Date of Adoption: May 17, 2000.

Purpose: We adopted new rules in chapters 296-27 and 296-350 WAC because:

•	Some of the rules are outdated and inconsistent with current policy.
•	Many of the rules are written poorly, thus confusing.
•	Other rules are unnecessary and should be repealed.
•	The chapters are poorly organized and contain rules on the same subject in different locations.

Inspections and Citations. The new rules clarify and simplify the previous rules for inspections and citations, making them easier to understand. We moved the rules related to inspections from chapter 296-27 WAC into chapter 296-350 WAC, improving the organization and making them easier to find. We repealed unnecessary rules and removed outdated language.

Civil Penalties. We adopted new rules explaining how WISHA calculates and assesses civil penalties to provide employers with advance notice. For several years, employers have complained that the penalty assessment process seems arbitrary, mysterious, and unfair. This has led to an increase in WISHA appeals, as well as increased anger towards the regulatory process. Additionally, several judges at the Board of Industrial Insurance Appeals have requested that we adopt WAC rules about how we calculate penalties. The new rules will help to increase public awareness and lessen the confusion surrounding penalties.

WISHA Appeals. The previous rules about when the department reassumes jurisdiction of citations and notices were ambiguous. Many people affected by those rules often could not easily understand their rights or what was expected of them. We wrote the new rules in plain language to make them easier to understand.

Variances from WISHA rules. The new rules clarify and simplify the previous wording, making them easier to understand. We removed outdated language.

This adoption is part of the agency's implementation of the Governor's Executive Order on Regulatory Improvement 97-02, and part of our effort to improve WISHA safety and health rules. It eliminates outdated and unnecessary rules; makes the previous rules much easier to understand; improves the organization of the rules; and gives employers notice of department policies that directly affect them. These are interpretive rules.

Citation of Existing Rules Affected by this Order:

Amended sections: WAC 296-350-010 Definitions.

Repealed sections: Chapter 296-27 WAC, WAC 296-27-150 Effective dates of regulations, 296-27-160 Safety and health inspections, 296-27-16001 Definitions, 296-27-16002 Inspection hours, 296-27-16003 Inspection format, 296-27-16004 Interprogram referrals, 296-27-16007 Citations, penalty assessments and notices of violations, 296-27-16011 Refusal or limitation of inspection, 296-27-16018 Compliance inspections, 296-27-16020 Inspection selection, scheduling criteria, and limit on number of inspections, 296-27-16022 Unprogrammed inspections, follow-up inspections, monitoring inspections, and "high hazard" inspections, 296-27-16026 Programmed inspections, chapter 296-350 WAC, WAC 296-350-020 Reassumption of jurisdiction -- Purpose, 296-350-030 Notice of appeal -- Filing and service, 296-350-040 Notice of appeal -- Contents, 296-350-050 Reassumption of jurisdiction -- Time -- Notice of reassumption of jurisdiction and informal conference, 296-350-060 Notices of reassumption of jurisdiction and informal conferences -- Service -- Posting record, 296-350-070 Reassumption of jurisdiction -- Informal conferences -- Procedure -- Evidence, 296-350-080 Reassumption of jurisdiction -- Final determination -- Mailing, 296-350-090 Reassumption of jurisdiction -- Statement of redetermination -- Appeal, 296-350-095 Settlement agreements, 296-350-200 Variances -- Foreword, 296-350-210 Types of orders granting a variance, 296-350-230 Effect of variances, 296-350-240 Variance applications -- Form of documents -- Subscription, 296-350-250 Order granting a temporary variance -- Application, 296-350-255 Order granting a permanent variance -- Application, 296-350-260 Interim order -- Application -- Notice of grant, 296-350-270 Notice of denial of application for variance, 296-350-280 Hearings on applications for variances -- Temporary and permanent, 296-350-400 Posting notices -- Posting of citation and notice -- Availability of act and applicable standard, 296-350-450 Complaints by employees or their representatives, 296-350-460 Complaints -- Inspection not warranted -- Informal review, and 296-350-470 Citation not issued following complaint.

