Chapter 3 – Inspection Procedures

I. Inspection Preparation.

The conduct of effective inspections requires judgment in the identification, evaluation, and documentation of safety and health conditions and practices. Inspections may vary considerably in scope and detail depending on the circumstances of each case.

II. Inspection Planning.

It is important that the Compliance Officer (CSHO) adequately prepare for each inspection. Due to the wide variety of industries and associated hazards likely to be encountered, pre-inspection preparation is essential to the conduct of a quality inspection.

A. Review of Inspection History.

1. Compliance Officers will carefully review data available at the Office for information relevant to the establishment scheduled for inspection. This may include inspection files and source reference material relevant to the industry. CSHOs will also conduct an establishment search by accessing the OIS database. CSHOs should use name variations and address-matching in their establishment search to maximize their efforts due to possible company name changes and status (e.g., LLC, Inc.).
2. If an establishment has an inspection history that includes citations received while performing work in other jurisdictions, i.e. OSHA or other states, CSHOs should be aware of this information. This inspection history may be used to document an employer’s heightened awareness of a hazard and/or standard in order to support the development of a willful citation and may be considered in determining eligibility for the history penalty reduction. However, the federal OSHA or other state citation may not be used to support a repeat violation.

B. Review of Cooperative Program Participation.

CSHOs will access the Inspection Exemption list in the shared drive to obtain information about employers who are currently participating in cooperative programs. CSHOs will verify whether the employer is a current program participant during the opening conference. CSHOs will be mindful of whether they are preparing for a programmed or un-programmed inspection, as this may affect whether the inspection should be conducted and/or its scope. See Paragraph V.D. of this chapter, Review of Voluntary Compliance Programs.

C. Safety and Health Issues Relating to CSHOs.

1. Hazard Assessment.
   If the employer has a written certification that a hazard assessment has been performed pursuant to §1910.132(d), the CSHO shall request a copy. If the hazard assessment itself is not in writing, the CSHO shall ask the person who signed the certification to describe all potential workplace hazards and then select appropriate protective equipment. If there is no hazard assessment, the CSHO will determine potential hazards from sources such as the OSHA 300 Log of injuries and illnesses and shall select personal protective equipment accordingly.
2. Respiratory Protection.
   CSHOs must wear respirators when and where required, and must care for and maintain respirators in accordance with the CSHO training provided.
   1. CSHOs should conduct a pre-inspection evaluation for potential exposure to chemicals. Prior to entering any hazardous areas, the CSHO should identify those work areas, processes, or tasks that require respiratory protection. The hazard assessment requirement in §1910.132(d) does not apply to respirators; see CPL 02-02-054, Respiratory Protection Program Guidelines, dated July 14, 2000. CSHOs should review all pertinent information contained in the establishment file and appropriate reference sources to become knowledgeable about the industrial processes and potential respiratory hazards that may be encountered. During the opening conference, a list of hazardous substances should be obtained or identified, along with any air monitoring results. CSHOs should determine if they have the appropriate respirator to protect against chemicals present at the work site.
   2. CSHOs must notify their supervisor or the respiratory protection program administrator:
      • If a respirator no longer fits well (CSHOs should request a replacement
        that fits properly);
      • If CSHOs encounter any respiratory hazards during inspections or onsite visits that they believe have not been previously or adequately
        addressed during the site visit; or
      • If there are any other concerns regarding the program
3. Safety and Health Rules and Practices.
   Section 12-51-7(c) requires that CSHOs comply with all safety and health rules and practices at the establishment and wear or use the safety clothing or protective equipment required by HIOSH standards or by the employer for the protection of employees.
4. Restrictions.
   CSHOs will not enter any area where special entrance restrictions apply until the required precautions have been taken. It shall be the Branch Manager’s responsibility to determine that an inspection may be conducted without exposing the CSHO to hazardous situations and to procure whatever materials and equipment are needed for the safe conduct of the inspection.
   
   NOTE: Also such restrictions apply 1) to facilities where incidents of workplace violence precipitated the inspections and 2) in industries OSHA has identified as having a high risk for workplace violence (specifically: late-night retail, social service and health care settings, and correctional facilities).
5. Workplace Violence — CSHO Training and Workplace Violence Prevention Programs.
   1. CSHO Training
      Prior to conducting an inspection in response to a complaint of a workplace violence, a CSHO must have received training that addresses the issues of workplace violence. Such training should include OSHA’s 1000 Course, HIOSH Office training, or other similar course work.
   2. DLIR Workplace Violence Prevention Programs.
      • CSHOs should be aware and familiar with the DLIR workplace violence program, located on the DLIR Intranet.
      • CSHOs should also be aware and familiar with the OSHA Safety and Health Management System, ADM 04-00-001, (May 23, 2011), as a guide.
   3. Establishment Workplace Violence Prevention Programs
      If the employer is in an industry OSHA has identified as a high risk for workplace violence (such as late-night retail, social service, and healthcare settings, and correctional facilities) the CSHO should inquire about the existence of a workplace violence prevention program. If such a program exists, the CSHO shall ask the person responsible for the program to describe all the potential workplace violence hazards. If there is no workplace violence prevention plan, the CSHO will determine potential workplace violence hazards from sources such as the OSHA 300 log of injuries and illnesses and other relevant records.
      
      NOTE: if training is provided to staff members on workplace violence, the CSHO should conduct the inspection with a staff member who has received the training. If the CSHO does not deem that the existing protections are sufficient, the CSHO should not enter the
   4. CSHOs must notify their supervisor if they experience or witness any incident of workplace violence.

D. Advance Notice of an Inspection.

1. Policy.
   §396-4(b)(6), Hawaii Revised Statutes contains a general prohibition against the giving of advance notice of inspections, except as authorized by the director or the director’s designee. The Law regulates many conditions that are subject to speedy alteration and disguise by employers. To forestall such changes in worksite conditions, the Law prohibits unauthorized advance notice, and further applies a penalty of up to $1,100 and/or imprisonment of up to six months for unauthorized advance notice.
   1. Advance Notice Exceptions.
      There may be occasions when advance notice is necessary to conduct an effective investigation. These occasions are narrow exceptions to the statutory prohibition against advance notice. Advance notice of inspections may be given only with the authorization of the Branch Manager or Administrator and only in the following situations:
      • In cases of apparent imminent danger to enable the employer to correct the danger as quickly as possible;
      • When the inspection can most effectively be conducted after regular business hours or when special preparations are necessary;
      • To ensure the presence of employer and employee representatives or other appropriate personnel who are needed to aid in the inspection; and
      • When giving advance notice would enhance the probability of an effective and thorough inspection; e.g., in complex fatality investigations.
        
        NOTE: The regulation at §12-51-6(b), HAR says that except in imminent danger situations and in other unusual circumstances, the advance notice authorized here “shall not be given more than twenty four hours before the inspection is scheduled to be conducted.”
   2. Delays
      Advance notice exists whenever HIOSH sets up a specific date or time with the employer for the CSHO to begin an inspection. Any delays in the conduct of the inspection shall be kept to an absolute minimum. Lengthy or unreasonable delays shall be brought to the attention of the Branch Manager. Advance notice generally does not include non-specific indications of potential future inspections.
      
