as a dependent of the core family.

(13) Effective Dates. The effective date for 437-001-0057(4) through (6) is October 1, 2000. The effective date for all other paragraphs in 437-001-0057 is April 15, 2000.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 10-1995, f. & cert. ef. 11-29-95; OSHA 2-1996, f. & cert. ef. 6-13-96; OSHA 11-1999(Temp), f. & cert. ef. 10-20-99 thru 4-14-00; OSHA 4-2000, f. 4-14-00, cert. ef. 4-15-00

437-001-0060

Advance Notice

(1) No person shall give advance notice of an inspection without authority of the Director, subject to penalties as prescribed in ORS 654.991(2).

(2) If the Director approves a request for advance notice of an inspection:

(a) The notice shall not be given more than 24 hours in advance; and

(b) When advance notice is given to the employer, the employer shall, without delay, notify the employee representative of the proposed inspection, or in the absence of an employee representative, immediately post a notice in a sufficient number of locations in the place of employment to reasonably inform employees of the planned inspection. Any employer who fails to notify the employees, through posting, of the proposed inspection shall be assessed a penalty not to exceed $1,000 as prescribed in ORS 654.086(1)(f).

(3) It will not be considered advance notice to advise a federal or state agency of a proposed inspection in order to avoid duplicate inspections or to facilitate enforcement.

(4) Any person who gives advance notice of any safety or health inspection without authority from the director or his designee shall be punished, upon conviction, by being assessed a penalty not to exceed $1,000 or be imprisoned for not more than six months, or both, as prescribed in ORS 654. 991(2).

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-7-4, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0065

Right of Entry

(1) A Compliance Officer has the right to enter and inspect any place of employment during working hours or at other reasonable times, within reasonable limits, and in a reasonable manner.

(2) Right of Entry. A compliance officer is authorized to document an accident scene reported pursuant to OAR 437-001-0700(21) prior to an opening conference when it is likely that the accident scene cannot be preserved and after a reasonable attempt is made to contact an employer or employer representative.

(3) A Compliance Officer shall present his/her credentials to an employer or employer's representative to establish the Compliance Officer's right of entry.

(4) The Compliance Officer shall not sign any form of liability release or agree to waive any rights of the Department.

(5) The Compliance Officer shall have the right to enter and inspect any place of employment accompanied or assisted by outside engineers or specialists who have signed confidentiality agreements, agreeing to protect the inspected parties' trade secrets.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99; OSHA 7-2002, f. & cert. ef. 11-15-02

437-001-0070

Inspection Warrants

If an OSS/OHS is denied entry, the APD may institute action to obtain an inspection warrant, as provided for in ORS 654.202 to 654.216.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0075

Opening Conference

(1) The Compliance Officer shall, if possible, conduct a joint opening conference with the employer or a representative, and a representative of the employees, if any, and shall:

(a) Present credentials as a means of identification;

(b) Explain the purpose, nature and intended scope of the inspection;

(c) Request the records which need to be examined;

(d) Obtain the name of the employer representative, if any, and give that person the opportunity to accompany the Compliance Officer on the inspection;

(e) Explain that employee participation may be accomplished through random interviews;

(f) Determine if there are trade secrets to be protected;

(g) Inform the employer that sampling may be done and photographs may be taken;

(h) Explain that all violations which would normally be assessed a penalty and which are corrected prior to the end of the inspection will result in penalty reductions;

(i) Determine what personal protective equipment is required to have and use such equipment; and

(j) Explain that a closing conference will be held with both the employer or a representative, and a representative of the employees, if any.

(2) Where the Compliance Officer decides it is not practical to hold a joint conference, separate conferences shall be held for the employer or a representative, and a representative of the employees, if any. Notes shall be taken by the Compliance Officer during the separate conferences; these will be available upon request.

(3) Where separate conferences are necessary, the Compliance Officer shall determine if their conduct will delay observation or evaluation of workplace safety or health hazards. In such cases, the conferences shall be brief and, if appropriate, reconvened after the Compliance Officer's inspection of the place of employment.

(4) Where the holding of an opening conference will prevent timely evaluation of the workplace, it may be abbreviated to a simple introduction and identification of the Compliance Officer. The remainder of the opening conference will be covered as soon as possible.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0080

Inspection Without Employer or Employer Representative

(1) An Compliance Officer may make an inspection without an opening or closing conference if the employer or employer representative is absent or declines to participate.