New sections: WAC 296-350-100 Inspections and citations, 296-350-10010 Selecting workplaces to inspect, 296-350-10020 Inspections -- Site visit, 296-350-10030 Complaints by employees or employee representatives, 296-350-10040 Results of a WISHA inspection -- Notice of violations, 296-350-10050 Posting a citation and notice, 296-350-150 Civil penalties, 296-350-15010 Assessing civil penalties -- Purpose, 296-350-15015 Minimum penalty amounts, 296-350-15020 Severity and probability determines base penalties, 296-350-15025 Severity, 296-350-15030 Probability, 296-350-15035 Gravity and base penalties, 296-350-15040 Adjustments to base penalties, 296-350-15045 Increasing penalty amounts, 296-350-600 WISHA appeals, 296-350-60010 Filing an appeal -- Who, when and where, 296-350-60015 What must be in a WISHA appeal, 296-350-60020 Why we reassume jurisdiction, 296-350-60025 Reassuming jurisdiction or forwarding an appeal to the board, 296-350-60030 Reviewing appeals and extending review time, 296-350-60035 Informal WISHA conferences, 296-350-60040 Issuing and appealing corrective notices, 296-350-60045 Notifying employees, 296-350-700 Variance from WISHA rules, 296-350-70010 Purpose of variances, 296-350-70015 Permanent variances -- Description, 296-350-70020 Temporary variances -- Description, 296-350-70025 Interim orders -- Description and requesting, 296-350-70030 Requesting a permanent variance, 296-350-70035 Requesting a temporary variance, 296-350-70040 Renewing temporary variances, 296-350-70045 Submitting variance requests, 296-350-70050 Notifying employees about variance requests, 296-350-70055 Department review and decision, 296-350-70060 Your responsibilities once we make a decision, 296-350-70065 Changing a variance, and 296-350-70070 Variance hearings

Statutory Authority for Adoption: RCW 49.17.010, [49.17].040, and [49.17].050.

Adopted under notice filed as WSR 00-05-058 on February 15, 2000.

Changes Other than Editing from Proposed to Adopted Version: The following changes were made to the WISHA administrative rules proposal.

WAC 296-350-010 Definitions.

•	Permanent variance: Added the word "an."
•	Variance: Changed the word "variances" to "variance" for consistency.

WAC 296-350-100 Inspections and citations. Changed the first sentence from second person to third person to avoid using the word "you" when it applies to anyone reading the rules and not just employers. This change is based on public comment.

WAC 296-350-10010 Selecting workplaces to inspect.

•	In subsection (1), added a new bullet point to include other factors like history of employee complaints. This change is based on public comment.
•	In subsection (4), added the word "or" because it was inadvertently left out of proposal.

WAC 296-350-10020 Inspections -- Site visit. In subsection (2), we added the phrase "on or off the work site" and removed "any" to clarify where we may question people and to keep all the items in the list parallel. This change is based on public comment.

WAC 296-350-10050 Posting a citation and notice.

•	Added the word "immediately" from the previous rule in WAC 296-350-400 (8)(b).
•	Deleted the second bullet because this is a new requirement that we inadvertently added in the proposal. The department, not employers, sends copies of citation and notices to employee representatives when they ask us to do so. Moved providing a copy to employee representatives to last bullet point because it is a good example of other appropriate means for notifying employees who cannot [or] may not see notices on the safety bullet board.
•	Changed the wording in the third bullet to fit with removing the second bullet.
•	Added two examples of other appropriate means. Safety committee is added based on public comment.

WAC 296-350-150 Civil penalties. Changed the first sentence from second person to third person to avoid using the word "you" when it applies to anyone reading the rules and not just employers. This change is based on public comment.

WAC 296-350-15010 Assessing civil penalties -- Purpose.

•	Changed the first bullet point to clarify that penalties are issued for violations of health and safety rules, regulations, or statutes.
•	In the second bullet point, we changed "alleging" to "for" and added several examples of other circumstances specified by statute for clarity.
•	In the third bullet, we changed the wording to better explain how penalties level the playing field.
•	Made similar changes to WAC 296-350-70050 Notifying employees about variance requests, keeping the wording consistent throughout these rules.

WAC 296-350-15025 Severity. In Table 1: Severity ratings, under severity of 3 we added the phrase "beyond first aid" to clarify.

WAC 296-350-15040 Adjustments to base penalties. Changed subsection (4) to clarify maximum penalty amount.

WAC 296-350-15045 Increasing penalty amounts.

•	In subsection (1), we added the word "substantially" to maintain wording from the previous rule.
•	In subsection (1), we added the phrase "inspection with a" to more accurately explain how repeat violations are calculated.

WAC 296-350-600 WISHA appeals. Changed the first sentence from second person to third person to avoid using the word "you" when it applies to anyone reading the rules and not just employers. This change is based on public comment.

WAC 296-350-60010 Filing an appeal -- Who, when and where. In subsection (2), we changed the last sentence from second person to third person, because employees and their representatives may file an appeal. This change is based on public comment.

WAC 296-350-60020 Why we reassume jurisdiction. Added a sentence to explain what it means when we reassume jurisdiction.

WAC 296-350-60045 Notifying employees. Added the word "immediately" to clarify when employers must post correspondence related to an appeal. This change is based on public comment.

WAC 296-350-700 Variance from WISHA rules. Changed the first sentence from second person to third person to avoid using the word "you" when it applies to anyone reading the rules and not just employers. This change is based on public comment.

