[Federal Register Volume 66, Number 215 (Tuesday, November 6, 2001)]
[Proposed Rules]
[Pages 56043-56048]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27728]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 66, No. 215 / Tuesday, November 6, 2001 /
Proposed Rules
[[Page 56043]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1953
[Docket No. T-035]
RIN 1218-AB 91
Changes to State Plans: Revision of Process for Submission,
Review and Approval of State Plan Changes
AGENCY: Occupational Safety and Health Administration (OSHA), Labor
ACTION: Proposed rule.
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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
proposing to revise its regulation concerning changes to approved State
plans. The proposed rule streamlines the process for submission, review
and approval of plan supplements, including changes to occupational
safety and health standards, and reorganizes Part 1953 to eliminate
repetitive language.
DATES: Comments and requests for hearings must be received no later
than January 7, 2002.
ADDRESSES: Written comments or requests for an informal hearing should
be submitted to Docket T-035, Docket Office, Room N-2625, Occupational
Safety and Health Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N3700, Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Director, Office of
Information and Consumer Affairs, Occupational Safety and Health
Administration, U.S. Department of Labor, Room, N-3637, 200
Constitution Avenue, NW., Washington, DC 20210, (202) 693-1999.
SUPPLEMENTARY INFORMATION:
A. Background
Section 18 of the Occupational Safety and Health Act of 1970 (the
Act), 29 U.S.C. 667, provides that States which wish to assume
responsibility for developing and enforcing their own occupational
safety and health standards relating to any occupational safety or
health issues with respect to which a Federal standard has been
promulgated may do so by submitting and obtaining Federal approval of a
State plan. State plans may be ``complete'' plans covering both the
private sector and State and local government employees (see 29 CFR
part 1902) or State plans limited in scope to State and local
government employees only (see 29 CFR part 1956). A State plan consists
of the laws, standards and other regulations, and procedures under
which the State operates its occupational safety and health program.
From time to time after initial plan approval, States may, and in many
cases are required to, make changes to their plans as a result of State
and Federal legislative, regulatory or administrative actions. State
plans and their subsequent modifications are required to be ``at least
as effective as'' the Federal program. (See section 18(c) of the Act,
and Secs. 1902.2 and 1956.2.) The current regulation requires that if
the State makes a change to its plan, either on its own initiative or
in response to a change in the Federal program or as a result of
program monitoring, the State must notify OSHA of the change, within an
established time frame, provide a copy of the implementing documents,
and submit a written description of the change, including the
identification of and rationale for any differences from the Federal
program (referred to as a plan supplement). This is currently required
whether the change is identical to the Federal regulation, policy or
procedure or if it differs. OSHA then reviews the change; if it meets
the approval criteria, OSHA publishes a notice announcing the approval
of the change; if it does not meet the criteria OSHA initiates
procedures to reject the change. OSHA is proposing to amend its
regulations regarding State plan changes to streamline the submission,
review and approval process.
B. Proposed Changes
The current regulation requires the submission of a formal written
plan supplement even if the State's change to its program is identical
to the Federal program component. OSHA is proposing to amend this
regulation to provide that States must submit written supplements only
when the State change is different from the Federal program. State
adoption of a standard, regulation, policy or procedure that is
identical to the parallel Federal component, an ``identical change,''
would per se be at least as effective as the Federal program and could
not ``pose a burden on interstate commerce'' or otherwise not meet the
criteria for approval. (A state submission is considered ``identical''
if the State adopts the same program provisions and documentation as
the Federal program with the only differences being those modifications
necessary to reflect a State's unique structure (e.g., organizational
responsibility within a State and corresponding titles or internal
State numbering system).) Therefore, State submission and OSHA review
of these changes has been superfluous as there is no issue as to
approvability. Under the proposed revisions, States will be required to
submit documentation of adoption of the identical Federal change, such
as the cover page of an implementing State directive or a notice of
State promulgation for inclusion in the State Plan documentation and
maintain all other implementing documentation available for review
within the State. No formal approval process will be undertaken for
such ``identical change.'' However, if a State makes a change to its
program which differs from (i.e., is not identical to) the Federal
program, the State must notify OSHA of the change, within an
established time frame, provide a copy of the implementing documents,
and submit a written description of the change, including the
identification of and rationale for the differences from the Federal
program. OSHA will then review and either approve or reject the plan
change.
