(a) Upon a refusal to permit the Compliance Safety and Health Officer, in exercise of his official duties, to enter without delay and at reasonable times any place of employment or any place therein, to inspect, to review records, or to question any employer, owner, operator, agent, or employee, in accordance with § 1903.3 or to permit a representative of employees to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace in accordance with § 1903.8, the Safety and Health Officer shall terminate the inspection or confine the inspection to other areas, conditions, structures, machines, apparatus, devices, equipment, materials, records, or interviews concerning which no objection is raised. The Compliance Safety and Health Officer shall endeavor to ascertain the reason for such refusal, and shall immediately report the refusal and the reason therefor to the Area Director. The Area Director shall consult with the Regional Solicitor, who shall take appropriate action, including compulsory process, if necessary.
(b) Compulsory process shall be sought in advance of an attempted inspection or investigation if, in the judgment of the Area Director and the Regional Solicitor, circumstances exist which make such preinspection process desirable or necessary. Some examples of circumstances in which it may be desirable or necessary to seek compulsory process in advance of an attempt to inspect or investigate include (but are not limited to):
(1) When the employer's past practice either implicitly or explicitly puts the Secretary on notice that a warrantless inspection will not be allowed;
(2) When an inspection is scheduled far from the local office and procuring a warrant prior to leaving to conduct the inspection would avoid, in case of refusal of entry, the expenditure of significant time and resources to return to the office, obtain a warrant and return to the worksite;
(3) When an inspection includes the use of special equipment or when the presence of an expert or experts is needed in order to properly conduct the inspection, and procuring a warrant prior to an attempt to inspect would alleviate the difficulties or costs encountered in coordinating the availability of such equipment or expert.
(c) With the approval of the Regional Administrator and the Regional Solicitor, compulsory process may also be obtained by the Area Director or his designee.
(d) For purposes of this section, the term compulsory process shall mean the institution of any appropriate action, including ex parte application for an inspection warrant or its equivalent. Ex parte inspection warrants shall be the preferred form of compulsory process in all circumstances where compulsory process is relied upon to seek entry to a workplace under this section.
[45 FR 65923, Oct. 3, 1980]
Notes of Decisions
Marshall v. Barlow's, Inc., 436 U.S. 307 (1978).
· cites it 8× “" 29 CFR § 1903.4 (1977). [12] The regulation represents a choice to proceed *318 by process where entry is refused; and on the basis of evidence available from present practice, the Act's effectiveness has not been crippled by providing those owners who wish to refuse an…”
Cerro Metal Prods. v. Marshall, 620 F.2d 964 (3rd Cir. 1980).
· cites it 9× “Inasmuch as this case presents no factual dispute, we will now turn to the three legal issues forming the crux of this appeal: whether the preliminary injunction should be vacated because it harms the public by jeopardizing OSHA enforcement; whether an unauthorized inspection…”
In Re Worksite Inspection of S. D. Warren, 481 F. Supp. 491 (D. Me. 1979).
· cites it 12× “That regulation directed that the compliance officer shall terminate the inspection, shall attempt to determine the reason for the refusal, and shall immediately report the refusal and the reason therefor to the Area Director.”
Cerro Metal Prods. v. Marshall, 467 F. Supp. 869 (E.D. Pa. 1979).
· cites it 5× “Justice White, in demonstrating that a constitutional mandate to proceed by warrant would not seriously hamper the Secretary in the fulfillment of his enforcement responsibilities, noted that 29 CFR § 1903.4 1 (hereinafter referred to as “Section 1903.”
State v. Saturno, 139 A.3d 629 (Conn. 2016).
· cites it 2× “See 29 C.F.R. § 1903.4 (d) (defining ‘‘compulsory process’’ to mean ‘‘the institution of any appropriate action, including ex parte application for an inspection warrant or its equivalent’’).”
Amoco Oil Co. v. Marshall, 496 F. Supp. 1234 (S.D. Tex. 1980).
· cites it 10× “The Occupational Safety and Health Administration considered Amoco’s refusal to allow the authorized employee-representative to accompany the compliance officer on the inspection as a refusal of entry as outlined in 29 C.F.R. § 1903.4 , and apprised Amoco of its intentions to…”
Marshall v. Huffhines Steel Co., 488 F. Supp. 995 (N.D. Tex. 1979).
· cites it 5× “The question of whether the italicized language includes an ex parte administrative inspection warrant forms a major area of dispute between the parties, echoing the disagreement among the few cases to have considered the question.”
Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138 (Alaska 1977).
· cites it 2× “[55] The court's construction, though undoubtedly strained, was supported by the requirement of an "inspection warrant" in the Compliance Operations Manual and by a reference to "compulsory process" in 29 C.F.R. § 1903.4 . The provision of the Alaska Admin.”
— 29 C.F.R. § 1903.4(d) — 2 cases
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