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• Record Type: Instruction
• Directive Number: CSP 01-03-002
• Old Directive Number: STP 2.13
• Title: Reference Book on Jurisdiction Issues
• Information Date: 10/30/1978

U.S. DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

WASHINGTON D.C. 20210

OSHA PROGRAM DIRECTIVE #77- 5 OSHA Instruction

October 30,1978 TO: REGIONAL ADMINISTRATORS ASSISTANT REGIONAL ADMINISTRATORS

THROUGH: Donald E. MacKenzie, Field Coordinator

FROM: Richard P. Wilson

SUBJECT: Reference Book on Jurisdictional Issues

l. Purpose. The purpose of this directive is to replace Field Information Memoranda #75-39, #75-39A, #75-39B which transmitted copies of the "Reference Book on Jurisdictional Issues" and amendments thereto. The content of the FIM's has been combined and updated to reflect current conditions.

2. Program Directives Affected Field Information Memoranda #75-39, #75-39A, #75-39B are replaced by this directive. Since sufficient copies of the Reference Book have been previously transmitted, only an updated Table of Contents and one new Interagency Agreement are provided as attachments to this directive.

3. Background. It is OSHA's position that a State has jurisdiction in occupational safety and health issues that are not specifically excluded in its approved plan. The State has the same scope of authority and responsibility for exercising that jurisdiction as would OSHA were the plan not in effect. In carrying out their enforcement responsibility States may encounter problems involving two types of jurisdictional questions.

The first and more prevalent problem involves questions of whether OSHA has jurisdiction under Section 4(b) (1) of the Act. Section 4(b) (1) excepts from OSHA application those particular working conditions over which other Federal agencies have exercised their statutory authority by promulgating enforceable occupational safety and health standards applicable to those particular working conditions (hazards). Approved States are expected to exercise jurisdiction over all working conditions unless another Federal agency is clearly exercising its authority.

Section B, Jurisdictional Interpretations, of the Reference Book contains documents that present OSHA's interpretations of where jurisdiction lies in relation to certain Federal agencies. Where appropriate, States should

OSHA Instruction October 30, 1978

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use these documents for guidance in determining the extent of OSHA jurisdiction. States are free to honor these Federal limitations on OSHA's jurisdiction as State limitations. However, Section 4(b) (1) limitations are strictly binding only on the Federal program. Therefore, a State may choose to exercise greater jurisdiction under its own law than is allowed to Federal OSHA. Any maximum limitation on State jurisdiction would be determined under the State law and other Federal law and applicable court decisions.

(In a related development, the Consumer Product Safety Commission, the Environmental Protection Agency, the Food and Drug Administration and OSHA have recently entered into an interagency agreement with the goal of increased cooperation in standards setting, enforcement, training, etc. A copy of this agreement is attached.)

The second jurisdictional problem involves the question of "exclusive Federal jurisdiction" over private contractors on certain Federal properties. In this situation there is not a question of whether OSHA or another Federal agency has jurisdiction, but whether OSHA may pass its jurisdiction on to a State through an approved State plan. Exclusive jurisdiction exists on certain limited Federal property where such jurisdiction has been reserved by the Federal government or ceded by the State to the Federal government. In such cases specific Congressional action would be required to permit State regulation of private employers working on these Federal properties. While it has been OSHA's position that the necessary Congressional action was taken through the enactment of Section 2(b) (11) and 18 of the Act, whereby states were invited to cover the same class of employers as the Federal program, a recent Federal district court decision in Minnesota has challenged this interpretation.

4. Action.

a. In any case where a State inspector is denied entry on the basis of a 4(b) (1) jurisdictional question, the State should pursue entry in one of the following ways:
1. A State may seek a court order enforcing its right of entry. In this case the Region should be notified of the State action and kept informed of the progress of the suit. OSHA will provide legal advice if requested by the State.
2. A State may take advantage of the Federal procedure for determining jurisdiction under Program Directive #200-2, "Handling jurisdictional Complaints " contained in Section A2 of the Reference Book. States choosing this alternative should contact the Regional Office to initiate action under the Federal procedure.

OSHA instruction October 30, 1978

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b. In cases involving claims of exclusive Federal jurisdiction over private contractors on Federal property (military bases, national parks, etc.), Program Directive #77- 6, "Application of State Safety and Health Provision to Private Employers in Areas of Exclusive Federal Legislative Jurisdiction", should be referred to for specific directions. That directive should be incorporated into Section A3 of the Reference Book.
c. The attached CPSC/EPA/FDA/OSHA agreement is provided for information and should be added, as Section C-9, to the Reference Book.
d. Regional Administrators should assure that State designees have received copies of this updated directive as well as Program Directive #77-6 and should assist them with any specific problems.

5 Filing. This Directive is effective immediately and remains in in effect until further notice.

Attachments: Table of Contents Interagency Agreement (C9)

ORIGINATOR: OCS

Distribution: A-1, B-2, C-2, D-4 and 5, E-1, HEW-1, NIOSH Regional Program Directors-1, NACOSH-1, Training Institute-4

OSHA Instruction October 30, 1978 Rev. 10-25-77 Reference Book Table of Contents

A. General.

1. Departments Interpretation of Section 4(b) (1)
2. Program Directive #200-2, Handling Jurisdictional Complaints and Questions Involving 4(b) (1) of the Occupational Safety and Health Act.
3. Application of State Safety and Health Provisions to Private Employers; in Areas of Exclusive Federal jurisdiction (Program Directive #77-6 ); SOL Opinions
4. Summary of Interagency Understandings.

