A. Citations; notices of de minimis violations:

1. (1) The secretary or the secretary’s authorized representative shall review the compliance officer’s inspection report. If, on the basis of the report, the secretary or authorized representative believes that the employer has violated a requirement of Section 50-9-5 NMSA 1978, or any provision of 11.5.1 NMAC through 11.5.4 NMAC or 11.5.6 NMAC, he shall issue to the employer, by certified mail, either a citation or, for violations that have no direct or immediate relationship to health or safety, a notice of de minimis violations. An appropriate citation or notice of de minimis violations shall be issued even though after being informed of an alleged violation by the compliance officer, the employer immediately abates, or initiates steps to abate, such alleged violation. Any citation or notice of de minimis violations shall be issued with reasonable promptness after termination of the inspection. No citation may be issued under this subsection after the expiration of six months following the occurrence of any alleged violation.
2. (2) Any citation shall describe with particularity the nature of the alleged violation, including a reference to the provision(s) of the state act or of 11.5.1 NMAC through 11.5.4 NMAC or 11.5.6 NMAC (including incorporated federal standard) alleged to have been violated. Any citation shall also fix a reasonable time or times for the abatement of the alleged violation.
3. (3) If a citation or notice of de minimis violations is issued for a violation alleged in a request for inspection under Subsection A of 11.5.1.20 NMAC, or a notification of violation under Subsection D of 11.5.1.20 NMAC, a copy of the citation or notice of de minimis violations shall be sent to the employee or representative of employees who made such request or notification.
4. (4) After an inspection, if the secretary or authorized representative determines that a citation is not warranted with respect to a danger or violation alleged to exist in a request for inspection under Subsection A of 11.5.1.20 NMAC, or a notification of violation under Subsection D of 11.5.1.20 NMAC, the informal review procedures prescribed in Subsections F through H of 11.5.1.20 NMAC shall be applicable.
5. (5) Every citation shall state that the issuance of a citation does not constitute a finding that a violation of the state act has occurred unless there is a failure to contest as provided for in the state act, or if contested, unless the citation is affirmed by the commission.

B. Proposed penalties:

1. (1) After, or concurrent with, the issuance of a citation and within a reasonable time after the termination of the inspection, the department shall notify the employer by certified mail of the penalty, if any, proposed to be assessed under the state act, or that no penalty is being proposed. Any notice of proposed penalty shall state that the proposed penalty shall be deemed to be the final order of the commission and not subject to review by any court or agency unless, within 15 working days from the date of receipt of such notice, the employer notifies the department in writing that he intends to contest the citation or the notification of proposed penalty before the commission.
2. (2) The department shall determine the amount of any proposed penalty, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.
3. (3) Appropriate penalties may be proposed with respect to an alleged violation even though after being informed of such alleged violation by the compliance officer, the employer immediately abates, or initiates steps to abate such alleged violation. Penalties shall not be proposed for de minimis violations.

C. Failure to correct a violation for which a citation has been issued:

1. (1) If an inspection discloses that an employer has failed to correct an alleged violation for which a citation has been issued within the period permitted for its correction, the department shall notify the employer by certified mail of such failure and of the additional penalty proposed under the act by reason of such failure. The period for correction of a violation for which a citation has been issued shall not begin to run until the entry of a final order of the commission in the case of any review proceedings initiated by the employer in good faith and not solely for delay or avoidance of penalties.
2. (2) Any employer receiving a notification of failure to correct a violation and of proposed additional penalty may notify the department in writing that he intends to contest such notification or proposed additional penalty before the commission. Such notice of intention to contest shall be postmarked within 15 working days of the receipt by the employer of the notification of failure to correct a violation and of proposed additional penalty. The department shall immediately transmit such notice to the commission in accordance with the rules of procedure prescribed by the commission.

3. (3) Each notification of failure to correct a violation and of proposed additional penalty shall state that it shall be deemed to be the final order of the commission and not subject to review by any court or agency unless, within 15 working days from the date of receipt of such notification, the employer notifies the department in writing that he intends to contest the notification or the proposed additional penalty before the commission.

   [9/3/1978, 3/21/1979, 1/20/1980, 4/26/1981, 3/9/1983, 1/1/1996; 11.5.1.23 NMAC - Rn & A, 11 NMAC 5.1.23, 10/30/2008]