      In unusual circumstances, the Branch Manager may decide that a delay is necessary. In those cases, the employer or the CSHO shall notify affected employee representatives, if any, of the delay and shall keep them informed of the status of the inspection.
2. Documentation.
   The conditions requiring advance notice and the procedures followed shall be documented in the case file.

E. Pre-Inspection Compulsory Process.

§12-51-4(b), HAR, authorizes the division to seek a warrant in advance of an attempted inspection if circumstances are such that “pre-inspection process (is) desirable or necessary.” §396-4(d)(5), HRS authorizes the division to issue administrative subpoenas to obtain evidence related to a HIOSH inspection or investigation. See Chapter 15, Legal Issues.

F. Personal Security Clearance.

Some establishments have areas that contain material or processes that are classified by the U.S. Government in the interest of national security. Whenever an inspection is scheduled for an establishment containing classified areas, the Branch Manager shall assign a CSHO who has the appropriate security clearances. The ATS Branch Manager shall ensure that an adequate number of CSHOs with appropriate security clearances are available within the state and that the security clearances are current.

G. Expert Assistance.

1. The Branch Manager shall arrange for a specialist and/or specialized training, preferably from within HIOSH or OSHA, to assist in an inspection or investigation when the need for such expertise is identified. Outside consultants may also be procured.
2. OSHA specialists may accompany CSHOs or perform their tasks separately. CSHOs must accompany outside consultants. OSHA specialists and outside consultants shall be briefed on the purpose of the inspection and personal protective equipment to be utilized.

III. Inspection Scope.

Inspections, either programmed or un-programmed, fall into one of two categories depending on the scope of the inspection:

A. Comprehensive.

A comprehensive inspection is a substantially complete and thorough inspection of all potentially hazardous areas of the establishment. An inspection may be deemed comprehensive even though, as a result of professional judgment, not all potentially hazardous conditions or practices within those areas are inspected.

B. Partial

A partial inspection is one whose focus is limited to certain potentially hazardous areas, operations, conditions or practices at the establishment.

1. A partial inspection may be expanded based on information gathered by the CSHO during the inspection process consistent with the Law and HIOSH priorities.
2. CSHOs shall use established written guidelines and criteria, such as HIOSH directives or guidelines, and LEPs, in conjunction with information gathered during the records or program review and walkaround inspection, to determine whether expanding the scope of an inspection is warranted.

IV. Conduct of Inspection.

A. Time of Inspection.

1. Inspections shall be made during regular working hours of the establishment except when special circumstances indicate otherwise.
2. The Branch Manager and the CSHO shall determine if alternate work schedules are necessary regarding entry into an inspection site during other than normal working hours.
   The Branch Manager must be cognizant of the appropriate collective bargaining unit contract when either temporarily modifying a CSHO’s work schedule or requiring overtime. When the work day is to be significantly modified, overtime should rarely be an option, as the CSHO would also still be required to be on duty during his/her regular work shift.

B. Presenting Credentials.

1. CSHOs are to present their credentials whenever they make contact with management representatives, employees (to conduct interviews), or organized labor representatives while conducting their inspections.
2. At the beginning of the inspection, the CSHO shall locate the owner representative, operator or agent in charge at the workplace and present credentials. On construction sites this will most often be the representative of the general contractor.
3. CSHOs should make sure that the person does actually represent owner/management and has the authority to allow the CSHO onto the worksite or work project by asking appropriate questions. If the individual cannot definitely state that they have such authority, the CSHO is to ask them to contact the employer by telephone and either obtain verbal approval to proceed with the inspection or await their arrival. See item 4. below.
4. The inspection shall not be delayed unreasonably to await the arrival of the employer representative. If the employer representative is coming from offsite, the inspection should not be delayed in excess of 45 minutes. If the workforce begins to depart from the worksite, the CSHO should contact the Branch Manager or Administrator for guidance. If the person in charge at the workplace cannot be determined, record the extent of the inquiry in the case file and proceed with the physical inspection.

C. Refusal to Permit Inspection and Interference.

§396-4(b)(1), Hawaii Revised Statutes, provides that CSHOs may enter without delay during regular working hours and at reasonable times any establishment covered under the Law for the purpose of conducting an inspection. Unless the circumstances constitute a recognized exception to the warrant requirement (i.e., consent, third party consent, plain view, open field, or exigent circumstances) an employer has a right to require that the CSHO seek an inspection warrant prior to entering an establishment and may refuse entry without such a warrant.
NOTE: On a military base or other Federal Government facility, the following guidelines do not apply. Instead, a representative of the controlling authority shall be informed of the contractor’s refusal and asked to take appropriate action to obtain cooperation.

1. Refusal of Entry or Inspection.
   1. When the employer refuses to permit entry upon being presented proper credentials, or allows entry but then refuses to permit or hinders the inspection in some way, an attempt shall be made to obtain as much information as possible about the establishment. See Chapter 15, Legal Issues, for additional information.
   2. If the employer refuses to allow an inspection of the establishment to proceed, the CSHO shall leave the premises and immediately report the refusal to the Branch Manager. The Branch Manager shall notify the Deputy Attorney General (DAG).
   3. If the employer raises no objections to inspection of certain portions of the workplace but objects to inspection of other portions, this shall be documented. Normally, the CSHO shall continue the inspection, confining it only to those certain portions to which the employer has raised no objections.
   4. In either case, the CSHO shall advise the employer that the refusal will be reported to the Branch Manager and that the division may take further action, which may include obtaining legal process; i.e. search warrant.
   5. On multi-employer worksites, valid consent can be granted by the owner, or another employer with employees at the worksite, for site entry.
2. Employer Interference.
   Where entry has been allowed but the employer interferes with or limits any important aspect of the inspection, the CSHO shall determine whether or not to consider this action as a refusal. See §12-51-4(a), HAR.
   Examples of interference are employer refusals to permit:
   • the walkaround;
   • the examination of records essential to the inspection;
   • the taking of essential photographs and/or videotapes;
   • the inspection of a particular part of the premises;
   • private employee interviews; or
   • the attachment of sampling devices.
3. Forcible Interference with Conduct of Inspection or Other Office Duties.
   Whenever a HIOSH employee encounters forcible resistance, opposition, interference, etc., or is assaulted or threatened with assault while engaged in the performance of official duties, all investigative activity shall cease.
   1. If a CSHO is assaulted while attempting to conduct an inspection or at any other time, they shall contact the proper authorities such as the police and immediately notify the Branch Manager.
   2. Upon receiving a report of such forcible interference, the Branch Manager shall immediately notify the Administrator.
   3. If working at an offsite location, CSHOs should leave the site immediately to a safe location pending further instructions from the Branch Manager.
4. Obtaining Compulsory Process.
   If it is determined, upon refusal of entry or refusal to produce evidence required by subpoena, that a warrant will be sought, the Branch Manager shall proceed according to guidelines and established procedures warrant applications. See Chapter 15, Legal Issues.

D. Employee Participation.

CSHOs shall advise employers that §396-8(c), HRS and §12-51-8, HAR require that an employee representative be given an opportunity to participate in the inspection.