The proposed amended regulation also streamlines procedures for the
review of supplements to State plans and the issuance of advisory
opinions. The new procedures were developed through a ``process
improvement initiative'' with input from all State and Federal parties
involved in the submission, review and approval of plan changes.
The revised regulation would expressly set forth OSHA's
longstanding interpretation of the OSH Act to the
[[Page 56044]]
effect that states which have submitted and obtained Federal approval
of a state plan under 18(b) may adopt modifications to their state plan
(such new standards, amendments to state OSHA legislation, or revised
enforcement procedures) and may implement these modifications under
state law, without prior approval of each particular modification by
OSHA. Since the inception of the state plans approval program, OSHA has
understood that the Federal approval of a state plan under section
18(b) lifts the barrier of Federal preemption and allows the state to
``adopt and enforce standards'' under state law. Accordingly, OSHA has
always viewed its enabling statute as not requiring pre-enforcement
Federal approval of new regulations or other requirements issued by
states with Federally-approved plans. Instead, OSHA reviews these state
standards and regulations after they are enacted, and, if there is
reason to believe a particular plan modification fails in some way to
meet OSH Act requirements, OSHA regulations provide that OSHA will
initiate an adjudicative rejection proceeding, in similar manner to
that prescribed by section 18(d) for Federal rejection of a state plan.
29 CFR 1953.23(d)(2). Upon completion of such a rejection proceeding
and any judicial review resulting therefrom, the state plan
modification would be excluded from the plan and thus subject to
preemption, but until the prescribed process for rejection is completed
the state's health or safety regulation or other state plan
modification would remain enforceable. OSHA's longstanding
interpretation that section 18 of its enabling statute does not require
pre-enforcement Federal approval for each new safety or health
requirement adopted by a state with an approved state plan, is
consistent with the wording of that statutory provision (which
envisions that states with approved plans will ``adopt and enforce''
their own standards) as well as the Congressional objective set forth
in section 2(b)(11) of the Act of ``encouraging the states to assume
the fullest responsibility for the administration and enforcement of
their own occupational safety and health laws.'' This interpretation
has routinely been incorporated in OSHA Federal Register notices
approving or requesting comment on various state plan modifications
(see, e.g, Approval of California State Standard on Hazard
Communication Incorporating Proposition 65, (62 FR 31159)), and has
been judicially upheld in Florida Citrus Packers v. California, 549 F.
Supp. 213 (N.D. Cal. 1982).
The current regulation provides that the OSHA Regional
Administrators, by authority delegated from the Assistant Secretary,
review and approve State change supplements involving occupational
safety and health standards. The Assistant Secretary retained sole
authority for review and approval of change supplements not involving
standards. The proposed amended regulation simply states that OSHA will
review and approve State plan supplements. Following final
promulgation, OSHA will issue appropriate written, publicly available,
procedures assigning organizational responsibility for Federal review
and approval of State plan supplements. This change will provide the
Assistant Secretary with the flexibility to modify the strictly
internal review procedures without the need for formal rulemaking. It
is OSHA's current intent to assign approval authority for all plan
changes, including standards, to Regional Administrators.
The current regulation provides for an opportunity for public
comment whenever a plan change differs significantly from the Federal
program and the publication of a Federal Register notice approving all
State plan changes, even those which are identical to a corresponding
Federal program component. This proposed rule provides that generally,
OSHA will seek public comment if a State plan change differs
significantly from the comparable Federal program component and OSHA
needs additional information on its compliance with the criteria in
section 18(c) of the Act, including whether it is at least as effective
as the Federal program and, in the case of a standard applicable to
products used or distributed in interstate commerce, whether it is
required by compelling local conditions or unduly burdens interstate
commerce. After public comments are reviewed, a Federal Register notice
will be published either approving the state plan modification or
announcing OSHA's intention to initiate proceedings to reject it.
The current regulation discusses four types of plan changes
(developmental, in response to Federal program changes, as a result of
program evaluation, or at the State's initiative), with the submission
and review process for each type addressed separately. Because all plan
supplements will be subject to the same review and approval process,
OSHA reorganized the proposed regulation to first address the
submission of each of the four types of plan supplements, followed by
one section on the review and approval of all types of supplements.