WAC 296-350-70020 Temporary variances -- Description.

•	In subsection (1), added the word "new" to indicate when you may request variances for new WISHA requirements. This change is based on public comment.
•	In subsection (1), changed the paragraph to correct an error in the proposal. The bullet points are part of the first sentence and may have caused confusion as written in the proposal.

WAC 296-350-70030 Requesting a permanent variance.

•	In subsection (1), added the phrase "and signed by you or your representative" to maintain wording from the previous rule. This change is based on public comment.
•	In subsection (1), added the word "specific" and a new bullet point to the list of things to clarify what employers need to submit with variance requests. This change is based on public comment.

WAC 296-350-70035 Requesting a temporary variance.

•	Changed the first sentence to be like the wording in WAC 296-350-70030 Requesting a permanent variance.
•	Added that a variance must be in writing and signed by you or your representative. This change is based on public comment.
•	Added the phrase "a specific explanation of" to explain the appropriate type of information that must be included on the variance request. This change is based on public comment.
•	Added a bullet that the request must be from a qualified person having first hand knowledge of the facts. This repeats language in the statute, but based on public comment, we felt it was good to add this for clarity.

WAC 296-350-70050 Notifying employees about variance requests. Changed the wording to be like WAC 296-350-10050 for consistency.

•	Deleted the second bullet because this is a new requirement that we inadvertently added in the proposal. The department, not employers, sends copies of citation and notices to employee representatives when they ask us to do so. Moved providing a copy to employee representative to last bullet point because it is a good example of other appropriate means for notifying employees who may not see notices on the safety bullet board.
•	Changed the wording in the third bullet to fit with removing the second bullet.
•	Added two examples of other appropriate means. Safety committee is added based on public comment.

WAC 296-350-70055 Department review and decision.

•	In subsection (2), added a sentence to explain that variances will not be retroactive. This change is based on public comment.

WAC 296-350-70060 Your responsibilities once we make a decision. Added the word "immediately" to clarify when employees must be notified. This change is based on public comment. Made a similar change to WAC 296-350-10050 and 296-350-60045.

WAC 296-350-70070 Variance hearings.

•	In subsection (4), deleted the reference to brief adjudicative proceedings. We had added this to the proposal and realized that this was too formal of a process based on public comment.
•	In subsection (4), added the phrase "and provide any relevant documents or information" to better explain what would happen at a hearing. This change is based on public comment.
•	In subsection (5), we added the phrase "your employees, or employee representatives" to indicate that all parties attending the hearing may request a copy of the tape or recording, if one is available.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 38, Amended 1, Repealed 34.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 38, Amended 1, Repealed 34.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 38, Amended 1, Repealed 34. Effective Date of Rule: August 1, 2000.

May 17, 2000

Gary Moore

Director

OTS-3697.1

REPEALER

     The following sections of the Washington Administrative Code are repealed:

WAC 296-27-150	Effective date of regulations.
WAC 296-27-160	Safety and health inspections.
WAC 296-27-16001	Definitions.
WAC 296-27-16002	Inspection hours.
WAC 296-27-16003	Inspection format.
WAC 296-27-16004	Interprogram referrals.
WAC 296-27-16007	Citations, penalty assessments and notices of violations.
WAC 296-27-16011	Refusal or limitation of inspection.
WAC 296-27-16018	Compliance inspections.
WAC 296-27-16020	Inspection selection, scheduling criteria, and limit on number of inspections.
WAC 296-27-16022	Unprogrammed inspections, follow-up inspections, monitoring inspections, and "high hazard" inspections.
WAC 296-27-16026	Programmed inspections.

OTS-3696.5

(((1) The definitions and interpretations of RCW 49.17.020 shall apply to the provisions of this chapter unless the context of the provision clearly requires otherwise.

(2) "Presiding officer" means that person designated by the director as being responsible for the conducting of the informal conference provided for in RCW 49.17.140(3) and WAC 296-350-070.

(3) "Act" means the Washington Industrial Safety and Health Act (chapter 80, Laws of 1973; chapter 49.17 RCW) as now or hereafter amended.

(4) "Assistant director" shall mean the assistant director of consultation and compliance of the department, or his/her designated representative.

(5) "Citation" shall mean that CITATION issued to an employer in accordance with the provisions of RCW 49.17.120, otherwise known as a CITATION AND NOTICE.      (Form No. WISHERS-110.)

(6) "Abatement date" shall mean the date identified as such on the CITATION.      The "abatement date" is the date by which the condition identified in the CITATION must be brought into compliance with the cited safety and health standard.

(7) "Division" shall mean the division of consultation and compliance of the department.)) The following definitions apply to terms used in chapter 296-350 WAC.