1. CSHOs shall determine as soon as possible after arrival whether the workers at the inspected worksite are represented and, if so, shall ensure that employee representatives are afforded the opportunity to participate in all phases of the inspection.
2. If an employer resists or interferes with participation by employee representatives in an inspection and the interference cannot be resolved by the CSHO, the resistance shall be construed as a refusal to permit the inspection and the Branch Manager shall be contacted.

E. Release for Entry.

1. CSHOs shall not sign any form or release or agree to any waiver. This includes any employer forms concerned with trade secret information.
2. CSHOs may obtain a pass or sign a visitor’s register, or any other book or form used by the establishment to control the entry and movement of persons
   upon its premises. Such signature shall not constitute any form of a release or waiver of prosecution of liability under the Law.

F. Bankrupt or Out of Business.

1. If the establishment scheduled for inspection is found to have ceased business and there is no known successor, the CSHO shall report the facts to the Branch Manager.
2. If an employer, although bankrupt, is continuing to operate on the date of the scheduled inspection, the inspection shall proceed.
3. An employer must comply with the Law until the day the business actually ceases to operate.

G. Employee Responsibilities.

1. §396-8(a) of the Law states: “Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued under this chapter which are applicable to his own actions and conduct.” The Law does not provide for the issuance of citations or the proposal of penalties against employees. Employers are responsible for employee compliance with the standards.
2. In cases where CSHOs determine that employees are systematically refusing to comply with a standard applicable to their own action and conduct, the matter shall be referred to the Branch Manager who shall consult with the Administrator.
3. Under no circumstances are CSHOs to become involved in an onsite dispute involving labor-management issues or interpretation of collective-bargaining agreements. CSHOs are expected to obtain sufficient information to assess whether the employer is using its authority to ensure employee compliance with the Law. Concerted refusals to comply by employees will not bar the issuance of a citation if the employer has failed to exercise its control to the maximum extent reasonable, including discipline and discharge

H. Strike or Labor Dispute.

Plants or establishments may be inspected regardless of the existence of labor
disputes, such as work stoppages, strikes or picketing. If the CSHO identifies an
unanticipated labor dispute at a proposed inspection site, the Branch Manager
shall be consulted before any contact is made.

1. Programmed Inspections.
   Programmed inspections may be deferred during a strike or labor dispute, either between a recognized union and the employer or between two unions competing for bargaining rights in the establishment.
2. Un-programmed Inspections.
   1. Un-programmed inspections (complaints, fatalities, referrals, etc.) will be performed during strikes or labor disputes. However, the credibility and veracity of any complaint shall be thoroughly assessed by the Branch Manager prior to scheduling an inspection.
   2. If there is a picket line at the establishment, CSHOs shall attempt to locate and inform the appropriate union official of the reason for the inspection prior to initiating the inspection.
   3. During the inspection, CSHOs will make every effort to ensure that their actions are not interpreted as supporting either party to the labor dispute.

I. Variances.

The employer’s requirement to comply with a standard may be modified through granting of a variance, as outlined in §396-4(a)(3) of the Law.

1. An employer will not be subject to citation if the observed condition is in compliance with an existing variance issued to that employer.
2. In the event that an employer is not in compliance with the requirement(s) of the issued variance, a violation of the applicable standard shall be cited with a reference in the citation to the variance provision that has not been met.
3. In no case, shall a citation be issued for failure to comply with all of the terms of the variance only – there must be a specific violation of an applicable standard i.e. a hazard. Should the terms of the variance not be met, a memo shall be submitted to ATS Branch with the details of the failure to comply with the terms of the variance. The ATS manager, in consultation with the Administrator, may take appropriate action, including suspension or revocation of the variance.

V. Opening Conference.

A. General.

CSHOs shall attempt to inform all affected employers of the purpose of the inspection, provide a copy of the complaint if applicable, and include any employee representatives, unless the employer objects. The opening conference should be brief so that the compliance officer may quickly proceed to the walkaround. Conditions of the worksite shall be noted upon arrival, as well as any changes that may occur during the opening conference. At the start of the opening conference, CSHOs will inform both the employer and the employee representative(s) of their rights during the inspection, including the opportunity to participate in the physical inspection of the workplace. HIOSH Publication, Employer’s Bill of Rights, may be distributed.
CSHOs shall request a copy of the written certification that a hazard assessment has been performed by the employer in accordance with §1910.132(d). CSHOs should then ask the person who signed the certification about any potential worksite exposures and select appropriate personal protective equipment.

1. Attendance at Opening Conference.
   • CSHOs shall conduct a joint opening conference with employer and employee representatives unless either party objects.
   • If there is objection to a joint conference, the CSHO shall conduct separate conferences with employer and employee representatives.
2. Scope of Inspection.
   CSHOs shall outline in general terms the scope of the inspection, including the need for private employee interviews, physical inspection of the workplace and records, possible referrals, rights during an inspection, discrimination complaints, and the closing conference(s).
3. Video/Audio Recording.
   CSHOs shall inform participants that a video camera and/or an audio recorder may be used to provide a visual and/or audio record, and that the videotape and audiotape may be used in the same manner as handwritten notes and photographs in HIOSH inspections.
   NOTE: If an employer clearly refuses to allow videotaping during an inspection, CSHOs shall contact the Branch Manager to determine if videotaping is critical to documenting the case. If it is, this may be treated as a denial of entry.
4. Immediate Abatement.
   CSHOs should explain to employers the advantages of immediate abatement, including that there are no certification requirements for violations quickly corrected during the inspection. See Chapter 7, Post-Inspection Procedures and Abatement Verification.
5. Recordkeeping Rule.
   • The recordkeeping regulation at §1904.40(a) [see Chapter 52.1, HAR] states that once a request is made, an employer must provide the required recordkeeping records within four (4) business hours. The term business hour is when the location in Hawaii is normally open for business.
   • Although the employer has four hours to provide injury and illness records, the compliance officer is not required to wait until the records are provided before beginning the walkaround portion of the inspection. As soon as the opening conference is completed the compliance officer is to begin the walkaround portion of the inspection.
     NOTE: 29 CFR Part 1904 [See Chapter 52.1, HAR] has new requirements for reporting work-related fatalities, hospitalizations, amputations, or losses of an eye. The new rule, which also updates the list of employers partially exempt from OSHA record-keeping requirements, went into effect on January 1, 2015, for workplaces under federal OSHA jurisdiction, and on [Insert date] for workplaces under HIOSH jurisdiction. (See 79 FR 56129, Occupational Injury and Illness Recording and Reporting Requirements – NAICS Update and Reporting Revisions, September 19, 2014.)
6. Abbreviated Opening Conference.
   An abbreviated opening conference shall be conducted whenever the CSHO believes that circumstances at the worksite dictate the walkaround begin as promptly as possible.
   • In such cases, the opening conference shall be limited to:
     • presenting credentials;
     • stating the purpose of the visit;
     • explaining employer and employee rights; and
     • requesting employer and employee representatives.
       All other elements shall be fully addressed during the closing conference(s).
   • Pursuant to §396-8(c) of the Law, the employer and the employee representatives shall be informed of the opportunity to participate in the physical inspection of the workplace.

