OSHA Instruction ADM 4.4 AUG 19 1991 Directorate of Compliance Programs

Subject: Administrative Subpoenas

A. Purpose. This instruction transmits policy and procedures for authorizing re-delegation of certain subpoena authority from Regional Administrators to Area Directors.

B. Scope. This instruction applies OSHA-wide.

C. References.

1. OSHA Instruction CPL 2.45B, June 15, 1989, Revised Field Operations Manual (FOM), Chapter III, B.3.b. and D.1.d. (4).

2. OSHA Instruction ADM 4.2, February 2, 1981, Redelegation of Authority and Responsibility of the Assistant Secretary for Occupational Safety and Health.

3. OSHA Instruction ADM 1-1.12B CH-1, April 2, 1990, Integrated Management Information System (IMIS) Forms Manual.

D. Action. OSHA Regional Administrators and National Office Directors shall ensure that the procedures described in this instruction are implemented. These procedures will be incorporated in the FOM.

E. Federal Program Change. This instruction describes a Federal program change which requires a response from the State, only if the State similarly modifies its written procedures. Each Regional Administrator shall:

1. Ensure that a copy of this instruction is forwarded to each State designee, using a format consistent with the plan change two-way memorandum in Appendix P, OSHA Instruction STP 2.22A, CH-2

2. Explain the content of this instruction to the State designee as requested.

3. Inform the State designees that this instruction transfers certain subpoena authority from the Regional Administrators to the Area Directors, and States may, but are not required to re-delegate some of their authority for issuance of subpoenas. If a State modifies subpoena procedures, it should notify the Regional Administrator and submit the appropriate plan change documents in accordance with the usual procedures.

4. Advise the State designees that the attached OSHA model administrative subpoena forms may be adapted for their own use.

F. Background. In the past, whenever there has been a reasonable need for records, documents, testimony and/or other supporting evidence necessary for completing an inspection or an investigation of any matter properly falling within the statutory authority of the agency, the Regional Administrator has issued an administrative subpoena if such evidence was not produced voluntarily.

1. This instruction is intended to relieve the Regional Administrator from the administrative burden of issuing routine administrative subpoenas. In an effort to simplify the process of obtaining a subpoena, the Area Director is authorized to issue an administrative subpoena at his/her discretion.

2. Subpoenas may be used to obtain information, such as injury and illness records, employment data necessary for calculating lost workday injury rates, the written hazard communication programs, and other records necessary to evaluate the employer's safety and health program.

G. Policy. Regional Administrators are authorized and encouraged to subdelegate to the Area Directors the authority to issue administrative subpoenas.

1. Except as provided by paragraph G.2., Area Directors may be delegated authority to issue administrative subpoenas for any record or document relevant to an inspection or investigation under the Act, including, for example:

a. Injury and illness records such as the OSHA 101 and the OSHA 200. (See CPL 2-2.46, 29 CFR 1913.10(b)(6), Authorization and Procedures for Reviewing Specific Medical Records to Verify Compliance with 29 CFR 1904.)

b. Hazard communication program.

c. Lockout/tagout program.

d. Safety and health management program.

2. The Regional Administrators shall retain independent authority to issue subpoenas for any appropriate purpose, and in addition the following authority shall be reserved to the Regional Administrators:

a. Issuance of a subpoena ad testificandum to require the testimony of any company official, employee, or other witness.

b. Issuance of a subpoena for the production of personally identifiable medical records for which a medical access order has been obtained. (See CPL 2-2.46 29 CFR 1913.10(b)(6), Authorization and Procedures for Reviewing Specific Medical Records to Verify Compliance with 29 CFR 1904.)

c. Issuance of a subpoena for the production of physical evidence, such as samples of materials.

H. Procedures. Whenever records or documents are necessary or useful to complete an inspection or investigation, the Area Director may issue a routine administrative subpoena.

1. Information shall be requested from the employer or holder of records, documents, or other information- containing materials. If this person refuses to provide requested information or evidence, the OSHA official/representative shall explain the reason for the request. If this person still refuses to produce the information or evidence requested, the OSHA official/representative shall inform the person that the agency may take further legal action.

2. Refusal to provide information shall be reported to the Area Director or supervisor, who shall decide what action shall be taken. If an administrative subpoena appears to be indicated, a subpoena shall be prepared for the Area Director's signature. Appendixes A and B of this instruction include model administrative subpoenas for use by the Area Offices. If the Area Director believes that there is reason for any departure from the models as indicated by the circumstances of the case, the Area Director shall contact the Regional Solicitor for advice.

3. The Area Director is responsible for evaluating the circumstances and deciding whether to issue a subpoena. In cases with potential national implications or involving extraordinary circumstances, the Regional Administrator shall be contacted for concurrence or for a determination as to whether the subpoena should be issued by the Regional Administrator.

