June 14, 2011
Customs, Immigration & Cross-Border Operations
American Trucking Associations
950 North Glebe Road, Suite 210
Arlington, VA 22203-4181
Dear Ms. Irwin:
Thank you for your April 1, 2011, letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs (DEP). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence.
Your scenario and questions are restated below for clarity.
Background/Scenario: A Washington State Department of Labor and Industries inspector issued a citation for "not ensur[ing] that when loading or unloading highway trucks with Powered Industrial Trucks (PITs), the brakes must be set and the wheels must be chocked and blocked to prevent movement of trucks or trailers during loading and unloading." The citation was issued to an American Trucking Association (ATA) member carrier, at a carrier-owned and used terminal yard.
Question 1: Is it possible for OSHA to issue a letter or a copy of the CPL 2-1.30, Chocking of Tractor Trailers under the Powered Industrial Truck Standard, to ATA in the event that federal and/or state inspectors attempt to enforce the 29 CFR 1910.178 wheel chocking standard?
Reply: OSHA Instruction CPL. 2-1.30, Chocking of Tractor Trailers under the Powered Industrial Truck Standard, may be viewed and downloaded from the OSHA website.1 Additionally, the Office of General Industry Enforcement (GIE) issued a Letter of Interpretation (LOI) on March 7, 2011 to Mr. Ron Cole,2 which further explains the jurisdictional relationship between OSHA and the Federal Motor Carrier Safety Administration (FMCSA).
Question 2: How will OSHA ensure that this information is disseminated to all federal and state inspectors?
Reply: OSHA will address this issue on its next conference call with our Federal Regional offices to reiterate our current policy and provide heightened awareness to the Ron Cole letter of interpretation.
The CPL 02-01-030 directive was circulated to federal and State Plan officials upon issuance and is readily available for their reference. The Federal Program Change section of the directive provides guidance to the State Plan States and indicates that they are required to have equivalent enforcement policies and procedures in place. However, as that section also indicates, the OSHA jurisdictional limits pursuant to Section 4(b)(1) of the Federal Act and relevant case law are not directly applicable to the State Plans. The 22 State Plans covering the private sector are not required to have a provision equivalent to Section 4(b)(1) in their State enabling legislation and may have different statutory language regarding overlap of jurisdictional authority with other Federal agencies. If a State does not honor the Federal jurisdictional limitations, it would be expected to litigate any challenges to its exercise of a broader authority to establish its own body of relevant case law.
As you are aware, the State of Washington operates its own occupational safety and health program, under a plan approved and monitored by Federal OSHA, through the Division of Occupational Safety and Health (DOSH) of the Department of Labor and Industries. DOSH adopts and enforces standards equivalent to OSHA's under authority of State law, and responds to accidents and workplace safety and health complaints, etc. Its standards are posted at www.lni.wa.gov/Safety. Washington does not have a statutory provision regarding jurisdiction limitations equivalent to the Federal Section 4(b)(1). Any employer receiving citations for violation of Washington's, or any other State Plan's, standards may contest such citations and penalties, usually within 15 working days, through the State's review process. It appears that your member carrier in Washington has exercised this right. Employers are free to challenge the State's citations on jurisdictional grounds and to raise the issue during inspection and at informal conference as well. However, the matter must ultimately be resolved under State law.
If you or your members should have additional questions concerning the Washington state plan, or would like to discuss this matter further with the State, you may contact DOSH directly at the following address:
Michael Silverstein, Assistant Director
Division of Occupational Safety and Health
Washington Department of Labor and Industries
P.O. Box 44600
Olympia, Washington 98504-4600
Phone: (360) 902-4805
Fax: (360) 902-5619
Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. In the future, should you wish to verify that the guidance provided herein remains current, you may consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.
Thomas Galassi, Director
Directorate of Enforcement Programs
cc: Michael Silverstein, Asst. Director, DOSH
Dean Ikeda, OSHA Regional Administrator