B. Review of Appropriation Act Exemptions and Limitation.

CSHOs shall determine if the employer is covered by any limitations noted in the current Appropriations Act. See CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, dated May 28, 1998, adopted by HIOSH on July 10, 1998. If the employer is covered, the notes shall so indicate, but the inspection shall still proceed. 100% state funds must be used for such inspections.

C. Review Screen for Process Safety Management (PSM) Coverage

CSHOs shall request a list of the chemicals on-site and their respective maximum intended inventories. CSHOs shall review the list of chemicals and quantities, and determine if there are highly hazardous chemicals (HHCs) listed in §1910.119, Appendix A or flammable liquids or gases at or above the specified threshold quantity. CSHOs may ask questions, conduct interviews, and/or conduct a walkaround to confirm the information on the list of chemicals and maximum intended inventories.

1. If there is an HHC present at or above threshold quantities, CSHOs shall use the following criteria to determine if any exemptions apply:
   1. CSHOs shall confirm that the facility is not a retail facility, oil or gas well drilling or servicing operation, or normally unoccupied remote facility (§1910.119(a)(2)). If the facility is one of these types of establishments, PSM does not apply.
   2. If management believes that the process is exempt, CSHOs shall ask the employer to provide documentation or other information to support that claim. 2.
2. According to §1910.119 (a)(1)(ii), a process could be exempt if the employer can demonstrate that the covered chemical(s) are:
   1. Hydrocarbon fuels used solely for workplace consumption as a fuel (e.g., propane used for comfort heating, gasoline for vehicle refueling), if such fuels are not a part of a process containing another highly hazardous chemical covered by the standard, or
   2. Flammable liquids with a flashpoint below 100ºF (37.8ºC) stored in atmospheric tanks or transferred, which are kept below their normal boiling point without the benefit of chilling or refrigeration.
      NOTE: Current agency policies for applying exemptions can be found on the OSHA website. See CPL 03-00-010, Petroleum Refinery Process Safety Management National Emphasis Program, dated August 18, 2009, adopted by HIOSH on October 1, 2009.

D. Review of Voluntary Compliance Programs.

Employers who participate in selected voluntary compliance programs may be exempted from programmed inspections. CSHOs shall determine whether the employer falls under such an exemption during the opening conference.

1. OSHA On-Site Consultation Visits.
   1. In accordance with §1908.7 and Chapter VII of CSP 02-00-003, The Consultation Policies and Procedures Manual, CSHOs shall ascertain at the opening conference whether an OSHA-funded (21(d)) consultation visit is in progress. A consultation visit-in-progress extends from the beginning of the opening conference to the end of the correction due dates (including extensions).
   2. An on-site consultation visit-in-progress has priority over programmed inspections except for imminent danger investigations, fatality/catastrophe investigations, complaint investigations, and other critical inspections as determined by the Administrator. See §1908.7(b)(2).

2. Safety and Health Achievement Recognition Program (SHARP).
   1. Although any SHARP and Pre-SHARP employer should have been identified by the CSHO during the inspection preparation period, should the employer claim the inspection exemption, the CSHO should verify the status by requesting a copy of the participation letter. If the employer is not able or willing to produce the letter accepting them into SHARP or PreSHARP, the CSHO shall contact the Branch Manager to assist in determining the actual status of the employer. Once verified, the log of SHARP participants in the HIOSH shared file shall be amended to reflect the employer’s participation status, and the inspection deferred for the approved exemption period.
   2. The initial exemption period is up to two years. The renewal exemption period is up to three years, based on the recommendation of the Consultation Project Manager.
3. Hawaii Voluntary Protection Program (HVPP). Inspections at a HVPP site may be conducted in response to referrals, formal complaints, fatalities, and catastrophes.
   NOTE: A Compliance Officer who was previously an HVPP on-site team member will generally not conduct an enforcement inspection at that HVPP site for the following 2 years or until the site is no longer a HVPP participant, whichever occurs first. See CSP 03-01-003, Voluntary Protection Programs (VPP): Policies and Procedures Manual, dated April 18, 2008, and adopted by HIOSH on December 27, 2014.

E. Disruptive Conduct

CSHOs may deny the right of accompaniment to any person whose conduct interferes with a full and orderly inspection. See §1903.8(d). If disruption or interference occurs, the CSHO shall contact the Branch Manager or designee as to whether to suspend the walkaround or take other action. The employee representative shall be advised that during the inspection matters unrelated to the inspection shall not be discussed with employees.

F. Classified Areas

In areas containing information classified by an agency of the U.S. Government in the interest of national security, only persons authorized to have access to such information may accompany a CSHO on the inspection. See §12-51-8(e), HAR.

VI. Review of Records.

A. Injury and Illness Records.

1. Collective of Data.
   1. At the start of each inspection, the CSHO shall review the employer’s injury and illness records for five prior calendar years, record the information on a copy of the OSHA-300 screen, and enter the employer’s data using the OIS Application on the NCR (micro). This shall be done for all general industry, construction, maritime, and agriculture inspections and investigations.
   2. CSHOs shall use these data to calculate the Days Away, Restricted, or Transferred (DART) rate and to observe trends, potential hazards, types of operations and work-related injuries
   3. If recordkeeping deficiencies or unsound employer safety incentive policies are discovered, the CSHO and the Branch Manager may request assistance from the ATS Manager, who may coordinate technical assistance from the OSHA Regional Recordkeeping Coordinator. See Richard E. Fairfax Memo, Employer Safety Incentive and Disincentive Policies and Procedures (March 12, 2012) at: http://www.osha.gov/as/opa/whistleblowermemo.html.
2. information to be Obtained.
   1. CSHOs shall request copies of the OSHA-300 Logs, the total hours worked and the average number of employees for each year, and a roster of current employees.
   2. If CSHOs have questions regarding a specific case on the log, they shall request the OSHA-301s or equivalent form for that case.
   3. CSHOs shall check if the establishment has an on-site medical facility and/or the location of the nearest emergency room where employees may be treated.
      NOTE: The total hours worked and the average number of employees for each year can be found on the OSHA-300A for all past years.
3. Automatic DART Rate Calculation.
   CSHOs will not normally need to calculate the Days Away, Restricted, or Transferred (DART) rate since it is automatically calculated when the OSHA300 data are entered into the OIS. If one of the five years is a partial year, so indicate and the software will calculate accordingly.
4. Manual DART Rate Calculation.
   If it is necessary to calculate rates manually, the CSHO will need to calculate the DART Rates individually for each calendar year using the following procedures. The DART rate includes cases involving days away from work, restricted work activity, and transfers to another job.

The formula is:

(N/EH) x (200,000) where:

• N is the number of cases involving days away and/or restricted work activity and job transfers
• EH is the total number of hours worked by all employees during the calendar year; and
• 200,000 is the base number of hours worked for 100 full-time equivalent employees.