4. The subpoena shall be prepared for service on the appropriate party. It shall normally be served by personal service. In exceptional circumstances, service may be by certified mail with return receipt requested. Where no individual's name is available, the subpoena can be addressed to a business's or organization's "Custodian(s) of Records".

5. Examples of language that could be used for a routine Subpoena Duces Tecum are provided below. This language should be expanded when requesting additional information needed for accidents, referrals, etc. Examples:

a. "Any and all documents which reflect training procedures for the lockout/tagout procedures and hazard communication program in effect at the ABC Plant in Philadelphia, Pennsylvania, during the period June 10, 1991, to present."

b. "The OSHA-200 and the OSHA-101 forms for the calendar years 1990 and 1991, to the present."

c. "Any and all documents which reflect, wholly or in part, including, but not limited to, safety and health program handbooks, minutes of safety and health meetings, and reprimands for violations of safety and health rules by employees of the ABC Plant in Philadelphia, Pennsylvania, during the period June 10, 1991, to present."

NOTE: The more narrow and specific in its description a subpoena is the greater the likelihood that prompt compliance with the subpoena will be obtained.

6. A copy of the subpoena, signed by the Area Director, shall be forwarded as soon as practicable to the Regional Administrator and the Regional Solicitor. A copy of the subpoena shall be maintained at the Area Office.

7. Regional Administrators and Area Directors shall establish procedures to track the administrative subpoenas which they issue which shall include a procedure for "return of service".

8. The person served may comply with the subpoena by making the information or evidence available to the compliance officer immediately upon service, or by making the information or evidence available at the time and place specified in the subpoena.

9. The person served must make arrangements for compliance with the subpoena made prior to the date indicated on the subpoena for production of the evidence.

a. With respect to any record required to be made or kept pursuant to any statute or regulation, the Area Director shall normally allow 3 days from the date of service for production of the required information although a shorter period may be appropriate.

b. With respect to other types of records or information, such as safety programs or incident reports, the Area Director shall normally allow at least 5 working days from the date of service for production of the required information.

c. Separate subpoenas for items a. and b. above may be necessary.

d. The matter of witness fees or mileage costs that could be associated with some subpoenas should be addressed with the Regional Solicitor prior to the issuance of an administrative subpoena.

10. If the person served refuses to honor (or only partially honors) the subpoena, the compliance officer shall note all relevant facts in the file and advise the supervisor before taking further action.

11. The Area Director shall follow the procedures outlined in the FOM when the person served refuses to honor (or only partially honors) the subpoena and shall refer the matter, through the Regional Administrator, to the Regional Solicitor for appropriate action.

12. The Regional Administrator, jointly with the Regional Solicitor shall decide what further action shall be taken. Anticipatory Subpoena. Although it is current Agency policy to seek voluntary production of evidence before an administrative subpoena is issued, a subpoena may be prepared and, if necessary, served without a prior request having been made where there is reason to believe that the person from whom information is sought will not voluntarily comply or where time is of the essence.

NOTE: For example, pre-inspection preparation of subpoenas and issuance at the opening conference would be appropriate in cases of denial of access to records in a previous inspection. It could also be used in cases where complex inspections, involving an extensive review of records, are planned.

J. Changes to the FOM. Accordingly, this instruction changes the FOM, Chapter III. These changes will be formulated and incorporated in the next revision to the FOM.

K. Reporting Requirements. This instruction does not change the reporting requirements of any OSHA forms. Reference OSHA Instruction ADM 1-1.12B CH-1, Integrated Management Information System (IMIS) forms Manual.

Gerard F. Scannell Assistant Secretary

DISTRIBUTION: National, Regional, and Area Offices State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers

*FOR APPENDIX A(OSHA FORM 133 - 5/86) SEE PRINTED COPY OF ADM 4.4

*FOR APPENDIX A(OSHA FORM 133 - 5/86) SEE PRINTED COPY OF ADM 4.4

*FOR APPENDIX A(OSHA FORM 133 - 5/86) SEE PRINTED COPY OF ADM 4.4

*FOR APPENDIX A(OSHA FORM 133 - 5/86) SEE PRINTED COPY OF ADM 4.4

*FOR APPENDIX B(OSHA FORM 132 - 5/86) SEE PRINTED COPY OF ADM 4.4

*FOR APPENDIX B(OSHA FORM 132 - 5/86) SEE PRINTED COPY OF ADM 4.4

*FOR APPENDIX B(OSHA FORM 132 - 5/86) SEE PRINTED COPY OF ADM 4.4

*FOR APPENDIX B(OSHA FORM 132 - 5/86) SEE PRINTED COPY OF ADM 4.4