[Federal Register Volume 63, Number 125 (Tuesday, June 30, 1998)]
[Notices]
[Pages 35611-35612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17309]


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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

[[Page 35612]]

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]
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