Abatement date means the date on the citation when you must comply with specific safety and health standards listed on the citation and notice of assessment or the corrective notice of redetermination.

Board means the board of industrial insurance appeals.

Citation and notice refers to the citation issued to an employer under RCW 49.140.120 for any violations of WISHA safety and health rules, also known as a citation and notice of assessment.

Corrective notice refers to a corrective notice of redetermination issued after we have reassumed jurisdiction over a citation and notice.

Interim order is an order we grant allowing you to vary from WISHA requirements until we have determined whether to grant either a permanent or temporary variance.

Our refers to the department of labor and industries.

Permanent variance is an order we grant allowing you to vary from WISHA requirements when you use an alternate means that provides equal worker protection. It is in effect until we modify or revoke it.

Temporary variance is an order we grant allowing you to vary from WISHA requirements under certain circumstances (see WAC 296-350-70020).

Us refers to the department of labor and industries.

Variance refers to any order granted by us allowing you to vary from WISHA safety and health rules, including a permanent variance, temporary variance, or interim order.

We means the WISHA services division of the department of labor and industries and any other divisions charged with enforcing chapter 49.17 RCW, Washington Industrial Safety and Health Act.

Working days mean weekdays that do not fall on state holidays (see RCW 1.16.050 for a complete description of state holidays). State holidays include:

• January 1 -- New Year's Day;

• Martin Luther King, Jr. Day;

• Presidents' Day;

• Memorial Day;

• July 4 -- Independence Day;

• Labor Day;

• November 11 -- Veterans' Day;

• Thanksgiving Day;

• The day after Thanksgiving Day; and

• December 25 -- Christmas Day.

You means the employer as defined in RCW 49.17.020.

Your refers to the employer as defined in RCW 49.17.020.

[Statutory Authority: Chapter 49.17 RCW.      94-15-096 (Order 94-07), § 296-350-010, filed 7/20/94, effective 9/20/94.      Statutory Authority: RCW 49.17.040, 49.17.050, 49.17.240, chapters 42.30 and 43.22 RCW.      80-17-014 (Order 80-20), § 296-350-010, filed 11/13/80; Order 75-14, § 296-350-010, filed 4/14/75; Order 74-21, § 296-350-010, filed 5/6/74.]

Rules covering WISHA inspections and citations are found in WAC 296-350-10010 through 296-350-10050. These rules interpret chapter 49.17 RCW. These inspections are distinct from other services provided by us, such as, no fee consultations and other technical assistance.

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(1) Programmed inspections. We identify hazardous workplaces to inspect based on objective criteria. We use inspection, scheduling systems that may look at any of the following:

• Type of industry;

• Available data of injuries and illnesses where an inspection might eliminate the hazards causing them;

• The employer's industrial insurance experience;

• The number, type and toxicity of contaminants at the workplace;

• The degree of exposure to hazards;

• The number of employees exposed; and

• Other relevant factors (such as, history of employee complaints).

(2) We review the scheduling systems periodically, and may adjust the factors used and the weight given to each factor.

(3) We may conduct routine programmed inspections in the following high hazard industries:

• Agriculture;

• Asbestos renovation and demolition;

• Construction;

• Electrical utilities and communications;

• Logging; and

• Maritime.

(4) We conduct "unprogrammed inspections" of workplaces we believe may be in violation of safety or health rules or chapter 49.17 RCW, Washington Industrial Safety and Health Act. Unprogrammed inspections may result from:

• Complaints from employees, former employees, or employee representatives who believe they are or have been exposed to a hazard because of a violation; or

• Referrals from anyone else who reasonably believes workers under our jurisdiction are exposed to a hazard at work because of a violation.

We may also initiate comprehensive inspections based on such investigations.

(5) We investigate workplace deaths and serious injuries or illnesses to determine whether they were caused by a violation of safety or health rules or chapter 49.17 RCW, Washington Industrial Safety and Health Act. We may also initiate comprehensive inspections based on such investigations.

(6) We inspect workplaces when we have reason to believe that employees may be in imminent danger of serious injury or death.

(7) Scheduling of WISHA inspections is intended to distribute available staff as efficiently as possible to ensure the maximum level of worker protection.

(8) We may conduct follow-up inspections to verify that you have abated any hazard for which you were previously cited.

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(1) During the physical inspection of the workplace, the inspector may:

• Take samples, photographs, video tapes, or audio tapes;

• Conduct tests;

• Have employees wear sampling devices;

• Conduct interviews; and

• Employ other reasonable investigative techniques.

(2) We can privately question any of the following -- on or off the worksite:

• You;

• Your representative;

• Owner;

• Operator;

• Employee; or

• Employee representative.