(2) If the employer, employer representative or employee representative is absent from the place of employment, following the inspection the Compliance Officer shall make at least one attempt on each of two different days to advise the employer, employer representative or employee representative concerning the inspection.

(3) No inspection will be made if neither the employer, employer representative, nor employees are present at the place of employment, except when executing an inspection warrant as provided in ORS 654.216(2) or when posting a Red Warning Notice as provided for in ORS 654.082.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1974, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0085

Employee Representation on Inspection Team

(1) An employee representative has the right to accompany an Compliance Officer during an inspection of the place of employment.

(2) If there is no employee representative during an inspection, the Compliance Officer shall interview, if practicable, a reasonable number of employees about safety and health in the place of employment.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0090

Inspection Procedures

During an inspection an Compliance Officer is authorized to:

(1) Inspect without unreasonably disrupting operations in a place of employment all required records, conditions, structures, materials and methods for compliance with statutes, regulations, rules, standards and orders, and identify and document hazards;

(2) Photograph or video tape unsafe acts, practices, procedures or physical hazards;

(3) Take environmental and personal exposure samples;

(4) Allow a different employer representative or employee representative to accompany the Compliance Officer during separate phases of the inspection if this will facilitate the inspection;

(5) Resolve all disputes as to who is the representative authorized by the employees to accompany the Compliance Officer on the inspection.

(6) Deny the right to participate to any person whose conduct interferes with a fair and orderly inspection;

(7) Inform the employer representative and employee representative of any apparent violations, and hazards;

(8) Collect, including but not limited to, information for the purpose of classifying any apparent violations as minimal, other than serious, or serious and collect data for the purpose of calculating penalty assessment;

(9) Interview privately a reasonable number of employees about safety and health in the place of employment;

(10) Receive information in confidence from an employee or employee representative; and

(11) Stop the inspection if a situation involving imminent danger is observed, request the employer or the employer representative to advise affected employee and correct the imminent danger, and post a Red Warning Notice according to OAR 436-046-0096, if the employer or the employer representative refuses to protect the employees from the imminent danger.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0096

Red Warning Notice

(1) The Red Warning Notice shall be authorized by either the Director, Administrator, Manager of Enforcement, or Field Office Supervisors. For purposes of this rule, a Camp Closure Notice is a Red Warning Notice.

(2) When action is necessary to preclude or eliminate exposure of employees to a condition which, if such exposure occurred or continued, would constitute a violation of any statute or of any lawful regulation, rule, standard or order, affecting employee safety or health at a place of employment, a Compliance Officer shall obtain permission to post a Red Warning Notice. The notice shall be posted in plain view of any person likely to use the place of employment, machine, device, apparatus or equipment that constitutes the hazard.

(3) Any place of employment, machine, device, apparatus or equipment on which a Red Warning Notice has been posted shall not be operated or used by any person until:

(a) The condition has been made safe and healthful; and

(b) The Red Warning Notice has been removed by the Division; however,

(c) Nothing in this section prohibits an employer from using any place of employment, or operating any machine, device, apparatus or equipment, exclusively for the purpose of remedying the violation, pursuant to the instructions on the Red Warning Notice.

(4) No person shall deface or destroy a Red Warning Notice, or remove it without authorization from the Division.

(5) The Red Warning Notice will be removed after:

(a) Notification from the employer that the condition has been corrected; and

(b) A follow-up inspection or other information confirms that the condition has been corrected.

(6) Any person who violates or directs another to violate OAR 437-001-0096(3) or (4) shall be assessed a civil penalty of not less than $100 and not more than $5000 for each such violation.

(7) Any employer who violates or directs an employee to violate OAR 437-001-0096(3), and the violation is determined to be a willful violation, may be assessed a civil penalty of not less than $5,000 and not more than $70,000.

