GENERAL ASSEMBLY OF NORTH CAROLINA
1993 SESSION
CHAPTER 300
AN ACT TO REVISE CERTAIN PROCEDURES FOR APPEAL UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT.
The General Assembly of North Carolina enacts:
Section 1. G.S. 95-135(j) is repealed.
Sec. 2. G.S. 95-137(b) reads as rewritten:
"(b) Procedure for Enforcement. -
(1) If, after an
inspection or investigation, the Director issues a citation under any
provisions of this Article, he the Director shall, within a
reasonable time after the termination of such inspection or investigation,
notify the employer by certified mail of any penalty, if any, he the
Director has recommended to the Commissioner to be proposed under the
provisions of this Article and that the employer has 15 working days within
which to notify the Director that he the employer wishes to
contest to:
a. Contest
the citation or proposed assessment of penalty. penalty; or
b. Request an informal conference.
Following an informal conference, unless the employer and Department have
entered into a settlement agreement, the Director shall send the employer an
amended citation or notice of no change. The employer has 15 working days from
the receipt of the amended citation or notice of no change to notify the
Director that the employer wishes to contest the citation or proposed
assessment of penalty, whether or not amended. If, within 15 working days
from the receipt of the notice issued by the Director, the employer fails to
notify the Director that he the employer requires an informal
conference to be held or intends to contest the citation or proposed
assessment of penalty, and no notice is filed by any employee or representative
of employees under the provisions of this Article within such time, the
citation and the assessment as proposed to the Commissioner shall be deemed
final and not subject to review by any court.
(2) If the Director has
reason to believe that an employer has failed to correct a violation for which
a citation has been issued within the period permitted for its correction
(which period shall not begin to run until the entry of a final order by the
Board in case of any review proceedings under this Article initiated by the
employer in good faith and not solely for a delay or avoidance of penalties),
the Director shall notify the employer by certified mail of such failure and of
the penalty proposed to be assessed under this Article by reason of such
failure and that the employer has 15 working days within which to notify the
Director that he the employer wishes to contest the Director's
notification of the proposed assessment of penalty. If, within 15 working days
from the receipt of notification issued by the Director, an employer fails to
notify the Director that he the employer intends to contest the
notification or proposed recommendation of penalty, the notification and the
proposed assessment made by the Director shall be final and not subject to
review by any court.
(3) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
(4) If an employer
notifies the Director that he the employer intends to contest a
citation issued under the provisions of this Article or notification issued
under the provisions of this Article, or if, within 15 working days of the
receipt of a citation under this Article, any employee or his representative
thereof files a notice with the Director alleging that the period of time
fixed in the citation for the abatement of the violation is unreasonable, the
Director shall immediately advise the Board of such notification, and the Board
shall afford an opportunity for a hearing. The Board shall thereafter issue an
order, based on findings of fact, affirming, modifying, or vacating the
Director's citation or the proposed penalty fixed by the Commissioner, or
directing other appropriate relief, and such order shall become final 30 days
after its issuance. Upon showing by an employer of a good faith effort to
comply with the abatement requirements of a citation, and that an abatement has
not been completed because of factors beyond his the employer's reasonable
control, the Director, after an opportunity for a hearing as provided in this
Article, shall issue an order affirming or modifying the abatement requirements
in such citation. The rules of procedure prescribed by the chairman of the
Board shall provide affected employees or representatives of affected employees
an opportunity to participate as parties to hearings under this section.
(5) Notwithstanding
subdivision (4) of this section, if an agricultural employer notifies the
Director that he intends to contest a citation issued under the provisions of
this Article or notification issued under the provisions of this Article, or
if, within 15 working days of the receipt of a citation under this Article, any
employee of an agricultural employer or the employee's representative files a
notice with the Director alleging that the period of time fixed in the citation
for the abatement of the violation is unreasonable, the Director shall
immediately advise the person giving such notice of his rights to file a
petition for a contested case under the provisions of Article 3 of Chapter 150B.
Upon showing by an employer of a good faith effort to comply with the abatement
requirements of a citation, and that an abatement has not been completed
because of factors beyond his reasonable control, the administrative law judge,
after an opportunity for a hearing as provided in Article 3 of Chapter 150B,
may issue an order affirming or modifying the abatement requirements in such
citation. Affected employees or representatives of affected employees shall be
considered aggrieved persons under G.S. 150B-23 for contested cases under this
section.
(6) Each local unit of government shall report each violation for which it is issued a citation to its local governing board at its next public meeting and to its workers compensation insurance carrier or to the risk pool of which it is a member pursuant to Article 23 of Chapter 58 of the General Statutes."
Sec. 3. G.S. 95-223(1) reads as rewritten:
"(1) 'Agricultural
employment' means employment in any service or activity included within the
provisions of Section 3(f) of the Fair Labor Standards Act of 1938, or section
3121(g) of the Internal Revenue Code of 1986; and the handling, planting,
drying, packing, packaging, processing, freezing, or grading prior to delivery
for storage of any agricultural or horticultural commodity in its
unmanufactured state and including the harvesting of Christmas trees; trees,
and the harvesting of saltwater crabs;".
Sec. 4. This act becomes effective October 1, 1993, and applies to citations issued on or after that date.
In the General Assembly read three times and ratified this the 7th day of July, 1993.
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Dennis A. Wicker
President of the Senate
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Daniel Blue, Jr.
Speaker of the House of Representatives