The current regulation requires States to submit six copies of all
plan supplements. This proposal requires states to submit only one copy
and provides for the electronic notification and submission of all
required documentation.
Conforming technical amendments will also be made to sections in
parts 1952, 1954 and 1955 which include references to particular
sections in part 1953, to reflect the revisions.
C. Public Participation
Interested persons are invited to submit written data, views and
arguments with respect to this proposed revision. These comments must
be submitted on or before January 7, 2002, in duplicate to Docket T-
035, Docket Office, Room N-2625, U.S. Department of Labor, OSHA, 200
Constitution Avenue, NW., Washington, DC 20210, (202) 693-2350.
Comments under 10 pages long may be sent by telefax to the Docket
Office at (202) 693-1648, provided that the original and one copy of
the comment are sent to the Docket Office immediately thereafter.
Electronic comments may be submitted on the Internet at:
ecomments.osha.gov but must be followed by a mailed submission in
duplicate. Written submissions must clearly identify the issues which
are addressed and the position taken with respect to each issue.
D. Paperwork Reduction Act
On September 4, 2001, OSHA published notice in the Federal Register
(66 FR 46291) providing a 60 day opportunity for public comment on the
information collection requirements associated with Federal regulations
governing OSHA-approved State plans (29 CFR parts 1902, 1952, 1953,
1954, 1955, 1954). This is part of a pre-clearance process under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)), prior to
review by the Office of Management and Budget (OMB). The burden
associated with the current 1953 regulation was estimated to be 2,360
hours. This reflects the information that the States must provide to
OSHA to keep their State plans up-to-date, but not the usual and
customary activity associated with program operation, such as
promulgation of standards, adoption of regulations, and development of
policies. Final action on the proposed regulatory revision covered by
today's notice will likely result in a reduction in that burden
estimate. At that time, approval of appropriate adjustments to the
related
[[Page 56045]]
information collection burden hours will be sought.
E. Regulatory Review
Regulatory Flexibility Act
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) that the proposed revisions will not have a
significant economic impact on a substantial number of small entities.
These proposed regulations apply only to certain state agencies and
would not place small units of government under any new or different
requirements, nor would any additional burden be placed upon the State
government beyond the responsibilities already assumed as part of the
approved plan.
Unfunded Mandates Reform Act
The procedures in 29 CFR part 1953 for submission and approval of
plan changes apply only to states which have voluntarily submitted a
state plan for OSHA approval under the OSH Act, and accordingly these
procedures do not meet the definition of a ``Federal intergovernmental
mandate'' under section 421(5) of UMRA (2 U.S.C. 658(5)).
List of Subjects in 29 CFR Part 1953
Intergovernmental relations, Law enforcement, Occupational safety
and health, Reporting and recordkeeping requirements.
Authority
This document was prepared under the direction of John L. Henshaw,
Assistant Secretary of Labor for Occupational Safety and Health. It is
issued under section 18 of the OSH Act (29 U.S.C. 667), and Secretary
of Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).
Signed at Washington, DC this 26th day of October, 2001.
John L. Henshaw,
Assistant Secretary of Labor.
29 CFR Part 1953 would be revised as set forth below:
PART 1953--CHANGES TO STATE PLANS
Sec.
1953.1 Purpose and scope.
1953.2 Definitions.
1953.3 General policies and procedures.
1953.4 Submission of plan supplements.
1953.5 Special provisions for standards changes.
1953.6 Review and approval of plan supplements.
Authority: Sec. 18, 84, Stat. 1608 (29 U.S.C. 667); Secretary of
Labor's Order No. 3-2000 (65 FR 50017, August 16, 2000).
Sec. 1953.1 Purpose and scope.
(a) This part implements the provisions of section 18 of the
Occupational Safety and Health Act of 1970 (``OSH Act'' or the ``Act'')
which provides for State plans for the development and enforcement of
State occupational safety and health standards. These plans must meet
the criteria in section 18(c) of the Act, and part 1902 of this chapter
(for plans covering both private sector and State and local government
employers) or part 1956 of this chapter (for plans covering only State
and local government employers), either at the time of submission or--
where the plan is developmental--within the three year period
immediately following commencement of the plan's operation. Approval of
a State plan is based on a finding that the State has, or will have, a
program, pursuant to appropriate State law, for the adoption and
enforcement of State standards that is ``at least as effective'' as the
Federal program.