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(1) The name of the person who files a complaint with us and the names of any individual employees referred to in the complaint will be removed from the copy of the complaint we give to you, unless the person making the complaint gives us written permission to release the names.

(2) We will provide the results of any complaint inspection to the person making a complaint, or we will inform the person making a complaint if we decide not to conduct an inspection as a result of the complaint.

(3) We will review the decision not to conduct an inspection or not to issue a citation with respect to any violation alleged in the complaint, if requested in writing by the person making a complaint. We will notify the person in writing the results of that review. If complainants are not satisfied after an initial review, they may request that the assistant director for WISHA services or a designee review the file.

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If we find safety or health violations, we will mail a citation and notice to you no more than six months following the inspection or investigation. The citation and notice will include any violations found, any penalties, and how much time you have to correct the violations. Normally when we do not find any violations, we will send you a citation and notice with a message indicating that no violations were found.

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When you receive a citation and notice, or any correspondence related to an employee complaint, you must immediately notify your employees by:

• Posting it on your safety bulletin board for three working days or until all violations have been abated, whichever is longer; and

• Using other appropriate means for employees who cannot be expected to receive notices posted on the safety bulletin board (such as, providing a copy to an authorized employee representative or the safety committee).

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Rules covering WISHA's use of civil penalties are found in WAC 296-350-150 through 296-350-15045. These rules interpret RCW 49.17.180.

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• We may assess civil penalties when a citation and notice is issued for any violation of health and safety rules, regulations, or statutes found during an inspection.

• We will assess civil penalties when we issue a citation for a serious violation, as well as under certain other circumstances specified by statute (such as, RCW 49.17.180, 49.26.016, 49.70.177, and 49.70.190).

• Civil penalties promote compliance by encouraging employers to correct violations before an inspection takes place, and therefore to avoid the risk of a penalty. Civil penalties help to promote a "level playing field" for employers complying with the laws by assessing penalties from those who do not comply.

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• Any penalty assessed will be at least $100.

• Penalties for willful violations will be at least $5,000 per violation.

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Except where otherwise specified by statute, we determine the base penalty for a violation by evaluating:

• The severity of the injury, illness, or disease that could result from the alleged hazard; and

• The probability that an injury, illness, or disease could occur as a result of the alleged hazard.

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Severity rates how serious the injury, illness, or disease might be relative to the hazardous condition. Severity ranges from one (lowest) to six (highest), using whole numbers. Severity is based on the most serious injury, illness, or disease that could reasonably be expected to result from a hazardous condition (see Table 1). We use severity when calculating a penalty. A violation with a severity of 4, 5, or 6 will be a serious violation.

Table 1: Severity Ratings

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Probability rates how likely it is that an injury, illness or disease will occur. It is scored from one (lowest probability) to six (highest probability), using whole numbers. We will consider the number of employees affected when determining probability. Probability does not change the severity.

Other factors we may consider, depending on the situation, include:

• Frequency of employee exposure;

• Instances (number of times the same violation occurs in the workplace);

• How close an employee is to the hazard;

• Weather and other working conditions;

• Employee skill level;

• Employee awareness of the hazard;

• The pace, speed, and nature of the task or work;

• Use of personal protective equipment;

• Amount of exposure (for health violations); and

• Other mitigating or contributing circumstances.

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We calculate most base penalties by assigning a weight, called gravity, to a violation. Gravity is calculated by multiplying the severity of a violation (see WAC 296-350-15025) by its probability (see WAC 296-350-15030).

Formula for gravity:

Gravity = Severity x Probability
We use Table 2 to determine the dollar amount for each base penalty. Some rules specify penalty amounts for certain violations.

Table 2: Penalty Amount Using Gravity

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After determining the base penalty, we consider the employer's good faith, size and history when deciding whether to adjust the penalty amount. No adjustments are made for penalties specified by statute.

(1) Good faith adjustments.

An employer's level of good faith may justify increasing or decreasing the base penalty.

No single factor determines good faith. Good faith is a reflection of your efforts before the inspection to provide a safe and healthful workplace for your employees and your efforts to comply with the standard violated. Your cooperation during the inspection may also be considered to the extent that it reflects your attitude toward complying with the cited standard, including immediate efforts to abate the identified hazard.

Table 3: Good Faith Adjustments

The number of employees at all of your workplaces in the state of Washington will determine any size adjustments to the penalty amount.

Table 4: Size Adjustments

History reflects your record of safety and health violations in the state of Washington, as demonstrated by previous citations and by injury and illness rates.

Table 5: History Adjustments

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We apply a multiplier to the adjusted base penalty for the following:

• Repeat violations;

• Willful violations;

• Egregious violations;

• Failure to abate a prior violation.