EXAMPLE 3-1: Employees of an establishment (XYZ Company), including management, temporary and leased workers, worked 645,089 hours at XYZ company. There were 22 injury and illness cases involving days away and/or restricted work activity and/or job transfer from the OSHA-300 Log (total of column H plus column I). The DART rate would be (22÷645,089) x (200,000) = 6.8

5. Construction.
   For construction inspections/investigations, only the OSHA-300 information for the prime/general contractor need be recorded where such records exist and are maintained. It will be left to the discretion of the Branch Manager or the CSHO as to whether OSHA-300 data should also be recorded for any of the subcontractors.

B. Recording Criteria.

Employers must record new work-related injuries and illnesses that meet one or more of the general recording criteria or meet the recording criteria for specific types of conditions.

1. Death;
2. Days Away from Work;
3. Restricted Work;
4. Transfer to another job;
5. Medical treatment beyond first aid;
6. Loss of consciousness;
7. Diagnosis of a significant injury or illness; or
8. Meet the recording criteria for Specific Cases noted in §1904.8 through §1904.11. (see Chapter 12-52.1, HAR, Recording & Reporting Occupational Injuries and Illnesses)

C. Recordkeeping Deficiencies.

1. If recordkeeping deficiencies are suspected, the CSHO and the Branch Manager or designee may request assistance from the ATS Branch Manager. If there is evidence that the deficiencies or inaccuracies in the employer’s records impairs the ability to assess hazards, injuries and/or illnesses at the workplace, a comprehensive records review shall be performed.
2. Other information related to this topic:
   1. See CPL 02-00-135, Recordkeeping Policies and Procedures Manual, dated September 3, 2004, and CPL 02-02-072, Rules of Agency Practice and Procedure concerning OSHA Access to Employee Medical Record for Policy Regarding Review of Medical and Exposure Records, dated August 22, 2007, adopted by HIOSH on December 19, 2007.
   2. Other OSHA programs and records will be reviewed including hazard communication, lockout/tagout, emergency evacuation and personal protective equipment. Additional programs will be reviewed as necessary.
   3. Many standard-specific directives provide additional instruction to CSHOs requesting certain records and/or documents at the opening conference.
   4. There are several types of workplace policies and practices that could discourage employee reports of injuries and could constitute a violation of section 8(e) of the HIOSH Law. These policies and practices, otherwise known as employer safety incentive and disincentive policies and practices, may also violate OSHA/HIOSH recordkeeping regulations. OSHA enumerated the most common potentially discriminatory policies in the (March 12, 2012) Memorandum from OSHA Deputy Asst. Sec. Richard E. Fairfax: Employer Safety Incentive and Disincentive Policies and Practices. (http://www.osha.gov/as/opa/whistleblowermemo.html)

VII. Walkaround Inspection.

The main purpose of the walkaround inspection is to identify potential safety and/or health hazards in the workplace. CSHOs shall conduct the inspection in such a manner as to avoid unnecessary personal exposure to hazards and to minimize unavoidable personal exposure to the extent possible.

A. Walkaround Representatives.

Persons designated to accompany CSHOs during the walkaround are considered walkaround representatives, and will generally include those designated by the employer and employee. At establishments where more than one employer is present or in situations where groups of employees have different representatives, it is acceptable to have a different employer/employee representative for different phases of the inspection. More than one employer and/or employee representative may accompany the CSHO throughout or during any phase of an inspection if the CSHO determines that such additional representatives will aid, and not interfere with, the inspection. See §12-51-8(a).

The importance of worker protection to an effective workplace safety and health inspection was clearly established in §396-8(c), HRS, which provides that “an opportunity shall be provided for employees and their representatives to bring possible violations to the attention of the authorized representative of the director conducting said inspection in order to aid inspections. This requirement may be fulfilled by allowing a representative of the employees and a representative of the employer to accompany the director’s authorized representative during the physical inspection of the workplace, or in absence of the employees’ representative, there shall be a consultation with a reasonable number of employees.”

However, §12-51-8(e), HAR, states that “Safety and health compliance officers are authorized to deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection,” which includes any activity not directly related to conducting an effective and thorough physical inspection of the workplace.

1. Employees Represented by a Certified or Recognized Bargaining Agent.
   During the opening conference, the highest ranking union official or union employee representative on-site shall designate who will participate in the walkaround. HIOSH administrative rule §12-51-8(b) gives the CSHO the authority to resolve all disputes as to whom is the representative authorized by the employer and employees. Section 12-51-8(c), HAR states that the representative authorized by the employees should be an employee of the employer. If in the judgment of the CSHO, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany CSHOs during the inspection. It is HIOSH’s view that representatives are “reasonably necessary”, when they make a positive contribution to a thorough and effective inspection.
2. No Certified or Recognized Bargaining Agent.
   Where employees are not represented by an authorized representative, there is no established safety committee, or employees have not chosen or agreed to an employee representative for HIOSH inspection purposes (regardless of the existence of a safety committee), CSHOs shall determine if other employees would suitably represent the interests of employees on the walkaround.
   If selection of such an employee is impractical, CSHOs shall conduct interviews with a reasonable number of employees during the walkaround.
   In some cases, workers without a certified or recognized bargaining agent may authorize third party organizations and/or individuals to be their representatives during an inspection. As with non-employee representatives authorized by workers with a recognized bargaining agent, allowing this category of third party representative to accompany HIOSH compliance officers on an inspection is appropriate if the representative will help achieve an effective and thorough health and safety inspection. The purpose of a walkaround representative is to assist the inspection by helping the compliance officer receive valuable health and safety information from workers who may not be able or willing to provide such information absent the third party participants.
3. Safety Committee or Employees at Large.
   Employee members of an established plant safety committee or employees at large may designate an employee representative for HIOSH inspection purposes.

B. Evaluation of Safety and Health Management System.

The employer’s compliance with Hawaii’s safety and health program requirement shall be evaluated to determine compliance with the law, to determine good faith for the purposes of penalty calculation, as well as to assist the employer in improving their overall injury and illness prevention program. See Chapter 6, Penalties and Debt Collection.

C. Record All Facts Pertinent to a Violation.

1. Safety and health violations shall be brought to the attention of employer and employee representatives at the time they are documented.
2. CSHOs shall record, at a minimum, the identity of the exposed employee(s), the hazard to which the employee was exposed, the employee’s proximity to the hazard, the employer’s knowledge of the condition, the manner in which important measurements were obtained, and how long the condition has existed.
3. CSHOs will document interview statements in a thorough and accurate manner; including names, dates, times, locations, type of materials, positions of pertinent articles, witnesses, etc.
   NOTE: If employee exposure to hazards is not observed, the CSHO shall document facts on which the determination is made that an employee has been or could be exposed. See Chapter 4, Violations and Chapter 5, Case File Preparation and Documentation.

D. Testifying in Hearings.

CSHOs may be required to testify in hearings on HIOSH’s behalf, and shall be mindful of this fact when recording observations during inspections. The case file shall reflect conditions observed in the workplace as accurately and detailed as possible.

E. Trade Secrets.

A trade secret, as referenced in Section 396-13 of the Law, includes information concerning or related to processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association.