(b) When submitting plans, the States provide assurances that they
will continue to meet the requirements in section 18(c) of the Act and
part 1902 or part 1956 of this chapter for a program that is ``at least
as effective'' as the Federal. Such assurances are a fundamental basis
for approval of plans. (See Sec. 1902.3 and Sec. 1956.2 of this
chapter.) From time to time after initial plan approval, States will
need to make changes to their plans. This part establishes procedures
for submission and review of State plan supplements documenting those
changes that are necessary to fulfill the State's assurances, the
requirements of the Act, and part 1902 or part 1956 of this chapter.
(c) Changes to a plan may be initiated in several ways. In the case
of a developmental plan, changes are required to document establishment
of those necessary structural program components that were not in place
at the time of plan approval. These commitments are included in a
developmental schedule approved as part of the initial plan. These
``developmental changes'' must be completed within the three year
period immediately following the commencement of operations under the
plan. Another circumstance requiring subsequent changes to a State plan
would be the need to keep pace with changes to the Federal program, or
``Federal Program Changes.'' A third situation would be changes
required as a result of the continuing evaluation of the State
program--``evaluation changes.'' Finally, changes to a State program's
safety and health requirements or procedures initiated by the State
without a Federal parallel could have an impact on the effectiveness of
the State program--``State-initiated changes.'' While requirements for
submission of a plan supplement to OSHA differ depending on the type of
change, all supplements are processed in accordance with the procedures
in Sec. 1953.6.
Sec. 1953.2 Definitions.
(a) OSHA means the Assistant Secretary of Labor for Occupational
Safety and Health, or any representative authorized to perform any of
the functions discussed in this part, as set out in implementing
Instructions.
(b) State means an authorized representative of the agency
designated to administer a State plan under Sec. 1902.3(b) of this
chapter.
(c) Plan change means any modification made by a State to its
approved occupational safety and health State plan which has an impact
on the plan's effectiveness.
(d) Plan supplement means all documents necessary to accomplish,
implement, describe and evaluate the effectiveness of a change to a
State plan which differs from the parallel Federal legislation,
regulation, policy or procedure. (This would include a copy of the
complete legislation, regulation, policy or procedure adopted; an
identification of each of the differences; and an explanation of how
each provision is at least as effective as the comparable Federal
provision.)
(e) Identical plan change means one in which the State adopts the
same program provisions and documentation as the Federal program with
the only differences being those modifications necessary to reflect a
State's unique structure (e.g., organizational responsibility within a
State and corresponding titles or internal State numbering system).
Different plan change means one in which the State adopts program
provisions and documentation that are not identical as defined in this
paragraph.
(g) Developmental change is a change made to a State plan which
documents the completion of a program component which was not fully
developed at the time of initial plan approval.
(h) Federal program change is a change made to a State plan when
OSHA determines that an alteration in the Federal program could render
a State program less effective than OSHA's if it is not similarly
modified.
[[Page 56046]]
(i) Evaluation change is a change made to a State plan when
evaluations of a State program show that some substantive aspect of a
State plan has an adverse impact on the implementation of the State's
program and needs revision.
(j) State-initiated change is a change made to a State plan which
is undertaken at a State's option and is not necessitated by Federal
requirements.
Sec. 1953.3 General policies and procedures.
(a) Effectiveness of State plan changes under State law. Federal
OSHA approval of a State plan under section 18(b) of the OSH Act in
effect removes the barrier of Federal preemption, and permits the state
to adopt and enforce state standards and other requirements regarding
occupational safety or health issues regulated by OSHA. A State with an
approved plan may modify or supplement the requirements contained in
its plan, and may implement such requirements under State law, without
prior approval of the plan change by Federal OSHA. Changes to approved
state plans are subject to subsequent OSHA review. If OSHA finds reason
to reject a State plan change, and this determination is upheld after
an adjudicatory proceeding, the plan change would then be excluded from
the State's Federally-approved plan.
(b) Required State plan notifications and supplements. Whenever a
State makes a change to its legislation, regulations, standards, or
major changes to policies or procedures, which affect the operation of
the State plan, the State shall provide written notification to OSHA.
