May 28, 1997

Mr. Jai Kundu, Vice President
American Trucking Association
2200 Mill Road
Alexandria, VA 22314-4677

Dear Mr. Kundu:

This is in response to your letter of January 2, in which you asked for additional information on three topics (reporting over-the-road fatalities, refusing entry and employee interviews to an Occupational Safety and Health Administration (OSHA) inspector, and OSHA's policy associated with seat belts on forklift trucks). Please accept our apology for the delay in this response.

We have included your requests in this response for clarity to a third party reader.

Topic 1

We would like further clarification in when a motor carrier must report an over-the-road fatality to OSHA. There continues to be some confusion over this issue, especially since motor carriers also must comply with Department of Transportation regulations governing the recording of accidents.

Response:

The enclosed letter to Mr. Flatow of your organization on October 17, 1995, continues to be OSHA's policy concerning reporting fatalities and catastrophes during over-the-road operations.

Topic 2

Our members would also like to know if you can provide some specific guidance, or at least reference the material where the information can be found, upon when they may refuse entry to an OSHA inspector wishing to inspect facilities or interview employees.

Response:

Regarding this topic, an OSHA inspector may be seeking entry into one of your member's establishments either to enforce the Occupational Safety and Health Act of 1970 (OSH Act) or the Surface Transportation Assistance Act (STAA) of 1982. The STAA gives the Secretary of Labor authority to investigate complaints (Section 31105) by truckers, mechanics, freight handlers, and others involved in trucking who believe they have been discharged or discriminated against for protected safety activities.

OSHA's Instruction CPL 2.103 provides guidance to field inspectors for enforcement of the OSH Act. The following information has been extracted from this instruction to assist you. The complete document as well as the OSH Act can be accessed from either of OSHA's Web servers at http://www.osha.gov/ or http://www.osha-slc.gov/.

Refusal to Permit Inspection.

Section 8 of the Occupational Safety and Health Act (Act) provides that Compliance Safety and Health Officer (CSHO) may enter without delay and at reasonable times any establishment covered under the Act for the purpose of conducting an inspection. Unless the circumstances constitute a recognized exception to the warrant requirement (i.e., consent, third party consent, plain view, open field, or exigent circumstances) an employer has a right to require that the CSHO seek an inspection warrant prior to entering an establishment and may refuse entry without such a warrant.

Employee interviews.

Section 8(a)(2) of the Act authorizes the CSHO to question any employee privately during regular working hours in the course of an OSHA inspection. The purpose of such interviews is to obtain whatever information the CSHO deems necessary or useful in carrying out the inspection effectively. The CSHO may consult with any employee who desires to discuss a possible violation under Section 8(f)(2); upon receipt of such information, the CSHO shall investigate the alleged hazard, where possible, and record the findings.

Private interviews may be conducted at any time during an inspection but must be conducted in a reasonable manner.

Although not specific to your inquiry, OSHA has assumed on February 3, 1997, jurisdiction for whistle blower protection under other federal statutes. A copy of the memorandum for Regional Administrators on this subject is also enclosed.

Topic 3

The members would greatly appreciate any background information on why OSHA has ruled that forklifts shall have seat belts, along with any details on proposed retrofit requirements.

Response:

Enclosed are two documents (Oct. 9, 1996, Memorandum for Regional Administrators and Dec. 11, 1996, Letter to Mr. Stuart Flatow) which, we believe, provide the background you are seeking. These policy and guidance documents, along with the American National Standards Institute's standard for powered industrial trucks, reflect the Agency's position concerning seat belts on forklift trucks.

Should you have further questions on this letter please contact Mr. Don Kallstrom in the Office of Safety Compliance Assistance (202) 219-8031, x-109.

Sincerely,

John B. Miles, Jr., Director
Directorate of Compliance Programs