1. Policy.
   It is essential to the effective enforcement of the Law that CSHOs and HIOSH personnel preserve the confidentiality of all information and investigations which might reveal a trade secret.
2. Restriction and Controls.
   At the commencement of an inspection, the employer may identify areas in the establishment which contain or which might reveal a trade secret. If the CSHO has no clear reason to question such identification, information obtained in such areas, including all negatives, photographs, videotapes, environmental samples and HIOSH documentation forms, shall be labeled: “CONFIDENTIAL – TRADE SECRET”
   1. Under Section 396-13 of the Law, all information reported to or obtained by CSHOs in connection with any inspection or other activity which contains or which might reveal a trade secret shall be kept confidential. Such information shall not be disclosed except to other HIOSH officials concerned with the enforcement of the Law or, when relevant, in any proceeding under the Law.
   2. Trade secret materials shall not be labeled as “Top Secret,” or “Secret,” nor shall these security classification designations be used in conjunction with other words unless the trade secrets are also classified by an agency of the U.S. Government in the interest of national security.
3. If the employer objects to the taking of photographs and/or video-tapes because trade secrets would or may be disclosed, CSHOs should advise the employer of the protection against such disclosure afforded by Section 396-13 of the Law and §12-51-9, HAR. If the employer still objects, CSHOs shall contact the Branch Manager or Administrator.

F. Collecting Samples.

1. CSHOs shall determine early in the inspection whether sampling such as, but not limited to, air sampling and surface sampling is required, by utilizing the information collected during the walk around and from the pre-inspection review.
2. Summaries of sampling results shall be provided on request to the appropriate employees (including those exposed or likely to be exposed to a hazard), to employer representatives and to employee representatives.

G. Photographs and Videotapes.

1. Photographs and/or videotapes, shall be taken whenever CSHOs determine there is a need.
   1. Photographs that support violations shall be properly labeled, and may be attached to the appropriate Violation (OSHA-1B).
   2. CSHOs shall ensure that any photographs relating to confidential trade secret information are identified as such and are kept separate from other evidence.
2. All film and photographs or videotape shall be retained in the case file. If lack of storage space does not permit retaining the film, photographs or videotapes with the file, they may be stored elsewhere with a reference to the corresponding inspection. Videotapes shall be properly labeled. For more information regarding guidelines for case file documentation with video, audio and digital media, see OSHA Instruction CPL 2-98 (02-00-098), Guidelines for Case File Documentation for Use with Videotapes and Audiotapes, dated October 12, 1993, adopted by HIOSH on December 20, 1993, [and any other directives related to photograph and videotape retention.]

H. Violations of Other Laws.

If a CSHO observes apparent violations of laws enforced by other government agencies, such cases shall be referred to the appropriate agency via the Administrator’s office.

I. Interviews of Non-Managerial Employees.

A free and open exchange of information between CSHOs and employees is essential to an effective inspection. Interviews provide an opportunity for employees to supply valuable factual information concerning hazardous conditions, including information on how long workplace conditions have existed, the number and extent of employee exposure(s) to a hazardous condition, and the actions of management regarding correction of a hazardous condition.

1. Background.
   1. Section 396-4(b)(5), HRS authorizes CSHOs to question any employee privately during regular working hours or at other reasonable times during the course of a HIOSH inspection. The purpose of such interviews is to obtain whatever information CSHOs deem necessary or useful in carrying out inspections effectively. The mandate to interview employees in private is HIOSH’s right.
   2. Employee interviews are an effective means to determine if an advance notice of inspection has adversely affected the inspection conditions, as well as to obtain information regarding the employer’s knowledge of the workplace conditions or work practices in effect prior to, and at the time of, the inspection. During interviews with employees, CSHOs should ask about these matters.
   3. CSHOs should also obtain information concerning the presence and/or implementation of a safety and health system to prevent or control workplace hazards.
   4. If an employee refuses to be interviewed, the CSHO shall use professional judgment, in consultation with the Branch Manager or Administrator, in determining the need for the statement.
2. Employee Right of Complaint.
   CSHOs may consult with any employee who desires to discuss a potential violation. Upon receipt of such information, CSHOs shall investigate the alleged hazard, where possible, and record the findings.
3. Time and Location of Interview.
   CSHOs are authorized to conduct interviews during regular working hours and at other reasonable times, and in a reasonable manner at the workplace. Interviews often occur during the walkaround, but may be conducted at any time during an inspection. If necessary, interviews may be conducted at locations other than the workplace. CSHOs should consult with the Branch Manager if an interview is to be conducted someplace other than the workplace. Where appropriate, HIOSH has the authority to subpoena an employee to appear at the Office for an interview.
   Interviews should not be conducted at the employee’s home. If the interview of a particular employee who is unable to leave his or her home is determined to be critical to the inspection/investigation, another CSHO should be present to ensure safety of the inspection team.
4. Conducting Interviews of Non-Managerial Employees in Private.
   CSHOs shall inform employers that interviews of non-managerial employees will be conducted in private. CSHOs are entitled to question such employees in private regardless of employer preference. If an employer interferes with a CSHOs ability to do so, the CSHO should request that the Branch Manager consult with DAG to determine appropriate legal action. Interference with a CSHO’s ability to conduct private interviews with non-managerial employees includes, but is not limited to, attempts by management officials or representatives to be present during interviews.
5. Conducting Employee Interviews.
   • General Protocols.
     • At the beginning of the interview CSHOs should identify themselves to the employee by showing their credentials, and provide the employee with a business card. This allows employees to contact CSHOs if they have further information at a later time.
     • CSHOs should explain to employees that the reason for the interview is to gather factual information relevant to a safety and health inspection. It is not appropriate to assume that employees already know or understand the agency’s purpose. Particular sensitivity is required when interviewing a non-English speaking employee. In such instances, CSHOs should initially determine whether the employee’s comprehension of English is sufficient to permit conducting an effective interview. If an interpreter is needed, the Branch Manager should be consulted. If the Branch Manager agrees that the employee’s information is critical, he/she shall arrange for an interpreter.
     • Every employee should be asked to provide his or her name, home address and phone number. CSHOs should request identification and make clear the reason for asking for this information, i.e. should there be a need to obtain additional information or a need to testify. CSHOs should advise the employee that the division will make every attempt to keep their names and statements confidential and should there be a need to appear at a hearing, they would be asked for their consent.
     • CSHOs shall inform employees that OSHA has the right to interview them in private and of the protections afforded under Section 396-8(e) of the Law.
     • In the event an employee requests that a representative of the union be present, CSHOs shall make a reasonable effort to honor the request.
     • If an employee requests that his/her personal attorney be present during the interview, CSHOs should honor the request and, before continuing with the interview, consult with the Branch Manager for guidance.
     • Rarely, an attorney for the employer may claim that individual employees have also authorized the attorney to represent them. Such a situation creates a potential conflict of interest. CSHOs should ask the affected employees whether they have agreed to be represented by the attorney. If the employees indicate that they have, CSHOs should consult with the Branch Manager, who will contact DAG.
   • Interview Statements
     Interview statements of employees or other persons shall be obtained whenever CSHOs determine that such statements would be useful in documenting potential violations. Interviews shall normally be reduced to writing and written in the first person in the language of the individual. Employees shall be encouraged to sign and date the statement.
     • Any changes or corrections to the statement shall be initialed by the individual. Statements shall not otherwise be changed or altered in any manner.
     • Statements shall include the words, “I request that my statement be held confidential to the extent allowed by law” and end with the following; “I have read the above, and it is true to the best of my knowledge.”
     • If the person making the declaration refuses to sign, the CSHO shall note the refusal on the statement. The statement shall, nevertheless, be read back to the person in an attempt to obtain agreement and noted in the case file.
     • A transcription of any recorded statement shall be made when necessary to the case.
     • Upon request, if an employee (management or otherwise) requests a copy of his/her interview statement, one shall be given to them.
   • The Informant Privilege.
     • The informant privilege allows the State to withhold the identity of individuals who provide information about the violation of laws, including HIOSH rules and regulations. See §396-8(f), HRS. CSHOs shall inform employees that their statements will remain confidential to the extent permitted by law. However, each employee giving a statement should be informed that disclosure of his or her identity may be necessary in connection with enforcement or court actions.
       NOTE: Whenever CSHOs make an assurance of confidentiality as part of an investigation (i.e. informs the person giving the statement that their identity will be protected), the pledge shall be reduced to writing and included in the case file.
     • The privilege also protects the contents of statements to the extent that disclosure may reveal the witness’s identity. Where the contents of a statement will not disclose the identity of the informant (i.e., does not reveal the witness’ job title, work area, job duties, or other information that would tend to reveal the individual’s identity), the privilege does not apply. Interviewed employees shall be told that they are under no legal obligation to inform anyone, including employers, that they provided information to HIOSH. Interviewed employees shall also be informed that if they voluntarily disclose such information to others, it may impair the division’s ability to invoke the privilege.

