310 CMR, § 33.07 - Enforcement Procedures

(1) Willful violations. Whenever the Department has cause to believe that any employer or manufacturer has willfully and intentionally violated any provision of M.G.L. c. 111F, §§ 16, 17 or 18, or any provision of 310 CMR 33.00, the Department may report such willful and intentional violation to the Attorney General and request that the Attorney General bring an action in the appropriate court of the Commonwealth to restrain such violation and seek available penalties.

(2) Wrongful violations.

(a) Whenever the Department has cause to believe that an employer or manufacturer has wrongfully failed to comply with any provision of M.G.L. c. 111F, §§ 16, 17 or 18, or any provision of 310 CMR 33.00, the Department may within 120 days of such violation, or within 120 days of the date on which knowledge of the violation is obtained, undertake an investigation.

(b) Investigations. The Department shall notify the relevant employer or manufacturer of the investigation by certified mail, return receipt requested. The notice shall include a statement d e tailing the nature of the violation and the date(s) on which it is a lleged to have occured. The notice shall inform the employer or manufacturer that he or she has 20 calendar days in which to respond to the notice, should he or she wish to do so. In conducting an investigation, the Department may consider any relevant information, and may request such information from the employer or manufacturer. The Department shall consider all information received that provides mitigation or extenuation of the violation, including the employer's efforts to obtain information or otherwise comply with the relevant requirements, but shall have no affirmative obligation to develop such information.

(c) Determination of good cause. Upon completion of an investigation, the Department shall determine whether good cause exists to believe that a wrongful violation has occured.

1. if the Department determines that good cause does not exist to believe that a wrongful violation has occured, the Department shall notify the employer of such determination in writing within ten days.

2. if the Department determines that good cause does exist to believe that a wrongful violation has occured, the Department shall so notify the employer or manufacturer in writing and shall schedule a conference with the employer or manufacturer to attempt to eliminate the violation.

(d) Conference, conciliation and persuasion. At the conference the Department and the employer or manufacturer shall agree upon a reasonable schedule of measures to be taken by the employer or manufacturer to eliminate the violation by a specified date. Failure of an employer or manufacturer to attend a conference, to reach an agreement with the Department, or to meet the schedule established, may be a basis for concluding that conference, conciliation, and persuasion have failed to eliminate the violation. A compliance schedule may be amended, by agreement of the parties, for good cause shown.

(e) When the Department concludes that conference, conciliation, and persuasion have failed to eliminate a violation, the Department may order such remedial action as may b e appropriate. The Department may also request the Attorney General to enforce any such order.

(3) The failure of an employer or manufacturer to eliminate a violation through conference, conciliation, and persuasion shall not in itself constitute prima facie proof that the violation is or was willful or intentional; however, such a failure may together with other evidence be grounds for concluding that the violation is or was willful or intentional. The Department's decision to pursue elimination of a violation by conference, conciliation or persuasion shall not be a bar to a determination that a violation is or was willful or intentional.

Notes

310 CMR, § 33.07