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 6-2003, f. & cert. ef. 11-26-03

437-001-0099

Closing Conference

(1) The OSS/OHS shall, if practicable, conduct a joint closing conference with the employer or a representative, and a representative of the employees, if any, and shall advise these representatives:

(a) Of any violation(s) as a result of the inspection and of any hazards which at this time may not be a violation;

(b) Of the right to present any pertinent information regarding the violation(s);

(c) That a citation shall be issued for all other than serious or serious violations even if the violations were corrected at the time of the inspection;

(d) That penalties may be imposed for other than serious violations and shall be imposed for serious violations;

(e) That a reasonable time for correction of each alleged violation shall be proposed;

(f) That further correspondence separate from the citation regarding the inspection will be received detailing the nonviolation hazards observed during the inspection;

(g) Of all posting requirements contained in OAR 437-001-0275 and 437-001-0280;

(h) That if the employer fails to correct any violation by the date indicated on the citation, additional penalties may be imposed for each day the violation(s) remains uncorrected (see OAR 437-001-0235);

(i) Of employee protection against discrimination (see OAR 437-001-0295);

(j) Of appeal rights contained in ORS 654.078 and OAR 438-085-0006 to 438-085-0870;

(k) Of rights to an informal conference (see OAR 437-001-0255);

(l) Of extension procedures (see OAR 437-001-0240);

(m) Of consultative services available through the Department and workers' compensation insurance carriers (see OAR 437-001-0450 through 437-001-0465);

(n) Of variance procedures (see OAR 437-001-0400 through 437-001-0435);

(o) Of the possibility of follow-up inspections;

(p) That if any safety or health condition was encountered which was beyond the expertise of the Compliance Officer, that condition will be considered a referral and may be addressed by another representative of the OR-OSHA Division;

(q) Of the availability of return visits by the Compliance Officer to assist the employer in obtaining compliance.

(2) Where the Compliance Officer decides it is not practical to hold a joint conference, separate conferences shall be held for the employer or a representative, and a representative of the employees, if any. Notes shall be taken by the Compliance Officer during the separate conferences; these will be available upon request.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

Violations and Penalties
437-001-0135

Evaluation of Probability to Establish Penalties

(1) The probability of an accident which could result in an injury or illness from a violation shall be determined by the Compliance Officer and shall be expressed as a probability rating.

(2) The factors to be considered in determining a probability rating may include, as applicable:

(a) The number of employees exposed;

(b) The frequency and duration of exposure;

(c) The proximity of employees to the point of danger;

(d) Factors, which require work under stress;

(e) Lack of proper training and supervision or improper workplace design; or

(f) Other factors which may significantly affect the degree of probability of an accident occurring.

(3) The probability rating is:

(a) Low -- If the factors considered indicate it would be unlikely that an accident could occur;

(b) Medium -- If the factors considered indicate it would be likely that an accident could occur; or

(c) High -- If the factors considered indicate it would be very likely that an accident could occur.

(4) The probability rating may be adjusted on the basis of any other relevant facts which would affect the likelihood of injury or illness.

Stat. Auth: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 16-1990(Temp), f. & cert. ef. 7-26-90; OSHA 25-1990(Temp), f. & cert. ef. 10-31-90

437-001-0140

Evaluation of Severity to Establish Penalties

(1) A severity rating for each violation shall be determined by the Compliance Officer on the basis of the degree of injury or illness which is reasonably predictable. If more than one injury or illness is reasonably predictable, the Compliance Officer will determine the severity based upon the most severe injury or illness. Severity ratings will be selected from the following schedule:

(a) Other than Serious -- Conditions that could cause injury or illness to employees but would not include serious physical harm;

(b) Serious Physical Harm; or

(c) Death.

(2) The severity rating may be adjusted on the basis of any other relevant facts which would affect the severity of the possible injury or illness.

Stat. Auth: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 16-1990(Temp), f. & cert. ef. 7-26-90; OSHA 18-1990(Temp), f. & cert. ef. 8-15-90; OSHA 25-1990(Temp), f. & cert. ef. 10-31-90; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0145

Penalty for Other than Serious or Serious Violation

(1) A penalty shall be assessed for any serious violation and may be assessed for any other than serious violation by considering the penalty established by the intersection of the probability rating and severity rating on the penalty schedule (Table 1). In a case where probability and severity are not appropriate considerations, a penalty may be assessed by considering the facts of the violation.

