(a) Consultation shall function as a separate division with no infringement upon the enforcement capability of the Department. Consultation activity shall be conducted independently of any Compliance enforcement activity. - (i) Consultation shall have its own identifiable managerial staff separate from compliance inspections and scheduling. Consultation shall not perform compliance functions except in cases of imminent danger and shall not have knowledge of or give advance notice of compliance action or activities.
- (ii) Consultation may have access to compliance case files after closure.
- (iii) Compliance shall not have access to the identity of employers requesting onsite consultation, Consultation files, records or correspondence of the consultant's visit, except as provided for failure to eliminate imminent danger or serious hazards, inspection deferral, or recognition and exemption programs.
(b) An onsite consultative visit already in progress will have priority over Compliance inspections except as provided in paragraph 4.(b)(i) of this section. An onsite consultative visit shall be considered in progress from the beginning of the opening conference through the end of the correction due dates and any extensions thereof. - (i) The consultant shall terminate an onsite consultative visit already in progress where one of the following kinds of Compliance inspections is about to take place:
- (A) Imminent danger investigations;
- (B) Fatality/catastrophe investigations;
- (C) Complaint investigations.
- (ii) An onsite consultation visit may not take place while a Compliance enforcement inspection is in progress at the establishment. An enforcement inspection shall be deemed in progress from the time a compliance officer initially seeks entry to the workplace to the end of the closing conference. An onsite consultative visit shall not take place subsequent to a Compliance enforcement inspection until a determination has been made that no citation will be issued, or if a citation is issued, onsite consultation shall only take place with regard to those citation items which have become final orders.
(c) Employers who are a member of Consultation's recognition and exemption programs will be removed from Compliance's programmed inspection schedule. - (i) Compliance may continue to make inspections in the following categories at sites that achieved recognition/exemption status and have been granted exemption from Compliance's programmed inspection schedule:
- (B) Fatality/catastrophe;
(d) Effect upon enforcement. - (i) The advice of the consultant and the consultant's written report will not be binding on a compliance officer in a subsequent enforcement inspection. In a subsequent inspection, a compliance officer is not precluded from finding hazardous conditions, or violations of standards, rules or regulations, for which citations would be issued and penalties proposed.
- (ii) The hazard identification and correction assistance given by a consultant, or the failure of a consultant to point out a specific hazard, or other possible errors or omissions by the consultant, shall not be binding upon a compliance officer and need not affect the regular conduct of a compliance inspection or preclude the finding of alleged violations and the issuance of citations, or constitute a defense to any enforcement action.
- (iii) In the event of a subsequent inspection, the employer is not required to inform the compliance officer of the prior visit. The employer is not required to provide a copy of the consultant's written report to the compliance officer, except to the extent that disclosure of information contained in the report is required by General Rules 1910.1020.
- (iv) If, however, the employer chooses to provide a copy of the consultant's report to a compliance officer, it may be used as a factor in determining the extent to which an inspection is required and as a factor in determining proposed penalties. When, during the course of a compliance inspection, a compliance officer identifies the existence of serious hazards previously identified as a result of a consultative visit, Compliance may assess minimum penalties if the employer is in good faith complying with the recommendations of a consultant after such consultative visit.