When the change differs from a corresponding Federal program component,
the State shall submit a formal, written plan supplement. When the
State adopts a provision which is identical to a corresponding Federal
provision, written notification, but no formal plan supplement, is
required. However, the State is expected to maintain the necessary
underlying State document (e.g., legislation or standard) and to make
it available for review upon request. Submission of all notifications
and supplements may be in electronic format.
(c) Plan supplement availability. Copies of all principal documents
comprising the State plan, whether approved or pending approval, shall
be available for inspection and copying at the Federal and State
locations specified in the subpart of part 1952 of this chapter
relating to each State plan. The underlying documentation for identical
plan changes shall be maintained by the State and shall similarly be
available for inspection and copying at the State locations. Annually,
States shall submit updated copies of the principal documents
comprising the plan, or appropriate page changes, to the extent that
these documents have been revised. To the extent possible, plan
documents will be maintained and submitted by the State in electronic
format and also made available in such manner.
(d) Advisory opinions. Upon State request, OSHA may issue an
advisory opinion on the approvability of a proposed change which
differs from the Federal program prior to promulgation or adoption by
the State and submission as a formal supplement.
(e) Alternative procedures. Upon reasonable notice to interested
persons, the Assistant Secretary may prescribe additional or
alternative procedures in order to expedite the review process or for
any other good cause which may be consistent with the applicable laws.
Sec. 1953.4 Submission of plan supplements.
(a) Developmental changes.
(1) Sections 1902.2(b) and 1956.2(b) of this chapter require that
each State with a developmental plan must set forth in its plan, as
developmental steps, those changes which must be made to its initially-
approved plan for its program to be at least as effective as the
Federal program and a timetable for making these changes. The State
must notify OSHA of a developmental change when it completes a
developmental step or fails to meet any developmental step.
(2) If the completion of a developmental step is the adoption of a
program component which is identical to the Federal program component,
the State need only submit documentation, such as the cover page of an
implementing directive or a notice of promulgation, that it has adopted
the program component, but must make the underlying documentation
available for Federal and public review upon request.
(3) If the completion of a developmental step involves the adoption
of policies or procedures which differ from the Federal program, the
State must submit one copy of the required plan supplement.
(4) When a developmental step is missed, the State must submit a
supplement which documents the impact on the program of the failure to
complete the developmental step, an explanation of why the step was not
completed on time and a revised timetable with a new completion date
(generally not to exceed 90 days) and any other actions necessary to
ensure completion. Where the State has an operational status agreement
with OSHA under Sec. 1954.3 of this chapter, the State must provide an
assurance that the missed step will not affect the effectiveness of
State enforcement in any issues for which the State program has been
deemed to be operational.
(5 ) If the State fails to submit the required documentation or
supplement, as provided in Sec. 1953.4(a)(2), (3) or (4) above, when
the developmental step is scheduled for completion, OSHA shall notify
the State that documentation or a supplement is required and set a
timetable for submission of any required documentation or supplement,
generally not to exceed 90 days.
(b) Federal Program changes.
(1) When a significant change in the Federal program would have an
adverse impact on the ``at least as effective'' status of the State
program if a parallel state program modification were not made, State
adoption of a change in response to the Federal program change shall be
required. A Federal program change that would not result in any
diminution of the effectiveness of a State plan compared to Federal
OSHA generally would not require adoption by the State.
(2) Examples of significant changes to the Federal program that
would normally require a State response would include a change in the
Act, promulgation or revision of OSHA standards or regulations, or
changes in policy or procedure of national importance. A Federal
program change that only establishes procedures necessary to implement
a new or established policy, standard or regulation does not require a
State response, although the State would be expected to establish
policies and procedures which are ``at least as effective,'' which must
be available for review on request.
(3) When there is a change in the Federal program which requires
State action, OSHA shall advise the States. This notification shall
also contain a date by which States must submit either a supplement if
they adopt a change which differs from the Federal change, or
documentation of adoption of a program component identical to the
Federal program component, or, as explained in paragraph (b)(5) of this
section, a statement why a program change is not necessary. This date
will generally be six months from the date of notification, except
where the Assistant Secretary determines that the nature or scope of
the change requires a different time frame, for example, a change
requiring legislative action where a State has a biennial legislature
or a policy of major national implications requiring a shorter
implementing time frame. State notification of intent may
[[Page 56047]]
be required prior to the plan supplement submission.
