OSHA Instruction STP 2.18 February 26, 1981 Office of State Programs

Subject: Inspections and Investigations: Obtaining Warrants on an Ex Parte Basis and Prior to Attempting Entry

A. Purpose. This instruction informs the Regions and the State designees that OSHA has promulgated amendments to 29 CFR 1903.

B. Scope. This instruction applies OSHA-wide.

C. Action. Each Regional Administrator shall ensure that D. of this instruction is followed.

D. Federal Program Change. This instruction describes a Federal program change which affects State programs. Each Regional Administrator shall:

1. Ensure that this instruction is forwarded to each State designee.

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

3. Ensure that, within 30 days of receipt of this notice, each State indicates how it will provide procedures for obtaining timely entry to workplaces for conduct of an inspection without advance notice to the employer of the warrant application in cases in which entry has been refused or in other appropriate circumstances. The State may, within the 30 day period, submit a plan change supplement to establish provisions as effective as the Federal or provide a timetable for developing and submitting such a supplement not later than 6 months from the date of this instruction; or the State may demonstrate why it is not necessary to change its plan.

4. Provide a copy of the revised 29 CFR 1903.4 to the State designee upon request.

OSHA Instruction STP 2.18 February 26, 1981 Office of State Programs

5. Ensure that the State's progress in adoption and implementation of policy which is as effective as the Federal policy is monitored and evaluated as provided in Chapter XVII of the Field Operations Manual.

E. Background. In Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), the Supreme Court held that the Fourth Amendment requires a warrant for a nonconsensual OSHA inspection. However, the Court recognized the importance of surprise in the conduct of inspections (as reflected in the Act's general prohibition against advance notice of an inspection), in preventing the speedy alteration or disguise of violations so that they escape the inspector's notice.

1. The Court explicitly noted the Secretary of Labor's authority to promulgate a regulation under which warrants could be sought ex parte; i.e., without the knowledge or participation of the employer. Such warrants might be sought after refusal of an employer to grant entry for an inspection or, in some cases, prior to any attempt to gain entry.

2. Following a Federal district court ruling that the Secretary lacked authority under 29 CFR 1903.4 to seek ex parte warrants, OSHA amended 29 CFR 1903.4 to make clear its authority to seek ex parte warrants. The amendments also made clear that compulsory process may be sought in advance of an inspection under appropriate circumstances and that such process may be sought by the Area Director or his designee.

3. Initially, the amendments were issued as an interpretative rule, without public participation and delay in effective date. However, following a ruling by the U.S. Circuit Court of Appeals for the Third Circuit that the amendments were invalid for failure to use notice and comment rulemaking, a proposal to repromulgate the amendments was published for public comment on May 20, 1980 and a final rule, 29 CFR 1903.4, Inspections and Investigations: Obtaining Warrants on an Ex Parte Basis and Prior to Attempting Entry, was published

OSHA Instruction STP 2.18 February 26, 1981 Office of State Programs

in the Federal Register, Vol. 45, No. 194, on Friday, October 3, 1980, with an effective date of November 3, 1980.

4. The purpose of the amendments to 29 CFR 1903.4 was to preserve the element of surprise in the conduct of inspections, while avoiding as much as possible a delay in obtaining entry for an inspection and while using the agency's scarce enforcement resources as efficiently as possible.

5. A State may be subject to statutes and legal tests which differ from those to which OSHA is subject; however, each State must demonstrate in the actual operation of its program that it is able to address the same issues as those addressed by OSHA in amending 29 CFR 1903.4, protecting the statutory emphasis on surprise entry in the face of potential or actual refusal of entry without a warrant, and avoiding delay in obtaining entry through the warrant process. Therefore, in responding to the amendments of 29 CFR 1903.4, each State is asked to assure that its comparable statutes, regulations, and/or procedures will, in practice, address these issues as effectively as does 29 CFR 1903.4.

Bruce Hillenbrand Acting Director, Federal Compliance and State Programs

DISTRIBUTION: National, Regional and Area Offices State Designees NIOSH Regional Program Directors

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