Objection To Inspection

(1) Upon a refusal to permit a compliance officer, in the 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 Rule 0800-01-04-.04, or to permit a representative of employees to accompany the compliance officer during the physical walkaround of any workplace in accordance with Rule 0800-01-04-.09, the compliance 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 officer shall endeavor to ascertain the reason for such refusal and he shall immediately report the refusal and the reason therefore to the Manager of Safety or Health Standards Enforcement, as appropriate, the Assistant Administrator and/or the Administrator, Division of Occupational Safety and Health. The Manager of Safety or Health Standards Enforcement, as appropriate, the Assistant Administrator and/or the Administrator shall consult with the Department of Labor and Workforce Development Staff Attorney, who shall promptly take appropriate action, including compulsory process, if deemed necessary. OCCUPATIONAL SAFETY AND HEALTH INSPECTIONS, CHAPTER 0800-01-04 CITATIONS AND PROPOSED PENALTIES (2) Compulsory process shall be sought in advance of an attempted inspection or investigation if, in the judgment of the Manager of Safety or Health Standards Enforcement, the Assistant Administrator or the Administrator and the Department of Labor and Workforce Development Staff Attorney, 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): (a) When the employer's past practice either implicitly or explicitly puts the Commissioner on notice that a warrantless inspection will not be allowed; (b) When an inspection is scheduled far from the area 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; (c) 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. (3) Authority to request compulsory process is delegated to the Department of Labor and Workforce Development Staff Attorney and the Administrator, Division of Occupational Safety and Health and, with the specific approval (written or oral) of the Staff Attorney and Administrator, to the Assistant Administrator, Manager of Health Standards Enforcement, Manager of Safety Standards Enforcement, or Area Supervisor of either the Safety or Health Standards Enforcement Branches, Division of Occupational Safety and Health. (4) For purposes of this rule, the term compulsory process shall mean the institution of any appropriate action, including ex parte application for an administrative inspection warrant. Ex parte administrative 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 rule.