(2) Penalty adjustments may be made based upon the employer's previous calendar years lost workday cases incidence rate, if available, and efforts made during the inspection to correct violations. Penalty adjustments shall not be applied to repeat, willful or failure to correct violations or to any violation which contributed to an injury, illness or death of an employee. Adjustments shall not reduce the penalty to less than the mandatory minimum penalty which has been established by rule or statute. Adjustments are:

(a) A penalty reduction of 35% for each violation for an employer's lost workday cases incidence rate for the previous calendar year, if below the current published statewide average rate for that employer's Standard Industrial Classification. For fixed places of employment the lost workday cases incidence rate is based upon the rate for that place of employment. For non-fixed places the lost workday cases incidence rate is based upon the employer's rate statewide;

(b) A penalty reduction of 30% for each violation, when the employer corrects the violation before the end of the inspection;

(c) A penalty reduction of 10% may be given when the employer employed no more than 50 employees at any time in the previous 12 months, including the day of the inspection.

(3) The adjusted penalty for a serious violation will not be less than $100.

(4) The penalty for combined violations of the same rule shall be calculated by computing the penalty and possible adjustment for each subpart making up the combination and adding these to establish a total penalty for the combination.

(5) The penalty for grouped violations of different rules shall be calculated by determining the probability and severity for the entire group.

Table 1
Penalty Schedule



Severity
Serious Violation

Other Probability
Than
Serious



Serious
Physical Harm
Death

Low
0
$300
$1,500

Medium

$500
$2,500

High
$300
$1,250
$5,000



(6) The Administrator may assess a penalty of up to $7,000 for any serious or other than serious violation after considering the facts.

Stat. Auth: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.001 - 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; WCD 12-1982, f. 9-20-84, ef. 11-1-84; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 5-1988, f. 5-16-88, ef. 5-16-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-1995, f. & cert. ef. 7-5-95

437-001-0155

Determination of Penalty -- Failure to Correct

(1) A citation shall be issued for an employer's nonabatement of a violation.

(2) Penalties of not more than $7,.000 per day for failure to correct a violation:

(a) May be assessed for each work day, or part of a day, that the violation results in continued exposure after the ordered correction date;

(b) Shall be determined by considering the probability and severity of the original violation, the efforts of the employer to correct the violation, and factors which delayed the employer in correcting the violation; and

(c) If failure to correct the violation results from the employer's lack of diligence, the penalty shall not less than $50 for other than serious violations, and not less than $250 for serious violations, for each day or part of a day, during which the violation remains uncorrected.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0160

Penalty Criteria -- Repeat Violation

Penalties may be assessed for repeat violations as follows:

(1) A violation of any statute, regulation, rule, standard or order shall be cited as repeated when, upon reinspection, another violation of the previously cited statute, regulation, rule, standard or order is found.

(2) Where a violation of a previously cited statute, regulation, rule, standard or order is present and that first violation has been appealed but not yet become final by operation of law:

(a) The second violation shall be cited as a repeated violation; and

(b) Such citation shall state that the prior violation has been appealed and the repeat classification of the current violation will be rescinded if the prior violation does not become final by order of law.

(3) For purposes of considering whether a violation is a repeat violation at fixed places of employment, "high serious" and "death" rated violations will be issued as repeat violations at all of an employer's places of employment in the state. Repeat violations for all other violation types will be limited to the cited place of employment.

(4) For employers at non-fixed places of employment, repeat violations shall be based on prior violations occurring anywhere within the state.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 5-1978. f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; APD 7-1989(Temp), f. & ef. 5-1-89; APD 10-1989, f. & cert. ef. 7-7-89; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 6-1994, f. & cert. ef. 9-30-94

437-001-0165

Determination of Penalty -- Repeat Violation

(1) The penalty for a repeat violation shall be computed by multiplying the penalty for the current violation by the following factors:

(a) 1st repeat -- x 2

(b) 2nd repeat -- x 5

(c) 3rd repeat -- x 10

(d) 4th repeat -- Discretion of Administrator

(2) The total penalty for a repeat violation shall be not less than $200 nor more than $70,000.