(1) Repeat violations. A repeat violation occurs when we have cited you in the last three years for a substantially similar hazard. The three-year period is measured from the date of the final order for each previous citation. The adjusted base penalty will be multiplied by the total number of inspections with violations (including the current inspection with a violation) involving similar hazards. The maximum penalty cannot exceed seventy thousand dollars for each violation.

(2) Willful violations. A willful violation is a voluntary action, done either with an intentional disregard of, or plain indifference to, the requirements of the applicable WISHA rule(s). For willful violations, we will multiply the adjusted base penalty by ten, with all willful violations receiving at least the statutory minimum of $5000. The maximum penalty cannot exceed seventy thousand dollars for each violation.

For example: When management is aware that employees are resistant to following specific WAC rules(s); employee resistance results in an imminent danger situation or a serious violation; and management fails to make efforts that are effective in practice to overcome the resistance, then we will presume that the failure constitutes voluntary action.

(3) Egregious violations. An egregious violation may be issued for exceptionally flagrant cases involving willful violations. In these cases, we will issue a separate penalty for each instance when you fail to comply with a particular rule.

(4) Failure to abate violations. Failure to abate is when you have been cited previously for a violation of WISHA rules, but have failed to correct the violation on time (abatement verification is covered in WAC 296-27-210 through 296-27-21050). The maximum penalty cannot exceed seven thousand dollars for each day in which such failure or violation continues.

(a) For a general violation that had no initial penalty and a penalty is to be issued, there will be a minimum penalty of $1000 with possible adjustments for attempts to comply.

(b) For a violation that had an initial penalty:

• We multiply the adjusted base penalty by five based on the facts at the time of reinspection with possible adjustments for attempts to comply; or

• When the employer has failed to make good faith efforts to abate the violation, we may multiply the adjusted base penalty by the number of days past the abatement date as provided in RCW 49.17.180(4).

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Rules covering the WISHA appeals process are found in WAC 296-350-60010 through 296-350-60045. These rules interpret RCW 49.17.140.

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(1) Who may file a notice of appeal?

• Any employer cited for a violation of WISHA's safety and health rules may appeal a citation and notice or a corrective notice.

• Any employee or employee representative who could be affected by a citation or its abatement may appeal the abatement date on the citation and notice or corrective notice.

(2) When must appeals be filed? Appeals must be filed in writing to the department as a written notice of appeal within fifteen working days of receiving the citation and notice. When mailed, the postmark on the appeal is used as the filing date.

(3) Where must appeals be filed?

• Mail to:

Dept. of Labor & Industries

WISHA Appeals

PO Box 44604

Olympia, WA 98504-4604

• Fax to: (360) 902-5581.

• Bring to: Any department of labor and industries office.

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(1) For employers: Appeals must include:

• Business name, address and telephone number, and the name, address and telephone number of any person representing you if you have one;

• Citation and notice number;

• What you think is wrong with the citation and notice and any related facts; and

• How you think it should be changed (what relief you are seeking and why).

(2) For employees: Appeals must include:

• The employee's name, address and telephone number, and the name, address and telephone number of any person representing the employee;

• Citation and notice number; and

• What the employee thinks is wrong with the abatement date.

Note: See WAC 263-12-056 for related board requirements.

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Under RCW 49.17.140(3), we may reassume jurisdiction over any or all issues related to a citation and notice, when it is appealed within fifteen working days. To reassume jurisdiction means that we will review a citation and notice under appeal to determine whether changes are needed. We reassume jurisdiction to:

• Provide the employer and affected employees an opportunity to present relevant information, facts, and opinions during an informal conference;

• Give the employer, affected employees and the department an opportunity to resolve appeals rapidly and without further contest, especially in routine compliance cases;

• Educate employers about the citation and notice, the WISHA appeals process, and WISHA compliance; and

• Review citations, penalties, and abatement dates for fairness and accuracy to ensure quality work by the department.

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After an appeal is filed, we will decide whether to reassume jurisdiction over the citation and notice being appealed.

• If we reassume jurisdiction, we will notify the person filing the appeal in writing.

• If we do not reassume jurisdiction, we send the appeal to the board. The board will send the person filing the appeal a notice with the time and location for any board proceedings.

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(1) Reviewing appeals. When the department reassumes jurisdiction, we have thirty working days after receipt of the appeal to gather more information and decide whether to make changes to the citation and notice. We begin counting the first working day after receipt of the appeal. For example, the first day we count for an appeal received on Friday will be Monday for weeks without state holidays.

(2) Extending review period. We may extend the review period for an appeal up to fifteen additional working days when everyone involved agrees to the extension.

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During the review period, we will hold an informal conference about the appeal.

• The informal conference is not an evidentiary hearing. It is an opportunity for interested parties to briefly explain their positions and provide any additional information they would like us to consider when we review the citation and notice.

