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• Publication Date: 06/30/1998
• Publication Type: Notice
• Fed Register #: 63:35611-35612
• Title: Participation by OSHA Personnel in State Plan Enforcement Litigation.

DEPARTMENT OF LABOR

Office of the Secretary

Participation by OSHA Personnel in State Plan Enforcement Litigation

On January 21, 1998, the Office of the Solicitor of the Department of Labor issued a memorandum to the Assistant Secretary for the Occupational Safety and Health Administration (OSHA) concerning participation by OSHA Personnel in State Plan Enforcement Litigation. A copy of that memorandum is annexed hereto as an Appendix.

FOR FURTHER INFORMATION CONTACT: Miriam McD. Miller, Co-Counsel for Administrative Law, telephone number (202) 219-8188, ext. 135.

Signed at Washington, DC this 23rd day of June 1998.

Ronald G. Whiting,
Deputy Solicitor of Labor for Regional Operations.

MEMORANDUM FOR CHARLES JEFFRESS

Assistant Secretary for Occupational Safety and Health From: Marvin Krislov, Deputy Solicitor for National Operations Ronald Whiting, Deputy Solicitor Regional Operations Subject: Participation by OSHA Personnel in State Plan Enforcement Litigation

This is in response to requests by OSHA for advice as to the application of the DEPARTMENT OF LABOR regulations at 29 CFR sec. 2.20 et seq., to participation by employees of the Occupational Safety and Health Administration in occupational safety and health enforcement cases brought by states which administer occupational safety and health state plans approved by OSHA under section 18 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 667.

Regulations at 29 CFR Sec. 2.20 (frequently referred to as the "subpoena regulation") provide that the appropriate Deputy Solicitor of Labor shall instruct Departmental employees how to respond to a request for information or testimony in connection with any litigation in which the U.S. DEPARTMENT OF LABOR is not a party. The public policies underlying the subpoena regulation include the following: (1.) conservation of governmental resources; (2.) minimizing governmental involvement in controversial matters unrelated to official business; (3.) centralization of the dissemination of information; (4.) avoiding the expenditure of government time and money in aid of private purposes. It may be of interest to you that OSHA receives by far a greater number of testimony requests than any other agency in the DEPARTMENT OF LABOR. Without the subpoena regulations, OSHA's available personnel resources would be significantly diminished by the testimony of its employees in private civil suites.

The Office of the Solicitor recognizes, however, that requests for assistance in OSHA enforcement litigation arising under federally-approved state plans present different circumstances from cases involving private litigation, due to the partnership between federal OSHA and the states which is created under section 18 of the OSH Act. Like federal OSHA, states with federally-approved plans are responsible, among other things, for adopting and enforcing workplace safety and health standards. Standards and enforcement procedures under approved state plans are required to be `'at least as effective as" federal standards and procedures, and in the majority of instances are nearly identical. OSHA monitors the operation of each state plan, and when certain effectiveness criteria are met, state enforcement replaces that of federal OSHA in areas covered by the approved plan. States receive federal OSHA matching grants of up to 50% of the costs of administering their approved plans. In addition, OSHA affords technical support to its sister agencies in the form of compliance officer training, laboratory services, and technical assistance in implementing new or complex standards.

In view of the shared responsibilities of OSHA and federally- approved state plans under the Act, requests for participation by DEPARTMENT OF LABOR personnel in enforcement cases arising under a federally-approved state plan, where federal personnel have directly participated by either taking part in an on-site inspection or by furnishing substantial technical assistance to the state in the preparation of its case, will generally be approved by the Deputy Solicitor under the DOL subpoena regulation. In making such decisions we will, of course, consider the extent to which such personnel would be available to provide evidence in a comparable enforcement proceeding under the federal OSH Act. Thus, for example, federal OSHA compliance and technical personnel will generally be made available in contested cases to provide testimony concerning their observations while accompanying state inspectors, or to explain technical issues on which they have produced input during the development of the state's case. Factors such as the relevance of the requested testimony, the competence of the intended witness to testify on a particular issue, and whether any privileges might apply, may affect the availability of a federal witness, just as it does in federal enforcement cases. There may be other factors which could affect approval in individual cases. The policy outlined above does not apply to the availability of witnesses to provide official statements of agency policy or render interpretations of standards during litigation; such interpretations are normally rendered by the agency only through rulemaking, letters of interpretation, in court pleadings or in other official documents.

In summary, approval will generally be granted for participation by OSHA staff in contested enforcement cases under federally- approved state plans. As discussed above we will, of course, consider the factors present in each individual case. This policy is based upon the unique federal-state enforcement scheme created by the federal OSH Act, and does not affect the availability of DOL personnel to testify in connection with any other DOL-administered program. Requests for testimony in connection with non-OSHA related litigation, or in connection with OSHA-related cases in which DOL is not a party and which do not fall within the category of cases described above, will continue to be evaluated individually under the criteria and procedures of 29 CFR 2.20 et seq.

[FR Doc. 98-17309 Filed 6-29-98; 8:45 am]

BILLING CODE 4510-23-M


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