(3) For a repeated other than serious violation that otherwise would have no initial penalty, a penalty of $200 shall be assessed for the first repeated violation, $500 if the violation has been cited twice before, and $1,000 for a third repeat.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 9-1-76; WCB 33-1974, f. 9-5-74, ef. 9-26-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74; APD 7-1989(Temp), f. & cert. ef. 5-1-89; APD 10-1989, f. & cert. ef. 7-7-89; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0170

Determination of Penalty -- Failure to Report an Occupational Fatality, Catastrophe, or Accident

If an employer fails to report an occupational fatality, catastrophe, or accident as provided in OAR 437-001-0700(21), a penalty of not less than $250, nor more than $7,000, shall be assessed.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 7-2002, f. & cert. ef. 11-15-02

437-001-0171

Determination of Penalty -- Failure to Register a Farm Labor Camp/Facility

If an operator, employer or contractor fails to register a Farm Labor Camp or facility with Oregon OSHA as required in Division 4/J, 437-004-1120(5)(b), a penalty of not less than $250 nor more than $7,000, shall be assessed.

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 315.164, 658.750, 658.755, 658.780, 658.785, 658.805, 658.810 & 658.825
Hist.: OSHA 9-1995, f. & cert. ef. 11-29-95; OSHA 6-2003, f. & cert. ef. 11-26-03

437-001-0175

Determination of Penalty -- Willful or Egregious Violation

For a willful violation, the Administrator, after considering the facts of the violation, may assess a penalty of not less than $5,000 nor more than $70,000. For egregious violations, the Administrator may assess a separate penalty for each instance of a violation.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 8-1985, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92

437-001-0176

Determination of Penalty -- Failure to Notify Employees of Advance Notice

The Administrator, after considering the related facts, may assess a penalty not to exceed $1,000 for each violation of the employer's failure to give notification by posting to employees of advanced notice.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0180

Determination of Penalty -- Relating to Red Warning Notice

The Administrator, after considering the related facts, shall assess a penalty of not less than $100 and not more than $5,000 for each violation of the restrictions imposed by a Red Warning Notice (see OAR 437-001-0096(3) or (4)).

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 5-1978, f. 6-22-78, ef. 8-15-78; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0201

Determination of Penalty -- Relating to Field Sanitation

The Administrator shall assess a civil penalty of not less than $250 and not more than $2,500 to employers of workers who are engaged in field activities for the growing and harvesting of food crops intended for human consumption, who substantially fail to comply with OAR 437-004-0110 in Division 4, Agriculture.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCD 9-1986, f. 10-7-86, ef. 12-1-86; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0203

Determination of Penalty -- Relating to Violations Which Have No Probability and Severity

(1) Safety and Health Protection on the Job Poster. If the employer has not displayed the poster, a minimum penalty of $100 may be assessed.

(2) Annual Summary -- If an employer fails to post the summary portion of the OSHA 300 Form no later than February 1 of the year following the year covered by the records and keep it posted until April 30 in accordance with 437-001-0700(17)(d)(A), a minimum penalty of $200 may be assessed.

(3) Citation -- If an employer fails to post the citation after receipt, a minimum penalty of $200 may be assessed.

(4) OSHA 300 and DCBS 801 Forms -- If the employer does not maintain the Log and Summary of Occupational Injuries and Illnesses, OSHA 300 Form, and the Supplementary Record, DCBS Form 801 or equivalent, a minimum penalty of $100 may be assessed for each OSHA form not maintained.

(5) Access to Records -- If the employer fails upon request to provide records for inspection and copying by any authorized representative of OR-OSHA or by any employee, former employee, or authorized representative of employees, a minimum penalty of $100 may be assessed for each form not made available.

(6) Flush Toilets/Warm Water Hand Washing Facilities -- If an employer fails to provide flush toilets or warm water hand washing facilities on a construction site according to OAR 437-003-0020 in 437, division 3, Construction, a penalty of not less than $200, nor more than $2,500, shall be assessed.

(7) Safety Committees -- If an employer fails to establish a safety committee as required by OAR 437-001-0765 in 437, division 1, General Provisions, a minimum penalty of $100 shall be assessed.

[ED. NOTE: Forms referenced are available from the agency.]