J. Multi-Employer Worksites.

On multi-employer worksites (in all industry sectors), more than one employer may be cited for a hazardous condition that violates a HIOSH/OSHA standard. A two-step process must be followed in determining whether more than one employer is to be cited. See Chapter 12, Specialized Inspection Procedures, Section I, Multi-Employer Workplace/Worksite for details on the two-step process and definitions.

K. Administrative Subpoena.

Whenever there is a reasonable need for records, documents, testimony and/or other supporting evidence necessary for completing an inspection scheduled in accordance with any current and approved inspection scheduling system or an investigation of any matter properly falling within the statutory authority of the agency, the Administrator or Branch Manager, if designated, may issue an administrative subpoena. See Chapter 15, Legal Issues.

L. Employer Abatement Assistance.

1. Policy.
   CSHOs shall offer appropriate abatement assistance during the walkaround as to how workplace hazards might be eliminated. The information shall provide guidance to the employer in developing acceptable abatement methods or in seeking appropriate professional assistance. CSHOs shall not imply HIOSH/OSHA endorsement of any product through use of specific product names when recommending abatement measures. The issuance of citations shall not be delayed.
2. Disclaimers
   The employer shall be informed that:
   1. The employer is not limited to the abatement methods suggested by HIOSH;
   2. The methods explained are general and may not be effective in all cases; and
   3. The employer is responsible for selecting and carrying out an effective abatement method, and maintaining the appropriate documentation.

VIII. Closing Conference.

A. Participants.

At the conclusion of an inspection, CSHOs shall conduct a closing conference with the employer and the employee representatives, jointly or separately, as circumstances dictate. While the closing conference should be conducted on-site occasionally a telephone closing conference may be appropriate. If the employer refuses to allow a closing conference, the circumstances of the refusal shall be documented in the Narrative (OSHA-1A) and the case shall be processed as if a closing conference had been held.
NOTE: When conducting separate closing conferences for employers and labor representatives (where the employer has declined to have a joint closing conference with employee representatives), CSHOs shall normally hold the conference with employee representatives first, unless the employee representative requests otherwise. This procedure will ensure that worker input is received before employers are informed of violations and proposed citations.

B. Discussion Items.

1. CSHOs shall discuss the apparent violations and other pertinent issues found during the inspection and note relevant comments on the Violation (OSHA1B), including input for establishing correction dates.
2. CSHOs shall give employers the handout HIOSH-10, “After the Inspection,” which explains the responsibilities and courses of action available to the employer if a citation is issued. They shall then briefly discuss the information in the handout and answer any questions. All matters discussed during the closing conference shall be documented in the case file, including a note describing printed materials distributed.
3. Whether proposing citations of Hawaii’s safety and health program requirement or not, CSHOs shall discuss the strengths and weaknesses of the employer’s occupational safety and health system and any other applicable programs, and advise the employer of the benefits of an effective program(s) and provide information, such as, OSHA’s website, describing program elements.
4. Both the employer and employee representatives shall be advised of their rights to participate in any subsequent conferences, meeting or discussions, and their contest rights. Any unusual circumstances noted during the closing conference shall be documented in the case file.
5. Since CSHOs may not have all pertinent information at the time of the first closing conference, a second closing conference may be held by telephone or in person.
6. CSHOs shall advise employee representatives that:
   1. Under §396-11(j), HRS, if an employer contests a citation, the affected employees or representatives of affected employees have a right to elect “party status” before the Hawaii Labor Relations Board;
   2. The employer should notify them if a notice of contest or a petition for modification of abatement date is filed;
   3. They have Section 8(e) rights; and
   4. They have a right to contest the abatement date. Such contests must be in writing and must be postmarked within 20 calendar days after the citation has been posted (§396-11(d), HRS).

C. Advice to Attendees.

1. The CSHO shall advise those attending the closing conference that a request for an informal conference with the Branch Manager is encouraged as it provides an opportunity to:
   1. Resolve disputed citations and penalties without the need for litigation which can be time consuming and costly;
   2. Obtain a more complete understanding of the specific safety or health standards which apply;
   3. Discuss ways to correct the violations;
   4. Discuss issues concerning proposed penalties;
   5. Discuss proposed abatement dates;
   6. Discuss issues regarding employee safety and health practices; and
   7. Learn more of other HIOSH programs and services available.
2. If a citation is issued, an informal conference or the request for one does not extend the 20 calendar-day period in which the employer or employee representatives may contest.
3. Oral disagreement or expression(s) during an informal conference, of intent to contest a citation, penalty or abatement date does not replace the requirement that the employer’s Notice of Contest be in writing.
4. Employee representatives have the right to participate in informal conferences or negotiations between the Branch Manager and the employer in accordance with the guidelines given in Chapter 7, Section II., Informal Conferences.

D. Penalties.

CSHOs shall explain that penalties must be paid within 20 calendar days after the employer receives a citation and notification of penalty. If, however, an employer contests the citation and/or the penalty, penalties need not be paid for the contested items until the date that the citation/notification of penalty becomes a final order.

E. Feasible Administrative, Work Practice, and Engineering Controls.

Where appropriate, CSHOs will discuss control methodology with the employer during the closing conference.

