N.Y. Comp. Codes R. & Regs. tit. 12 § 830.5

Current through Register Vol. 46, No. 51, December 18, 2024

Section 830.5 - Penalty assessment factors

(a) In determining the amount of the civil penalty to be assessed for each day for which a violation remains unabated, the following factors shall be taken into consideration:

(1) The gravity of the violation, including:

(i) the probability of the injury or illness occurring, as determined by the use of the factors listed under subdivision (b) or (c) of this section;

(ii) the severity of the injury or illness which could result from the violation; and

(iii) the characterization of the violation as a willful and/or repeat violation.

(2) The existence of penalty adjustment factors, if applicable, which shall include:

(i) consideration of the small size of the employer's workforce, taking into account the number of employees at all workplaces controlled by the employer during the 12 months preceding the inspection conducted following the abatement date;

(ii) the existence of genuine and effective good faith efforts of the employer to correct safety and health violations; and

(iii) the lack of any significant history of previous violations.

(b) In connection with a safety violation, the following factors shall be considered in determining the probability of the injury or illness occurring:

(1) the number of workers exposed to the hazard sought to be prevented by the standard, provision, or regulation which the employer has violated;

(2) the frequency to which employees are exposed to the hazard;

(3) the proximity of employees to the hazard;

(4) the working conditions at the workplace where the violation has occurred, including environmental conditions and factors such as speed of operations, lighting, temperature, weather conditions, noise and housekeeping, which may influence the likelihood of an injury-producing accident;

(5) the existence of mitigating circumstances or additional contributing factors; and

(6) the number of instances of the violation found during the first inspection conducted following the abatement date.

(c) In connection with a health violation, the following factors shall be considered in determining the probability of the injury or illness occurring:

(1) the number of workers exposed to the hazard sought to be prevented by the standard, provision, or regulation which the employer has violated;

(2) the duration of exposure to the hazard to employees;

(3) the extent to which an effective personal protective equipment program is in effect;

(4) the extent to which an effective medical surveillance program is in effect (if applicable);

(5) the existence of mitigating circumstances or additional contributing factors; and

(6) the number of instances of the violation found during the first inspection conducted following the abatement date.

(d) The commissioner retains the right to reduce the amount of the penalty should he or she determine that, after consideration of the factors in subdivision (a) of this section, extenuating circumstances justify such action.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 830.5