(4) If the State change is different from the Federal program
change, the State shall submit one copy of the required supplement. The
supplement shall contain a copy of the relevant legislation,
regulation, policy or procedure and documentation on how the change
maintains the ``at least as effective as'' status of the plan.
(5) If the State adopts a change identical to the Federal program
change, the State is not required to submit a supplement. However, the
State shall provide documentation, such as the cover page of an
implementing directive or a notice of promulgation, that it has adopted
the change.
(6) The State may demonstrate why a program change is not necessary
because the State program is already the same as or at least as
effective as the Federal program change. Such submissions will require
review and approval as set forth in Sec. 1953.6.
(7) Where there is a change in the Federal program which does not
require State action but is of sufficient national interest to warrant
indication of State intent, the State may be required to provide such
notification within a specified time frame.
(c) Evaluation changes.
(1) Special and periodic evaluations of a State program by OSHA in
cooperation with the State may show that some portion of a State plan
has an adverse impact on the effectiveness of the State program and
accordingly requires modification to the State's underlying
legislation, regulations, policy or procedures as an evaluation change.
For example, OSHA could find that additional legislative or regulatory
authority may be necessary to effectively pursue the State's right of
entry into workplaces, or to assure various employee or employer
rights.
(2) OSHA shall advise the State of any evaluation findings that
require a change to the State plan and the reasons supporting this
decision. This notification shall also contain a date by which the
State must accomplish this change and submit either the change
supplement or a timetable for its accomplishment and interim steps to
assure continued program effectiveness, documentation of adoption of a
program component identical to the Federal program component, or, as
explained in paragraph (c)(5) of this section, a statement
demonstrating why a program change is not necessary.
(3) If the State adopts a program component which differs from a
corresponding Federal program component, the State shall submit one
copy of a required supplement. The supplement shall contain a copy of
the relevant legislation, regulation, policy or procedure and
documentation on how the change maintains the ``at least as effective
as'' status of the plan.
(4) If the State adopts a program component identical to a Federal
program component, submission of a supplement is not required. However,
the State shall provide documentation, such as the cover page of an
implementing directive or a notice of promulgation, that it has adopted
the change and shall retain all other documentation within the State
available for review upon request.
(5) The State may demonstrate why a program change is not necessary
because the State program is meeting the requirements for an ``at least
as effective'' program. Such submission will require review and
approval as set forth in Sec. 1953.6.
(d) State-initiated changes.
(1) A State-initiated change is any change to the State plan which
is undertaken at a State's option and is not necessitated by Federal
requirements. State-initiated changes may include legislative,
regulatory administrative, policy or procedural changes which impact on
the effectiveness of the State program.
(2) A State-initiated change supplement is required whenever the
State takes an action not otherwise covered by this part that would
impact on the effectiveness of the State program. The State shall
notify OSHA as soon as it becomes aware of any change which could
affect the State's ability to meet the approval criteria in parts 1902
and 1956 of this chapter and submit a supplement within 60 days. Other
State initiated supplements may be submitted at any time generally not
to exceed 6 months after the change occurred. The State supplement
shall contain a copy of the relevant legislation, regulation, policy or
procedure and documentation on how the change maintains the ``at least
as effective as'' status of the plan. If the State fails to notify OSHA
of the change or fails to submit the required supplement within the
specified time period, OSHA shall notify the State that a supplement is
required and set a time period for submission of the supplement,
generally not to exceed 30 days.
Sec. 1953.5 Special provisions for standards changes.
(a) Permanent standards.
(1) Where a Federal program change is a new permanent standard, or
a more stringent amendment to an existing permanent standard, the State
shall promulgate a State standard adopting such new Federal standard,
or more stringent amendment to an existing Federal standard, or an at
least as effective equivalent thereof, within six months of the date of
promulgation of the new Federal standard or more stringent amendment.
The State may demonstrate that a standard change is not necessary
because the State standard is already the same as or at least as
effective as the Federal standard change. In order to avoid delays in
worker protection, the effective date of the State standard and any of
its delayed provisions must be the date of State promulgation or the
Federal effective date whichever is later. The Assistant Secretary may
permit a longer time period if the State makes a timely demonstration
that good cause exists for extending the time limitation. State
permanent standards adopted in response to a new or revised Federal
standard shall be submitted as a State plan supplement in accordance
with Sec. 1953.4(b), Federal Program changes.