Stat. Auth.: ORS 654.025(2) & 656.726(3)
Stats. Implemented: ORS 654.086
Hist.: APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74; OSHA 7-1992, f. 7-31-92, cert. ef. 10-1-92; OSHA 10-1995, f. & cert. ef. 11-29-95; OSHA 11-2001, f. 9-14-01, cert. ef. 1-1-02; OSHA 6-2003, f. & cert. ef. 11-26-03

Citations and Correction
437-001-0205

Citation and Notice of Penalty

(1) If the Division concludes from the review of an inspection report that a rule or order was violated, a citation will be issued to the employer which shall:

(a) State the name of the employer, place of employment, and date of inspection. If the violation occurred on other than the inspection date, the date of the violation will be included;

(b) Describe factually the nature and location of the violation;

(c) State the type of violation, if other than general;

(d) Identify the rule or order violated;

(e) Fix a time for the correction of each violation not corrected at the time of inspection;

(f) State the penalty for each violation;

(g) Identify which, if any, penalties are suspended;

(h) State the total dollar amount of assessed penalties;

(i) Inform the employer of the right to appeal the citation, the civil penalty or the period of time fixed for correction of the violation to the Board;

(j) Inform affected employees of their right to appeal the time fixed for correction of the violation; and

(k) Notify the employer that the citation becomes a final order if an appeal is not filed within 20 days of receipt of the citation by the employer.

(2) The citation shall be served on the employer by certified mail or in person.

(3) Each employee representative shall be sent a copy of all citations and notices of penalties issued.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0215

Employer Response to Citation and Notice of Penalty

(1) After receipt of a citation, the employer shall:

(a) Promptly post the citation for employees' information for three days or until the violation is corrected, whichever occurs last;

(b) Assure that any amendments or withdrawals to a citation are posted with the original citation for three days or until the violation is corrected, whichever occurs last;

(c) Correct each violation by the date ordered; and

(d) If no appeal is filed, remit any penalty by the 21st calendar day following receipt of the citation.

(2) The above requirements shall not limit an employer's appeal rights.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0220

Payment of Penalties

(1) All civil penalties become due and owing after the citation becomes a final order.

(2) If payment is not received within ten (10) days after the order becomes final, it may be docketed as a judgment as provided by ORS 654.086(3).

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0225

Penalty for Falsification

(1) An employer who knowingly makes any false statement, representation or certification regarding the correction of a violation shall be assessed a civil penalty of not less than $100 and not more than $2,500.

(2) An employer who knowingly makes any false statement, representation or certification regarding the correction of a violation, and that violation is found to have caused or materially contributed to the death of any employee, shall be penalized according to the provisions of ORS 654.991(3). In such cases, the Administrator shall contact the appropriate local district attorney for assistance and possible prosecution.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCB 8-1975, f. 8-5-75, ef. 9-1-75; WCD 5-1978, f. 6-22-78, ef. 8-15-78; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0230

Correction of Violation

(1) The employer shall correct any violation the employer has been ordered to correct except when:

(a) A general violation has been appealed;

(b) A stay of the correction date has been ordered by the Hearings Division on an appealed serious violation;

(c) An extension has been granted in accordance with OAR 437-001-0240.

(2) If the violation is corrected at the time of inspection, the correction shall be noted in the Compliance Officer's inspection report and used as the basis of possible penalty reduction. However, such correction shall not provide immunity from the issuance of a citation for the violation.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: WCB 19-1974, f. 6-5-74, ef. 7-1-74; WCD 4-1981, f. 5-22-81, ef. 7-1-81; WCD 6-1982, f. 6-28-82, ef. 8-1-82; APD 6-1987, f. 12-23-87, ef. 1-1-88; APD 7-1988, f. 6-17-88, ef. 7-1-74

437-001-0231

Abatement Verification

(1) When an employer receives a citation for a violation of the Oregon Safe Employment Act, the employer must notify the appropriate OR-OSHA field office of the corrective action taken to comply with each cited violation by Letter of Corrective Action. Such notification must occur within 10 calendar days after the last abatement date on the citation.

(2) When the compliance officer notes that violations are complied with at the time of the inspection, abatement verification for those violations is not required.

(3) The employer's verification that abatement is complete must include, for each cited violation, the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement.

Stat. Auth.: ORS 654.025(2) & ORS 656.726(3)
Stats. Implemented: ORS 654.001 - ORS 654.295
Hist.: OSHA 7-1999, f. & cert. ef. 7-15-99

437-001-0235

Failure to Correct Violation

If a subsequent inspection reveals that a violation was not corrected, or was only partially corrected, by its correction date, a notice shall be issued to the employer which: (continued)