1. Definitions.
   1. Engineering Controls: Consist of substitution, isolation, ventilation and equipment modification.
   2. Administrative Controls: Any procedure which significantly limits daily exposure by control or manipulation of the work schedule or manner in which work is performed is considered a means of administrative control. The use of personal protective equipment is not considered a means of administrative control.
   3. Work Practice Controls: Methods as changing work habits, improving sanitation and hygiene practices, or making other changes in the way the employee performs the job, in order to reduce or eliminate employee exposure to the hazard.
   4. Feasibility: Abatement measures required to correct a citation item are feasible when they are capable of being done. The CSHO, following current directions and guidelines, shall inform the employer, where appropriate, that a determination will be made as to whether engineering or administrative controls are feasible.
   5. Technical Feasibility: The existence of technical know-how as to materials and methods available or adaptable to specific circumstances, which can be applied to a cited violation with a reasonable possibility that employee exposure to occupational hazards will be reduced.
   6. Economic Feasibility: This means that the employer is financially able to undertake the measures necessary to abate the citations received. While additional time may be granted to abate the citations, economic feasibility is not considered as to whether the employer is required to correct cited hazards. §12-50-2, HAR defines “infeasible” as “it is impossible to perform the work using all available means and practices or that it is technologically impossible to use safety equipment or safe practices.” Employee protection is required regardless of the employer’s financial situation.
2. Documenting Claims of Infeasibility.
   1. CSHOs shall document the underlying facts that may support an employer’s claim of infeasibility.
   2. When economic infeasibility is claimed, the CSHO shall inform the employer that, although the cost of corrective measures to be taken will generally not be considered as a factor in the issuance of a citation, it may be considered in determining the abatement period. Further, that they should request an informal conference to discuss alternative abatement methods as well as possible penalty reductions and/or installment payment plans.

F. Reducing Employee Exposure.

Employers shall be advised that, whenever feasible, engineering, administrative or work practice controls must be instituted, even if they are not sufficient to eliminate the hazard (or to reduce exposure to or below the permissible exposure limit). They are required in conjunction with personal protective equipment to further reduce exposure to the lowest practical level.

G. Abatement Verification.

During the closing conference the Compliance Officer should thoroughly explain to the employer the abatement verification requirements. See Chapter 7, Post Inspection Procedures and Abatement Verification.

1. Abatement Certification.
   Abatement certification is required for all citation item(s) that the employer receives, except those identified as “Corrected During Inspection.”
2. Corrected During Inspection (CDI).
   The violation(s) that will reflect on-site abatement and will be identified in the citations as “Corrected During Inspection” shall be reviewed at the closing conference.
3. Abatement Documentation.
   Abatement documentation, the employer’s physical proof of abatement, is required to be submitted along with each willful, repeat and designated serious violation. To minimize confusion, the distinction between abatement certification and abatement documentation should be discussed.
4. Placement of Danger or Warning Tags on Movable Equipment.
   The required placement of warning tags or the citation must also be discussed at the closing conference. Danger tags attached by the CSHO should also be explained both during the walkaround portion and during the closing conference. See §12-51-22(j), HAR.
5. Requirements for Extended Abatement Periods.
   Where extended abatement periods are involved, the requirements for abatement plans and progress reports shall be discussed.

H. Employee Discrimination.

The CSHO shall emphasize that the Law prohibits employers from discharging or discriminating in any way against an employee who has exercised any right under the Law, including the right to make safety or health complaints or to request a HIOSH/OSHA inspection.

IX. Special Inspection Procedures.

A. Follow-up and Monitoring Inspections.

The primary purpose of a follow-up inspection is to determine if the previously cited violations have been appropriately corrected. Monitoring inspections are conducted to ensure that hazards are being abated and employees protected, whenever a long period of time is needed for an establishment to come into compliance (or to verify compliance with the terms of granted variances). Issuance of willful, repeated and high gravity serious violations, failure to abate notifications, and/or citations related to imminent danger situations are examples of prime candidates for follow-up or monitoring inspections. These type of inspections will not normally be conducted when evidence of abatement is provided by the employer or employee representative(s).
Note: The evidence of abatement must be of a quality that the division can be assured that the completed corrective action has satisfactorily met all applicable requirements for employee protection, e.g. a copy of an invoice submitted as evidence of installing a guardrail is not sufficient to determine whether the guardrail meets the requirements of the applicable standard.

1. Failure to Abate.
   1. A failure to abate exists when a previously cited violation continues unabated and the abatement date has passed, or the abatement date is covered under a settlement agreement, or the employer has not complied with interim measures within the allotted time specified in a long-term abatement plan.
   2. If previously cited items have not been corrected, a Notice of Failure to Abate Alleged Violation shall normally be issued. If a subsequent inspection indicates the condition has still not been abated, the DAG shall be consulted for further guidance.
      NOTE: If the employer has demonstrated a good faith effort to comply, a late Petition for Modification of Abatement (PMA) may be considered in accordance with Chapter 7, Section III, Petition for Modification of Abatement (PMA).
   3. If an originally cited violation has at one point been abated but subsequently recurs, a citation for a repeated violation may be appropriate.
2. Reports
   1. For any items found to be abated, a copy of the previous Violation (OSHA1B), Violation (OSHA-1B-IH), or citation can be notated as “corrected”, along with a brief explanation of the abatement measures taken. This information may alternately be included in the narrative of the investigative file.
   2. In the event that any item has not been abated, complete documentation shall be included on a Violation (OSHA-1B).
3. Follow-up Files
   Follow-up inspection reports shall be included with the original (parent) case file.

B. Construction Inspections.

1. Standards Applicability.
   The Hawaii standards published as Title 12, Subtitle 8, Part 3, Construction Standards, apply to every employment and place of employment of every employee engaged in construction work, including non-contract construction. Differences exist between Hawaii and OSHA standards for construction work and the CSHO is expected to be able to explain the differences to the employer. Major differences affect safety and health program obligations, jobsite inspection requirements, bloodborne pathogens, traffic control signs and devices, steel erection and in the use of cranes and derricks.
2. Definition.
   The term “construction work” as defined by §12-50-2, HAR means work for construction, alteration, and/or repair, including painting and decorating, erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of the existing transmission and distribution lines and equipment. These terms are also discussed in §12- 110-1, HAR. If any question arises as to whether an activity is deemed to be construction for purposes of the Law, the Administrator shall be consulted.
3. Employer Worksite.
   Inspections of employers in the construction industry are not easily separable into distinct worksites. The worksite is generally the site where the construction is being performed (e.g., the building site, the dam site). Where the construction site extends over a large geographical area (e.g., road building), the entire job will be considered a single worksite.
4. Upon Entering the Workplace.
   1. CSHOs shall ascertain whether there is a representative of a federal contracting agency at the worksite. If so, they shall contact the representative, advise him/her of the inspection and request that they attend the opening conference.
   2. If the inspection is being conducted as a result of a complaint, a copy of the complaint is to be furnished to the general contractor and any affected sub-contractors.
5. Closing Conference.
   Upon completion of the inspection, the CSHO shall confer with the general contractor(s) and all appropriate subcontractors or their representatives, together or separately, and advise each one of all the apparent violations disclosed by the inspection to which each one’s employees were exposed, or violations which the employer created or controlled. Employee representatives participating in the inspection shall also be afforded the right to participate in the closing conference(s).