(2) Because a State may include standards and standards provisions
in addition to Federal standards within an issue covered by an approved
plan, it would generally be unnecessary for a State to revoke a
standard when the comparable Federal standard is revoked or made less
stringent. If the State does not adopt the Federal action, it need only
provide notification of its intent to retain the existing State
standard to OSHA within 6 months of the Federal promulgation date. If
the State adopts a change to its standard parallel to the Federal
action, it shall submit the appropriate documentation as provided in
Sec. 1953.4(b)(3) or (4)--Federal program changes. However, in the case
of standards applicable to products used or distributed in interstate
commerce where section 18(c)(2) of the Act imposes certain restrictions
on State plan authority, the modification, revision, or revocation of
the Federal standard may necessitate the modification, revision, or
revocation of the comparable State standard unless the State standard
is required by compelling local conditions and does not unduly burden
interstate commerce.
(3) Where a State on its own initiative adopts a permanent State
standard for which there is no Federal parallel, the State shall submit
it in accordance with Sec. 1953.4(d)--State-initiated changes.
(b) Emergency temporary standards.
(1) Immediately upon publication of an emergency temporary standard
in the Federal Register, OSHA shall advise the States of the standard
and that a Federal program change supplement shall be required. This
notification must also
[[Page 56048]]
provide that the State has 30 days after the date of promulgation of
the Federal standard to adopt a State emergency temporary standard if
the State plan covers that issue. The State may demonstrate that
promulgation of an emergency temporary standard is not necessary
because the State standard is already the same as or at least as
effective as the Federal standard change. The State standard must
remain in effect for the duration of the Federal emergency temporary
standard which may not exceed six (6) months.
(2) Within 15 days after receipt of the notice of a Federal
emergency temporary standard, the State shall advise OSHA of the action
it will take. State standards shall be submitted in accordance with the
applicable procedures in Sec. 1953.4(b)--Federal Program Changes,
except that the required documentation or plan supplement must be
submitted within 5 days of State promulgation.
(3) If for any reason, a State on its own initiative adopts a State
emergency temporary standard, it shall be submitted as a plan
supplement in accordance with Sec. 1953.4(c), but within 10 days of
promulgation.
Sec. 1953.6 Review and approval of plan supplements.
(a) OSHA shall review a supplement to determine whether it is at
least as effective as the Federal program and meets the criteria in the
Act and implementing regulations and the assurances in the State plan.
If the review reveals any defect in the supplement, or if more
information is needed, OSHA shall offer assistance to the State and
shall provide the State an opportunity to clarify or correct the
change.
(b) If upon review, OSHA determines that the differences from a
corresponding Federal component are purely editorial and do not change
the substance of the policy or requirements on employers, it shall deem
the change identical. This includes ``plain language'' rewrites of new
Federal standards or previously approved State standards which do not
change the meaning or requirements of the standard. OSHA will inform
the State of this determination. No further review or Federal Register
publication is required.
(c) Federal OSHA may seek public comment during its review of plan
supplements. Generally, OSHA will seek public comment if a State
program component differs significantly from the comparable Federal
program component and OSHA needs additional information on its
compliance with the criteria in section 18(c) of the Act, including
whether it is at least as effective as the Federal program and in the
case of a standard applicable to products used or distributed in
interstate commerce, whether it is required by compelling local
conditions or unduly burdens interstate commerce under section 18(c)(2)
of the Act.
(d) If the plan change meets the approval criteria, OSHA shall
approve it and shall thereafter publish a Federal Register notice
announcing the approval. OSHA reserves the right to reconsider its
decision should subsequent information be brought to its attention.
(e) If a State fails to submit a required supplement or if
examination discloses cause for rejecting a submitted supplement, OSHA
shall provide the State a reasonable time, generally not to exceed 30
days, to submit a revised supplement or to show cause why a proceeding
should not be commenced either for rejection of the supplement or for
failure to adopt the change in accordance with the procedures in
Sec. 1902.17 or part 1955 of this chapter.
[FR Doc. 01-27728 Filed 11-5-01; 8:45 am]
BILLING CODE 4510-26-P