• Although informal, the conference is an official conference. As such, we may record all or part of it. We will tell participants when recording the conference.

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(1) Issuing corrective notices. By the end of the review period, we will issue a corrective notice that will reflect any changes we made to the citation and notice. We will send this notice to you and any employee representatives participating in the process.

(2) Appealing corrective notices.

• Anyone who may appeal the citation and notice may appeal the corrective notice (see WAC 296-350-10010(1)).

• Any appeal of a corrective notice must be filed within fifteen working days of receiving it.

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(1) After filing an appeal, you must immediately post all correspondences with us, including:

• The notice of appeal;

• The notice telling you we reassumed jurisdiction of a citation and notice;

• Any extensions to the review period;

• The notice for an informal conference; and

• Corrective notices.

(2) You must post notices and information about the appeal in a conspicuous place and where you are required to post WISHA citations and notices (see WAC 296-350-10050).

(3) How long must you post notices? You must post:

• The notices of appeal until the appeal is resolved.

• Notices about when we reassume jurisdiction and any extension of review period until the end of review period.

• Notice of an informal conference until after the conference is held.

• Corrective notices for as long as citations and notices are required to be posted.

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Rules covering variances are found in WAC 296-350-70010 through 296-350-70070. These rules interpret RCW 49.17.080 and 49.17.090.

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In certain circumstances, we allow you to deviate from a specific WISHA safety and health standard when you use agency-approved substitute measures to protect workers.

You may request the following as described in WAC 296-350-70015 through 296-350-70025:

• Permanent variances.

• Temporary variances.

• Interim orders.

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(1) You may request a permanent variance if you can show that you are providing an alternate means of protecting your employees from hazards. These alternative means must be as effective as the methods required by the standard.

(2) We review permanent variances periodically to decide whether they are still needed or need to be changed (see WAC 296-350-70065(1)).

(3) A permanent variance remains in effect unless we modify or revoke it.

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(1) You may request a temporary variance if you cannot meet one or more new WISHA requirements because:

• Professional or technical people are not available;

• Materials or equipment are not available; or

• You cannot complete construction or alteration of facilities by the effective date of a standard.

If you request a temporary variance, you must have an effective plan for coming into compliance with the applicable safety and health standards as quickly as possible.

(2) You must show that you are taking all available steps to safeguard your employees against hazards covered by the standard.

(3) Temporary variances remain in effect until you comply with the requirements of current WISHA rules or no longer than one year, whichever is shorter.

(4) You may renew a temporary variance twice for no more than one hundred eighty days each time it is renewed (see WAC 296-350-70040).

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(1) You may request an interim order when requesting a permanent or temporary variance, or anytime after. Interim orders allow you to vary from existing WISHA requirements until we make a final decision on your variance request.

(2) We may choose to issue an interim order in response to a variance request, even when the interim order was not specifically requested.

(3) Our decision to grant or deny an interim order will not restrict our decision on a permanent or temporary variance request.

(4) Interim orders will be effective until revoked or until we approve or deny your variance request.

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(1) Request for a permanent variance must be in writing and signed by you or your representative. You must include the following items in your variance request:

• Employer name and address;

• What work locations and situations that you want the variance to apply to;

• The requirements from which you want the variance (be specific and include WAC numbers);

• A specific description of your proposed alternate means of protecting employees from hazards;

• How the proposed alternative means will protect employees;

• How you have notified your employees you are applying for a variance as required in WAC 296-350-70050; and

• How you have notified your employees that they may request a hearing. All applications for variances must contain the following notice on the first page, written large enough and clearly enough to be read easily:

"Attention Employees: Your employer is applying to the Department of Labor and Industries for a variance from safety and health standards. You have a right to ask the Department to have a hearing on this application, but you must ask for the hearing in writing by (date**), or the Department may act on this application without a hearing."

** This date must be at least twenty-one calendar days but not more than one month after submitting your variance request.

(2) Department forms for requesting variances are available from any labor and industries office in the state.

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Requests for a temporary variance must be in writing and signed by you or your representative. You must include:

• All items listed in WAC 296-350-70030, Requesting a permanent variance.

• A specific explanation of why you cannot comply with the requirements, including documentation that supports your belief.

• What steps you will take to protect your employees until you can comply:

• What you are doing to come into compliance.

• When you will be able to come into compliance.

• A statement that this request is from a qualified person having first hand knowledge of the facts represented.

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You must apply for a renewal at least ninety days before the expiration date of the order. To apply for renewal, write to us, explaining why you need more time to come into compliance.

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Submit permanent variance, temporary variance, or interim order requests using one of the following:

• Mail to:

Assistant Director, WISHA Services Division

P.O. Box 44625

Olympia, Washington 98504-4625

• FAX to: (360) 902-5459

• Bring to any labor and industries office in the state.