B. Jurisdictional Interpretations.

1. Ammunitions Storage Board - DOD (Memorandum of Intent).
2. AEC (Letter of Intent).
3. EPA (Pesticide Standard).
4. MESA (Memorandum of Understanding).
5. FRA (Program Directive (#200-32).
6. ATF (Letter of Intent).
7. DOT (FIM 73-25)
8. DOD contractors

C. Procedural Understandings

1. APHIS (Memorandum of Understanding).
2. ES (Memorandum of Understanding).
3. NBS (Interagency Understanding).
4. NTIS (Interagency Agreement).
5. CPSC (Memorandum of Understanding).
6. NIOSH (Memorandum of Understanding).
7. FDA (Memorandum of Understanding). 8. SBA (Memorandum of Understanding). revised 7/9/75
9. CPSC/EPA/FDA/OSHA (Interagency Agreement - September, 1977)

OSHA INSTRUCTION STP 2.13 OCTOBER 30, 1978

INTERAGENCY AGREEMENT

AMONG

U.S. CONSUMER PRODUCT SAFETY COMMISSION

U.S. ENVIRONMENTAL PROTECTION AGENCY

DEPARTMENT OF HEALTH, EDUCATION AND WELFARE

FOOD AND DRUG ADMINISTRATION

DEPARTMENT OF LABOR

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
RELATING TO THE REGULATION OF TOXIC AND HAZARDOUS SUBSTANCES

I. Purpose.

As principal regulatory agencies charged with protecting the public and the environment form the adverse effects of toxic and hazardous substances, we hereby agree to increase our on-going efforts to cooperate with each other as far as is practicable to make the most efficient use of resources, achieve consistent regulatory policy, and improve the protection of the public health and environment.

Interagency cooperation is already taking place between various segments of the Environmental Protection Agency, Food and Drug Administration, Consumer Product Safety Commission, and Occupational Safety and Health Administration. This Interagency Agreement is intended to supplement these activi- ties.

II. Statuses

This agreement is entered into within the limits of the statutory authorities of the four agencies.

III. Items of Agreement A. The four agencies shall establish interagency com-

munications channels at appropriate levels to facilitate the

OSHA INSTRUCTION STP 2.13 OCTOBER 30, 1978

exchange of information and to explore options for increasing cooperation and coordination.

B. Each of the four agencies shall designate a liaison officer to coordinate the participation of that agency in this agreement.

C. In order to carry out the purpose of this agreement and to the extent consistent with the statutory responsibilities of the agencies which are parties to this agreement, such agencies will endeavor to develop common, consistent or compatible:

1. testing protocols, criteria for interpretations, quality assurance procedures, and other policies relating to the testing of toxic and hazardous substances;

2. epidemiological practices and procedures;
3. approaches to the assessment of risk presented by a toxic or hazardous substance and to the estimation of benefits associated with a substance;
4. methods of obtaining, analyzing, storing , and exchanging information which might be of mutual interest;
5. research and development policies, possibly including methods of sharing costs and facilities;
6. regulations and regulatory development activities where a hazard can be most effectively controlled by joint participation or by use of the statutory authorities of more than one agency, e.g., joint public hearings or rulemaking action;

7. compliance and enforcement procedures and policies;
8. public communication and education programs, and informational services to industry;

9. other activities as may be applicable.

D. The four agencies may initiate mutual training programs, personnel exchange programs, and other personnel policies which may further the purposes of this agreement.

E. The four agencies may enter into jointly sponsored contracts or award jointly sponsored grants to further the purposes of this agreement.

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IV. Supplementary Agreements

This agreement may be further carried out by supplementary agreements of the following types:

A. Authorized representatives of the four agencies may amplify or otherwise modify the policy or provisions in this agreement or any of its supplements, provided that any material modification of the provisions in this agreement or any of its supplements shall be subject to the approval of the heads of Occupational Safety and Health Administration and a majority of the members of the Consumer Product Safety Commission.

B. Authorized representatives of two or three of the four agencies may execute a bilateral or trilateral supplementary agreement which affects only the parties thereto, and which is consistent with the purpose and provisions of this overall agreement.

C. Subordinate officials of the four agencies (or of any two or three of the four) who are authorized to execute interagency agreements may, within their area of responsibility, execute supplements to this agreement which are consistent with its purpose and provisions.

VI. Duration, Renewal and Termination

This agreement shall take effect when accepted by all four parties and shall endure for four (4) years or until three parties have individually terminated it, whichever occurs first. This agreement may be renewed by mutual acceptance of the parties after four years from acceptance, or earlier if terminated in accordance with the terms of the agreement.

This agreement may be terminated by any of the parties to it following 30 days advance written notice by that party to all of the other parties.

Supplementary agreements may be temporary and terminate on a certain date or upon completion, as provided. In addition, those which involve resource commitments on the part of any agency may have different provisions for termination

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which will govern only for that supplement.

The termination of this agreement or any supplement by one party does not render it void for the other parties.

VII. Agreement Authority

This agreement is entered into under the authority of the Economy Act of 1932 and under that of various provisions for interagency cooperation appearing in the legislative authorities of the four agencies.

For the Consumer Product Safety For the Environmental Protection Commission: Agency:

_______________________________ _________________________________

S. John Byington, Chairman Douglas M. Costle,

Administrator

For the Food and Drug Adminstra- For the Occupational Safety tion: and Health Administration

_______________________________ _________________________________

Donald Kennedy, Commissioner Eula Bingham, Assistant

Secretary of Labor

September 26, 1977

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