As we approach the busiest season of the year, fireworks retailers and display companies can expect an inspection from one, if not several, law enforcement and regulatory agencies. We all know that these inspections are deliberately timed to occur now due to the increased level of activity; as a result, these agencies reap a windfall in terms of the fines and penalties assessed.
Since an inspection can occur on any given business day, it is recommended that your business designate one employee to oversee the process in advance. This procedure will assist you in keeping the facts, and events, straight and, at the same time, avoid the confusion and inconsistency that arises when several individuals are involved in the inspection process. Given the fact that government prosecutors are looking to exploit any inconsistency, the need to have one version, and only one version, of your business’ explanation of the facts and events is paramount.
Your reception desk, if you have one, should be instructed to promptly announce the arrival of any government inspector directly to senior management who, in turn, may alert certain employees that the business has been selected to participate in an inspection. I recommend assigning two employees to this task. The first employee should be an employee that has received training for conducting inspections with government investigators, and this employee will also provide responses to any questions and comments made by the inspector(s) for and on behalf of the business (for purposes of this article we will call that person the “Compliance Officer”). The second employee serves only in the capacity of a witness to events and conversations, and that employee should be instructed not to say anything or to interfere with the inspection process.
The two employees should introduce themselves to the government inspector(s) and explain that each has been designated by the business to participate in the inspection process. Oftentimes, several inspectors arrive and fan out around the business premises and, in this instance, you should assign an employee to accompany each inspector with the direction that that employee is not authorized to respond for the business, but only to assist, observe and report; all questions from any inspector can be directed to the Compliance Officer. Over time, government agents will come to understand that this is a standard operating procedure (SOP), policy and practice of the business; and, notwithstanding any agent’s contention that you are interfering with government business, as a business owner you are entitled to implement reasonable and rational policies and practices.
Given the fact that government agents are only human and make mistakes, it is suggested that the Compliance Officer be thoroughly familiar with the regulations that govern the business operations (e.g. DOT, ATF, DOL, and OSHA). Also, the Compliance Officer should periodically undertake to perform an informal inspection of the business operations for identifying and correcting any potential violations, in advance of any formal inspection; essentially discharging one responsibility as the company compliance officer.
A compliance officer should be user-friendly; meaning, he must be able to remain calm in the face of government inspectors who may act imperiously, arbitrarily and capriciously. The inspection process is not the time to argue (you will be provided an opportunity to dispute any violation that may result); rather, it is a time to listen and observe. Over time, the Compliance Officer will come to understand the peculiarities, temperament and tolerance of each inspector and should be able to anticipate issues and reactions; similarly, over the course of time a comfort level by and between your employee and the inspector may develop.
A written record of the time the inspection began and ended should be made, together with notes describing what was said by the inspector(s), as well as what was inspected and observed, and for how long. I suggest that each employee involved carry a camera during the inspection process to, if applicable, photograph the subject or location of the alleged violation. The photograph should be dated and signed by the photographer for purposes of authenticating it later and placed into a file created for this purpose. My experience has been that inspectors are less likely to issue questionable violations when they understand that you will be documenting the alleged violation for your own purposes. In the event an inspector becomes irate about the presence of a camera, have your employee calmly explain that the Compliance Officer has instituted this procedure as a standard operating procedure and, thus, what may be unfamiliar at first will, over time, become routine. If deemed necessary, you can always instruct your employee to advise the inspector that, in the spirit of cooperation, the employee will refrain from taking photographs (during the inspection process). Make a written record of the inspector’s demand to cease photographing, specifying the date, time, and the substance of the inspector’s objections; and, thereafter, photograph the subject or location of the inspector’s violations outside his presence.
All of the written notes and photographs should be maintained in a separate file bearing the date and identity of the agency for future reference, if necessary. As you know, for reasons known and unknown each inspector seemingly interprets the regulations subject to his authority differently than another inspector; like snowflakes, no two inspectors are alike. We also know that the issuance of a notice of violation is subject to the sole discretion of the inspector.
In conclusion, it is important that the inspection process be treated with the utmost seriousness. Suffice it to say, a proactive approach to inspections is likely to be the difference between success and failure. Those businesses that do not already have a Compliance Officer should seriously consider employing one.
At the time of this writing, FMCSA has announced the delay in full implementation of CSA 2010. It now appears that instead of rolling out the program this July with full coverage by December, the program will be delayed some 6 to 9 months, perhaps longer. The agency also announced that motor carriers and the general public will be able to view complete CSA2010 data, including scores in each of the BASICs, as early as November 30, 2010. On November 30, 2010, FMCSA will also begin issuing warning letters to deficient carriers, but will forebear from using the full range of CSA 2010 interventions.