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You must notify your employees before requesting a permanent variance, temporary variance, or interim order by:

• Posting a copy of the application on your safety bulletin board; and

• Using other appropriate means for employees who cannot be expected to receive notices posted on the safety bulletin board (such as, providing a copy to an authorized representative or the safety committee).

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(1) Review. We will review your request to determine whether to grant a variance to WISHA safety and health rules.

• If we need more information, we may contact you or others who may have relevant information.

• If we need to visit your workplace, we will contact you to make arrangements.

• If you do not provide us with the information we need or do not let us visit your workplace, we will deny your request.

(2) Decision. After reviewing your request, we will issue a written order either granting or denying it.

• We will not make a decision before the date for requesting a hearing that is listed on the variance request.

• If you have appealed a citation and notice that relates to the subject of the variance request, we may choose not to make a decision until after your appeal is resolved.

• If granted, the order will include where it applies, what rules it covers, what you must do instead of following the existing rules, an effective date, and any expiration dates, if applicable. Variances will not be retroactive. The effective date will be on or after the day we issue the order granting the variance.

• If denied, the order will include a brief statement with reason(s) supporting our decision.

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When you receive a written decision regarding a variance request or interim order, you must:

• Immediately notify affected employees using the same means used for the variance application (see WAC 296-350-70050); and

• Abide by the requirements specified in any variance. We can issue citations for violations of any variance.

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(1) Permanent variances. We cannot change the terms of a permanent variance for the first six months it is in effect. Any time after six months, we will consider changing the terms of a variance when:

• You or your employees request changes; or

• We decide that changes may be warranted.

(2) Temporary variances. We will only consider changing a temporary variance as part of the renewal process.

(3) Interim orders. We will not change an interim order.

(4) Hearings. You, your employees, or employee representatives may request a hearing on variance changes as with variance applications (see WAC 296-350-70070).

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(1) Requesting a hearing. You, any affected employee, or an employee representative may request a hearing on a variance request, temporary variance request, or changes to existing variances. All requests must be received in writing, signed by the applicant(s), and must be received by the assistant director within twenty-one calendar days of the date of the application for the variance.

(2) Department notice. We will issue a notice of the hearing ten days after receiving your request advising all interested parties that they will have the opportunity to participate. We will schedule the hearing so that you will receive notice at least twenty calendar days in advance of the hearing date.

(3) Notifying employees. Upon receiving notice of the hearing, you must immediately post copies of the notice, give copies to affected employees and employee representatives, and use any other appropriate means (see WAC 296-350-70050).

(4) Description of hearing. At the hearing, our representative will explain our view of your request for a variance or any proposed change to a variance. You, your employees, or employee representatives will then have an opportunity to explain your views and provide any relevant documents or information. Information gathered at the hearing will be used in making a decision about whether to grant or deny the request.

(5) We may tape or record a variance hearing. You, your employees, or employee representatives may request copies at cost.

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     The following sections of the Washington Administrative Code are repealed:

WAC 296-350-020	Reassumption of jurisdiction -- Purpose.
WAC 296-350-030	Notice of appeal -- Filing and service.
WAC 296-350-040	Notice of appeal -- Contents.
WAC 296-350-050	Reassumption of jurisdiction -- Time -- Notice of reassumption of jurisdiction and informal conference.
WAC 296-350-060	Notices of reassumption of jurisdiction and informal conferences -- Service -- Posting record.
WAC 296-350-070	Reassumption of jurisdiction -- Informal conferences -- Procedure -- Evidence.
WAC 296-350-080	Reassumption of jurisdiction -- Final determination -- Mailing.
WAC 296-350-090	Reassumption of jurisdiction -- Statement of redetermination -- Appeal.
WAC 296-350-095	Settlement agreements.
WAC 296-350-200	Variances -- Foreword.
WAC 296-350-210	Types of orders granting a variance.
WAC 296-350-230	Effect of variances.
WAC 296-350-240	Variance applications -- Form of documents -- Subscription.
WAC 296-350-250	Order granting a temporary variance -- Application.
WAC 296-350-255	Order granting a permanent variance -- Application.
WAC 296-350-260	Interim order -- Application -- Notice of grant.
WAC 296-350-270	Notice of denial of application for variance.
WAC 296-350-280	Hearings on applications for variances -- Temporary and permanent.
WAC 296-350-400	Posting of notices -- Posting of citation and notice -- Availability of act and applicable standards.
WAC 296-350-450	Complaints by employees or their representatives.
WAC 296-350-460	Complaints -- Inspection not warranted -- Informal review.
WAC 296-350-470	Citation not issued following complaint.

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