This absurd result is contrary to the framework which has been used by the Secretary of Labor to monitor, audit, and fund the enforcement activities (including BOIinvestigation and referral work resulting in the UCL filings of state prosecutors) of California’s approved state plan for nearly forty years. 1. The Secretary of Labor has Long Been Monitoring, Auditing, and Funding BOI’sInvestigation and Referral Practices That Result in UCL Filings by State Prosecutors. AS an approvedstate plan within the meaning of section 18(c) of the OSHAct, California’s state plan is continually evaluated and monitored by 26 the Assistant Secretary of Labor (29 U.S.C.A. § 667(f).). The state plan “must submit written quarterly and annual reports about its operation to the Assistant Secretary through the Regional OSHA office.

The District Attorney is simply not acting in accordance with the California plan, approved or otherwise. Federal law preempts such an 16 approach, which evades the system for submission and approvalset out by Congress in 29 U.S.C. § 667. This conclusion follows from the U.S. Supreme Court’s decision in Gade, in which Illinois enacted workersafety laws but did not submit them to the Secretary of Labor for approval.

In fact, both 29 U.S.C. Section 667, subdivision (f), and 29 C.F.R. Section 1952.172, subdivision (c) expressly confirm that no federal enforcementjurisdiction was retained underthis authority. Instead, FedOSHAis expressly required to take affirmative steps to “notify the State agency of [the] withdrawal of approval”ofthe State Plan and “make a prompt recommendation for the resumption ofthe exercise ofFederal enforcement authority”in any area not otherwise 38 expressly reserved whenit finds it “necessary to assure occupational safety and health protection to employeesin California” during its regular auditing of California’s State Plan. (29 C.F.R. 1952.172(b)-(c); 29 U.S.C. 667(f).) There is no evidence of any intent by FedOSHAeither to resume or undertake any enforcementjurisdiction in relation to any ofthe alleged violations of California law in this case.

Therefore, the court ordered that Prop. 65 warning regulations must be adopted and incorporated into the state Cal/OSHAplan and submitted to the Secretary of Labor for approval. See id. at 1559 (citing 29 U.S.C. § 667). Through the Secretary’s process of considering the State Plan amendments, more than 200 comments were filed by citizens and employers on Proposition 65’s impact on workplace safety.

As the Court of Appeal reasoned,the District Attorney cannot use a “presumption against preclusion” to avoid obtaining the U.S. Secretary of Labor’s approval: Because the OSH Act allowsa state to avoid federal preemption only if it obtains federal approval of its own plan, it necessarily follows that a state has no authority to enact and enforce laws governing workplace safety which fall outside of that approved plan. The OSH Act expressly requires a state to comply with its approved plan, and allowsthe Secretary to rescind approvalofthe plan if the state fails to do so. (29 U.S.C., § 667(f).) Under this statutory scheme, we conclude the approvedstate plan operates, in effect, as a “safe harbor” within which the state may exercise its jurisdiction.

Under FedOSHA’s oversight function, the Secretary of Labor is required to review reports, conduct investigation and continually monitor CA state plan related activities, which would naturally include all prosecutions related thereto. (29 U.S.C. § 667(f); 29 C_F.R. § 1952.172(c).) Yet, FedOSHA has said nothing to suggest an intent to preempt these actions or an intent to reassert federal jurisdiction over California’s State Plan as a result.

Jd. By those same terms, the Secretary should have an opportunity to weigh those comments in determining whetheradditional penalties would impose undue burdens onthe business community. 29 U.S.C. §§ 651, 667(c). 14 CONCLUSION For the foregoing reasons, Amicus NFIB Legal Center respectfully urges this Court to affirm the decision of the Court ofAppeal.

For example, under the Occupational Safety and Health Act (“OSHA”), a State may submit a plan for the development and enforcement of safety standards within its borders. 29 U.S.C. § 667(b)-(c). Once the Secretary of Labor approves a State’s plan, OSHA’s federal criminal enforcement provision no longer applies.

. . of occupational safety and health standards’” to submit a plan to do so to the federal government for approval. (Gade v. Nat’! Solid Wastes Mgmt. Ass’n (1992) 505 US. 88, 99, quoting 29 U.S.C. § 667(b).) OSHA’s language, the Court explained, preempts only state law that “constitutes, in a direct, clear and substantial way, regulation of worker health and safety.”

OSHA does not “enforce” its standards in states or territories with plans that cover both private and state and local government workplaces. See 29 U.S.C. § 667(e). Rather, these states and territories must adopt workplace safety and health standards and programs that are “at least as effective as” as OSHA standards.